EXHIBIT 10.16
SAP Global Partner - Services
Agreement
between SAP AG
Systems, Applications Products in Data Processing
Xxxxxxxxxxxxxx 00
00000 Xxxxxxxx
Xxxxxxx
(hereinafter: SAP)
and BearingPoint, Inc.
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, XX 00000
XXX
(hereinafter: BearingPoint)
1. Subject of the Agreement
The subject of this Agreement is the worldwide cooperation of the parties
hereto within the scope of the SAP Partner Value Net Program of SAP. The
objective of this Agreement is to further the implementation of SAP's
software systems with the assistance of BearingPoint in its capacity as an
experienced consulting firm. Within the framework of this Agreement, the
parties hereto shall promote and support cooperation on a national level
and strive to conclude cooperation agreements to this effect.
2. Scope of the Agreement
2.1 This Agreement shall form the basis for the worldwide cooperation of the
parties hereto. It shall be detailed and supplemented in (local/national)
cooperation agreements to be concluded between the respective SAP
subsidiaries and the local representatives of BearingPoint.
2.2 This Agreement shall not affect any cooperation agreements already existing
on the local/national level. Inasmuch as such local/national agreements
contain any provisions, which conflict with or supplement this Agreement,
the former shall take precedence.
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3. Relationship of the Parties to the Agreement
3.1 BearingPoint 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 it's own products.
3.2 The rights granted shall neither be exclusive nor transferable.
3.3 Neither party hereto shall be authorized to make statements or promises on
behalf of the other party or to commit the other party to providing
services for a customer/prospect.
3.4 This agreement shall not establish any distribution rights or rights to
remuneration, therefore neither party is a distributor or agent for the
products or services of the other. The parties hereto may agree to make
favorable reference to the services or products of the other party.
3.5 The parties hereto shall quarterly (based on the agreed review dates in the
business plans mentioned in 3.6 below) inform each other about global
market trends, especially those affecting the SAP market, upcoming
projects, and any problems that occur. The parties hereto shall treat this
information confidentially.
3.6 This cooperation is based on the business plans of the respective parties
for worldwide cooperation. These plans shall be adopted annually and
updated quarterly. They may be based on the business plans adopted annually
and updated quarterly according to the national/local cooperation
agreements.
3.7 The parties hereto shall set up a Cooperation Board to coordinate the
cooperation efforts and to ensure the exchange of information between the
parties on all important matters relating to the cooperation. This
Cooperation Board shall consist of a representative from top management
(Executive Sponsor) and a contact person from Alliance Management
(BearingPoint Account Manager) respectively, who shall be available to
answer any questions affecting the cooperation. This Cooperation Board
shall meet at least twice a year, and if necessary more often (Executive
Meetings). The parties hereto shall appoint the members of the Cooperation
Board within four weeks of concluding this Agreement.
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4. Services of BearingPoint
4.1 Bearing Point shall use commercially reasonable efforts to acquire and
maintain a comprehensive, in depth knowledge of SAP Products. The parties
shall address terms relative to training and certification of BearingPoint
consultants in a separate agreement BearingPoint agrees to fulfill further
BearingPoint obligations as described in the SAP BearingPoint Value Net
Handbook as specified in Exhibit C.
4.2 BearingPoint shall appoint a contact person to coordinate the worldwide
cooperation of the parties. This person shall be authorized to make binding
statements on behalf of BearingPoint and to accept statements on behalf of
BearingPoint as well as to make or bring about any necessary decisions.
BearingPoint shall also name an executive who shall be available, in
addition to the contact person, to deal with any problems and questions
arising in connection with the cooperation. BearingPoint shall list in
Exhibit B hereto the territories/countries within it will provide
consulting services around SAP Products. Any updates to that list shall be
made in the business plans mentioned in Section 3.6 above.
4.3 BearingPoint shall actively participate in Executive Meetings. The
BearingPoint Account Manager and the Executive Sponsor as defined in
Section 3.8 above shall be obliged to participate.
4.4 BearingPoint may make favorable reference to SAP products.
4.5 BearingPoint agrees to make its name and logo available to SAP for SAP's
use in promoting BearingPoint's services under the SAP Alliance Partner
Program in accordance with the terms of BearingPoint's logo policies, which
are attached hereto as Exhibit E and incorporated herein by reference.
Prior to each new use, SAP shall submit the proposed use to the
BearingPoint for its consent.
4.6 Within the scope of the SAP partnership program, BearingPoint shall
endeavor to promote the conclusion of local/national cooperation agreements
worldwide and shall support existing cooperation agreements on the national
level.
5. Services of SAP
5.1 SAP shall appoint a contact person to coordinate the worldwide cooperation
of the parties. This person shall be authorized to make binding statements
on behalf of SAP and to accept statements on behalf of SAP as well as to
make or bring about any necessary decisions. SAP shall also name an
executive who shall be available, in addition to the contact person, to
deal with any problems and questions arising in connection with the
cooperation.
5.2 SAP shall hold Executive Meetings for the members of the Cooperation Board
at regular intervals.
5.3 As a Global Partner, BearingPoint is entitled to use the partner logo "SAP
Global Partner-Services" for the term of this Agreement and according to
the terms set forth in Exhibit A which will identify it as an official SAP
Partner. The partner logo may be used
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by BearingPoint on a global basis. Prior to each new use, the Partner shall
submit the proposed use to SAP for its consent.
5.4 SAP may make favorable reference to BearingPoint's consulting services in
its dealings with customers/prospects.
5.5 To translate the global cooperation to the national level, SAP shall
promote the conclusion of national cooperation agreements and support
national cooperation efforts.
5.6 SAP may provide to Partner marketing activities as specified in Exhibit D
and separately agreed between the parties based on the relevant business
plan.
6. Liability
Neither party shall be liable under this Agreement unless in the case of
negligence, willful misconduct, breach of confidentiality or the
misappropriation of any parties trademarks according to Sections 4.5. and
5.3. In the case of negligence, liability shall be limited to typical
foreseeable damages up to fifty thousand ($50,000) USD. The parties hereto
are liable to exercise the same diligence in their dealings with one
another as they usually employ in their own business affairs.
7. Copyright
As between the Parties hereto, each Party will retain ownership of all of
its products, proprietary materials, trademarks and/or service marks used
in the performance of this Agreement, including but not limited to
software, designs, demoware, prototypes, tools, techniques, documentation,
methodology and all other Confidential Information. The Parties will not
jointly develop any enhancements, documentation or other materials except
pursuant to a separate written agreement, which shall address, among other
things, the scope of work, the responsibilities of each Party for their
respective development efforts, as well as ownership, rights to use,
confidentiality and duty to account to the other for the exploitation and
use of the jointly developed property.
BearingPoint acknowledges that the entire copyright to SAP's software, its
accompanying documentation, and other documents and information pertaining
to the software and all other intellectual property rights in the software
are the sole property of SAP.
8. Confidentiality
8.1 "Confidential Information" shall mean all documents, software and
documentation, reports, financial or other data, records, forms, tools,
products, services, methodologies, present and future research, technical
knowledge, marketing plans, trade secrets, and other materials obtained by
BearingPoint and SAP from each other in the course of performing hereunder,
whether tangible or intangible and whether or not stored, compiled, or
memorialized physically, electronically, graphically or in writing.
Confidential Information shall include, without limitation, the terms of
this Agreement and all records and information (i) that have been marked or
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identified as "proprietary," "confidential," or a "trade secret," (ii)
whose confidential nature has been made known by BearingPoint or by SAP as
a receiving party, or (iii) that due to their character and nature a
reasonable person under like circumstances would treat as confidential.
Notwithstanding the foregoing, Confidential Information does not include
and shall cease to include as the case may be, either Party's information
which: (i) is already known to the other Party at the time of disclosure;
(ii) is or becomes publicly known through no wrongful act or failure of the
other Party; (iii) is independently developed by the other Party without
benefit of the disclosing Party's Confidential Information; or (iv) is
received from a third party which is not under and does not thereby breach
an obligation of confidentiality.
8.2 The Parties may, in connection with this Agreement, disclose Confidential
Information to each other. The Parties agree that Confidential Information
shall not be provided or disclosed to anyone except those employees of the
receiving Party with a need to know under this Agreement. Notwithstanding
the above, both Parties' financial information and all information
disclosed by BearingPoint or SAP about their current and future software
products and technologies shall be considered Confidential Information
without regard to the form of disclosure or to whether such information was
identified as confidential or proprietary. Confidential Information may be
used by receiving Party solely in connection with performance of its
obligations under this Agreement. Each Party agrees to protect the other's
Confidential Information at all times and with the same degree of care that
it regularly employs to safeguard its own proprietary and Confidential
Information from unauthorized use or disclosure, but in no event with less
than a reasonable degree of care.
8.3 Neither Party shall, except with respect to those of its employees with a
need to know under this Agreement, use or disclose to any person, firm or
entity any Confidential Information of the other Party without such other
Party's express, prior written permission; provided, however, that
notwithstanding the foregoing, either Party may disclose Confidential
Information to the extent that it is required to be disclosed pursuant to a
statutory or regulatory provision or court order. Each Party shall deliver
to the other Party such other Party's Confidential Information and all
copies thereof when such other Party requests the same or immediately upon
termination of this Agreement, whichever occurs earlier, except for one
copy thereof that BearingPoint may retain for its records for use in its
internal quality assurance processes.
8.4 The obligations and restrictions of confidentiality imposed by this Section
8 shall survive any termination of this Agreement for a period of two (2)
years from the date of expiration or termination.
8.5 No rights or licenses to or under patents, trademarks, copyrights, trade
secrets or other intellectual property rights are granted or implied by any
disclosure of Confidential Information by the disclosing Party.
Confidential Information and any and all copies thereof shall remain the
property of the disclosing Party and shall be destroyed or returned upon
the request of the disclosing Party. Within thirty (30) days after
termination of this Agreement, both parties shall prepare all items in its
possession containing the other parties Information for shipment, as
directed by the other party, at the other parties expense. Neither party
shall not make or retain any copies of any Confidential Information which
may have been entrusted to it.
9. Press Releases and Publicity
Any new release, public announcement, advertisement or publicity proposed
to be released by either party concerning any item arising under this
Agreement shall be subject to the approval of the designated
representatives of both parties.
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10. Non-solicitation
During the term of this Agreement and for one (1) year after its
termination, SAP and BearingPoint agree that neither shall directly solicit
for employment any staff of the other party who have been directly and
substantively involved in performance under this Agreement, without the
written consent of the other party.
11. Term and Termination
11.1 This Agreement shall come into effect upon being signed by both parties,
with an initial term of two (2) years, with one automatic renewal for one
two (2) additional years term unless, at least six (6) weeks prior to the
renewal date, either party gives written notice of its intention not to
renew this Agreement.
11.2 If either Party markets and/or develops products and/or services on a large
scale which are in direct competition with the other Party's products
and/or services, and if the other Party deems that the cooperation is
therefore no longer meaningful, such Party shall be entitled to terminate
this Agreement by giving six weeks' notice. Furthermore either party shall
be entitled to terminate this Agreement by giving six weeks' notice if the
other party becomes subject to a change in its ownership that is not
reasonable acceptable to the terminating party.
11.3 Without prejudice to the right to terminate the Agreement for an important
reason, this Agreement may also be terminated at six weeks' notice if
either party persistently fails to perform any material obligations
hereunder including but not limited to the obligations described in the
business plans mentioned in Section 3.6 above, in spite of having received
written notice threatening termination.
11.4 Notice of termination must be in writing.
11.5 Following the termination of this Agreement, all the rights and obligations
hereunder shall expire unless otherwise stipulated.
11.6 Termination of this Agreement shall not affect any other existing
agreements between the parties.
12. Dispute Resolution Procedures
In the event of a dispute arising out of this Agreement or in connection
with the cooperation efforts in general, the Cooperation Board shall
attempt to bring about an amicable settlement. If a settlement cannot be
reached at this level, the matter shall be decided at executive level.
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14. General Provisions
14.1 All notices required to be given under this Agreement shall be sent by
certified mail to:
with a copy to:
BearingPoint, Inc.
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, XX 00000
Attention: Legal Department,
Alliances
Attention:
and to
SAP AG
Xxxxxxxxxxxxxx 00
00000 Xxxxxxxx
Xxxxxxx
Attention: Legal Department
14.2 Any amendments to this Agreement must be made in writing. Oral agreements
shall not be valid.
14.3 This Agreement shall be governed by the laws of the Federal Republic of
Germany.
14.4 This Agreement shall be subject to the jurisdiction of xxx xxxxxx xx
Xxxxxxxxx, Xxxxxxx.
14.5 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. Instead of the invalid provision, a
legally effective provision designed to achieve the same purpose shall be
deemed to have been agreed. The same applies to provisions supplementing
the Agreement.
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SAP Aktiengesellschaft BearingPoint, Inc.
By: /s/ Xxxxxxx Rossir By: /s/ Xxxx X. Xxxxxxx
--------------------------------- -----------------------------------
Print Name: Xxxxxxx Rossir Print Name: Xxxx X. Xxxxxxx
--------------------------
Title: SVP GPM Title: Executive Vice President
-------------------------------
Date: 8.3.3 Date: 20-02-2003
--------------------------------
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------- -----------------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxxxxxx Xxxxxxxx
--------------------------
Title: Global Partner Director Title: Vice President
-------------------------------
Date: 12-03-2003 Date: 20-02-2003
--------------------------------
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