LeanIX GmbH, Fuerstenstr. 4, 53111 Bonn, Germany („LeanIX“) offers a web-based enterprise application management (EAM) software (“Software”), which enables Customers to capture and administer IT-inventory, analyze processes and costs (reporting) and collaborate cross-functionally in a team. These Terms and Conditions (“T&C”) govern the contractual relationship (“Agreement”) between LeanIX and Customer with regard to the paid use of the Software.
LeanIX offers its services exclusively to entrepreneurs.
1 Subject matter and conclusion of the Agreement
1.1 These T&C apply to Customer’s utilization of the LeanIX Software by Customer. Customer’s terms and conditions only become part of the Agreement if expressly agreed upon in written form.
1.2 Use of the Software is only offered to entrepreneurs pursuant to Sec. 14 German Civil Code (“BGB”). An entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
1.3 The Agreement is concluded upon signature by both LeanIX and Customer. If LeanIX‘ offer is time-limited, the Agreement is concluded only if the Customer returns a signed copy of the Agreement to LeanIX within the deadline and such copy is received by LeanIX within that deadline. The deadline may be met by sending a copy of the Agreement by e-mail or fax, provided the original follows in the mail without undue delay. .
2 Services of LeanIX
2.1 LeanIX provides the Software limited in time to the duration of the Agreement and exclusively for Customer’s use via internet (“Software-as-a-Service”). LeanIX shall be responsible for operation and maintenance of the Software. The location of service provision is the output of the router of the data center. Customer is responsible for ensuring their ability to receive the services. In particular, the provision of necessary hard- and software by LeanIX is not part of this Agreement. Customer has no right to claim access to any source code of the Software provided by LeanIX. Customer shall be solely responsible for the use and configuration of the Software.
2.2 The exact scope of the software provided by LeanIX is defined in the description of services for the relevant service package requested by the Customer, which is attached as an Exhibit.
2.3 The average availability shall be at least 99 % on annual average. This excludes necessary scheduled maintenance work and disturbances which beyond LeanIX’ control, including force majeure. LeanIX will inform Customer about scheduled maintenance work in time if possible and in text form addressed to the contact person communicated to LeanIX. Nevertheless, LeanIX has the right to carry out maintenance work without prior notice if necessary, especially if this is required for data protection and operational safety reasons.
2.4 LeanIX performs backups of the Software and the data stored by Customer on a daily basis and stores backups for at least thirty (30) days. LeanIX is not obliged to individually review correctness or completeness of the backup and does not perform any such individual reviews.
2.5 LeanIX provides a documentation of the Software as well as information on its use in German and/or English language in electronic form for Customer’s download. Customer is not entitled to edit or distribute the documentation or the Software use information or to make any of it publicly available.
2.6 LeanIX is entitled to assign sub-contractors as agents for the provision of the services. Additional obligations towards the Customer under data protection law – if any – remain unaffected.
2.7 LeanIX is entitled but not obliged to increase and develop the Software’s scope of functions. LeanIX reserves the right to offer add-ons and upgrades only subject to additional charge. If Customer books a fee-based add-on or upgrade with a respective additional agreement to this Agreement, these T&C shall apply accordingly to the additional agreement. If LeanIX offers increased or additional functions for free after conclusion of the Agreement, these functions are considered as voluntary services of LeanIX.
2.8 LeanIX may change the scope of functions of the software at any time to an extent that is reasonable for Customer. A change is in particular reasonable if it is required due to an important reason – e.g. as of disturbances in provision of services by sub-contractors or for security reasons – and the characteristics within the service description, as well as the major obligations of LeanIX, substantially remain unaffected. If changes do not solely regard add-ons or insubstantial elements of the services LeanIX is obliged to provide, LeanIX will inform Customer about the changes at least four (4) weeks in advance via e-mail.
2.9 In the event LeanIX changes the functionality of the Software for reasons other than those set out in Sections 2.7 and 2.8, LeanIX will inform the Customer accordingly in text form in advance and grant Customer a time period of at least two months to object to such changes. Section 8 applies accordingly. If the Customer objects to the changes, LeanIX may terminate the Agreement effective on the date on which the changes come into effect. The foregoing provisions of this Section apply only to the extent that LeanIX’ main performance obligations remain unaffected by the changes.
2.10 To the extent LeanIX grants Customer access to any Application Programming Interfaces („API“), LeanIX may offer any such API in new versions. Older versions of such API may be switched off after prior notice in text form if this is reasonable for the Customer when taking into account both parties‘ interests and LeanIX’ main performance obligations remain unaffected.
2.11 LeanIX is entitled to disable Customer’s access to the software if
a) there are indications that Customer’s access credentials were or are misused or the access credentials were or are made available to an unauthorized third party or if access credentials are used by more than one natural person;
b) there are indications that a third party gains access to the Software provided to Customer in any other way;
c) disabling access is necessary for technical reasons;
d) LeanIX is obliged to disable Customer’s access for legal reasons or under a court or administrative order;
e) Customer is in default with the agreed payment for more than two weeks;
f) Customer used wrong or invalid contact data and a communication between LeanIX and Customer is no longer possible;
g) Customer provided wrong payment data and Customer’s regular fulfillment of contractual obligations is not guaranteed.
LeanIX shall inform Customer about disabling access at least three business days before coming into force in written or text form, to the extent such announcement is reasonable considering both parties’ interests and the purpose of disabling.
2.12 LeanIX ensures that its performance complies with all applicable legal provisions, in particular those of copyright and data protection law. Any further contractual obligations remain unaffected.
3 Customer obligations
3.1 Customer is obliged to keep access credentials safe and may only disclose these credentials to authorized employees. Customer shall oblige its employees to confidential handling of access credentials and immediately inform LeanIX if there are any indications that access credentials become known to a third party.
3.2 The Customer is responsible for ensuring that it meets the system requirements for the operation of the Software. Unless expressly agreed otherwise, LeanIX supports only the then-current and the immediately preceding version of any market standard browser software or operating system that is supported by the manufacturer and declared by the manufacturer to be stable and suitable for productive use, in each case no longer than until the end of generally available manufacturer support („End of Lifecycle“).
3.3 Customer appoints a designated contact in its company, who is legally empowered to receive and make legally binding declarations with regard to the Agreement between Customer and LeanIX.
3.4 Any and all rights in information uploaded by Customer into the LeanIX system remain with Customer. However, Customer grants LeanIX the rights that LeanIX requires to provide its performance, i.e. a simple, non-exclusive, worldwide right to use, to the extent and for the duration required for fulfillment of the Agreement with Customer, all content which Customer transfers to the server of LeanIX by using the Software, including but not limited to the right to reproduce content and to grant access to the content according to Customer’s settings. To the extent necessary for fulfillment of the Agreement, LeanIX is entitled to grant sublicenses to its agents. Apart from that, the right to use is non-transferable and non-sublicensable.
3.5 Customer ensures to comply with all applicable legal provisions when using the Software, especially regarding copyright and data protection law. In the event Customer uses the Software to make third-party content (e.g. images, photographs, trademarks) accessible, Customer shall indemnify LeanIX from any third party claims asserted against LeanIX with regard to Customer’s infringement of their rights. LeanIX will inform Customer immediately about third party claims and will provide information and documents necessary for their defense upon request. Additionally, LeanIX will either leave defense to Customer or carry out defense in consultation with Customer. LeanIX will not acknowledge or agree or not agree upon facts that have not yet been proven regarding any third party claims without prior consultation with Customer. These provisions apply respectively to contractual penalties as well as administrative or judicial fines, as far as Customer is responsible.
3.6 In the event the Customer agrees to be identified as a reference customer of LeanIX, Customer grants LeanIX the right to use Customer’s name and trademark (word and figurative mark) to the agreed extent and for the duration of this Agreement. Figurative marks shall be provided to LeanIX immediately after conclusion of this Agreement. To the extent the Customer grants this right in view of use on printed material, LeanIX remains entitled to use any such printed material produced during the term of this Agreement even after it is terminated. Customer shall provide LeanIX with all other agreed reference customer contributions (e.g. success stories, etc.) within 12 months upon conclusion of this Agreement unless expressly agreed otherwise.
4.1 The Customer pays to LeanIX the remuneration agreed upon conclusion of the Agreement.
4.2 Any travel costs incurred at Customer’s request are invoiced additionally.
4.3 If not agreed otherwise, remuneration applies annually and net, excluding the applicable value added tax (VAT). No early payment discounts are granted.
4.4 Invoicing takes place at the beginning of each billing period agreed upon in advance. Prices charged are due 30 days after correct invoicing.
5.1 LeanIX is liable for defects when providing the Software exclusively according to the following provisions.
5.2 Defects are substantial deviations from the contractually agreed scope of functions of the Software.
5.3 If the services LeanIX is obliged to provide under this agreement are faulty, LeanIX will rectify or re-provide the services upon written complaint by Customer within a reasonable period. When using third party software, which LeanIX licensed for the use by Customer, correction of faults is limited to procurement and installation of generally available updates, upgrades or patches. Rectification may also be made by providing instructions with which Customer is able to work around defects in a reasonable way in order to use the Software as agreed upon.
5.4 If provision of services without defects is not possible even within the reasonable period of time set by Customer due to reasons LeanIX is responsible for, Customer may reduce the agreed upon remuneration by a reasonable amount. The right of reduction is limited to the amount of the monthly price regarding the defective part of service.
5.5 If reduction according to Section 5.4 reaches the maximum amount established in Section 5.4 in two consecutive months or in two months of a quarter, Customer may terminate the Agreement without prior notice.
5.6 Customer will inform LeanIX about potentially appearing defects immediately in written form or via e-mail to the dedicated contact at LeanIX. Additionally, Customer will support LeanIX with repair of defects free of charge and will provide all information and documents necessary for analysis and remedy of defects.
5.7 In the event of a deficiency in title, LeanIX may either retroactively license the concerned components of the Software or substitute them for equivalent components, to the extent this does not, or not materially, impair the functionalities of the Software.
5.8 LeanIX indemnifies the Customer from and against any claims that third parties may assert vis-à-vis Customer based on the infringement of their rights by the Software provided by LeanIX. Customer will inform LeanIX without undue delay about any asserted third party claims, and provide any information and documents required to defend such claims upon first request. Furthermore, Customer will either grant LeanIX control of the defense or defend the claim in coordination with LeanIX. In particular, Customer will not acknowledge any claims or admit to any facts without LeanIX’ prior approval.
6 Damages and Liability
6.1 In case of personal injury or death as well as for deliberate and grossly negligent actions, LeanIX has unlimited liability.
6.2 LeanIX shall be liable for slight negligent action only in cases of a breach of a duty essential to the purposes of this Agreement ("wesentliche Vertragspflicht"). Duties are considered essential if necessary for the due execution of the Agreement so Customer may regularly rely on proper observation.
6.3 In the events described in Section 6.2, LeanIX’ liability for any lack of commercial results, indirect damages and loss of profits is excluded.
6.4 Liability according to Section 6.2 shall be limited to typical and foreseeable damages at the time of conclusion of Agreement.
6.5 Liability for loss of data in the event of Section 6.2 shall be limited to the recovery costs which would have arisen if backup copies had been regularly made in appropriate relation to the risk of such loss.
6.6 Limitations of liability shall also apply to employees, sub-contractors and agents of LeanIX.
6.7 A potential liability of LeanIX for any guarantees or claims based on Product Liability Law remains unaffected.
6.8 Further liability of LeanIX, in particular under Section § 536a para. 1 of the German Civil Code, is excluded.
7 Term and termination
7.1 If LeanIX grants Customer a one-time testing period for the use of the Software free of charge, the term of this Agreement is limited to this testing period.
7.2 The term is as agreed upon conclusion of the Agreement.
7.3 The Agreement shall automatically be extended by subsequent terms of equal length, if not terminated upon a written notice three months before the end of the then-current term by one of the parties.
7.4 Additionally, LeanIX is entitled to terminate the Agreement without notice if Customer is in default with agreed-upon payment for more than six (6) weeks and if LeanIX informed Customer of intended termination in written or text form at least two (2) weeks before the termination is supposed to become effective.
7.5 The right of termination for good cause remains unaffected for both parties.
7.6 Upon termination of the Agreement, irrespective of its cause, LeanIX will delete Customer’s data. LeanIX is entitled but not obliged to store data for security reasons beyond termination of the Agreement, in particular in order to protect Customer from inadvertent loss of data, as well as for purposes of accounting, invoicing, documentation or evidence. Additionally, LeanIX is entitled to store data beyond duration of the Agreement to the extent LeanIX is legally or officially obliged, especially under commercial or tax law.
8 Amendments to these T&C
These T&C between Customer and LeanIX can be amended by respective separate agreements as follows: LeanIX communicates the amended conditions before intended effectiveness in text form and highlights the regulations to be amended as well as the date of the intended entry into force. Besides, LeanIX will grant Customer a reasonable, at least two (2) month period for declaring approval of or objection to the amended T&C for further use of services. If LeanIX does not receive any declaration of Customer within this period, which begins with receipt of the written announcement, the amended terms are considered agreed upon. LeanIX will inform Customer separately about the legal consequences at the beginning of the period, including the right to object, the period to object and the relevance of remaining silent.
9 Final provisions
9.1 Amendments and additional agreements to this Agreement need to be in written form. This also includes this written form clause.
9.2 Customer’s right to exercise set-offs against claims of LeanIX are limited to counter-claims, which are undisputed or affirmed by a legally binding adjudication or those which are part of a reciprocal agreement (“synallagmatic relation”) towards the respective claim.
9.3 If these T&C are provided to Customer in bilingual form, the language of the Agreement is German. Translations to other languages in this case are for convenience only and are not legally binding.
9.4 This Agreement is governed by the laws of the Federal Republic of Germany excluding the Convention on the International Sale of Goods (CISG) and conflict of laws provisions.
9.5 Exclusive venue for any and all disputes with regard to this Agreement is Cologne, provided the parties of the Agreement are merchants or Customer has no place of general jurisdiction in Germany or in another member state of the European Union or its permanent or habitual residence is transferred abroad after entry into force of these T&C or permanent or habitual residence is not known at the time the action is filed.