Lean End User License Agreement
This End User License Agreement (this "Agreement") is made between Lean Solution ("Lean") and the end-user of Lean’s software ("Licensee").
Licensee intends to use certain Lean products (each, a "Product") and to obtain a subscription license through one of Lean’s third party resellers or integrators (the "Lean Partner"). Licensee will enter a written agreement with the Lean Partner that covers fees, payment provisions and certain license and support terms (the "Customer Agreement"). This Agreement provides additional license terms in connection with the use of the Products by Licensee and must be accepted by Licensee at the time Licensee enters into the applicable Customer Agreement. The effective date of this Agreement (the "Effective Date") is the same date as the effective date of the Customer Agreement.
In consideration of the foregoing, Lean and Licensee agree as follows:
1.1 Additional Terms. Licensee hereby agrees to the terms of this Agreement and the Customer Agreement. In the event of any conflicts between this Agreement and the Customer Agreement, this Agreement will control. Licensee’s right to use the Products is and will be limited to the subscription period ("Subscription Period") and number of Cores (defined in Section 1.2 below) specified in the Customer Agreement. If there is no Subscription Period specified in the Customer Agreement, the Subscription Period will be deemed to be one year from the effective date of the Customer Agreement.
1.2 License. Subject to the terms and conditions of this Agreement and the Customer Agreement, Lean hereby grants to Licensee, during the Subscription Period, a limited, non-exclusive, non-transferable, non-sublicenseable right and license: (a) to install the object code version of the applicable Product(s) on the number of Cores specified in the Customer Agreement; and (b) to use the applicable Product(s) solely for Licensee’s internal business operations (understanding that Licensee may provide the output generated by the Products, including reports, dashboards, data analysis and data mining to third parties as Licensee determines). If Customer purchases "development/testing" licenses, Customer acknowledges that such licenses are intended for use in Customer’s development and testing environments only, and not in a production environment. Licensee may make up to two copies of the Products for backup and/or archival purposes. "Core" means an individual processor and associated cache memory that is capable of executing a single Product code thread at a time.
1.3 License Key. Licensee acknowledges that the initial license key ("Initial License Key") provided to Licensee will enable use of the applicable Product(s) for sixty days. The Product will cease operation at the end of the sixty day period, unless Licensee has paid the Lean Partner as required under the Customer Agreement. Lean will provide a license key for the full Subscription Period only upon full payment of all amounts due to the applicable Lean Partner. Licensee further acknowledges that Lean may choose not to renew any license key with Licensee if Lean reasonably believes that Licensee is in violation of the terms of this Agreement.
1.4 Support Services. Licensee acknowledges that the Lean Partner is fully responsible for the performance of any and all support services to be provided to Licensee with respect to the Products. Lean has no support or similar obligations to Licensee with respect to the Products unless and until Lean and Licensee enter into a separate written agreement concerning such services.
2.1 License Restrictions. The license set forth in Section 1.2 (License) above is not a perpetual license, and Licensee has no right to retain or to use the Product after termination of the applicable Subscription Period for any reason. Except as expressly provided in this Agreement and as may be required by applicable law, Licensee has no right to copy, modify or create derivative works of any of the Products. Licensee has no right to rent, lease, sublicense or otherwise distribute or make the Products available to any third party. Licensee has no right to use the Products in the performance of services for or on behalf of any third party or as a service bureau. Except as may be required by applicable law, Licensee may not disassemble, decompile or otherwise reverse engineer the Product nor permit any third party to do so. Lean reserves all rights not expressly granted to Licensee under this Agreement. The use of Lean’s intellectual property beyond the scope of the license expressly granted is outside the subject matter of this Agreement.
2.2 Audit Rights. Licensee will maintain accurate records as to its use of the Products as authorized by this Agreement, for a period of at least two years from the last day of the Subscription Period. Lean may, upon ten days prior notice and during Licensee’s normal business hours, audit such records to verify that Licensee has used the Products in accordance with the terms of this Agreement and the Customer Agreement, provided that Lean may conduct no more than one audit in any twelve month period. Lean will use commercially reasonable efforts to minimize the disruption of Licensee’s normal business activities in connection with any such audit. Lean will not disclose any information learned in the course of its audit to any third party, except to exercise its rights under this Agreement. Licensee will promptly pay Lean or the applicable Lean Partner any underpayments revealed by any such audit.
2.3 Open Source Software. Any open source software included in the Products, along with the applicable license, is listed in the Product license file or documentation. Such open source software is licensed to Licensee under the terms of the corresponding license.
2.4 Ownership. The Products and related documentation are and will remain the sole property of Lean and its licensors, and, except as expressly provided herein, Lean and its licensors retain all right, title and interest in and to the Products, including all underlying intellectual property rights.
3.1 Product Warranty. Lean warrants to Licensee that, for a period of thirty days following the date that the Initial License Key is provided to Licensee, the Products will substantially conform to the description contained in the applicable documentation ("Warranty Period").
3.2 Remedies. If, during the Warranty Period, the Products do not substantially conform to the description contained in the applicable documentation, Licensee will so notify the applicable Lean Partner. Lean will work with the Lean Partner to correct the defects and deliver such correction to the Licensee. The remedy set forth in this Section is Licensee’s sole and exclusive remedy, and Lean’s sole and exclusive obligation, for breach of warranty.
3.3 Limitations. The warranty in Section 3.1 is made to and for the benefit of Licensee only. The warranty will apply only if: (a) the Products have been properly installed and used at all times and in accordance with the instructions in the applicable documentation; (b) no modification, alteration or addition has been made to the Products; and (c) the Lean Partner receives written notification of the breach within thirty days of the delivery of the Initial License Key.
3.4 Disclaimer. Except as set forth in section 3.1 above, the product is provided “as is” and Lean and its licensors make no warranties, whether express, implied, or statutory regarding or relating to the product, its documentation or any materials provided by Lean to licensee. Lean and its licensors do not warrant that the products will operate uninterrupted or that they will be free from defects or that the products are designed to meet licensee’s business requirements. Lean and its licensors hereby disclaim all other warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose and noninfringment.
4.1 Indemnification. Subject to the provisions of Section 4.2, Lean agrees to defend Customer against any third party claim, suit or proceeding (each, a "Claim") alleging that the Product infringes any copyright, trade secret or patent. In addition, Lean will pay all of those fees and costs, including attorney’s fees, resulting from such Claim, as well as all damages awarded against Customer, or any amounts agreed to by Lean in a monetary settlement, in connection with such Claim. Lean may, at its expense, attempt to resolve the Claim by: (a) modifying the Product to avoid the alleged infringement; (b) obtaining a license to permit Customer’s use of the Product as contemplated by this Agreement; or (c) terminating the license grant set forth in this Agreement with respect to the Product and giving Customer a refund attributable to the remainder of the then-effective Subscription Period. Customer will cooperate fully with Lean in the implementation of any above-described resolution. Lean will have no liability if the applicable Claim to the extent based on: (i) the combination of the Product with non-Lean products data or business processes; (ii) use of any release of the Product when use of a newer release avoid the infringement; or (iii) use of the Product outside the scope of the license granted herein.
4.2 Conditions. As conditions of Lean’s obligations under this Section 4, Customer must: (a) promptly notify Lean in writing of such claim and furnish a copy of each communication or notice relating to the alleged infringement; (b) give Lean sole control over the defense and negotiation of any settlement of such claim; and (c) give Lean, at Lean’s expense, all reasonable assistance as requested by Lean.
4.3 Limitation. This Section 4 sets forth Lean’s entire liability to Customer, and Customer’s sole and exclusive remedy, with respect to the third-party suits and proceedings described in this Section 4. Each party agrees that any and all implied indemnification obligations that may apply to this Agreement are hereby excluded.
*LIMITATION OF LIABILITY. *Lean and its licensors will not have liability for any special, consequential, exemplary, incidental, punitive, or indirect damages (including, but not limited to, loss of profits, revenues, data and/or use), even if advised of the possibility thereof. Notwithstanding any other provision in this agreement, Lean’s total aggregate liability, regardless of the form of the cause of action, whether in contract, tort (including without limitation negligence), statute or otherwise, and licensee’s sole and exclusive remedy, will be limited to proven direct damages caused by Lean in an amount not to exceed the price paid by licensee for the products during the twelve (12) month period immediately preceding the date of the claim.
6.1 Lean Confidential Information. Licensee will not disclose any Lean Confidential Information (defined below) to any third party, other than employees and consultants acting on Licensee’s behalf who are subject to confidentiality obligations at least as strict as those contained in this Section. Licensee will not use any Lean Confidential Information except to exercise its rights under this Agreement. Licensee will be held to the same standard of care as it applies to its own information and materials of a similar nature, but in no event no less than reasonable care. Licensee may disclose Lean Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body; provided that Licensee gives prompt written notice thereof to Lean and cooperates with Lean in obtaining an appropriate protective order or otherwise preventing or restricting such disclosure. "Lean Confidential Information" means all non-public information or materials provided to Licensee in connection with the Products, including any non-public software contained in each Product.
6.2 Licensee Information. If, in the course of any evaluation or communication hereunder, Licensee provides any data to Lean, then Lean will protect the confidentiality of such information in compliance with the standards and obligations set forth in Section 6.1. In connection with any such disclosure, Licensee will comply with any contractual or other legal obligations it has with respect to such data. Licensee will not, in any event, disclose to Lean any data that includes personally identifiable information.
7.1 No Assignment. This Agreement and any rights or obligations of Licensee under it may not be assigned, subcontracted or otherwise transferred by Licensee, in whole or in part, other than to a successor-in-interest in the event of a sale or merger of Licensee, upon written notice to Lean. Any attempt to assign this Agreement by Licensee without such consent will be null and void and of no force and effect.
7.2 No Authority. No Lean Partner or other third representative of Lean has authority to make representations on behalf of, or bind, Lean. Other than the obligations set forth in this Agreement, Lean may only be bound to Licensee by written agreements signed by an officer of Lean.
7.3 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the term of this Agreement or prejudice such party’s right to take subsequent action.
7.4 Severability. If any provision in this Agreement (including, without limitation, the prohibition on de-compiling or reverse engineering) is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
7.5 Government Regulations. Licensee may not export or re-export the Products except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Products and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Products and related documentation by the U.S. Government will be governed solely by the terms of this Agreement.
7.6 Language. This Agreement is in the English language only, which will be controlling in all respects. Any versions of this Agreement in any other language will be for accommodation only and will not be binding upon either party.
7.7 Governing Law. This Agreement will be governed by the laws of the State of New York and the United States of America, without regard to conflict of law principles. The parties hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in New York, New York for resolution of any disputes arising out of this Agreement and waive all objections thereto. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
7.8 Complete Agreement. This Agreement contains the entire agreement of Lean and Licensee with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, understandings and agreements, whether written or oral, between the parties on the subject matter hereof. This Agreement will not be amended, except by a writing signed by authorized representatives of both parties.