Software License and Service Agreement General Terms and Conditions

§ 1 Preamble

CROSS ALM is a consulting company with a focus on Application Lifecycle Management (ALM).
CROSS ALM has developed its own software product to extend SAP Solution Manager for the typical requirements of companies.
CLIENT would like to license the agreed Software for internal use on the basis of a rental model. The Software is to be operated by CLIENT itself on CLIENT’s own system environment. In addition, CROSS ALM grants a support service for the licensed Software.
The parties now agree on the following:

§ 2 Subject Matter of the Agreement

2.1 The subject matter of this Agreement is the temporary transfer of the Software described in Annex 1 (hereinafter referred to as “Software”) and the granting of corresponding rights of use by CROSS ALM to the CLIENT for internal company use.
2.2 The subject matter of this Agreement is furthermore the Maintenance and Support Service for the Software by CROSS ALM within the Term of this Agreement.

§ 3 Description of the Contractual Software

3.1 The software provided to the CLIENT and its functions are comprehensively defined in the Product Description in Annex 1.
3.2 The owed condition of the Software results conclusively from the Product Description.
3.3 The system requirements listed in Annex 1 are necessary for the operation of the Software. The information on the system requirements is not tailored to any specific CLIENT and only gives a rough indication of the necessary dimensioning of the hardware and software environment for the operation of the Software. The resources actually required depend essentially on the type and scope of the subsequent use of the Software by CLIENT.
3.4 The Software shall be made available to the CLIENT for download. Upon delivery, CLIENT shall be provided with a user manual in electronic form explaining the essential functions of the Software and its handling. The user manual shall also be considered as provided if it is publicly accessible via the internet.

§ 4 Granting of Rights of Use

4.1 CROSS ALM is and remains the sole owner of the exclusive rights of use to the Software and to the user manuals, documentation and other documents relating to the Software. CLIENT shall only be granted simple rights of use to the extent regulated in more detail below.
4.2 CROSS ALM grants CLIENT the simple, non-exclusive, non-transferable right to use the Software as follows for the duration of this Agreement:

4.2.1 CLIENT is permitted
to install and use the Software on a particular hardware. If the CLIENT changes the hardware, the CLIENT must delete the Software from the hardware previously used. The use of the Software within a network or other multi-station computer system is not permitted if this creates the possibility of simultaneous multiple use of the program.

4.2.2 CLIENT is furthermore entitled, within the scope of the regular backups to be made under its responsibility, to copy the Software or parts thereof in addition to the data to be backed up, insofar as this is technically necessary. The use of the reproductions made in this way is limited to the purpose of the backup and the reproductions must be marked as a backup.

4.2.3 CLIENT may only use the Software within the company. CLIENT is not permitted to allow third parties to use the Software.

4.3 In the event of use of the Software for other than the agreed hardware without the consent of CROSS ALM, CROSS ALM is entitled to invoice the amount incurred for the additional use on the basis of the Price List (Annex 3) in effect during the period of the additional use, unless the CLIENT proves a lower damage to CROSS ALM. Further claims of CROSS ALM remain unaffected.

4.4 CLIENT is prohibited from passing on the Software, including any user manuals, documentation and other documents, to third parties. Temporary provision of the Software (e.g. as Application Service Providing – ASP or Software as a Service – SaaS) for other companies is also not permitted without the prior written consent of CROSS ALM. Commercial leasing is strictly prohibited.

4.5 CLIENT is only authorised to make changes, extensions and other modifications to the Software within the meaning of Section 69c No. 2 UrhG (the German Copyright Act) to the extent that this is permitted by law. CLIENT shall only be entitled to correct errors in the Software itself or through third parties if and insofar as CROSS ALM is unwilling or unable to correct an error in the Software reported by CLIENT.

4.6 CLIENT is only entitled to decompile the Software within the limits of § 69e UrhG (German Copyright Act) and only if CROSS ALM has not provided the necessary data and/or information to establish interoperability with other hardware or software after a corresponding request with a reasonable deadline.

4.7 If CROSS ALM provides CLIENT with new Software versions, e.g. within the scope of further developments or patches, these shall also be subject to the provisions of this Agreement. This shall apply in particular to any transfer of a new edition of the Software (hereinafter “New Edition”) which replaces the Software as a whole or individual Software components (hereinafter collectively “Legacy Software”). If CROSS ALM provides CLIENT with a New Edition, the rights of use and other authorisations of CLIENT in respect of the replaced Legacy Software shall expire as soon as the New Edition is used productively by CLIENT for the first time.

§ 5 Return and Obligation to Delete

5.1 If this Agreement ends, CLIENT’s right to use the Software shall also end. Upon termination of this Agreement, CLIENT shall be obliged to return all original data carriers, if any, as well as all documentation, materials and other documents relating to the Software provided to CLIENT.

5.2 The proper return also includes the complete and final deletion of all copies that may exist at CLIENT. CLIENT shall confirm this deletion to CROSS ALM in writing.

5.3 CROSS ALM may in individual cases waive the return according to 5.1 and order the deletion of the Software as well as the destruction of the documentation. If CROSS ALM exercises this option, it must inform CLIENT of this in writing in good time. CLIENT shall confirm this deletion and destruction to CROSS ALM in writing.

5.4 In deviation from the above provisions, the following shall apply: CLIENT may retain possible copies of the Software or of parts of the Software in its backup copies and backups for as long as and to the extent that this is necessary for proper backup. The use of such copies is permitted solely for backup purposes.

§ 6 Software Maintenance and Support

6.1 Within the Term of this Agreement, CROSS ALM shall provide Maintenance and Support Services for the Software.

6.2 The scope of the Maintenance and Support Services owed shall be determined exclusively by the Service Provisions attached to this Agreement (Annex 2). Any Warranty claims of the CLIENT shall not be affected by the provisions of § 6.

6.3 Not included in the Maintenance and Support Service in any case:

6.3.1 individual changes and extensions of the Software;
6.3.2 Maintenance and Support Services for third-party software;
6.3.3 installation and implementation of the Software on the hardware environment of the CLIENT;
6.3.4 hardware or operating system changes;
6.3.5 instruction and training of the CLIENT’s employees in the operation and functions of the software, unless this has been expressly agreed.

6.4 The agreed Maintenance and Support Services are only provided for those main versions (major releases) of the Software which are in the phase of general availability. Major Releases are each identified by a new major version number. After the scheduled End of Life (EOL) of a Major Release, it will no longer be maintained by CROSS ALM.

6.5 The CLIENT is generally obligated to always install and use the latest version made available to him for the major release of the maintenance objects used by him, unless the installation or use of the corresponding version is unreasonable for the CLIENT in the individual case; this is particularly the case if the CLIENT would have to carry out a chargeable expansion or renewal of his hardware or software environment for this purpose or if significant previously existing functionalities of the maintenance objects have been omitted.

§ 7 Remuneration for the Use of the Software and General Terms of Remuneration

7.1 An annually Remuneration shall be agreed for the provision of the Software and the performance, provision or maintenance of the agreed Maintenance and Support Services as well as the granting of the rights of use. The Remuneration is based on the number of installed productive System of the software and is determined in detail by the Price List (Annex 3).

7.2 The Remuneration shall be due in advance for twelve months at the beginning of each contractual year.

7.3 The remuneration is understood to be a net amount, i.e. plus the statutory value added tax.

§ 8 Duties and Responsibilities of CLIENT

8.1 CLIENT shall be obliged to cooperate appropriately in the provision of the agreed services by CROSS ALM. In this respect, the special circumstances of software and IT services and projects must be taken into account, which, due to their regularly high complexity and CLIENT-related nature, make close and trusting cooperation between the Parties necessary. CLIENT’s cooperation is therefore an essential contractual obligation.

8.2 CLIENT shall create in good time all the prerequisites necessary for CROSS ALM to provide the service, which are agreed or lie within the CLIENT’s sphere of responsibility.

8.3 CLIENT’s obligations to cooperate include in particular (but are not limited to) the following obligations:

8.3.1 At the beginning of the contractual relationship, the CLIENT shall provide CROSS ALM with at least one named contact person and their contact details (at least e-mail address and telephone number). CROSS ALM is entitled to send all declarations, including notices and information concerning the services of CROSS ALM and the contractual relationship to these contact details. Upon receipt by the contact person, these declarations are deemed to have been received by the CLIENT. The CLIENT is obliged to inform CROSS ALM immediately of any change of contact person or change of contact details and to name an alternative contact person together with contact details to whom future declarations can be addressed.

8.3.2 CLIENT shall ensure that competent employees authorised to make decisions are available on the agreed dates to enable CROSS ALM to carry out the work, insofar as this is necessary.

8.3.3 CLIENT shall provide suitable premises and workplaces for CROSS ALM’s employees for work on site.

8.3.4 CLIENT shall provide CROSS ALM with the right and the possibility to use systems and data of CLIENT or third parties and to enable access to these in the network of CLIENT and by remote access, insofar as this is necessary for the performance of services by CROSS ALM and no important reason is opposed. To enable remote access, the CLIENT shall install software tools specified or provided by CROSS ALM, if necessary.

8.3.5 If internal CLIENT information, documents or other records are required for the provision of services, CLIENT shall make them available in a suitable file format.

8.3.6 CLIENT shall report malfunctions or defects in CROSS ALM’s deliveries or services to CROSS ALM by email, stating the information known to it and useful for their detection. The CLIENT shall, if possible, make a screen copy of error messages and/or the appearance of the defect and make it available to CROSS ALM.

8.3.7 CLIENT is obliged to regularly back up its data stock within its access with the care of a prudent businessperson. The data backups shall be stored in such a way that it is possible to restore the backed-up data at any time. Insofar as CLIENT does not expressly indicate otherwise in advance, CROSS ALM may assume that all data of CLIENT with which it may come into contact is backed up.

8.4 The following shall further apply with regard to the Software that is the subject matter of the Agreement:

8.4.1 The hardware and software environment required for the operation of the Software and corresponding to the system requirements shall be provided by CLIENT and updated if necessary.

8.4.2 CLIENT shall take reasonable precautions in the event that the Software fails to operate properly in whole or in part, e.g. by regularly checking the data processing results.

8.4.3 CLIENT shall inform CROSS ALM without delay in the event that a third party asserts against CLIENT an infringement of its rights or third-party rights by the Software and shall keep CROSS ALM continuously informed of the progress of the dispute. If a claim is made against CLIENT by the third party in court, CLIENT shall be obliged, at CROSS ALM’s request, to notify CROSS ALM of the dispute or – if the respective rules of procedure do not provide for a notice of dispute – to otherwise involve CROSS ALM in the conduct of the proceedings within the scope of what is procedurally possible.

8.5 Unless otherwise agreed, CLIENT shall provide the cooperation services to be provided by CLIENT free of charge.

8.6 If CLIENT fails to comply with one of its obligations to cooperate to a considerable extent and despite prior request by CROSS ALM with a reasonable deadline and if CROSS ALM is thereby prevented from providing its services under this Agreement, CROSS ALM shall be released from the performance under this Agreement to that extent. CLIENT’s obligation to pay remuneration to CROSS ALM shall not be affected by this.

§ 9 Warranty

9.1 CROSS ALM is obliged to remedy defects in the software provided. The rectification shall take place at CROSS ALM’s discretion by means of rectification or replacement delivery.

9.2 CLIENT’s right of termination due to non-granting of use in accordance with § 543 para. 2 sentence 1 no. 1 BGB (German Civil Code) is excluded, unless the production of the contractual use is to be regarded as having failed. The production of the contractual use shall be deemed to have failed at the earliest if CROSS ALM does not remedy a material defect within a period of four weeks from receipt of the notice of defect or provides a corresponding reasonable workaround and CLIENT has duly performed the cooperation services incumbent upon it in this connection. CLIENT is not entitled to terminate the Agreement due to insignificant defects.

§ 10 Limitation of Liability

10.1 CROSS ALM shall be liable in accordance with the statutory provisions for damage to CLIENT caused by intentional or grossly negligent conduct on the part of CROSS ALM or its vicarious agents (Erfüllungsgehilfen). The same shall apply to personal injury and damage under the (German) Product Liability Act.

10.2 In all other respects, CROSS ALM’s liability for claims for damages – irrespective of the legal grounds – is limited in accordance with the following provisions, insofar as nothing to the contrary arises from a guarantee assumed by CROSS ALM:

10.3 CROSS ALM shall only be liable for damages of CLIENT caused by slight or simple negligence insofar as they are based on the breach of essential contractual obligations (cardinal obligations). Cardinal obligations are such contractual obligations, the fulfilment of which make the proper execution of the contract possible in the first place and on the observance of which a contractual partner regularly relies and may rely. Insofar as CROSS ALM is liable hereunder for simple negligence, its liability shall be limited to the typically foreseeable damage. Any further liability of CROSS ALM for slight or simple negligence is excluded.

10.4 The provisions of the above paragraphs shall also apply accordingly to a limitation of CROSS ALM’s liability for compensation for futile expenses (§ 284 BGB, German Civil Code).

10.5 The strict liability of CROSS ALM as lessor (Vermieter), e.g. within the framework of the temporary provision of software, for defects present at the time of conclusion of the contract, is excluded.

10.6 The above limitations of liability shall also apply in favour of CROSS ALM’s vicarious agents (Erfüllungsgehilfen).

§ 11 Time-barring of Claims

11.1 The limitation period for CLIENT’s warranty claims against CROSS ALM based on purchase or work contracts due to material defects shall be one year from the statutory commencement of the limitation period; the same limitation period shall also apply to other claims of CLIENT against CROSS ALM, irrespective of their nature.

11.2 The above provision shall not apply to claims of CLIENT against CROSS ALM which are based on intent or gross negligence on the part of CROSS ALM, fraudulent concealment of a defect, personal injury or a guarantee granted by CROSS ALM (§ 444 BGB, German Civil Code) as well as in the case of claims under the (German) Product Liability Act. In these cases, the statutory limitation periods shall apply.

§ 12 Term and Termination

12.1 This Agreement shall commence upon signature by both Parties and shall have a fixed term of twelve (12) months from delivery of the Software to CLIENT.

12.2 The Agreement shall be automatically extended by a further 12 months in each case unless it is terminated by one of the Parties with a notice period of 3 months to the end of the respective term.

12.3 In the event that the Parties agreed on a trial month, the CLIENT may terminate the Agreement within a period of 5 working days to the end of the trial month without giving reasons.

12.4 In the event that extensions to the scope of use of the Software are agreed during an ongoing contract, the term and notice periods of the ongoing contract shall also apply to such extensions, subject to any agreement to the contrary.

12.5 The Agreement on the temporary provision of the Software and the provision of Maintenance and Support Services may only be terminated as a whole. Partial terminations are not permitted.

12.6 The right to extraordinary termination for good cause shall not be affected by the preceding provisions in § 1212.1.

12.7 Notices of termination must be made in written form, i.e. in the form of § 126 BGB (German Civil Code).

§ 13 Confidentiality and Data Protection

13.1 The Parties are obliged to treat all knowledge of confidential information and trade secrets of the respective other Party obtained within the framework of the contractual relationship and its fulfilment as confidential for an unlimited period of time, in particular also after termination of the cooperation, and to use it only for the purposes of the implementation of this Agreement.

13.2 The duty of confidentiality shall not apply to confidential information which (i) was already in the public domain at the time of disclosure or subsequently becomes in the public domain without any failure to comply with the foregoing being a contributing cause thereof, (ii) is expressly disclosed by a Party on a non-confidential basis, (iii) was already in the lawful possession of the other Party prior to disclosure, (iv) is subsequently disclosed to the receiving Party by a third party without breach of a confidentiality obligation or is independently developed by the receiving Party without use of the Confidential Information, (v) is required to be disclosed pursuant to a legal obligation, or (vi) is submitted as evidence to a court or governmental authority for the purpose of asserting or defending legal claims. The burden of proving the existence of any of the foregoing exceptions shall be on the party invoking the same.

13.3 The Parties undertake to comply with the relevant provisions of data protection law, in particular the GDPR, within the scope of the cooperation. If, in connection with its activities for CLIENT, CROSS ALM obtains access to or access to personal data for which CLIENT is the data controller within the meaning of Art. 4 No. 7 GDPR, the Parties shall conclude a corresponding order processing agreement in accordance with Art. 28 GDPR for this purpose.

§ 14 Written Form

No verbal ancillary agreements have been made to this Agreement. All amendments and supplements to this Agreement must be made in writing. The same applies to the cancellation of this written form requirement. Fax and email do not satisfy this written form requirement. Verbal ancillary agreements are invalid.

§ 15 General Terms and Conditions, Place of Jurisdiction, and Choice of Law

15.1 General terms and conditions of the CLIENT shall not apply.

15.2 The place of jurisdiction for all disputes arising from this contractual relationship is Berlin, Germany.

15.3 This Agreement shall be governed solely by the laws of the Federal Republic of Germany, excluding the provisions of private international law and excluding the provisions of the Vienna Convention (United Nations) on Contracts for the International Sale of Goods (CISG; UN Sales Convention).

§ 16 Salvatorian Clause

If one or several of the provisions herein is/are or become(s) ineffective, effectiveness of the remaining provisions shall not be affected. Instead of the ineffective provision, a provision is deemed agreed that comes closest, within legal limits, in place, time, extent, and scope to what was originally intended by the parties by the ineffective provisions. Loopholes in the contract will be filled based on what the parties would have agreed following a reasonable assessment of the prevailing conditions and legal provisions and taking into account the legitimate interests of the respective other party if they had known about the need for regulation of the issue. This also applies if the ineffectiveness of a provision is based on a measure of performance or time (period or due date); in such a case such legally admissible measure of performance or time (period or due date) shall be deemed agreed that comes as close as possible to the intended one.

§ 17 List of Annexes

Annex 1: Product Description
Annex 2: Service Provisions

| Annex 1 |
Cross Connector CC4
Product Description

Cross Connector CC4 Jira – FB / Jira – ChaRM

1. Introduction

SAP Solution Manager comprises a set of tools the supports completely the E2E process of the Application Lifecycle Management. Therefore, it is a very common task to adjust the processes according to the needs of each customer. However, a common issue in an SAP environment is problems regarding usability. Because the systems are not exactly user friendly, the ALM processes are continuously criticized, and external tools always come to discussions in order to improve such pain points.

Due to these scenarios, many clients, mainly motivated by the Project Managers, decide to keep track of their projects or organize their task out of SAP Solution Manager. For that, external tools, such as JIRA, are generally used to improve the overall quality of the project management. Different from SolMan, such tools can improve the User Experience and enable the project to be controlled by Agile Methodologies without adding intensive configuration effort.

Based on the topics mentioned before, the need for creating a Universal Cross ALM Rest-API in SAP Solution Manager can enable an improvement.

2. Functional Description

The Cross Connector synchronizes issue types from Any System to Transaction Types of Solution Manager.

The following features are available in this Tool:

Bi-directional issue creation and updates between JIRA (all issue types) and SAP Solution Managers (ITSM, ChaRM, Defects and Focused Build)
Connection to SAP Solution Manager Focused Build Process
Bi-directional flexible configuration for workflows and customfields
SAP API can also be used for multiple 3^rd party tools (may require license)

| Annex 2 |
Cross Connector CC4
Service Provisions

In addition to the warranty, Cross ALM provides a support with regard to an occurring error from Monday to Friday from 9:00 a.m. to 5:00 p.m. with the exception of national public holidays in Germany (“Service Time”).

maintenance services (delivery of updates and troubleshooting) shall in principle be carried out by remote data transmission. The Customer shall create the technical prerequisites required for this at its own expense. A remote connection shall be provided.

Maintenance services may only be requested by the Customer’s system administrator or his representative, and, unless otherwise agreed, exclusively by e-mail to the e-mail address provided by the Contractor for this purpose.

not included in the maintenance services are:

a) individual modifications and extensions of the software.

b) maintenance services for third-party software.

c) installation and implementation of the Software on the hardware environment of the Customer.

d) hardware or operating system changes; and

e) instruction and training of employees.

Cross ALM shall provide such services only upon conclusion of a separate agreement.

If, during the processing of an Incident, it turns out that the reported Incident was caused by circumstances for which the Customer is responsible, Cross ALM shall be entitled to charge the Customer for the time and effort required for the processing of the Incident and Issue Analysis.