End User License Agreement
This End User License Agreement (“Agreement“) is a binding agreement between Lean Methods Group (“Licensor“) and the individual or entity (“Licensee“) purchasing products and/or services (“Application“) from Licensor, including from the website https://leanmethods.com and any user portal or interactive user website (“Website“).
LICENSOR PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY PURCHASING, LICENSING AND USING THE APPLICATION AND/OR BY CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE APPLICATION TO LICENSEE AND YOU MUST NOT LICENSE THE APPLICATION.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Application” means (a) the eCourses and/or Curriculum licensed under this Agreement, (b) any Documentation provided to Authorized User, and (c) any modified versions, additions, conversions, derivative works, translations, replacements and copies of any of the foregoing that are made by any person.
“Authorized User” means (a) the individual Licensee or (b) the entity Licensee, and if an entity, one (1) employee of the entity per License Seat granted under this Agreement (not concurrent users), authorized to use the Application pursuant to the License granted under this Agreement.
“Curriculum” means the classroom curriculum for the courses in the English language (or as otherwise agreed to) that are licensed under this Agreement by Licensee from Licensor, but excludes any quizzes, exams, and any simulations unless they are expressly listed as being included as part of the Curriculum.
“Delivery” means the date that the Application is first made available to Licensee so that it can be accessed and used.
“Documentation” means any materials that Licensor provides to Authorized User, including without limitation, course and training materials, user guides, course curricula, quizzes or exams, handouts, and documents.
“eCourses” means the eLearning training modules in the English language (or as otherwise agreed to) that are licensed under this Agreement by Licensee from Licensor, including any embedded quizzes, tests and simulations.
“Intellectual Property Rights” mean all worldwide common law or statutory: (i) patents, patent applications, and patent rights; (ii) rights associated with original works, authorship, moral rights, copyrights and all its exclusive rights; (iii) rights relating to trade secrets and confidential information, (iv) rights associated with algorithms, designs, industrial designs, and semiconductor design; (v) rights related to trademarks, service marks, trade names, trade dress and related goodwill; (vi) rights analogous to those specified above and any and all other industrial or intellectual property rights; and (vii) registrations, divisionals, continuations, continuations-in-part, renewals, reissues, reexaminations, and extensions of the foregoing (as applicable) now existing or later filed, issued or acquired.
“License” has the meaning set forth in Section 2.
“License Fees” means the license fees for the Application, including all taxes, paid by Licensee to Licensor for the License granted under this Agreement. To avoid any confusion, License Fees shall not include any technical support, and if such is needed, it will be billed at Licensor’s current hourly rate.
“License Seat” means the total number of Licensee’s employees agreed upon between the parties that are allowed to access the Application, with only one (1) employee being allowed to ever use the Application per License Seat (not concurrent users).
“Licensee” has the meaning set forth in the preamble.
“Licensee’s Preexisting Materials” has the meaning set forth in Section 2.1.
“Licensee’s Systems” has the meaning set forth in Section 6.
“Licensor” has the meaning set forth in the preamble.
“LMS” means a learning management system used to deliver the eCourses.
“Modified Application” has the meaning set forth in Section 2.1.
“Renewal Term” has the meaning set forth in Section 4.
“Term” means (a) a period of one (1) year or (b) a period of ninety-nine (99) years, as agreed to by the parties, which shall commence upon Delivery.
- License Grant. If Licensee pays Licensor the License Fees, Licensor will grant to Licensee a non-transferable, revocable (but only as set forth in Section 5), and non-exclusive license (“License“) to the Application, solely for use by Authorized Users in connection with Licensee’s continuing education and/or Licensee’s internal process improvement/employee educational program.
- Modified Application. Licensee may modify and supplement the Curriculum (“Modified Application“) if licensed by Licensee, but Licensee may not make derivative works. Licensee is the sole owner of any Licensee-owned materials, content or works of authorship that Licensee incorporates into the Curriculum (“Licensee’s Preexisting Materials“). Licensor is the sole owner of any Modified Application subject to Licensee’s ownership of Licensee’s Preexisting Materials. Modified Application will be subject to the License.
- Copies. Licensee may make archival or backup copies of the eCourses if Licensee is hosting them. Licensee may make a reasonable number of copies of the Curriculum but only to the extent necessary to provide an Authorized User with training. Licensee agrees that all copies shall bear the legend “© Lean Methods Group – No portion of these materials may be rewritten, reproduced or published in any form or by any means. All Rights Reserved.”
- Rights. Licensee has no implied rights to the Application, and Licensor reserves all rights not expressly granted to Licensee. Licensor reserves all rights not expressly granted to Licensee in this Agreement.
- Fees and Payment. For the Application that Licensee elects to License, Licensee shall pay Licensor the License Fees, without any set-off or deduction of any kind. The License Fees are due prior to Delivery. The License Fees for any Renewal Term must be prepaid on an annual basis, with the License Fees due prior to the commencement of the Renewal Term. Licensee agrees to pay (and Licensor shall have no liability for) any sales, use, VAT, excise, or similar taxes applicable to the License. If Licensee pays the License Fees by credit card or debit card, Licensee agrees to pay any convenience fees associated with the transaction.
- Term of Agreement. The Term of the License is defined herein as agreed to by the parties, and shall commence upon Delivery, and shall continue unless and until terminated in accordance with Section 5 (“Termination“). If the Term of the License is for a period of one (1) year, the License will automatically renew for a successive period of the same length as the Term (each a “Renewal Term“) unless Licensee gives notice of non-renewal at least thirty (30) days before the expiration of the Term or the then-current Renewal Term.
- Immediate Termination of Entire Agreement. This Agreement (including all Licenses) may be immediately terminated:
(a) By either party, if the other party ceases doing business, is the subject of a bankruptcy, insolvency, or similar proceeding, makes an assignment for the benefit of creditors; or
(b) By Licensor if Licensee infringes upon or misappropriates any of Licensor’s Intellectual Property Rights.
- Termination of Individual Licenses. A License may be terminated: (i) by Licensor, if Licensee fails to pay Licensor the applicable License Fees and fails to cure such breach within ten (10) business days of receiving notice in writing to do so or (ii) by either party, if the other party fails to perform its material obligations relating to that License in question and such failure is not cured within thirty (30) days after receipt of written notice from the non-breaching party. Any notice of breach provided under this Agreement shall specify: (a) the nature of the breach and (b) the specific act or acts (if any), which the non-breaching party contends would, if undertaken, correct such breach. For the avoidance of doubt, if two (2) or more Licenses are granted under this Agreement and if there is a material breach with respect to one (1) License, such breach will not constitute a material breach of this Agreement with respect to the other License(s) unless such breach substantially and similarly affects the other License(s).
- Effect of Termination or Expiration. In the event of termination or expiration of this Agreement or License(s), Licensee shall (i) immediately surrender all rights and privileges granted under this Agreement, and immediately and permanently cease using the Application in question and (ii) promptly destroy all copies of the Application.
- Hosting of and Access to eCourses. Licensor will provide hosting of the eCourses on up to one server on a segregated hosting site. Any hosting services are provided “as-is” without warranty of any kind. If Licensee is not interested in Licensor hosting, then Licensee will be solely responsible, at its own cost and expense, for hosting the eCourses on Licensee’s or a third party hosting provider’s servers using either LMS utilized by Licensor or a Licensee-supplied LMS. Licensee is solely responsible at its own cost and expense for obtaining all hardware, software, solutions and services that are necessary to access and use the eCourses, including, without limitation, internet access, computers, and for the eCourses use of an LMS if Licensee is not interested in using the LMS utilized by Licensor (collectively, “Licensee’s Systems“). Licensor shall have no responsibility for the performance, adequacy, concurrency, or other related matters related to Licensee’s Systems. For the avoidance of doubt, Licensee shall not be entitled to terminate the Agreement or any License if it is dissatisfied with Licensor hosting.
- Restrictions on Use. Except as expressly permitted in this Agreement, Licensee (and if applicable, its Authorized Users) shall not, and shall not permit or assist others to: (a) copy or otherwise reproduce any part of the Application; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Application; (c) distribute, sublicense, assign, share, sell, rent, grant a security interest in or otherwise transfer the Application or Licensee’s right to use any portion of the same; (d) remove any proprietary notices or labels on any part of the Application; (e) grant access to any part of the Application to someone other than an Authorized User; (f) modify, alter or create any derivative works based on any portion of the Application; (g) circumvent or disable any digital rights management, usage rules, or other security features contained in the Application; or (h) receive any form of compensation or remuneration in exchange for allowing any person to access or use any part of the Application.
- Indemnification. Licensor agrees to defend, indemnify and hold Licensee harmless from any claims, liability or expense, including legal fees, that arise out of a claim brought by a third party that the Application infringes on any U.S. patent, copyright, and trademark rights of a third party. If such a claim is made, Licensor will, at Licensor’s option and expense, either: (i) modify the Application to be non-infringing; (ii) obtain for Licensee the right to continued use of the Application; (iii) replace the Application with a work that is non-infringing, or (iv) refund the License Fees for the Application pro-rated for the remainder of the Term. Licensor will have no obligation under this Section for claims of infringement to the extent that such claims arise out (a) use of the Application in combination with any other products, processes or materials if the Application by itself would not directly infringe on the asserted rights or (b) modifications, alterations, additions, combinations, derivative works or enhancements of the Application not created by Licensor.
- Warranty and Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE APPLICATION IS PROVIDED TO LICENSEE “AS IS,” AND LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO, THEIR FEATURES OR CAPABILITIES AND THE RESULTS FROM THEIR USE.
- Damage Limitation. EXCEPT FOR VIOLATIONS OF OR CLAIMS ARISING OUT OF SECTIONS 7 (“RESTRICTIONS ON USE”), 8 (“INDEMNIFICATION”) OR 11 (“PROPRIETARY RIGHTS”), NEITHER PARTY SHALL HAVE ANY LIABILITY FOR CONSEQUENTIAL DAMAGES, SPECULATIVE OR REMOTE DAMAGES, EXEMPLARY DAMAGES, LOST PROFITS, OR ANY INDIRECT DAMAGES. LICENSEE’S SOLE REMEDY AND LICENSOR’S SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS IRRESPECTIVE OF THE NATURE OR THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT SHALL IN ALL CASES BE LIMITED TO MONEY DAMAGES: FOR ANNUAL LICENSE, NOT EXCEEDING THE LICENSE FEES PAID DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE DAMAGES, AND FOR PERPETUAL LICENSE, NOT EXCEEDING THE LICENSE FEES PAID.
- Proprietary Rights. Licensor agrees that Licensee solely owns all right, title and interest in and to all Licensee’s Preexisting Materials. Licensee acknowledges and agrees Licensor solely owns all right, title and interest in and to the Application.
- Assignment. Licensee may not sublicense, assign (by operation of law or otherwise) or otherwise transfer this Agreement, the License or any right, duty or obligation under this Agreement without Licensor’s prior written consent and any such assignment/sublicense/transfer shall be void, except that either party may assign this Agreement in connection with a consolidation, merger, or sale of substantially all of that party’s assets or stock. After any such permitted assignment, Licensee shall have no rights with regard to the License.
- Export Control. Licensee shall be solely responsible for compliance with any laws, rules or regulations governing the access, use, or export of the Application, including without limitation the procurement and renewal of all export and import licenses required under U.S. or any foreign law for the export of such Application, and Licensee shall pay all costs and other expenses in connection with such procurement or renewal. Licensee shall be solely responsible for obtaining all necessary export licenses or governmental approvals that may be required to access, use, or export the Application outside of the U.S. Licensee shall not directly or indirectly, export, re-export, provide, release, or otherwise make available (in any form, through visual inspection/access, oral exchange, or in a product) any information which is the subject of this Agreement to (i) any person, company, or governmental body that resides in or is located in any country that is subject to a United States trade sanction, (ii) those individuals or entities controlled by such countries, or (iii) to anyone on any denied, prohibited, or unverified list maintained by the United States Government, including the Office of Foreign Assets Control (OFAC) Specially Designated Nationals (SDN) List.
- Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, whether oral or written, between the parties relating to the subject matter hereof. Should any provision of this Agreement, for any reason, be held to be invalid, or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and the Agreement shall be interpreted to preserve to the extent possible their original intent. No amendment or modification of this Agreement shall be effective unless made in writing and signed by each of the parties. In the event that there is any conflict between the terms and conditions of this Agreement and any purchase order or Licensee contract/agreement, the terms of this Agreement shall control. Licensor objects to any different or additional terms or conditions contained in any purchase order or contract/agreement of Licensee, and no such different or additional terms shall be effective or binding upon Licensor even if signed by Licensor. Waiver of any breach of this Agreement shall not act as a waiver of any other past, present, or future breach. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Unless prohibited by law, the Uniform Commercial Code and the Uniform Computer Information Transactions Act, each as adopted in any form in any state, do not apply to this License. The following provisions shall survive the termination of this Agreement: Sections 3, 5, 7, 10, 11 and 14. Excluding the payment of money, neither party will be deemed in default of any obligation hereunder nor be liable for any failure or delay in performance which results directly or indirectly from any cause beyond its reasonable control.