1
EXHIBIT 10.20
SAP PUBLIC SECTOR AND EDUCATION, INC.
SOFTWARE END-USER LICENSE AGREEMENT
("AGREEMENT")
This Agreement is made effective as of the 13th day of March, 2000, by
and between SAP Public Sector and Education, Inc., a Delaware corporation, with
offices at The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Building, International Trade Center, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇ / North Tower / ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("SAP"), and Digital Commerce Corporation, a Delaware corporation, with offices
at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
RECITAL
WHEREAS, SAP desires to grant to Licensee and Licensee desires to
accept from SAP, a license to Use (as defined herein) SAP's proprietary Software
(as defined herein) upon the terms and conditions hereinafter set forth; NOW,
THEREFORE, SAP and Licensee agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" means, as to Software licensed hereunder for Licensee's
internal Use, an entity located in the Territory in which Licensee owns more
than fifty percent of the voting securities. Any such entity shall be considered
an Affiliate for only such time as Licensee continues to own such equity
interest. "Affiliate" means, as to the B2B Software licensed in accord with
Appendix 2 hereto and the Business Document Exchange Service provided in accord
with Appendix 3 hereto, an entity located in the Territory in which Licensee
owns more than a 30% equity interest and Licensee operates one or more such
web-site portal(s) for such Affiliate. Any such entity shall be considered an
Affiliate for only such time as Licensee continues to own such equity interest
and operates one or more such web-site portal(s).
1.2 "Business Third Party" means any third party that requires access
to the Software in connection with the operation of Licensee's and/or its
Affiliates' business including, but not limited to, customers, distributors and
suppliers.
1.3 "Correction Level" means a change in the Software between Versions
made generally available to SAP Licensees.
1.4 "Designated Unit" means each individual computer in which the
Software, Third-Party Database Software, and PTS On-Demand Personal Navigation
System Software are installed.
1.5 "Documentation" means SAP's documentation, in any medium, which is
customarily delivered to all licensees of the Software, including SAP's manuals,
training materials, program listings, data models, flow charts, logic diagrams,
functional specifications, instructions, and complete or partial copies of the
foregoing.
SAP CONFIDENTIAL
2
1.6 "Extension" means an addition to the Software which does not
require a Modification.
1.7 "Modification" means a change to the Software which changes the
source code.
1.8 "Non-Productive Use" means Use of the Software, Third-Party
Database, and PTS On-Demand Personal Navigation System Software solely for
Licensee's or an authorized Affiliate's internal training, testing or
developmental work.
1.9 "Productive Use" means Use of the Software, Third-Party Database,
and PTS On-Demand Personal Navigation System Software solely to operate
Licensee's or an authorized Affiliate's business.
1.10 "Program Concepts" means the concepts, techniques, ideas, and
know-how embodied and expressed in any computer programs or modules included in
the Software, including their structure, sequence, and organization.
1.11 "Proprietary Information" means: (i) with respect to SAP and SAP
AG, the Software and Documentation and any complete or partial copies thereof,
the Program Concepts, Third-Party Database Software, any other third-party
software licensed with or as part of the Software and benchmark results; and
(ii) information reasonably identifiable as the confidential and proprietary
information of SAP or its licensors or Licensee or its licensors excluding, any
part of the SAP or Licensee Proprietary Information which: (a) is or becomes
publicly available through no act or failure of the receiving party; or (b was
or is rightfully acquired by the receiving party from a source other than the
disclosing party prior to receipt from the disclosing party, or (c) becomes
independently available to the receiving party from a source not known by the
receiving party to be obligated to maintain confidentiality; or (d) is required
by law to be disclosed.
1.12 "Release" means each issuance of the Software, excluding third
party software, identified by the numeral to the left of the decimal point
(e.g., 3.0).
1.13 "SAP AG" means SAP Aktiengesellschaft, the licensor of the SAP
Proprietary Information to SAP.
1.14 "Software" means (i) all software specified in agreed upon
Appendices hereto, developed by or for SAP and/or SAP AG and delivered to
Licensee hereunder; (ii) any Releases, Versions, or Correction Levels of the
Software as contemplated by this Agreement; and (iii) any complete or partial
copies of any of the foregoing.
1.15 "Territory" means the United States of America and all other
countries in which SAP AG and its wholly owned affiliates are located or license
the Software, subject to U.S. export control laws. The following are countries
in which SAP, as of the Effective Date of this Agreement, is currently
prohibited from licensing the Software: Cuba, Iran, Iraq, Libya, North Korea,
Syria, and Angola. Further, SAP may from time to time deny the right to license
the software in certain
SAP CONFIDENTIAL 2
3
countries in order to protect SAP's interests in its proprietary rights, but
only to the extent all similarly situated customers of SAP are denied such
rights.
1.16 "Third-Party Database Software" means third-party proprietary
database software licensed through SAP to Licensee. Third Party Database
Software shall not be deemed to include any data entered into the Third Party
Database Software.
1.17 "Use" means to load, execute, access, employ, utilize, store, or
display the Software, Modifications and Extensions, Third-Party Database, and
PTS On-Demand Personal Navigation System Software.
1.18 "Named Users" means any combination of users licensed under this
Agreement whose name and password have been registered in the Software.
1.19 "Version" means each issuance of each Release of the Software,
excluding third party software, identified by the numeral to the right of the
decimal point (3.1).
1.20 "Transaction Use" means access to or from ▇▇▇▇▇.▇▇▇ by any method
which results in, or results from ▇▇▇▇▇.▇▇▇ business processes. Transaction Use
shall not include data which upon input is directly operated on by a Named User
or licensed Software Engine as defined in Appendices hereto. "Transaction" means
each individual or group of data record(s) associated with a Software business
process which is input to or output from the Software.
2. LICENSE GRANT.
2.1 Grant of License.
(a) Subject to this Agreement, SAP grants and Licensee accepts, a
non-exclusive, perpetual (unless terminated in accordance with Section 5 herein)
license to Use the Software, Documentation, other SAP Proprietary Information,
Third-Party Database Software, and PTS On-Demand Personal Navigation Software
provided by SAP to Licensee, at specified site(s) within the Territory for
Productive and Non-Productive Uses. This license does not permit Licensee to:
(i) Use the Software, Third-Party Database Software, and PTS On-Demand Personal
Navigation Software for a service bureau application; or (ii) sublicense or rent
the Software, Third-Party Database Software, or PTS On-Demand Personal
Navigation Software.
(b) Licensee agrees to install the Software, Third-Party Database
Software, and PTS On-Demand Personal Navigation Software only on Designated
Unit(s), intranet server(s) or internet server(s) as identified by Licensee
pursuant to this Agreement and which have been previously approved by SAP in
writing or otherwise officially made known to the public as appropriate for Use
or interoperation with the Software, Third Party Database Software, and PTS
On-Demand Personal Navigation Software. The maximum number of Named Users
licensed to access the Software, Third Party Database Software, and PTS
On-Demand Personal Navigation Software, and the maximum number of Transactions
Licensee is authorized to perform on an annual
SAP CONFIDENTIAL 3
4
basis (or other relevant metric identified in Appendices hereto) shall be
specified in Appendices to this Agreement. Licensee may install the Software on
an unlimited number of Designated Units, as long as such type of Designated
Units have been previously approved by SAP in writing or otherwise officially
made known to the public as appropriate for Use or interoperation with the
Software, Third Party Database Software, and PTS On-Demand Personal Navigation
Software, and as long as Licensee notifies SAP of such Designated Units in
accord with Schedule 1 to Appendix 1 and Schedule 1 to Appendix 2 hereto.
Licensee shall promptly provide written notice to SAP if the number of Named
Users, Transactions or other relevant metric exceeds such maximum numbers.
(c) Licensee may transfer the Software, Third-Party Database Software,
and PTS On-Demand Personal Navigation Software from one Designated Unit to
another at no additional license fee, and shall provide written notice to SAP
within five business days of such installation. Licensee shall be responsible
for the cost of any migration tools, Third-Party Database Software costs,
third-party software or additional Software required for the new Designated
Unit. The Software, Third-Party Database Software, and PTS On-Demand Personal
Navigation Software must be promptly deleted in their entirety from the
Designated Unit no longer in use and from each back-up copy for that Designated
Unit.
2.2 Authorization of Affiliates to Use the Software. Affiliates shall
be authorized to Use the Software, Third-Party Database Software, and PTS
On-Demand Personal Navigation Software; provided that: (i) each Affiliate shall
first sign and deliver to SAP its agreement to be bound by the terms herein in
the forth of Exhibit A attached hereto; and (ii) such Use shall be subject to
the following: (A) Licensee accepts responsibility for the acts or omissions of
such Affiliate as if they were Licensee's acts or omissions; (B) Licensee shall
indemnify SAP against losses or damages suffered by SAP arising from breach of
this Agreement by any such Affiliate as if effected by Licensee; and (C) such
Use shall not constitute an unauthorized exportation of any SAP Proprietary
Information under U.S. Government laws and regulations; and (D) in no
circumstances may those Affiliates in which Licensee owns less than 50% of the
voting securities Use the Software to operate or manage such Affiliate's own
internal business operations.
2.3 Authorization of Business Third Parties to Access the Software.
Business Third Parties may have access to the Software provided (i) all Business
Third Parties accessing the Software through password identification shall be
licensed as Named Users; (ii) all other usage or access to the Software by
Business Third Parties shall be licensed as Transaction Usage; (iii) Business
Third Parties are expressly limited to screen access to the Software; (iv) in no
circumstances may Business Third Parties have access to Software source code;
(v) in no circumstances shall Business Third Parties Use the Software to operate
or manage the business of such Business Third Parties (vi) such Use shall be
subject to the following: (A) Licensee accepts responsibility for the acts or
omissions of such Business Third Parties as if they were Licensee's acts or
omissions; (B) Licensee shall indemnify SAP against losses or damages suffered
by SAP arising from breach of this Agreement by any such Business Third Party as
if effected by Licensee; and (C) such Use shall not constitute an unauthorized
exportation of any SAP Proprietary Information under U.S. Government laws and
regulations.
SAP CONFIDENTIAL 4
5
2.4 Audit Right. During normal business hours SAP, or its authorized
representative or licensors, shall have the right upon reasonable advance notice
to audit and inspect, in a manner that does not unreasonably interfere with
Licensee's or its Affiliate's business operations, Licensee's or any Affiliate's
utilization of the Software, Documentation, other SAP Proprietary Information,
Third-Party Database Software, or PTS On-Demand Personal Navigation Software in
order to verify compliance with the terms of this Agreement. If SAP Proprietary
Information is given to Business Third Parties pursuant to this Agreement,
Licensee shall secure the right for SAP to audit such Business Third Party as
specified in this Section. Upon SAP's reasonable request, Licensee shall deliver
to SAP a report, as defined by SAP, evidencing Licensee's usage of the Software
licensed under this Agreement.
2.5 Archival Copy; Restriction on Copies; Legends to be Reproduced.
(a) Licensee may make one copy of the Software, Third Party Database
Software, and PTS On-Demand Personal Navigation Software for archival purposes
and such number of backup copies of the Software, Third Party Database Software,
and PTS On-Demand Personal Navigation Software as are consistent with Licensee's
normal periodic backup procedures. Licensee shall maintain a log of the number
and location of all originals and copies of the Software, Third Party Database
Software, and PTS On-Demand Personal Navigation Software.
(b) Licensee may reproduce or copy any portion of the Documentation
into machine-readable or printed form for its internal use and only as required
to exercise its rights hereunder.
(c) Licensee shall include SAP's and its licensors' copyright,
trademark, service ▇▇▇▇, and other proprietary notices on any complete or
partial copies of the Software, Documentation, Third-Party Database Software,
SAP Proprietary Information, or PTS On-Demand Personal Navigation Software in
the same form and location as the notice appears on the original work. Licensee
shall not remove SAP's or its licensors' copyright, trademark, service ▇▇▇▇, and
other proprietary notices on any complete or partial copies of the Software,
Documentation, Third-Party Database Software, or PTS On-Demand Personal
Navigation Software. The inclusion of a copyright notice on any portion of the
Software, Documentation, Third-Party Database Software, SAP Proprietary
Information, or PTS On-Demand Personal Navigation Software shall not cause or be
construed to cause it to be a published work.
2.6 License for Third-Party Database Software. The Software requires a
third-party database which may be licensed through SAP or directly from a
third-party database licensor approved by SAP. In the event Licensee obtains a
license directly from a third-party database licensor, any restrictions imposed
on Licensee directly by such third-party database licensor shall apply. Except
as set forth in the immediately following sentence, SAP makes no representations
or warranties as to the Third-Party Database Software or its operation. SAP
represents that, as of the Effective Date of the Agreement, the Software is
compatible with the Third Party Database Software and that SAP has all rights
from its licensors necessary to license, in accordance with the terms of this
Agreement, such Third Party Database Software to Licensee.
SAP CONFIDENTIAL 5
6
3. DELIVERY. The licensed Software in machine-readable format, and the
Documentation, shall be delivered as specified in Appendices hereto
("Delivery"). Licensee shall be responsible for installation of the Software.
Upon Licensee's request, SAP will install the Software, subject to agreement as
to applicable terms and conditions, including fees.
4. PRICE AND PAYMENT.
4.1 License Fees. Licensee shall pay to SAP license fees for the
Software on such terms as set forth in Appendices hereto ("License Fees"). Fees
for Maintenance ("Maintenance Fees") shall be paid as set forth in Appendices
hereto. Any fees, other than reasonably disputed fees, Licensee does not pay
when due shall accrue interest at the rate of 18% per annum, but not to exceed
the maximum amount as allowed by law. In the event SAP institutes a collection
procedure and SAP is the prevailing party in such procedure, Licensee also
agrees to pay SAP all reasonable costs and expenses of collection, including
attorneys' fees.
4.2 Taxes. License and Maintenance Fees and other charges described in
this Agreement and its Appendices, or in SAP's most recent List of Prices and
Conditions, do not include federal, state or kcal sales, use, property, excise,
service, or similar taxes ("Tax(es)") now or hereafter levied; all of which
shall be for Licensee's account. With respect to state/local sales tax, direct
pay permits or a valid tax-exempt certificate must be provided to SAP prior to
the execution of this Agreement. If SAP is required to pay Taxes (excepting
taxes on SAP's income or franchise taxes), SAP shall invoice Licensee for such
Taxes. Licensee hereby agrees to indemnify SAP for and hold it harmless from any
Taxes (excluding taxes on SAP's income or franchise taxes) and related costs,
interest and penalties paid or payable by SAP in connection with this Agreement,
provided Licensee will not be required to indemnify SAP or hold SAP harmless
from any interest or penalties except to the extent such interest or penalties
arise out of or are attributable to Licensee's failure to promptly pay Taxes
promptly invoiced that are payable by Licensee under this Agreement.
5. TERM AND TERMINATION.
5.1 Term. This Agreement and the license granted hereunder shall become
effective as of the date first set forth above and shall continue in effect
thereafter unless terminated under Section 5.2.
5.2 Termination. This Agreement and the licenses granted hereunder
shall terminate upon the earliest to occur of the following: (i) thirty days
after Licensee gives SAP written notice of Licensee's desire to terminate this
Agreement, for any reason, but only after payment of all License and Maintenance
Fees then due and owing; (ii) thirty days after SAP gives Licensee notice of
Licensee's material breach of any provision of the Agreement (other than
Licensee's breach of its obligations under Section 6), including more than
thirty days delinquency in Licensee's payment of any money due hereunder, unless
Licensee has cured such breach during such thirty day period; (iii) ten days
after SAP gives Licensee notice of Licensee's material breach of Section 6; and
(iv) immediately if Licensee files for bankruptcy, becomes insolvent, or makes
an assignment for the benefit of creditors.
SAP CONFIDENTIAL 6
7
5.3 Effect of Termination. Upon any termination of this Agreement:
Sections 2.4, 4, 5.3, 5.4, 6, 7.3, 8, 9, 11.5, 11.6 and 11.7 shall survive such
termination; Licensee's rights under Section 2 shall immediately cease; and SAP
and Licensee each shall promptly perform its obligations under Section 5.4. In
the event of any termination hereunder, Licensee shall not be entitled to any
refund of any payments made by Licensee.
5.4 Duties Upon Termination. Upon any termination hereunder, Licensee
and its authorized Affiliates shall immediately cease Use of all SAP Proprietary
Information and shall irretrievably delete and/or remove such items from all
computer hardware and storage media. Within thirty days after any termination,
Licensee shall deliver to SAP at Licensee's expense (adequately packaged and
insured for safe delivery) or destroy all copies of the SAP Proprietary
Information in every form. Licensee agrees an officer of Licensee's organization
shall certify in writing to SAP that it and each of its authorized Affiliates
has performed the foregoing. Within thirty days after any termination, SAP shall
return the Licensee Proprietary Information to Licensee.
6. PROPRIETARY RIGHTS.
6.1 SAP Proprietary Information.
(a) Licensee acknowledges that ownership of and ▇▇▇▇▇▇ in and to all
intellectual property rights, including patent, trademark, service ▇▇▇▇,
copyright, and trade secret rights, in the SAP Proprietary Information are and
shall remain in SAP and its licensors. Licensee acquires only the right to Use
the SAP Proprietary Information and does not acquire any ownership rights or
title in or to the SAP Proprietary Information and that of SAP's licensors.
SAP acknowledges that ownership of and title in and to all intellectual
property rights, including patent, trademark, service ▇▇▇▇, copyright, and trade
secret rights, in the Licensee Proprietary Information are and shall remain in
Licensee and its licensors.
(b) Licensee shall not copy, translate, disassemble, or decompile, nor
create or attempt to create, by reverse engineering or otherwise, the source
code from the object code of the Software. In the event source code is provided
to Licensee, SAP, in its sole discretion, reserves the right to delete, or to
require the deletion of, such source code and all copies thereof in Licensee's
possession or control whenever a future Release, Version, or Correction Level
provides for like functionality in an object code format.
(c) Subject to Section 6.3(b), all Modifications and Extensions to the
Software and Documentation shall be considered part of the Software and
Documentation for purposes of this Section 6.
6.2 Protection of Proprietary Information. In order to protect the
rights of SAP and its licensors and Licensee in their respective Proprietary
Information, SAP and Licensee agree to take all reasonable steps and the same
protective precautions to protect the Proprietary Information of the
SAP CONFIDENTIAL 7
8
other party from disclosure to third parties as with its own proprietary and
confidential information. Except as expressly authorized by this Agreement,
neither party shall, without the other party's prior written consent, disclose,
provide, or make available any of the Proprietary Information of the other party
in any form to any person, except to its bona fide employees, officers,
directors, or third parties whose access is necessary to enable the disclosing
party to exercise its rights hereunder. Each party agrees that prior to
disclosing any Proprietary Information of the other party to any third party, it
will obtain from that third party a written acknowledgment that such third party
will be bound by the same terms as specified in this Section 6 with respect to
the Proprietary Information and naming the other party as a third party
beneficiary. Use by a party of the other party's Proprietary Information shall
in any event be solely for the purposes of this Agreement.
6.3 Modifications and Extensions.
(a) Licensee may make Modifications and Extensions to the Software,
other than third party software, for Use on the Designated Unit(s) under the
terms set forth in this section. Licensee shall register all Modifications to
the Software with SAP prior to making such Modifications. Licensee agrees to
insert in all copies of the Software as modified all copyright, trade secret, or
other notices thereon or therein as SAP may from time to time direct.
(b) In the event Licensee without SAP's participation develops any
Modification or Extension (hereinafter referred to as "Licensee Extension" or
"Licensee Modification") to the Software, Licensee shall have all rights, title,
and interest in such Licensee Modification or Licensee Extension subject to
SAP's rights in the Software. Licensee agrees to offer SAP the first right to
negotiate a license to or assignment of such Licensee Modification or Licensee
Extension and the parties agree to negotiate such rights in good faith. Licensee
agrees that prior to SAP's termination or waiver of its first right to
negotiate, such Licensee Modification or Licensee Extension will be used solely
in connection with the business operations of Licensee and its Affiliates, and
that such Licensee Modification or Licensee Extension will not be marketed,
licensed or sublicensed, sold, assigned, or otherwise transferred or made
available to any third party or other entity.
All notices concerning the SAP's first right to negotiate shall be
provided in writing to the attention of SAP's Vice President, Solutions and
Partner Support, Assistant General Counsel, and the Licensee's Chief Financial
Officer. Should Licensee desire to initiate such negotiation, Licensee shall
provide to SAP all documentation and material pertaining to such Licensee
Modification or Licensee Extension reasonably necessary to permit SAP to
determine if it desires to exercise its right to negotiate. SAP shall advise
Licensee of its decision in writing within one hundred and eighty (180) days
after receipt of all such information. In the event SAP declines, in writing, or
fails to exercise its right to negotiate, within the one hundred and eighty
(180) day period, Licensee shall be free to enter into an Agreement with a third
party. Licensee agrees that prior to the passing of one hundred and eighty (180)
days or SAP's waiver of its first right to negotiate, such Licensee Modification
or Licensee Extension will be used solely in connection with the business
operations of Licensee and its Affiliates, and that such Licensee Modification
or Licensee Extension will not be marketed, licensed, or sublicensed, sold,
assigned, or otherwise transferred or made available to any third party.
SAP CONFIDENTIAL 8
9
(c) In the event SAP develops either independently, or jointly with
Licensee, any Modification or Extension to the licensed Software, such
Modification or Extensions and all rights associated therewith will be the
exclusive property of SAP and SAP AG, and Licensee will not grant, either
expressly or impliedly, any rights, title, interest, or licenses to such
Modifications or Extensions to any third party. Licensee shall be entitled to
Use such Modifications and Extensions developed for or with Licensee on the
Designated Unit(s) under the terms set forth in this Agreement. Licensee agrees
to assign all right, title and interest in and to jointly developed
Modifications and Extensions to SAP. Licensee agrees to execute, acknowledge and
deliver to SAP all documents and do all things necessary, at SAP's expense, to
enable SAP to obtain and secure such Modifications or Extensions throughout the
world. Licensee agrees to secure the necessary rights and obligations from
relevant employees, or third parties in order to satisfy the above obligations.
(d) The parties hereto agree that the granting of any rights, title, or
interest to Licensee in any Modification or Extension shall not be construed by
the parties hereto, any court of law or equity, or any arbitration panel to mean
that SAP has granted or given up any rights, title, or interest in or to the SAP
Proprietary Information.
7. PERFORMANCE WARRANTY.
7.1 Warranty Period; Warranty. SAP warrants that the Software will in
all material respects conform to the functional specifications contained in the
Documentation for six months following Delivery (the "Warranty Period") when
Used without material alteration on the Designated Unit(s). SAP's warranty is
subject to Licensee providing SAP necessary access, including remote access, to
the Software. Licensee shall provide SAP with sufficient test time and support
on Licensee's Designated Unit(s) to correct any reported defect.
7.2 Scope of Warranty.
(a) The warranty set forth in this Section 7 shall not apply: (i) if
the Software is not used in accordance with the Documentation; or (ii) to any
Extensions or Modifications; or (iii) if the defect is caused by: a Modification
or Extension, Licensee, or a third-party software malfunction.
(b) SAP does not warrant that the Software will operate uninterrupted
or that it will be free from minor defects or errors which do not materially
affect such performance or that the applications contained in the Software are
designed to meet all of Licensee's or its authorized Affiliates' business
requirements.
7.3 Express Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, SAP AND
ITS LICENSORS DISCLAIM, WITH RESPECT TO THIS AGREEMENT, ALL OTHER WARRANTIES
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT
ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
SAP CONFIDENTIAL 9
10
8. INDEMNIFICATION.
8.1 SAP Representation. SAP represents that its licensors own the
Proprietary Information licensed by SAP hereunder, including all intellectual
property rights therein, and that SAP has all rights necessary to license, in
accordance with the terms of this Agreement, such Proprietary Information to
Licensee, and to otherwise perform its obligations under this Agreement.
8.2 No Representation Regarding Combination Use. SAP and its licensors
make no representation with respect to the possibility of infringement by
Combination Use of the Software. The parties agree that SAP has no duty to
investigate nor to warn Licensee of any such possibility. "Combination Use"
means Use of the Software in conjunction with any of the following, unless such
Use is prescribed in the Documentation: (i) any software other than the Software
and Third Party Database Software; (ii) any apparatus other than a Designated
Unit; and/or (iii) any activities of Licensee or its authorized Affiliates not
licensed under this Agreement.
8.3 Indemnification of Licensee. Except for Combination Use, SAP shall
indemnify Licensee against all claims, liabilities, and costs, including
reasonable attorneys' fees, reasonably incurred in connection with any claim
brought against Licensee in the Territory by third parties alleging that
Licensee's Use of the Software, Documentation and other SAP Proprietary
Information, excluding the Third Party Database Software and PTS On-Demand
Personal Navigation Software, and any other third party software that may be
licensed, infringes, misappropriates or creates, as applicable: (i) any United
States, Canadian, German or European Union patent; or (ii) a copyright; or (iii)
trade secret rights; or (iv) a trademark; or (v) unfair competition, provided
that, Licensee promptly notifies SAP in writing of any such claim and SAP is
permitted to control fully the defense, unless there is a conflict between SAP's
and Licensee's interests wherein Licensee shall have the ability to control its
own defense, and any settlement of such claim as long as such settlement shall
not include a financial obligation on Licensee. Licensee's failure to provide
the aforementioned prompt notice shall not excuse SAP's obligations to indemnify
Licensee hereunder unless such failure prejudices SAP's ability to indemnify
Licensee in accord with this Section 8. Licensee shall cooperate fully, at SAP's
expense, in the defense of such claim, and may appear, at its own expense,
through counsel reasonably acceptable to SAP, unless there is a conflict between
SAP's and Licensee's interests wherein Licensee shall have the ability to
control its own defense, at SAP's expense. SAP may, in its sole discretion,
settle any such claim on a basis requiring SAP to (i) substitute for the
Software or Documentation or other SAP Proprietary Information, excluding the
Third Party Database Software, PTS On-Demand Personal Navigation Software, and
any other third party software that may be licensed, alternative substantially
equivalent non-infringing programs and supporting documentation; or (ii) obtain
the right for continued use of the Software or Documentation or other SAP
Proprietary Information, excluding the Third Party Database Software, PTS
On-Demand Personal Navigation Software, and any other third party software that
may be licensed, that is the subject of the claim; or (iii) modify the
infringing Software or Documentation or other SAP Proprietary Information,
excluding the Third Party Database Software, PTS On-Demand Personal Navigation
Software, and any other third party software that may be licensed, to avoid the
claimed infringement, while maintaining at least equivalent functionality.
SAP CONFIDENTIAL 10
11
In the event that any preliminary injunction, temporary restraining
order or final injunction shall be obtained in the Territory restricting
Licensee's Use of the Software or Documentation or other SAP Proprietary
Information, excluding the Third Party Database Software, PTS On-Demand Personal
Navigation Software, and any other third party software that may be licensed,
SAP shall, at its sole option, either:
(a) obtain the right for continued use of the Infringing Software or
Documentation or other SAP Proprietary Information, excluding the Third Party
Database Software, PTS On-Demand Personal Navigation Software, and any other
third party software that may be licensed; or
(b) modify the infringing Software or Documentation or other SAP
Proprietary Information, excluding the Third Party Database Software, PTS
On-Demand Personal Navigation Software, and any other third party software that
may be licensed to avoid such infringement while obtaining at least equivalent
functionality; or
(c) substitute for the Software or Documentation or other SAP
Proprietary Information, excluding the Third Party Database Software, PTS
On-Demand Personal Navigation Software, and any other third party software that
may be licensed alternative equivalent software and supporting documentation; or
(d) after using best efforts to provide (a), (b), or (c) above, provide
a refund to Licensee of paid license fees for that part of the Software or
Documentation or other SAP Proprietary Information, excluding the Third Party
Database Software, PTS On-Demand Personal Navigation Software, and any other
third party software that may be licensed under claim of infringement, (unless
such part is a major integral function of the Software, in which case a full
refund of paid license fees would be reimbursable). All such refunds shall be
depreciated on a five (5) year straight line basis.
8.4 SAP's Right to Commence Infringement Actions. SAP alone shall be
responsible for taking such actions which it determines are reasonably necessary
or desirable in its sole discretion in connection with any infringement or
alleged infringement by a third party of any portion of the Software and
Documentation. Licensee shall not undertake any action in response to any
infringement or alleged infringement of the Software and Documentation without
the prior written consent of SAP, which consent shall not be unreasonably
withheld. Licensee agrees to cooperate with and assist SAP, at SAP's expense, by
taking whatever action which SAP determines to be reasonably necessary or
desirable in connection with such defense. SAP agrees to reimburse Licensee for
reasonable legal fees and other expenses incurred in connection with any such
claim, suit, damage, or loss.
8.5 SAP's Duty to Indemnify Licensee. THE PROVISIONS OF THIS SECTION 8
STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SAP AND ITS LICENSORS TO
LICENSEE, AND IS LICENSEE'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF
THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
SAP CONFIDENTIAL 11
12
9. LIMITATIONS OF LIABILITY.
9.1 Licensee's Remedies. Licensee's sole and exclusive remedies for any
damages or loss in any way connected with the failure of the Software or
services furnished by SAP and its licensors to conform in all material respects
with the Documentation, whether due to SAP'S negligence or breach of any other
duty, shall be, at SAP's option: (i) to bring the performance of the Software
into substantial compliance with the functional specifications; (ii)
re-performance of services; or if (i) or (ii) are not commercially reasonable
options, (iii) return of an appropriate portion of any payment made by Licensee
with respect to the applicable portion of the Software or services.
9.2 SAP Not Responsible. SAP will not be responsible under this
Agreement for: (i) any alteration of the Software to fit the particular
requirements of Licensee; or (ii) the correction of any defects resulting from
Modifications or Extensions or as a result of misuse of the Software by
Licensee; or (iii) preparation or conversion of data into the form required for
use with the Software or (iv) ensuring the security of Licensee's networked
installation of the Software. THE SOFTWARE IS NOT SPECIFICALLY DEVELOPED OR
LICENSED HEREUNDER FOR USE IN ANY DIRECT AND ACTIVE OPERATIONS OF ANY EQUIPMENT
IN ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATIONS, OR IN ANY OTHER
INHERENTLY DANGEROUS APPLICATIONS. THE PARTIES HERETO AGREE THAT USE OF THE
SOFTWARE AND THIRD-PARTY SOFTWARE FOR FINANCIAL APPLICATION PURPOSES OR SUCH
OTHER ADMINISTRATIVE PURPOSES SHALL NOT BE DEEMED INHERENTLY DANGEROUS
APPLICATIONS IF SUCH USE DOES NOT AFFECT THE OPERATIONS OR MAINTENANCE OF SUCH
EQUIPMENT. SAP AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES
ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY
SOFTWARE LICENSED HEREUNDER.
9.3 Limitation of Liability. ANYTHING TO THE CONTRARY HEREIN
NOTWITHSTANDING, EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR
DISCLOSURE OF THE PROPRIETARY INFORMATION, UNDER NO CIRCUMSTANCES SHALL SAP, ITS
LICENSORS OR LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR
AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES (EXCEPT FOR SAP'S
INDEMNITY OBLIGATIONS PURSUANT TO SECTION 8, BUT ONLY IN RELATION TO CLAIMS IN
THE UNITED STATES BASED ON INFRINGEMENT OR MISAPPROPRIATION OF A UNITED STATES
PATENT, COPYRIGHT, TRADE SECRET RIGHT, TRADEMARK OR CLAIM OF UNFAIR COMPETITION)
OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT
DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS,
COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES. The
provisions of the Agreement allocate the risks between SAP and Licensee. The
License Fees reflect this allocation of risk and the limitations of liability
herein.
9.4 Severability of Actions. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF
SAP CONFIDENTIAL 12
13
DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER
PROVISION AND TO BE ENFORCED AS SUCH.
10. ASSIGNMENT.
Licensee may not, without SAP's prior written consent, assign,
delegate, sublicense, pledge, or otherwise transfer this Agreement, except as
specifically authorized in Section 2.2 of this Agreement, or any of its rights
or obligations under this Agreement, or the SAP Proprietary Information, to any
party, including any Affiliate. Any permitted assignment of this Agreement shall
provide that the provisions of this Agreement shall continue in full force and
effect and that Licensee shall guaranty the performance of its assignee and
shall remain liable for all obligations hereunder. SAP may assign this Agreement
to SAP America, Inc. or SAP AG. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
Notwithstanding the foregoing, Licensee shall have the right to assign
this Agreement (excluding all third-party software) to any entity which acquires
all or substantially all of Licensee's operating assets, or, in the event
Licensee is merged or reorganized pursuant to any plan of merger or
reorganization, subject to the condition that Licensee provides SAP with: (1) a
statement, signed on behalf of the Assignee, that such Assignee agrees to abide
by the terms of this Agreement; (2) evidence, satisfactory to SAP, of such
Assignee's corporate authority to enter into this Agreement; and (3) financial
information showing that such Assignee has a minimum net worth, sufficient in
SAP'S reasonable judgment, to allow Assignee to perform its obligations under
this Agreement.
11. GENERAL PROVISIONS.
11.1 Rights to Injunctive Relief. Both parties acknowledge that
remedies at law may be inadequate to provide SAP or Licensee with full
compensation in the event of Licensee's material breach of Sections 2, 6, 10 or
11.5, or SAP's material breach of Section 6 with respect to Licensee Proprietary
Information, and that the non-breaching party shall therefore be entitled to
seek injunctive relief in the event of any such material breach.
11.2 Severability. If any provision of this Agreement is determined to
be invalid or unenforceable, it will be deemed to be modified to the minimum
extent necessary to be valid and enforceable. If it cannot be so modified, it
will be deleted and the deletion will not affect the validity or enforceability
of any other provision unless, as a result, the rights of either party are
materially diminished or the obligations and burdens of either party are
materially increased so as to be unjust or inequitable.
11.3 No Waiver. If either party should waive any breach of any
provision of this Agreement, it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision hereof.
SAP CONFIDENTIAL 13
14
11.4 Counterparts. This Agreement may be signed in two counterparts,
each of which shall be deemed an original and which shall together constitute
one Agreement.
11.5 Export Control Notice. Regardless of any disclosure made by
Licensee to SAP of an ultimate destination of the Software, Documentation,
Third-Party Database Software, and other provided SAP Proprietary Information
Licensee acknowledges that the Software, Documentation, Proprietary Information,
and the Third-Party Database Software are being released or transferred to
Licensee in the United States and are therefore subject to the U.S. export
control laws. Licensee acknowledges its exclusive obligation to ensure that its
exports from the United States are in compliance with the U.S. export control
laws. Licensee shall also be responsible for complying with all applicable
governmental regulations of any foreign countries with respect to the use of the
Proprietary Information by its Affiliates outside of the United States. Licensee
agrees that it will not submit the Software to any government agency for
licensing consideration or other regulatory approval without the prior written
consent of SAP. Licensee shall defend, indemnify, and hold SAP and is licensors
harmless from and against any and all claims, judgments, awards, and costs
(including reasonable legal fees) arising out of Licensee's noncompliance with
applicable U.S. or foreign law with respect to the use or transfer of the SAP
Proprietary Information outside the United States by Licensee and its
Affiliates.
11.6 Confidential Terms and Conditions. Licensee shall not disclose the
terms and conditions of this Agreement, except as required by law including
without limitation applicable securities laws, and the pricing contained therein
to any third-party. Neither party shall use the name of the other party in
publicity, advertising, or similar activity, without the prior written consent
of the other, except that both parties consent to the other's inclusion of its
name in customer or provider listings, as appropriate, which may be published as
part of a party's marketing efforts.
11.7 Governing Law. This Agreement shall be governed by and construed
under the Commonwealth of Virginia law without reference to its conflicts of law
principles. In the event of any conflicts between foreign law, rules, and
regulations, and United States of America law, rules, and regulations, United
States of America law, rules, and regulations shall prevail and govern. The
United Nations Convention on Contracts for the International Sale of Goods shall
not apply to this agreement.
11.8 Escrow of Source Code.
1. SAP warrants that the source code for the Software, together with
related Documentation as it is or becomes available, has been deposited in an
escrow account maintained at Data Securities International Inc., Burlington, MA
(the "Escrow Agent"), pursuant to an agreement between the Escrow Agent and SAP
(the "Escrow Agreement").
2. SAP will from time to time deposit into the escrow account copies of
source code for Releases and Versions of the Software and related Documentation.
SAP CONFIDENTIAL 14
15
3. SAP or SAP's trustee in bankruptcy shall authorize the Escrow Agent
to make and release a copy of the applicable deposited materials to Licensee
upon the occurrence of any of the following events:
(a) The existence of any one or more of the following circumstances,
uncorrected for more than thirty (30) days: entry of an order for relief under
Title 11 of the United States Code; the making by SAP of a general assignment
for the benefit of creditors; the appointment of a general receiver or trustee
in bankruptcy of SAP's business or property; or action by SAP under any state
insolvency or similar law for the purpose of its bankruptcy, reorganization, or
liquidation; unless within the specified thirty (30) day period, SAP (including
its receiver or trustee in bankruptcy) provides to Licensee adequate assurances,
reasonably acceptable to Licensee, of its continuing ability and willingness to
fulfill its maintenance obligations under this Agreement;
(b) SAP has ceased its on-going business operations or that portion of
its business operations relating to the sale, licensing and maintenance of the
Software; or
(c) Failure of SAP to carry out the material maintenance obligations,
by termination of maintenance services by SAP or otherwise, imposed on it
pursuant to this Agreement after reasonable opportunity has been provided to SAP
America, Inc. and SAP AG to perform such obligations.
4. In no event shall Licensee have the right to access the applicable
deposited materials if SAP America, Inc. or SAP AG perform SAP's maintenance
obligations under this Agreement.
5. In the event of release under this Agreement, Licensee agrees that
it will treat and preserve the deposited materials as a trade secret of SAP AG
in accordance with the same precautions adopted by Licensee to safeguard its own
trade secrets against unauthorized use and disclosure and in all cases at least
with a reasonable degree of care. Release under this provision shall not extend
Licensee any greater rights or lesser obligations than are otherwise provided or
Imposed under this Agreement. This provision shall survive any termination of
this Agreement.
11.9 Notices. All notices or reports which are required or may be given
pursuant to this Agreement shall be in writing and shall be deemed duly given
when delivered to the respective executive offices of SAP and Licensee at the
addresses first set forth above.
11.10 Force Majeure. Any delay or nonperformance of any provision of
this Agreement (other than for the payment of amounts due hereunder) caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, and the time for performance of such
provision, if any, shall be deemed to be extended for a period equal to the
duration of the conditions preventing performance.
11.11 Account Management. SAP shall assign the following individuals as
SAP representatives for escalation of any licensing or Maintenance related
issues:
SAP CONFIDENTIAL 15
16
Senior Management Representative Account Executive
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Vice President, Field Operations ▇▇▇-▇▇▇-▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
The above named individuals may be changed upon notice to Licensee.
11.12 Entire Agreement. This Agreement and each Appendix hereto
constitute the complete and exclusive statement of the agreement between SAP and
Licensee with respect to the subject matter hereof, and all previous
representations, discussions, and writings regarding such subject matter are
merged in, and superseded by, this Agreement. This Agreement may be modified
only by a writing signed by both parties. This Agreement and each Appendix
hereto shall prevail over any additional, conflicting, or inconsistent terns and
conditions which may appear on any purchase order or other document furnished by
Licensee to SAP.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly
executed this Agreement to become effective as of the date first above written.
DIGITAL COMMERCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Chief Financial Officer
---------------------------------
SAP PUBLIC SECTOR AND EDUCATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: President
---------------------------------
SAP CONFIDENTIAL 16