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webMethods AgileApps Cloud


Table of contents:
Service Description
Terms of Service




Service Description


The fastest way to create process-driven applications

Service Specification

webMethods AgileApps Cloud Service Information
General Information: Environment::Public Cloud Customer Account
Base Operating Model: Linux Operating System + DBMSBase Operating System Details: Tomcat Application Server, MySQL DBMS

Service Availability: 99.50% based on AWS availability measured over 5 minute intervals per calendar month
Infrastructure Services: EC2, Enhanced Memory Cache, CloudWatch, RDS, S3
Service Access Option: To the limited extent required for all Java classes only, the Customer may install an Eclipse plug in by download via the web, if needed, for functional enhancements (in which case the Customer shall be responsible for keeping the relevant associated plug-in versions up to date).
Data Storage Location US Oregon
Support: Software AG's Standard Support Services:
Empower Support Portal for Submitting Issues: 24x7
Telephone Hotline for Crisis issues: 24x7
Telephone Hotline for Critical or Standard issues: 9x5

Error Reporting: Empower Customer Portal (https://empower.softwareag.com/)
Standard Maintenance Window Fri 6pm to 10pm PST
Optional Maintenance Window NA





Terms of Service:


Software AG offers a suite of software and platform programs (the "Software") available as On Demand Services over the internet (the "Services"). Customer desires the right to access the Services and use the Software in accordance with the terms and conditions set forth herein.

This On Demand Services Agreement (including all documents referenced herein, this "Agreement") entered into and effective as of the date you access and use the Services ("Effective Date") is by and between Software AG USA, Inc., a Delaware corporation with its principal place of business at 11700 Plaza America Drive, Suite 700, Reston, VA 20190 ("Software AG") and you the customer ("Customer"). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and any persons to which the entity permits access and use of the Services. Each of Software AG and Customer may be referred to herein individually as a "party" or collectively as the "parties."

IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:

1. ACCESS LICENSE AND RESTRICTIONS

1.1 Access to Services
Subject to the terms and conditions of this Agreement, provided Customer has paid Software AG the applicable fees, Software AG hereby grants Customer a non-exclusive right to access and use the Services in accordance with any Documentation solely for its internal business purposes as contemplated by this Agreement and as specified in an Order. 'Documentation'¯ means Software AG's current Services Description, user manuals, and operating instructions generally provided with the Services to a customer. 'Services Description'¯ describes Software AG's management, maintenance, upgrade and support for the Software product available through the Services and is available through the Software AG website. An 'Order'¯ is the transaction by which Services are ordered by Customer. Each Order shall reference and be solely governed by this Agreement.

1.2 Restrictions.
The license set forth in Section 1.1 is granted subject to the following restrictions:

(a) Customer will not receive a copy of the Software, will not be permitted any access to the programming or source code, or have the right to install locally the Software (or any part thereof) in any system of Customer, contractor or agent.

(b) Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; (v) disseminate performance-related information relating to the Services or Software; (vi) use the configuration and reporting capabilities of the Services for any other purposes besides those set forth in this Section 1; or (vii) otherwise utilize the Services in any manner, except as expressly permitted under this Section 1.

(c) Access to the Services is on an 'Authorized User'¯ or 'Named User'¯ basis, defined in Section 1.3 below, rights of any Authorized User licensed to use the Services cannot be shared or used by more than one individual (unless it is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use such license); (i) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services;(ii) Customer is responsible for all user access to and use of the Services and shall abide by all applicable laws and regulations including those regulations applicable to data privacy and data security regulations; and (iii) Customer shall obtain at its sole expense any rights and consents from third parties necessary for Software AG and its subcontractors to perform Services under the Agreement.

(d) Customer shall abide by Software AG's Acceptable Use Policy, incorporated herein by this reference. Software AG reserves the right to change its Acceptable Use Policy from time to time. Changes will be made by posting a new version at www.softwareAG.com/licenses. Customer agrees to periodically review the website for changes to the Acceptable Use Policy. Customer agrees to and accepts any modified terms by continuing to use the Services after the changes are posted and effective. A change will take effect upon the effective date specified in such notice or posting.

1.3 Authorized Users.
'Authorized Users'or 'Named Users'¯ or 'Users'¯ shall mean employees of Customer who are authorized to access the Services using a user identifier and password provided to Customer by Software AG. Customer shall not make the Services available to any person or entity other than Authorized Users. Customer shall cooperate with Software AG if Software AG wishes to monitor Customer's compliance with this requirement (such cooperation to include providing Software AG access to premises to inspect the way the Services are accessed or used by Customer's employees) ('Audit'¯). If an Audit reveals that the Services have been accessed or used by anyone who is not a Named User, (a) Customer shall promptly reimburse Software AG any underpaid license fees (at the current list price) and all costs incurred by Software AG in carrying out the Audit, and (b) Software AG may terminate the Agreement immediately upon written notice.

1.4 Reservation of Rights.
Subject only to the rights expressly granted to Customer under this Agreement, all rights, title and interest in and to the Software and Services will remain with and belong exclusively to Software AG.

1.5 Customer Information.

(a) Ownership. Customer shall own all content, information, data, materials, and intellectual property provided in its unaltered form by Customer in connection with Customer's use of and access to the Services ('Information'¯). Customer hereby grants to Software AG a worldwide, perpetual, irrevocable, non-transferable, non-assignable (except as permitted under Section 9.2 of this Agreement), sublicenseable, non-exclusive license to access, retrieve, store, copy, create derivative works of, display, distribute and otherwise use Customer Information in connection with developing, testing, maintaining, improving, modifying, distributing, providing, making available and/or otherwise commercializing Software AG's products and services, including the Services. To the extent required by law, Software AG will anonymize the Customer Information prior to disclosing it to any third party. (b) Customer Responsibility for Customer Information. Customer is solely responsible for all Customer Information provided to Software AG hereunder or uploaded to, stored in or transmitted through the Services and the use of the Services by Customer and its Authorized Users (collectively, the 'User(s)'¯). Software AG takes no responsibility and assumes no liability for any User Information posted, stored or uploaded on the Services by Customer or any third party, or for any loss or damage thereto, nor is Software AG liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that Customer and/or its Users may encounter. Customer's use of the Services is at Customer's sole risk. Although Software AG has no obligation to screen, edit or monitor any of the User Information or other non-Software AG provided content posted on the Services,

SOFTWARE AG RESERVES THE RIGHT, AND HAS ABSOLUTE DISCRETION, TO, SCREEN ANY USER INFORMATION POSTED OR STORED ON THE SERVICES AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE TO CUSTOMER AND TO REQUIRE CUSTOMER TO REMOVE OR EDIT CUSOMTER INFORMATION POSTED OR STORED ON THE SERVICE. CUSTOMER IS SOLELY RESPONSIBLE FOR CREATING BACKUP COPIES OF ITS CUSTOMER INFORMATION POSTED OR STORED ON THE SERVICES AT CUSTOMER'S SOLE COST AND EXPENSE.

Any use of the Services in violation of the foregoing violates this Agreement and may result in, among other things, termination or suspension of Customer's right to use the Services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Software AG's systems and Customer, or to ensure the integrity and operation of Software AG's business and systems, Software AG may access and disclose any information it considers necessary or appropriate, including, without limitation, User profile information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, and User Information.


2. TERMS OF SERVICE.


2.1 Service Level. Subject to the terms of the Service Level Agreement, incorporated herein by reference and available at www.agileappslive.com/SLA/, Software AG shall use commercially reasonable efforts to make the Software accessible to Customer, subject to required and emergency maintenance, failure of third party networks and communications facilities, and Force Majeure Events.

2.2 Privacy. Software AG will provide the Services in accordance with its then current version of its Privacy Policy that can be found at http://www.softwareag.com/corporate/privacy_cloud.asp incorporated herein by this reference.

2.3 Security. Software AG will employ commercially reasonable security measures in providing the Software and Services. In addition, Software AG agrees to make reasonable commercial efforts to safeguard the personally identifiable information associated with the Customer Information from unauthorized access or use, and to store Customer Information in facilities that are deemed to be reasonably secure based on generally recognized industry practices and that have in place reasonable physical, structural and information security safeguards against the unauthorized access or use of the Customer Information. Software AG security processes are reviewed on a regular basis by the Software AG Global Security and Privacy Committee, led by the Chief Privacy and Security officer. Nevertheless, Customer acknowledges and agrees that Software AG makes no representation or warranty that its security measures will be effective and Software AG shall have no liability for any intrusion through its security measures, for any viruses or other harmful programming or codes, or for the integrity of the Software, unless caused by the gross negligence or willful misconduct of Software AG. Software AG shall also have no responsibility for any security breach outside its control.


3. FEES ; PAYMENT TERMS

3.1 Fees; Payment Terms.
The total non-refundable, non-cancelable fees for each Order are due and payable immediately if paid by credit card or within thirty (30) days from the date of Software AG's invoice. The terms and conditions of this Agreement shall prevail regardless of any preprinted or conflicting terms on a purchase order, other correspondence, and any and all verbal communication. Software AG may assess interest charges of one percent (1%) per month for late payments. Customer agrees to reimburse Software AG for all costs (including reasonable attorneys' fees) incurred in collecting late payments.

3.2 Net of Taxes.
All amounts payable by Customer to Software AG hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Software AG. Customer will not withhold any Taxes from any amounts due Software AG.

4. CONFIDENTIALITY

By virtue of this Agreement, the parties may have access to information that is confidential to one another ('Confidential Information'¯). Confidential Information shall be limited to the Software, the terms and pricing under this Agreement, and all information clearly identified as confidential. A party's Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party. The parties agree to hold each other's Confidential Information in confidence during the term of this Agreement and for a period of two (2) years after termination of this Agreement. The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement which shall include a Party's indemnification obligations. Software AG may reasonably use Customer's name and a description of Customer's use of the Software for its investor relations and marketing purposes.

5. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS

5.1 Representations and Warranties.
Software AG represents and warrants to Customer that Software AG shall provide the Services in a professional and workmanlike manner. Each Party represents and warrants to the other Party that such Party has the required rights, power and authority to enter into this Agreement and to grant all rights, authority and licenses granted hereunder.

5.2 Exclusions.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED 'AS IS'¯ WITHOUT ANY WARRANTY OF ANY KIND. SOFTWARE AG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SOFTWARE AG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. SOFTWARE AG DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM SOFTWARE AG'S OR CUSTOMER'S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). SOFTWARE AG CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, SOFTWARE AG DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

6. INDEMNIFICATION

6.1 Indemnification by Software AG.
In the event of a claim against Customer of the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of or access to the Services by Customer as permitted hereunder, Software AG shall, at its expense indemnify, defend and hold Customer harmless from such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Software AG for such defense, provided that (a) Customer shall promptly notify Software AG of such claim, (b) Software AG shall have the sole and exclusive authority to defend and/or settle any such claim and (c) Customer reasonably cooperates with Software AG in connection therewith. If the use of the Services by Customer has become, or in Software AG's opinion is likely to become, the subject of any claim of infringement, Software AG may at its option and expense (i) procure for Customer the right to continue using the Services as set forth hereunder; (ii) replace or modify the affected Software with functionally equivalent software so that it does not infringe, or, if either (i) or (ii) is not commercially feasible, (iii) terminate this Agreement. Software AG shall have no liability or obligation under this Section 6.1 with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Software by any party other than Software AG without Software AG's express written consent; or (z) the combination, operation or use of the Services with other applications, portions of applications, product(s), data or services where the Services would not by itself be infringing.

6.2 Indemnification by Customer.
Customer shall, at its expense indemnify, defend and hold Software AG harmless from and against any and all claims directly or indirectly brought against Software AG by any third party arising from any use of the Services by Customer, its authorized representatives or by any entity or individual using the user identifier and password provided to Customer by Software AG, which use is in violation of the terms of this Agreement or in a manner not prescribed by Software AG. Customer shall pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Software AG for such defense; provided that: (a) Software AG shall promptly notify Customer of such claim, (b) Customer shall have the sole and exclusive authority to defend and/or settle any such claim and (c) Software AG reasonably cooperates with Customer in connection therewith. Customer shall have the right to settle or compromise any such claim provided that such settlement or compromise does not impose any costs or material disadvantage to Software AG without Software AG's prior written consent.

7 LIMITATION OF LIABILITY

IN NO EVENT WILL SOFTWARE AG, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNATIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED DAMAGES FOR LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR THE USE OF OR INABILITY TO USE THE SERVICES, LOSS OF CUSTOMER INFORMATION IN OR ACCESSED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM SOFTWARE AG, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SOFTWARE AG'S SOFTWARE OR SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SOFTWARE AG, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED ANY FEES CUSTOMER PAYS TO SOFTWARE AG FOR ACCESS TO OR USE OF THE SERVICES.

8 TERM, TERMINATION

8.1 Term.
Unless earlier terminated as described below, the term of the Agreement and any Orders shall continue for the term set forth in an Order (the 'Initial Term'¯) and will automatically renew in one (1) year increments (each, a 'Renewal Term'¯ and together with the Initial Term, the 'Term'¯).

8.2 Termination.
Either Party may terminate an Order at the end of the Initial Term or any Renewal Term by written notice to the other Party sixty (60) days prior to the end of the relevant Term. Each Party may terminate this Agreement upon written notice in the event the other commits any material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach. Termination of this Agreement will terminate all underlying Orders; however termination of an Order will not terminate the Agreement.

8.3 Obligations upon Termination.
Upon termination of this Agreement all rights granted hereunder and all obligations of Software AG to provide the Services and Software shall immediately terminate. Customer shall return any Confidential Information of Software AG in its possession or control. Termination of this Agreement or expiration of the Term shall not relieve Customer from paying all fees accruing up to and through termination. Upon termination and up to thirty (30) days thereafter, Customer may request its Customer Information uploaded to the Services be made available for download. Sections 3, 4, 5, 6, 7, 8.3 and 9 shall survive the termination or expiration of this Agreement for any reason whatsoever.

8.4 Suspension.
Notwithstanding any other provision of the Agreement, Software AG may, in its sole discretion, suspend Customer's access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Software AG from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. Software AG will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Software AG will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved.

8.5 Force Majeure.
Neither Party shall be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), denial of service attacks, cybercrimes or malware caused by a third party, failure of utilities, or any change in or the adoption of any law, regulation, judgment or decree (each a 'Force Majeure Event'¯); provided that financial inability of Customer in and of itself shall not be a Force Majeure Event.

9 GENERAL

9.1 Compliance with Laws.
Software AG will not perform Customer's regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer's business, including those relating to access and use of the Services hereunder. Customer agrees not to place or allow any Customer Information within the Services that require or impose any legal or regulatory compliance by Software AG. Any diversion of Customer Information contrary to United States, Swiss or European Union (including European Union Member States) law, as applicable, is prohibited. :

9.2 Assignment.
Unless Software AG provides its prior written consent, which Software AG may withhold in its sole discretion, Customer shall not assign or otherwise transfer this Agreement to any third party (including, without limitation, any parent, subsidiary or affiliated entity) whether as part of the sale of all or any portion of its business, or pursuant to any merger, consolidation or reorganization or otherwise. Any assignment or attempted assignment in violation of this section shall be null and void.

9.3 Modification; Waiver.
Any modification or change to this agreement or the policies incorporated herein by reference will be posted with notice sent the system administrator's email address on record. Customer's continued use of the Service will be considered acceptance of such change or modification. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9.4 Relationship.
Nothing in this Agreement shall be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties.

9.5 Severability.
In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.

9.6 Governing Law, Jurisdiction.
All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Virginia and of the United States of America located in the Commonwealth of Virginia (the 'Virginia Courts') for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Virginia Courts and agrees not to plead or claim in any Virginia Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Virginia Courts.

9.7 Notices.
All notices under or related to this Agreement will be sent to the system administrator on the account using the email address provided.

9.8 Publicity.
Software AG may (a) favorably reference Customer as a Software AG customer to third parties; (b) favorably reference Customer in printed marketing materials, and (c) favorably use Customer's name and/or logo for the limited purpose of identifying Customer as a current or former Software AG customer, including placing such information on Software AG's website, brochures, or other marketing materials.

9.9 Entire Agreement.
This Agreement, including Software AG's Acceptable Use, Service Level Agreement and Privacy Policy incorporated herein by reference, constitutes the entire agreement between the parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. In the event of any conflict between this Agreement and any Order, the following order of precedence shall apply: the Order then the Agreement.




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