LEANIX END USER LICENSE AGREEMENT FOR NON-PRODUCTIVE TESTING AND EVALUATION

1    YOUR RIGHTS TO USE THE CLOUD SERVICE

1.1    Scope

LeanIX shall make the Subscription Service and LeanIX Materials available to You during the Subscription Term defined in Section 7 below to remotely access and use the Subscription Service solely for Your own non-productive testing and evaluation as permitted by the Agreement and the Subscription Service documentation made available by LeanIX (“Documentation”).

1.2    Permitted Use

You are permitted to transmit content, data and materials to the Subscription Service (“Customer Data”) as necessary for You to test and evaluate the Subscription Service, subject to the restrictions of the Agreement and the Documentation. You are not permitted to use the Subscription Service in any commercial manner. The right to use the Subscription Service is worldwide, subject to applicable export control laws. You may not access or use the Subscription Service if you are a competitor of LeanIX or SAP SE and You may not access or use the Subscription Service in order to develop a competing product or service. “SAP SE” means SAP SE, the parent company of LeanIX.

1.3    Acceptable Use Policy

With respect to the Subscription Service, You will not:

(a)    disassemble, decompile, reverse-engineer, copy, translate or make derivative works,

(b)    transmit any content or data that is unlawful or infringes any intellectual property rights,

(c)    enter any data that is considered personal data or personally identifiable information under applicable data protection laws, or

(d)    circumvent or endanger its operation or security.

1.4    User Limitation

Use of the Subscription Service is limited to 25 users. This Agreement may not be transferred by You. LeanIX has no obligation to make any software or other LeanIX Materials available for use by You in physical form. You shall not sublicense, license, sell, lease, rent, outsource or otherwise make the Subscription Service available to third parties. You shall be responsible for the acts and omissions of anyone accessing the Subscription Service with Your access credentials as if they were Your acts and omissions.

2    WHAT’S INCLUDED AND EXCLUDED

2.1    Documentation

The Subscription Service includes the features set forth in the Documentation and as identified during the registration process for the use of the Subscription Service, and any other features LeanIX may add during the term of this Agreement. LeanIX has no obligation to include or remove any functionality from the Subscription Service in any future version or in any LeanIX standard product.

2.2    Third-Party Web Services

The Subscription Service may include integrations with web services made available by third parties (other than LeanIX or its Affiliates) that are accessed through the Subscription Service and subject to terms and conditions with those third parties. These third-party web services are not part of the Subscription Service and the Agreement does not apply to them.

2.3    No Support

LeanIX does not provide any support services for the Subscription Services under the Agreement.

3    RESTRICTIONS AND CHANGES TO THE CLOUD SERVICE OR AGREEMENT

3.1    Storage

LeanIX may limit storage for Customer Data without notice to You.

3.2    Changes to the Subscription Service

LeanIX may change or modify the Subscription Service at any time. Your sole recourse is termination of the Agreement.

3.3    Changes to the Agreement

LeanIX may change the terms of this Agreement upon posting them to the Subscription Service or the website through which You access the Subscription Service, and Your continued use of the Subscription Service constitutes Your acceptance of the changed terms of this Agreement.

4    INTELLECTUAL PROPERTY

LeanIX, SAP SE, their Affiliates or licensors own all intellectual property rights in and related to the Subscription Service, Subscription Materials, Documentation, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to You are reserved to LeanIX, SAP SE and its licensors. You retain all rights in and related to the Customer Data. You covenant, on behalf of Yourself and Your successors and assigns, not to assert against LeanIX, SAP SE, their Affiliates or licensors, any rights, or any claims of any rights, in any Subscription Service, LeanIX Materials or Documentation. “Affiliate” means any legal entity in which LeanIX or SAP SE, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights.

5    CUSTOMER DATA

5.1    Customer Data

You are responsible for the Customer Data and entering it into the Subscription Service. You grant to LeanIX (including SAP SE, its Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide the Subscription Service. LeanIX, SAP SE or SAP Affiliates may use anonymous information relating to use of the Subscription Service to prepare analyses. Analyses do not contain personal data nor Your Confidential Information. Examples of analyses include: optimizing systems and technical resources and support, research and development of Subscription Services, verification of security and data integrity, internal demand planning, industry and macroeconomic developments and anonymous benchmarking with other customers. LeanIX may provide non-anonymous benchmarking services with Your prior written consent.

5.2    Security

You will maintain reasonable security standards when accessing and using the Subscription Service.

5.3    Access to Customer Data

(a)    During the Subscription Term, You can access Your Customer Data at any time.

(b)    Following the end of the Agreement, LeanIX will delete or overwrite the Customer Data remaining on servers hosting the Subscription Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement.

(c)    In the event of third party legal proceedings relating to the Customer Data, LeanIX will cooperate with You and comply with applicable law (both at Your expense) with respect to handling of the Customer Data.

6    PUBLIC SOFTWARE

6.1    Definition

“Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following:

(a)    the GNU General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License,

(b)    the Artistic License (e.g., PERL),

(c)    the Mozilla Public License,

(d)    the Netscape Public License,

(e)    the Sun Community Source License (SCSL),

(f)    the Sun Industry Standards License (SISL),

(g)    the BSD License and

(h)    the Apache License.

6.2    Use Restriction

You may not use any Public Software in connection with the Subscription Service in any manner that requires, pursuant to the license applicable to such Public Software, that any LeanIX software applications or other materials be

(a)    disclosed or distributed in source code form,

(b)    made available free of charge to recipients, or

(c)    modifiable without restriction by recipients.

7    TERM AND TERMINATION

The term of this Agreement shall begin on the earlier of the date You first access the Subscription Service or the date You accept this Agreement, and shall end fourteen days later (“Subscription Term”), subject to earlier termination by either party in accordance with the Agreement. You may terminate this Agreement at any time during the term upon written notice to LeanIX. LeanIX may terminate this Agreement at any time upon notice to You, which may include notice by email. LeanIX may suspend use of the Subscription Service without notice if continued use may result in material harm to the Subscription Service or its users. LeanIX will notify You of the suspension if practicable. LeanIX will limit the Subscription in time and scope as reasonably possible under the circumstances. Upon termination of the Agreement, You will no longer have access to Your Customer Data and it will not be retained by LeanIX unless LeanIX is required to retain it under applicable law or legal process. LeanIX offers no migration of Your Customer Data to any generally available version of the Subscription Service.

8    WARRANTY/DISCLAIMER

8.1    If You are located outside the US or Canada:

As the Subscription Service and LeanIX Materials are provided to You free of charge, LeanIX does not guarantee or warrant any features or qualities of the Subscription Service or LeanIX Materials or give any undertaking with regard to any other quality. No such warranty or undertaking shall be implied by You from any description in the Subscription Service, LeanIX Materials or any available Documentation or any other communication or advertisement. In particular, LeanIX does not warrant that the Subscription Service will be available, uninterrupted, or error free. All warranty claims are subject to the Limitation of Liability section below.

8.2    If You are located in the US or Canada:

THE SUBSCRIPTION SERVICE AND LEANIX MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER. LEANIX DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages, so the above exclusions may not apply to You.

9    LIMITATION OF LIABILITY

9.1    If You are located outside the US or Canada:

Irrespective of the legal reasons, LeanIX shall only be liable for damages under this Agreement if such damage (I) can be claimed under the German Product Liability Act or (ii) is caused by intentional misconduct or LeanIX or (iii) consists of personal injury. In all other cases, neither LeanIX nor its employees, agents or subcontractors shall be liable for any kind of damage or claims hereunder.

9.2    If You are located in the US or Canada:

IN NO EVENT SHALL LEANIX BE LIABLE TO YOU, YOUR COMPANY OR TO ANY THIRD PARTY FOR ANY DAMAGES IN AN AMOUNT IN EXCESS OF $100 ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICE OR LEANIX MATERIALS, OR AS A RESULT OF ANY DEFECT IN THE SUBSCRIPTION SERVICE. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST LEANIX, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE. YOUR SOLE REMEDY IN THE EVENT OF BREACH OF THIS AGREEMENT BY LEANIX OR FOR ANY OTHER CLAIM RELATED TO THE SUBSCRIPTION SERVICE SHALL BE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL LEANIX  AND ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.

10    THIRD PARTY CLAIMS

You will defend LeanIX against claims brought against LeanIX, SAP SE, its Affiliates and subcontractors by any third party related to Customer Data. You will indemnify LeanIX against all damages finally awarded against LeanIX, SAP SE, its Affiliates and subcontractors (or the amount of any settlement You enters into) with respect to these claims.

11    CONFIDENTIALITY

11.1    Use of Confidential Information

(a)    The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. Receiving party will not disclose any Confidential Information of the disclosing party to any person other than its personnel or representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11.

(b)    Confidential Information of either party disclosed prior to execution of the Agreement will be subject to Section 11.

(c)    In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Confidential Information.

11.2    Exceptions

The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

(a)    is independently developed by the receiving party without reference to the disclosing party’s Confidential Information,

(b)    is generally available to the public without breach of the Agreement by the receiving party,

(c)    at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or

(d)    the disclosing party agrees in writing is free of confidentiality restrictions.

11.3    Publicity

Neither party will use the name of the other party in publicity activities without the prior written consent of the other. You agree that LeanIX may share information about You with its Affiliates for marketing and other business purposes.

11.4    Definition. “Confidential Information" means:

(a)    with respect to You: (i) the Customer Data, (ii) Your marketing and business requirements, (iii) Your implementation plans, and/or (iv) Your financial information, and

(b)    with respect to LeanIX: (i) the Subscription Service, Documentation, Subscription Materials and analyses under Section 5.1, and (ii) information regarding LeanIX research and development, product offerings, pricing and availability.

(c)    Confidential Information of either LeanIX or You also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure. 1

1.5    Your Feedback

You may be invited to participate in certain evaluations, presentations, meetings, surveys or discussions (collectively, “Discussions”) for the purpose of informing You of LeanIX’s business and technology direction, and to allow You, at Your sole discretion, to provide LeanIX, SAP Affiliates or SAP SE with input, comments or suggestions from You, regarding LeanIX’s business and technology direction and/or the possible creation, modification, correction, improvement or enhancement of the software, products and/or services of LeanIX, (collectively “Feedback”). You grant to LeanIX a non-exclusive, perpetual, irrevocable, worldwide, non-transferable (except to LeanIX Affiliates), royalty-free license, with the right to sublicense through multiple tiers, under applicable laws to use, publish, modify, and otherwise benefit from Feedback in any manner and via any media. Content of Discussions may include areas outside the scope of the Agreement and may relate to any LeanIX software, products, solutions and/or services. Confidential Information disclosed or made available by LeanIX, or You during Discussions may only be used for the purpose of the Discussions and shall be protected from unauthorized use and disclosure in accordance with the Agreement. You acknowledge that the information related to software, products, services, business or technology plans of LeanIX, disclosed during the Discussions, is only intended as possible strategies, developments, and functionalities and is not intended to bind LeanIX to any particular course of business, product strategy, and/or development.

12 LAW/VENUE

12.1 If You are located in the US or Canada:

This Agreement shall be governed by and construed under the Commonwealth of Pennsylvania law without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act as enacted shall apply to this Agreement. You and LeanIX agree to submit to the exclusive jurisdiction of, and venue in, the state or federal courts located in Philadelphia, Pennsylvania in any dispute arising out of or relating to this Agreement.

12.2 If You are located outside the US or Canada:

This Agreement is governed by and construed in accordance with the laws of Germany without reference to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. You and LeanIX agree to submit to the exclusive jurisdiction of, and venue in, the courts of Karlsruhe in Germany in any dispute arising out of or relating to this Agreement.

13 COPYRIGHT POLICY

LeanIX respects the intellectual property of others, and we ask our users to do the same. LeanIX may, in appropriate circumstances and at its discretion, terminate the access/accounts of users who infringe the intellectual property rights of others. If You believe that your work has been copied in a way that constitutes copyright infringement or any other violation of Your rights, please provide LeanIX's Copyright Agent the following information:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

• a description of the copyrighted work that You claim has been infringed or material which otherwise violates Your rights;

• a description of where the material that You claim is infringing/violating is located on the site;

• Your address, telephone number, and e-mail address;

• a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

• a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf. 

LeanIX's Copyright Agent for notice of claims of copyright infringement can be reached as follows:

Valentina A. Boyet
IP Counsel
SAP
3999 West Chester Pike Newtown Square, PA 19073 USA
(610) 661-5221
copyrights@sap.com

Ulrike Brunner
Head of Trademark Affairs
Global Legal Department
SAP AG
Dietmar-Hopp-Allee 16 69190 Walldorf, Germany +49/6227/7-42570 copyrights@sap.com

14 EXPORT

LeanIX Confidential Information is subject to export control laws of various countries, including the laws of the United States and Germany. You will not submit LeanIX Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export LeanIX Confidential Information to countries, persons or entities if prohibited by export laws.