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EXHIBIT 10.54
SAP KOREA
R/3 SOFTWARE END-USER VALUE LICENSE AGREEMENT
THIS R/3 SOFTWARE END-USER VALUE LICENSE AGREEMENT, together with all Exhibits
and Appendices hereto (hereinafter referred to as "Agreement") is made effective
between SAP Korea Ltd. (hereinafter referred to as "SAP") and Hyundai
Information Technology Co., Ltd. (hereinafter referred to as "Licensee") in
regard to a license to Use (as defined herein) the R/3 Software (as defined
herein) upon the terms and conditions hereinafter set forth. The effective date
of the Agreement and the official name of Licensee are stated in the last page
of the Agreement.
RECITAL
WHEREAS, SAP and Licensee have concluded a SAP Korea R/3 Software End-User Value
License Agreement signed on 30 June 1996 (hereinafter referred to as "End-User
Agreement").
WHEREAS, SAP sent Licensee a letter titled "ADDITIONAL MATTERS AS TO SAP KOREA
R/3 SOFTWARE END-USER VALUE LICENSE AGREEMENT" dated 7 October 1996 (hereinafter
referred to as "Letter").
WHEREAS, both SAP and Licensee desire to conclude the Agreement to supersede the
terms and conditions of the End-User Agreement and the Letter into the Agreement
so that both parties hereto can improve and expand the business relations
between them.
WHEREAS, SAP and Licensee agree that Licensee is the only counter-party herein
for the Agreement with SAP for any companies within the Hyundai Group as set out
in Exhibit B.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
contained, SAP and Licensee agree as follows:
1. DEFINITIONS.
1.1. "ABAP/4 Development Workbench Users" means those individuals, who by
password allocation, are authorized to log on to the Software to use the ABAP/4
Development Workbench tools to create Modifications and Extensions to the
Software and in-house developments. Such Users may also be referred to as "D/W
Users". Each D/W User must also be licensed as a Basis/Workflow User.
1.2. "Affiliate" means a corporation located in the Territory controlling,
controlled by or under common control with Licensee. For purposes of this
definition, "control" means the power to direct the management or policies of an
entity, directly or indirectly, through the ownership of securities.
"Controlling" and "controlled" have corresponding meanings. Any such corporation
shall be considered an Affiliate for only such time as such relationship
continues to exist. Affiliates shall mean the companies in the Hyundai Group as
set out in Exhibit B and their future successors.
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1.3. "Application Database" means an integrated set of files used with the
Software which contain data and information for supporting the business
operations of Licensee and its authorized Affiliates, including master data and
associated transaction detail, system tables, and internal control information.
An Application Database shall not contain more than one Third Party Database
management system.
1.4. "Application Server" means each individual server connected to each
Designated Unit into which the Software is downloaded from such Designated Unit
for presentation to a computer terminal or workstation.
1.5. "Basis/Workflow Users" means those individuals, who by password allocation,
are authorized to log on to the Software solely for the purpose of executing the
following transactions (i) e-mail; (ii) calendar functions; (iii) entering
travel arrangements and expenses; (iv) document management including optical
archiving; (v) workflow organizational management (vi) monitoring and
administration of the Software; (vii) creating IDocs; (viii) entry and approval
of vacation applications; (ix) initializing workflows; and (x) in the event
Human Resources functionality is licensed, all transactions contained in such
Human Resources functionality.
1.6. "Correction Level" means an update to, correction of, or further
developmental work in the Software as between Versions and is identified by the
letter following the Version identifier (e.g., 2.1A).
1.7. "Designated Site" means those facilities of Licensee or of Affiliate(s)
located in the Territory in which one or more Designated Units are located and
which are identified in Appendices to this Agreement.
1.8. "Designated Unit" means each individual computer located at a Designated
Site in which the Software and the Third Party Database are installed. Each
Designated Unit must be approved by SAP as compatible with the Software and the
Third Party Database and must be identified as specified in Appendices hereto.
1.9. "Documentation" means SAP's standard documentation, in human or
machine-readable format in any medium, which is delivered to Licensee under this
Agreement including SAP's standard manuals, program listings, data models, flow
charts, logic diagrams, input and output forms, functional specifications and
instructions, and complete or partial copies of the foregoing.
1.10. "Extension" means an addition to the Software which does not require a
Modification.
1.11. "Information Users" means those individuals, who by password allocation,
are authorized to log on to the Software solely to "read only" Software
transactions for internal information purposes and are not authorized to input
data, write data, or execute Software transactions. Each Information User must
also be licensed as a Basis/Workflow User.
1.12. "Korea" means the Republic of Korea.
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1.13. "Modification" means a change to the Software which changes the source
code.
1.14. "Multiple Utilization" means the installation of the Software on more than
one Designated Unit for Productive Use, or the setting up of more than one
Application Database on one Designated Unit for Productive Use. Multiple
Utilization of the Software may subject Licensee to payment of additional
license fees.
1.15. "Named Users" means those individuals who by password allocation are
authorized to log on to the Software and execute Software transactions. Named
Users may also be referred to as "Operational Users". Each Named User must also
be licensed as a Basis/Workflow User.
1.16. "Non-Productive Use" means Use of the Software solely for Licensee's or an
authorized Affiliate's internal training or testing.
1.17. "Productive Use" means Use of the Software solely to operate Licensee's or
an authorized Affiliate's business, including Electronic Data Interchange
transactions and developmental work.
1.18. "Program Concepts" means the concepts, techniques, ideas and know-how
embodied and expressed in any computer programs or modules included in the
Software, including the structure, sequence and organization of such programs or
modules.
1.19. "Proprietary Information" means: (i) with respect to SAP: the Software and
the Documentation and any complete or partial copies thereof, the Program
Concepts, SAP licensers' Third Party Database, any other third-party software
licensed with or as part of the Software ("Other Third Party Software"),
benchmark results, and any other information identified or reasonably
identifiable as confidential and proprietary information of SAP, SAP AG, or
their licensers ("SAP Proprietary Information"); and (ii) with respect to
Licensee: information identified or reasonably identifiable as the confidential
and proprietary information of Licensee
("Licensee Proprietary Information"), provided that any part of the SAP or
Licensee Proprietary information which: (a) is or becomes publicly available
through no act or failure of the other party, or (b) was or is rightfully
acquired by the other party from a source other than the disclosing party prior
to receipt from the disclosing party, or (c) becomes independently available to
the other party as a matter of right shall be excluded.
1.20. "Release" means each issuance of the Software by SAP AG which incorporates
SAP AGs most recent technological functionality and is identified by the numeral
to the left of the decimal point (e.g., 2.0).
1.21. "Requisition and Confirmation Users" means those individuals, who by
password allocation, are authorized to log on to the Software solely for the
purpose of submitting purchase requisitions or entering order completion
confirmations. Such Users may also be referred to as "R/C Users". Each R/C User
must also be licensed as a Basis/Workflow User.
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1.22. "SAP AG" means SAP Aktiengesellschaft, a German corporation, having
offices located at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and the parent
company of SAP.
1.23. "Single Utilization" means Productive Use and Non-Productive Use of the
Software on one Designated Unit with one Application Database.
1.24. "Software" means: (i) all R/3 software specified in agreed upon Appendices
hereto, in machine- or human-readable form, developed by or licensed to 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 or replacements of any of the foregoing.
1.25. "Territory" means the country of Korea and any additional countries as
agreed upon in advance in writing by the parties as set out in Exhibit A
1.26. "Third Party Database" means a third-party proprietary database described
in Section 2.5.
1.27. "Use" means to load, execute, employ, utilize, store, or display the
Software. Use is deemed to occur on the Designated Unit(s) where any of such
processes occur and at any Application Server or computer terminal or
workstation that initiates or is activated by these processes.
1.28. "Users" means any combination of Named, Information, R/C, D/W or
Basis/Workflow Users licensed under this Agreement. Each User must be separately
licensed for Use in each functional block of the Software required and for each
Licensee company code of each Application Database for which access to the
Software is required.
1.29. "Version" means each issuance of each Release of the Software developed by
SAP AG which has incorporated further development work within the technology of
that Release and is identified by the numeral to the right of the decimal point
(e.g., 2.1).
2. LICENSE GRANT.
2.1. Right to Use.
(a) Subject to this Agreement SAP grants and Licensee accepts a
non-exclusive, nontransferable license to Use the Software, the Documentation,
the Third Party Database and other SAP Proprietary Information provided by SAP
to Licensee for Productive and Non-Productive Uses. Licensee agrees that this
license does not permit Licensee to: (i) Use the Software and the Third Party
Database for a service bureau application; or (ii) sublicense, or otherwise
transfer, assign, or rent the Software or the Third Party Database.
(b) Licensee agrees to install the Software and the Third Party Database
only on Designated Unit(s) located at Designated Site(s) as agreed to by the
parties in Appendices hereto. Licensee further agrees to Use the Software and
the Third Party Database only in accordance
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with the Documentation. Licensee may connect multiple Application Servers to
each Designated Unit and connect a network of computer terminals and
workstations to the Application Servers.
(c) Licensee may transfer the Software and the Third Party Database from
one Designated Unit to another at a licensed Designated Site upon prior written
notice to SAP. The Software and the Third Party Database must be promptly
deleted in its entirely from the Designated Unit no longer in Use and from each
archival and back-up copy for that Designated Unit.
(d) If Licensee is unable to Use the Software and the Third Party
Database on a Designated Unit because of conditions beyond its control, Licensee
may temporarily install the Software and the Third Party Database on equivalent
equipment located within the Territory until such condition is corrected;
provided that (i) Licensee takes the same measures with respect to the temporary
installation to prevent unlicensed access to and Use of the Software and the
Third Party Database; and (ii) Licensee shall provide written notice to SAP
within two business days of such installation.
(e) Licensee is licensed to install at the Designated Site no more than
four copies of the Software and the Third Party Database on Designated Unit(s)
for Non-Productive Use. Designated Unit(s) utilized for Non-Productive Use of
the Software and the Third Party Database must be of the same type as those used
at the Designated Site for Productive Use. Only one copy of the Software and one
copy of the Third Party Database is licensed for Productive Use on each
Designated Unit of the Designated Site, unless otherwise agreed upon in writing
by SAP.
2.2. Use of Software by Affiliates. SAP agrees that Affiliates may Use the
Software, the Documentation, the Third Party Database and other SAP Proprietary
Information; provided that prior to any Affiliate's Use of the Software, the
Documentation, the Third Party Database and other SAP Proprietary Information:
(i) each Affiliate shall sign and deliver to SAP a copy of Appendix 2 to this
Agreement (in the form attached hereto) certifying its agreement to be bound by
the terms herein; and (ii) such Use by such Affiliate shall be subject to the
following: (A) Licensee accepts responsibility for the acts or omissions of such
Affiliates as if they were Licensee's acts or omissions; (B) Licensee shall
indemnify SAP and SAP AG against losses or damages suffered by SAP or SAP AG
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
the Software, the Documentation, the Third Party Database and other SAP
Proprietary Information under all applicable laws and regulations.
2.3. Audit Right.
(a) The maximum number of Users applicable to the Software licensed
hereunder shall be specified in Appendices to this Agreement. Licensee shall
promptly provide written notice to SAP if the number of Users exceeds such
maximum number.
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(b) Licensee and its authorized Affiliates shall allow access to the
Software, the Documentation, the Third Party Database and other SAP Proprietary
Information provided to Licensee and/or Affiliates only to employees or agents
of Licensee or its authorized Affiliates acting within the scope of a formal
employment or agency relationship.
(c) During normal business hours and at any time during which the
Software, the Documentation, the Third Party Database and other SAP Proprietary
Information are being utilized, SAP, or its authorized representatives or
licensers, shall have the right upon reasonable advance notice, to enter into
the premise(s) of Licensee or any Affiliate and to audit and inspect Licensee's
or any Affiliate's utilization of such items, in order to verify compliance with
the terms of this Agreement.
2.4. Archival Copy; Restriction on Copies; Legends to be Reproduced.
(a) Licensee may make one copy of the Software and the Third Party
Database at each Designated Site for archival purposes and such number of backup
copies of the Software and the Third Party Database consistent with Licensee's
normal periodic backup procedures.
(b) Licensee may reproduce or copy any portion of the Documentation into
machine-readable or printed form for its internal use only as required to
exercise its rights hereunder.
(c) Licensee shall include SAP's and SAP's Third Party Database
licensers' copyright trademark, service ▇▇▇▇, and other proprietary notices on
any complete or partial copies of the Software, the Documentation, the Third
Party Database or other SAP Proprietary Information in the same form and
location as the notice appears on the original work.
2.5. Runtime License for Application Database. The Software requires a Third
Party Database which may be licensed through SAP (the "Runtime License") or
directly as a full license ("Full License") from a Third Party Database licenser
approved by SAP. Licensee shall certify in an Appendix to this Agreement either
that it shall use and maintain the Runtime License from SAP or that it has
obtained and will maintain a Full License from a Third Party Database licenser.
In the event Licensee obtains a Full License directly from a Third Party
Database licenser, the license grant in this Section 2 shall be restricted to
such extent required to implement those restrictions imposed on Licensee
directly by such Third Party Database licenser. This Agreement shall terminate
automatically if, for any reason: (i) Licensee fails to obtain or maintain a
Runtime License or Full License; or (ii) Licensee's Runtime License or Full
License terminates prior to the termination of this Agreement SAP makes no
representations or warranties as to the Third Party Database or its operation.
3. DELIVERY AND INSTALLATION.
3.1. Delivery. The Licensed number of copies of the Software and the Third Party
Database in machine-readable format and the Documentation, shall be delivered to
Licensee's Designated Sites during the period specified in Appendices hereto
("Delivery").
3.2. Installation; Support Services.
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(a) Licensee shall be responsible for installation of the Software and
the Third Party Database. At Licensee's request and on terms to be agreed upon,
SAP shall install the Software and the Third Party Database. SAP's installation
services are limited to loading the Software and the Third Party Database into
the Designated Unit and testing the Software using SAP's standard set of test
data. Licensee shall be responsible for configuring and installing any required
disk storage systems, network software, Application Servers, Designated Units,
and computer terminals and workstations prior to installation of the Software
and the Third Party Database. Installation shall be deemed successful and
completed when the Software and the Third Party Database are loaded on a
Designated Unit and are ready for Use.
(b) At Licensee's request and on terms to be agreed upon separately, SAP
may agree to provided pre-installation support installation support training,
and consulting services for the Software.
(c) On the basis that support services shall be chargeable, SAP shall
make its best efforts to secure qualified and eligible resources for Licensee.
4. PRICE AND PAYMENT.
4.1. License Fees. In consideration of the license granted hereunder, Licensee
shall pay to SAP license fees as set forth in Appendix 1 hereto ("License
Fees"). The amount of License Fees shall be calculated based on the total number
of Users, the Software and the Third Party Database licensed, and the payment
terms for such License Fees shall be specified in Appendix 1 hereto. Fees for
Maintenance Services ("Maintenance Fees") shall be paid as set forth in Section
7.4.
4.2. Taxes. License and Maintenance Fees and other charges described in this
Agreement and its Appendix, or in SAP's most recent list of prices and
conditions, do not include national, provincial, municipal or local sales, use,
property, excise, consumption, service, import withholding, value-added or other
taxes now or hereafter levied, all of which shall be for Licensee's account. Any
taxes, duties or amounts in lieu thereof paid or payable by SAP in respect of
any such taxes or duties on such fees or charges (excepting only taxes on net
income) shall be added to Licensee's payment obligations as an additional fee
which shall be due within thirty days after dispatch of SAP's invoice to
Licensee therefor.
4.3. Expenses. Daily fees, pre-approved travel expenses, and incidental expenses
relating to support services shall be paid as set forth in SAP's then current
List of Prices and Conditions. SAP shall ▇▇▇▇ such fees and expenses monthly,
attaching time sheets or other records customarily used by SAP.
5. TERM AND TERMINATION.
5.1. Term. This Agreement and the license granted hereunder shall become
effective on the effective date stated in this Agreement upon execution by both
parties and shall continue in effect thereafter unless terminated under Section
5.2.
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5.2. Termination. This Agreement and the license granted hereunder may be
terminated 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; (ii) thirty days after SAP gives Licensee notice of Licensee's
material breach of any of the Agreement (other than Licensee's breach of its
obligations under Sections 6 or 12, which breach shall result in immediate
termination), 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) immediately if any of the following events exists or
occur with respect to Licensee: (A) a petition for attachment or injunction,
whether provisional or permanent public sale, or a proceeding in bankruptcy,
composition, rearrangement or reorganization has been filed, or any liquidation
has commenced; (B) any demand for payment of unpaid taxes or assessments has
been received, or any attachment to secure the payment of such taxes or
assessment has been levied; (C) competent authorities have ordered to suspend
the business or to revoke or otherwise terminate any permits, rights, or
privileges required for the conduct of the business; (D) any resolution of the
assignment or cessation of the whole or material part of business has been made;
(E) any note or check has been dishonored; or (F) the assets, business, credit
and the like has been seriously impaired, or there is any indication leading to
a reasonable belief of the likelihood of such impairment.
5.3. Effect of Termination. Upon any termination of this Agreement Licensee
shall immediately pay all amounts due to SAP; Sections 6, 8.6, 9, 10, 11, 13.6,
and 13.8 shall survive such termination; Licensee's rights under Section 2 shall
immediately cease; and SAP and Licensee each shall perform its obligations under
Section 6.3.
5.4. No Refund. In the event of any termination hereunder, Licensee shall not be
entitled to any refund of any payments made by Licensee, except as expressly
stated otherwise in this Agreement
6. PROPRIETARY RIGHTS.
6.1. SAP Proprietary Information.
(a) Licensee acknowledges and shall cause its authorized Affiliates to
acknowledge in writing that ownership of and title 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 SAP AG and their respective licensers. Licensee acquires only the right to
Use the SAP Proprietary Information under the terms and conditions of this
Agreement and does not acquire any ownership rights or title in or to the SAP
Proprietary Information and that of their respective licensers.
(b) Licensee shall not copy, translate, disassemble, or decompile the
Software and the Third Party Database, nor create or attempt to create, by
reverse engineering or otherwise, the source code from the object code of the
Software and the Third Party Database or use the object code or source code of
the Software and the Third Party Database to create a derivative work, unless
authorized in writing by SAP. 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 from Licensee's Designated
Unit(s), Application Server(s), and computer
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terminals or workstations, data files, and archival and backup copies whenever a
future Release, Version, or Correction Level provides for like functionality in
an object code formal Other than as specified herein, any tools licensed with or
included in the Software may not be copied, in whole or in part without the
express written consent of SAP.
(c) Licensee shall not remove any proprietary, copyright trademark, or service
▇▇▇▇ legend from the Software, the Documentation, the Third Party Database or
other SAP Proprietary Information.
(d) Licensee shall maintain a log of the number and location of all originals
and copies of the Software and the Third Party Database. The inclusion of a
copyright notice on any portion of the Software , the Documentation, the Third
Party Database or other SAP Proprietary Information shall not cause or be
construed to cause it to be a published work.
(e) All Modifications and Extensions to the Software, and all changes and
additions to the Documentation shall be considered part of the Software and the
Documentation for purposes of this Section 6.
6.2. Protection of Proprietary Information. In order to protect the rights of
SAP, SAP AG and their licensers and Licensee in their respective Proprietary
Information, SAP and Licensee agree as follows:
(a) 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 bona fide employees, officers,
directors or consultants of such party whose access is necessary to enable such
party to exercise its rights hereunder. Each party agrees that prior to
disclosing any Proprietary Information of the other party to any consultant it
shall obtain from that consultant a written acknowledgment that such consultant
shall be bound by the same terms as specified in this Section 6 with respect to
the Proprietary Information.
(b) Licensee and SAP acknowledge that any disclosure to third parties of
Proprietary Information may cause immediate and irreparable harm to the owner of
the Proprietary Information; therefore, each party agrees to take all reasonable
steps and protective precautions to protect the Proprietary Information from
disclosure to third parties.
6.3. Duties Upon Termination. Upon any termination hereunder, Licensee and its
authorized Affiliates shall immediately cease Use of the Software, the
Documentation, the Third Party Database and other SAP Proprietary Information
and shall irretrievably delete and/or remove such items from all Designated
Units, Application Servers, computer terminals, workstations, data files, and
Designated Sites. Within ten days after any termination, Licensee shall deliver
to SAP at Licensee's expense (adequately packaged and insured for safe delivery)
or, at SAP's request destroy all copies of the SAP Proprietary Information in
every form. Licensee further agrees to erase the Software, the Documentation,
the Third Party Database and other SAP Proprietary Information from any storage
media. Licensee agrees to have one of its officers, with
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the express authority to make such a representation, certify in writing to SAP
that Licensee and each of Licensees authorized Affiliates has performed the
foregoing. Within ten days after the date of termination, SAP shall return the
Licensee Proprietary Information to Licensee.
6.4. Modifications and Extensions.
(a) Licensee may make Modifications and Extensions for Use on Designated
Units under the terms set forth in this Section 6.4.
(b) In the event Licensee without SAP's participation develops any
Extension or Modification (hereinafter referred to as "Licensee Extension" or a
"Licensee Modification".) to the Software, Licensee shall have all rights, title
and interest in such Licensee Extension or Licensee Modification subject to
SAP's rights in the Software. Licensee agrees, however, that such Licensee
Extension or Licensee Modification will be used solely in connection with
Licensees and its Affiliates' business operations, and that such Licensee
Extension or Licensee Modification will not be marketed, licensed or
sublicensed, sold, assigned, or otherwise transferred or made available to any
third party or other entity, without the express prior written consent of SAP,
which consent shall not be unreasonably withheld. Licensee agrees to offer SAP
the right of first refusal to any license to or assignment of such Licensee
Extension or Licensee Modification and SAP agrees to negotiate in good faith for
a mutually agreeable license or other arrangement for such rights.
(c) In the event SAP develops either independently, or jointly with
Licensee, any Extension or Modification to the Software, such Extension or
Modification shall be the exclusive property of SAP and SAP AG, and Licensee
will not grant either expressly or implicitly, any rights, title, interest or
licenses to such Modifications or Extensions to any third party. Licensee shall
be entitled to Use such Modification or Extensions on the Designated Unit (s) at
the Designated Site(s) under the terms set forth in this Agreement.
(d) The parties hereto agree that the granting of any rights, title, or
interest to Licensee in any Extension or Modification (including Licensee
Extensions and Licensee Modifications) shall not be construed by the parties
hereto, or any court of law, to mean that SAP has granted or given up any
rights, title, or interest in or to the SAP Proprietary Information or any part
thereof.
(e) Licensee agrees that it will not modify the Third Party Database and
any other provided third-party software hereunder, unless expressly authorized
in writing by such third-party vendor.
(f) In the event when Licensee carries out Modifications, Licensee shall
require a set up code from SAP for each Modification and shall register all
Modifications to the Software to SAP prior to making such Modifications.
Modifications may be used only on the Designated Units).
(g) Licensee agrees to: (i) keep and adequate and current records of all
Software Modifications (which records shall be made reasonably available to
SAP); (ii) promptly disclose
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to SAP and provide copies to SAP of any Software Modification in which SAP or
SAP AG has ownership rights; and (iii) 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.
7. MAINTENANCE.
7.1. Maintenance Services.
(a) Following the expiration of the Warranty Period (as defined in
Section 8), and for such period as Licensee may elect in writing, but only for
so long as SAP makes such services generally available in Korea, Licensee may
request maintenance services (Maintenance Services') from SAP with respect to
the Software. Maintenance. Services by SAP, unless expressly agreed otherwise in
writing, are limited in total to four (4) Designated Sites which shall be
specified in Appendix 1 hereto. Maintenance Services include the delivery of
Releases and Versions, the correction of defects, and SAP's On-line Software
Services, and, if separately purchased at fees and terms to be agreed upon,
SAP's Early Watch Services. In order to receive Maintenance Services hereunder,
Licensee at its own expense must make all required remote support and update
connections to each Designated Unit as requested by SAP.
(b) Maintenance Services shall not include the other services referenced
in Section 7.3 and shall be offered only for the most recent Version and the
Version immediately prior thereto. Whenever a new Release shall become
commercially available, Maintenance Services will be offered for such new
Release and the latest Version of the prior Release only until such time as a
new Version becomes available.
7.2. New Releases and Versions. Upon Licensee's request and provided that
Licensee has purchased Maintenance Services from SAP, SAP shall deliver new
Releases and Versions and related Documentation to the Licensee at the
Designated Sites for which SAP has Maintenance Services responsibility.
Maintenance Services do not include the delivery of any software and
documentation which SAP offers as separate products which have not been licensed
by Licensee.
7.3. Other Services. All other services not referred to in this Section 7 shall
be agreed upon separately and shall be subject to additional charges, including
without limitation, the installation of new Releases and Versions, the
incorporation of Modifications or Extensions into new Releases or Versions and
related Documentation, and the adaptation of any authorized Modifications or
Extensions developed by or for Licensee to new Releases or Versions.
7.4. Payment of Maintenance Fees. Unless otherwise specified in Appendix 1
hereto, Maintenance Fees shall be paid annually in advance in an amount
calculated as the then current percentage factor multiplied by the net License
fees for the Software licensed hereunder.
7.5. Termination of Maintenance Services. Maintenance Services may be terminated
by Licensee in writing at any time upon three months prior written notice.
Maintenance Services may be terminated by SAP upon three months prior written
notice to Licensee in the event SAP does not make such services generally
available in Korea. In the event of such termination by SAP, SAP shall refund
the Maintenance Fees to Licensee on a pro-rata basis.
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8. PERFORMANCE WARRANTY.
8.1. Warranty Period; Warranty. SAP warrants that the Software will
substantially conform to the functional specifications contained in the
Documentation for six months following Delivery (the "Warranty") and will
perform, when in Use without material alteration on the Designated Unit (s), in
accordance with the Functional specifications set forth in the Documentation.
SAP's warranty is subject to Licensee providing SAP and SAP AG necessary access,
including remote access, to the Software.
8.2. Licensee's Defect Reports. Licensee must specifically identify to SAP the
nature of the perceived Software defect which causes the Software not to conform
substantially to the functional specifications and must specifically describe
the conditions under which the perceived defect occurs. On SAP's request
Licensee shall deliver such information in written form. Licensee shall provide
SAP with sufficient test time and support on Licensees Designated Unit(s) to
duplicate the defect to verify that the defect is with the Software, and to
confirm that the defect has been corrected.
8.3. SAP's Obligation to Correct or Replace Defects. Should any component of the
Software fail to conform substantially to the functional s tons therefor during
the Warranty Period, SAP's sole obligation shall be, at SAP's option, to correct
the defect by bringing the performance of the Software into substantial
compliance with the functional specifications or to replace the defective
component SAP shall not be required to refund any payments made by Licensee with
respect to any component of the Software that is found to be defective. When
Productive Use of the Software is significantly restricted by a reported defect
and Licensee expressly so states in written form, SAP shall use its best efforts
to commence work on correcting the defect no later than the first working day
after receipt of the written notice, subject in each case to the provisions of
this Section 8.
8.4. Correction of Defects. SAP will deliver a correction of the defect in
writing and, if appropriate, in machine-readable form. Any installation shall be
the responsibility of Licensee unless otherwise agreed to in writing by the
parties. If, at Licensee's request SAP corrects a defect of any unsupported
Version or Release, SAP may request and Licensee shall pay, additional charges.
8.5. Scope of Warranty.
(a) The warranty set forth in this Section 8 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; or (iv) if the Software is not installed on a Designated Unit or
(v) to the extent that the defect is caused by or is contributed to by Licensee;
or (vi) Licensee does not provide access, including remote access, to the
Software as required under Section 8.1; or (vii) if the defect is caused by a
Third-Party Database malfunction or any other software malfunction than the
Software licensed herein.
(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
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applications contained in the Software are designed to meet all of Licensee's or
its authorized Affiliate business requirements.
(c) The Software, the Third Party Database and any other third party
software, are not specifically developed or Licensed hereunder for Use in any
direct and active operations 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, the Third Party Database and any other
third party software solely for financial application purposes or other
administrative purposes shall not be deemed inherently dangerous applications.
SAP, SAP AG and its licensors shall not be liable for any claims or damages
arising from inherently dangerous Use of the Software, the Third Party Database
or any other third party software licensed hereunder or used by Licensee in
connection herewith.
8.6. Express Disclaimer. SAP DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY STATUTORY WARRANTIES (SUCH AS THOSE PROVIDED
IN THE KOREAN CIVIL CODE AND COMMERCIAL CODE) OR 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.
9. LIMITATION OF LIABILITY.
9.1. Licensee's Remedies. Subject to the limited warranty set forth in Section
8, Licensee's sole and exclusive remedies for any damages or loss in any way
connected with the Software or services furnished by SAP, SAP AG and their
licensers, whether due to SAP's negligence or breach of any other duty, shall
be, by mutual agreement of Licensee and SAP, (i) replacement of the Software or
performance of services or (ii) return or credit of an appropriate portion of
any payment made or to be made by Licensee with respect to the applicable
portion of the software or services. The foregoing limitation of liability does
not apply to infringement of the property rights referred to in Section 10 or to
personal injury or death caused solely by the gross negligence or willful
misconduct of SAP.
9.2. SAP Not Responsible. SAP shall not be responsible for (i) the Modification
or Extension of the Software to fit the particular requirements of Licensee, or
(ii) the correction of any program errors resulting from Modifications or
Extensions or (iii) the correction of any program errors as a result of misuse
of the Software by Licensee. Under no condition will SAP be responsible under
this Agreement for preparation or conversion of data into the form required for
use with the Software.
9.3. Exclusion of Damages. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING UNDER
NO CIRCUMSTANCES SHALL SAP, SAP AG, THIRD PARTY DATABASE LICENSORS AND ANY OTHER
THIRD PARTY SOFTWARE LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR
ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF
GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, THIRD PARTY CLAIMS
(EXCEPT THIRD PARTY CLAIMS COVERED UNDER SECTION 10.3),
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COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS,
OR EXEMPLARY OR PUNITIVE DAMAGES.
10. INDEMNIFICATION.
10.1. SAP Representation. SAP represents that SAP AG and its licensers own the
Proprietary Information licensed by SAP hereunder, including all intellectual
property rights therein, and that SAP has all rights from SAP AG and its
licensers necessary to license, in accordance with the terms of this Agreement
such Proprietary Information to Licensee.
10.2. No Representation Regarding Combination Use. SAP makes 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. As used herein, "Combination Use" means Use of
the Software in combination or conjunction with any of the following unless such
Use is prescribed in the Documentation: (i) any software (including any Licensee
Extension or Licensee Modification) other than the Software; (ii) any computer
other than a Designated Unit and for (iii) any other software or hardware not
described in the Documentation or otherwise authorized by SAP.
10.3. Indemnification of Licensee.
(a) Subject to Section 10.2, SAP shall indemnify Licensee against all
claims, liabilities and costs, including attorneys! fees, up to the maximum
amount described in Section 10.3(b), incurred in the defense of any claim
brought against Licensee in Korea by third parties alleging that Licensee's Use
of the Software and the Documentation infringes or misappropriates: (i) any
Korean patent of which SAP is aware, or (ii) a Korean copyright or (iii) Korean
trade secret rights; provided that Licensee promptly notifies SAP in writing of
any such claim and SAP is permitted to control fully the defense and any
settlement of such claim. Licensee shall cooperate fully in the defense of such
claim and may appear, at its own expense through counsel reasonably acceptable
to SAP. SAP may, in its sole discretion, substitute for the Software and the
Documentation alternative substantially equivalent non-infringing programs and
supporting documentation.
(b) The maximum aggregate liability of SAP under the indemnity provided
in Section 10.3(a) above shall be a sum equal to the aggregate payments actually
made by Licensee to SAP under this Agreement at the time the claim of
infringement arises, and if there should be more than one claim of infringement
the amount payable under such indemnity in respect of each claim shall be
divided pro rata.
10.4. Indemnification of SAP and SAP AG. Licensee shall indemnify SAP, SAP AG
and their Third Party Database licensers against all claims, liabilities and
costs, including reasonable attorneys, fees, reasonably incurred in the defense
of any claim (other than for the infringement of intellectual property rights
specified in Section 10.3 above), arising out of Licensee's unlicensed or
unauthorized Use of the Software, the Documentation, the Third Party Database
and other SAP Proprietary Information licensed under this Agreement provided
that SAP
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promptly notifies Licensee in writing of such claim and that Licensee is
permitted to control fully the defense and any settlement of the claim.
10.5. 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, the
Documentation, the Third Party Database and other SAP Proprietary Information.
Licensee shall not undertake any action in response to any infringement or
alleged infringement of the Software, the Documentation, the Third Party
Database and other SAP Proprietary Information without the prior written consent
of SAP, which consent shall not be unreasonably withheld. Licensee agrees to
cooperate with and assist SAP in taking whatever action which SAP determines to
be reasonably necessary or desirable in Connection therewith. SAP agrees to
reimburse Licensee for reasonable legal fees and other expenses incurred in
connection with such cooperation and assistance.
10.6. SAP's Duty to Indemnify Licensee. THE PROVISIONS OF THIS SECTION 10 STATE
THE SOLE, EXCLUSIVE AND ENTIRE LIABILITY OF SAP, SAP AG, AND THEIR LICENSORS TO
LICENSEE, AND LICENSEES SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD
PARTY INTELLECTUAL PROPERTY RIGHTS.
11. DISPUTE RESOLUTION.
Any controversy or claim arising out of or relating to this Agreement or the
breach thereof, shall be submitted exclusively to the Seoul District Court for
adjudication. This Section 11 shall survive termination or expiration of this
Agreement.
12. ASSIGNMENT.
Licensee may not without SAP's prior written consent, assign, delegate,
sublicense, pledge, or otherwise transfer this Agreement or any of its tights 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
that Licensee shall guarantee the performance of its assignee and shall remain
liable for all obligations hereunder. SAP may assign this Agreement to SAP AG.
13. GENERAL PROVISIONS.
13.1. Rights to Injunctive Relief. Both parties acknowledge that legal remedies
may be inadequate to provide SAP, SAP AG or Licensee with full compensation in
the event of Licensee's material breach of Sections 2, 6, or 13.6 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.
13.2. Entire Agreement. This Agreement and each Appendix hereto constitute the
complete and exclusive statement of the agreement between SAP and Licensee, and
all previous representations, discussions and writings are superseded by this
Agreement This Agreement may
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16
be modified only by a writing signed by both parties. This Agreement and each
Appendix hereto shall prevail over any additional, conflicting or inconsistent
terms and Conditions which may appear on any purchase order or other document
furnished by Licensee to SAP.
13.3. Severability. It is the intent of the parties that in case any one or more
of the provisions contained in this Agreement shall be held to be invalid or
unenforceable in any respect such invalidity or unenforceability shall not
affect the other provisions of this Agreement and this Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
13.4. 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 succeeding
breach of the same provision.
13.5. Counterparts. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and which shall together constitute one
Agreement.
13.6. Export Control Notice. Regardless of any disclosure made by Licensee to
SAP of an ultimate destination of the Software, the Documentation, the Third
Party Database, other SAP Proprietary Information or any part thereof, Licensee
shall comply with the export and regulations of Germany, Korea, the United
States and all other applicable export control laws and regulations of other
countries. Further, Licensee will not re-export or transfer, whether directly or
indirectly, the Software, the Documentation, the Third Party Database, other SAP
Proprietary Information or any system incorporating the Software or any part
thereof to anyone outside the Territory, or to anyone in the Territory in such
manner that constitutes an exportation under applicable laws or regulations,
without first obtaining all requisite approvals, and from governmental
authorities or agencies which have competence over or transfer of the Software,
the Documentation, the Third Party Database or other SAP Proprietary Information
and meeting any other applicable governmental requirements. Licensee shall be
responsible for complying with all applicable governmental regulations in the
Territory or any foreign countries with respect to the use of the Software, the
Documentation, the Third Party Database, other SAP Proprietary Information by
Licensee and by b authorized Affiliates outside of the Territory, including, but
not limited to import and export restrictions, obtaining any necessary consents
and licenses and registering or filing any documents. Licensee shall be solely
responsible for all costs with such compliance. Licensee shall defend, indemnify
and hold SAP, SAP AG and its licensers harmless from and against any and all
claims, Judgments, costs, awards, expenses (including reasonable attorneys'
fees) and liability of any kind arising out of the non-compliance with
applicable governmental regulations, statute, or other obligation with respect
to the use of the Software, the Documentation, the Third Party Database, other
SAP Proprietary Information outside the Territory by Licensee or its authorized
Affiliates. The provisions of this SubSection 13.6 shall survive the termination
or expiration of this Agreement
13.7. Publicity. Neither party shall use the name of the other in publicity,
advertising, or similar activity without the prior written consent of the other,
except that Licensee hereby consents to SAP's inclusion of Licensee's name in
customer listings which may be published as part of SAP's marketing efforts.
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13.8. Governing Law. This Agreement shall be governed by and construed under the
laws of Korea without reference to its conflict of law rules. This Section 13.8
shall survive termination or expiration of this Agreement
13.9. 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.
13.10. Force Majeure. Any delay or nonperformance of any provisions 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.
13.11. Termination of the End-Use Agreement and the Letter. The End-User
Agreement and the Letter are hereby SAP and Licensee. Any of the provisions,
terms, and conditions of the Letter are Agreement which conflicts with any of
the provisions, terms, and conditions of the End-User Agreement and the Letter
shall supersede and modify such provisions, terms, and conditions thereto.
13.12. The R/3 Software End-User Value License Agreement between SAP America
Inc. and Hyundai Electronics America Incorporated(hereinafter referred to as
"HEA") executed in May 1997 (hereinafter referred to as "HEA Agreement"), and
the R/3 Software End-User Value License Agreement between SAP America Inc. and
Maxtor Corporation (hereinafter referred to as "Maxtor") executed in May 1997
(hereinafter referred to as "Maxtor Agreement"). shall be terminated and
superseded by this Agreement when the HEA Agreement and the Maxtor Agreement are
terminated by and SAP America Inc. and HEA, and SAP America Inc. and Maxtor. SAP
shall make its best efforts to make SAP America inc. reverse the HEA Agreement
and the Maxtor Agreement, and Licensee shall make its best efforts to make HEA
reverse the HEA Agreement and Maxtor reverse the Maxtor Agreement SAP agrees
that payments by Licensee shall be held until the HEA Agreement and the Maxtor
Agreement are reversed.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly
executed this Agreement to become effective as of the date written below.
Effective Date: 30, June 1997
Hyundai Information Technology Co., Ltd. SAP Korea Ltd.
Hyundai Bldg. Annex 23rd Floor, SsangYong Tower
140-2, ▇▇▇-▇▇▇▇, Chongro-ku ▇▇-▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
By:________________________________ By:________________________________
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
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Exhibit A
to
SAP KOREA
R/3 SOFTWARE END-USER VALUE LICENSE AGREEMENT ("Agreement")
--------------------------------------------------------------------------------
List of Countries
Licensee agrees that each country where the licensed Software System shall be
installed and/or Used, shall be listed in this Exhibit A.
Pursuant to the Agreement the definition of Territory shall include the
following countries:
Argentina Australia
Austria Bangladesh
Belgium Brazil
Canada Chile
China CIS
Costa Rica Colombia
Czech Republic Croatia
Germany Egypt
Hong Kong France
India Guatemala
Italy Hungary
Japan Jordan
Korea Malaysia
Mexico Nigeria
Pakistan Panama
Philippines Poland
Portugal Romania
Singapore Saudi Arabia
South Africa ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ The Netherlands
The Union of Myanmar Turkey
United Arab Emirates United Kingdom
United States of America Vietnam
As far as available, SAP will deliver the country version. In all other cases,
SAP will deliver the standard English or German version.
Each additional country (not mentioned above) which will be added to this
Exhibit A shall be mutually agreed and confirmed in writing between SAP and
Licensee.
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Exhibit B
to
SAP KOREA
R/3 SOFTWARE END-USER VALUE LICENSE AGREEMENT("Agreement")
--------------------------------------------------------------------------------
List of Companies
Licensee agrees that each Affiliate which shall install and/or Use the licensed
Software System shall be listed in this Exhibit B.
Pursuant to the Agreement the definition of Affiliate shall include the
following companies:
Aluminum of Korea Ltd.
Hyundai Motor Company
Hyundai Aluminum Industry Co., Ltd.
Hyundai Construction Equipment Service Co., Ltd.
Hyundai Corporation
Hyundai Electronics Industries Co., Ltd.
Hyundai Elevator Co., Ltd.
Hyundai Engineering & Construction Co., Ltd.
Hyundai Engineering Co., Ltd.
Hyundai Heavy Industries Co., Ltd.
Hyundai Housing & Industrial Development Co., Ltd.
Hyundai Institute for Human Resource Development
Hyundai International Merchant Bank
Hyundai Marine & Fire Insurance Co., Ltd.
Hyundai Merchant Marine Co., Ltd.
Hyundai Mipo Dockyard Co., Ltd.
Hyundai Motor Service Co., Ltd.
Hyundai Oil Refinery Co., Ltd.
Hyundai Petrochemical Co., Ltd.
Hyundai Pipe Co., Ltd.
Hyundai Precision & Industry Co., Ltd.
Hyundai Research Institute
Hyundai Securities; Co., Ltd.
Hyundai Wood Industries Co., Ltd.
Inchon Iron & Steel Co., Ltd.
KEFICO Corporation
Keumkang Development Industrial Co., Ltd.
Koryeo Industrial Development Co., Ltd.
Each additional company (not mentioned above) which will be added to this
Exhibit B shall be mutually agreed and confirmed in writing between SAP and
Licensee.
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Appendix 1
to
R/3 Software End-User Value License. Agreement
("Agreement")
--------------------------------------------------------------------------------
This Appendix 1 is hereby annexed to and made a part of the Agreement specified
above. In each instance in which the provisions of this Appendix 1 contradict or
are not consistent with the provisions of the Agreement, the provisions in this
Appendix 1 shall prevail and govern, and the contradicted or inconsistent
provisions of the Agreement shall be deemed amended accordingly.
1. Pursuant to the above mentioned Agreement Software and Third Party
Database licensed to Licensee consists of the Software as described
below:
Software Description
General Function Blocks:
Number of
Number of Information Number of
Denote "X" Names Users Users R/C Users
if Licensed Licensed Licensed Licensed
----------- ----------- ----------- --------
FI Financial/Asset X
Accounting
TR-CM Case Management X
IM Investment Management X
CO Controlling X
EC Enterprise Controlling X
PS Project System X
MM Materials Management X
PM Plant Maintenance X
SD Sales and Distribution X
PP Production Planning X
4,074 1,022 1,764
(Total) (Total) (Total)
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Special Function Blocks:
Number of DW Users
Denote "X" if Licensed Licensed
---------------------- --------
DW ABAP/4 Development X 140
Workbench
Basis System and Database:
Number of
Basis/Workflow Users
Denote "X" if Licensed Licensed
---------------------- --------
BC Basis/Workflow with X 1,720
-----
database interface
BC Basis/Workflow with _______
installation-related
Database
BC Basis/Workflow with _______
ADABAS D Database
BC Basis/Workflow with _______
Infromix Online for
SAP Database
BC Basis/Workflow with X 5,280
-----
Oracle 7 Runtime
Database
BC Oracle 7E-ASL X 140
Database surcharge ---
Human Resource Management Function Blocks:
Number of Master
Denote "X" if Licensed Records Licensed
---------------------- ----------------
PA Personnel X 14,000
------
Administration and
Payroll
PD Personnel Planning X 14,000
and Development ------
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Optional Packages:
Quantities
Licensed
TR-TM Treasury _______ _______ Named User(s)
Management
BC/DW R/3 Data Model _______ _______ copies (one copy
in ADW Format per Designated
Unit)
PP-EC External _______ ________ copies (one copy
Communication per Designated
Unit)
Industry Solutions:
PP-PI Process Industry _______ _______ licenses (one
license per
Designated Unit)
2. The total number of Users licensed to Use the Software and the Third
Party Database according to the respective rights set forth in the
Agreement is as follows:
Double Byte Single Byte Total
Named Users 3,066 1,008 4,074
Info Users 630 392 1,022
R/C Users 420 1,344 1,764
DW Users 84 56 140
Basis/Workflow 4,200 1,080 5,280
Users
Basis/Workflow 0 1,720 1,720
database
interfaces
PA Master Records 5,000 9,000 14,000
PD Master Records 5,000 9,000 14,000
a. Subject to the written agreement of SAP, Licensee may exchange
three (3) Double Byte Named Users for four (4) Single Byte Named
Users. However, such exchanges shall be subject to additional
License Fees (for the Third Party Database) for the increase in
the number of Users.
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b. The Single Byte Named Users in this Agreement are priced for use
in North America/Asia Pacific. Subject to the written agreement
of SAP, Licensee may exchange two (2) Single Byte Named Users for
use in North America/Asia Pacific, for three (3) Single Byte
Named Users for use in Europe. However, such exchanges shall be
subject to additional License Fees (for the Third Party Database)
for the increase in the number of Users.
3. The License Fee, net of discounts, to license the Software and the Third
Party Database specified in Clause 1 above, for the number of Users
specified in Clause I and Clause 2 above, is WON 8,256,624,000 for
Double Byte Users and DEM 5,851,200 for Single Byte Users. In addition
to the provisions set forth in the main body of the Agreement the
following Use restrictions shall apply:
a. The total number of Users permitted to access and/or Use the
Software and the Third Party Database in accordance with the
provisions of the Agreement shall not exceed the total number of
Users as specified in Clause 1 and 2 above.
b. The total number of Master Records created by the applicable
Users, as related to the PA and PD Function Blocks shall not
exceed total number of Master Records as specified in Clause 1
and 2 above. All Users of PA and PD Function Blocks must be
licensed as Basis/Workflow Users.
c. The quantifies of the Optional Packages shall not exceed the
quantifies as specified in Clause 1 above.
d. The number of copies of the Software and the Third Party Database
to be licensed for Productive Use shall not exceed 50, and the
Software and the Third Party Database shall be installed on not
more than 50 Designated Units in the Territory.
e. SAP or SAP AG shall provide Maintenance Services to not more than
four(4) Designated Site(s) as set forth in Clause 7 and Licensee
must set up Customer Competence Centers as set forth in Clause 8
to support Licensee and/or Licensee Affiliates.
4. The Net License Fee as specified in Clause 3 above shall be licensed,
invoiced and paid as follows:
a. SAP shall invoice Licensee on 30 June 1997, the Licensee Fee of
WON 6,094,174,857 for 3,100 Double Byte Users.
Double Byte License for License to Licensee Fee Invoice Date Payment Due
Users up to ____ use From (WON) Date
Users
Phase I 600 30.06.1997 1,179,517,714 30.06.1997 31.07.1997
Phase II 400 30.06.1997 786,345,143 30.06.1997 31.12.1997
Phase III 500 30.06.1997 982,931,429 30.06.1997 30.06.1998
-▇▇-
▇▇
▇▇▇▇▇ ▇▇ 600 30.06.1997 1,179,517,714 30.06.1997 31.12.1998
Phase V 1,000 30.06.1997 1,965,862,857 30.06.1997 30.06.1999
b. SAP shall invoice Licensee on 30 June 1997, the Licensee Fee of
DEM 5,224,287 (for 2,500 Single Byte Users) in WON at the then
prevailing exchange rate.
Single Byte License for License to Licensee Invoice Date Payment
Users up to ____ use From Fee (DEM) Due Date
Users
--------------------------------------------------------------------------------
Phase I 2,200 30.06.1997 4,597,373 30.06.1997 31.07.1997
Phase II 100 30.06.1997 208,971 30.06.1997 31.12.1997
▇▇▇▇▇ ▇▇▇ - - - - -
▇▇▇▇▇ ▇▇ - - - - -
▇▇▇▇▇ V 200 30.06.1997 417,943 30.06.1997 30.06.1999
c. For the remaining 1,400 Users, Licensee shall call-off Users, and
SAP shall invoice Licensee for the License Fees, according to the
mutually agreed call-off schedule as follows:
Double Byte License for License to Licensee Fee Invoice Date Payment Due
Users up to ____ use From (WON) Date
Users
-------------------------------------------------------------------------------------------
Stage I - - - - -
Stage II 100 31.12.1997 196,586,286 31.12.1997 31.01.1998
▇▇▇▇▇ ▇▇▇ - - - - -
▇▇▇▇▇ ▇▇ 200 31.12.1998 393,172,571 31.12.1998 31.01.1999
Stage V 800 30.06.1999 1,572,690,286 30.06.1999 31.07.1999
Single Byte License for License to Licensee Invoice Date Payment
Users up to ____ use From Fee (DEM) Due Date
Users
------------------------------------------------------------------------------
Stage 1 - - - - -
▇▇▇▇▇ ▇▇ - - - - -
▇▇▇▇▇ ▇▇▇ 100 30.06.1998 208,971 30.06.1998 31.07.1998
Stage IV 100 31.12.1998 208,971 31.12.1998 31.01.1999
Stage V 100 30.06.1999 208,971 30.06.1999 31.07.1999
SAP and Licensee agree that the call-off schedule shall be reviewed
regularly and any changes to the call-off schedule to reflect actual
usage(subject to a minimum of 50 actual users)can be made by prior
mutual written agreement.
Licensee confirms its intention to complete the call-off of Users by 30
June 1999 subject to the progress of R/3 projects within the Hyundai
Group of Companies.
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For the Licensee Fee stated in DEM in this Section C, SAP shall invoice
in WON at the then prevailing exchange rate.
5. In the event that additional Software or products or number of Users,
other than that specified in Clause 2, are licensed to Licensee, and/or
Use restrictions as specified in Clause 3 above change, Licensee agrees
within a reasonable period of time to provide written notice to SAP. SAP
may amend its discounts and shall adjust the invoicing for License Fees
and Maintenance Fees, unless otherwise stated in this Appendix 1,
according to SAP's then current pricing policies in effect Such License
Fees and Maintenance Fees shall be payable, within thirty (30) days from
invoice date.
6. For the Software to be installed at each specific Licensee and/or
Affiliate Designated Site within the Territory, both Licensee and SAP
agree to execute Appendices to this Agreement in a form similar to
Appendix 2 (as attached), prior to delivery to such Designated Site.
Licensee shall be responsible to ensure that Licensee Affiliates abide
by all the provisions of the Agreement.
7. Maintenance Services for the licensed Software are limited to the
following Designated Site(s), which shall be set up as Customer
Competence Centers:
a. Company: Hyundai Information Technology Co., Ltd.
Address: Hyundai ▇▇▇▇. ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇
b. To be advised by Licensee by third quarter 1997(North America).
c. To be advised by Licensee by third quarter 1997(North America).
d. To be advised by Licensee by fourth quarter 1997(Europe).
Maintenance Services for the Software installed at the above specified
Designated Site(s), shall commence on 1 January 1998. Until such date
Maintenance Services shall be provided pursuant to ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of the Agreement.
Maintenance Fees shall be invoiced by SAP to Licensee annually in
advance at the beginning of each calendar year and payable to SAP within
thirty (30) days from invoice date at the following rates:
Year I (Jan. 1998 - Dec. 1998) 5% of License Fees on actual usage basis
Year 2 (Jan. 1999 - Dec. 1999) 10% of License Fees on actual usage basis
Year 3 (Jan. 2000 - Dec. 2000) 15% of License Fees on actual usage basis
Maintenance Fees after Year 3 shall be priced at SAP's then current
pricing in effect.
-26-
27
SAP and Licensee shall mutually agree on the schedule of actual usage
prior to the commencement of each calendar year for the purpose of
calculating the Maintenance Fees.
In the event Maintenance Services have commenced and additional Users
are subsequently licensed by Licensee, the increased Maintenance Fees
caused by such additional Users shall be due from the beginning of the
execution of the additional license and payable net thirty (30) days
upon receipt of SAP invoice.
SAP America, Inc. and Hyundai Electronics America incorporated / Maxtor
will confirm the Software Maintenance Response Schedule in the same form
as the Schedule A to the SAP America, lnc. R/3 Software End-User License
Agreement with Hyundai Electronics America, Incorporated issued on 28
May 1997.
SAP and Licensee shall confirm the Software Maintenance Response
Schedule similar to the Schedule A in the SAP America, Inc. R/3 Software
End-user License Agreement.
8. Licensee agrees to set up Customer Competence Center which is the
initial contact point for Licensee for questions and problems relating
to SAP, the Software and the Use. Licensee agrees to provide the
Customer Competence Center with the following minimum functions.
a. Setup and operation of a First Level Service for Basis/Workflow
and applications during normal local working hours (at least 8
hours a day, 5 days a week).
b. Contract processing in conjunction with SAP (system auditing,
maintenance billing, release order processing, user master and
installation data management).
c. Internal promotion support for the organization and performance
of internal demos, information events, and marketing campaigns.
d. Coordination of development requests, i.e. collection and
discussion of requests from the group and representation of the
group's interests at SAP.
In the event that Licensee fails to provide the above minimum functions
within one year of the effective date of this Agreement, SAP shall be
entitled to charge the Software Maintenance Fees based on the then
current list prices of the Software.
9. Early Watch Service for the licensed Software which provides for remote
diagnostics and performance monitoring from SAP, is for six sessions per
year for each of the Designated Unit(s) at the Designated Site(s)
specified in the Appendix 2 to this Agreement. Early Watch Service is
mandatory for each Designated Unit on which the Software is used for
Productive Use.
Early Watch Service shall commence prior to the date when the Software
will begin to be used for Productive Use and such commencement date
shall be specified in the Early
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Watch Service Order Form to be provided by Licensee to SAP. Early Watch
Service Fees shall be invoiced by SAP annually in advance at the
beginning of each year and payable to SAP within thirty (30) days from
invoice date. Early Watch Service Fees for six sessions per year are as
follows:
WON 6,000,000 per year for each Designated Unit
The fees for six sessions for the initial year shall include one
additional free session which will be provided prior to such six
sessions. Such one free session shall be taken prior to the date when
the Software is used for Productive Use. The right of the Licensee for
the free session expires in the event Licensee does not take such
session prior to the Productive Use of the Software.
In the initial year, if the period is less than a calendar year, the
charge shall be on a pro rata basis for such period, and shall be
invoiced upon completion of the first session.
The above charge is not refundable even in the event that the number of
sessions is not performed. SAP is entitled to change the above specified
Early Watch Service Fees upon three month prior written notice to
Licensee.
10. In the event Licensee is functionality, Licensee is responsible to
license or purchase a required third party EDI translator/interpreter.
Such EDI translator/interpreter shall be licensed or provided directly
from a Third Party vendor to Licensee. SAP, SAP AG and their Third Party
Database licensers shall have no liability with respect to such EDI
translator/interpreter or any interoperability or other problems or
damages caused by the EDI translator/interpreter when used with the
Software System.
11. In the event that Optional Packages are licensed by Licensee herein, all
such Optional Package Software (excluding TR-TM Treasury Management)
must be licensed at a minimum quantity of one (1) copy per Designated
Unit The number of copies of Optional Packages, as well as the number of
ABAP/4 Development Workbench Named Users licensed by Licensee are
specified in Clause 1 above.
12. In the event PP-PI Process Industry functionality is licensed by
Licensee, the parties acknowledge and agree the functions performed by
PP-PI Software are dependent on accurate and complete input elements and
instructions, and on the continued monitoring of the subject process.
Licensee acknowledges that it is Licensees sole obligation to ensure the
accuracy and completeness of all data processed by the PP-PI Software.
PP-PI functionality, is not licensed hereunder for Use in the operation
of nuclear or other power generation, aviation or mass transit
applications. SAP, SAP AG, its affiliated group companies, and its and
their licensers shall not be liable for any claims or damages arising
from inherently dangerous or negligent Use of the PP-PI Software and/or
third party software licensed hereunder.
13. Each Productive Use copy and Non-Productive Use copy of the Software
licensed herein requires a license keycode. For each installation of the
Software, five (5) keycodes shall
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be provided; one (1) keycode for Productive Use of the Software and four
(4) keycodes for Non-Productive Use of the Software. The license
keycodes will be issued by SAP AG within four (4) weeks from the date of
installation of the Software on each Designated Unit. The required form
to receive the license keycode from SAP AG must be executed by Licensee
and taxed to SAP AG within the four (4) week period following
installation of the Software. The applicable form and fax number will be
included in each installation kit provided to Licensee upon delivery of
the Software. Licensees that subsequently change Designated Units for
Use of the licensed Software must be re-issued license keycodes for each
respective copy of the licensed Software. Failure of Licensee to obtain
necessary license keycodes for the licensed Software within four (4)
weeks of installation of such Software will cause the Software to have
limited User access until the time that the license keycodes are issued.
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Appendix 1.1
to
R13 Software End-User Value License Agreement
("Agreement")
--------------------------------------------------------------------------------
This Appendix 1.1 is hereby annexed to and made a part of the Agreement
specified above. In each instance in which the provisions of this Appendix 1.1
contradict or are not consistent with the provisions of the Agreement the
provisions in this Appendix 1.1 shall prevail and govern, and the contradicted
or inconsistent provisions of the Agreement shall be deemed amended accordingly.
1. Pursuant to the above mentioned Agreement Software and Third Party
Database licensed to Licensee consists of the Software as described
below:
Software Description
General Function Blocks:
Number of Number of
Denote "X" if Named Users Information Number of R/C
Licensed Licensed Users Licensed Users Licensed
-------- ----------- -------------- --------------
F1 Financial/Asset Accounting x
TR-CM Cash Management x
IM Investment Management x
CO Controlling x
EC Enterprise Controlling x
PS Project System x
MM Materials Management x
PM Plant Maintenance x
SD Sales and Distribution x
PP Production Planning x 186 53 -----------
(Total) (Total) (Total)
Special Function Blocks:
Number of DW Users
Denote "X" if Licensed Licensed
---------------------- ------------------
DW ABAP/4 Development x 12
Workbench
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Basis System and Database:
Number of
Denote "X" Basis/Workflow
if Licensed Users Licensed
----------- --------------
BC Basis/Workflow with
database interface ______
BC Basis/Workflow with
installation-related
Database ______
BC Basis/Workflow with
ADABAS D Database ______
BC Basis/Workflow with
Informix Online for
SAP Database ______
BC Basis/Workflow with
Oracle 7 Runtime
Database x 251
BC Oracle 7E-ASL
Database surcharge x 12
Human Resource Management Function Blocks:
Denote "X" Number of Master
if Licensed Records Licensed
----------- ----------------
PA Personnel x 1,000
Administration and
Payroll
PD Personnel Planning x 1,000
and Development
Optional Packages:
Denote "X"
if Licensed Quantities Licensed
----------- -------------------
TR-TM Treasury Management ____ ____ Named User(s)
BC/DW R/3 Data Model in ADW ____ ____ copies (one copy per Designated
Format Unit)
PP-EC External Communication ____ ____ copies (one copy per Designated
Unit)
Industry Solutions:
PP-PI Process Industry x x licenses (one license per
Designated Unit)
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2. The total number of Users licensed to Use the Software and the Third
Party Database according to the respective rights set forth in the
Agreement is as follows:
Single Byte
Named Users 186
Info Users 53
DW Users 12
Basis/Workflow Users 251
PA Master Records 1,000
PD Master Records 1,000
3. The License Fee, net of discounts, to license the Software and the Third
Party Database specified in Clause 1 above, for the number of Users
specified in Clause 1 and Clause 2 above, is WON 687,228,000. In
addition to the provisions set forth in the main body of the Agreement,
the following Use restrictions shall apply:
a. The total number of Users permitted to access and/or Use the
Software and the Third Party Database in accordance with the
provisions of the Agreement shall not exceed the total number of
Users as specified in Clause 1 and 2 above.
b. The total number of Master Records created by the applicable
Users, as related to the PA and PD Function Blocks shall not
exceed total number of Master Records as specified in Clause 1
and 2 above. All Users of PA and PD Function Blocks must be
licensed as Basis/Workflow Users.
c. The quantities of the Optional Packages shall not exceed the
quantities as specified in Clause 1 above.
d. The number of copies of the Software and the Third Party Database
to be licensed for Productive Use shall not exceed 10, and the
Software and the Third Party Database shall be installed on not
more than 10 Designated Units in the Territory.
e. SAP or SAP AG shall provide Maintenance Services to not more than
four (4) Designated Site(s) as set forth in Clause 9 and Licensee
must set up Customer Competence Centers as set forth in Clause 10
to support Licensee and/or Licensee Affiliates.
4. The Net License Fee of WON 687,228,000 as specified in Clause 3 above
has already been invoiced to Licensee in 1996 under the End-User
Agreement, and out of this License Fee, WON 413,432,000 has already been
paid and the balance WON 273,796,000 shall be paid to SAP by 31 July
1997.
5. In consideration of the volume of Users committed by Licensee in
Appendix I of this Agreement SAP shall grant Licensee a credit note of
WON 301,749,244 on 31 July 1997.
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6. Licensee has already called off Users in accordance with the End-User
Agreement as follows;
a. Company: Hyundai Semiconductor America Inc.
Address: 171 ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇
75 Named Users
24 Info Users
2 D/W Users
101 BC Users with Oracle 7 Runtime Database
2 Oracle 7E-ASL license surcharge
1,000 PA Master Records
1,000 PD Master Records
b. Company: Hyundai Electronics Industries Co. Ltd.,
Memory Business Division
Address: 140-21 ▇▇▇-▇▇▇▇, Chongro-ku, Seoul,. 110-793 Korea
40 Named Users
5 Info Users
5 D/W Users
50 BC Users with Oracle 7 Runtime Database
5 Oracle 7E-ASL license surcharge
c. Company: Hyundai Precision America Inc.
Address: ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇, ▇▇▇
71 Named Users
24 Info Users
5 D/W Users
100 BC Users with Oracle 7 Runtime Database
5 Oracle 7E-ASL license surcharge
7. In the event that additional Software or products or number of Users,
other than that specified in Clause 2, are licensed to Licensee, and/or
Use restrictions as specified in Clause 3 above change, Licensee agrees
within a reasonable period of time to provide written notice to SAP. SAP
may amend its discounts and shall adjust the invoicing for License Fees
and Maintenance Fees, unless otherwise stated in this Appendix 1.1,
according to SAP's then current pricing policies in effect Such License
Fees and Maintenance Fees shall be payable, within thirty (30) days from
invoice date.
8. For the Software to be installed at each specific Licensee and/or
Affiliate Designated Site within the Territory, both Licensee and SAP
agree to execute Appendices to this Agreement in a form similar to
Appendix 2 (as attached), prior to delivery to such
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Designated Site. Licensee shall be responsible to ensure that Licensee
Affiliates abide by all the provisions of the Agreement.
9. Maintenance Services for the licensed Software are limited to the
following Designated Site(s), which shall be set up as Customer
Competence Centers:
a. Company: Hyundai Information Technology Co., Ltd.
Address: Hyundai ▇▇▇▇. ▇▇▇▇▇ ▇▇▇-▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇ ▇▇▇▇▇
b. To be advised by Licensee by third quarter 1997(North America).
c. To be advised by Licensee by third quarter 1997(North America).
d. To be advised by Licensee by fourth quarter 1997(Europe).
Maintenance Services for the Software installed at the above specified
Designated Site(s), have already commenced on 1 January 1997.
Maintenance Fees shall be invoiced by SAP to Licensee annually in
advance at the beginning of each calendar year and payable to SAP within
thirty (30) days from invoice date at the following rates:
Year 2 (Jan. 1998 - Dec. 1998) 10% of License Fees of WON 409,634,400
Year 3 (Jan. 1999 - Dec. 1999) 15% of License Fees of WON 409,634,400
Maintenance Fees after Year 3 shall be priced at SAP's then current
pricing in effect.
In the event Maintenance Services have commenced and additional Users
are subsequently licensed by Licensee, the increased Maintenance Fees
caused by such additional Users shall be due from the beginning of the
execution of the additional license and payable net thirty (30) days
upon receipt of SAP invoice.
10. Licensee agrees to set up Customer Competence Center which is the
initial contact point for Licensee for questions and problems relating
to SAP, the Software and the Use. Licensee agrees to provide the
Customer- Competence Center with the following minimum functions.
a. Setup and operation of a First Level Service for Basis/Workflow
and applications during normal local working hours (at least 8
hours a day, 5 days a week).
b. Contract processing in conjunction with SAP (system auditing,
maintenance billing, release order processing, user master and
installation data management).
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35
c. Internal promotion support for the organization and performance
of internal demos, information events, and marketing campaigns.
d. Coordination of development requests, i.e. collection and
discussion of requests from the group and representation of the
group's interests at SAP.
In the event that Licensee fails to provide the above minimum functions
within one year of the effective date of this Agreement, SAP shall be
entitled to charge the Software Maintenance Fees based on the then
current list prices of the Software.
11. Early Watch Service for the licensed Software which provides for remote
diagnostics and performance monitoring from SAP, is for six sessions per
year for each of the Designated Unit(s) at the Designated Site(s)
specified in the Appendix 2 to this Agreement Early Watch Service is
mandatory for each Designated Unit on which the Software is used for
Productive Use.
Early Watch Service shall commence prior to the date when the Software
will begin to be used for Productive Use and such commencement date
shall be specified in the Early Watch Service Order Form to be provided
by Licensee to SAP. Early Watch Service Fees shall be invoiced by SAP
annually in advance at the beginning of each year and payable to SAP
within thirty (30) days from invoice date. Early Watch Service Fees for
six sessions per year are as follows:
WON 6,000,000 per year for each Designated Unit
The fees for six sessions for the initial year shall include one
additional free session which will be provided prior to such six
sessions. Such one free session shall be taken prior to the date when
the Software is used for Productive Use. The right of the Licensee for
the free session expires in the event Licensee does not take such
session prior to the Productive Use of the Software.
In the initial year, d the period is less than a calendar year, the
charge shall be on a pro rata basis for such period, and shall be
invoiced upon completion of the first session.
The above charge is not refundable even in the event that the number of
sessions is not performed. SAP is entitled to change the above specified
Early Watch Service Fees upon three month. prior written notice to
Licensee.
12. In the event Licensee is utilizing EDI functionality, Licensee is
responsible to license or purchase a required third party EDI
transistor/interpreter. Such EDI transistor/interpreter shall be
licensed or provided directly from a Third Party vendor to Licensee.
SAP, SAP AG and their Third Party Database licensers shall have no
liability with respect to such EDI translator/interpreter or any
interoperability or other problems or damages caused by the EDI
translator/interpreter when used with the Software System.
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36
13. In the event that Optional Packages are licensed by Licensee herein, all
such Optional Package Software (excluding TR-TM Treasury Management)
must be licensed at a minimum quantity of one (1) copy per Designated
Unit. The number of copies of Optional Packages, as well as the number
of ABAP/4 Development Workbench Named Users licensed by Licensee are
specified in Clause 1 above.
14. In the event PP-PI Process Industry functionality is licensed by
Licensee, the parties acknowledge and agree the functions performed by
PP-PI Software are dependent on accurate and complete input elements and
instructions, and on the continued monitoring of the subject process.
Licensee acknowledges that it is Licensee's sole obligation to ensure
the accuracy and completeness of all data processed by the PP-PI
Software. PP-PI functionality, is not licensed hereunder for Use in the
operation of nuclear or other power generation, aviation or mass transit
applications. SAP, SAP AG, its affiliated group companies, and its and
their licensers shall not be liable for any claims or damages arising
from inherently dangerous or negligent Use of the PP-PI Software and/or
third party software licensed hereunder.
15. Each Productive Use copy and Non-Productive Use copy of the Software
licensed herein requires a license keycode. For each installation of the
Software, five (5) keycodes shall be provided; one (1) keycode for
Productive Use of the Software and four (4) keycodes for Non-Productive
Use of the Software. The license keycodes will be issued by SAP AG
within four (4) weeks from the date of installation of the Software on
each Designated Unit. The required form to receive the license keycode
from SAP AG must be executed by Licensee and faxed to SAP AG within the
four (4) week period following installation of the Software. The
applicable form and fax number will be included in each installation kit
provided to Licensee upon delivery of the Software. Licensees that
subsequently change Designated Units for Use of the licensed Software
must be re-issued license keycodes for each respective copy of the
licensed Software. Failure of Licensee to obtain necessary license
keycodes for the licensed Software within four (4) weeks of installation
of such Software will cause the Software to have limited User access
until the time that the license keycodes are issued.
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37
APPENDIX 2
TO
SAP KOREA
R13 SOFTWARE END-USER VALUE LICENSE AGREEMENT
("AGREEMENT")
BETWEEN
SAP KOREA LTD. ("SAP")
AND
HYUNDAI INFORMATION TECHNOLOGY ("LICENSEE")
EFFECTIVE DATE OF THIS APPENDIX:_______________________
This Appendix is hereby annexed to and made a part of the Agreement specified
above. Designated Unit(s) to be identified by Licensee to SAP in writing is/are
as follows:
Type/Model No.:________________________
Serial No.: ________________________
Designated Site to be identified by Licensee to SAP in writing is/are as
follows:
Company Name: ________________________ ("Licensee Affiliate")
Address: ________________________
________________________
1. Pursuant to the above mentioned Agreement Software and Third Party
Database licensed to Licensee consists of the Software as described
below, which is to be installed on the above specified Designated
Unit(s) at the above specified Designated Site:
Software Description
General Function Blocks:
Number of Number of
Named Information Number of
Denote "X" Users Users R/C Users
if Licensed Licensed Licensed Licensed
----------- --------- ----------- ----------
FI Financial/Asset _____
Accounting
TR-CM Cash Management _____
IM Investment Management _____
CO Controlling _____
EC Enterprise Controlling _____
PS Project System _____
MM Materials Management _____
PM Plant Maintenance _____
SD Sales and Distribution _____
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38
PP Production Planning _____
------- ------ -------
(Total) (Total) (Total)
Special Function Blocks:
Number of
DW Users
Licensed
DW ABAP/4 Development _____ _____
Workbench
Basis System and Database:
Number of
Basis/Workflow
Users
Licensed
--------------
BC Basis/Workflow with _____ _____
database interface
BC Basis/Workflow with _____ _____
installation-related
Database
BC Basis/Workflow with _____ _____
ADABAS D Database
BC Basis/Workflow with _____ _____
Informix Online for SAP
Database
BC Basis/Workflow with _____ _____
Oracle 7 Runtime
Database
BC Oracle 7E-ASL Database _____ _____
surcharge
Human Resource Management Function Blocks:
Number of
Master
Records
Licensed
--------
PA Personnel _____ _____
Administration and
Payroll
PD Personnel Planning and _____ _____
Development
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Optional Packages:
Quantities
Licensed
--------
TR-TM Treasury Management _____ _____ Named User(s)
BC/DW R/3 Data Model in ADW _____ _____ copies (one copy per
Format Designated Unit)
PP-EC External Communication _____ _____ copies (one copy per
Designated Unit)
Industry Solutions:
PP-PI Process Industry _____ _____ licenses (one license
per Designated Unit)
2. The total number of Users licensed to Use the Software according to the
respective rights set forth in the Agreement at the above specified
Designated Unit(s) at the above specified Designated Site is as follows:
Double Byte Single Byte Total
Named Users _____ _____ _____
Info Users _____ _____ _____
R/C Users _____ _____ _____
DW Users _____ _____ _____
Basis/Workflow Users _____ _____ _____
Basis/Workflow database interfaces _____ _____ _____
PA Master Records _____ _____ _____
PD Master Records _____ _____ _____
3. Delivery of the above specified Software, the Documentation and the
Third Party Database licensed herein to the above specified Designated
Site, in the _________ language, shall be in the month of ____/____.
Delivery of one set of Software, the Documentation and the Third Party
Database licensed herein to such Designated Site shall be initiated upon
execution of this Appendix 2 by the parties herein. Additional
Documentation for the above specified Designated Site may be ordered by
Licensee at SAP's then current prices in effect
(NOTE: USE THIS CLAUSE WHEN THE LICENSEE IS LICENSING THE THIRD PARTY DATABASE
DIRECTLY FROM SOFTWARE AG, INFORMIX OR ORACLE).
4. Software licensed herein currently requires a Third Party Database which
Licensee is licensing directly from the Third Party Database licensor.
The invoice number and invoice date for such license from the Third
Party Database licensor is as follows:
Third Party Database Licenser:____________________
Invoice Number: ____________________
Invoice Date: ____________________
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40
SAP makes no representations or Warranties as to the terms of any
license or the operation of any Third Party Database obtained directly
from a Third Party Database licenser. Licensee is responsible to arrange
the necessary support and maintenance of the licensed Third Party
Database directly from a Third Party Database licenser.
(NOTE. USE THIS CLAUSE WHEN THE LICENSEE IS LICENSING THE ORACLE 7 DIRECTLY FROM
SAP).
4. Software licensed herein currently requires a Third Party Database which
has been licensed herein as the Oracle 7 Runtime Database. Such runtime
database shall be limited to use by Licensee for the purpose of running
the Software for Productive and Non-Productive Use of the Software.
All Users who utilize SAP tools (in particular the ABAP/4 Development
Workbench) to modify and/or extend the Software including writing
in-house developments, and all Users who access Modifications,
Extensions or in-house developments for Productive Use, are subject to
an Oracle 7E-ASL surcharge.
In the event Licensee uses the licensed Third Party Database other than
as specified above, a Full License including programming tools provided
through such Third Party Database licenser, can be licensed directly
from the Third Party Database licenser.
Hyundai Information Technology Co., Ltd. SAP Korea Ltd.
("Licensee") ("SAP")
________________________________________ ____________________________
Name: Name:
Title: Title:
Licensee Affiliate agrees to abide by all the previsions of the above specified
Agreement and agrees that SAP may directly enforce all such previsions against
Licensee Affiliate as if it had executed the Agreement with SAP. In the event
the Agreement is terminated for any reason, or if Licensee Affiliate ceases to
be an Affiliate of Licensee, Licensee Affiliate agrees that all of its rights to
access the Software will cease immediately.
________________________________________
("Licensee Affiliate")
________________________________________
Name:
Title:
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41
ADDENDUM
TO
APPENDIX 2A
TO
SAP KOREA
R13 SOFTWARE END-USER VALUE LICENSE AGREEMENT("AGREEMENT")
WITH
HYUNDAI INFORMATION TECHNOLOGY CO, LTD.
EFFECTIVE 30 JUNE 1997
ISSUED 3 NOVEMBER 1997
1. Section 6.4 Paragraph (b)
A new sentence shall be included to this Paragraph as follows; "If
Licensee independently develops software that in no way uses any of
SAP's Proprietary Information or otherwise breaches its obligations
hereunder in the course of such independent development, then Licensee's
obligation of giving SAP the right of first refusal as described herein
shall not apply and the limitations described in the second sentence of
Paragraph 2 of this Section 6.4(b) shall also not apply."
2. Section 10.3 Paragraph (a) The whole Paragraph shall be read as follows;
"(a) Subject to Section 10.2. SAP shall indemnity Licensee against all
claims, liabilities and costs, including attorneys' fees, up to the
maximum amount described in Section 10.3(b), incurred in the defense of
any claim brought against Licensee in the Territory by third parties
alleging that Licensee's Use of the Software and the Documentation
infringes or misappropriates (i) any Korean, United States or German
patent of which SAP is aware, or (ii) a Korean, United States or German
copyright or (iii) trade secret rights; provided that Licensee promptly
notifies SAP in writing of any such claim and SAP is permitted to
control fully the defense and any settlement of such claim. Licensee
shall cooperate fully in the defense of such claim and may appear, at
its own expense through counsel reasonably acceptable to SAP. SAP may,
in its sole discretion, substitute for the Software and the
Documentation alternative substantially equivalent non-infringing
programs and supporting documentation."
3. Section 12
A new paragraph shall be included to this Section as follows;
"Should Licensee, from time to time, sell or otherwise transfer the
assets or equity ownership of any Licensee division, Affiliate, or
business unit (all jointly hereafter referred to as "Business Unit"),
and as part of such transfer Licensee agrees to provide transitional
services to the Business Unit in connection with the transfer of such
Business Unit including the use of Software by Licensee for such
Business Unit then Licensee shall have the right to do so for a period
of six (6) months after the completion of any such transfer with no
additional payment to SAP. If Licensee, as part of any agreement
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42
with such Business Unit is required to provide such services for a
period beyond six(6) month period subject to a mutually agreed upon
payment to SAP. Upon Licensee no longer providing services to such
Business Unit pursuant to this provision, SAP agrees that SAP will offer
to license the Software to such Business Unit on SAP's then current
prices and terms and conditions in effect."
4. Section 13.13
This new Section shall be included to the Agreement as follows;
"13.13 Equal Opportunity. Licensee hereby incorporates by reference as
part of this Agreement applicable provisions of Executive Order 11246 of
U.S.A., regarding equal opportunity for all persons without regarding
color, religion, sex or national origin; the Vietnam Era Veterans
Readjustment Assistant Act of 1974 of U.S.A., as amended (the "Veteran
Act"), the Rehabilitation Act of 1973 of U.S.A.(the "Rehab Act"), and
the Small Business Act of 1958 of U.S.A. (the "Small Business Act").
Pursuant to Executive Order 11246 and particularly 41 C.F.R. 60-12, and
by acceptance of this Agreement SAP certifies that it complies with the
provisions of Executive Order 11246, the Veterans Act, the Rehab Act and
the Small Business Act and SAP does not and will not maintain any
facilities in a segregated manner or permit SAP's employees to perform
their services at any locale under SAP's control, where segregated
facilities are maintained. Further, SAP agrees that SAP will obtain a
certificate containing similar statements prior to the award of any
nonexempt subcontract."
5. Section 13.14
This new Section shall be included to the Agreement as follows; "13.14
Year 2000 Representation Language. SAP represents that its R/3 standard
Software (excluding all third party products) has been or will be
programmed to properly process and present dates beyond December 31,
1999."
Hyundai Information Technology Co., Ltd. SAP Korea Ltd.
("Licensee") ("SAP")
________________________________________ ___________________________________
Name: Name: Mr. Hae ▇▇▇ ▇▇▇▇
Title: Title: Representative Director &
President
--------------------------------------------------------------------------------
Hyundai Information Technology USA Inc. Maxtor Corporation
("Licensee Affiliate")
________________________________________ ___________________________________
Name: Name:
Title: Title:
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1) Maxtor (1,720 Users): Single Byte
Surcharge
Type No. of Users Unit Price for Location Amount (OEM)
---- ------------ ---------- ------------ ------------
GENERAL FUNCTION BLOCKS
- Operational User 500 4,000 1.5 3,000,000
- DW User 20 7,500 1.5 225,000
- Information User 200 2,000 1.5 600,000
- R/C User 1,000 1,500 1.5 2,250,000
Subtotal 1,720 6,075,000
BASIS
- Workflow Interface 1,720 650 1.5 1,677,000
Subtotal 1,720 650 1,677,000
HR FUNCTION BLOCKS
HR-PA records 5,000 60,000 1.5 390,000
HR-PD records 5,000 30,000 1.5 225,000
Subtotal 10,000 90,000 615,000
TOTAL: $2,218,650.00
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LICENSE TERMINATION AGREEMENT
This License Termination Agreement ("Agreement"), effective November ___, 1997
("Effective Date") is made by and between Maxtor Corporation, a Delaware
corporation, having principal places of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇. and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇.▇. ("Maxtor"), and SAP America, Inc., a Delaware corporation, having a
principal place of business at International Court Three, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.▇.▇. ("SAP").
PREAMBLE
WHEREAS, Maxtor acquired from SAP America Inc. a license to Use SAP's
proprietary R/3 Software ("Software") pursuant to the End-User Software
License Agreement effective May 30, 1997 between SAP and Maxtor
("End-User Agreement");
WHEREAS, an affiliate of Maxtor, Hyundai Information Technology Co., Ltd. (HIT)
and an affiliate of SAP AG, SAP Korea Ltd. ("SAP Korea") having entered
into that certain SAP Korea R/3 Software End-User Value License
Agreement ("Value Agreement") effective June 30, 1997; and
WHEREAS, by way of Appendix 2A and the Addendum to Appendix 2a to the Value
Agreement, HIT, SAP Korea, and Maxtor have agreed to make Maxtor an
additional Licensee under the Value Agreement;
NOW, THEREFORE, the parties agree as follows:
TERMS AND CONDITIONS
1. SAP and Maxtor agree that as of the Effective Date the End-User Agreement is
canceled and of no further force and effect and that such cancellation is
without cost, liability, or penalty to either party. SAP and Maxtor each release
each other of any and all claims arising from the End-User Agreement.
2. SAP agrees that Maxtor has no duty to return any and all Software received
under the End-User Agreement and Maxtor agrees that any and all such Software is
now licensed to Maxtor under the terms of the Value Agreement as if it had been
originally delivered thereunder.
3. SAP agrees that all of Maxtor's customer numbers and installation numbers
shall continue to be assigned to Maxtor and continue to be valid.
4. SAP agrees to make consulting services available to Maxtor under terms and
conditions to be agreed upon from time to time.
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5. OSS access, First Level Support, and other supports will be provided by SAP
to Maxtor as specified in the Value Agreement, until such a time as it is
mutually agreed by Maxtor and SAP that equivalent support services can be
provided by HIT.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
MAXTOR CORPORATION SAP AMERICA, INC.
By:________________________________ By:__________________________________
(signature) (signature)
___________________________________ _____________________________________
(print name) (print name)
___________________________________ _____________________________________
(title) (title)
HYUNDAI INFORMATION TECHNOLOGY, INC. SAP KOREA, INC.
By:________________________________ By:__________________________________
(signature) (signature)
___________________________________ _____________________________________
(print name) (print name)
___________________________________ _____________________________________
(title) (title)
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