EX-10.KK
SOFTWARE END-USER LICENSE AGREEMENT
[GRAPHIC] SAP
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SAP AMERICA, INC.
SOFTWARE END-USER LICENSE AGREEMENT
This Agreement is made effective as of the 15th day of May, 2002, by and between
SAP America, Inc., a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SAP"), and Safety-Kleen Services,
Inc., a Delaware corporation, with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
RECITAL
WHEREAS, SAP desires to grant to Licensee, and Licensee desires to accept
from SAP, a license to Use (as defined herein) SAP's proprietary Software (as
defined herein) upon the terms and conditions hereinafter set forth; NOW,
THEREFORE, SAP and Licensee agree as follows:
1. DEFINITIONS.
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1.1 "AFFILIATE" means any legal entity located in the Territory directly or
indirectly controlled by Licensee or Safety-Kleen Corp., the parent company of
Licensee, through : (i) the holding of more than 50% of the voting securities of
another company; or ii) the holding of more than 50% of the ownership interest
in any other legal entity (including a partnership) providing Licensee has the
right to vote or appoint a controlling number of its directors or functional
equivalents. Any such entity shall be considered an Affiliate for only such time
as Licensee or Safety-Kleen Corp. continues to own such equity or ownership
interest. SAP agrees to negotiate in good faith to add entities on a case by
case basis to this Exhibit A upon the request of Licensee. An Affiliate shall
include the companies listed on Exhibit A for only such time as Licensee
continues to hold the specific equity interest stated in Exhibit A.
1.2 "BLUE BUSINESS" or "CHEMICAL SERVICES DIVISION" means that organization
which primarily provides hazardous and non-hazardous waste collection,
treatment, recycling, disposal and destruction of hazardous and non-hazardous
waste at Licensee owned and operated facilities.
1.3 "BUSINESS THIRD PARTY" means any third party that requires access to the
Software in connection with the operation of Licensee's and/or its Affiliates'
business including, but not limited to, customers, distributors and suppliers.
1.4 "CORRECTION LEVEL" means a change in the Software between Versions made
generally available to SAP Licensees [e.g., 3.1(a)].
1.5 "DESIGNATED UNIT" means each individual computer in which the Software
and Third-Party Database are installed. Designated Unit(s) may have, but the
term "Designated Unit(s)" shall not include, multiple application servers
directly networked to such Designated Unit(s), and terminals and personal
computers directly networked to the application servers.
1.6 "DOCUMENTATION" means SAP's documentation, in any medium, which is
delivered to Licensee under this Agreement, including SAP's manuals, training
materials, program listings, data models, flow charts, logic diagrams,
functional specifications, instructions, and complete or partial copies of the
foregoing.
1.7 "EXTENSION" means an addition to the Software which does not require a
Modification.
1.8 "MODIFICATION" means a change to the Software which changes the source
code.
1.9 "NAMED USERS" means any combination of users licensed under this
Agreement.
1.10 "NON-PRODUCTIVE USE" means Use of the Software solely for Licensee's or
an authorized Affiliate's internal training, testing or developmental work.
1.11 "PRODUCTIVE USE" means Use of the Software solely to operate Licensee's
or an authorized Affiliate's business.
1.12 "PROGRAM CONCEPTS" means the concepts, techniques, ideas, and know-how
embodied and expressed in any computer programs or modules included in the
Software, including their structure, sequence, and organization.
1.13 "PROPRIETARY INFORMATION" means: (i) with respect to SAP and SAP AG, the
Software and Documentation and any complete or partial copies thereof, the
Program Concepts, Third-Party Database, any other third-party software licensed
with or as part of the Software, benchmark results; and (ii) information
reasonably identifiable as the confidential and proprietary information of SAP
or Licensee or their licensors excluding, any part of the SAP or Licensee
Proprietary Information which: (a) is or becomes publicly available through no
act or failure of the 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.
1.14 "RELEASE" means each issuance of the Software developed by or for SAP
and/or SAP AG, excluding third party software, identified by the numeral to the
left of the decimal point (e.g., 3.0).
1.15 "SAP AG" means SAP Aktiengesellschaft, the licensor of the SAP
Proprietary Information to SAP.
1.16 "SOFTWARE" means (i) all software specified in agreed upon Appendices
hereto, developed by or for SAP and/or SAP AG and delivered to Licensee
hereunder; (ii) any Releases, Versions, or Correction Levels of the Software as
contemplated by this Agreement; and (iii) any complete or partial copies of any
of the foregoing.
1.17 "TERRITORY" means the United States of America, Canada, Mexico and all
other countries in which SAP AG has wholly owned subsidiaries, which at the time
of this Agreement, included the countries specified in Exhibit B, subject to
United States export control laws as specified in Exhibit C.
1.18 "THIRD-PARTY DATABASE" means third-party proprietary database software
licensed through SAP to Licensee.
1.19 "USE" means to load, execute, access, employ, utilize, store, or display
the Software.
1.20 "VERSION" means each issuance of each Release of the Software developed
by or for SAP and/or SAP AG, excluding third party software, identified by the
numeral to the right of the decimal point (e.g., 3.1).
1.21 "YELLOW BUSINESS" or "BRANCH SALES AND SERVICES DIVISION" means that
organization which provides cleaner services for parts and other specialized
services to automotive repair, commercial and manufacturing customers. The
division provides its services primarily through a network of locations
supported by accumulation centers, recycling plants, oil refining plants and pcb
processing facilities.
2. LICENSE GRANT.
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2.1 GRANT OF LICENSE.
(a) Subject to this Agreement, SAP grants and Licensee accepts, a
non-exclusive, perpetual (unless terminated in accordance with Section 5 herein)
license to Use the Software, Documentation, other SAP Proprietary Information
and Third-Party Database provided by SAP to Licensee, at specified site(s)
within the Territory for Productive and Non-Productive Uses. This license does
not permit Licensee to: (i) Use the Software and Third-Party Database for a
service bureau application; (ii) sublicense or rent the Software or Third-Party
Database; or (iii) provide training to any third party except as specifically
permitted hereunder.
(b) Licensee agrees to install the Software and Third-Party Database only
on Designated Unit(s), intranet server(s) or internet server(s) as identified by
Licensee pursuant to this Agreement and which have been previously approved by
SAP in writing or otherwise officially made known to the public as appropriate
for Use or interoperation with the Software and Third Party Database [such as
through the Documentation or as found on SAPNet site (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇
/index.htm)]. Any individuals directly or indirectly accessing the Software on
behalf of Licensee, its Affiliates or Business Third Parties must be licensed as
Named Users. The maximum number of Named Users (or other relevant metric)
licensed to directly or indirectly access the Software, and/or Third Party
Database, shall be specified in Appendices to this Agreement. Access by
non-Named Users may be authorized provided the appropriate Software is licensed
in Appendices hereto. Licensee shall promptly provide written notice to SAP if
the number of Named Users or other relevant metric exceeds such maximum numbers.
(c) Licensee may transfer the Software and Third-Party Database from one
Designated Unit to another at no additional license fee except for surcharges
for specific installation locations as stated in Exhibit C, and shall provide
written notice to SAP within fifteen business days of such installation.
Licensee shall be responsible for the cost of any migration tools, Third-Party
Database costs, third-party software or additional Software required for the new
Designated Unit. The Software and Third-Party Database must be promptly deleted
in their entirety from the Designated Unit no longer in Use and from each
back-up copy for that Designated Unit.
(d) Licensee may install or have installed the Software and any Third
Party Database on any reasonable number of Designated Units as necessary for
Licensee to exercise its rights hereunder.
(e) Licensee may permit the services provider(s) reasonably selected by
Licensee ("Outsourcers") to access the Software and Third Party Database solely
for the purpose of providing facility, systems, outsourcing, development,
implementation, processing, maintenance, support or other similar service, or
disaster recovery services to Licensee, its Affiliates, and those parties
identified in and in the manner provided in Section 10.3 in connection with the
business of Licensee for which the Software is herein licensed PROVIDED: (i)
SAP, Licensee, and such services provider execute a Confidentiality Agreement in
the form attached as Exhibit D or a form which is materially equivalent to
Exhibit D prior to such access; prior to such access; (ii) all employees of such
services provider authorized to access the Software shall be considered Users;
(iii) such services provider shall be permitted to Use the Software solely to
operate the business of Licensee, its Affiliates, and those parties identified
in and in the manner provided in Section 10.3 as set forth herein, (or in the
case of a disaster recovery vendor, to provide disaster recovery services only);
(iv) under no circumstances may such services provider Use the Software to
operate or provide processing services to any other party, or in connection with
such services provider's own business operations; (v) Licensee shall be
responsible for any additional Software, migration tools, or third party
software needed to effect such transition; and (vi) Licensee expressly agrees to
indemnify SAP, its officers, employees, agents and subcontractors from and
against all claims, liabilities, losses, damages and costs (including reasonable
attorney fees) suffered by SAP arising form a breach by the services provider of
the conditions of this Agreement or the Confidentiality Agreement
2.2 AUTHORIZATION OF AFFILIATES TO USE THE SOFTWARE. Affiliates shall be
authorized to Use the Software and Third-Party Database; PROVIDED that: (i) each
Affiliate shall first sign and deliver to SAP its agreement to be bound by the
terms herein in the form of Exhibit E attached hereto; and (ii) such Use shall
be subject to the following: (A) Licensee accepts responsibility for the acts or
omissions of
such Affiliate as if they were Licensee's acts or omissions; (B) Licensee shall
indemnify SAP against losses or damages suffered by SAP arising from breach of
this Agreement by any such Affiliate as if effected by Licensee; and (C) such
Use shall not constitute an unauthorized exportation of any SAP Proprietary
Information under U.S. Government laws and regulations.
2.3 AUTHORIZATION OF BUSINESS THIRD PARTIES TO ACCESS THE SOFTWARE. Business
Third Parties may have access to the Software provided (i) each Business Third
Party accessing the Software shall execute a confidentiality agreement pursuant
to Section 6.2 herein; (ii) all individuals directly or indirectly accessing the
Software on behalf of Business Third Parties shall be licensed as Named Users;
(iii) Business Third Parties are expressly limited to screen access to the
Software; (iv) in no circumstances may Business Third Parties have access to
Software source code; (v) in no circumstances shall Business Third Parties Use
the Software to operate or manage the business of such Business Third Parties
(vi) such Use shall be subject to the following: (A) Licensee accepts
responsibility for the acts or omissions of such Business Third Parties as if
they were Licensee's acts or omissions; (B) Licensee shall indemnify SAP against
losses or damages suffered by SAP arising from breach of this Agreement by any
such Business Third Party as if effected by Licensee; and (C) such Use shall not
constitute an unauthorized exportation of any SAP Proprietary Information under
U.S. Government laws and regulations.
2.4 AUDIT RIGHT. Upon SAP's reasonable request, which shall not occur more
than once annually, Licensee shall deliver to SAP a report, as defined by SAP,
evidencing Licensee's usage of the Software licensed under this Agreement.
Should Licensee fail to produce such report within a reasonable period of time,
SAP (or its authorized representative) reserves the right to access Licensee's
Software installation(s) during normal business hours to generate a usage report
and Licensee shall pay SAP's reasonable costs of generating such report. In the
event an audit reveals Licensee's non-compliance with the terms of the Agreement
or if SAP has a good faith reason to believe that the usage report generated by
Licensee is inaccurate, SAP shall be permitted to perform a re-audit
notwithstanding the one audit per year limitation.
(a) In the event Licensee does not provide the report as required
above, during normal business hours and at any time during which the Software,
Documentation, Third-Party Database, or other SAP Proprietary Information are
being utilized, SAP, or its authorized representative or licensors, shall have
the right during normal business hours upon reasonable advance notice 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. SAP agrees to adhere to any
reasonable governmental and/or Licensee security rules and regulations governing
access to any Licensee Designated Site or Designated Unit(s) used by Licensee.
(b) In the event an audit reveals that Licensee underpaid License
and/or Maintenance Fees to SAP, Licensee shall pay such underpaid fees based on
the prices and conditions stated in Appendices to this Agreement..
(c) If SAP Proprietary Information is given to Business Third Parties
pursuant to this Agreement, Licensee shall secure the right for SAP to audit
such Business Third Party as specified in this Section. Upon SAP's reasonable
request, Licensee shall deliver to SAP a report, as defined by SAP, evidencing
Licensee's Usage of the Software licensed under this Agreement.
2.5 ARCHIVAL COPY; RESTRICTION ON COPIES; LEGENDS TO BE REPRODUCED. Licensee
may make one (1) copy of the Software for archival purposes and such number of
backup copies of the Software as are consistent with Licensee's normal periodic
backup procedures. Licensee shall maintain a log of the number and location of
all originals and copies of the Software. Licensee may reproduce or copy any
portion of the Documentation into machine-readable or printed form for its
internal use and only as required to exercise its rights hereunder. Licensee
shall include, and shall under no circumstances remove, SAP's and its licensors'
copyright, trademark, service ▇▇▇▇, and other proprietary notices on any
complete or partial copies of the Software, Documentation, Third-Party Database,
or SAP Proprietary Information in the same form and location as the notice
appears on the original work. The inclusion of a copyright notice on any portion
of the Software, Documentation, Third-Party Database, or SAP Proprietary
Information shall not cause or be construed to cause it to be a published work.
2.6 LICENSE FOR THIRD-PARTY DATABASE. The Software requires a third-party
database which may be licensed through SAP or directly from a third-party
database licensor approved by SAP. In the event Licensee obtains a license
directly from a third-party database licensor, any restrictions imposed on
Licensee directly by such third-party database licensor shall apply. SAP makes
no representations or warranties as to the Third-Party Database or its
operation.
3. DELIVERY. The licensed Software in machine-readable format (including,
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currently, the Software's application source code. Source code for the basis
system, however, shall not be delivered except as may be provided for in Section
11), and the Documentation, shall be delivered as specified in Appendices hereto
("Delivery"). Licensee shall be responsible for installation of the Software. At
Licensee's request, and in accordance with the terms of this Agreement and a
Professional Services Agreement to be negotiated, Licensee may elect and SAP may
agree to provide pre-installation support, installation support, consulting and
training services ("Services") for the Software licensed hereunder.
4. PRICE AND PAYMENT.
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4.1 LICENSE FEES. In consideration of the license granted hereunder, Licensee
shall pay to SAP license fees for the Software on such terms as set forth in
Appendices hereto ("License Fees"). Fees for Maintenance ("Maintenance Fees")
shall be paid as set forth in Appendices hereto. Fees for Professional Services
("Consulting Fees") shall be paid as set forth in a Professional Services
Agreement. SAP's preferred method of receiving payment for all fees invoiced
under this Agreement are by ACH or wire transfer to the SAP account listed on
the invoice. Any fees Licensee does not pay when due and not disputed in good
faith shall accrue interest at the rate of 18% per annum, but not to exceed the
maximum amount as allowed by law. Licensee also agrees to pay SAP all reasonable
costs and expenses of collection, including attorneys' fees.
4.2 TAXES. Fees and other charges described in this Agreement, or in SAP's
most recent List of Prices and Conditions, do not include federal, state or
local sales, use, property, excise, service, or similar taxes now or hereafter
levied as a direct result of the Software license transactions as contemplated
by this Agreement ("Tax(es)"), all of which shall be for Licensee's account.
With respect to state/local sales tax, direct pay permits or a valid tax-exempt
certificates must be provided to SAP prior to the execution of this Agreement.
If SAP is required to pay Taxes (excepting taxes on SAP's income or franchise
taxes), SAP shall invoice Licensee for such Taxes. Licensee hereby agrees to
indemnify SAP for and hold it harmless from any Taxes and related costs,
interest and penalties paid or payable by SAP, including late fees provided SAP
timely invoices Licensee for such taxes and timely remits such payments made by
Licensee to the applicable taxing authority.
5. TERM AND TERMINATION.
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5.1 TERM. This Agreement and the license granted hereunder shall become
effective as of the date first set forth above and shall continue in effect
thereafter unless terminated under Section 5.2 .
5.2 TERMINATION. This Agreement and the license granted hereunder shall
terminate upon the earliest to occur of the following: (i) sixty (60) days after
Licensee gives SAP written notice of Licensee's desire to terminate this
Agreement, for any reason, but only after payment of all License and Maintenance
Fees then due and owing; (ii) sixty (60) days after SAP gives Licensee notice of
Licensee's material breach of any provision of the Agreement (other than
Licensee's breach of its obligations under Sections 6) including more than sixty
(60) days delinquency in Licensee's payment of any money due hereunder not
disputed in good faith, unless Licensee has cured such breach during such sixty
(60) day period; or (iii) ten (10) days after SAP gives Licensee notice of
Licensee's material breach of Section 6 unless Licensee has cured such breach
during such ten (10) day period; (iv) immediately upon the occurrence of any of
the following events, which exist as to Licensee and remain uncured for a period
of more than thirty (30) days: (A) entry of an order for relief under Chapter 11
of the United States Code, appointment of a receiver or trustee in bankruptcy of
Licensee's business or property, or an action under any state insolvency or
similar law for the purpose of bankruptcy, reorganization, or liquidation,
unless within the specified thirty (30) day period, Licensee, its receiver, or
its trustee in bankruptcy provides to SAP adequate written assurances,
reasonably acceptable to SAP, of Licensee's continuing ability and willingness
to fulfill all of its obligations under the Agreement; (B) the making of an
assignment for the benefit of creditors; or (C) Licensee's insolvency which
means Licensee demonstrates an inability to meet its obligations under this
Agreement when due. Notwithstanding the preceding (iv), SAP acknowledges and
agrees that the current Chapter 11 bankruptcy proceeding, filed in the United
States Bankruptcy Court for the District of Delaware, shall not be deemed a
qualifying event under this section (iv)(A) however SAP in making this
acknowledgement does not waive any rights it may have under applicable
bankruptcy or other laws.
5.3 EFFECT OF TERMINATION. Upon any termination of this Agreement: Sections
2.4, 4, 6, 7.6, 8, 9, 12.5, 12.6 and 12.7 shall survive such termination;
Licensee's rights under Section 2 shall immediately cease; and SAP and Licensee
each shall promptly perform its obligations under Section 5.4. In the event of
any termination hereunder, Licensee shall not be entitled to any refund of any
payments made by Licensee. Termination of Maintenance or professional services
provided to Licensee by SAP shall not terminate the license granted in Section 2
herein.
5.4 DUTIES UPON TERMINATION. Upon any termination hereunder, Licensee and its
authorized Affiliates shall immediately cease Use of all SAP Proprietary
Information and shall irretrievably delete and/or remove such items from all
computer hardware and storage media. Notwithstanding the foregoing, in the event
SAP is in material breach of the Agreement and the Agreement is terminated by
Licensee, Licensee shall: (a) discontinue Use of the Software and all of the SAP
Proprietary Information; (b) destroy or return, as provided herein, the CDs of
the Software and all of the SAP Proprietary Information; and (c) reasonably
destroy or delete the Software and all SAP Proprietary Information from the
archival and backup copies. Within thirty (30) days after any termination,
Licensee shall deliver to SAP at Licensee's expense (adequately packaged and
insured for safe delivery) or destroy all copies of the SAP Proprietary
Information. Licensee agrees an officer of Licensee's organization shall certify
in writing to SAP that it and each of its authorized Affiliates has performed
the foregoing. Within thirty (30) days after any termination, SAP shall return
the Licensee Proprietary Information to Licensee.
6. PROPRIETARY RIGHTS.
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6.1 SAP PROPRIETARY INFORMATION.
(a) Licensee acknowledges 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 its licensors. Licensee acquires only the right to Use
the SAP Proprietary Information and does not acquire any ownership rights or
title in or to the SAP Proprietary Information and that of SAP's licensors.
(b) Licensee shall not copy, translate, disassemble, or decompile, nor
create or attempt to create, by reverse engineering or otherwise, the source
code from the object code of the Software. In the event source code is provided
to Licensee, SAP, in its sole discretion, reserves the right to delete, or to
require the deletion of, such source code and all copies thereof in Licensee's
possession or control whenever a future Release, Version, or Correction Level
provides for like functionality in an object code format. Subject to the
Licensee receiving Maintenance, SAP will not, however, delete or require
deletion of such source code and all copies thereof unless or until the parties
mutually agree upon the migration to a future Release, Version, or Correction
Level.
(c) Subject to Section 6.3(b), all Modifications and Extensions to the
Software and Documentation shall be considered part of the Software and
Documentation for purposes of this Section 6.
6.2 PROTECTION OF PROPRIETARY INFORMATION. In order to protect the
rights of SAP and its licensors and Licensee in their respective Proprietary
Information, SAP and Licensee agree to take all reasonable steps and the same
protective precautions to protect the Proprietary Information from disclosure to
third parties as with its own proprietary and confidential information. Neither
party shall,
without the other party's prior written consent, disclose, provide, or make
available any of the Proprietary Information of the other party in any form to
any person, except to its bona fide employees, officers, directors, consultants,
service providers or third parties 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 third party, it
will obtain from that third party a written acknowledgment that such third party
will be bound by the same terms as specified in this Section 6 with respect to
the Proprietary Information and naming SAP or Licensee, as the case may be, as a
third party beneficiary. To the extent any Proprietary Information is required
to be disclosed pursuant to a requirement of a government agency, a court
exercising proper jurisdiction, or by operation of law, rule, or regulation the
disclosing party may make such disclosure provided that the disclosing party
will promptly notify the other party in writing prior to making any such
disclosure in order to facilitate the non-disclosing party seeking a protective
order or other appropriate remedy from the proper authority. The disclosing
party agrees to cooperate with the other party in seeking such order or other
remedy. The disclosing party further agrees that if the other party is not
successful in precluding the requesting legal body from requiring the disclosure
of the Proprietary Information, it will furnish only that portion of the
Proprietary Information which is, in the opinion of its counsel, required and
will exercise all reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded the Proprietary Information.
6.3 MODIFICATIONS AND EXTENSIONS.
(a) Licensee and at Licensee's direction, its authorized Affiliates and
Outsourcers may make Modifications and Extensions to the Software developed by
or for SAP and/or SAP AG other than third party software, for Use on the
Designated Unit(s) under the terms set forth in this section. Licensee shall
register all Modifications to the Software with SAP prior to making such
Modifications through the SAPNet R/3 Frontend [formerly known as On-line
Software Services (OSS)]. Licensee agrees to insert in all copies of the
Software as modified all copyright, trade secret, or other notices thereon or
therein as SAP may from time to time direct.
(b) In the event Licensee without SAP's participation develops any
Modification or Extension (hereinafter referred to as "Licensee Extension" or
"Licensee Modification") to the Software, Licensee shall have all rights, title,
and interest in such Licensee Modification or Licensee Extension subject to
SAP's rights in the Software. Such Licensee Extension or Licensee Modification
shall be Licensee's Proprietary Information subject to SAP's rights in the
Software. Licensee agrees to offer SAP the first right to negotiate a license to
or assignment of such Licensee Modification or Licensee Extension and the
parties agree to negotiate such rights in good faith. Should Licensee desire to
initiate such negotiation, Licensee shall provide to SAP all documentation and
material pertaining to such Licensee Modification or Licensee Extension
necessary to permit SAP to determine if it desires to exercise its right to
negotiate. SAP shall advise Licensee of its decision within 120 days after
receipt of all such information. In the event SAP declines or fails to exercise
its right to negotiate, within the 120 day period, Licensee shall be free to
enter into an agreement with a third party on terms no more favorable than those
offered to SAP. Licensee agrees that prior to SAP's waiver of its first right to
negotiate, such Licensee Modification or Licensee Extension will be used solely
in connection with Licensee and its Affiliates' business operations, and that
such Licensee Modification or Licensee Extension will not be marketed, licensed
or sublicensed, sold, assigned, or otherwise transferred or made available to
any third party or other entity except as expressly permitted in this Agreement,
including Section 2 and Section 10 of this Agreement .
(c) Unless otherwise agreed to in writing by the parties, in the event
SAP develops either independently, or jointly with Licensee, any Modification or
Extension to the licensed Software, such Modification or Extension and all
rights associated therewith will be the exclusive property of SAP and SAP AG,
and Licensee will not grant, either expressly or impliedly, any rights, title,
interest, or licenses to such Modifications or Extensions to any third party.
Licensee shall be entitled to Use such Modifications and Extensions developed
for or with Licensee on the Designated Unit(s) under the terms set forth in this
Agreement. Licensee agrees to assign all right, title and interest in and to
jointly developed Modifications and Extensions to SAP. Licensee agrees to
execute, acknowledge and deliver to SAP all documents and do all reasonable
things necessary, at SAP's expense, to enable SAP to obtain and secure such
Modifications or Extensions throughout the world. Licensee agrees to take all
reasonable action within its control to secure the necessary rights and
obligations from relevant employees, or third parties in order to satisfy the
above obligations.
(d) The parties hereto agree that the granting of any rights, title, or
interest to Licensee in any Modification or Extension shall not be construed by
the parties hereto, any court of law or equity, or any arbitration panel to mean
that SAP has granted or given up any rights, title, or interest in or to the SAP
Proprietary Information.
(e) Licensee agrees not to take any action that would limit SAP's
independent development, sale, assignment, licensing or use of its own Software
or Modifications or Extensions thereto. Notwithstanding the foregoing, in the
event SAP does not exercise its first right of refusal or waives such right,
Licensee may sell, assign or license the Licensee Modification or Licensee
Extension without being in breach of the Agreement.
7. PERFORMANCE WARRANTY.
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7.1 WARRANTY PERIOD; WARRANTY. SAP warrants that the Software will materially
conform to the functional specifications contained in the Documentation for six
(6) months following Delivery (the "Warranty Period") when Used without material
alteration on the Designated Unit(s). SAP's warranty is subject to Licensee
providing SAP necessary access, including remote access, to the Software.
Licensee shall provide SAP with sufficient test time and support on Licensee's
Designated Unit(s) to correct the defect. SAP shall use its commercially
reasonable efforts to effect a satisfactory remedy within a reasonable time
period after its receipt of notice as specified herein. Services to be provided
by SAP during the Warranty Period shall include Maintenance Services described
in the attached Maintenance Schedule. In the event any SAP Consultant must
travel to Licensee's facilities during the Warranty Period to ensure that the
Software will materially conform to the functional specifications contained in
the Documentation during the Warranty Period, such Consultant's expense shall be
borne by SAP.
7.2 SCOPE OF WARRANTY.
(a) The warranty set forth in this Section 7 shall not apply: (i) if
the Software is not used in accordance with the Documentation; or (ii) unless
otherwise agreed to in writing by the parties to any Extensions or
Modifications; or (iii) if the defect is caused by a Modification or Extension,
Licensee, or a third-party software malfunction.
(b) SAP does not warrant that the Software will operate uninterrupted
or that it will be free from minor defects or errors which do not materially
affect such performance or that the applications contained in the Software are
designed to meet all of Licensee's or its authorized Affiliates' business
requirements.
7.3 DISABLING CODE. SAP warrants that it has taken reasonable steps to test
the Software licensed pursuant this Appendix for Disabling Code (as defined
herein) and to the best of its knowledge, the Software is free of Disabling Code
as of the date of delivery by SAP. SAP further warrants that it will take
reasonable steps to test each future Release, Version, and Correction Level for
Disabling Code. Disabling Code is defined as computer instructions that alter,
destroy or inhibit the licensed Software and/or Licensee's processing
environment, including but not limited to other program's data storage and
computer libraries, programs that self-replicate without manual intervention,
instructions programmed to activate at a predetermined time upon a specified
event, and/or programs purporting to do a meaningful function but designed for a
different function. It is agreed this Section does not include screen lock-out
features for: (i) Users in excess of the number of Users authorized under this
Agreement; (ii) Use of an unauthorized copy of the Software; or (iii)
unauthorized Modifications or Extensions.
7.4 VIRUS PROTECTION. SAP warrants that it has taken reasonable steps to
ensure that the Software licensed under the Appendix (or Appendices) is free
from Computer Virus at the time of delivery by SAP. SAP further warrants that it
will take reasonable steps to test each future Release, Version, and Correction
Level for Computer Virus. "Computer Virus" is defined as a computer program
attached to or a section of code hidden within the Software that performs a
function unauthorized by the Software Documentation which adversely affects the
Software or Licensee's computer systems.
7.5 YEAR ▇▇▇▇ ▇▇▇▇▇▇▇▇. SAP warrants that the Software during the term of
this Agreement shall be "Millennium Compliant". As used in this Agreement,
"Millennium Compliant" shall mean the ability of the Software to consistently
and accurately process date data (including, but not limited to, calculating,
comparing, and sequencing) from, into, and between the twentieth and
twenty-first centuries, including leap year calculations, when used in
accordance with Documentation. "Millennium Compliant" shall include, without
limitation, the ability of the Software to provide the following functions: (i)
consistently and accurately handle information before, during and after January
1, 2000, including but not limited to accepting date input, providing date
output, and performing calculations on dates or portions of dates; (ii) function
accurately in accordance with the Documentation before, during, and after
January 1, 2000, without any change in operations associated with the advent of
the new century; (iii) respond to two-digit date input in a way that resolves
any ambiguity as to century in a disclosed, defined and predetermined manner;
and (iv) receive, process, store and provide output of date information in ways
that are unambiguous and accurate as to century.
7.6 EXPRESS DISCLAIMER. SAP AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT
ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
8. INDEMNIFICATION.
----------------
8.1 SAP REPRESENTATION. SAP represents that its licensors own the Proprietary
Information licensed by SAP hereunder, including all intellectual property
rights therein, and that SAP has all rights from its licensors necessary to
license, in accordance with the terms of this Agreement, such Proprietary
Information to Licensee.
8.2 NO REPRESENTATION REGARDING COMBINATION USE. SAP and its licensors make
no representation with respect to the possibility of infringement by Combination
Use of the Software. The parties agree that SAP has no duty to investigate nor
to warn Licensee of any such possibility. Provided, however, that in the event
that SAP has actual knowledge of an infringement resulting from Combination Use,
SAP will use reasonable efforts to notify Licensee. "Combination Use" means Use
of the Software in conjunction with any of the following, unless such Use is
prescribed in the Documentation: (i) any software other than the Software or
Third Party Database; (ii) any apparatus other than a Designated Unit; and/or
(iii) any activities of Licensee or its authorized Affiliates not licensed under
this Agreement.
8.3 INDEMNIFICATION OF LICENSEE.
(a) Except for Combination Use, SAP shall indemnify Licensee and its
authorized Affiliates (for purposes of this Section "Licensee") against all
claims, liabilities, and costs, including reasonable attorneys' fees, reasonably
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 Documentation
infringes or misappropriates: (i) any United States or German patent; or (ii) a
copyright; or (iii) trade secret rights; or (iv) any trademark rights; provided
that, Licensee promptly notifies SAP in writing of any such claim (Licensee's
failure to notify SAP of any such claim will not relieve SAP of its obligations
under this Section 8.3(a) except to the extent SAP is prejudiced thereby) and
SAP is permitted to control fully the defense and any settlement of such claim
as long as such settlement shall not include a financial obligation on Licensee.
Licensee shall cooperate fully in the defense of such claim at SAP's expense,
and may appear, at its own expense, through counsel reasonably acceptable to
SAP. SAP may, in its sole discretion, settle any such claim on a basis requiring
SAP to substitute for the Software and Documentation alternative substantially
equivalent non-infringing programs and supporting documentation. In the event
Licensee contends such Software and/or Documentation is not substantially
equivalent non-infringing programs and/or supporting documentation, a senior
manager from each party agree to meet at a mutually agreed place and time to
resolve such dispute.
(b) Except for Combination Use, SAP shall indemnify Licensee and its
authorized Affiliates (for purposes of this Section "Licensee") up to the amount
of License Fees paid under this Agreement, against all claims, liabilities,
judgments, settlements, and costs, including reasonable attorneys' fees,
reasonably 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
Documentation infringes or misappropriates any right of a third party pertaining
to: (i) any Canadian or Mexican patent PROVIDED that, Licensee promptly notifies
SAP in writing of any such claim (Licensee's failure to notify SAP of any such
claim will not relieve SAP of its obligations under this Section 8.3(b) except
to the extent SAP is prejudiced thereby) and SAP is permitted to control fully
the defense and any settlement of such claim as long as such settlement shall
not impose a financial obligation on Licensee. Licensee shall cooperate fully in
the defense of such claim at SAP's expense, and may appear with its own counsel,
at its own expense. SAP may, in its sole discretion, settle any such claim on a
basis requiring SAP to substitute for the Software and Documentation alternative
substantially equivalent non-infringing programs and supporting documentation.
In the event Licensee contends such Software and/or Documentation is not
substantially equivalent non-infringing programs and/or supporting documen-
tation, a senior manager from each party agree to meet at a mutually agreed
place and time to resolve such dispute.
(c) In the event that any preliminary injunction, temporary restraining
order or final injunction shall be obtained in the Territory preventing or
otherwise limiting Licensee's exercise of its rights under this Agreement, SAP
shall, in addition to its obligations under Sections 8.3(a) and 8.3(b) above, at
its sole option and expense, either: (i) obtain the right for continued use of
the infringing Software or Documentation; or (ii) modify the infringing Software
and Documentation to avoid such infringement while obtaining at least
functionally equivalent and non-infringing functionality; or (iii) substitute
for the Software and Documentation alternative functionally equivalent and
non-infringing software and supporting documentation; or (iv) after using
commercially reasonable efforts to provide (i), (ii), or (iii) above, provide a
refund to Licensee of paid License Fees for that part of the Software subject to
such claim of infringement, (unless such part is an integral function of the
Software, in which SAP will refund all paid License Fees). All such refunds
shall be depreciated on a seven (7) year straight line basis.
8.4 INDEMNIFICATION OF SAP. Licensee shall indemnify SAP, and its licensors,
against all third party claims, liabilities, and costs, including reasonable
legal fees, reasonably incurred in the defense of any claim (other than for the
infringement of intellectual property rights specified in Section 8.3 above),
arising out of Licensee's unauthorized Use of the Software, Documentation,
Third-Party Database, and other SAP Proprietary Information, licensed under this
Agreement, PROVIDED that, SAP promptly notifies Licensee in writing of such
claim and that Licensee is permitted to control fully the defense and any
settlement of the claim.
8.5 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 and
Documentation. Licensee shall not undertake any action in response to any
infringement or alleged infringement of the Software and Documentation without
the prior written consent of SAP, which consent shall not be unreasonably
withheld. Licensee agrees to cooperate with and assist SAP by taking whatever
action which SAP determines to be reasonably necessary or desirable. SAP shall
reimburse Licensee for all reasonable out-of-pocket costs including reasonable
legal fees incurred by Licensee in providing such cooperation.
8.6 SAP'S DUTY TO INDEMNIFY LICENSEE. THE PROVISIONS OF THIS SECTION 8 STATE
THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SAP AND ITS LICENSORS TO LICENSEE,
AND IS LICENSEE'S SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY
INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATIONS OF LIABILITY.
-------------------------
9.1 LICENSEE'S REMEDIES. Other than as provided for in Section 8.3 and 9.3,
but subject to the limitation in Section 9.3 herein, Licensee's sole and
exclusive remedies for any damages or loss in any way connected with the
Software or Services furnished by SAP and its licensors, whether due to SAP's
negligence or breach of any other duty, shall be, at SAP's option: (i) SAP shall
use commercially reasonably efforts to bring the performance of the Software
into substantial compliance with the functional specifications; (ii)
re-performance of Services; or (iii) after using commercially reasonable efforts
to provide (i) and (ii), return of an appropriate portion of any payment made by
Licensee with respect to the applicable portion of the Software (unless such
part is an integral function of the Software, in which SAP will refund all paid
License Fees depreciated on a seven (7) year straight line basis) or Services.
9.2 SAP NOT RESPONSIBLE. SAP will not be responsible under this Agreement
for: (i) unless otherwise agreed to in writing by the parties, any alteration of
the Software to fit the particular requirements of Licensee; or (ii) unless
otherwise agreed to in writing by the parties, the correction of any defects
resulting from Modifications or Extensions; (iii) or as a result of misuse of
the Software by Licensee; or (iv) preparation or conversion of data into the
form required for use with the Software or (v) ensuring the security of
Licensee's networked installation of the Software. THE SOFTWARE IS NOT
SPECIFICALLY DEVELOPED OR LICENSED HEREUNDER FOR USE IN ANY DIRECT AND ACTIVE
OPERATIONS OF ANY EQUIPMENT IN ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL
APPLICATIONS, OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. THE PARTIES
HERETO AGREE THAT USE OF THE SOFTWARE AND THIRD-PARTY SOFTWARE FOR FINANCIAL
APPLICATION PURPOSES OR SUCH OTHER ADMINISTRATIVE PURPOSES SHALL NOT BE DEEMED
INHERENTLY DANGEROUS APPLICATIONS IF SUCH USE DOES NOT AFFECT THE OPERATIONS OR
MAINTENANCE OF SUCH EQUIPMENT. SAP AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY
CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR
THIRD-PARTY SOFTWARE LICENSED HEREUNDER.
9.3 LIMITATION OF LIABILITY. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING,
EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF THE
PROPRIETARY INFORMATION, UNDER NO CIRCUMSTANCES SHALL SAP ITS LICENSORS OR
LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF
DAMAGES IN EXCESS OF THE PAID LICENSE FEES (EXCEPT FOR SAP'S INDEMNITY
OBLIGATIONS PURSUANT TO SECTION 8.3(a), IN WHICH CASE THE AMOUNT OF DAMAGES
SHALL NOT EXCEED THREE (3) TIMES THE PAID LICENSE FEES) OR BE LIABLE IN ANY
AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD
WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR
MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES. The provisions of the Agreement
allocate the risks between SAP and Licensee. The License Fees reflect this
allocation of risk and the limitations of liability herein.
The foregoing limitation of liability an direct damages only does not apply to
(i) personal injury or death caused by the negligence or willful misconduct of
SAP; or (ii) tangible property damage up to the amount by which such damage is
paid by SAP's liability insurance which is currently not less than $1,000,000.00
per occurrence, with $5,000,000.00 umbrella coverage. SAP represents herein such
coverage will not be reduced during the term of this Agreement without first
providing Licensee prior written notice.
9.4 SEVERABILITY OF ACTIONS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH
AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE
PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE
ENFORCED AS SUCH.
10. ASSIGNMENT.
-----------
10.1 Except as expressly set forth in this Agreement Licensee may not, without
SAP's prior written consent, which shall not be unreasonably withheld assign,
delegate, pledge, or otherwise transfer this Agreement, or any of its rights or
obligations under this Agreement, or the SAP Proprietary Information, to any
party (including any Affiliate), whether voluntary or by operation of law,
including by way of sale of assets, merger or consolidation. Except with respect
to any assignment permitted by Section 10.2 or 10.4, or unless otherwise agreed
to by SAP in writing, any permitted assignment of this Agreement shall provide
that the provisions of this Agreement shall continue in full force and effect
and that Licensee shall guaranty the performance of its assignee and shall
remain liable for all obligations hereunder. SAP may assign this Agreement to
SAP AG. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
10.2 SALE OF LICENSEE. Notwithstanding 10.1 above, Licensee shall have the
right to assign this Agreement (excluding all third-party software and Third
Party Database (SAP however, will assist Licensee's efforts to assign such
third-party software and Third-Party Database)) at no additional license fee to
any entity which acquires all or substantially all of Licensee's operating
assets, or to any entity which acquires all or substantially all of operating
assets of Safety-Kleen Corp., Licensee's parent company, or to any entity
incorporated in the United States which acquires all or substantially all of
operating assets of the Blue Business or the Yellow Business, provided however
that at the time of the acquisition Licensee is wholly owned by Safety-Kleen
Corp., or, in the event Licensee is merged or reorganized pursuant to any plan
of merger or reorganization, subject to the condition that Licensee provides SAP
with: (i) a statement, signed on behalf of the Assignee, that such Assignee
agrees to abide by the terms of this Agreement; (ii) evidence, reasonably
satisfactory to SAP, of such Assignee's corporate authority to enter into this
Agreement; and (iii) a copy of the Assignee's most current financial statement,
in accordance with generally accepted accounting principals consistently
applied, showing that such Assignee has a minimum net worth, sufficient in SAP's
sole but reasonable judgment, to allow Assignee to perform its obligations under
this Agreement. SAP acknowledges that Licensee is evaluating numerous
restructuring alternatives, including those described in the immediately
preceding sentence.
10.3 SALE OF LICENSEE BUSINESS UNIT - TRANSITIONAL SERVICES. Should Licensee
or Licensee's parent company Safety-Kleen Corp., from time to time, sell or
otherwise transfer the assets (whether all or a part of such assets) or equity
ownership of the Blue Business, the Yellow Business, any Affiliate, or any
division or business unit of Licensee or any of its Affiliates (each 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, either directly or
through its permitted service providers, to do so for a period of seven (7)
months after the completion of any such transfer with no additional payment to
SAP. If Licensee, as part of any agreement with such Business Unit, is required
to provide such services for a period beyond seven (7) months, then Licensee
shall have the right to so provide such services for up to an additional five
(5) 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. SAP acknowledges
that Licensee is evaluating numerous restructuring alternatives which may
require such transitional services.
10.4 SALE OF LICENSEE BUSINESS UNIT - ASSIGNMENT OF USERS. Notwithstanding
10.1 above, Licensee shall have the right to transfer Users under this Agreement
(excluding all third-party software) to any entity incorporated in the United
States, Canada, or Mexico which acquires a Business Unit (as defined in Section
10.3), subject to the following conditions: (1) Licensee provides SAP with prior
written notice of such transfer specifying the number and type of users being
transferred; (2) Licensee provides SAP with a copy of the Transferee's most
current financial statements, in accordance with generally accepted accounting
principals consistently applied, showing that such Transferee has a minimum net
worth, sufficient in SAP's sole but reasonable judgment, to allow Transferee to
perform its obligations under this Agreement; (3) the number of Users being
transferred in any one transfer and in the aggregate is no more than twenty
percent (20%) of the number of Users licensed to Use the Software unless
otherwise approved by SAP in writing, which approval shall not be unreasonably
withheld; (4) the acquiring entity executes an SAP Software End-User License
Agreement and applicable Appendix upon transfer of the Users; (5) the Transferee
pays the difference between Licensee's discounted User fees and the standard
discounted User fees per SAP's then current price list Transferee would have
otherwise been entitled to based on the number of Users being transferred; (6)
Licensee executes an Appendix to the Agreement reducing the number of Users
licensed to Licensee and Affiliates by the number of Users transferred; (7) the
Transferee shall begin paying Maintenance Service fees upon execution of SAP's
Software End-User License Agreement at SAP's then current rates in effect, which
in no case shall the Maintenance Fees be less than the Maintenance fee required
to support one hundred fifty (150) Named Users. In no event shall a transfer
reduce Licensee's payment obligation set forth in this Agreement with the
exception of Maintenance Service fees which shall be proportionally reduced upon
completion of the transfer. SAP acknowledges that Licensee is evaluating
numerous restructuring alternatives which may require the transfer of Users in
connection with the acquisition of a Business Unit.
11. ESCROW OF SOURCE CODE.
---------------------
11.1. SAP warrants that the source code for those portions of the Software, not
otherwise delivered as source code,, has been or shall be deposited in an escrow
account maintained at DSI Technology Escrow Services, Inc. Burlington, MA (the
"Escrow Agent"), pursuant to an agreement between the Escrow Agent and SAP, (the
"Escrow Agreement").
11.2. SAP will from time to time deposit into the escrow account copies of
source code for Releases and Versions of the Software.
11.3 SAP or SAP's trustee in bankruptcy shall authorize the Escrow Agent to
make and release a copy of the applicable deposited materials to Licensee upon
the occurrence of any of the following events:
(a) The existence of any one or more of the following circumstances,
uncorrected for more than thirty (30) days: entry of an order for relief under
Title 11 of the United States Code; the making by SAP of a general assignment
for the benefit of creditors; the appointment of a general receiver or trustee
in bankruptcy of SAP's business or property; or action by SAP under any state
insolvency or similar law for the purpose of its bankruptcy, reorganization, or
liquidation; unless within the specified thirty (30) day period, SAP (including
its receiver or trustee in bankruptcy) provides to Licensee adequate assurances,
reasonably acceptable to Licensee, of its continuing ability and willingness to
fulfill its maintenance obligations under this Agreement;
(b) SAP has ceased its on-going business operations or that portion of
its business operations relating to the sale, licensing and maintenance of the
Software; or
(c) Failure of SAP to carry out the material maintenance obligations
imposed on it pursuant to this Agreement after reasonable opportunity has been
provided to SAP and SAP AG to perform such obligations.
11.4. In no event shall Licensee have the right to access the applicable
deposited materials if SAP AG agrees to assume SAP's maintenance obligations
under this Agreement.
11.5 In the event of release under this Agreement, Licensee agrees that it
will treat and preserve the deposited materials as a trade secret of SAP AG in
accordance with the same precautions adopted by Licensee to safeguard its own
trade secrets against unauthorized use and disclosure and in all cases at least
with a reasonable degree of care. Release under this provision shall not extend
Licensee any greater rights or lesser obligations than are otherwise provided or
imposed under this Agreement. This provision shall survive any termination of
this Agreement.
12. GENERAL PROVISIONS.
------------------
12.1 RIGHTS TO INJUNCTIVE RELIEF. Both parties acknowledge that remedies at
law may be inadequate to provide SAP or Licensee with full compensation in the
event of Licensee's material breach of Sections 2, 6, 10 or 12.5, or SAP's
material breach of Section 6 with respect to Licensee Proprietary Information,
and that the non-breaching party shall therefore be entitled to seek injunctive
relief in the event of any such material breach.
12.2 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.
12.3 NO WAIVER. If either party should waive any breach of any provision of
this Agreement, it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision hereof.
12.4 COUNTERPARTS. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and which shall together constitute one
Agreement.
12.5 EXPORT CONTROL NOTICE. Regardless of any disclosure made by Licensee to
SAP of an ultimate destination of the Software, Documentation, Third-Party
Database, and other provided SAP Proprietary Information Licensee acknowledges
that the Software, Documentation, Proprietary Information, and the Third-Party
Database are being released or transferred to Licensee in the United States and
are therefore subject to the U.S. export control laws. Licensee acknowledges its
exclusive obligation to ensure that its exports from the United States are in
compliance with the U.S. export control laws. Licensee shall also be responsible
for complying with all applicable governmental regulations of any foreign
countries with respect to the use of the Proprietary Information by its
Affiliates outside of the United States. Licensee agrees that it will not submit
the Software to any government agency for licensing consideration or other
regulatory approval without the prior written consent of SAP. Licensee shall
defend, indemnify, and hold SAP and its licensors harmless from and against any
and all claims, judgments, awards, and costs (including reasonable legal fees)
arising out of Licensee's noncompliance with applicable U.S. or foreign law with
respect to the use or transfer of the SAP Proprietary Information outside the
United States by Licensee and its Affiliates.
12.6 CONFIDENTIAL TERMS AND CONDITIONS. Licensee shall not disclose the terms
and conditions of this Agreement and the pricing contained therein to any
third-party except to its authorized Affiliates as necessary for Licensee to
exercise its license rights under Section 2, or except as required to be
disclosed pursuant to: (i) a court order; (ii) the requirements of a
governmental agency; or (iii) by operation of law, rule or regulation provided
that SAP is consulted prior to such third-party disclosure. Notwithstanding the
foregoing, Licensee may disclose the terms and conditions of this Agreement,
exclusive of any Appendices hereto except Licensee may disclose the aggregate
amount of total license fee, and maintenance fees though December 31 2002, in
the Licensee's motion seeking authority to enter into this Agreement from the
United States Bankruptcy Court for the District of Delaware; provided that such
motion shall indicate that copies of the Appendices shall not be attached due to
their sensitive and proprietary nature. Neither party shall use the name of the
other party in publicity, advertising, or similar activity, without the prior
written consent of the other, except that 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.
12.7 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the Sate of Delaware without reference to its conflicts of law
principles. In the event of any conflicts between foreign law, rules, and
regulations, and United States of America law, rules, and regulations, United
States of America law, rules, and regulations shall prevail and govern. The
United Nations Convention on Contracts for the International Sale of Goods shall
not apply to this agreement.
12.8 NOTICES. All notices or reports which are required or may be given
pursuant to this Agreement shall be in writing and shall be deemed duly given
when delivered to the respective executive offices of SAP and Licensee at the
addresses first set forth above.
12.9 FORCE MAJEURE. Any delay or nonperformance of any provision of this
Agreement (other than for the payment of amounts due hereunder) caused by
conditions beyond the reasonable control of the performing party shall not
constitute a breach of this Agreement, and the time for performance of such
provision, if any, shall be deemed to be extended for a period equal to the
duration of the conditions preventing performance; provided that in order to be
excused from delay or nonperformance the performing party shall take all
commercially reasonable actions to remedy the cause of such condition.
12.10 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 merged in, and
superseded by, this Agreement. This Agreement may be modified only by a writing
signed by both parties. This Agreement and each Appendix hereto shall prevail
over any additional, conflicting, or inconsistent terms and conditions which may
appear on any purchase order or other document furnished by Licensee to SAP.
12.11 For so long as Licensee is receiving Software Maintenance Services from
SAP at SAP's terms then in effect and provided Licensee has not exceeded the Use
restriction set forth in herein, if SAP reduces or eliminates the functionality
contained in Software licensed by Licensee, as identified herein, in a future
Release or Version of the Software and offers such functionality as a separate
product, Licensee shall be entitled to license such functionality at no
additional fee, excluding third-party software or additional Software fees, if
any.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly
executed this Agreement to become effective as of the date first above written.
SAP America, Inc. Safety-Kleen Services, Inc.
(SAP) (Licensee)
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Signature: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------- ---------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Print Name: ▇▇▇ ▇▇▇▇▇▇
------------------------ --------------------------
Title: Vice President Title: Director
----------------------------- -------------------------------
Date: 5/23/02 Date: 5/17/02
------------------------------ --------------------------------
(▇▇▇▇▇.▇▇▇ License Agreement)
Exhibit A
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES, INC. ("Licensee")
Affiliate List
Company State of Incorporation Ownership Percentage
------- ---------------------- --------------------
USPCI of Mississippi, Inc. Mississippi 50%
OSCO Treatment Systems of
Mississippi, Inc. Tennessee 50%
Curbside, Inc. California 49%
Exhibit B
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES ("Licensee")
Argentina
Austria
Australia
Belgium
Brazil
Canada
China
Czech Republic
Denmark
France
Germany
Hong Kong
Hungary
India
Indonesia
Ireland
Italy
Japan
Malaysia
Mexico
Netherlands
New Zealand
Philippines
Poland
Russia
Singapore
South Africa
South Korea
Spain
Sweden
Switzerland
Taiwan
Thailand
United Kingdom
United States
Venezuela
Exhibit C
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES, INC. ("Licensee")
List of Prohibited Countries and Geographical Areas
---------------------------------------------------
Angola (areas controlled by UNITA rebels)
Bosnia (Bosnian-Serb controlled areas)
Croatia
Cuba
Iran
Iraq
Libya
Montenegro
North Korea
Syria
and
any other country or geographical area prohibited under US export control law or
regulations applicable to the Software or by the Third Party Database provider
provided SAP first notifies Licensee in writing of any such Third Party Database
provider restrictions.
This list of prohibited countries and geographical areas is subject to change,
upon written notice to Licensee, in accordance with changes in US export control
law or regulations.
Surcharge for Specific Installation Locations:
----------------------------------------------
A one hundred percent (100%) surcharge on the per User license fee is applicable
to all Users accessing any version of the Software installed on a Designated
Unit located in C.I.S. countries (former Soviet Union block countries), Bahrain,
Egypt, Jordan, Qatar, Kuwait, Lebanon, Morocco, Mauritania, New-Palestine, Oman,
Saudi Arabia, Sudan Tunisia, United Arab Emirates, and Yemen.
EXHIBIT D
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES, INC. ("Licensee")
CONFIDENTIALITY AGREEMENT
-------------------------
This Confidentiality Agreement (" Agreement") made this ____th day of ____,
200__ between SAP America, Inc. having its principal place of business at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to
___ as ___ "SAP"), ____ ____________________, ____ having ___ its ____ principal
____ place ___ of ____ business ____ at ___________________________ (hereinafter
referred to as "Vendor") and Safety-Kleen Services, Inc. having its principal
place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
hereinafter referred to as ("Company").
All terms as set forth in the SAP America, Inc. Software End-User License
Agreement ("License Agreement") and referred to herein, shall have the same
meaning as set forth in the License Agreement unless otherwise modified herein.
WHEREAS, SAP is in the business of providing proprietary software,
documentation, and related services to its Customers;
WHEREAS, Pursuant to the License Agreement dated May 15, 2002, between SAP and
Company, SAP has licensed its Software, Documentation and other Proprietary
Information to Company for Use in its business operations;
WHEREAS, Company has engaged Vendor to perform certain facilities, outsourcing,
development, implementation and/or information systems management services as
set forth in the __________________ Agreement between Vendor and Company dated
____________ ("Services") that will require Vendor to have access to the
Software; and
WHEREAS, SAP and/or Company will disclose to Vendor the Software, whether in
source or object code, including unique concepts or techniques embodied therein,
Documentation, any Third-Party Database or Third-Party Software sublicensed from
SAP, and any other Proprietary Information for the sole purpose of allowing
Vendor to provide the Services to Company;
NOW THEREFORE, in consideration of disclosure to Vendor of such Proprietary
Information, and intending to be legally bound, the parties agree as follows:
1. Permissible Users.
------------------
Vendor agrees that it will use the Proprietary Information solely for
providing the Services to Company. Vendor will not use the Proprietary
Information to process its own business information or to provide processing or
facilities management or other services to any party other than Company.
2. SAP Proprietary Information.
----------------------------
(a) Vendor acknowledges SAP's assertion that ownership of and title
in and to all intellectual property rights, including patent, trademark, service
▇▇▇▇, copyright, and trade secret rights, in the Proprietary Information are and
shall remain in SAP and SAP AG and their respective licensors. Vendor acquires
only the right to use the Proprietary Information under the terms and conditions
of this Agreement and does not acquire any ownership rights or title in or to
the Proprietary Information and that of their respective licensors.
(b) SAP agrees that no restrictions are made upon Vendor with respect
to any Proprietary Information that: (a) is already rightfully possessed by
Vendor without obligation of confidentiality; or (b) is developed independently
by Vendor without breach of this Agreement; or (c) is rightfully received by
Vendor from a third party without obligation of Confidentiality; or (d) is, or
becomes, publicly available without breach of this Agreement.
(c) Vendor shall not remove any proprietary, copyright, trademark, or
service ▇▇▇▇ legend from the Software, Documentation or other provided
Proprietary Information.
(d) Vendor shall maintain a log of the number and location of all
originals and copies of the Software. The inclusion of a copyright notice on any
portion of the Software or Documentation shall not cause or be construed to
cause it to be a published work.
3. Protection of Proprietary Information.
--------------------------------------
(a) Vendor agrees that it will not disclose, provide, or make
available any of the Proprietary Information in any form to any person, except
to bona fide employees, officers, or directors whose access is necessary to
enable Vendor to exercise its rights hereunder, without the SAP's prior written
consent.
(b) Vendor shall not copy, translate, disassemble, or decompile, nor
create or attempt to create the source code from the object code of the Software
licensed hereunder or use it to create a derivative work, unless authorized in
writing by SAP.
(c) Vendor acknowledges that any disclosure to third parties of
Proprietary Information may cause immediate and irreparable harm to SAP,
therefore, Vendor agrees to take the same protective precautions to protect the
Proprietary Information from disclosure to third parties as it takes with its
own proprietary and Proprietary information of a similar nature.
4. Duties Upon Termination.
------------------------
Upon any termination hereunder, Vendor shall immediately cease Use of the
Proprietary Information and shall irretrievably delete the Software, Third-Party
Database and Documentation from all Vendor computer hardware, including CPU,
application servers, terminals, workstations, and data files. Within thirty days
after any termination, Vendor shall deliver to SAP at Vendor's expense
(adequately packaged and insured for safe delivery) or, at SAP's request,
destroy all copies of the Proprietary Information in every form. Vendor further
agrees to erase the Software and Documentation from any storage media. Vendor
shall certify in writing to SAP that it has performed the foregoing.
5. No Rights Transferred.
----------------------
The furnishing of the Proprietary Information for the limited purposes
set forth herein does not constitute the grant, option, license, sublicense,
assignment, or other form of transfer to Vendor of any rights, title or interest
in or to such Proprietary Information.
6. Modifications and Extensions.
-----------------------------
Vendor, under the terms of this Agreement, expressly warrants and
represents on its behalf, and on behalf of its agents and employees, that no
Modifications or Extensions for the licensed Software will be performed without
providing prior written notice to SAP. All Modifications and Extensions to the
Software owned by SAP shall be considered part of the Software for purposes of
this Agreement.
7. Indemnification.
----------------
(a) Vendor agrees to indemnify and defend SAP, its parent,
affiliates, its and their officers, directors and employees, from and against
any and all loss, claim or damage, including attorney's fees and costs, which
SAP may suffer, that arise from or are in any way connected with Vendor's
provision of the Services to Company or breach of Vendor's obligations
hereunder.
(b) ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO
CIRCUMSTANCES SHALL SAP BE LIABLE TO VENDOR, COMPANY OR ANY OTHER PERSON OR
ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD
WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR
MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR
PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DOES NOT APPLY TO
PERSONAL INJURY OR DEATH CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SAP.
8. Assignment.
-----------
Vendor may not, without SAP's prior written consent, assign, delegate,
sublicense, pledge, or otherwise transfer this Agreement, or any of its rights
or obligations under this Agreement. Any permitted assignment of this Agreement
shall provide that the provisions of this Agreement shall continue in full force
and effect and that Vendor shall guaranty the performance of its assignee and
shall remain liable for all obligations hereunder.
9. Miscellaneous.
--------------
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their permitted successors assigns.
(b) The provisions of this Agreement, together with any agreements
incorporated or referred to herein, shall (i) with regard to the subject matter
hereof, supersede all prior agreements and negotiations, and (ii) be modified
only by a written agreement.
(c) In the event that any provision of this Agreement shall, for any
reason, be determined to be invalid, illegal, or unenforceable in any respect,
the parties hereto shall negotiate in good faith and agree to such amendments,
modifications, or supplements of or to this Agreement or such other appropriate
actions as shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties as
reflected herein, and the other provisions of this Agreement shall, as so
amended, modified, or supplemented, or otherwise affected by such action, remain
in full force and effect.
(d) This Agreement shall be governed by and construed under the law
of Delaware without reference to its conflicts of law principles.
This Agreement shall be in effect beginning on the date first above written and
shall continue in effect until otherwise agreed upon by the parties in writing.
IN WITNESS HEREOF, and intending to be legally bound, the parties have executed
this Agreement on the date and year first written above.
SAP AMERICA, INC. (Vendor)
-------------------------------
By: By:
----------------------------- --------------------------
Title: Title:
--------------------------- ------------------------
Date: Date:
---------------------------- ------------------------
SAFETY-KLEEN SERVICES, INC. (Company)
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
EXHIBIT E
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES, INC. ("Licensee")
AUTHORIZED AFFILIATE AGREEMENT
This Authorized Affiliate Agreement is made effective as of the _____ day of
__________________, 200_ between SAP America, Inc., a Delaware Corporation, with
offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SAP")
and _____________________________________, a ________________________________
corporation, with offices at
__________________________________________________________________("Affiliate").
1. Affiliate is entitled to have Named Users access the Software on the
Designated Unit(s) identified in the SAP America, Inc./Safety-Kleen
Services ____ Software End-User License Agreement ("Agreement"), subject
to the restrictions on the aggregate number of Named Users specified
therein.
2. Affiliate agrees to be bound by all of the terms and conditions of the
Agreement and agrees that SAP may directly enforce all such terms and
conditions against Affiliate as if Affiliate had executed such Agreement
with SAP. Notwithstanding any other agreements to the contrary, Affiliate
agrees that its right to Use SAP Software and receive Maintenance
services shall be governed solely by this Agreement. In the event that
the Agreement is terminated for any reason, or if Affiliate ceases to
meet the definition of "Affiliate" therein, Affiliate agrees that all of
its rights to access the Software will cease effective as of the
termination date unless such Affiliate executes a standard SAP End-User
Software License for the SAP licensed Software at SAP's then current
license fees.
3. Software and the number of Named Users licensed under the Agreement by
Licensee and allocated to Affiliate hereunder is as follows (to be
completed in the event such authorized Affiliate has an installation of
the Software):
Type of Number of Quantity
Named User Named Users Software Licensed
---------- ----------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
-------- -------- -------- --------
4. Affiliate represents and warrants that it has the legal capacity to
execute this Authorized Affiliate Agreement.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have dully
executed this Authorized Affiliate Agreement.
SAP America, Inc ------------------------------------
(SAP) (Affiliate)
By: By:
------------------------------- -------------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
------------------------------ ------------------------------
MAINTENANCE SCHEDULE ("Schedule")
to
SAP America, Inc. ("SAP")
Software End-User License Agreement effective May 15, 2002 ("Agreement")
with
SAFETY-KLEEN SERVICES, INC. ("Licensee")
This Schedule is hereby annexed to and made a part of the Agreement specified
above. In each instance in which provisions of this Schedule contradict or are
inconsistent with the provisions of the Agreement, the provisions of this
Schedule shall prevail and govern, and the contradicted or inconsistent
provisions of the Agreement shall be deemed amended accordingly.
1. Licensee may request and SAP shall provide, to such degree as SAP makes
such services generally available in the Territory, maintenance service
("MAINTENANCE") from SAP with respect to the Software. Maintenance by SAP
is limited to the Customer Competency Center(s) specified herein.
Maintenance currently includes the delivery of Releases, Versions,
Correction Levels and Software correction packages, support via telephone
(24 hours, 7 days per week),, remote support/update, Early Watch Alert,
and SAP's SAPNet - R/3 Frontend [services allowing Licensee to obtain
up-to-date on-line information concerning known problems relating to the
standard Release of the Software in effect which have been reported and
solved by SAP AG or SAP and formerly known as On-line Software Services
(OSS)]. Maintenance does not include the adaptation of any Modifications
or Extensions developed by or for Licensee to new Releases or Versions.
In order to receive Maintenance hereunder, Licensee must make all
required remote support and update connections to each Designated Unit,
at its expense, as requested by SAP. Maintenance will only be offered for
the most recent Version of the Software and the two prior Versions,
provided Licensee is using the latest Correction Level of such Version.
Notwithstanding the foregoing, in the event SAP makes commercially
available a new Release, SAP agrees to support as a part of Maintenance
the prior Release of its Software for not less than twelve (12) months
after the new Release is made commercially available
2. mySAP Services: Provided Licensee is paying standard Maintenance Fees,
Licensee currently receives a choice of one of the following services per
live installation per year:
A. One (1) GoingLive Check for any new Software or other SAP
application implementation;
B. GoingLive Upgrade Check for an upgrade to a higher functional
Release (e.g. from R/3 4.0 to 4.6); or
C. Two (2) EarlyWatch sessions for the continual optimization of
Licensee's already live system.
To schedule GoingLive Check or Early Watch sessions Licensee must
contact Americas Customer Support Services at ▇▇▇-▇▇▇-▇▇▇▇ or
internationally at ▇▇▇-▇▇▇-▇▇▇▇ and choose option 6 to schedule
these services. To assist Licensee in this, SAP has established
the following scheduling pre-requisites:
A. To receive the GoingLive Check or GoingLive Upgrade Check Licensee
must inform SAP at least three (3) months prior to your go live or
upgrade date.
B. To receive the EarlyWatch service, SAP requests a minimum of two
(2) months advanced notification.
Further information and detail about individual SAP services can be found
on SAPNet site (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇).
LICENSEE ACKNOWLEDGES THAT ITS FAILURE TO UTILIZE THE MAINTENANCE
SERVICES PROVIDED BY SAP SUCH AS GOINGLIVE/UPGRADE CHECK AND EARLYWATCH
MAY PREVENT SAP FROM BEING ABLE TO IDENTIFY AND ASSIST IN THE CORRECTION
OF POTENTIAL PROBLEMS WHICH, IN TURN, COULD RESULT IN UNSATISFACTORY
SOFTWARE PERFORMANCE.
3. In order to receive Maintenance, Licensee agrees to promptly disclose to
SAP and provide copies to SAP of any Modifications and to keep and
maintain adequate and current records of all Modifications (which records
shall be made reasonably available to SAP). Modifications and Extensions
shall be protected as Proprietary Information as set forth in Section 6
of the Agreement.
4. Maintenance, from SAP, for the Software licensed hereunder is limited to
the following site(s):
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ U.S.
_______________________________________ Asia-Pacific
_______________________________________ Europe
5. In order to receive Maintenance, Licensee agrees to establish and
maintain Customer Competency Center(s) ("CCC") at the site(s) specified
above within twelve (12) months of the Effective Date of this Schedule in
accordance with the following. Each CCC must maintain an internal Help
Desk to provide first level support to Licensee's Users relating to
technology and application software questions or problems. Such internal
Help Desk(s) must be staffed during Licensee's normal working hours, but
no less than (8) eight hours a day, (5) five days a week. All Users may
have access to SAPNet - R/3 Frontend however, only Licensee CCC employees
are authorized to contact SAP after attempting to resolve the matter via
Licensee's internal Help Desk. Each CCC shall coordinate Licensee's
Modification and Extension notification and disclosure requirements and
shall coordinate Licensee's development requests. Licensee's CCC is
responsible for the administration and management of the requirements
specified in the Agreement including, but not limited to, performing
periodic self audits to ensure Licensee's compliance with the license
grant, maintaining master and installation data and managing the receipt
of new Releases, Version, and Correction Levels of the Software. In the
event Licensee
does not establish and maintain CCC(s) in accordance with the above, SAP
reserves the right to reasonably increase Licensee's then current
maintenance percentage factor then in effect. In the event Licensee
experiences and reports an error or defect (or perceived error or defect)
in the Software and reports such error or defect in the Software to SAP,
while receiving Maintenance, SAP will determine if there is such an error
or defect with the Software, and then SAP will respond in accordance with
the Software Maintenance Response Schedule "1" attached hereto.
6. Maintenance Fees shall be paid annually in advance and shall be specified
in Appendices to the Agreement. In addition, Licensee shall be invoiced
an annual fee of USD 1,500 for up to three (3) SAPNet R/3 Frontend
[formerly known as On-line Software Services (OSS)] connections.
Maintenance Services offered by SAP may be changed annually by SAP at any
time upon three (3) months prior written notice subject to limitations on
increases agreed to between the parties. After Year 1, the Maintenance
Fees and any limitations on increases are subject to Licensee's
compliance with the CCC requirements specified above. Maintenance may be
terminated by Licensee in writing at any time upon three (3) months'
prior written notice to SAP. . SAP may terminate Maintenance service only
if: (i) this Agreement is terminated; (ii) Maintenance Service is no
longer available to similarly situated licensees in the Territory; (iii)
Licensee has not migrated to a supported Release or Version of the
Software as set forth in Section 1above; or (iv) Licensee has failed to
pay Maintenance Service fees not disputed in good faith after thirty (30)
days written notice of Licensees failure to pay Maintenance Fees by SAP.
Licensee shall be entitled to a pro-rata refund of prepaid Maintenance
Fees upon termination of Maintenance Service.
7. In the event Licensee elects not to commence Maintenance upon the first
day of the month following initial Delivery of the Software, or
Maintenance is otherwise declined for some period of time, and is
subsequently requested or reinstated, SAP will invoice Licensee the
accrued Maintenance Fees associated with such time period plus a
reinstatement fee.
8. In the event Licensee licenses a Third Party Database, then SAP agrees to
coordinate correction efforts with such Third Party Database vendor in
the event a defect is caused by the Third-Party Database. Additionally,
as updates or corrections are made available to SAP for such Third Party
Database, and the Software is compatible with such updates or
corrections, SAP will provide the updates and corrections to Licensee as
made available through such Third Party Database vendor.
9. A further description of the Maintenance stated in items 1 and 2 in this
Schedule which is subject to change is as follows:
The SAP EARLY WATCH SERVICE is a special service offered for proactive system
diagnosis. The purpose of this service is to maintain system performance and
availability at a high level. Teams of experts analyze licensee's production
▇▇▇▇▇.▇▇▇ solutions, conducting a technical analysis of both the SAP Basis and
▇▇▇▇▇.▇▇▇ components. This analysis includes the step-by-step optimization of
central background processing and frequently used queries and record the results
in a status report which makes recommendations for solution tuning.
SOFTWARE CORRECTION PACKAGES:
ON-LINE CORRECTION SUPPORT
SAP provides compressed bundles of corrections to problems in a licensee's
▇▇▇▇▇.▇▇▇ Software in the form of support packs and legal change patches, which
are made available to a licensee in the SAPNet-R/3 Frontend and through SAP's
Solution Manager/Service Marketplace. A licensee will not need to enter these
corrections manually but can download them from SAP's service systems (SAPNet -
R/3 Frontend and/or Solution Manager/Service Marketplace) and import them into
licensee's ▇▇▇▇▇.▇▇▇ system via a user-friendly interface.
GOING LIVE
The Going Live Service Package prepares an R/3 system for the start of
production. The Going Live Standard Service covers the following 3 sessions:
SESSION 1 - ANALYSIS
The first inspection, Analysis, checks the major system components of an R/3
installation with regards to system consistency and reliability. This check
concentrates on the operating system parameters and the database configuration,
the configuration of the Basis system, distribution of SAP processes among the
individual servers, and the relationship between hardware and the quantity
structure. This check should take place before the planned go live date.
SESSION 2 - OPTIMIZATION
The second inspection, Optimization, supports the customer in a near-production
system environment. This application examination goes beyond merely analyzing
the key transactions from a technical perspective, and searches for the
transactions with high resource consumption. The results are used to decide
whether adjustments are necessary to the system configuration or the database
and system sizing. Ideally, this check is performed 2 weeks prior to the start
of production.
SESSION 3 - VERIFICATION
The Going Live is completed by the final inspection, Verification, which
examines the system components again and validates all recommended changes of
the two prior sessions. This check is performed when the system is in productive
operation. To ensure trouble free operation, it is completed two weeks after the
start of productive activities.
SCHEDULE "1"
------------
Software Maintenance Response Schedule:
---------------------------------------
Licensee will classify each error or defect in the Software or related
Documentation and will report such error or defect to SAP for correction based
on the following criteria:
Error Classification Criteria
-------------------- --------
1 Very High Priority: Production System Shutdown
System shutdown or severe restrictions in the
production SAP system that prevent productive work.
2 High Priority: Productive System
Severe loss of functionality, significant
restrictions in a productive system.
3 Medium Priority: Production or Test System
An individual function s not performing properly.
4 Low Priority: Production or Test System
Design or documentation problem.
SAP shall use commercially reasonable efforts to respond to error reports
according to the following schedule:
Error Classification 1st Level 2nd Level 3rd Level
-------------------- --------- --------- ---------
1 1 hour 4 hours next Version
2 48 hours 3 days next Version
3 7 days 15 days as appropriate
4 10 days 45 days as appropriate
* Provided such error is reported by Licensee to SAP prior to SAP's close
of development for such Version.
Level Identification
Level 1 - Acknowledgment of receipt of error report.
Level 2 - Commence patch, work around, temporary fix and documentation
correction pages.
Level 3 - Official object code fix, update or major release and/or updated
manuals.
Licensee must supply SAP with reproducible errors in order for this schedule to
apply.
For non-reproducible errors, SAP will use reasonable efforts to correct the
error, but shall not be bound by the above schedule.
APPENDIX 1 AND SCHEDULE 1 TO
APPENDIX 1 ARE CONFIDENTIAL AND WERE
INTENTIONALLY REDACTED FROM THE
LICENSING AGREEMENT