CloudDNA GmbH Master Subscription Agreement for Cloud Services
(sapappcenter)

This agreement governs the acquisition and use of CloudDNA Cloud services (further named as ‘our Services’).

This agreement will also govern free trials if applicable.

By accepting this agreement, you agree to the terms and conditions defined in this agreement. You accept the agreement either by clicking a box indicating your acceptance or by submitting an order form that references this agreement. All deviations to this agreement need to be explicitly stated and agreed upon in written form.

If you sign this agreement on behalf of a company or a legal entity, you represent that you have the authority to bind such entity to these terms and conditions. If you do not have such authority or if you do not agree with these terms and conditions, you must not accept this agreement and may not use our services.

This agreement was last updated on March 30th, 2020. It is effective between you and CloudDNA GmbH as of the date of you accepting this agreement.

Definition of terms

“Affiliate” means with respect to a Party, any company controlling, controlled by or under common control with a Party where “control” means ownership, directly or indirectly, in an entity of more than fifty percent of the shares entitled to vote.

“Agreement” means any agreement between us and you relating to the present Master Subscription Agreement.

“Authorized user” means persons at your company, your Affiliates or Business Partners who are authorized by you to use the service.

“Business Partner” means a natural or juridical person that requires access to a Cloud service in connection with yours and your Affiliates’ internal business operations, such as your customers, distributors, service providers and/or suppliers.

“Confidential Information” means all information shared under or with the view of concluding this Agreement.

“Consulting services” means other related services, in particular, implementation, configuration, or training services, but not support services.

“Documentation” means our then-current technical and functional documentation for the service which is made available to you with the service, including, but not limited to, configuration workbooks or release notes, as applicable, in English language.

“Named user” means persons at your company, your Affiliates or Business Partners who are authorized by you to use the service.

“Public Trial” means shared environment through a public url.

“Private Trial” means trial environment with custom login and more customization possibilities.

“Service” or “Cloud Service” means the on demand solution provided either by us or by a relevant 3rd party provider and operated by us via a direct deployment or by you via indirect deployment as agreed in the Order Form and accessible by you via the internet, which permits you and your authorized users to save, process, and use your data by accessing the on demand solution.

“System Availability” means the percentage of total time during which the production version of the service is available to you during a calendar month. Platform means SAP HANA Cloud Platform.

“Usage Metric” means the usage parameters for determining the permitted access and use and calculating the applicable fees due for a cloud service as set forth in the Order Form.

“Direct Deployment” means the cloud service is operated by us.

“Indirect Deployment” means the cloud service is operated by you.

“Deployment costs” means additional costs occurring by deployment

“We”, “us” means CloudDNA GmbH, Obere Hauptstrasse 2 in 7422 Riedlingsdorf, Austria.

“Your Data” means any content, materials, data and information that you or your authorized users enter into the cloud service, including customer-specific data that you or your authorized users have derived from your use of the cloud service (e. g. customer-specific reports).

Free Trial

If you register for a free trial of our services or products, we will provide them to you on a trial basis free of charge. The trial ends at the end of the free trial period for which you registered to use the applicable services, or the start date of any purchased service subscriptions ordered by you for such services as stated in the Order Form, whichever occurs earlier.

Additional trial terms and conditions may appear on the trial registration web page. Upon acceptance, any such additional terms and conditions are incorporated into this agreement by reference and are legally binding.

Any data you enter into our services, any configuration and any customizations made to our services will be deleted at the end of the trial unless you purchase a subscription to the same services. Export Data Option is not available for Trial Environments.

During the free trial, the services are provided “as-is” without any warranty.

We provide no support for trial services.  We do not provide any particular service level. We may cancel providing access to such free-of-charge service at any time.

Right of use

During the agreed term, we grant you the non-exclusive, non-transferable right to use and configure the service and permit its authorized users to remotely access and use the service in accordance with the purpose of the contract as agreed on in the order form only to run your internal business operations.

The right of use is limited to the service and the scope expressly agreed by the Parties in writing in the respective Order Form, in particular the number of authorized users and other metrics of use.

Authorized user access credentials issued to access and use the cloud service may not be shared or used by more than one individual at a time. An authorized user’s access right may be transferred from one individual to another if the original authorized user is removed from the service, no longer requires, or is no longer permitted access to or use of the service.

You may also permit your affiliates and business partners to use the service to the extent contractually agreed. You are responsible for the acts and omissions of your authorized users, affiliates, and business partners and those of these third parties as for your own acts and omissions and shall oblige them to adhere to the contractual provisions for the use of the service. You are otherwise not allowed to sublicense, license, sell, lease, rent, or otherwise make any service available to third parties.

You may only use the service as defined in the scope of the Agreement. When using the service, you explicitly shall not:

1. infringe any intellectual property rights of third parties;
2. access or use the service for the purpose of building a competitive product or service or copying its features or user interface;

• permit access to a cloud service by a direct competitor of ours;

1. copy, translate, disassemble, decompile, reverse engineer, or otherwise modify, in full or in part, or make any derivative works of the service or the documentation (except to the extent permitted by mandatory law); however, the documentation may be copied to the extent necessary for internal purposes
2. use the service in any way that breaches applicable law (for example, through the illicit disclosure or provision of information and data);
3. interfere with or disrupt or interrupt operation of the software or systems used to host the service, or other devices or networks connected with the service;

• use the service in the operation of a service bureau (BPO), outsourcing or time-sharing service;
• circumvent or disclose the user authentication or security of a service or any host, network, or account related thereto;

1. access service components other than those expressly agreed in the Order Form, even where technically possible.

The Service might contain links to external websites and information provided on such external websites by third-party service providers. We only provide technical access to the content of integrated websites. The content of such websites is the sole responsibility of these third parties.

Our obligations

We shall provide the service agreed in the Order Form. We will use appropriate security technologies (such as encryption, password protection, and firewall protection) in providing the service in accordance with the stipulation within the Documentation. The quality and functionality of the agreed performance that we are obliged to provide is conclusively agreed in the Order Form and the documents referred to therein. We are not obliged to perform additional services or provide additional service features.

The features of the service and support may be enhanced, changed and adapted to reflect technical advances („continuous improvement”) by us. We shall provide information about continuous improvements within a reasonable notice period (as a rule, two (2) months before the change is scheduled to take effect) by email, on our portal, through release notes, or within the service. In the event that a change may negatively affect your justified interests in a way that you can no longer reasonably be expected to adhere to the agreements in the Order Form, you can terminate the affected service in writing with a notice period of one (1) month before the announced change is scheduled to take effect.

We may provide through our regular updates optional new features for the service at our sole discretion. Note: consulting services required to implement/configure optional additional new features may be agreed separately for an additional fee.

Before the end of the agreement, you may access, extract, and export your data at any time. You are solely responsible for carrying out such an export. The export might be dependent on technical requirements being met, such as (i) the availability of self-service extraction tools compatible with the cloud service, if applicable (ii) the size of your instance or your cloud service, and (iii) the frequency and/or timing of the export and retrieval.

Your Responsibilites and Obligations

You will provide reasonable collaboration required in connection with the provision of the Service and the support and consulting services by us as per prior agreement between the Parties, including but not limited to the infrastructure and telecommunications equipment for service access free of charge. Any such collaboration should be previously communicated and agreed by the Parties.

You grant us the nonexclusive right to process your data according to the provisions of the applicable laws and regulations exclusively with the scope of performance of the obligations.

You shall ensure that your data are free from rights of third parties that could hinder the transfer, storing, processing, and accessibility of your data in the service within the scope of service provision by us to the extent such transfer, storing, processing and accessibility have been expressly agreed between the Parties in writing in advance. The use by us of your data for other purposes is only permitted if this – where relevant and applicable – is agreed.

You shall be responsible for entering your data into the service and you shall be responsible for the content of your data. You shall record, update, and edit your data in compliance with the relevant applicable law. You are solely responsible for determining the suitability of the service for your business processes and for complying with all applicable legal provisions regarding your data and your use of the service, excluding any technical or functional aspect therein which shall be under the responsibility of CloudDNA GmbH.

You shall maintain appropriate security standards for the use of the service by you and the authorized users.

You are aware that your collaborative duties are a necessary precondition for the correct performance of our obligations.

Remuneration, Payment, Taxes

You shall pay us the fees agreed in the Order Form without any deductions.

The duty to pay recurring fees shall start at the beginning of the subscription term. Payments are due fourteen (14) calendar days from the date of the invoice. Invoices may be issued on a yearly basis, in advance or in arrears as agreed upon in the Order Form.

The recurring fees agreed in the Order Form apply for the initial term agreed therein. The fees applicable for a renewal term correspond to the fees for the preceding initial or renewal term, unless we adjust at our discretion the fees with effect from the start of a renewal term by giving you a three (3) months’ written notice of the fee adjustment.

If you do not object to the fee change at least thirty (30) days prior to the expiration date of the preceding contractual term and thus reject a renewal at this increased fee, the changed fee shall be deemed to have been agreed if the service is renewed automatically for the renewal period. We will also include this information in the fee adjustment notice.

During the term of the Order Form, you may agree on an increase of units of a usage metric by executing a written addendum to the relevant Order Form (´Extension Order Form”). The term of each Extension Order Form shall be coterminous with the then-current term of the Order Form irrespective of the effective date of Extension Order Form and all fees shall be prorated accordingly. Upon renewal of the Order Form all such increases made by way of the Extension Order Form are considered to also be renewed.

You are responsible for monitoring your use of the service and shall provide us with written notice in advance of any actual use that goes beyond that contractually agreed, in particular a higher-than-agreed number of authorized users (or other defined usage metrics). In this case, you must sign an Extension Order Form that documents the additional use and additional fee. Such fees shall accrue from the date the excess use began. We are permitted to audit the usage of the service, in particular the number of your authorized users (and other usage metrics defined in the Order Form), in respect to its compliance with the agreement.

If you are still in default of payment after a reasonable extension period set by us has passed, we can deny full or partial access to the service temporarily until payment has been received.

All agreed fees are subject to statutory value-added tax.

Term, Termination

Each order form initially runs for the initial term defined therein („initial term“). At the end of the initial term, it is automatically extended by one (1) year (each renewal being a „renewal term”) unless the Order Form is terminated in writing by one of the parties to the other with a notice period of three (3) months to the end of the initial term or renewal term. Termination of individual order forms shall leave other order forms unaffected.

Ordinary (partial) termination of the Order Form is excluded during the initial term or any renewal term; extraordinary termination rights and the right to termination for just cause remain unaffected. Notice of termination must be given in written form.

We reserve the right to terminate for just cause in particular where you are repeatedly in breach of major contractual obligations, such as in particular prompt payment of fees and use of the service in conformity with the agreement. In the event of termination by you in accordance with this section, you shall be entitled to a pro-rata refund of prepaid fees for the period of time of termination to the end of the original term for the relevant service.

Notwithstanding our right to terminate, we can temporarily suspend your access (in particular user names and passwords) to the service to prevent damages, if it is sufficiently probable that the continued use of the service in breach of agreement by you, the authorized users, or a third party using your access data may result in harm to the service (including the security of the systems used to provide the service), other customers, or the rights of third parties in such a way that immediate action is required to avoid damages. If circumstances allow, you shall be informed in advance in writing.

At the end of the agreement, your access to the service shall cease.

Our Warranties

We warrant, for the term of the Order Form, that the Service meets the specifications defined in the documentation and the contractually permitted use by you does not infringe any third-party right. We will remedy any defects as to quality and defects in title in the service in accordance with this section.

If we have failed to remedy the defect at the end of an additional time period of a reasonable length set in writing by you, and the suitability of the service is consequently reduced to a more than just insignificant degree, you have the right of termination, which must be communicated in writing.

If the suitability of the service for use in accordance with the agreement is reduced to a more than just insignificant degree, you are entitled to reduce the remuneration by an appropriate amount. No-fault liability as provided in the Austrian Civil Code, Section 536a (1.1) Alt. for defects that existed at the time of agreement execution is excluded.

We shall remedy material defects in the service that are subject to acceptance by providing you with either a new service that is free of defects or by eliminating the defects. We may also rectify a defect by indicating to you an appropriate way to avoid the effect of the defect, unless this cannot be reasonably expected from you. In the event of defects in title, we shall elect to (i) procure for you the right to use the service in accordance with the agreement, or replace the service or change it such that the accusation of breach no longer stands, whereby your contractual use is not unreasonably impacted. You must give notice of every breach to us in writing without delay and with a detailed description of the reason.

Deployment and Support

Deployment Model

As a standard, we host our services on our platform (direct deployment model) and pro-actively provide initial setup, upgrades, release updates and hotfixes as part of the subscription. Alternatively, you can also choose to host our services on your own platform. In this case, you are solely responsible for the initial setup, upgrades, release updates and hotfixes at your own costs.

Deployment Service

This is an additional service offer to our customers who licensed the “indirect“ deployment or “onPremise” model of our services. It covers initial setup, upgrades, release updates and hotfixes. Deployment Service is to be licensed separately via an Order Form.

Support

We support the most current version of our products and services only.

Limitation of Liability

We are liable for willful intent, gross negligence, for the lack of a guaranteed quality or personal damages. Our liability for damages in case of an ordinary negligent breach of substantial contractual duties (e.g. the duty to carry out the services in conformity with the contract) is limited to 10 % of the net purchase value of the respective individual order. Our liability for an ordinary negligent breach of non-substantial contractual duties is excluded.

The liability for ordinary negligence is limited to the overall amount of 50,000.00 € within a calendar year. The liability for indirect, or consequential damages (e.g. based on loss of profits, loss of savings, loss of use or interruption of business) is limited to 25,000.00 €. When assessing the amount of damages, our economic conditions, the type, the scope and the period of the contractual relationship as well as your potential contributory negligence according to § 254 BGB have to be reasonably taken into account. In particular, damages, costs and expenses which should be borne by us have to be in proportion to the value of the services.

Confidentiality

Both parties undertake to treat as confidential all of the other party“s confidential information acquired before and in connection with the performance of the agreement and to use such confidential information only in connection with the performance of the agreement. Confidential information shall not be reproduced in any form except as required to accomplish the intent of the order form. Any reproduction of any confidential information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original.

With respect to the confidential information of the other, each party: (a) shall take all reasonable steps (defined below) to keep all confidential information strictly confidential; and (b) shall not disclose any confidential information of the other to any person other than its individuals whose access is necessary to enable it to perform the agreement.

As used herein „Reasonable Steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. On your side, this includes the careful safeguarding of the confidential information and the prevention of infringement.

The Section above shall not apply to any confidential information that: (a) is independently developed by the receiving party without reference to the disclosing party“s confidential information, or is lawfully received free of restriction from a third party having the right to furnish such confidential information; (b) has become generally available to the public without a contractual breach by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.

You shall treat as confidential the terms and conditions of our agreement, in particular the pricing contained therein. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other. However, we may use your name in customer listings (reference listings) or to analyze details from the agreement (e.g. to forecast demand), as well as – subject to mutual agreement – as part of our other marketing efforts.

The duty of confidentiality remains in effect beyond the term of the agreement.

Miscellaneous

Should there be any discrepancies between the Master Subscription Agreement and any other relating Agreement(s), the following order of relevance, unless explicitly specified otherwise, shall apply:

• Order Form before
• Other related Agreements and Exhibits before
• Subscription Agreement

Amendments and additions to the agreement and any contractually relevant declarations as well as declarations influencing the legal relationship, including but not limited to termination notices, reminders, or notices to set time limits, require written form. The foregoing provision also applies to any waiver of the written-form requirement. The written-form requirement can also be met by exchange of letters or (except in the case of termination notices) with an electronically transmitted signature (facsimile transmission, e-mail transmission with scanned signatures).

System notifications and information from us relating to the operation or support of the service can also be provided electronically in writing to the contact person named in the order form.

You shall not hand over the service or documentation to governmental authorities for licensing considerations or other official approval without our prior written consent, and shall not export the service or documentation to countries or to natural or legal persons for which export bans apply according to the relevant export laws. Furthermore, you are responsible for complying with all applicable legal provisions of the country in which your company is headquartered, and of other countries in respect of the use of the service or documentation by you and your authorized users. We hereby give express notice that, in accordance with the export control laws of various countries, in particular the laws of the US and the Federal Republic of Austriany, and as a result of trade sanctions and embargos applicable to us, we may be obliged to restrict, temporarily withdraw, or terminate your access to the service or documentation, and other materials.

Austrian law is applicable. The application of UN-Sales-Law (CISG) is excluded. If you are a merchant, a legal entity under public law, or a separate fund under public law, the sole place of jurisdiction for all differences arising out of or in connection with the agreement shall be Karlsruhe.

The statute of limitations for your claims based on a defect of a product is one year. This does not apply when Civil Code §§ 438 sec. 1 No. 2 (construction, goods for construction), 479 sec. 1 (recourse claims) or 634a sec. 1 No. 2 (construction defects) provide for longer periods for those claims. Claims arising from intentional acts or gross negligence from us or our vicarious agents, as well as injury to body or health, a guaranteed quality and claims based on the Product Liability Act shall be unaffected.

The statute of limitations for your claims, not due to a defect of a product, is one year. Claims arising from intentional acts, gross negligence, as well as injury to body or health shall be unaffected. No conditions that are conflicting with or amending the Order Form, notably your general terms and conditions, form part of the agreement, even where we have performed an agreement without expressly rejecting such conditions.

You are only entitled to a set-off if the counter claim is undisputed or legally established. This contractual exclusion of a set-off does not apply in respect to counterclaims on the basis of a defect, which is based on the very contractual relationship our claim is based on. You are only entitled to a right of retention in case that your counterclaim is based on the same contractual relationship.

Severability Clause

Should this agreement contain any loopholes, those legally effective rules shall be deemed to be agreed for filling those loopholes that the contractual parties would have agreed, in accordance with the economic objectives of the agreement and for the purpose of these general terms of delivery, had they known about those loopholes.