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EXHIBIT 10.15
R/3 REGIONAL IMPLEMENTATION PARTNER AGREEMENT
SAP AMERICA, INC. - SOFTWARE CONSULTING SERVICES AMERICA, LLC
This R/3 Regional Implementation Partner Agreement (the "Agreement"), made this
10th day of July 1995, is by and between Software Consulting Services America,
LLC ("SCSA"), a California corporation with offices at 00000 Xxxxxxxxx Xx.,
Xxxxxxx, XX 00000 and SAP America, Inc., ("SAP"), a Delaware corporation with
its principal place of business at Chesterbrook Corporate Center, 000 Xxx
Xxxx, Xxxxx 000, Xxxxx XX 00000
RECITALS
A. WHEREAS SCSA and SAP, desiring to work together, in connection with
the SAP R/3 Implementation Partner Program (as defined below), with the goal of
furthering the implementation of SAP's R/3 Software System;
B. WHEREAS SAP desires to enhance its capabilities to market and support
SAP Products through the use of SCSA's services; and
C. WHEREAS SCSA and SAP desire to formalize their relationship by
entering into this Agreement to undertake cooperative efforts for SAP R/3
Products within the SAP SCSA Program.
NOW, THEREFORE, in reliance upon the foregoing recitals, intending to
be legally bound, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SCSA and SAP agree as follows:
1. Definitions.
As used in this Agreement:
(a) The SAP-SCSA Regional Implementation Partner Program (the "R/3
RIP Program") means the business relationship set forth in this Agreement and
Appendix A to this Agreement.
(b) Software. Software shall mean all SAP R/3 software, in whole
or in part, licensed by SAP AG or SAP America, Inc. in any release, version or
correction level and including all improvements, modifications, and extensions
thereto, whether in human or machine readable form.
(c) Documentation. Documentation shall mean all human and machine
readable materials and copies of SAP manuals, program listings, flow charts,
logic diagrams, input and output forms, data models, specifications, and
instructions relating to the Software made available to SCSA under this
Agreement, or, generally, to SAP end-user licensees.
(d) R/3 Products. R/3 Products shall mean the Software,
Documentation, and related materials.
(e) Confidential Information. Confidential Information shall
include information concerning SCSA and SCSA's clients, and their respective
products, businesses, techniques, designs, formulations,
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systems, programs, processes, policies, business strategies and plans or other
information which is not in the public domain, and SAP's R/3 Products, program
concepts including literal and nonliteral elements, such as structure, sequence
and organization, SAPs training materials, literature, and related SAP
materials, SAP's customers and licensors, their respective products,
businesses, techniques, designs, formulations, systems, programs, processes,
policies, business strategies and plans and all other information which is
disclosed by either party to the other party either in writing and marked
bearing a legend such as "confidential" or "proprietary" or "for internal use
only" or orally when contemporaneously described as such.
(f) Territory. Territory shall mean SAP's western region.
2. Authorization and Commitment of Resources.
(a) SAP hereby authorizes SCSA to offer services as related to R/3
Products to potential users in the Territory under the terms of this Agreement
and any Appendices hereto. This authorization does not include maintenance of
the R/3 Products, physical installation of the R/3 Products, and training. This
authorization is non-exclusive and non-transferable.
(b) SAP in its sole discretion shall have the right to limit the
Territory, the R/3 Products, and the type of customers to be covered by this
Agreement, as SAP deems advisable in its sole discretion following reasonable
notice and consultation with SCSA. SAP may authorize other parties to offer
services as related to the R/3 Products in the Territory as it deems advisable
in its sole discretion.
(c) Services to be provided by either party to its clients and
customers are to be contracted for separately by each party, independently of
each other, unless otherwise expressly agreed upon in writing between SAP and
SCSA for that specific engagement. Each party shall be solely liable to its
customers and clients for its own services.
3. Services and Responsibilities of SAP.
(a) Should SCSA desire to license all or any part of the Software
for use in the operation of its own business, SAP will license it to SCSA under
the terms of SAP's standard end-user license agreement and at SAP's standard
license fees then in effect.
(b) With regard to training for the Software, SAP shall:
(i) invite SCSA, on a space available basis, at
negotiated rates, to SAP regularly scheduled alliance partner training. SCSA
shall be responsible for all related travel and living expenses;
(ii) provide access, on a space available basis, to SCSA
for its personnel participating in the R/3 RIP Program to customer training
courses generally offered by SAP, such training courses to be available at
SAP's current prices and terms;
(iii) provide marketing-oriented training courses to SCSA
on a cost-sharing basis to be agreed upon between the parties; and
(c) SAP shall otherwise inform and instruct SCSA as to R/3
Products and provide guidance, as SAP deems necessary in its sole judgment, for
SCSA to carry out its responsibilities under this Agreement.
4. Services and Responsibilities of SCSA.
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SCSA agrees that it shall:
(a) acquire as soon as possible and maintain a comprehensive and
fundamental knowledge of the R/3 Products and ensure that its employees are
technically qualified and sufficiently trained in SAP courses, including
ongoing training at SAP, and internally, to provide appropriate advice on the
use of the R/3 Products to clients and prospective users of the Software;
(b) use its best efforts to promote internally the R/3 Products
and to offer services as related to the R/3 Products throughout the Territory
and ensure that its employees who perform any services hereunder shall have the
proper skill, training and background to enable them to demonstrate the R/3
Products in a competent and professional manner, it being understood that SCSA
will have no liability to SAP in the event that it fails to successfully
promote R/3 Products and related services except as committed to in this
Agreement;
(c) use its best efforts to meet the goals relative to the R/3 RIP
Program set out in SCSA's annual business plan, which is attached hereto as
Appendix A, and to update such business plan quarterly;
(d) ensure that it has the necessary number of qualified personnel
available according to SCSA's annual business plan attached as Appendix A;
(e) continually improve its training of all personnel as offered
in Section 3. who are or will be acting under this Agreement;
(f) use its best efforts to make the R/3 Products known to its
customers and potential customers; make every effort to see that the R/3
Products it suggests to each potential customer meet that entity's application
requirements; present the R/3 Products using only the product names given by
SAP; provide potential customers such marketing materials and nonconfidential
information necessary for evaluating the R/3 Products being considered (except
as limited by Section 10.(b) below); and, make no warranties, assurances or
statements concerning R/3 Product features that are misleading or materially
divergent from the descriptive literature supplied by SAP;
(g) not engage in any business activity, either directly or
indirectly, in any manner or capacity, in its own behalf or in behalf of any
other person, firm, corporation or organization, nor accept or continue any
obligations which may interfere with or impair its ability to perform any of
its duties or obligations under this Agreement;
(h) to the extent it conducts end-user training within its other
consultation activities, not offer or conduct end user training which competes
with official SAP courses offered by SAP or SAP AG or any other SAP-related
entity without prior written authorization from SAP;
(i) upon invitation by SAP to participate in SAP sponsored
marketing events by presenting speeches, providing information to potential
prospects (subject to Section 10.(b) below), and assisting, where requested, in
the organization and implementation of the events;
(j) expressly inform its customers that modifications and
extensions to the Software may impair or terminate the maintenance or support
services provided by SAP and may nullify the warranty;
(k) undertake to provide customers with release and version
management and migration support as related to the Software throughout the
period of productive installation of the Software; and
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(l) dedicate a coordinator with an adequate support structure to
act as the central focal point to coordinate activities with SAP and designate
a contact person within the support group to be available to SAP who is
authorized to act on behalf of SCSA within the scope of this Agreement.
5. Services and Responsibilities of the Parties.
To the extent reasonable under the circumstances, the parties shall
undertake the following cooperative activities with respect to identifying and
bringing to each other opportunities to promote the R/3 Products:
(a) Regularly inform each other about general market developments
and factors relating to the R/3 Products in the marketplace and current
projects and customer implementations in which SCSA is involved; this
information shall be designated and treated as Confidential information under
Section 10. of this Agreement;
(b) Furnish each other with appropriate information for support
and planning purposes; provided, however, that each party. reserves the right,
in its sole discretion, to determine the content and availability of such
information;
(c) Inform appropriate personnel in their respective organizations
of the existence of this Agreement;
(d) Subject to confidentiality constraints, endeavor to keep each
other appraised about new products and services;
(e) Exchange such other information and conduct such other
activities as the parties agree will carry out the intent of this Agreement.
6. Representations and Warranties.
Each party hereby represents and warrants to the other that:
(a) it has the right and power to enter into this Agreement;
(b) entering into this Agreement does not violate the terms and
conditions of any other agreement providing for cooperative marketing of
products of another entity, or any other legal obligations;
(c) the information which it may disclose to the other party, and
the process of disclosure and use of such information in accordance with the
provisions of this Agreement, will not violate any trade secret right,
trademark, issued United States patent, copyright or other proprietary right of
any third party;
(d) it holds good title or right, free and clear of all liens and
encumbrances, to the products and services which it is providing under this
Agreement;
(e) the products and services being provided under this Agreement
do not infringe any United States copyright, trademark, issued United States
patent, trade secret or other proprietary right of any third party; and
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(f) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY MAKES
ANY OTHER WARRANTY TO THE OTHER PARTY, EITHER EXPRESS, IMPLIED OR STATUTORY, OR
ARISING BY COURSE OF CONDUCT OR PERFORMANCE, CUSTOM OR USAGE IN THE TRADE,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7. Term and Termination.
(a) This Agreement shall have an initial term expiring on December
31, 1996, with an automatic renewal for one (1) additional year unless, at
least six (6) weeks prior to the renewal date, either party gives written
notice of its intention not to renew this Agreement.
(b) At least four (4) months prior to any scheduled expiration
date, SAP will decide whether to continue or terminate the Agreement applying
the following criteria:
i. Customer satisfaction with the projects conducted by
SCSA, with special regard to the length and cost of
the project, the project objectives met by SCSA, and
the achievements and professionalism of SCSA
employees;
ii. Number and scope of R/3 projects executed;
iii. Thoroughness of employee training;
iv. Accomplishment of goals set herein and in the annual
business plans; and
v. Level of effective communication with SAP.
The procedures for such audits and the weights to be assigned each
criterion will be provided in writing by SAP to SCSA prior to the first such
audit.
On the basis of this evaluation and subsequent consultations with
SCSA, SCSA agrees that SAP, in its sole discretion, may choose to terminate
this Agreement six (6) weeks prior to the next scheduled expiration date.
(c) Notwithstanding the above, either party may terminate this
Agreement:
(i) In accordance with the provisions of Section 7.(a)
and (b) at the end of a term;
(ii) Upon thirty (30) days prior written notice in the
event of material breach of a material provision of this Agreement by the other
party, except that the party in breach shall have the right, during that 30-day
period, to cure the claimed breach or default; or
(iii) Immediately upon prior written notice if there is:
(a) a consolidation, merger or reorganization of the other party with or into
another corporation or entity; (b) creation of a new majority interest in, or
change in majority ownership of, the other party; (c) a sale of all or
substantially all of the assets of the other party; or (d) a breach of the
confidentiality provisions as specified in Section 10. below.
(d) Upon any termination of this Agreement:
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(i) each party shall, within ten (10) business days after
termination is effective, return to the other party or dispose of as mutually
agreed all advertising materials and other properties, including all
Confidential Information, furnished to it by the other party pursuant to this
Agreement and so certify in writing;
(ii) within ten (10) business days after termination is
effective, SCSA shall promptly return R/3 Products and related materials and
all copies thereof to SAP, or as the case may be, delete all R/3 Products and
Confidential Information from SCSA hardware, including binary or other
resulting files (if any), and erase all R/3 Products and Confidential
Information from any storage media before discarding such and so certify in
writing;
(iii) SCSA shall not hold itself out as a participant in
the R/3 RIP Program; and
(iv) both parties shall cease acting in a manner that
would suggest any continuing relationship between the parties regarding SAP's
Software, and shall cease all display and advertising contemplated under this
Agreement.
(e) Termination of this Agreement shall not impact upon any active
engagements in process prior to such termination.
(f) The following provisions of this Agreement shall in all events
survive its termination: Section 6. (General Representations and Warranties);
7. (Provisions Applicable to Termination); 8. (Relationship of Parties); 10.
(Confidentiality); and 11. (General Provisions).
8. Relationship of Parties.
(a) SCSA and SAP are independent contractors acting for their own
account, and neither party or its employees are authorized to make any
representation otherwise or any commitment on the other party's behalf unless
previously authorized by such party in writing. Neither party is responsible to
any end user for the quality of services or products provided by the other
party. Each party is solely responsible for establishing the prices for its own
products.
(b) Neither party is a distributor or agent for the products or
services of the other. Each party's products and services shall be available to
a prospective client only through separate agreement between that party and the
client. Each party, shall independently develop and price its respective
products and services offered between such party and a client.
(c) It is understood and agreed upon by the parties hereto, that
during the term of this Agreement, the use of the terms "joint venturer,"
"co-venturer," "partner," "marketing partner," "partnership" or similar terms
to be used to describe the relationship between the parties under this
Agreement refer to the spirit of cooperation between SCSA and SAP, and do not
describe, or expressly or by implication create, a legal partnership or joint
venture, or any responsibility by one party for the actions of the other.
9. Intellectual Property Rights.
(a) The name "R/3 RIP Program" shall be used by the parties only
jointly and pursuant to the terms of this Agreement; and upon any termination
of this Agreement, neither SAP nor SCSA may use the name in conjunction with
the parties' respective corporate names; however, SAP shall have the right to
use the name with any other parties who choose to participate in the SAP R/3
RIP Programs.
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(b) Nothing in this Agreement grants to either party the right to
use or display any other names, trademarks, trade names, logos or service marks
of the other party, except to identify the products and associated services and
deliverables of the other party to the extent obligations are undertaken
pursuant to this Agreement, Except in the case of correspondence and proposals
issued in the ordinary course of business, each party agrees to submit to the
other party for written prepublication approval, any materials which may use or
display any name, trademark, trade name, logo or service xxxx of the other
party. Notwithstanding the foregoing, nothing contained in this Agreement shall
affect either party's rights and obligations to use any trademarks, service
marks or proprietary words or symbols of the other party to properly identify
the goods or services of such other party to. the extent otherwise permitted by
applicable law or by written agreement between the parties.
(c) SCSA herein acknowledges that title to all intellectual
property rights, including patent, copyright, trademark, and trade secret
rights, in R/3 Products, including any modifications, enhancements, versions,
releases, or correction levels thereto, program concepts including literal or
nonliteral structure, sequence and organization, training materials,
literature, and other SAP related materials shall remain exclusively with SAP
AG, Walldorf, Germany, or SAP as the case may be, and that by virtue of this
Agreement, no such rights have been transferred, licensed, granted, assigned or
acquired by SCSA from SAP AG or SAP.
10. Confidentiality.
(a) Each party acknowledges that, during the term of this
Agreement, it will receive Confidential Information from the other party.
Neither party shall disclose, provide or otherwise make available to any third
party (including any prospective client) any Confidential Information of the
other party and shall utilize such Confidential Information on an internal
organization need-to-know basis only to the extent necessary to effect the
provisions and purposes of, and as expressly contemplated under the terms of,
this Agreement and for no other purpose.
(b) Each party agrees that it will protect the Confidential
Information of the other party through the exercise of no less protection and
care than it customarily uses in safeguarding its own confidential and
proprietary information which it desires to retain in confidence, but always at
least a reasonable degree of care. Disclosure of the other party's Confidential
Information to employees shall only be made on a need-to-know basis. Further,
each party shall take reasonable steps to advise their employees of the
confidential nature of Confidential Information, to ensure by agreement or
otherwise that such employees are prohibited from copying, revealing or using
such Confidential Information except to the extent required to carry out the
parties' obligations under this Agreement, and to require that Confidential
Information be kept in a secure location. Each party will promptly notify the
other if it believes that Confidential Information has lost its status as such.
(c) The foregoing shall not prohibit or limit a party's use of
information, including but not limited to ideas, concepts, know how, techniques
and methodologies, which: (i) is or become publicly available through no act of
failure, to act of the receiving party; (ii) rightfully obtained by the
receiving party without restriction; (iii) is released by the receiving party
in response to lawful legal process and with prior notice to the other party;
(iv) is rightfully already known to or is independently developed by the
receiving party prior to disclosure.
(d) Notwithstanding the foregoing, each party hereto understands
that they may become familiar with each other's services and that SCSA may
become familiar with SAP's R/3 Products and Confidential Information,
specifically its proprietary software. Accordingly, SCSA agrees, with respect
to Confidential Information, the R/3 Products (including all program concepts
therein) SAP's training materials, literature
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and other SAP related materials, that as the case may be, SCSA 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, or to use such
items to create derivative works, unless so authorized in advance, in writing,
by SAP. All updates, replacements, revisions, enhancements, additions, or
conversions to such SAP items specified above shall be subject to the
provisions as stated herein.
11. General Provisions.
(a) Non-solicitation. During the term of this Agreement and for
one (1) year after its termination, SAP and SCSA agree that neither shall
directly or indirectly solicit for employment any staff of the other party who
have been directly and substantively involved in performance under this
Agreement.
(b) Non-exclusivity. Nothing in this Agreement shall limit or
restrict either party from entering into or continuing any agreement or other
arrangement with any other party, whether similar to this Agreement in nature
or scope. Moreover, each party shall remain free to provide products and
services to any client or prospective client so long as the terms of this
Agreement are not violated.
(c) Notices. All notices required to be given under this Agreement
shall be sent by certified mail to:
00000 Xxxxxxxxx Xx.
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx,
and to
SAP America, Inc.
Attn: Contracts Department
Chesterbrook Corporate Center
000 Xxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without reference to its choice of law rules. To the extent that the parties
are permitted under this Agreement to seek judicial remedies, each party hereby
consents to the jurisdiction of the federal and state courts within the
Commonwealth of Pennsylvania to resolve any and all such matters.
(e) Merger. This Agreement and any Appendices hereto constitute the
entire agreement between the parties with respect to the manors set forth
herein. All prior agreements, oral or otherwise, between the parties and
relating to the subject matter contained herein, are hereby superseded,
provided, however, that in the event SCSA executed an Alliance Agreement and
related License and Maintenance Agreement for SAP's R/2 Software Systems, such
agreement shall continue pursuant to its terms.
(f) Amendments. This Agreement may not be modified except by a
writing signed by both parties.
(g) Severability. If any of the provisions of this Agreement are
held invalid, such provisions shall be deemed severed and the remaining
provisions shall remain in full force and effect.
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(h) Non-assignment. This Agreement may not be assigned or
transferred, nor may rights or obligations be delegated, without the prior
written agreement of the parties; notwithstanding the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties of this
Agreement, as well as their respective permitted successors and assigns.
(i) Waiver. Failure of any party to enforce, in any one or more
instances, any of the terms or conditions of this Agreement shall not be
construed as a waiver of the future performance of any such terms or
conditions.
(j) Limitation of Liability.
(i) SAP AND ITS LICENSORS SHALL NOT BE LIABLE TO SCSA OR
THIRD PARTIES FOR ANY LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA OR
COMPUTER MALFUNCTION, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, EVEN IF SAP HAS BEEN APPRISED OF THE POSSIBILITY THEREOF;
(ii) in no event shall the liability of SAP under this
Agreement, for any reason whatsoever. whether in contract, tort or statute
(including, without limitation, negligence), or otherwise, exceed
$1,000,000.00; provided, however, that this limitation shall not apply to
claims for personal injury caused by SAP's gross negligence or willful
misconduct.
(k) No Endorsement. Execution of this Agreement does not, and
shall not be construed to be, an endorsement by either party of the products or
services of the other party.
(l) Press Releases and Publicity. Any, news release, public
announcement, advertisement, or publicity proposed to be released by either
party concerning the R/3 RIP Program or any matters arising under this
Agreement shall be subject to the approval of the designated representatives of
both parties.
(m) Dispute Resolution Procedures.
(i) Any dispute, disagreement, claim or controversy
between the parties arising under or relating to this Agreement or the parties'
performance thereunder (the "Disputed Matter") which cannot be resolved by
consultations between the senior executives of SCSA and SAP shall be resolved
by binding arbitration, according to the then prevailing Commercial Arbitration
Rules of the American Arbitration Association, before a panel of three
arbitrators. Each party will select one arbitrator, and the third arbitrator
will be selected by the party-selected arbitrators. Any such arbitration shall
be held in the City of Philadelphia, Pennsylvania. The parties will share the
cost of the arbitration equally, subject to any final apportionment by the
arbitrators. The arbitrators will apply Pennsylvania law, without reference to
its choice of law rules, in resolving the Disputed Matter. The decision of the
arbitrators will be final and conclusive on the parties, and each party
consents that judgment upon an award rendered by the arbitrators may be entered
in any court of competent jurisdiction.
(ii) Neither party shall institute any action or
proceeding against the other in any court concerning any Disputed Matter that
is or could be the subject of a claim or proceeding under this Section;
provided, however, that if a party believes in good faith that a temporary or
preliminary injunction is necessary to preserve the status quo or otherwise to
avoid irreparable harm to such party, such as in the event of a breach of
Section 9. or Section 10., such party shall not be precluded by this Section
from seeking such injunctive relief from a court of competent jurisdiction.
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(iii) Pending the resolution of a Disputed Matter, to the
extent feasible, both parties shall continue their performance under this
Agreement.
IN WITNESS WHEREOF and intending to be legally bound, the parties have
caused this Agreement to be signed by their authorized representatives as of
the date shown above.
SAP America, Inc. Software Consulting Services America. LLC
SAP SCSA
By: /s/ XXXXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXX
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Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxx
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Title: VP-WRO Title: President
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Date: September 12, 1995 Date: July 10, 1995
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