Cost Alert Service

1. Applicability

• The GTC exclusively applies to the software purchase from KPS Transformation GmbH, Beta-Str. 10H 85774 Unterföhring/Munich, Germany or one of its subsidiaries (“KPS)”, by the Licensee, unless explicitly agreed otherwise.
• Inclusion of terms and conditions of the Licensee or third parties is excluded. In particular, the acceptance of deliveries as well as payment by the Licensee shall not make any Licensee’s terms and conditions applicable, regardless of whether or not KPS expressly objects them in a particular case.
• The software purchase and the GTC is directed exclusively to entrepreneurs within the meaning of § 14 para. 1 BGB (German Civil Code), i.e. Licensees who are acting in the exercise of their commercial or independent professional activity.

2. Objective of agreement

Subject matter of the agreement is the delivery and licensing of the agreed standard software (“Software”) in object code for an indefinite period. KPS may, but is not obliged to provide any additional materials, such as a user documentation.

3. Delivery of the Software

• KPS shall deliver to Licensee a machine-readable copy of the object code of the Software by making the Software available to Licensee for download. Upon transfer of the copy of the Software, the risk of transportation (particularly the risk of accidental loss or destruction) passes to Licensee.
• Licensee is responsible for installing the software. Licensee shall obtain at his expense and have installed any additional hardware or software which may be necessary for the installation and use of the Software.

4. Grant of rights

• Upon payment of the license fee, KPS shall grant the Licensee a perpetual, non-exclusive and subject to the exception of para. (5) non-transferable right to use the Software in accordance with the provisions of this GTC. This shall comprise – subject to any other stipulations of the parties – the permanent installation, loading and operation of the Software on an unlimited number of individual servers and/or individual cloud accounts of licensee and/or by an unlimited number of individual users of Licensee.
• The right to modify the Software is limited to the maintenance or reinstatement of the defect-free functionality of the Software.
• The right of use also comprises the right to draw backup copies for security purposes, as stated in § 69d para. 2 UrhG (German Copyright Act). These copies must be marked as such and to be exclusively used for this purpose.
• A decompilation, disassemblation, reverse engineering or any other kind of attempt to create the source code and/or the various stages of manufacture of the Software are forbidden unless required for the interoperability with an independently created computer program. In this case Licensee will request KPS for the pertinent interface information against payment of the incurred costs. § 69 lit. d and e UrhG (German Copyright Act) applies in all other aspects.
• KPS can take technical and other measures to protect the Software or materials. Where such security measures have been implemented, Licensee may not remove or circumvent these.
• Unless previously agreed in writing by KPS, Licensee may not sublicense or use the Software for commercial time-sharing, rental, lease, outsourcing or make it otherwise available to third parties for commercial purposes.
• Transfer of a copy of the Software to third parties is only admissible insofar allowed by § 69c no. 3 sentence 2 UrhG (German Copyright Act), thus if Licensee transfers his copies completely without retaining any back-up copies. In case of such transfer, Licensee must explicitly oblige the third party to comply with the grant of rights in accordance with this Sec. 4. and confirm the fulfilment of all requirements in writing to KPS.
• Licensee’s right to use the Software extinguishes without notice if Licensee breaches any material contractual obligation. In such a case, Licensee shall destroy all copies of the Software. Destruction must be confirmed in writing to KPS.

5. Licensee’s Obligations

• Licensee shall immediately verify whether the delivered installation copy is complete and convince himself of its regular operability. If the delivery proves to be incomplete or defective, Licensee will immediately notify KPS in writing by indicating defects or incomplete parts. If the obligation of verification and notification is not complied with, the software is accepted and deemed to be free of any defects.
• Licensee undertakes to prevent unauthorized access to Licensee’s copies of the Software by appropriate precautions, especially to protect it from unauthorized reproduction and/or use. All copies of the Software including any backup copies must be kept at a place safe from third party unauthorized access. Compliance with the GTC and the provisions of the German Copyright Act has to be stressed to Licensee’s staff.
• Copyright notes, serial numbers or any other program identification characteristics shall in no event be removed or modified.

6. License Fee

• Licensee shall pay to KPS an one-time license fee – the exact amount, due date and payment conditions are agreed separately – for granting the above rights of use.
• If Licensee is in default of payment, the statutory interest on late payment (currently nine (9) percentage points p.a. above applicable base rate applied by the European Central Bank) and the statutory late fees (currently forty (40) euros) shall be payable by Licensee on any outstanding sum; all without prejudice to any further statutory and contractual rights of KPS due to the default in payment.

7. Warranties

• KPS liability for defects of the Software shall be governed by the applicable laws and the terms of this clause 8. Nothing in this shall prejudice any rights and remedies of the Licensee in law relating to defects that KPS has fraudulently concealed.
• In the event of any defect, Licensee shall without undue delay report such defect to KPS in writing. Licensee shall use best efforts to support KPS in identifying the cause of the defect and make all contributions reasonably required to remedy the defect, in a timely manner and free of charge for KPS. In particular, this includes information to be provided by qualified staff members.
• At the discretion of KPS and depending on the nature of the defect, any defect will be remedied either by
  • removing the defect,
  • installing a new program release,
  • KPS showing possibilities to avoid the effects of the defect,
  • providing a workaround solution that does not unreasonably interfere with the runtime, use and response time of the Software, or
  • indemnifying the Licensee against royalties payable for the use of the relevant rights in relation to the IP right holders.
• An insignificant defect of the Software does not give rise to warranty rights.
• KPS shall defend, indemnify and hold harmless Licensee against all claims based on the infringement of third party rights that are asserted by third parties, unless to the extent KPS is not responsible for the asserted infringement and only provided that (i) KPS may take sole control of the defense against any such claim and all related settlement negotiations, (ii) Licensee provides the necessary information and authorizations, and (iii) Licensee does not acknowledge any claims of the third party. In all other respects, the liability of KPS for damages based on defects is additionally governed by the provisions of Sec. 8 below.
• KPS shall have no obligations under this clause to the extent the infringement claim arises as a result of (i) misuse of the Software or modifications of the Software by Licensee or (ii) the combination of the Software with any software, hardware or other technology not provided or authorized by KPS, or (iii) Licensee not timely (cooperating with the) updating/upgrading the Software, if the infringement claim could have been avoided by installing and using the current update or upgrade of the Software.
• Warranty claims become statute-barred twelve (12) months after delivery of the Software. This does not apply to defects fraudulently concealed and damages according to Sec. 8.1.
• Any claims for damages are subject to the limitations set forth under Sec. 8.

8. Limitation of Liability

• KPS shall be fully liable for damages that have been caused intentionally or as a result of gross negligence, where defects are concealed fraudulently, where representations and warranties are given with respect to quality, for claims under the German Product Liability Act as well as for personal injury.
• In the event of a breach by ordinary negligence of a material obligation or of a secondary obligation whose breach will put the achievement of the contractual purpose at risk, or whose fulfilment is essential for the due and proper fulfilment of the agreement, and on whose fulfilment the Licensee could reasonably rely (“material secondary obligation”), the liability of KPS shall be limited to losses characteristic for the type of contract and foreseeable at the time of the conclusion of the agreement. Furthermore, the amount of the liability is limited to the amount of the of the license fees paid under the agreement. KPS accepts no liability for any breach by ordinary negligence of secondary contractual obligations which are not material secondary obligations.
• KPS accepts liability for data recovery only to the extent that Licensee has made backup copies on a regular basis and appropriate to the risk and has ensured that the data may be reconstructed from these backup copies at a reasonable effort. Any further liability for data loss is excluded.
• Where the liability of KPS has been limited by the above terms, this also applies in favour of the KPS’ employees and vicarious agents engaged in the discharge of the duties of KPS.
• To the exception of claims based on tort, Licensee’s claims for damages for which the liability of KPS has been limited under this Sec. 8 become time-barred one year from the beginning of the statutory limitation period.

9. Confidentiality

• Both parties agree that the Software contains confidential information pertinent to KPS. The customer undertakes to protect from a disclosure to any third party his copies of the Software including any backup copies made, and all other information of KPS identified or marked as confidential and to which are made accessible to the Licensee within the context of this contractual relationship. This includes, in particular, all information made accessible which goes beyond the outward appearance of the Software and the mere list of its range of functions, as well as the methods and processes used by KPS.
• The obligation of confidentiality does not apply to confidential information that (i) is or becomes a part of the public domain through no act or omission of Licensee; (ii) was in the Licensee’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Licensee by a third party without restriction on disclosure; or (iv) is independently developed by the Licensee without use of or access or reference to the Discloser’s confidential information. Notwithstanding the foregoing, the Licensee may disclose the Discloser’s confidential information to the extent required by law or valid order of a court or other governmental authority; provided that Licensee first provides the Discloser with sufficient written notice to allow the Discloser to seek a protective order or other appropriate action to limit Licensee’s disclosure.

10. Governing Law, Place of Jurisdiction

• The agreement shall be governed by the law of the Federal Republic of Germany.
• The parties agree that the District Court I of Munich, Germany (Landgericht München I) shall have exclusive jurisdictions for all disputes and controversies arising from the agreement. The exclusivity does not apply with respect to interim injunctions or similar temporary relieves.

11. Miscellaneous

• Any oral collateral agreements have not been made. Amendments or additions to the agreement must be made in writing to be effective. This shall also apply to amendments of this written for requirement.
• Should any provision of the GTC be or become invalid, this shall not affect the validity of the remaining terms. The parties shall in such an event be obliged to cooperate in the creation of terms which achieve such legally valid result as comes closest commercially to that of the invalid provision. The above shall apply accordingly to the closing of any gaps in the GTC.

This data protection policy sets out how we, KPS Transformation GmbH, Beta-Straße 10 H, D-85774 Unterföhring (hereinafter referred to as “KPS”, “we” or “us”) – as the party responsible for data processing – collect, store and process information in connection with the licensing of our software products.

This data protection policy only applies to software products of KPS on which this data protection policy is published or from which reference is made to this data protection policy via a link.

1. Personal data

Personal data is all information concerning personal or material circumstances relating to an identified or identifiable person. This includes name, date of birth, e-mail address, postal address or telephone number of natural persons, for example. However, information of a general nature which cannot be used to determine your identity is not classified as personal data. This includes the number of users of a website, for example.

2. Party responsible within the scope of data protection law

The party responsible within the meaning of art. 4 para. 7 of the General Data Protection Regulation (GDPR) is:

KPS Transformation GmbH
Beta-Straße 10 H
D-85774 Unterföhrig
Germany

3. Contract details of the data protection officer

If you have any questions about data protection, please send an e-mail to our data protection team or contact them directly:

[email protected]

or

Data protection
KPS Transformation GmbH
Beta-Straße 10 H
D-85774 Unterföhring
Germany
T +49 (0)89 35631-0

4. The purpose of use of personal data and the legal basis

We process your personal data in connection with the licensing of our software products as follows:

(a) Use of websites

You may visit the KPS website in order to license our software products. For information about the processing of your personal data in connection with the use of our website please refer to our data protection statement for the use of our website, available at  https://kps.com/global/en/data-protection.html.

You may visit third-party websites (such as market places for the licensing of various software products) in order to license our software products. We are not primarily responsible for the data processing in connection with the use of these third-party websites. Please refer to the operator of the third-party website for information on the processing of your personal data in connection with your use of the respective third-party website. The operators of the third-party websites might transfer to us personal data of you which you provided them, e.g. when submitting an order form for the licensing of our software products on their websites. For example, this might be your name and your contact details such as address and e-mail address. We process your personal data in order to license you our software products directly or in order to get in contact with you regarding the licensing of our software products. The legal basis for the processing of your personal data is the performance of a contract or the performance of steps prior to entering into a contract, art. 6 para. 1 let. b GDPR.

(b) Management of our business relationship

We may process your personal data, in particular your name and contact details you provided, to manage, execute and terminate a contractual relationship with you. Prior to a contract – during the contract initiation phase – personal data can be processed to prepare bids or purchase orders or to fulfill other requests that relate to contract conclusion. The legal basis for the processing of your personal data is the performance of a contract or the performance of steps prior to entering into a contract, art. 6 para. 1 let. b GDPR.

We may also process your personal data, in particular your name and contact details you provided, insofar this is necessary to fulfill our legal obligation, e.g. with regard to accounting and taxes. The legal basis for the processing of your personal data is the fulfilment of our legal obligations (art. 6 para. 1 let. c GDPR).

(c) Contacting us

If you wish to contact us, e.g. by using a contact form or email, the data you provide when doing so will be used to process your request and to get in contact with you. For example, this might be your name and your contact details such as e-mail address and information about your request. Providing that data might be necessary to handle and answer your request; without those data, we might cannot answer your request completely or at all.

The legal basis for the processing of your personal data is the fulfilment of our contractual obligations (art. 6 para. 1 let. b GDPR) as well as safeguarding our legitimate interests, which include, but are not limited to, contacting you and communicating with you about any concerns you have contacted us about (art. 6 para. 1 let. f GDPR).

(d) Use of our software products

We only process your personal data in connection with the use of our software products, if any, in order to provide you the error-free use of our software products as intended by you. The legal basis for the processing of your personal data is the performance of a contract, art. 6 para. 1 let. b GDPR.

(aa) KPS BTP Cost Alerting Service

KPS does not process any of your personal data during your use of our software product “KPS BTP Cost Alerting Service” (e.g. e-mail addresses you enter for receiving a cost alert).Our KPS BTP Cost Alerting Service is a nodeJS application which is provided as a ZIP-file and installed on your SAP Business Technology Platform Cloud-Account and therefore not hosted by us.

(bb) Other KPS software products

For more information about the data processing in connection with your use of any other KPS software products, please contact us under the contact details provided in section 2 or 3 above.

5. Transfer of personal data

KP S will not pass your personal data onto third parties or distribute it in any other way unless required for the performance of our services (legal basis for processing: performance of a contract or performance of steps prior to entering into a contract, art. 6 para. 1 let. b GDPR) or unless the transfer of data is permitted on the basis of applicable legal provisions (legal basis of processing: performance of legal obligations, art. 6 para. 1 let. c GDPR).

KPS is entitled to outsource the processing of your personal data to external service providers fully or partially, within the scope of the provisions of data protection law, which work for KPS as processors pursuant to art. 4 no. 8 GDPR. External service providers might assist us, for example, with the technical operation and support of our servers, data management, the provision and performance of services and technical analysis. The service providers engaged by KPS only process personal data according to our instructions. KPS remains responsible for the protection of your data which we protect through rigorous contractual provisions, technical and organizational measures and additional controls.

6. Duration of storage

We will only store your personal data for as long as we need it to achieve the purposes for which this data was collected or – if legal retention periods extending beyond that exist (e.g. in the commercial code or in the tax code) – for the duration of the retention period specified by law. Your personal data is then deleted by us. Your data may only be stored beyond that in a few exceptional cases, for example, if storage is required in relation to the exercising and protection of legal claims in favor of KPS.

7. No automated decision-making

We do process use your personal data for automated decision making or profiling (art. 22 GDPR)

8. Your data protection rights

Under the applicable data protection law you have the following rights in accordance with the relevant legal provisions:

• Right to information, correction, deletion and restriction: You have the right to request information about your personal data stored by us at any time. If we process or use your personal data, we endeavor to ensure through appropriate measures that your personal data is correct and up-to-date for the purposes for which it was recorded. If your personal data is incorrect or incomplete, you may request its correction. You also have the right to request the deletion or restriction of processing of your personal data, if, for example, a legitimate commercial purpose no longer exists for such processing in accordance with this data protection policy or applicable law and legal retention obligations do not require further storage.
• Right to data transfer: You have the right to receive the personal data about you that you have provided to us in a structured, commonplace and machine-readable format or to transfer this data to another responsible party.
• Right to revoke consent granted: If you have consented to any collection, processing and use of your personal data, you can revoke your consent at any time with future effect but without this affecting the legal validity of the processing carried out on the basis of the consent up to the point of revocation.

Right to object in accordance with art. 21 para. 1 and 2 GDPR:

You have the right, for reasons arising from your particular situation, to object to the processing of your personal data at any time which is carried out based on art. 6 para. 1 let. e or f GDPR. We will not process your personal data after an objection unless we can provide evidence of compelling legitimate grounds for the processing which override your interests, rights and freedoms or unless such processing is for the establishment, exercise or defense of legal claims (see art. 21 para. 1 GDPR, so-called “restricted right to object”). In this event, you must provide grounds for the objection relating to your particular situation.

You also have the right to object to the processing of your personal data for direct marketing purposes at any time without giving grounds.

You can use the contact options indicated in section 2 at any time to exercise your data protection rights. Please attach your personal ID in this case.

You also have the option of submitting complaints to the competent supervisory authority: Bayerisches Landesamt für Datenschutzaufsicht; postal address: P.O. Box 606, 91511 Ansbach; tel.: +49 (0) 981 53 1300; e-mail: [email protected].

9. Amendment of our data protection provisions

We reserve the right to amend our data protection policy so that it always complies with current legal requirements or to implement changes to our services in the data protection policy, such as the introduction of new services, for example. The new data protection policy will then apply to your next visit.

Last update: February 2024