Legal Terms and Conditions
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CLOUD SERVICES TERMS AND CONDITIONS
- TRIAL CLOUD SERVICES AGREEMENTS – ARIS Basic and Advanced
- FREE EDITION CLOUD SERVICES AGREEMENT – ARIS Process Mining Basic
- ARIS SCHOOL CLOUD SERVICES CLICKWRAP BESTELLSCHEIN – VERSION BERUFSBILDENDE SCHULEN (BBS)
SERVICE TERMS
1 ACCESS LICENCE AND RESTRICTIONS
1.1 Access to Cloud Services : Subject to the terms and conditions set forth in this Agreement and in exchange for payment of the cloud services fees, the Supplier grants the Customer a non- exclusive, non-transferable, non-sub-licenseable right to access and use the Cloud Services (hereinafter “Cloud Services“) identified in any Cloud Services Attachment (hereinafter “Cloud Services Attachment“) in accordance with the Documentation solely for its internal business purposes as contemplated by this Agreement for the duration of the Cloud Services Term. “Documentation” means the Cloud Services Attachment, user manuals, and operating
instructions generally provided with the Cloud Services to a customer. The Cloud Services Attachment describes the Supplier’s management, maintenance and service level commitment for the Cloud Services.
1.2 Provision of Cloud Services : The Cloud Services will be solely provided by the Cloud Services Delivery Entity referred to in the Cloud Services Attachment and the Customer acknowledges and agrees to the appointment by the Supplier of such Cloud Services Delivery Entity for such purposes under this Agreement. The Cloud Services Delivery Entity will be the only entity of Supplier accessing Customer Data, if applicable, as further defined below.
1.3 Term and Renewal Term : The term of this agreement for the provision of Cloud Services is fixed for the duration of the Cloud Services Term set out in any relevant Cloud Services Attachment and thereafter renews on the basis set out in the Cloud Service Renewal Terms set out in any relevant Cloud Services Attachment. The Supplier will delete the Customer’s Account (as defined below) 30 days after the expiry or termination of this Agreement or any Cloud Services Attachment.
1.4 Restrictions : The licence set forth in this Agreement is granted subject to the following restrictions:
(a) the Customer will not (other than for access to the Cloud Services via plug-ins or fat clients to the extent such installation (not download) is supported) receive a copy of any software or platform programs listed in the Cloud Services Attachment (“Software“), will not be permitted any access to the programming or source code, or have the right to install the Software (or any part thereof) locally in any system of the Customer, contractor or agent;
(b) Customer shall not:
– copy, license, sub-license, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Cloud Services available to any third party, other than as expressly permitted by this Agreement and by international export laws and regulations;
– interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein;
– attempt to gain unauthorized access to the Cloud Services or their related systems or networks;
– disseminate performance-related information relating to the Cloud Services or the Software;
– store or process any data of the following types: information on a person’s racial or ethnic origin, political opinions, religious or philosophical convictions, union membership, health (HITECH – Health Information Technology for Economic and Clinical Health Act & HIPAA – Health Insurance Portability and Accountability Act), sex life, concerning bank or credit card accounts (PCI DSS – Payment Card Industry Data Security Standard) comprising but not limited to data according to BDSG § 4 Abs (9);
– use the configuration and reporting capabilities of the Cloud Services for any other purposes besides those set forth in this Agreement; or
– use the software or granted services and related documentation/technology or other related systems for the development, manufacturing, usage, operations, maintenance, stock piling, locating, identification or proliferation of chemical, biological or nuclear weapons or similar nuclear explosives or for the development, manufacturing, maintenance, stock piling of carriers/missiles for such weapons;
– use the software or granted services and related documentation/technology or other related systems for any military end use, such as (i) installation within or as part of military goods as listed in military items lists maintained under applicable relevant export control jurisdictions, (ii) the use of manufacturing-, test-, and analysis-equipment for the development, manufacturing or maintenance of military items as described above, (iii) the use of incomplete products / components in a plant or compound used for the manufacturing of military goods as described above;
– use the software or granted services and related documentation/technology or other related systems for the setup/installation or operations of a plant or compound for nuclear purposes, or for implementation within such a plant or compound or;
– otherwise utilize the Cloud Services in any manner, except as expressly permitted under this Agreement;
(c) access to the Cloud Services cannot be shared or used by more than one individual (unless it is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use such licence);
(d) the Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Cloud Services;
(e) the Customer is responsible for all user access to and use of the Cloud Services and shall abide by all applicable laws and regulations including those regulations applicable to data privacy and data security regulations; and
(f) the Customer shall obtain at its sole expense any rights and consents from third parties necessary for the Supplier and its subcontractors to perform the Cloud Services under this Agreement.
1.5 Authorized Users : “Users” of the Cloud Services shall mean employees or contractors of the Customer who are authorized to access the Cloud Services using a user identifier and password. The Customer shall not make the Cloud Services available to any person or entity other than Users and shall remain liable to the Supplier for all acts and omissions by Users as though such acts or omissions were those of the Customer itself.
1.6 Reservation of Rights : Subject only to the rights expressly granted to the Customer under this
Agreement, all rights, title and interest in and to the Cloud Services will remain with and belong
exclusively to the Supplier.
2 CUSTOMER INFORMATION
2.1 Customer Account : In order to access and use the Cloud Services, the Customer will need to register and create an account (the “Account“). By creating an Account the Customer represents it is of legal standing to form a binding contract and is not barred from receiving services under any applicable jurisdiction. To create an Account the Customer is required to provide certain personal information about the Account registrant and create a user name and password. The
Customer agrees to provide accurate, current and complete information. The Supplier reserves the right to suspend or terminate any Account if:
(a) any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading; or
(b) such Account is inactive for more than one (1) year. The Customer is responsible for maintaining the confidentiality of its password and Account and
agrees to notify the Supplier if its password is lost, stolen, or disclosed to an unauthorized third party, or otherwise may have become compromised. The Customer is responsible for all activities that occur under its Account.
2.2 Ownership : In order for the Cloud Services to perform the function for which they were designed, the Cloud Services will gather and transmit certain technical information, Account information, and metadata associated with the Customer’s access and use of the Cloud Services, including without limitation application telemetry, IP addresses, IP configurations, stored sessions, open ports, Account credentials, network metadata, and device operating system, status, version and configuration (collectively “Metadata“). For clarification, Metadata is used to provide the Cloud Services and will not include any of the actual data processed with the Cloud Services. With the exception of Metadata the Customer shall own all content, information, materials, and intellectual property provided in its unaltered form by Customer in connection with Customer’s use of and access to the Cloud Services (“Customer Data“).
2.3 Customer Responsibility for Customer Data : The Customer is solely responsible for all Customer Data provided to the Supplier, or uploaded to, stored in or transmitted through the Cloud Services and the use of the Cloud Services by the Customer and its Users. The Supplier takes no responsibility and assumes no liability for any Customer Data posted, transmitted through, or uploaded to the Cloud Services by the Customer or any third party, or for any loss or damage thereto, nor is the Supplier liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that the Customer and/or its Users may encounter. The Customer is responsible for securing any privacy-related rights and permissions as may be required by local law or by the Customer’s internal policies. The Supplier will perform Data Backups, Recovery Point Objectives and Recovery Time Objectives each as described in the Cloud Services Attachment. If the Customer requires further or additional backup copies of Customer Data posted or stored on the Cloud Services these are the responsibility of the Customer.
2.4 Supplier Access : The Supplier will not use or access the Customer Data associated with the use of and access to the Cloud Services by the Customer in the ordinary course of the provision of the Cloud Services and has policies and data protection controls in place which prohibit cloud operations staff from accessing tenant data unless explicitly authorised and permitted by the Customer tenant administrator. Should the Supplier require such access it may do so only with the prior consent of the Customer (not to be unreasonably withheld or delayed in any of the circumstances referred to below). Customer hereby grants to the Supplier a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under this Agreement), sub- licenseable, non-exclusive licence to access, retrieve, store, copy, create derivative works of, display, distribute, transmit and otherwise use the Customer Data associated with the use of and access to the Cloud Services by the Customer:
(a) in connection with maintaining, providing and/or making available the Cloud Services;
(b) as reasonably required in order to cooperate with legitimate governmental requests, subpoenas or court orders;
(c) as otherwise required in order to protect the Supplier”’s systems and the Customer; and
(d) otherwise for the purposes of ensuring the integrity and operation of the Supplier’s business and systems.
The Customer hereby consents to the use by the Supplier of the Metadata as reasonably
required in in connection with maintaining, providing and/or making available the Cloud Services.
3 TERMS OF SERVICE
3.1 Service Level : The Supplier shall use commercially reasonable efforts to make the Cloud Services accessible to the Customer, subject to the availability of third party infrastructure, required and emergency maintenance, availability of third party networks and communications facilities and force majeure events. The Cloud Services are hosted on a shared third-party infrastructure environment as set forth in the Cloud Services Attachment.
3.2 Privacy : The Supplier will provide the Cloud Services in accordance with its then current Privacy Policy which is incorporated herein by this reference. Supplier reserves the right to change its Privacy Policy from time to time by posting a new version at https://www.softwareag.com/corporate/privacy.html. Customer agrees to and accepts any modified terms by continuing to use the Cloud Services after such changes are posted and effective.
3.3 Security : The Supplier will employ commercially reasonable security measures in providing the Cloud Services. In addition, the Supplier agrees to make reasonable commercial efforts to safeguard the personally identifiable information associated with the Customer Data from unauthorized access or use, and to store Customer Data in facilities that are deemed to be reasonably secure based on generally recognized industry practices and that have in place reasonable physical, structural and information security safeguards against the unauthorized access or use of the Customer Data. The Supplier’s security processes are reviewed on a regular basis by the Supplier’s Security Council, led by the Corporate Security Officer.
4 DATA PROTECTION
4.1 Data Protection and Privacy : Customer and Supplier acknowledge that as between the Customer and Supplier these provisions will apply to the Customer as the Data Controller and (to the extent that each acts in such capacity) Supplier as the Data Processor of any Customer Data. Supplier will not perform Customer’s management or regulatory obligations and is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to use of Customer Data with the Cloud Services. To the extent Metadata includes personal or other sensitive data, Supplier will process Metadata in compliance with the local laws applicable in the country of the Supplier’s registered place of business and Data Storage Location referred to in the Cloud Services Attachment and will take appropriate technical and organizational measures against the unauthorized or unlawful processing of such Metadata and against the accidental loss or destruction of, or damage to, such Metadata. The terms “Data Controller”, “Data Processor”, “Personal Data”, “process” and “processing”, have the meanings
ascribed to those terms in the Data Protection Act 1988.
4.2 Processing in accordance with laws : Supplier shall process the Personal Data only to the extent and in such a manner as is necessary for the purposes of this Agreement, in accordance with Customer’s instructions and otherwise in accordance with the terms set out in the separate data processing agreement between Supplier and Customer (to the extent required by local legislative requirements) and shall not process the Personal Data for any other purpose. The Customer shall be obliged to ensure that, based on the intended use by the Customer of the Cloud Services, the Customer’s use of the Cloud Services as provided by the Supplier will be and remain compliant with any obligations under applicable legislation.
4.3 Controlling in accordance with laws : The Cloud Services are not designed to comply with any particular law or regulations. Customer will control and allow access to the Personal Data in its capacity as Data Controller and is solely responsible for complying with laws, rules, and regulations that may be applicable to Customer Data and Customer’s use of the Cloud Services. If Customer uses the Cloud Services from outside of the state where the chosen Data Centre location is situated, or by sanctioned entities/users Customer is solely responsible for compliance with all applicable laws, including without limitation export and import laws and regulations of such other countries, associated embargo and sanctions regulations and prohibitions on export for certain end uses or by any prohibited end users. Any relocation of Customer Data contrary to applicable law is prohibited.
4.4 Handling Personal Data : If Supplier receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Data or to either party’s compliance with the Data Protection Act 1988 and the data protection principles set out therein, it shall promptly notify Customer and it shall provide Customer with full co-operation and assistance in relation to any such complaint, notice or communication. At Customer’s request, Supplier shall provide to Customer a copy of all Personal Data held by it in the form of an electronic data dump. Supplier shall promptly inform Customer if it becomes aware that any Personal Data is lost or destroyed or becomes damaged, corrupted, or unusable.
4.5 Access to Personal Data : Supplier shall ensure that access by its employees to the Personal Data is limited to those employees who need access to the Personal Data to meet the Supplier’s obligations under this Agreement and that they are informed of the confidential nature of the Personal Data and have undertaken training in the laws relating to handling personal data.
4.6 Transfer of Customer Data or Personal Data : Supplier shall not (except as set forth below) transfer the Customer Data or Personal Data outside the European Economic Area without the prior written consent of Customer. To the extent required by local legislative requirements Supplier may require Customer’s signature of a separate data transfer agreement. Supplier may only authorize a third party (sub-contractor) to transfer the Customer Data or Personal Data:
(a) subject to Customer’s prior written consent where Supplier has supplied Customer with full details of such sub-contractor;
(b) provided that the sub-contractor’s contract is on terms which are substantially the same as those set out in this Agreement; and
(c) provided that the sub-contractor’s contract terminates automatically on termination of this Agreement for any reason.
Supplier may have to use affiliated legal entities from outside the European Economic Area in order to provide 24/7 support. The Customer hereby appoints the Supplier to enter into and execute a participation agreement to Supplier’s data transfer framework agreement (EU-Model Clauses) with such affiliated legal entities and/or infrastructure providers on behalf of Customer for the sole purpose of any relevant transfer pursuant to this clause. Upon written request of Customer, Supplier will provide such contract documents if applicable.
5 PAYMENT
5.1 Payment : All payments shall be due and payable within thirty (30) days of the date of invoice.
5.2 Taxes : All payments under this Agreement shall be made without recoupment or set-off and are exclusive of taxes and duties. Customer agrees to bear and be responsible for the payment of all taxes and duties including, but not limited to, all sales, use, rental, receipt, personal property and other taxes (but excluding taxes based upon Supplier’s income), which may be levied or assessed in connection with this Agreement.
5.3 Interest : If any payment due under this Agreement is not paid in accordance with the terms of this Agreement, then interest shall be payable and recoverable as a debt on all outstanding amounts pursuant to §288 BGB.
6 CONFIDENTIALITY
6.1 Confidential Information : The Parties acknowledge that each Party will have access to intellectual property or other confidential information of the other party or third parties in respect of which the disclosing party has a duty of confidentiality which, for the purposes of this Agreement, is limited to the Cloud Services, Customer Data, and Personal Data the terms and pricing of this Agreement and any other information clearly identified as being “Confidential” (“Confidential Information”). Both Parties agree that Confidential Information disclosed is proprietary and shall remain the sole property of the disclosing Party or such third party.
6.2 Confidentiality : Each Party agrees:
(a) to use Confidential Information only for the purposes described herein; and
(b) not to reproduce Confidential Information and to hold it in confidence and protect it from dissemination to, and use by, any third party; and
(c) not to create any derivative work from Confidential Information; and
(d) to restrict access to the Confidential Information to its personnel, agents, and/or consultants, who need to have access to such Confidential Information and who have been advised of and have agreed in writing to treat such Confidential Information in accordance with this Agreement; and
(e) to return or, at the disclosing party’s discretion, destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.
6.3 Exclusions : The restrictions shall not apply to Confidential Information that:
(a) is publicly available or in the public domain at the time disclosed;
(b) is or becomes publicly available or enters the public domain through no fault of the recipient;
(c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto;
(d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure;
(e) is independently developed by the recipient; or
(f) is approved for release or disclosure by the disclosing Party without restriction.
6.4 Compliance with law permitted : Each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, or to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
7 WARRANTIES
7.1 Supplier Warranties : The Supplier warrants that:
(a) the Cloud Services will not contain any computer code that:
– has been deliberately designed by or on behalf of the Supplier to disrupt, disable, harm, modify, delete or otherwise impede in any manner, the operation of the Cloud Services or any of the Customer’s software, firmware, hardware, computer systems or networks (“the Customer’s Systems”), such devices sometimes referred to as “viruses” or “worms”;
– has been deliberately designed by or on behalf of the Supplier to access the Customer’s Systems to cause disablement or impairment (sometimes referred to as
“trap doors”, “access codes” or “back door” devices).
(b) any Cloud Services delivered to the Customer will have been virus checked by the Supplier prior to the provision of the same to the Customer in accordance with the Supplier’s then current standard virus checking procedures;
(c) the Cloud Services, when properly used, will perform substantially in accordance with the Documentation.
7.2 Customer Warranties : The Customer warrants that:
(a) it has the full right and power to enter into and perform this Agreement without the consent of, or any notice to, any third party.
8 IPR INDEMNITY
8.1 Indemnity : Supplier shall indemnify, defend, and hold Customer harmless from any action brought by a third-party against Customer to the extent that it is proximately caused by an allegation that the Cloud Services provided under this Agreement have infringed an intellectual property right or trade secret registered in the country of Supplier´s residence, and pay those damages or costs related to the settlement of such action or finally awarded against Customer in such action, including but not limited to reasonable attorneys’ fees, provided that Customer:
(a) promptly notifies Supplier of any such action; and
(b) gives Supplier full authority, information, and assistance to defend such claim; and
(c) gives Supplier sole control of the defense of such claim and all negotiations for the compromise or settlement of such claim.
8.2 Exclusions : Supplier shall have no liability under this Agreement with respect to any claim based upon:
(a) Cloud Services that have been modified by anyone other than Supplier;
(b) use of other than the then-current release of any fat clients or plug-ins provided to Customer for the purposes of accessing and using the Cloud Services, if the infringement could have been avoided by use of the then-current release and such current release has been made available to Customer;
(c) use of the Cloud Services in conjunction with Customer Data where use with such data gave rise to the infringement claim;
(d) use of the Cloud Services with other software or hardware, where use with such other software or hardware gave rise to the infringement claim;
(e) use of any Cloud Services in a manner inconsistent with its Documentation;
(f) open source software included within the Cloud Services; and/or
(g) use of any Cloud Services which use breaches this Agreement.
8.3 Remedy by Supplier : If Supplier determines that the Cloud Services are or are likely to be the subject of a claim of infringement, Supplier shall have the right:
(a) to replace the Cloud Services with non-infringing service that have substantially equivalent functionality;
(b) to modify the Cloud Services so as to cause the Cloud Services to be free of infringement;
(c) to procure, at no additional cost to Customer, the right to continue to use the Cloud Services; or
(d) to terminate the licence to use the Cloud Services and refund to Customer the pro-rated portion of the applicable prepaid but unused Cloud Services Fees).
8.4 Exclusive remedy :
THE PROVISIONS OF THIS CLAUSE STATE THE EXCLUSIVE LIABILITY
OF THE SUPPLIER AND THE EXCLUSIVE REMEDY OF THE CUSTOMER WITH RESPECT
TO ANY CLAIM OF INTELLECTUAL PROPERTY OR TRADE SECRET MISAPPROPRIATION
OR INFRINGEMENT BY THE CLOUD SERVICES, ANY PART THEREOF, AND ANY MATERIAL
OR SERVICES PROVIDED HEREUNDER, AND ARE IN LIEU OF ALL OTHER REMEDIES,
LIABILITIES, AND OBLIGATIONS.
8.5 Customer Indemnity : Customer shall indemnify, defend, and hold the Supplier harmless from any action brought by a third-party against the Supplier to the extent that it is proximately caused by an allegation that:
(a) any access to or use of Customer Data with the Cloud Services; or
(b) modification or use of the Cloud Services with the Customer’s applications; have infringed any intellectual property right or trade secret and pay those damages or costs related to the settlement of such action or finally awarded against the Supplier in such action, including but not limited to reasonable attorneys’ fees, provided that the Supplier:
– promptly notifies Customer of any such action; and
– gives Customer full authority, information, and assistance to defend such claim; and
– gives Customer sole control of the defense of such claim and all negotiations for the compromise or settlement of such claim. Customer shall have the right to settle or compromise any such claim provided that such settlement or compromise does not impose any costs or material disadvantage to Supplier without Supplier’s prior
written consent.
9 LIMITATION OF LIABILITY
9.1 Limitation of Liability :
IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL LOSS OR DAMAGES IN CONNECTION WITH ANY CLAIM THAT ARISES FROM OR RELATES IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION ALLEGED, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY OF ANY KIND. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS CLAUSE ARE INDEPENDENT OF EACH EXCLUSIVE OR LIMITED REMEDY SET FORTH IN THIS AGREEMENT. EXCEPT IN THE EVENT OF DEATH OR PERSONAL INJURY OF A PERSON NEGLIGENTLY CAUSED BY SUPPLIER, IN NO EVENT SHALL THE LIABILITY OF SUPPLIER UNDER THIS AGREEMENT EXCEED TWICE THE AMOUNT OF THE CLOUD SERVICES FEES PAID TO SUPPLIER BY CUSTOMER HEREUNDER FOR THE CLOUD SERVICES TO WHICH CUSTOMER’S CLAIM RELATES. CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS SET OUT IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SUPPLIER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
10 BREACH
10.1 Breach : Either Party may terminate this Agreement with immediate effect by written notice, if the other Party commits a material breach of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) days of receipt of a notice of default from the other party, specifying the breach and requiring its remedy. Notwithstanding the foregoing, in the case of breach resulting from non-payment of amounts due hereunder, the party in breach
will have ten (10) days after receiving written notice to make full payment.
11 GENERAL
11.1 Customer Use Case Report : Supplier will create an internal customer use case report in connection with the use by the Customer of the Cloud Services. Any use of this report other than for internal purposes of Supplier requires a separate written approval by Customer. Customer agrees to provide input to this report e.g. by being available for a 30 minute telephone interview.
11.2 Export Control : Customer may not download, get and/or provide access to, or otherwise export or re-export any underlying software or service, technology or other information from the Cloud Services except as stated explicitly in this Agreement.