By using our products and services, you agree to the terms of this Agreement. It can be tempting to avoid reading them, but it’s important to establish what you can expect from us, and what we expect from you. Please read them carefully.
DTMA END USER LICENSE AGREEMENT
This 4.0 Solutions DTMA End User License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement”), is a binding agreement between 4.0 SOLUTIONS, LLC, a Texas limited liability company (“Licensor”) and the person or entity identified on the Order Form as the licensee and/or customer (“You” or “Your”) of the Digital Transformation Maturity Assessment tools, (see definition below of “DTMA Tools”) provided by Licensor.
LICENSOR PROVIDES THE DTMA TOOLS SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE DTMA TOOLS TO YOU AND YOU MUST NOT USE OR ACCESS ANY OF THE DTMA TOOLS OR RELATED DOCUMENTATION.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized User” means either (i) the Mastermind Member identified on the applicable submitted Order Form; or (i) Your authorized representative that is identified by name and contact information on such Order Form.
“Confidential Information” means all confidential and proprietary information of Licensor disclosed to or accessed by You that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the DTMA Portal, the Documentation and the 23-Point Questionnaire, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), business and marketing plans, technology and technical information, product designs, and business processes.
“Customer Data” means any data, information or material provided or submitted by You to Licensor via the DTMA Portal, including without limitation, responses to the 23-Point Questionnaire.
“Documentation” means all manuals, guides and other written materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the DTMA Tools.
“DTMA Portal” means and includes the applications and associated content to be provided by Licensor to You as a subscription service and made accessible on a website designated by Licensor. 2
“23-Point Questionnaire” means the survey questionnaire developed by Licensor and provided to You pursuant to this Agreement that is intended to assist in evaluating the degree to which an enterprise has adopted digital business processes.
“DTMA Tools” means the DTMA Portal, 23-Point Questionnaire and any other material related thereto acquired by You from Licensor, whether or not acquired directly through the DTMA Portal or otherwise.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“License Fees” means the license fees stated on the applicable Order Form, including all taxes thereon, paid by You for the license granted under this Agreement.
“Order Form” means the order form filled out and submitted by or on Your behalf, and accepted by Licensor, for Your purchase of the license for the DTMA Tools granted under this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
2. License Grant and Scope. Subject to Your payment of the applicable License Fee, Licensor grants to You a non-exclusive, non-transferable, non-sublicensable, limited license to use the DTMA Tools as described in this Section 2, and subject to all conditions and limitations set forth in Section 3 and elsewhere in this Agreement. This license grants You the right, exercisable solely by and through Your Authorized Users, to:
2.1. For Mastermind Members:
(a) Download, reproduce and use the 23-Point Questionnaire for the purpose of obtaining data and information solely from Your business clients to assist You in conjunction with other components of the DTMA Tools to counsel and advise Your business clients; and
(b) access and use the DTMA Portal to input the data and information collected using the 23-Point Questionnaire from Your business clients during Your one (1) year subscription term and to receive and use the applicable 23-Point Questionnaire scoring generated by the DTMA Portal.
2.2. For all Others (one-time, self-evaluation):
(a) Download, reproduce and use the 23-Point Questionnaire for the sole purpose of obtaining data and information to use in conjunction with other components of the DTMA Tools for Your sole benefit; and
(b) Access and use the DTMA Portal to input data and information collected using the 23-Point Questionnaire of Your business and receive a single 23-Point Questionnaire scoring based on such data and information input pertaining to Your business. 3
2.3. All copies of the DTMA Tools made by You (a) will be the exclusive property of the Licensor, (b) will be subject to the terms and conditions of this Agreement; and (c) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
3. Use Restrictions. You shall not, and shall require Your Authorized Users not to, directly or indirectly:
3.1. use (including make any copies of) the DTMA Tools beyond the scope of the license expressly granted by this Agreement;
3.2. provide any subcontractor, independent contractor, affiliate, or service provider with access to or use of the DTMA Tools;
3.3. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the DTMA Tools or any part thereof;
3.4. combine the DTMA Tools or any part thereof with, or incorporate the DTMA Tools or any part thereof in, any other programs or software;
3.5. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the DTMA Portal or any part thereof;
3.6. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the DTMA Tools, including any copy thereof;
3.7. except as expressly set forth in Section 2, copy the DTMA Tools, in whole or in part;
3.8. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the DTMA Tools, or any features or functionality of the DTMA Tools, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service; or
3.9. use the DTMA Tools in violation of any law, regulation, or rule.
4. Your Responsibility for Use of DTMA Tools. You are responsible and liable for all of Your uses of the DTMA Tools. Specifically, and without limiting the generality of the foregoing, You are responsible and liable for all actions and failures to take required actions with respect to the DTMA Tools by Your Authorized Users or by any other Person to whom You or an Authorized User may provide access to or use of the DTMA Tools, whether such access or use is permitted by or in violation of this Agreement.
5. Data Collection and Use; Customer Data; Security.
5.1. Data Collection and Use. You acknowledge that Licensor may collect and store information regarding Your access and use of the DTMA Portal, and You agree that the Licensor may use such information for any purpose related to any use of the DTMA Portal, including but not limited to:
(a) improving the performance of the DTMA Portal; and 4
(b) verifying Your compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the DTMA Tools.
5.2. Customer Data. As between You and Licensor, You exclusively own all rights, title and interest in and to all Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and hereby warrant that You have and will continue to have all rights and consents necessary to allow Licensor to use all such data as contemplated by this Agreement. You hereby grant to Licensor a perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable, sub-licensable, worldwide right and license to reproduce, use, process, transfer and store Customer Data for the purposes of analyzing, evaluating and scoring the Customer Data and any other activities expressly agreed to by You in writing.
5.3. Use of Aggregate Data. You agree that as part of providing the DTMA Tools, Licensor may collect and use Anonymized Data, and collect, use and disclose Aggregated Data for industry analysis, benchmarking, analytics and other business purposes. “Anonymized Data” means quantitative data derived from the use of the DTMA Portal in either human readable or digital form that has been processed in a manner that has removed all Identifying Data, so that no such Identifying Data is capable of being read, retrieved, reconstructed or otherwise identified through any visual, digital or technological examination or process. “Aggregated Data” means information that is comprised of Anonymized Data from two or more DTMA Portal customers (e.g., includes data from customers other than You). “Identifying Data” means any information identifying an individual or entity regardless of the media in which it is contained.
5.4. Security. Licensor will employ security measures in accordance with Licensor’s data privacy and security policy, as amended from time to time, a current copy of which is located here: 4.0 Solutions Privacy Policy.
6. Confidentiality. You shall not disclose or use any of Licensor’s Confidential Information for any purpose outside the scope of this Agreement. You agree to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If You are compelled by law to disclose Confidential Information, You shall provide Licensor with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Licensor’s cost, if the Licensor wishes to contest the disclosure, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes. If You disclose or use (or threatens to disclose or use) any Confidential Information in breach of confidentiality protections hereunder, the Licensor party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Intellectual Property Rights. You acknowledge and agree that the DTMA Tools are provided under license, and not sold, to You. You do not acquire any ownership interest in the DTMA Tools under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the DTMA Tools and all Intellectual Property Rights arising out of or relating to the DTMA Tools, except as expressly granted to You in this Agreement. You shall safeguard all DTMA Tools (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. 5
8. Payment. All License Fees are payable in advance in the manner set forth in the Order Form and are non-refundable.
9. Term and Termination.
9.1. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein.
9.2. Licensor may terminate this Agreement, effective upon written notice to You, if You breach this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Licensor provides written notice thereof.
9.3. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and You shall cease using and destroy all copies of the DTMA Tools. No expiration or termination shall affect Your obligation to pay all License Fees that may have become due before such expiration or termination, or entitle You to any refund.
10. Limited Warranties and Disclaimer.
10.1. Licensor represents and warrants that it will provide and maintain the DTMA Portal in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. Licensor will use commercially reasonable efforts to make the DTMA Portal available for use at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month.
10.2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE DTMA TOOLS ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE DTMA TOOLS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE DTMA TOOLS WILL MEET THE YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
11.1. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; 6
OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. IN NO EVENT WILL LICENSOR’S, INCLUDING ANY OF ITS RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT.
11.3. THE LIMITATIONS SET FORTH IN SECTION 11 SHALL APPLY EVEN IF THE YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Miscellaneous.
12.1. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in Dallas County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
12.2. Licensor will not be responsible or liable to You, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Your equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
12.3. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 12.3.
12.4. This Agreement, together with the Order Form, constitutes the sole and entire agreement between You and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 7
12.5. You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve You of any of Your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.6. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.7. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.8. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
