Exhibit 10.13
Complementary Software Program
Developer Package Agreement
Between: SAP Labs, Inc.
0000 Xxxx Xxxxx Xxxx Xxxx Xxxx, XX 00000, XXX
(hereinafter: SAP)
and: Mediaplex, Inc.
000 Xxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(hereinafter: Partner)
1. Subject Matter of the Developer Package Agreement
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1.1 The subject matter of this Developer Package Agreement is the Update
Service for the SAP Software Development Kit (SDK) and Remote Access to an R/3
test system at the SAP Integration & Certification Center (ICC) at SAP Labs,
Palo Alto, California.
1.2 Remote Access to an R/3 test system is granted exclusively as part of
the SAP Complementary Software Program. Partner is only entitled to use the R/3
System to develop interfaces to the R/3 System and to test their interaction
with the R/3 System. ABAP development is not supported.
Partner shall refrain from performing any activities in connection with the
R/3 System that do not directly serve the purpose specified above, irrespective
of whether the activities are relevant in terms of copyright. In particular,
Partner shall refrain from using the R/3 System productively or for training
purposes.
1.3 Remote Access may not be extended to a third party under any
circumstances.
2. Services To Be Performed. SAP Labs will provide the following services to
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Partner for the Term set forth in Section 4 of this Developer Package Agreement:
2.1 SDK Update Service
Upon commercial release of a new R/3 Release, SAP Labs will provide Partner
with an update to the SAP Software Development Kit (SDK). This includes:
. SAPGUI software and RFCSDK software
. R/3 online documentation, including activities with the RFCSDK
. Checklist and SAPGUI installation documentation
. SAP system requirements documentation
2.2 Remote R/3 Access
The Remote Service comprises access to an R/3 System for a maximum of 3
users for the purposes of developing and testing external interface programs.
Remote Access is dependent upon the availability of the R/3 test system at the
ICC. In general, Remote Access is available during normal office hours, Pacific
Standard Time (PST).
Access to the R/3 test system is not possible when the system is being
updated to a new R/3 release or when other system administration activities are
in progress. These activities may take place during normal office hours (PST).
If possible, the ICC will announce the times at which the R/3 test system is not
available by means of R/3 system messages or by e-mail.
Remote Access is supported by dedicated lines that are provided by network
service providers such as AT&T, MCI, Sprint, Westinghouse or WilTel (status:
US/Canada only, September 1995). A direct connection via ISDN is also possible.
Members of the SAP Network Team usually call Partner to discuss the most
suitable connection after the Agreement has been signed.
Partner is responsible for making the necessary internal arrangements for
the carrying out of the Services on a non-interference basis. Changes to the
Services to be performed may be made upon prior written mutual agreement of the
parties hereto.
3. Fees and Billing
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The current annual fee for the SDK Update Service and the Remote R/3 Access
is USD 6,500. Service shall commence on the 1st day of the month following
execution of this Developer Package Agreement by Partner. Partner shall be
invoiced on a pro rata basis for the period remaining until the end of the
calendar year, and thereafter at the beginning of each subsequent calendar year
for a period of 12 months. Fees are subject to change once during a calendar
year.
Partner shall pay the line costs for Remote R/3 Access. This Agreement
does not envisage travel to Partner. However, if such travel becomes necessary
or is agreed upon, Partner shall pay the travel expenses.
Other marketing and technical services are available as set forth in
Attachment A to this Agreement.
4. Start Date, Automatic Service Extension and Termination
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Services shall commence on the 1st day of the month following execution of
the Developer Package Agreement by Partner and expire December 31, 1999, with
automatic renewals for one (1) year periods unless, at least six (6) weeks prior
to a scheduled renewal date, either party gives written notice of its intentions
not to renew this Agreement. SAP may terminate this Developer Package Agreement
immediately and without prior notice upon the material breach of any provision
of the terms of this Developer Package Agreement by Partner.
5. Training
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Partner is encouraged to participate in SAP training classes that teach
SAP technologies and/or business processes which are important for the
understanding of the particular interfaces, and will help Partner in allocating
company resources. Such training shall be made available by SAP on a space
available basis, to the extent such training courses are generally offered by
SAP and at SAP's current prices and terms.
Selected Services and Partner Contact Information
X SAP Software Development Kit (SDK) including SAPGUI and RFCSDK
---- (Please provide contact information of person who should receive
the SDK)
Name Xxxxxxx Xxxxx
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Address 000 Xxxxxx Xx. #000
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Phone 000-000-0000 Fax
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Email XXXXXX@XXXXXXXXX.XXX
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X Remote access to an R/3 system provided by ICC
---- (Please provide information of person who should be contacted for
initial set-up)
Name same
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Address
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Phone Fax
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Email
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6. Superseding Agreement
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Upon execution of this Agreement, all prior agreement(s) related to this
same subject matter shall be deemed terminated in their entirety. All Software,
Documentation, and Confidential Information for the Software licensed hereunder,
will remain in Partner's possession and be considered licensed to Partner
pursuant to the terms and conditions as contained herein. All Software,
Documentation, and Confidential Information provided to Partner under prior
agreements but not licensed hereunder shall be deleted/returned to SAP.
General
This Developer Package Agreement and each Attachment hereto constitute the
complete and exclusive statement of the agreement between SAP and Partner as it
relates to the subject of matter and obligations contained herein and all
previous representations, discussions and writings are merged in, and superseded
by this Developer Package Agreement.
ACCEPTANCE: ACCEPTANCE:
SAP Labs Inc. Mediaplex, Inc.
Signature /s/ Xxxxxxxx Ivinskis
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Name Xxxxxxxx Ivinskis VP STRATEGIC BUSINESS DIV.
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Title MEDIAPLEX, INC.
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Date 7/26/99
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Signature /s/ Xxxxxxxxx Xxxxxxxxx
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Name Xxxxxxxxx Xxxxxxxxx
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Title Development Manager ICC
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Date 7/23/99
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Attachments: Attachment A (1 page)
R/3 Software Remote Access Agreement (3 pages)
Attachment A
SAP Complementary Software Program
List of Marketing and Technical Services (1-Jan-1999)
(Excerpt)
Service Description Comment Price
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1 CSP Info General Information about the SAP Info available via the Free
Complementary Software Program, SAP Internet. See xxx.xxx.xxx
Business Framework, integration --Partners--Complementary
technologies, SAP Business Interfaces Software
and Certification.
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2 Integration Consulting Consulting by Integration & Call for details, per day Starts at USD
Certification Center, e.g. SAP System (8 hours). 1,900 per day
Architecture, SAP Integration (K5)
Technologies, overview SAP Business
Interfaces, BAPIs, RFC, ALE
programming, certification procedure,
customizing, special topics.
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3 Interface Integration using standard SAP Call for details 13,500 USD, same
Certification integration scenarios. Interface fee for all
documentation, certification contract, certifiable
1 day interface consulting, 1 day interfaces
certification testing, additional
consulting per day (K5), certificate.
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4 Developer Package Update Service SAP Software Development Update when new release of 6,500 USD annual
Kit incl. SAPGUI und RFCSDK, SAP online SAP becomes available. fee
documentation, SAP supported network Prerequisite: Certification
info. Remote access to SAP test system or SDK/Remote agreement.
for interface development and testing Remote access is provided
if SAP test system is available. No via dedicated lines
ABAP development. established through network
service providers. All
costs for network access
incurred are to be borne by
partner.
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5 Marketing Services Partner management, SAP database and Call for details USD 4,800 annual
internet marketing, provision of SAP fee, after
info including SAPnet, CSP program logo. successful
certification or
validation
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SAP R/3 SOFTWARE REMOTE ACCESS AGREEMENT
("Agreement")
WHEREAS, SAP desires to grant to Licensee and Licensee desires to accept
from SAP, a license to access and use SAP's proprietary R/3 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 "Documentation" means SAP's standard documentation, in human- or
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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,
instructions, and complete or partial copies of the foregoing.
1.2 "Extension" means an addition to the Software which does not require a
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Modification.
1.3 "Modification" means a change to the Software which changes the source
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code.
1.4 "Non-Productive Use" means use of the Software solely for Licensees
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internal training or testing.
1.5 "Productive Use" means use of the Software solely to operate
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Licensee's business, including Electronic Data Interchange transactions and
developmental work.
1.6 "Program Concepts" means the concepts, techniques, ideas, and know-how
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embodied and expressed in any computer programs or modules included in the
Software, including the structure, sequence, and organization of such programs
or modules.
1.7 "Proprietary Information" means: (i) with respect to SAP and SAP AG,
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the Software and Documentation and any complete or partial copies thereof, the
Program Concepts, SAP licensors' Third-Party Database, any other third-party
software licensed with or as part of the Software, benchmark results, and any
other information identified or reasonably identifiable as confidential and
proprietary information of SAP, SAP AG, or their licensors ("SAP Proprietary
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Information").
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1.8 "Software" means: (i) the R/3 Software accessed pursuant to this
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Agreement, in machine- or human-readable form, including the SAP Graphical User
Interface Kit, 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.
2. GRANT OF ACCESS
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(a) Subject to this Agreement, SAP grants and Licensee accepts a non-
exclusive, non-transferable license to access the Software, Documentation,
Third-Party Database, and other SAP
Proprietary Information provided by SAP to Licensee, at the Designated Site
specified in Section 7.3 hereof for Non-Productive Uses. Licensee agrees that
this license does not permit Licensee to: (i) use the Software and Third-Party
Database for a service bureau application; or (ii) sublicense, or otherwise
transfer, assign, or rent the Software or Third-Party Database.
3. TERM
----
This Agreement and all access rights granted hereunder shall be effective
upon execution by both parties and expire December 31, 1999, with automatic
renewals for one (1) year periods unless, at least six (6) weeks prior to a
scheduled renewal date, either party gives written notice of its intentions not
to renew this Agreement, or unless this Agreement is otherwise terminated upon
termination of the Developer Agreement between the parties; provided, however,
that in the event of a material breach of this Agreement by Licensee which has
not been cured within ten (10) days of written notice of such breach, or upon
any attempt by Licensee to assign, delegate, sublicense or otherwise transfer
this Agreement in violation hereof this Agreement will terminate at the end of
such ten (10) day cure period.
4. PROPRIETARY RIGHTS.
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4.1 SAP Proprietary Information
---------------------------
(a) Licensee acknowledges that ownership of and title in and to all
intellectual property rights, including patent, trademark, service xxxx,
copyright, and trade secret rights, in the SAP Proprietary Information are and
shall remain in SAP and SAP AG and their respective licensors. 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
licensors.
(b) Licensee shall not copy, translate, disassemble, or decompile the
Software, nor create or attempt to create, by reverse engineering or otherwise,
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. 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 xxxx legend from the Software, Documentation, Third-Party Database,
or SAP Proprietary Information.
4.2 Protection of Proprietary Information. In order to protect the rights
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of SAP and its licensors, in its Proprietary Information, Licensee agrees to
refrain from disclosing, providing, or making available any of the Proprietary
Information in any form to any person, except to bona fide employees, officers,
directors, of Licensee whose access is necessary to enable such party to
exercise its rights hereunder, without the prior written consent of SAP.
4.3 Duties Upon Termination. Upon any termination hereunder, Licensee
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shall immediately cease use of the Software, Documentation, Third-Party
Database, and other SAP
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Proprietary Information and shall irretrievably delete and/or remove such items
from all Application Servers, computer terminals, workstations, data files, and
Designated Sites.
4.4 Modifications and Extensions. Licensee is not permitted to make
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Modifications or Extensions to the Software.
5. LIMITATION OF LIABILITY.
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5.1 Express Disclaimer. SAP DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR
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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.
5.2 Licensee's Remedies. Licensee's sole and exclusive remedies for any
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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) 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
personal injury or death caused solely by the gross negligence or willful
misconduct of SAP. With respect to damage to tangible property, SAP and its
licensors will not be responsible in any amount in excess of the amount by which
such damage is paid by SAP's liability insurance.
5.3 SAP Not Responsible. SAP will not be responsible for (i) the
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modification or improvement 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) die 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.
5.4 Exclusion of Damages. ANYTHING TO THE CONTRARY HEREIN
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NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL SAP AND ITS LICENSORS BE LIABLE TO
LICENSEE 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.
6. INDEMNIFICATION.
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6.1 Indemnification of SAP and SAP AG. Licensee shall indemnify SAP, and
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SAP AG and its licensors, against all claims, liabilities, and costs, including
reasonable attorneys' fees, reasonably incurred in the defense of any claim
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
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claim and that Licensee is permitted to control fully the defense and any
settlement of the claim.
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7. MISCELLANEOUS.
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7.1 Export Control Notice. Regardless of any made by Licensee to SAP of
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an ultimate destination of the Software, Documentation, Third-Party Database,
and other provided SAP Proprietary Information Licensee acknowledges that SAP's
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, SAP AG, and its licensors harmless from
and against any and all claims, judgments, awards, and costs (including
reasonable attorneys' fees) arising out of Licensees 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.
7.2 Governing Law. This Agreement shall be governed by and construed
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under the Commonwealth of Pennsylvania law without reference to its conflicts of
law principles.
7.3 Designated Site authorized for access hereunder:
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Xx. Xxxxxxx Xxxxxx 7/22/1999
Mediaplex, Inc.
000 Xxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
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