Lean Impact Terms and Conditions
Terms of Use
TERMS OF USE GOVERNING GEMBA SOLUTIONS ON-DEMAND SERVICE ("THE SERVICE")
[to be used in conjunction with Gemba Solutions Terms and Conditions]
Introduction
As part of the Service, Gemba Solutions will provide you with use of the Service, including access to a managed client application together with storage. The user hereby agrees to abide by these terms including any materials available on the Gemba Solutions website incorporated by reference herein.
1. Privacy & Security; Disclosure
Gemba Solutions undertakes to provide the user with a dedicated environment built around a multi-tenant database instance. This means that only you can access only that instance of your database. Other users of the Service are prevented from accessing your dedicated environment by the use of Usernames and passwords within the application.
Note that because the Service is a hosted, online application, Gemba Solutions occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. You agree that Gemba Solutions can disclose the fact that you are a paying customer of the service to any third party.
For reasons of management and maintenance of the service, please note that a limited number of key Gemba Solutions staff may at times view the data you have submitted to the service.
2. License Grant & Restrictions
Gemba Solutions hereby grants non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to these terms of use and Gemba Solutions standard terms and conditions. All rights not expressly granted to you are reserved by Gemba Solutions.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and shall not: (i) store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violating third party privacy rights; (ii) store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (iv) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
The user is responsible for all activity occurring under their User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Gemba Solutions immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Gemba Solutions immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Gemba Solutions user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
Gemba Solutions does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). As part of the Service Gemba Solutions will back up the data within the hosted environment automatically using RAID technology, which keeps a concurrent image of the database at all times. This is then archived onto physical media and retained for 2 weeks. The User, not Gemba Solutions, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Gemba Solutions shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Gemba Solutions reserves the right to withhold, remove and/or discard Customer Data after 14 days written notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Gemba Solutions shall have no obligation to maintain or forward any Customer Data.
5. Service levels
When not undergoing scheduled maintenance, Gemba Solutions will make all reasonable efforts to have the network available 99% of the time in each month. Network availability means all network infrastructure including routers, switches and cabling is working. When not undergoing scheduled maintenance, the critical infrastructure systems, including power and HVAC, will be available 99.9% of the time in each month. Critical infrastructure includes all power and HVAC infrastructure including UPSs, PDUs and cabling.
6. Intellectual Property Ownership
Gemba Solutions alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Gemba Solutions Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. Use of the Service is not a sale and does not convey to you any rights of ownership in or related to the Service, the Gemba Solutions Technology or the Intellectual Property Rights owned by Gemba Solutions. The Gemba Solutions name, the Gemba Solutions logo, and the product names associated with the Service are trademarks of Gemba Solutions or third parties, and no right or license is granted to use them.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments may be made annually, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon in writing. You are responsible for paying for all hosted services ordered for the entire License Term, whether or not such services are actively used. You must provide Gemba Solutions with an approved purchase order information as a condition to signing up for the Service. The cost is calculated based on a monthly service provision including the number of assets to be monitored and specified users. Additional user and asset licenses can be purchased at any time and any such licenses will be subject to the following: (i) added licenses will be coterminous with the pre-existing License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. Gemba Solutions reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Billing and Renewal
Gemba Solutions charges and collects in advance for use of the Services. Invoices are to be paid against an agreed payment schedule. Non-payment of invoice is subject to the terms of section 9. Gemba Solutions will automatically renew and issue an invoice to you (a) every quarter for quarterly licenses, (b) each year on the subsequent anniversary for annual licenses, or (c) as otherwise mutually agreed upon. The renewal charge will be equal to that for the previous period unless Gemba Solutions has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Gemba Solutions fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide Gemba Solutions with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Gemba Solutions reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless Gemba Solutions in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and (iii) all other entities will be billed at Gemba Solutions discretion in UK Pound or Euros or US Dollars and will be subject to English payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within 7 days of the invoice date to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Gemba Solutions herein, Gemba Solutions reserves the right to suspend or terminate your access to the Service if your account falls into arrears. Accounts in arrears are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged during any period of suspension. If you or Gemba Solutions initiates termination, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above..
Gemba Solutions reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Gemba Solutions has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
10. Termination upon Expiration
The Service commences on the Effective Date. The Initial Term will be as you elect during the sales process or as otherwise mutually agreed upon, commencing on the date Gemba Solutions receives payment for the Service. Upon the expiration of the Initial Term, the Service will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Gemba Solutions then current fees. Either party may terminate effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following term.
On termination (other than for cause) the following options are available to the user:
* Account Deletion: Where the service is terminated and the user has no use for the data then all data will be deleted. Once deleted, data cannot be recovered.
* Raw Data Archive: where the service is terminated but the user wishes to retain their data for possible future restoration, all user data will be transferred to electronic archive. A copy of this archive will be supplied to the user on DVD(s). A service charge will apply.
* Online Data Access: where the service is terminated but the user wishes to have continued on-line access to their data for reporting purposes, all user data will be copied to electronic archive. A copy of this archive will be supplied to the user on DVD(s). Account data entry facilities will be disabled but reporting will remain enabled. A quarterly service charge will apply.
* Data Provision: where the service is terminated but the user wishes to retain their data for use in a third-party package, user data will be transferred to electronic archive. The data will then be provided to the user in an agreed format on DVD(s). A service charge will apply.
Failure to select one of the above options within 30 days of termination will result in Account Deletion.
11. Termination for Cause
Any breach of your payment obligations or unauthorized use of Gemba Solutions Service or Technology will be deemed a material breach. Gemba Solutions, at its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with these terms. You agree and acknowledge that Gemba Solutions has no obligation to retain the User Data, and may delete such User Data, if you have materially breached these terms, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 14 days of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into these terms. Gemba Solutions represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Gemba Solutions help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
13. Mutual Indemnification
You shall indemnify and hold Gemba Solutions, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of the Service, provided in any such case that Gemba Solutions (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Gemba Solutions of all liability and such settlement does not affect Gemba Solutions business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Gemba Solutions shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Gemba Solutions of its representations or warranties; or (iii) a claim arising from breach of these terms by Gemba Solutions; provided that you (a) promptly give written notice of the claim to Gemba Solutions; (b) give Gemba Solutions sole control of the defence and settlement of the claim (provided that Gemba Solutions may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Gemba Solutions all available information and assistance; and (d) have not compromised or settled such claim. Gemba Solutions shall have no indemnification obligation, and you shall indemnify Gemba Solutions pursuant to these terms, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
14. Disclaimer of Warranties
GEMBA SOLUTIONS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. GEMBA SOLUTIONS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY GEMBA SOLUTIONS.
15. Internet Delays
GEMBA SOLUTIONS'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GEMBA SOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
18. Notice
Gemba Solutions may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Gemba Solutions account information, or by written communication sent by first class mail or pre-paid post to your address on record in Gemba Solutions account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Gemba Solutions (such notice shall be deemed given when received by Gemba Solutions) at any time by any of the following: letter sent by confirmed facsimile to Gemba Solutions at the following fax number 02476 820796; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Gemba Solutions at the following address Gemba Solutions Limited Eliot Park Innovation Centre, Barling Way, Nuneaton, CV10 7RH. You must include details of your account number, and the Notice must be signed by an authorised signatory.
19. Modification to Terms
Gemba Solutions reserves the right to modify these terms and conditions or its policies relating to the Service at any time and will give 30 days notice of such modification. You are responsible for regularly reviewing these terms. Continued use of the Service after notification if any such changes shall constitute your consent to such changes.
20. Assignment; Change in Control
Use of the Service may not be assigned by you without the prior written approval of Gemba Solutions which shall not be unreasonably withheld but may be assigned without your consent by Gemba Solutions to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Gemba Solutions directly or indirectly owning or controlling 50% or more of you shall entitle Gemba Solutions to terminate the Service for cause immediately upon written notice.
21. General
These terms shall be governed by the Law of England and Wales without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the Service shall be subject to the exclusive jurisdiction of the courts of England & Wales. No text or information set forth on any other purchase order, pre-printed form or document (other than an Order Form, if applicable) shall add to or vary these terms and conditions. If any provision of these terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Gemba Solutions as a result of use of the Service. The failure of Gemba Solutions to enforce any right or provision in these terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Gemba Solutions in writing. These terms, together with any applicable Order Form, comprises an entire arrangement between you and Gemba Solutions and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
22. Definitions
As used in these terms and in any Order Forms now or hereafter associated herewith:
"Terms of Use" means these terms of use, any Order Forms, and any materials available on the Gemba Solutions website specifically incorporated by reference herein, as such materials, including these terms, may be updated by Gemba Solutions from time to time in its sole discretion;
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"User Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the date of these terms;
"Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the sales process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who are authorized to purchase additional licenses by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;
"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of these terms (in the event of any conflict between these terms and the terms of any such Order Form, these terms shall prevail);
"Gemba Solutions" means Gemba Solutions Limited a company incorporated in the UK having its registered office at Eliot Park Innovation Centre, Barling Way, Nuneaton, CV10 7RH
"Gemba Solutions Technology" means all of Gemba Solutions' proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Gemba Solutions in providing the Service;
"Service(s)" means the specific editions of Gemba Solutions' LEANIMPACT Online products, data analysis, training, consultancy or other services identified during the ordering process, developed, operated, and maintained by Gemba Solutions, accessible via http://www.leanimpact.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Gemba Solutions, to which you are being granted access under these terms;"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Gemba Solutions at your request)."Working Hours" means 9am to 5pm, Monday to Friday, excluding UK Bank and Public Holidays.
Questions or Additional Information:
If you have questions regarding these terms or wish to obtain additional information, please send an e-mail to sales@gembasolutions.com or contact your sales representative.
Lean IMPACT Online terms of use v1.6 www.leanimpact.com +44(0)2476 796615
