Appendix EULA

General Terms & Conditions of Datavard AG („Licensor“) for the temporary provision of the Community Edition and Enterprise Edition of CanaryCode („Software“) to the customer („Licensee“) in accordance with the license certificate

Last update: April 1st, 2016 – Version 1.0

A. General Provisions

§ 1 Applicability, Exclusivity
1. These General terms and conditions and the provisions stipulated under the license certificate shall apply exclusively to all services rendered by the Licensor in connection with the provision of the Software as described under the license certificate and the provision of support services to the Licensee.
2. General terms and conditions of the Licensee shall not apply.

§ 2 Definitions
For the purposes of this agreement, the following terms shall mean:

GT&C: These General terms and conditions.
Central Monitoring System: SID of the central monitoring instance on which the Software is installed and from where Prod- and Non-Prod-Systems are monitored by use of the Software.
Licensor: DataVard AG.
Licensee: The customer of the Licensor.
Major Release: Software-modules introducing new features and/or new performance elements.
Minor Release: Updated versions of or updates to the Software with minor functional improvements and/or enhancements.
Non-Prod-System: SAP Non-productive-system on which the Software is installed and run.
Prod-System: SAP productive system on which the Software is installed and run.
SAP-System: Each and every system tagged with a unique SID.
SID: Unique SAP System ID provided by SAP to tag any software-system.
Software: Community Edition or Enterprise Edition as per agreement.
Confidential Information: Each and every technical and economic piece of information of or in connection with this agreement and its execution which has been declared to be confidential by the party disclosing it or whose confidentiality is apparent due to other circumstances and of which the other party has gained knowledge before concluding this agreement or during of its term.
Support-hours: Monday to Friday (except on legal holidays at the Licensors registered office) between 8:00 a.m. and 6:00 p.m. (Central European Time)

§ 3 Provision of the Software, Usage

  1. The Licensor enables the Licensee to use the Software Edition of the Software as described within the provisions stipulated under the license certificate by providing him a license-key.
  2. The Community Edition may be installed and run on up to three different SAP systems of which not more than one may be a Prod-System. Every use beyond this limit requires the purchase of an Enterprise Edition via an additional license certificate. The Enterprise Edition grants the right to install and run the Software on up to one Prod-System and an unlimited number of Non-Prod-Systems. Additionally, the use of the Enterprise Edition enables the Licensee to monitor all of his Prod- and Non-Prod-Systems by using a Central Monitoring System.
  3. The Licensor provides the Licensee with an electronic user manual.
  4. The Licensee is responsible for the provision of all third party software and hardware that is required for running the Software as well as for maintaining their functionality.

 

§ 4 Material- and legal defects

  1. The Software is provided in the Version specified within the license certificate.
  2. The Licensor provides the Community Edition to the licensee free of charge. He is therefore liable for defects of the Community Edition only insofar as he has maliciously concealed their existence from the Licensee.
  3. Without detriment to deviating agreements, and with respect to the provision of the Enterprise Edition, the Licensor owes the provision of a software of average kind and quality.
  4. With respect to the provision of the Enterprise Edition, the Licensor shall maintain the agreed condition for the term of this agreement. With respect to curing defects, the Licensor may choose to supply a replacement or rectify the defect. Rectification can mean, among other things, provision or installation of a new revision of the program or a work-around or the provision of an amended user manual. A rectification shall be deemed a permanent remedy if the defect is cured or bypassed and no significant functional impairment remains.
  5. In case third party rights exist which prevent the use of the Software by the Licensee in accordance with the agreement, the Licensor, with respect to the Enterprise Edition and at his discretion, will either procure and provide to the licensee the unimpaired right to use the Enterprise Edition in accordance with the agreement or modify the Enterprise Edition so it ceases to infringe third party rights or provide to the Licensee an application containing the same functions which does not infringe third party rights. To the extent that the measures described under sentence 1 are impossible to accomplish with reasonable effort, the Licensor is entitled to terminate the agreement without notice. Upon such termination, the Licensee’s duty to pay the license fee is lapsed.
  6. With respect to his duties to rectify defects, the Licensor may replace the Software with a new version if and insofar as the agreed functionality and the range of functions of the original Software are preserved.
  7. The Licensee may only terminate the agreement in accordance with section 543 (2) sentence 1 No. 1 BGB (German Civil Code) for not granting him the use of the Software in accordance with the agreement if the Licensee has given the Licensor the opportunity to rectify the defect and rectification has failed.
  8. In case the Licensee’s request to rectify a defect is not based on a defect of the Software, the Licensee shall be liable to compensate the Licensor for his efforts to determine, analyze or provide a cure. This particularly applies in case the request pertains to a malfunction caused by circumstances which are attributable to the Licensee and for he is responsible, especially if such malfunction results from use of the Software in conflict with the user manual or from the operating environment of the Licensee.
  9. The Licensee’s rights in case of defects of the Software lapse insofar as he modifies or has others modify the Software without the Licensor’s consent, unless the Licensee can prove that such modifications do not affect the effort necessary for the analysis or rectification of the defect in an unreasonable manner. The Licensee’s rights remain unaffected in case he was entitled to carry out modifications and such modifications were executed professionally and are documented in a comprehensive manner.
  10. The Licensor is entitled to use third parties to rectify defects.

§ 5 Granting rights/Usage for own purposes/for purposes of affiliated enterprises

  1. The Licensor grants the Licensee the right to use the Software as specified within the license certificate and the corresponding electronic user manual solely for the Licensee’s own purposes. The Licensee is not entitled to provide services and performances for third parties which directly involve the use of the Software or the results of the use of the Software. With respect to usage for own purposes as described above, enterprises affiliated with the Licensee within the meaning of section 15 et seq. AktG (German Stock Corporation Act) may use the Software.
  2. The Licensor grants the Licensee the non-exclusive, non-transferable and non-sublicenseable right to use the Software and the corresponding documentation during the period of this agreement. The source-code of the Software is not included within this right unless in cases where the use in accordance with the agreement is absolutely necessary.
  3. The Licensee is not entitled to sell, (sub-)lease or lend the right to use the Software or the corresponding documentation. Employees and other third parties bound by the Licensee’s directives may, subject to instructions of the Licensee, use the Software and the corresponding documentation within the scope of this agreement and its purpose.
  4. Supplements (e.g. patches, amendments to the user manual) or a new version of the Software or the user manual (e.g. update or upgrade) intended to replace the preceding version of the Software or the user manual which are provided to the Licensee within the context of rectifying defects or support services are governed by these GT&C. The Licensee’s rights in accordance with these GT&C regarding the preceding version of the Software or user manual expire automatically, without the Licensor being required to request the return of the old versions explicitly, upon the Licensee commencing the use of the Software in its new form.

§ 6 Reproduction

  1. The Licensee may run the Software on the systems as defined under the license certificate. He may reproduce the Software only and insofar as is required for its use on the primary system in accordance with the agreement. The Licensee may operatively use the Software only and exclusively on one single hardware-system as defined under the license certificate. The Licensor must be notified before any change of this hardware-system.
  2. The Licensee may create copies of the Software on the subsidiary systems as described under the license certificate if and insofar as this is required to (a) ensure its future use, (b) conduct tests of the Software or (c) back-up and archive data in accordance with the Licensee’s operational business needs. The Licensee shall unmistakably tag such reproductions as a copy.
  3. Upon the Licensor’s request, the Licensee shall promptly inform him about the number, storage device and location of repository of any created copy.
  4. The Licensee’s right to reproduce the program-code under the prerequisites of section 69d (1) UrhG (German Copyright Act) remain unaffected. Any other form of reproduction is forbidden.

§ 7 Alteration

  1. Subject to the following provisions, the rights granted do not include the right to edit, modify, translate or otherwise alter the Software. The Licensee shall not decompile or disassemble the Software or use any other form of reverse engineering or use or modify the source-code in any way, unless it is absolutely necessary for using Software in accordance with the agreement.
  2. Any modification by the Licensee is permissible only to the extent absolutely necessary for the use of the Software in accordance with the agreement. Modifications are permissible in order to rectify defects in case the Licensor is in default with rectification, rejects rectification or is otherwise unable to perform it due to reasons attributable to him. Modifications are also permissible to solve issues regarding the compatibility of the Software with other computer programs required by the Licensee in case the Licensor is not ready or able to offer such modifications under reasonable market terms.
  3. The Licensee shall not allow third parties to perform modifications in accordance to para. 2 if such third parties are competitors of the Licensor, except when the Licensee can prove in advance that the risk of disclosing important business and trade secrets of the Licensor (particularly regarding functions and design of the Software, including the source-code) is ruled out and the Licensor has explicitly consented. The Licensee must name the competitor to the Licensor in advance.
  4. The Licensee ensures that neither he nor others prompted by him remove, alter or render unrecognizable any labels within the Software, particularly copyright notices, trademarks, serial numbers or similar labels.

§ 8 Updates/Moderated User Community

  1. For the purposes of troubleshooting and adaption to changed system requirements or changes within the operating system in use or database, the Licensor will, within his sole discretion and up to four times per year, provide to the Licensee updated versions of or updates for the Software in the form of service packs that the Licensee must install. These may contain slight functional improvements and enhancements. This does not include Major Releases. If required and initially provided, the Licensee shall receive an object-code along with the new version or update. Regarding the new versions and updates, the Licensor grants the Licensee the same rights as stipulated with respect to the provision of the Software.
  2. The Licensor shall notify the Licensee once he has established User Communities that are, according to the Licensors’ evaluation, contextually suited for the Licensee’s interests and enable him to become involved in such User Communities.

§ 9 Notice of defects and duties of care of Licensee

  1. The Licensee shall notify the Licensor about defects in a comprehensible form and provide all information necessary for the determination and analysis of the defect. This particularly relates to the steps of procedure that have resulted in the appearance of the defect, its symptoms and effects.
  2. The Licensee will take suitable precautions to protect the source-code, object-code, Software and/or user manual from any unauthorized access by third parties.

§ 10 Liability limitation

  1. The Community Edition is provided to the Licensee free of charge. The Licensor shall therefore not be liable for any damages, regardless of their kind, resulting from the provision or use of the Community Edition or in connection therewith. This liability limitation does not apply in case the Licensor acts intentionally or with gross negligence.
  2. The Licensor’s liability for damages resulting from the provision or use of the Enterprise Edition or in connection therewith is exclusively determined by the following paras. 3 to 7.
  3. The Licensor is, without limitation, liable to the Licensee for damages (a) in case of intent or gross negligence, (b) in case of culpable injury to life, limb or health, (c) in accordance with the provisions of the German Product Liability Act (ProdHaftG) and (d) to the extent of an assumed guarantee.
  4. The Licensor is liable for typically foreseeable damages resulting from a slightly negligent breach of his cardinal duties by himself, his legal representatives or vicarious agents. Cardinal duties are all duties whose fulfilment make the due performance of the agreement possible in the first place and on the observation of which the Licensee may regularly rely on.
  5. In case of data-loss due to slight negligence, the Licensor is liable for damages up to the extent the damage would have occurred if the Licensee had regularly conducted data back-ups in a proper manner and under consideration of the significance of the relevant data. If in doubt, it shall be assumed that backing up data every three days is appropriate. This limitation does not apply if the Licensee was hindered or unable to conduct such backups for reasons attributable to the Licensor.
  6. In other cases of slight negligence, the Licensor is liable for damages up to the amount equaling six monthly license fees for each damage event.
  7. Any no-fault liability of the Licensor in accordance with section 536a (1), first alternative BGB for defects existing at the time the contract was concluded, is excluded.
  8. The above exclusions and limitations of liability also apply with respect to the personal liability of employees, representatives and members of bodies of the Licensor.

§ 11 Compensation

  1. The Community Edition is provided free of charge. The Licensee may purchase Enterprise support services for a separate fee. The Enterprise Edition is available for purchase only. The license fee for the Enterprise Edition includes the fee for support services.
  2. Quoted prices do not include value added tax which the Licensee must pay in addition and in the amount determined by statutory law at the time each invoice is issued. In case the Licensee is released from the obligation to pay value added tax or an exception to statutory law applies, the Licensee, without the need of prior request by the Licensor, shall provide to the Licensor the documentation necessary for the Licensor to review the matter finally before issuance of the relevant invoice. The Licensor is entitled to invoice value added tax to the Licensee and the Licensee shall be liable to pay in case necessary documentation does not reach the Licensor in time or if it is incomplete.
  3. Notwithstanding the arrangements under the license certificate, monthly license or support fees are due in advance on the third business day of each month.
  4. The Licensee may offset or exercise a right of retention only insofar as his counter-claims are legally and validly ascertained, acknowledged or accepted by the Licensor. The Licensee may not assign his claims against the Licensor to a third party.

§ 12 Term and termination
1. The license period commences upon receipt of the license-key.
2. The term of the Community Edition license is timely unlimited. The parties are entitled to terminate the granting of the license with a notice period of two weeks at any given time.
3. The term of the Enterprise Edition license is 36 months. The license term is extended automatically by twelve months if no party terminates the agreement with a notice period of three months to the end of the license term.
4. The right to terminate in accordance with § 4 para. 5 of this agreement remains unaffected.
5. The right for each party to terminate the agreement for cause without notice remains unaffected. The Licensor is particularly entitled to terminate for cause if the Licensee is in default of payment for the license or support services on two successive dates or of a portion of payment for the license or support services that is not insignificant; or in case the Licensee is in default of payment for the license or support services for a period of time spanning more than two dates in an amount that is as much as the amount of the license or service fee for two months. The Licensor may also terminate for cause in case the Licensee breaches his duties determined by these GT&C (a) repeatedly or (b) intentionally or with gross negligence.
6. Any termination requires textform to be effective.
7. After the license period has lapsed, the Licensee shall immediately cease the use of the Software and finally delete all documentation/user manuals. The Licensee shall prove observance hereof to the Licensor upon request.

§ 13 Use as reference
1. Subject to the following provisions, no party shall be entitled to use trademarks or logos of the other party publicly without its prior written consent. This does not apply with respect to trademarks or logos on or within the Software or the corresponding documentation.
2. The Licensor shall be entitled to list the Licensee under his list of customers and, after the Licensee has put the Software in operation, provide information to third parties about the use of the Software by the Licensee for the purposes of marketing and advertising. Such information shall be limited to information regarding the Licensee that is publicly available with indications to its name, logos and business location as well as information regarding the time and period of use and technical specifications regarding the system used by the Licensee. The disclosure of any other information requires the Licensee’s consent. The Licensee may revoke or restrict his consent for cause, e.g. in case this agreement is reversed following a rescission of contract.

§ 14 Confidentiality
1. During the term of this agreement and a following period of five years and subject to provisions within this agreement, the parties shall keep secret all Confidential Information and prevent unauthorized third parties from accessing it. This particularly relates to contractual items and information regarding the functionality, construction and programming of the Software.
2. The confidentiality duties do not apply to Confidential Information that (a) is or becomes public domain without a breach of this confidentiality agreement by the receiving party; (b) the receiving party has developed wholly independently of the Confidential Information received from the disclosing party; (c) the receiving party is required to disclose due to statutory provisions or an enforceable order of a court of competent jurisdiction or of any competent governmental body, provided that the receiving party shall give the disclosing party prompt notice upon becoming aware of such duty to disclose in order to allow the disclosing party to seek protective measures regarding the information to be disclosed whereas the receiving party shall provide full support to the disclosing party in seeking such measures; (d) the receiving party has acquired from a third party without a breach of this confidentiality agreement.
3. This confidentiality agreement shall also apply with respect to the source-code and stay in force indefinitely.

§ 15 Data protection
If and insofar it cannot be ruled out that the Licensor gains access to personal data within the context of him accessing the Licensee’s system environment for the purposes of installing, maintaining, restoring, servicing or rectifying defects, such access happens in the form of commissioned data processing by the Licensor for the Licensee. The Licensor is entitled to task third parties with the provision of support services in accordance with this agreement if they have their registered office within the EU. The Licensor shall work for the observance of sufficient technical/organizational measures and, with respect to technical and/or organizational measures of third parties, make efforts to arrange the issuance of corresponding rights of control to the customer’s data-controller. The Licensor shall collect, process or use or have others collect, process or use personal data within the context of the use of the Software and within the term of this agreement and delete such personal data – in case it was stored – promptly when the purpose of their utilization is achieved. The Licensor shall inform the Licensee promptly upon becoming aware of any infringement of statutory German laws regarding the protection of personal data or provisions under this clause. The Licensee is entitled to instruct the Licensor with respect to the collection, processing or use of customer data. The Licensee shall bear the costs resulting from such instructions.

§ 16 Benchmark
1. The Licensor collects technical information regarding the use and operation of the Licensee’s system and used data volumes by automated means. The Licensor uses such to calculate average scores (Benchmark).
2. The Licensor may use the collected technical data in aggregated form, i.e. generating arithmetic means of data collected from a multitude number of licensees or other third parties without the possibility to implicate any licensee or natural person directly, as Benchmark data for third parties and disclose to them such Benchmark data.

§ 17 Miscellaneous
1. German law applies exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CSIG) shall not apply.
2. The legal venue for all legal disputes resulting from or in connection with this agreement is Mannheim; the Licensor may also file a lawsuit at the competent court at the venue of Licensee’s registered office.
3. These GT&C are a translation of the original German text. In case of any conflicts, contradictions or other inconsistencies with the German text, the German version shall prevail.

B. Special Conditions for Enterprise support services

§ 1 Subject and content of Software support
1. The Licensor – if so agreed – provides additional Software support in the form of Enterprise support services alongside his warranty obligations. Enterprise support services contain error-analysis, elimination of Software failures and the creation of updates and new versions.
2. Support services relate to the current version of the Software and the two respective preceding versions.
3. Support services do not contain the provision of new Software releases (i.e. a new Software version with considerable changes to the range of functions), individual enhancements or adjustments of the Software for the Licensee, services for any products other than the Software, installation or implementation of the Software on or into the hardware environment of the Licensee, changes to the hardware or operating systems or introductions or trainings for the Licensee’s personnel.
4. Support services shall not be rendered with respect to Software that the Licensee uses in conflict with instructions given by the Licensor regarding its use and programming or Software that the Licensee has or had modified without prior consent by the Licensor, unless the Licensee can prove that such modifications do not affect the required effort for the provision of support services in an unreasonable manner.

§ 2 Support-hours/Support
Support services shall be provided by the Licensor’s support-team during Support-hours by means of SAP OSS.

§ 3 Error classes and response time
1. The parties mutually determine error classes of errors to be potentially reported in accordance with the following criteria:
Category 1: Critical Error: Material loss of functionality or performance of the Software leading to the inability to use the Software.
Category 2: Substantial Error: Considerable loss of functionality or performance of the Software that can be circumvented with organizational or other reasonable measures so the Software can be used continually.
Category 3: Miscellaneous Errors: Negligible loss of functionality, reliability, performance or quality of the Software.
2. The Licensor provides the following support services:
Category 1: Accelerated error-analysis and commencement of troubleshooting procedures within four work-hours after receiving notice. In case notice is received after 2 p.m. (Central European Time), only the period until the end of Support-hours shall count; the remaining response period starts running again at the beginning of the next Support-hours window.
Category 2: Accelerated error-analysis and commencement of troubleshooting procedures until the end of the business day following the day the notice is received.
Category 3: Error-analysis and commencement of troubleshooting procedures are not subject of Software support services.
3. With respect to error-analysis and commencement of troubleshooting procedures, the periods described above are calculated from the time the notice of the Licensee is received; if the notice is not received during Support-hours, these periods start running at the beginning of the next Support-hours window.
4. The Licensor shall continually pursue commenced troubleshooting-procedures during Support-hours.

§ 4 Licensee’s duty to cooperate
1. The Licensee shall give notice to the Licensor by means of the Licensor’s Error-report-system via SAP OSS about all errors he wishes the Licensor to eliminate.
2. The Licensee will assist the Licensor with reasonable efforts if such assistance is beneficial to the rendering of support services. This particularly relates to the provision of all information the Licensor’s deems necessary for his performance, naming qualified contact persons and the provision of test data and test capacities.
3. The Licensee will name a contact person who is in charge of the Licensee’s systems to the Licensor promptly upon conclusion of the agreement. This does not affect the submission of error-reports; all of the Licensee’s personnel can submit such.
4. The Licensee will also grant the Licensor physical access to his system-environment where and whenever necessary.
5. The Licensee will document and promptly inform the Licensor in writing about changes within the configuration of the Software and its environment in the following cases:

  • System changes
  • Upgrades
  • Changes within configuration
  • Reinstallations
  • System-ID changes.

§ 5 Provision of updates
1. For the purposes of troubleshooting and adaption to changed system requirements or changes within the operating system in use, the Licensor will within his sole discretion, but at least twice per year, provide Minor Releases for the Licensee to download. These do not contain any new elements of performance or software-modules with new functions. The Licensee shall install such Minor Releases.
2. In case new versions or updates are released, the Licensee shall receive an amendment to the user manual and if required and initially provided, an object-code.
3. Regarding the new versions and updates, the Licensor grants the Licensee the same rights as stipulated with respect to the provision of the Software.

§ 6 Service fee
1. Support services with respect to the Community Edition can be purchased by the Licensee for a fee as specified within the license certificate. With respect to the Enterprise Edition, the fee for support services is 25% of each respective license fee.
2. In case the Licensee has purchased Enterprise support services for the Community Edition, the Licensee shall pay the fees agreed to under the license certificate in four equal rates at the end of each three-months-period and upon receipt of an invoice, plus value added tax in the amount determined by statutory law at the time the invoice is issued.
3. The fee-amount for purchased Enterprise support services is fixed for a period of 36 months. Upon the Licensor’s request, the parties will agree on an appropriate adjustment to the service fee in due time before the fixed period lapses.

§ 7 Warranty and liability limitation
1. Claims become time-barred one year after performance or, in case of work performances, after acceptance. This does not apply to claims for damages (a) in case of intendent or gross negligence, (b) injury to life, limb and health, (c) in accordance with the provisions of the German Product Liability Act (ProdHaftG) or (d) to the extent of an assumed guarantee.
2. In case support services include work performances, the Licensee shall be entitled to request rectification of defective work performances. Upon final failure of the rectification and if the work performance remains defective, the Licensee is entitled to reduce the service fee. The Licensor owes a work of average kind and quality.
3. The Licensor is, without limitation, liable for damages (a) in case of intent or gross negligence, (b) in case of culpable injury to life, limb or health, (c) in accordance with the provisions of the Product Liability Act (ProdHaftG) and (d) to the extent of an assumed guarantee.
4. The Licensor is liable for typically foreseeable damages resulting from a slightly negligent breach of his cardinal duties by himself, his legal representatives or vicarious agents. Cardinal duties are all duties whose fulfilment make the due performance of the agreement possible in the first place and on the observation of which the Licensee may regularly rely on.
5. In other cases of slight negligence, the Licensor is liable for damages up to the amount equaling five monthly service fees for each damage event.
6. In case of data-loss due to slight negligence, the Licensor is liable for damages up to the extent the damage would have occurred if the Licensee had regularly conducted data back-ups in a proper manner and under consideration of the significance of the relevant data. If in doubt, it shall be assumed that backing up data every three days is appropriate. This limitation does not apply if the Licensee was hindered or unable to conduct such backups for reason attributable to the Licensor.
7. The above exclusions and limitations of liability also apply with respect to the personal liability of employees, representatives and members of bodies of the Licensor.

§ 8 Term and termination
1. In case the Licensee has purchased Enterprise support services for the Community Edition, the term of the agreement shall be 36 months. The term is extended automatically by twelve months if no party terminates the agreement with a notice period of three months to the end of the license term.
2. Support services within the context of the Enterprise Edition are inseparably associated with the agreement regarding the provision of Software. A termination of support services is not possible.
3. The right to terminate for cause without notice remains unaffected.
4. Any termination requires written form to be effective.

§ 9 Subcontractors
The Licensor is entitled to task third parties with the provision of support services in accordance with this agreement if they have their registered office within and provide their performances from within the EU.