Terms and Conditions for Software Usage Celum – SAP Commerce Cloud Connector Software

Last updated: 14.02.2020

 

  • 1 Definitions

(1) “Software Product” is the software product that connects Celum software product with SAP Commerce Cloud software product, which may be further adapted by means of tailored developments, by any and all updates and upgrades.

(2) “JConnector” is the legal entity that owns the Intellectual Property (IP) rights of this Software Product.

(3) “Celum” is the exclusive reseller for the Software Product, as agreed in the contract signed with JConnector.

(4) “Customer” is any direct or indirect contracting party or buyer of Software Product.

(5) “License Agreement” is the agreement that was concluded between Celum and Customer for the Software Product to be used on the basis of these Terms & Conditions.

(6) “Source Code” is a code artefacts written in a programming language used to build the Software Product.

(7) “Documentation” means the descriptions, instructions, and other documents concerning the Software Product.

(8) “Update” is a refined version of the Software Product, which fixes bugs or circumvents them and possibly also contains minor service or feature enhancements.

(9) “Upgrade” is a refined version of the Software Product containing essential modifications, service or feature enhancements.

 

  • 2 Application of the Terms & Conditions, Contract Conclusion

(1) The license of the Software Product to the Customer and its use by the Customer are subject to these Terms & Conditions. JConnector does not acknowledge any General Terms and Conditions of the Customer or any third party which are contrary to these Terms, deviate from statutory provisions, or amend these Terms, unless JConnector has explicitly consented to their applicability.

(2) These Terms & Conditions only apply with respect legal entities governed by public law and special trusts under public law.

(3) At Celum’s specific request, JConnector may provide Celum with a specific License Agreement.

 

  • 3 Service Obligations of JConnector

(1) Subject matter of the License Agreement is the license of the Software Product. Besides the services explicitly defined in the License Agreement and these Terms & Conditions, the parties did not agree to any additional services. At the Customers requests, the parties can negotiate such additional services, e.g. further customizations or further developments of the Software Product. Such services are to set out in a separate agreement between the parties.

(2) The Software Product is provided to the Customer together with the Documentation, thereby enabling the Customer to use and apply the Software Product within the scope of the granted rights of use.

(3) The Customer’s obligations to cooperate described in Section 4 are not subject matter of JConnector’s service obligations. Therefore, JConnector is not responsible for the Internet, hardware, software, technical and other license requirements which have to be met by the Customer.

(4) Any statements and explanations by JConnector concerning the Software Product which are made in advertising materials, on Websites and in the Documentation are solely a description of the design and construction and shall not be deemed to be a guarantee or contractual warranty of any feature.

(5) JConnector reasonably strives for the best-of-class functional and non-functional parameters of the Software Product to be achieved; however, such parameters are not in the responsibility of JConnector, but rather depend on the actual usage, implementation and extension of the Software Product within the various Customer environments.

(6) JConnector reserves its right to change the Software Product in order to adapt it to the state of the art, or to optimize the Software Product, in particular to improve the user-friendliness.

 

  • 4 Conditions of Use, Obligations of the Customer

(1) The Customer is obliged to prevent unauthorized use by third parties; furthermore, the Customer must ensure that the such third parties also comply with this obligation.

(2) The Customer undertakes to ensure the compliance with the requirements set forth. In case the Customer fails to fulfill this obligation for reasons the Customer is accountable for, JConnector is not responsible for any and all functional limitations resulting therefrom.

(3) As an obligation to cooperate of the Customer, the Customer undertakes to create the conditions for the exchange of data with the Software Product by having the suitable terminal devices at its disposition. The details of the necessary Customer obligations are defined in the technical specification, as amended from time to time. The Customer undertakes to hold its communication facilities ready in a functional condition and to maintain the operability in compliance with the applicable state of the art during the term of this Agreement.

(4) It lies in the responsibility of the Customer to procure any required authorizations and licenses for the operation of its hard- and software. This applies to any and all software licenses which are necessary for the intended use of the Software Product.

(5) The Customer’s obligations to cooperate described above are mandatory prerequisites for the provision of the services by JConnector.

(6) The Customer shall bear its own costs, which incur for the use of the Software Product, such as for its own Internet access or for the appropriate hard- and software.

(7) The Customer shall notify JConnector without delay as soon as it becomes aware of a misuse. In case of misuse, JConnector is entitled to request to stop the usage of the Software Product until the circumstances have been cleared up and the misuse has been ended.

(8) The Customer is responsible for the creation and the maintenance of the technical conditions for the access to the Software Product within its sphere of influence, in particular with regard to the used hardware and operating system software, the connection to the Internet and the latest browser software.

(9) In case of any further development of the Software Product, it is incumbent on the Customer to carry out the necessary adjustment measures of its IT infrastructure after having been accordingly informed by JConnector.

(10) The Customer shall take the necessary measures to safeguard its systems, in particular, to use the current security settings of the browser and the latest protective mechanisms to avert malware.

(12) The customer agrees not to misuse the JConnector services (“Services”) or help anyone else to do so. For example, you are forbidden to do any of the following in connection with the Services:

  • probe, scan, or test the vulnerability of any system;
  • breach or otherwise circumvent any security measures;
  • access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been granted usage to;
  • promote or advertise products or services other than your own without appropriate authorization;
  • misuse of the JConnector for illegal scope
  • sell further the Services unless specifically authorized to do so;
  • publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence;
  • advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual preference, disability, or impairment;
  • violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory, or misleading; or
  • violate the privacy or infringe the rights of others.

 

  • 5 Granting of Rights

(1) JConnector grants the non-exclusive, non-assignable, and non-sublicensable right to use the Software, including any and all Updates and Upgrades which JConnector might make available to the Customer; this right shall be restricted in terms of time to the duration of the License Agreement.

(2) Any and all rights of the Customer to the Software Product and its components exceeding the rights set forth in Section 5 (1) shall be excluded, in particular, but not limited to, the right to decompile / disassembly, to a modification of the Software Product or the Source Codes belonging to the Software Product, to a public reproduction, to make it accessible to third parties or to grant them any rights of use (sale, lease or granting of licenses of all kind), even for the purpose of debugging.

(3) As an exception to the restrictions set forth in Section 5 (2), the Customer is entitled to decompile the Software Product, insofar as this is necessary to create the interoperability of the Software Product with other programs. However, this is subject to the condition that JConnector failed to provide the Customer with the respective necessary information upon request within an appropriate period of time.

(4) The rights under the preceding Section 5 (1) are only granted once to the Customer.

(5) The Customer is not entitled to process, edit, modify, pass, exploit, disseminate, publish or use the Software Product in any other way, in particular to pass it to third parties, unless this is explicitly permitted in these Terms & Conditions, or JConnector and the Customer have agreed to this in a separate contract.

(6) Rights of use which may be exercised on grounds of statutory licenses.

(7) JConnector is entitled to take technical measures to prevent any use exceeding the admitted scope. The Customer may not use any appliances, products or other means serving the purpose to circumvent or overcome the technical measures taken by JConnector. In case of any misuse, JConnector is entitled to immediately request the stop of it’s usage.

 

  • 6 Scope of the Admissible Use, Obligations of the Customer

(1) The admissible use includes the loading of the Software Product into the main memory and the running of it, as well as the intended use by the Customer. The nature and scope of the use is set forth in all other respects. In particular, the following subsections of this section 6 shall apply:

(2) The Customer may only copy the Software Product, insofar as the respective installation and copying is necessary for the use of the Software Product.

(3) The Customer undertakes to prevent any unauthorized access by third parties to the Software Product and the documentation by taking appropriate precautionary measures. The Customer’s employees must be insistently advised of the necessary compliance with the preceding contractual provisions and the provisions of the Copyright Act.

(4) Unless otherwise explicitly agreed upon, it is not permitted to the Customer to pass the licensed services to third parties for their exclusive use or for a commercial use, to transmit it to third parties, or to present itself as a provider by using the services licensed by JConnector.

(5) The Customer shall be liable for any and all damages and payments resulting from the use of the services of JConnector by third parties, insofar as the use can be attributed to the Customer.

 

  • 7 Royalties, Fee for Additional Services (Support, Trainings, Customizing)

(1) The remuneration to be paid by the Customer for the use of the Software Product, the support, and the provision of the customizing solutions is set forth in the License Agreement.

(2) For the customizing services ordered for the Software Product by the Customer and the respective rights granted for this purpose in this Agreement, there will be a separate agreement with the Customer.

(3) JConnector is entitled to increase the license fees for the use of the Software Product. In case of such an increase, the Customer is entitled to terminate the License Agreement pursuant to Section 14 (3) (special termination right).

 

  • 8 Maintenance and Support

(1) JConnector provides maintenance and support services as set forth in the License Agreement. The royalty to be paid by the Customer only includes the scope of support services defined in the License Agreement. Any support services beyond this scope have to be paid separately by the Customer in conformity with the License Agreement.

(2) In addition to the support services agreed upon in the License Agreement, JConnector is not obliged to update the Software Product or to adapt it to changed market conditions or other conditions. These services are not included in the royalty payment and the support services and will be charged separately.

 

  • 9 Liability for Material Defects and From Defects of Title

(1) JConnector licenses to the Customer a Software Product, which is free from material defects and from defects in title, insofar as material defects occur within the first 12 months after the licensing of the Software Product. Errors, which only result in an insignificant reduction of the usability of the Software Product, remain out of consideration. In particular, impairments of use resulting from the sphere of the Customer or from the browser or the Internet access provider (such as hardware, operating error, faults in computer networks, data connection, Internet, force majeure or other reasons deriving from the area of risk of the Customer) shall not be deemed to be defects.

(2) JConnector will cure any occurring material defects and defects of title concerning the Software Product during the term of the License Agreement within an appropriate period of time. The warranty explicitly does not include updates of the Software, which result, for example, from any further development of supplier systems of other downstream systems of the Software Product. JConnector is not obliged to adapt the Software Product to changed operating conditions and technical and functional developments, such as modifications of the IT infrastructure, in particular changes of the hardware or the operating system, adaptation to the range of functions of competing products, or the creation of the compatibility with new data formats.

(3) Immediately after the receipt of the Software Product, the Customer shall examine it with regard to apparent defects and shall notify their existence without delay. In case of any and all defects which become apparent later on, the Customer shall notify after they have been discovered. For the purpose of the removal of defects, the Customer shall, immediately upon request, hand out any disclosable information which are necessary for the removal of defects.

(4) JConnector does not give any warranty that the licensed Software Product complies with the special requirements of the Customer. The same applies to the error states which result from operating errors by the Customer or by third-party hard or software or by other third-party impacts, for example by damages caused by imported malware.

 

  • 10 Liability for Damages and Reimbursement of Expenses

(1) Any and all claims for damages and reimbursement of expenses of the Customer (hereinafter “Claims For Damages“), irrespective of the legal grounds (breach of contractual obligations, contract, tortuous act, etc.) shall be excluded. This shall not apply to (i) Claims For Damages of the Customer based on loss of life, bodily harm, injury or illness caused by culpable conduct, (ii) Claims For Damages resulting from a intentional or grossly negligent breach of duty by JConnector.

(2) The restrictions regarding the exclusion and limitation of liability set forth in Subsection 1 shall also apply to the benefit of the statutory representatives and vicarious agents of JConnector, in case the Customer asserts any claims directly against them.

(3) The above regulations do not lead to a change of the burden of proof to the disadvantage of the Customer.

 

  • 11 Indemnity

(1) The Customer shall indemnify and hold harmless JConnector from any and all rights and claims which third parties or government authorities assert against JConnector on grounds of data or contents posted by the Customer, any infringement by the Customer, a breach of a duty imposed on the Customer in these Terms & Conditions or any breach of an applicable privacy policy by the Customer.

(2) Furthermore, the Customer shall bear any and all appropriate costs (including attorneys’ fees) which JConnector has to bear due to the fact that third parties introduce or take legal measures against JConnector, in or outside of court, on grounds of data or contents posted by the Customer, any infringement by the Customer, a breach of a duty imposed on the Customer in these Terms & Conditions, or any breach of an applicable privacy policy by the Customer.

(3) The obligations set forth in Sections 11.1 and 11.2 shall not apply, in case the Customer is not responsible for the infringement.

(4) Further claims and/or rights of JConnector shall remain unaffected hereof.

 

  • 12 Industrial Property Rights

(1) JConnector remains the owner of any and all rights to the Software Product, even if the Customer modifies the Software Product or connects it with its own programs or contents, or those of a third party. The Documentation provided to the Customer remains property of JConnector. The Customer is the owner of any and all results and contents the Customer generated in or with the Software Product.

(2) The computer programs, in particular the Software Product are, any manuals and Documentation and work provided as content are protected. Any third-party rights to the protected work remain unaffected.

(3) Trademarks, logos, other signs or protective notes, copyright notices, serial numbers and other identification characteristics may not be removed or modified, neither in the electronic format nor in printouts.

 

  • 13 Updates, Upgrades

JConnector will provide any and all possible (voluntary) Updates and Upgrades for the respective ordered Software Product as set forth in the License Agreement.

JConnector will provide any and all possible (voluntary) Updates and Upgrades during the term of this Agreement after they have been released, without the need for additional payment, and will grant the Customer the rights of use concerning the Software Product agreed upon in this Agreement.

 

  • 14 Term, Termination

(1) The Agreement can be terminated with a notice period of three (3) months, unless otherwise regulated in this License Agreement.

(2) Regardless of any other rights or claims, a party is entitled to terminate the Agreement without notice, in case

(a) the other party is in breach of one of its essential contractual obligations by culpable conduct and fails to entirely cure such breach die despite a written warning without delay, but at the latest within fourteen (14) days after the reminder, or

(b) the other party requested the opening of insolvency proceedings against its assets, the court decided to open such proceedings against the assets of the other party or dismisses the proceedings for lack of assets.

(3) Upon termination of the Agreement, JConnector is entitled to immediately block the access to the Software Product and/or to discontinue the usage.

 

  • 15 References

JConnector is entitled to name the Customer as a reference customer of JConnector on its Website, in its presentations and offers and to make such reference available.

 

  • 16 Data Privacy

With regard to the protection of personal data, JConnector and the Customer undertake to comply with the provisions of the applicable laws, as amended from time to time.

 

  • 17 Use of External Tools & Services

JConnector may use external tools and APIs for the Software Product. Celum extension APIs and SAP Commerce Cloud extension APIs are currently used by the Software Product.

JConnector may use external service data for the Software Product. No such data is currently used by the Software Product.

 

  • 18 Nondisclosure

(1) Any and all information concerning the Software Product shared within the scope of the present Agreement, be it orally, in writing or in pictorial form, shall be deemed to be confidential, unless they were explicitly labeled as non-confidential at the time of disclosure and/or in case they are obviously non-confidential due to their nature, such as:

(a) information which was already known to the Customer without any nondisclosure obligation prior to the first communication by JConnector,

(b) information which was already accessible to the public at the time of disclosure or which was made accessible to the public later on without any breach of nondisclosure obligations incumbent on the Customer or third parties,

(c) information which the Customer received from a third party in good faith, who, for his/her/its part, is not subject to any non-disclosure obligations vis-à-vis JConnector with regard to such information,

(d) information which must be disclosed under the applicable law or by a court order.

(2) The Customer shall only use confidential information of JConnector to achieve the purpose of the contract and shall protect them with diligent care. The disclosure of confidential information to third parties requires the prior written consent of JConnector.

 

  • 19 Prescription

Any and all claims of the Customer based on material defects or defects in title – except for claims for damages – become statute-barred within one year as of the licensing of the Software Product by JConnector.

 

  • 20 Changes of these Terms & Conditions

JConnector can change these Terms & Conditions in accordance with the sentences below.

(1) JConnector will inform Celum about the change of the Terms & Conditions by email or in writing;

(2) JConnector will include in the Terms & Conditions online page information on the date in which the latest modifications were made the Terms & Conditions;

  • 21 Governing Law, Place of Venue, Miscellaneous

(1) The laws EU/Romania shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UN sales law / CISG).

(2) Place of fulfillment is the registered office of JConnector. Exclusive place of venue for any and all disputes arising under or in connection with the Agreement with merchants, public legal entities or special funds under public law shall be Cluj-Napoca, Romania.

(3) Should any provision of the Agreement concluded with the Customer be or become invalid, either partially or entirely, the validity of the other provisions shall remain unaffected hereof.

(4) Any modifications and amendments of the Agreement concluded with the Customer require the written form. This shall also apply to a waiver of this written form requirement. Any modifications and amendments must be explicitly identified as such and must be signed by authorized representatives of the parties.