The DELTA- T COCKPIT SaaS License Agreement Rev.05 - Nov Rev.14 March 2013

Transcription

1 Rev.14 March PURPOSE OF THIS AGREEMENT Delta Institute S.A. (henceforth referred to as DELTA) has developed and is owner of the DELTA- T COCKPIT, a Software- as- a- Service tool supporting the use of the DELTA- T operational leadership methodology, henceforth referred to as DELTA- T. The client company (henceforth referred to as LICENSEE) will use the DELTA- T COCKPIT a) While receiving DELTA- T consulting services from a DELTA- T CONSULTANT and/or b) After that, as the LICENSEE S operational leadership tool. DELTA wishes to grant a license for the use of the DELTA- T COCKPIT to the LICENSEE. With these intentions in mind the two parties agree to the following: 2 GRANT OF LICENSE DELTA grants the LICENSEE, a non- exclusive, non- transferable, worldwide right to use the DELTA- T COCKPIT as set forth herein. All rights not expressly granted to LICENSEE are reserved to DELTA. Use of the license is limited to use by the LICENSEE and the USERs authorized by the LICENSEE. LICENSEE is not authorized to grant sub licenses to other parties of any kind. 3 USERS 3.1 Personal account USERs will have a personal account with personal login and password for access to the DELTA- T COCKPIT. The number of USERs will not be limited. USERs may or may not be employees of the LICENSEE. 3.2 USER obligation to enter USER LICENSE AGREEMENT LICENSEE will ensure that every user will enter a sub- license agreement, by which the USER declares agreement to the DELTA- T COCKPIT license conditions. USERs will confirm their entering such USER LICENSE AGREEMENT by confirming acceptance at the first time of logging on. For text of USER LICENSE AGREEMENT see sales- officer- english.ch/admin/eula.pdf. 3.3 Special USER: The DELTA-T project manager This USER configures the DELTA- T COCKPIT for the use by LICENSEE by setting up USER accounts and other key data elements for the LICENSEE. This USER has access to all other USER s data and shall be referred to henceforth as DELTA- T PROJECT MANAGER. Page 1

2 4 LICENSE TERM 4.1 Annual term The license period shall be for an annual term, starting with the receipt of the order for the license by DELTA. 4.2 Automatic renewal The license shall be renewed automatically for one year unless cancelled by either party, latest 90 days before end of the license period. 5 LICENSE FEE AND PAYMENT 5.1 License fee during launch period During the first three months of the engagement ( launch period ) of a DELTA consultant the use of the DELTA- T COCKPIT will be free of charge. 5.2 License fee after launch period After the launch period a license fee will be due (see the DELTA T Cockpit Price List valid at time of conclusion of this contract). The license price list shall be firm for the period of one year, and may be revised by DELTA annually. Annual price increases are limited to max.10%. The annual license fee shall be due 30 days after receipt of license invoice from DELTA to LICENSEE. 6 ACCESS TO, USE AND HOSTING OF THE DELTA- T COCKPIT 6.1 Initial access DELTA provides the LICENSEE with initial access to the DELTA- T COCKPIT by granting access to Licensees DELTA- T COCKPIT to the DELTA- T PROJECT MANAGER. This enables the DELTA- T PROJECT MANAGER to configure LICENSEE s use of the DELTA- T COCKPIT. 6.2 Training The DELTA- T CONSULTANT will provide up to 5 hours of live person- to- person training to the DELTA- T PROJECT MANAGER. Other USERs shall be trained by the DELTA- T PROJECT MANAGER. 6.3 Documentation The DELTA- T COCKPIT is documented in its FAQ (frequently asked questions) help function included in the DELTA- T COCKPIT functionality. 6.4 Support services The DELTA- T CONSULTANT will provide usage and technical application support to the DELTA- T PROJECT MANAGER on workdays from 9:00 to 17:00 CET. 6.5 Modifications, upgrades and enhancements DELTA will provide modifications, upgrades and enhancements to the DELTA- T COCKPIT at no additional cost, at DELTA's sole discretion. 6.6 Hosting and data security measures Hosting environment DELTA has entered into an agreement with a third party service provider, whereby the DELTA- T COCKPIT Solution is being hosted in a third party data center, offering a secure, controlled environment for computer hardware and Internet connectivity and the LICENSEE will be subject to the service criteria in relation thereto. A copy of the agreement between DELTA and the third party service provider can be provided on request Right to change the hosting environment DELTA reserves the right to change the Hosted Environment. DELTA will manage all transfer arrangements to enable the LICENSEE s system to be relocated. Page 2

3 6.6.3 Standalone hosting environment The DELTA- T COCKPIT solution is currently being hosted under the terms of an agreement between DELTA and a third party. The Hosted Environment provides DELTA- T COCKPIT applications for many organizations. Should it be required DELTA can provide a standalone environment at additional cost Data security measures in hosting environment DELTA requires the hosting service provider to have implemented an information security management system proved by certification to the ISO/IEC standard Data security measures by LICENSEE LICENSEE will take all necessary steps to ensure data security within the framework of LICENSEE s data security policies. Specifically, DELTA- T Project Managers are responsible to LICENSEE s management to ensure use of passwords with high level security ( safe passwords ) 6.7 Ownership of LICENSEE s data LICENSEE owns all Licensees data transmitted through, posted on, or used in connection with the DELTA- T COCKPIT. 6.8 Access to LICENSEE s data by DELTA DELTA will access LICENSEE s DELTA- T COCKPIT usage data for Supporting the LICENSEE s DELTA- T Project, as defined by the agreement between the DELTA- T consultant and the LICENSEE, Improving the quality and functionality of the DELTA- T COCKPIT, and/or Administrative operations, for instance invoicing the LICENSEE. Beyond this, DELTA will not access the LICENSEE s data that is posted to or transmitted through use of the DELTA- T COCKPIT, unless Requested by and authorized in writing by the LICENSEE or Compelled by appropriate governmental authority. 6.9 Access to LICENSEE s data by the LICENSEE s DELTA-T consultant The DELTA- T CONSULTANT has access LICENSEE s data as long as there is a consulting engagement active with the LICENSEE DELTA intellectual property DELTA represents and warrants to the best of DELTA s knowledge that it has full title and ownership to the DELTA- T COCKPIT and has the authority to grant the license hereunder. To the best of DELTA s knowledge the DELTA- T COCKPIT does not infringe upon the intellectual property rights of any third party and that it did not receive any notice regarding any alleged infringement thereof. LICENSEE acknowledges that the DELTA- T methodology is intellectual property of DELTA. Various trademarks and copyrights worldwide protect this methodology, and its realization in form of SAAS the DELTA- T COCKPIT - and related documentation. LICENSEE shall not, and it shall not allow any person to make or make an attempt to, examine, copy, alter, "reverse engineer," tamper with or otherwise use the DELTA- T COCKPIT except as set forth herein. LICENSEE further acknowledges and agrees that it has no proprietary interest in the DELTA- T COCKPIT, that all proprietary interest in the DELTA- T COCKPIT is owned and controlled by DELTA, and that LICENSEE will not attempt to or allow an attempt to transfer, duplicate, sell, license, or otherwise dispose of, in whole or in part, the DELTA- T COCKPIT or any component part thereof, to any, affiliate, or any third party, except as specifically provided herein. LICENSEE acknowledges and agrees that the obligation of confidentiality and protection of DELTA's confidential and proprietary information shall survive the termination of this Agreement. Page 3

4 7 TERMINATION OF AGREEMENT 7.1 Termination by LICENSEE LICENSEE may terminate this agreement to the end of the active license period with written notice, latest 90 days before end of the active license period. 7.2 Termination by DELTA Violation of terms DELTA may immediately terminate this Agreement if LICENSEE violates the terms of this Agreement Failure to pay license fee DELTA may immediately terminate this Agreement if LICENSEE fails to pay the license fee within thirty (30) days following receipt of written notice that such payment is due Rescind license and revoke of rights The termination of this Agreement shall rescind the license granted and revoke all rights granted to or accrued by LICENSEE to use THE DELTA- T methodology Disabling access In the event of termination for non- payment, DELTA may disable Master LICENSEE's access to and use of the DELTA- T Cockpit until such time as DELTA has received full payment. 7.3 Retrieval of LICENSEE s data Data, defined LICENSEE s data shall be all LICENSEE S data contained within the DELTA- T COCKPIT at time of termination of this Agreement as far as they related to the LICENSEE s DELTA- T COCKPIT Request to provide LICENSEE s data LICENSEE shall explicitly state the request for DELTA to provide LICENSEE s data no later than thirty (30) days following termination of this Agreement DELTA obligation to provide LICENSEE s data DELTA shall provide LICENSEE s data no later than thirty (30) days after having received this request and after all outstanding payments have been effected by LICENSEE. DELTA shall provide the data in form of an EXCEL file containing all data stored within the LICENSEE s DELTA- T COCKPIT account, stored on a CD, sent to LICENSEE by registered mail. DELTA shall not be responsible for any LICENSEE data not retrieved within ninety (90) days following termination of this Agreement. 7.4 Termination fees In case of termination fees as per valid DELTA- T Cockpit price list will be due to DELTA. No termination fee will be due if the DELTA- T COCKPIT was only used during the launch period without the LICENSEE having placed an order for the DELTA- T Cockpit with DELTA. Page 4

5 8 WARRANTIES AND REPRESENTATIONS; DISCLAIMER 8.1 Limited warranties DELTA warrants only that the DELTA- T COCKPIT shall perform substantially in accordance with the descriptions of DELTA contained in printed materials produced by DELTA and/or appearing on the Internet on a DELTA site, a DELTA sponsored site or advertisement. The entire and exclusive remedy for breach of this Limited Warranty shall be, at DELTA's option, either The return of the initial license fee paid, or To repair, upgrade, or otherwise enhance the performance of DELTA- To address the failure of performance, with best effort in a commercially reasonable manner. 8.2 No warranty of achieving business results DELTA does not represent or warrant that the DELTA- T COCKPIT will be capable of achieving any particular result or results in LICENSEE s business or operations. 8.3 No other warranties Except as set forth above, there are no other warranties either express or implied. All other warranties, either expressed or implied, are hereby disclaimed, including but not limited to the warranty of fitness for a particular purpose and the warranty of merchantability. This limitation may not apply to LICENSEE in some countries and jurisdictions, which do not permit limitations on liability. 8.4 Survival The aforesaid warranties and disclaimer shall survive acceptance and payment. 9 INDEMNITY AND LIMITATIONS OF DAMAGES 9.1 Indemnity by DELTA In the event that anyone commences an action challenging DELTA's right to license the DELTA- T COCKPIT, and provided that DELTA receives timely notice and an opportunity to defend, DELTA shall indemnify LICENSEE and hold it harmless from and against all damages, losses, expenses, and attorney's fees, arising out of such infringement or other action. After timely written notice from LICENSEE, DELTA shall, at its sole expense, defend any such actions. 9.2 Indemnity by Licensee LICENSEE shall indemnify, defend and hold DELTA, its affiliates, directors, officers and employees harmless from and against any claim, liability, damage, cost, expense (including actual attorneys fees), award, fine, or judgment, arising from or out of LICENSEE's operation, conduct, and responsibility for its use of the DELTA- T COCKPIT, and for any and all claims of infringement of any proprietary rights by any graphic, picture, text, audio, video, software, other data, or information provided by LICENSEE. 9.3 Limitation of Damages No party shall be entitled to receive from or be obligated to pay to the other any part of any award, claim, fine or judgment which is deemed, declared or is characterized in its nature to be exemplary, punitive or consequential damages. Page 5

6 9.4 Exclusion of Incidental, Consequential and Certain Other Damages In no event shall DELTA be liable for any damages whatsoever, Under or in connection with any provisions of this agreement, Even in the event of fault, tort (including negligence), misrepresentation, strict liability, breach of contract, And even if the LICENSEE of USER has been advised of the possibility of such damages Including but not limited to damages relating to: o Loss of sales or profit, o Loss of confidential or other information, o Business interruption, o Personal injury, o Loss of privacy, o Failure to meet any duty including of good faith or of reasonable care, o Negligence, o Any other pecuniary loss whatsoever, o The provision of or failure to provide support or other services o Any software that is not designed or manufactured by DELTA or any computer hardware; o o Interruption, delays, errors or omissions for which DELTA is not responsible; or Licensee s use of the DELTA- T COCKPIT in any manner not contemplated by the documentation and this Agreement or the modification or unauthorized use of the DELTA- T COCKPIT o The use or inability to use the DELTA- T COCKPIT. OR OTHERWISE 9.5 Limitation of liability In no event shall DELTA s liability exceed the license fee paid in the last license cycle, if any. 10 ASSIGNMENT This Agreement or any interest hereunder shall not be assigned or transferred by either party without the prior written consent of the other party and subject to such reasonable terms and conditions that the consenting party may impose. Either party may, without the consent of the other, but with the proper notice, transfer this Agreement in whole or part to any entity into which or with which it may be merged or consolidated, or to any entity which acquires all or substantially all of the assets of the party, or to the party's parent, subsidiary or an affiliated entity. Page 6

7 11 MISCELLANEOUS PROVISIONS 11.1 Severability If any term or provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect Notices Wherever provision is made in this Agreement for the giving, service or delivery of any notice, statement or other instrument, the same shall be deemed to have been duly given, served and delivered: On the date personally delivered, On the second business day following the date on which mailed by registered or certified mail (return receipt requested), postage prepaid, or On the first business day following the date on which mailed by Express Mail, postage pre- paid, or delivered to a commercially responsible overnight courier, who provides service between the point of origin and the point of destination, addressed to DELTA Applicable Law and Arbitration This AGREEMENT and all ANNEXES regarded as an integral part thereof shall be subject to substantive Swiss Law, excluding the UN Treaty regarding the international purchase of goods ( Wiener Kaufrecht Übereinkommen ). Any question concerning the validity, interpretation or application of the AGREEMENT shall be first subject to consultations between the contractual parties, including if necessary the involvement of its most senior officials, and they shall endeavor to mutually settle any dispute or claim which may arise. Any disputes arising including such disputes as to whether the AGREEMENT validly entered into legal force or its amendment or termination shall be settled by an arbitration tribunal in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one. The seat of the arbitration shall be Geneva. The arbitral proceedings shall be conducted in English LICENCEEs Abiding to Local Laws LICENSEE agrees to abide by all applicable local, state, national and foreign laws, treaties and regulations that may be applicable to its use of the DELTA- T COCKPIT and to any Customer Data Entire Agreement This Agreement contains the entire agreement of the parties and each party acknowledges there were not other oral agreements, representations, warranties or statements of fact made prior to or at the time of the signing of this Agreement Modification No alteration, modification or amendment of this Agreement shall be effective or enforceable unless it shall be in writing and signed by the parties Waiver Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this Agreement or a waiver of any default of the other party Time of the Essence Time is of the essence in this Agreement and in all provisions contained herein Attorneys Fees In the event of any disputes between the parties arising out of this Agreement, the prevailing party shall be allowed actual attorney fees and costs incurred in any negotiation, litigation or any appeal Acknowledgment of independent advice Each party, in signing below, acknowledges that it has read all of the provisions of the foregoing Agreement, understands them, has sought independent advice regarding the legal effect of the provisions herein, and agrees to be bound by said provisions. Page 7

8 11.11 Warranty of Authority. The undersigned warrants that they are authorized and have authority to execute this Agreement on behalf of the business entity Survival of obligations The obligations set forth in Paragraphs 8 (Limited Warranties and Representations; Disclaimer), and 9 (Indemnity; Limitation of Damages) shall survive the termination of this Agreement. 12 TERMS AND DEFINITIONS The following terms have the meaning set forth herein: 12.1 Customer Data All data posted by USERs of the DELTA- T COCKPIT in that system DELTA-T PROJECT MANAGER A USER of the DELTA- T COCKPIT with special privileges to configure the DELTA- T COCKPIT by setting up USER accounts and other key data for use of the DELTA- T COCKPIT DELTA-T COCKPIT A sales leadership system based on the DELTA- T- Selling methodology as described in the book Unblock the Power of Your Sales Force and in other material which has been presented to the LICENSEE. This includes any revised software, updates, supplements, and Internet- based services of DELTA DELTA-T COCKPIT USER account One instance of the DELTA- T COCKPIT set up for exclusive use by a LICENSEE and its Sub- LICENSEEs Licensee A company for which use of the DELTA- T COCKPIT has been enabled. USER account has been set up, Paying for and accessing the DELTA- T COCKPIT under this License Agreement with the intent of enabling sub- LICENSEEs as USERs of the DELTA- T COCKPIT User License Agreement A contract between the USER and DELTA defining the agreement of conditions for using the DELTA- T COCKPIT between one USER and DELTA. This contract is agreed to be the USER on first access to the DELTA- T COCKPIT. 13 SIGNATURES Licensee Name, Title, Company Name Date Page 8