EXHIBIT 10.7
MARKETFIRST SOFTWARE, INC.
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (the "Agreement") is made and entered as of
January 1, 2000, (the "Effective Date"), by and between MarketFirst Software,
Inc., a Delaware corporation having its principal place of business at: ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("MarketFirst"), and SAP AG Inc., a German
corporation having its principal place of business at ▇▇▇▇▇▇▇▇▇▇. ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Customer").
The Parties hereto agree as follows:
1. Definitions
1.1 "Commencement Date" shall mean the date on which the Programs are
delivered by MarketFirst to Customer, or if no delivery is necessary,
the effective date set forth on the Order Form.
1.2 "Designated System" or "Designated Systems" shall mean the computer
hardware and operating system(s) designated on the Order Form.
1.3 "Price List" shall mean MarketFirst's applicable standard commercial
fee schedule that is in effect when a Program License or any other
product or service is ordered by Customer.
1.4 "Program" or "Programs" shall mean the computer software in object
code form owned or distributed by MarketFirst for which Customer is
granted a Program License pursuant to this Agreement; the media upon
which such software is delivered to Customer; the guides and manuals
for use of such software ("Documentation"); and Updates.
1.5 "Program License" shall mean the license granted Customer under
Section 2.
1.6 "Server Programs" shall mean those portions of the Programs that
reside and operate on the Designated System.
1.7 "Services" shall mean Installation Services, Training Services, and
Support Services, as each of those terms are defined in Section 3.
1.8 "Supported Program License" shall mean a Program License for which
Customer has paid Support Services for the relevant time period in
accordance with Section 3 below.
1.9 "Update" shall mean a subsequent release of the Program which is
generally made available for Supported Program Licenses at no
additional charge other than media and handling charges, which consists
of minor technical or functional additions or modifications to the
Programs, and which are identified by new digits to the right of the
decimal point (e.g., version 1.1 as an Update to version 1.0). Updates
shall not include any release, option or future product which
MarketFirst licenses separately, or any upgrade in features,
functionality or performance of the Program which MarketFirst licenses
separately.
1.10 "Upgrade" shall mean a subsequent release of the Program which is made
generally available for certain Supported Program Licenses obtaining
Premium Maintenance from MarketFirst (as described in Exhibit A), at no
additional charge other than media and handling charges, which consists
of significant technical or functional additions or modifications to
the Programs, and which are identified by new digits to the left of the
decimal point (e.g., version 2.0 as an Upgrade
to version 1.5). For any licensees not purchasing Premium Maintenance,
MarketFirst may license Upgrades separately. For purposes of this
Agreement, neither Updates nor Upgrades shall include software
templates created by MarketFirst known as "MarketFirst Blueprints".
1.11 "User" or "Users" shall mean an individual or individuals authorized by
Customer to use the Programs. The maximum number of Users that may use
the User Programs or access the Server Programs consistent with the
terms of licenses granted herein is specified on the Order Form.
1.12 "Simultaneous Programs" shall mean an encapsulation of an associated
set of documents and actions represented as a unique marketing program
within the MarketFirst Program Manager.
1.13 "User Programs" shall mean those portions of the Programs that reside
and operate on User Systems.
1.14 "User System" shall mean the computer hardware and operating systems
operated by Users in the course of their employment with Customer.
2. Program License
2.1 Order of Programs. The terms of this Agreement shall apply to each
Program License granted to Customer and to all services provided by
MarketFirst under this Agreement. When completed by the parties, the
Order Form(s) attached as Exhibit A to this Agreement shall evidence
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the Programs ordered by Customer, the Program Licenses granted and the
services to be provided to Customer hereunder. The terms and conditions
set forth in this Agreement shall control in the event that there are
different or additional terms or conditions set forth in an Order Form
or in any other purchase order form submitted by Customer or acceptance
or confirmation form issued by MarketFirst.
2.2 Rights Granted
2.2.1 Subject to the terms and conditions of this Agreement,
MarketFirst hereby grants to Customer a nontransferable,
nonexclusive license (the "Program License") to use the Programs
that Customer orders on a completed Order Form and Market First
provides to Customer under this Agreement, as follows:
2.2.1.1 To use the Server Programs solely for Customer's own
internal data processing operations, which use may be
in conjunction with other software programs, on the
Designated Systems or on a backup system if one or more
of the Designated Systems are inoperative, up to any
applicable maximum number of designated Users as set
forth in the Order Form; to use the User Programs
solely for Customer's own internal data processing
operations for and by up to the number of Users
indicated on the Order Form, provided, however, that
Customer may not relicense, sell, loan, rent, or
otherwise distribute the Programs or use the Programs
for third-party training, commercial time-sharing,
rental or service bureau use;
2.2.1.2 To use the copies of Documentation provided with the
Programs in support of Customer's authorized use of the
Programs; to reproduce Documentation, up to the number
of Users licensed, at no additional charge to Customer;
provided that all titles, trademarks, and copyright and
restricted rights notices shall be reproduced in all
such copies.
2.2.1.3 To copy the Programs for archival or backup purposes
only; provided that no other copies shall be made
without MarketFirst's prior written consent; all
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titles, trademarks, and copyright and restricted rights
notices shall be reproduced in all such copies; all
archival and backup copies of the Programs shall be
subject to the terms of this Agreement.
2.2.2 Customer shall not cause, permit, or attempt the reverse
engineering, disassembly or decompilation of the Programs.
2.2.3 MarketFirst shall retain all title, copyright and other
proprietary rights in and to the Programs. Customer does not
acquire any rights, express or implied, in the Programs, other
than those specified in this Agreement. In the event that
Customer makes suggestions to MarketFirst regarding new
features, functionality or performance that MarketFirst adopts
for the Programs, such new features, functionality or
performance shall become the sole and exclusive property of
MarketFirst, free from any restriction imposed upon MarketFirst
by the provisions of Section 7.1.
2.2.4 As an accommodation to Customer, MarketFirst may supply Customer
with pre-production releases of Programs (which may be labeled
"Alpha" or "Beta"). Customer acknowledges that these products
are not suitable for general use.
2.3 Transfer and Assignment
2.3.1 Customer may transfer a Program License within its organization
to another computer hardware and/or operating system (the
"Subsequent Designated System(s)") generally supported by
MarketFirst, upon notice to MarketFirst and so long as the total
number of Designated Systems does not exceed the maximum number
specified in the Order Form (Exhibit A); MarketFirst, in the
case of such a transfer, agrees to provide SAP, at no additional
cost, any conversion tools as may be available, and the same
support and maintenance services for the Subsequent Designated
Systems as was provided for the initial designated systems.
2.3.2 Neither this Agreement nor any rights granted hereunder, nor the
use of any of the Programs, may be sold, leased, assigned, or
otherwise transferred, in whole or in part, by Customer;
provided, however, that Customer may assign this Agreement in
connection with a merger, acquisition or sale of all or
substantially all of its assets unless the acquiring entity is a
direct competitor of MarketFirst. Any attempted assignment will
be void and of no effect unless permitted by the foregoing.
2.4 Verification. At MarketFirst's written request, not more frequently
than annually, Customer shall furnish MarketFirst with a certificate
executed by an officer of Customer (a) verifying that the Programs are
being used pursuant to the provisions of this Agreement, including any
User and other limitations; and (b) listing the locations, types and
serial numbers of the Designated Systems on which the Programs are run.
At its expense and upon reasonable prior notice to Customer and not
more frequently than annually, MarketFirst may audit Customer's use of
the Programs. Any such audit shall be conducted during regular business
hours at Customer's facilities and shall not unreasonably interfere
with Customer's business activities. If an audit reveals that Customer
has underpaid fees to MarketFirst as a result of unauthorized use or
copying of the Programs, Customer shall be invoiced for such underpaid
fees based on the Price List in effect at the time the audit is
completed plus interest thereon at the prevailing U.S. dollar prime
rate from the initial date of the unauthorized use. If the amount of
the underpayment exceeds 5% of the license fees paid, then Customer
shall also pay MarketFirst's reasonable costs of conducting the audit.
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3. Services
3.1 Installation /Risk of Loss. If ordered by Customer on the Order Form,
MarketFirst shall deliver the Programs and related Documentation to
Customer, and install the Programs on the Designated System(s) and
provide configuration assistance for the Programs as reasonably
requested by Customer for up to the number of person-days set forth in
Exhibit A ("Installation Services") at a time mutually agreed to by
the parties, subject to availability of the Designated System(s) and
fulfillment of Customer's obligations under this Section 3.1.
Customer will be solely responsible for completing all tasks that are
required to prepare Customer's site and equipment for the performance
of such services by MarketFirst, including without limitation all
items identified on MarketFirst's Site Preparation Checklist, the
terms of which are incorporated into this Agreement by reference.
Customer is responsible for any loss, damage or destruction to the
Programs upon successful implementation by MarketFirst; provided,
however, that MarketFirst shall bear the risk of loss, damage or
destruction to the Programs at the time that the Programs is in
MarketFirst's possession or as a result of MarketFirst's work with the
Programs. Replacement of lost or damaged Programs shall be at the cost
and expense of the party bearing the risk of loss at the time of the
loss or damage.
3.2 Training. If ordered by Customer on the Order Form, MarketFirst will
provide training in the functions and use of the Programs ("Training
Services"). Training Services will be conducted for up to the number
of days listed in Exhibit A and will be conducted at MarketFirst's
offices unless the parties otherwise agree. For training conducted at
Customer's facilities, Customer agrees to make available space and
facilities to accommodate up to ten (10) people. Additional training
may be provided by MarketFirst at MarketFirst's then-current rates.
3.3 Software Maintenance Support Services. If ordered by Customer on the
Order Form, MarketFirst will provide Support Services for the Programs
under the terms and conditions attached hereto as Exhibit B ("Support
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Services"), subject to the payment by Customer of the applicable fees.
MarketFirst reserves the right to modify its Support Services Policies
in its reasonable discretion upon notice to Customer.
3.4 Travel Expenses: SAP shall be obligated to make payments for travel
expenses arising out of any services performed by MarketFirst
personnel under this Agreement, only if such travel has been incurred
in accordance with SAP's travel policy (Incorporated into this
agreement as Exhibit C) as amended from time to time.
4. Term and Termination
4.1 Term. Each Program License granted under this Agreement shall remain
in effect perpetually unless the license or this Agreement is
terminated as provided in this Section 4.
4.2 Termination. Either party may terminate this Agreement or any license
upon written notice if one party materially breaches this Agreement
and (if capable of cure) fails to correct the breach within 30 days
following written notice from the other specifying the breach.
4.3 Effect of Termination. Termination of this Agreement or any license
shall not limit either party from pursuing other remedies available to
it, including injunctive relief, nor shall such termination relieve
Customer of its obligation to pay all fees that have accrued or are
otherwise owed by Customer under any Order Form, provided, however,
that Customer may terminate this Agreement in its sole discretion at
any time until March 30, 2000 without any License fees due to
MarketFirst. Customer agrees to pay for all Consulting Services
performed through the date of
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termination and any related expenses. The parties' rights and
obligations under Sections 2.2.3, 2.5, 3, 4, 5.1, 6 and 7 shall
survive termination of this Agreement.
4.4 Handling of Programs Upon Termination. If a license granted under
this Agreement expires or otherwise terminates, Customer shall (a)
cease using the Programs, and (b) certify to MarketFirst within one
month after expiration or termination that Customer has destroyed or
has returned to MarketFirst the Programs and all copies. This
requirement applies to copies in all forms, partial and complete, in
all types of media and computer memory, and whether or not modified or
merged into other materials. Before returning Programs to
MarketFirst, Customer shall acquire a Return Material Authorization
("RMA") number from Market First.
5. Replacement, Limited Warranties, Exclusive Remedies
5.1 Patent and Copyright Indemnity. MarketFirst shall indemnify, defend
and hold Customer harmless from and against any claims that the
Programs infringe any patent or copyright or misappropriate a trade
secret; provided that MarketFirst is given prompt notice of such claim
and is given information, reasonable assistance, and sole authority to
defend or settle the claim. In the defense or settlement of the
claim, MarketFirst may obtain for Customer the right to continue using
the Programs, replace or modify the Programs so that it becomes
noninfringing, provided that any such settlement shall not adversely
affect Customer's use of the Programs. MarketFirst shall have no
liability if the alleged infringement is based on (a) a modification
of the Programs by anyone other than MarketFirst; (b) the use of the
Programs on other than the Designated Systems or User Systems; (c) the
use of the Programs other than in accordance with the Documentation;
or (d) the use of the Programs after notice of the alleged or actual
infringement, from MarketFirst or any appropriate authority.
Customer agrees to defend, indemnify and hold MarketFirst harmless
from and against any and all claims, suits, proceedings, losses,
liabilities, damages, costs and expenses, including reasonable
attorney's fees ("Losses") made against MarketFirst by third parties
alleging personal or property damage as a result of Customer's use of
the Programs, as long as such proceedings are not based on third-party
claims of intellectual property infringement by the Programs.
5.2 Limited Warranties and Disclaimers
5.2.1 Limited Program Warranty. MarketFirst warrants that for a
period of one year from the Commencement Date, each unmodified
Program will perform in all material respects the functions
described in the Documentation. Further, MarketFirst warrants
that for a period of one year after the Commencement Date, each
unmodified Program will be Year 2000 Complaint, provided that
all third party products that exchange data with the Program do
so properly and accurately and in a form and format compatible
with the Program. For purposes of this Agreement, "Year 2000
Compliant" means that the Program, when used in accordance with
the Documentation and when processing data containing dates in
the year 2000 and in any preceding and following years,
including leap years, will (i) initiate and operate, (ii)
correctly store, represent and process dates, and (iii) not
cause or result in an abnormal termination or ending.
5.2.2 Limited Media Warranty. MarketFirst warrants that the tapes,
diskettes or other media upon which Programs are delivered to
Customer will be free of defects in materials and workmanship
under normal use for six months from the Commencement Date.
5.2.3 Limited Services Warranty. MarketFirst warrants that any
Services performed by MarketFirst under this Agreement will be
performed in a manner consistent with generally accepted
industry standards. This warranty shall be valid for six months
from performance of service.
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5.2.4 Disclaimers. MarketFirst does not warrant that the Programs
will meet Customer's requirements, that the Programs will
operate in the combinations which Customer may select for use,
that the operation of the Programs will be uninterrupted or
error-free, or that all Program errors will be corrected. PRE-
PRODUCTION RELEASES OF PROGRAMS AND COMPUTER BASED TRAINING
PRODUCTS ARE DISTRIBUTED "AS IS". THE WARRANTIES ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.3 Exclusive Remedies. For any breach of the warranties contained in
this Section 5, Customer's exclusive remedy and MarketFirst's entire
liability shall be:
5.3.1 For Programs. The correction of Program errors that cause
breach of this warranty, or if MarketFirst is unable to make
the Program operate as warranted, Customer shall be entitled,
at its discretion, to either recover the license fees paid to
MarketFirst, in which case Customer shall immediately hand back
to MarketFirst all deliverables under this Agreement, or claim
a reduction of license fees for the pro-rata functionality of
the Program which has been lost, amortized over a two (2) year
period since the Commencement Date, in which case Customer
shall remain entitled to use the Programs.
5.3.2 For Media. The replacement of defective media returned within
ninety (90) days of the applicable Commencement Date. Before
returning defective media to MarketFirst, Customer shall
acquire an RMA number from MarketFirst.
5.3.3 For Services. If MarketFirst is unable to perform the Services
as warranted, MarketFirst shall re-perform the Services and, if
MarketFirst is unable to provide Services that comply with the
applicable warranty, Customer shall be entitled to recover the
fees paid to MarketFirst for the unsatisfactory Services.
6. Payment
6.1 Invoicing and Payment. License fees shall be invoiced on March 31,
2000 and payable 30 days from invoice date. Service Bundles are
billed and payable in advance. Support Services fees shall be payable
in accordance with the terms of Exhibit B hereto. All other
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applicable fees shall be payable thirty (30) days from the invoice
date, and shall be deemed overdue if they remain unpaid thereafter.
Any amounts payable by Customer hereunder which remain unpaid after
the due date shall be subject to a late charge equal to 2% above the
base interest rate as adjusted by the European Central Bank from time
to time from the due date until such amount is paid. Customer agrees
to pay applicable media and shipping charges.
6.2 Other Expenses. Customer agrees to pay all reasonable out-of-pocket
expenses incurred by MarketFirst in performing the Services, including
airfare, hotel, and meals, for MarketFirst personnel performing
Services at Customer's site.
6.3 Taxes. The fees listed in this Agreement do not include taxes; if
MarketFirst is required to pay sales, use, property, value-added or
other taxes based on the licenses or services granted in this
Agreement or on Customer's use of Programs or services, then such
taxes shall be billed to and paid by Customer. This Section shall not
apply to taxes based on MarketFirst's income.
7. General Terms
7.1 Nondisclosure. By virtue of this Agreement, the parties may have
access to information that is confidential to one another
("Confidential Information"). Confidential Information shall include
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but not be limited to the Programs, source code, algorithms, formulas,
methods, know-how, processes, designs, new products, developmental
work, marketing requirements, marketing plans, customer names,
prospective customer names, the terms and pricing under this
Agreement, and all information clearly identified in writing at the
time of disclosure as confidential.
A party's Confidential Information shall not include information that
(a) is or becomes a part of the public domain through no act or
omission of the other party; (b) 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;
(c) is lawfully disclosed to the other party by a third party without
restriction on disclosure; or (d) is independently developed by the
other party. Customer shall not disclose the results of any
performance tests of the Programs to any third party without
MarketFirst's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of five
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 or to use each other's
Confidential Information for any purpose other than the implementation
of this Agreement. Each party agrees to take all reasonable steps to
ensure that Confidential Information is not disclosed or distributed
by its employees or agents in violation of the terms of this
Agreement. MarketFirst recognizes that Customer has the right to
independently develop or acquire software that would compete with the
Programs without use of the Confidential Information disclosed by
MarketFirst hereunder.
7.2 Limitation of Liability. EXCEPT FOR THE PARTIES`LIABILITY UNDER
SECTION 5.1 (INFRINGEMENT INDEMNITY) IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN
AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MarketFirst's liability
for damages hereunder shall, except in cases of willful misconduct or
in cases of infringement claims,, in no event exceed the amount of
fees paid by Customer under this Agreement, and if such damages result
from Customer's use of the Program or services, such liability shall
be limited to fees paid for the relevant Program or services giving
rise to the liability. The provisions of this Agreement allocate the
risks between MarketFirst and Customer. MarketFirst's pricing
reflects this allocation of risk and the limitation of liability
specified herein.
7.3 Governing Law. This Agreement and all matters arising out of or
relating to this Agreement, shall be governed by the laws of the State
of New York, excluding its conflict of law provisions.
7.4 Jurisdiction. Any legal action or proceeding relating to this
Agreement shall be instituted in a state court in New York, NY, or in
a federal court in the State of New York. MarketFirst and Customer
agree to submit to the jurisdiction of, and agree that venue is proper
in, these courts in any such legal action or proceeding. The
prevailing party shall be entitled to reasonable attorney fees and
expenses. - - Software will be physically installed in Germany - NY
is a fair compromise
7.5 Notices. All notices, including notices of address change, required
to be sent hereunder shall be in writing and shall be deemed to have
been given upon the date sent by confirmed facsimile or three (3) days
following the date such notice was mailed by first class mail, to the
addresses first set forth above. To expedite order processing,
Customer agrees that MarketFirst may treat documents faxed by Customer
to MarketFirst as original documents; nevertheless, either party may
require the other to exchange original signed documents.
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7.6 Severability. In the event any provision of this Agreement is held to
be invalid or unenforceable, the remaining provisions of this
Agreement will remain in full force.
7.7 Waiver. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for nonpayment or breach of
MarketFirst's proprietary rights in the Programs, no action,
regardless of form, arising out of this Agreement may be brought by
either party more than one year after the cause of action has accrued.
7.8 Export Administration. Customer agrees to comply fully with all
relevant export laws and regulations of the United States ("Export
Laws") to ensure that neither the Programs nor any direct product
thereof are (i) exported, directly or indirectly, in violation of
Export Laws; or (ii) intended to be used for any purposes prohibited
by the Export Laws, including, without limitation, nuclear, chemical
or biological weapons proliferation.
7.9 Relationship Between the Parties. MarketFirst is an independent
contractor; nothing in this Agreement shall be construed to create a
partnership, joint venture or agency relationship between the parties.
7.10 Product Reference. Customer agrees, upon request and with reasonable
notice from MarketFirst subject to Customer's consent in each specific
case, which shall not be unreasonably withheld, to reasonably act in
the capacity of a reference, discussing MarketFirst products utilized
and services received by Customer, with potential MarketFirst
customers or business partners.
7.11 Press Release. Customer agrees, upon request and with reasonable
notice from MarketFirst, to allow the use of its name and Program(s)
it has implemented, to be used in a MarketFirst press release,
announcing Customers acquisition and use of the Program(s). Customer
will have the right to review and approve the release before
publication, and such approval will not be unreasonably withheld or
delayed. If desired and agreed by both parties, a joint press release
may be issued. Under the joint release, both parties will agree on the
final version of the release prior to publication.
7.12 Successors. This Agreement shall inure to the benefit of the
successors and assigns of MarketFirst and, subject to the restrictions
on transfer or assignment herein set forth, shall be binding upon
Customer and Customer's successors and assigns.
7.13 Entire Agreement. This Agreement together with the exhibits,
appendices and attachments hereto constitutes the complete agreement
between the parties and supersedes all prior or contemporaneous
agreements or representations, written or oral, concerning the subject
matter of this Agreement and such exhibits, appendices and
attachments. This Agreement may not be modified or amended except in
a writing signed by a duly authorized representative of each party, no
other act, document, usage or custom shall be deemed to amend or
modify this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
SAP AG MarketFirst Software Inc.
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Signature: __________________________ Signature: ___________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title: _______________________________
Date:________________________________ Date: ________________________________
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EXHIBIT A TO SOFTWARE LICENSE AGREEMENT
MARKETFIRST SOFTWARE, INC.
ORDER FORM
PRODUCT ORDER FORM - LICENSING
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Client Name: SAP America, Inc.
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Authorized Contact Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Client Ordering Address:
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Client Phone Number:
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MarketFirst Agreement #:
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MarketFirst Agreement Type License
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1. Designated System (hardware & software environment) for the Products
described below:
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Operating System: NT Database: SQL Server Client: Windows 95/NT
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2. License Fees:
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List Discounted
A. MarketFirst Products: Qty. Unit Price Extended Price
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1) MarketFirst BASE License Fees includes: 1 $295,000 $295,000
- Includes Unlimited Simultaneous eMarketing Program
- Includes 1,000,000 Contact Database
- Includes one (1) instance of production software
- Includes one (1) development/test copy with usage consistent
with governing software license agreement
2) Additional 1,000,000 contact increments 0 $ 50,000 $ 0
3) SQR Report Writer Software 0 TBD $ 0
4) MarketFirst Annual Maintenance & Support 1 $124,950 $ 61,950
(21% of discounted license and contract
increment price)
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Total MarketFirst License Fee $295,000
First Year Maintenance and Support $ 61,950
Total SAP License and Maintenance Fees $356,950
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3. Professional Services
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A. MarketFirst Consulting Qty. Unit Price Extended Price
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Service Package Includes: 1 $40,000 $40,000 (A)
- 30 Days of Professional Services
- Train 3 Users at MarketFirst Facility
. MarketFirst Consulting rates are billable on a
time and materials basis at:
- Functional Consultant $2,000/day
- Technical Consultant $1,750/day.
- Training $495 per student/day
(A) Additional service bundles for packages of 30 days or more are available
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for a period of one year from the effective rates of $1,333
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4. Investment Summary
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Total License $295,000
Annual Support and Maintenance Fees $ 61,950
Total Professional Service Fees $ 40,000
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Total Investment $396,950
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5. Purchasing Information (please check one box and fill in the appropriate
information)
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[_] A Client purchase order will be provided upon signing of this Order Form.
[_] This Order Form shall be deemed a Client purchase order and is sufficient
to ensure timely payment by Client.*
[_] Purchase orders are not issued by Client and are not required for the
timely payment by Client.*
[_] A purchase order is forthcoming; however, it is not a condition for
payment and will not supercede the payment terms of the Agreement or this
Order. The PO# will be_______________________* (Note, a PO# must be
provided to process this order.)
*The invoice should be sent to the attention of _______________________
Except as set forth below, all MarketFirst Product and services obtained herein
are fully subject to the terms and conditions of the MarketFirst Agreement
referred to above.
The consulting services and the Product and license fees contained on this Order
Form are proposed separately. Client may acquire the Product licenses without
acquiring MarketFirst consulting services, and may acquire the Product licenses
and consulting services separately at the fees stated in this Order Form.
All services are provided on a time and materials basis and are separate from
any license fees. MarketFirst will warrant services under a separate warranty
which is unrelated to a Product warranty.
Customer Support for subsequent periods is based upon the pricing policies in
effect on the date of renewal.
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V. Taxes
All fees are quoted exclusive of applicable taxes. Customer is responsible
for sales taxes and all other applicable taxes, to be billed separately.
AGREED TO:
SAP AG MarketFirst Software Inc.
Signature: __________________________ Signature: ___________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title: _______________________________
Date:________________________________ Date: ________________________________
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EXHIBIT B TO SOFTWARE LICENSE AGREEMENT
MARKETFIRST SOFTWARE, INC.
SOFTWARE MAINTENANCE AGREEMENT
MarketFirst shall provide to Customer the following support and maintenance
services set forth in this Exhibit, upon payment of applicable Maintenance
Support fees described in Exhibit A.
1. Definitions.
Capitalized terms used in this Exhibit shall have the same meanings as in the
Agreement, unless otherwise defined herein. In addition, the following
definitions apply for this Exhibit:
1.1. "Error" means code which exists in a Program that causes the Program
to fail materially to execute correctly on the Designated System as
specified in the Documentation for such Program.
1.2. "Error Correction" means additional or replacement code of the
Program or other workaround provided by MarketFirst to remedy an
Error.
1.3. "Severity 1 Error" means an Error, which prevents Customer from using
the Program.
1.4. "Severity 2 Error" means an Error, which prevents Customer from using
a part of the Program or from completing a specific task within the
Program.
1.5. "Severity 3 Error" means an Error which does not prevent Customer
from using any part of the Program but may be a source of nuisance for
Customer's users due to perceived performance, usability or
presentation issues.
1.6. "Enhancement Request" means a request for Program functionality that
is in addition to or beyond the scope of the Program functions or
features as described in the Documentation.
2. Maintenance Services
2.1. Error Correction. During the term of this Exhibit, MarketFirst shall
use its best efforts to correct any Errors in the Programs within the
time frames described below, provided Customer gives MarketFirst
notice describing the Error. MarketFirst reserves the right to assign
a severity level to the reported Error. Customer shall be responsible
for installing Updates and Corrective Code Releases delivered to
Customer by MarketFirst in a timely manner. The time periods for
responding to reported Errors shall be as follows:
2.1.1. Severity 1 Errors. MarketFirst shall provide Customer with a
response within 24 hours of receiving the Error report. Within
three (3) working days of receiving the report, MarketFirst
will provide Customer with either a Corrective Code Release or
a solution suggestion for the Error.
2.1.2. Severity 2 Errors. MarketFirst shall provide Customer with a
response within three (2) working days of receiving the Error
report. Within ten (8) working days of receiving the report,
MarketFirst will provide Customer with either a Error
Correction or a solution suggestion for the Error.
13
2.1.3. Severity 3 Errors. MarketFirst shall provide Customer with a
response within five (3) working days of receiving the Error
report. Within fifteen (10) working days of receiving the
report, MarketFirst will provide Customer with a statement as
to the disposition of the reported Error. This may include
correcting the Error in a Error Correction or in an Update or
in a future Program release.
2.1.4. Enhancement Requests. MarketFirst shall provide Customer with
a response within five (5) working days of receiving the
Enhancement Request. Within fifteen (15) working days of
receiving the request, MarketFirst will provide Customer with
a statement as to the disposition of the Enhancement Request,
which MarketFirst shall determine in its sole discretion. This
may include providing the requested or similar functionality
in an Update or in a future Program release.
2.2. Customer Assistance. Customer agrees to provide MarketFirst with
printouts, as requested, and with sufficient support and test time on
Customer's equipment to duplicate the Error (which time shall not
unreasonably interfere with Customers normal operations), determine
that the Error is with the Programs covered hereunder, correct the
Error and determine that the Error has been corrected.
2.3. Current Release. MarketFirst's obligations under this Exhibit shall
apply only to those releases of the applicable Programs that are then-
currently supported by MarketFirst. MarketFirst shall have the right,
at any time after a particular release has been superseded by another
release, to terminate support with respect to the superseded release
upon giving not less than ninety (90) days notice. Notwithstanding
the foregoing, MarketFirst shall not terminate support for any release
sooner than one (1) year after general commercial availability of such
release and shall at all times provide support for the two most recent
releases of the Programs.
2.4. Telephone Support. During the term of this Exhibit, MarketFirst will
provide telephone consultation and advice to Customer regarding the
technical support of the Programs. Such telephone assistance, and all
other assistance provided by MarketFirst hereunder, shall be to
respond to Errors reported to MarketFirst, and shall be through only
the Authorized Contacts. The Authorized Contacts shall be responsible
for supporting Customer's other users of the Programs. Authorized
Contacts may telephone for problem resolution during the hours of 6
a.m. and 6 p.m. Pacific Time, Monday through Friday, excluding
MarketFirst holidays.
2.5. Limitations. MarketFirst shall have no obligation under this Exhibit
for the correction of Errors which are due to a breach by Customer of
the terms of this Exhibit or the Agreement,or to any modifications to
the Programs made by Customer. If MarketFirst agrees to remedy any
errors or problems not covered by the terms of this Exhibit, Customer
shall pay MarketFirst for all such work performed at MarketFirst's
then current standard time and materials charges (what are they? -
current rates reflected on the order form). Such amount shall be due
and payable within thirty (30) days of invoicing by MarketFirst.
Customer acknowledges that MarketFirst is under no obligation to
perform services with respect to a) any hardware or b) any software
which is not the Program.
3. Corrective Code Releases
Provided this Exhibit is in effect, MarketFirst agrees to deliver to Customer
one (1) copy of any Error Corrections to the Programs and one set of the
Documentation relating thereto. Unless otherwise agreed, such materials will be
sent to the location for shipment set forth on Exhibit A hereto. MarketFirst
shall deliver Updates as provided in the Agreement. Upon delivery of any
Update, Error Correction, or Documentation, such Update, Error Correction or
Documentation shall be considered part of the Programs and shall be subject to
the terms and conditions of the
14
Agreement.
4. Maintenance Fees; Updates and Upgrades
Customer shall pay to MarketFirst the annual maintenance fees designated in
Exhibit A of the Agreement upon the terms provided therein. Fees shall be
payable in advance and shall accrue commencing upon delivery of the Programs
under the Agreement, and upon each annual anniversary date thereafter. If
Customer orders Standard Maintenance on the Order Form, then MarketFirst shall
deliver Updates to Customer at no additional charge, as such Updates are created
by MarketFirst in its discretion. If Customer orders Premium Maintenance on the
Order Form, then MarketFirst shall deliver Updates and Upgrades to Customer at
no additional charge, as such Updates and Upgrades are created by MarketFirst in
its discretion.
5. Term and Termination
5.1. Term. Maintenance services under this Exhibit shall begin on date of
delivery of the Programs under the Agreement. Thereafter, and on each
on each annual anniversary date thereafter, subject to receipt of
payment in advance, the Agreement shall continue for a term of one
year.
5.2. Termination. This Exhibit will terminate upon termination of the
Agreement or on an annual anniversary date if payment has not been
received by MarketFirst in full prior to the commencement of the
corresponding term of one year. In addition, if Customer fails to
install Updates or take corrective actions as suggested by MarketFirst
and this results in recurring Error reports, MarketFirst reserves the
right to terminate this Exhibit.
5.3. Charges. In the event of termination, all fees or charges then due and
payable, or to become due and payable in the future based upon
services already rendered, shall be immediately due and payable and
Customer's obligations to pay such amounts shall survive the
termination of this Exhibit.
AGREED TO:
SAP AG MarketFirst Software Inc.
Signature: __________________________ Signature: ___________________________
Name:________________________________ Name:_________________________________
Title:_______________________________ Title: _______________________________
Date:________________________________ Date: ________________________________
15
Exhibit C
SAP TRAVEL POLICY
SAP America's travel agency is American Express One (Formally Travel One). All
business travel reservations including hotel and car requests must be made
through American Express One at ▇-▇▇▇-▇▇▇-▇▇▇▇.
Airline Agreements:
-------------------
Our agency has been given specific instructions to book only on our contracted
preferred airline carriers where we have negotiated substantial discounts.
American Express will not offer and/or book off our contracted carriers UNLESS
our preferred carriers do not offer service into the requested destination
within a 90 minute window or nonstop service is unavailable on the preferred
carrier.
Our agency will offer economy class non-refundable tickets only. Economy class
non-refundable tickets can be hundreds of dollars less than a fully refundable
fare. If the individual booked a non-refundable class and their travel plans
changed, they must return the tickets immediately to American Express One and
the ticket value will be placed on account for the individual with that
particular airline for future travel.
Back to back tickets are considered illegal in the travel industry. SAP America
does not condone the usage of back to back tickets and American Express One will
not issue such tickets.
Hotel Agreements:
-----------------
SAP America has signed agreements with specific hotel franchises throughout the
United States and our agency will offer you a preferred property reflecting the
SAP America negotiated rate.
Car Rental Agencies:
--------------------
All car rentals must be arranged through American Express One. Our agency is
required to book the preferred car rental agencies, Hertz and Alamo. All
individuals are expected to pay the rental expense and then report the cost for
reimbursement purposes.
Midclass (Class C) automobiles will be used by all individuals. All rental cars
should be refueled prior to being returned to avoid a fuel surcharge. For
insurance purposes, please refer to your companies corporate policy. SAP
America is not responsible for any insurance liability.
16
Personal Auto Reimbursement:
----------------------------
Use of an individuals personal automobile for company business will be
reimbursed at the current rate of $.315 per mile for actual miles driven. In
addition, tolls and parking fees will be reimbursed as long as the proper
receipt is included.
Meals:
------
Business Travel: The actual cost of meals incurred while traveling overnight on
business will be reimbursed not to exceed the following schedule:
A - Breakfast $10.00
B - Lunch $15.00
C - Dinner $35.00
Meals for individuals, including lunch, who are not staying overnight on
business are at the expense of the individual.
Expenses:
---------
Original receipts must be obtained for all expenses. Handwritten receipts or
stubs will not be accepted.
The use of taxi, subway and hotel shuttles are reimbursable expenses but a
receipt is necessary to obtain reimbursement.
Misrepresentation of expenses is considered a gross misconduct and grounds for
termination of the agreement between the individuals company and SAP
17