Exhibit 10.18.1
(S&P Logo Goes
Here)
SAP AMERICA INC.
R/3 SOFTWARE END-USER INDIVIDUAL LICENSE AGREEMENT
("Agreement")
This Agreement is made effective this 9th day of October 1996, by and
between SAP America, Inc., a Delaware corporation, with offices at 000 Xxx
Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxxxxxx 00000 ("SAP"), and Pluma, Inc., a North
Carolina corporation, with offices at 000 Xxxxxxxxxx Xxxx, Xxxx, Xxxxx
Xxxxxxxx 00000 ("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 R/3 Software
(as defined herein) upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, SAP and Licensee agree as follows:
1. DEFINITIONS.
1.1 "ABAP/4 Development Workbench Users" means those individuals, who by
password allocation, are authorized to log on to the Software to use the ABAP/4
Development Workbench tools to create Modifications and Extensions to the
Software and in-house developments. Such Users may also be referred to as
"D/W Users". Each D/W User must also be licensed as a Basis/Workflow User.
1.2 "Affiliate" means a corporation located in the Territory in which
Licensee owns at least fifty percent (50%) of the voting securities. Any such
entity shall be considered an Affiliate for only such time as Licensee
continues to own such equity interest.
1.3 "Application Database" means an integrated set of files used with the
Software which contain data and information for supporting the business
operations of Licensee and its authorized Affiliates, including master data
and associated transaction detail, system tables, and internal control
information. An Application Database shall not contain any database table
more than once.
1.4 "Application Server" means each individual server connected to each
Designated Unit into which the Software is downloaded from such Designated
Unit for presentation to a computer terminal or workstation.
1.5 "Basis/Workflow Users" means those individuals, who by password
allocation, are authorized to log on to the licensed Software solely for the
purpose of executing the following transactions: (i) e-mail; (ii) calendar
functions; (iii) entering travel arrangements and expenses; (iv) document
management, including optical archiving; (v) workflow organizational
mangement; (vi) monitoring and administration of the Software; (vii) creating
IDocs; (viii) entry and approval of vacation
applications; (ix) initializing workflows; and (x) in the event Human Resources
functionality is licensed, all transactions contained in such Human Resources
functionality.
1.6 "Correction Level" means an update to, correction of, or further
developmental work in the Software as between Versions and is identified by the
letter following the Version identifier (e.g., 2.1(a)).
1.7 "Designated Site" means those facilities of Licensee located in the
Territory in which one or more Designated Units are located and which are
identified in Appendices to this Agreement.[qp]
1.8 "Designated Unit" means each individual computer located at a Designated
Site in which the Software and Third-Party Database are installed. Each
Designated Unit must be approved by SAP as compatible with the Software and
must be identified as specified in Appendices hereto.
1.9 "Documentation" means SAP's standard documentation, in human- or
machine readable format, in any medium, which is delivered to Licensee under
this Agreement, including SAP's standard manuals, program listings, date
models, flow charts, logic diagrams, input and output forms, functional
specifications, instructions, and complete or partial copies of the foregoing.
1.10 "Extension" means an addition to the Software which does not require a
Modification.
1.11 "Information Users" means those individuals who by password allocation
are authorized to log on to the Software solely to "read only" Software
transactions for internal information purposes and are not authorized to input
data; write data; or execute Software transactions. Each information User must
also be licensed as a Basis/Workflow User.
1.12 "Modification" means a change to the Software which changes the source
code.
1.13 "Multiple Utilization" means the installation of the Software on more
than one Designated Unit for Productive Use, or the setting up of more than
one Application Database on one Designated Unit for Productive Use. Multiple
Utilization of the Software may subject Licensee to payment of additional
license fees.
1.14 "Named Users" means those individuals who by password allocation to log
onto the Software and execute Software transactions. Named Users may also be
referred to as "Operational Users". Each Named User must also be licensed as
a Basis/Workflow User.
1.15 "Non-Productive Use" means Use of the Software solely for Licensee's or
an authorized Affiliate's internal training or testing.
1.16 "Productive Use" means Use of the Software soley to operate Licensee's or
an authorized Affiliate's business, including Electronic Data interchange
transactions and developemental work.
1.17 "Program Concepts" means the concepts, techniques, ideas, and know-how
embodied and expressed in any computer programs or modules included in the
Software, including the structure, sequence, and organization of such programs
or modules.
1.18 "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, 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
Information"); and (ii) with respect to Licensee, information identified or
reasonably identifiable as the confidential and proprietary information of
Licensee ("Licensee Proprietary Information"), provided that, any part of the
SAP or Licensee Proprietary Information which: (a) is or becomes publicly
available through no act or failure of the other party; or (b) was or is
rightfully acquired by the other party from a source other than the disclosing
party prior to receipt from the disclosing party; or (c) becomes independently
available to the other party as a matter of right, shall be excluded.
1.19 "Release" means each issuance of the Software by SAP AG which
incorporates SAP AG's most recent technological functionality and is identified
by the numeral to the left of the decimal point (e.g. 2.0).
1.20 "SAP AG" means SAP Aktiengesellschaft, a German corporation, with
offices located in Walldorf, Germany.
1.21 "Single Utilization" means Productive Use and Non-Productive Use of the
Software on one Designated Unit with one Application Database.
1.22 "Software" means: (i) all R/3 software specified in agreed upon
Appendices hereto, in machine- or human-readable form, developed by or licensed
to SAP AG and delivered to Licensee hereunder, (ii) any Releases, Versions,
or Correction Levels of the Software as contemplated by this Agreement; and
(iii) any complete or partial copies or replacements of any of the foregoing.
1.23 "Territory" means the United States of America and any additional
countries as agreed upon in advance in writing by the parties.
1.24 "Third-Party Database" means a third-party proprietary database
described in Section 2.5.
1.25 "Use" means to load, execute, employ, utilize, store, or display the
Software. Use is deemed to occur on the Designated Unit(s) where any such
processes occur and at any Application Server or computer terminal or
workstation that initiates or is activated by these processes.
1.26 "Users" means any combination of Named, Information, R/C, D/W or
Basic/Workflow Users licensed under this Agreement. Each User must be
separately licensed for Use in each functional block of Software required
and for each
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Licensee company code of each Application Database for which access to the
Software is required. Users allcoated to funcitional blocks of Software may
not be subsequently allocated to other functional blocks of Software.
1.27 "Version" means each issuance of each Release of the Software developed
by SAP AG which has incorporated further development work within the technology
of that Release and is identified by the numeral to the right of the decimal
point (e.g., 2.1)
2. LICENSE GRANT.
2.1 Grant of License.
(a) Subject to this Agreement, SAP grants and Licensee accepts a
non-exclusive, non-transferable license to Use the Software, Documentation,
Third-Party Database, and other SAP Proprietary Information provided by SAP
to Licensee for Single Utilization. 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.
(b) Licensee agrees to install the Software and Third-Party Database only
on Designated Unit(s) located at Designated Site(s) as agreed to by the parties
in Appendices hereto. Licensee further agrees to Use the Software and
Third-Party Database only in accordance with the Documentation. Licensee may
connect multiple Application Servers to each Designated Unit and connect a
network of computer terminals and workstations to the Application Servers.[qp]
(c) Licensee may transfer the Software and Third-Party Database from one
Designated Unit to another at a licensed Designated Site upon prior written
notice to SAP. The Software and Third-Party Database must be promptly deleted
in their entirety from the Designated Unit no longer in Use and from each
archival and back-up copy for that Designated Unit.
(d) If Licensee is unable to Use the Software and Third-Party Database
on a Designated Unit because of conditions beyond its control, Licensee may
temporarily install the Software and Third-Party Database on equivalent
equipment located within the Territory until such condition is corrected;
provided that: (i) the temporary installation shall not impair Licensee's
ability to prevent unlicensed access to and Use of the Software and
Third-Party Database; and (ii) Licensee shall provide written notice to SAP
within two business days of such installation.
(e) Licensee is licensed to install at the Designated Site no more than
two copies of the Software and Third-Party Database on Designated Unit(s) for
Non-Productive Use. Designated Unit(s) utilized for Non-Productive Use of the
Software and Third-Party Database must be one of the type as those used at the
Designated Site for Productive Use. Only one copy of the Third-Party Database
and one copy of the Software are licensed for Productive use on each
Designated Unit at the Designated Site, unless otherwise agreed upon in writing
by SAP.
2.2 Use of Software by Affiliates. SAP agrees that Affiliates may Use the
Software and Third-Party Database; provided that prior to any Affiliate's Use
of the Software and Third-Party Database: (i) each Affiliate shall sign and
deliver to SAP a mutually agreeable Appendix to this Agreement certifying its
agreement to be bound by the terms herein; and (ii) such Use by such
Affiliate shall be subject to the following: (A) Licensee accepts
responsibility for the acts or omissions of such Affiliates as if they were
Licensee's acts or omissions; (B) Licensee shall indemnify SAP 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 the Software, Documentation,
Third-Party Database, or SAP Proprietary information under U.S. Government
laws and regulations.
2.3 Audit Right.
(a) This maximum number of Users applicable to the Software licensed
hereunder shall be specified in Appendices to this Agreement. Licensee shall
promptly provide written notice to SAP if the number of Users exceeds such
maximum number.
(b) Licensee and its authorized Affiliates shall allow access to the
Software, Documentation, Third-Party Database, and other DSAP Proprietary
Information, provided to Licensee and/or Affiliates, only to employees or
agents of Licensee or its authorized Affiliates acting within the scope of a
formal employment or agency relationship.
(c) During normal business hours and at any time during which the
Software, Documentation, Third-Party Database or other SAP Proprietary
Information are being utilized, SAP or its authorized representative or
licensors, shall have the right, 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.
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2.4 Archival Copy; Restriction on Copies; Legends to be Reproduced.
(a) Licensee may make one copy of the Software for archival purposes and
such number of backup copies of the Software consistent with Licensee's normal
periodic backup procedures.
(b) Licensee may reproduce or copy any portion of the Documentation into
machine-readable or printed form for its internal use and only as required to
exercise its rights hereunder.
(c) Licensee shall include SAP's and its licensors' copyright, trademark,
service xxxx, 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.
2.5 Runtime License for Application Database. The Software requires a
Third-Party Database which may be licensed through SAP (the "Runtime License")
or directly as a full license ("Full License") from a third-party database
licensor approved by SAP. Licensee shall certify in an Appendix to this
Agreement either that it will use and maintain the Runtime License from SAP
or that it has obtained and will maintain a Full License from such a licensor.
In the event Licensee obtains a Full License directly from a third-party
database licensor, the license grant in this Section 2, shall be restricted
to such extent required to implement those restrictions imposed on Licensee
directly by such third-party database licensor. This Agreement shall terminate
automatically if, for any reason: (i) Licensee fails to obtain or maintain a
Runtime License or Full License; or (ii) Licensee's Runtime License or
Full License terminates prior to the termination of this Agreement, SAP makes
no representations or warranties as to the Third-Party Database or its
operation
3. DELIVERY AND INSTALLATION.
3.1 Delivery. One copy of the Software in machine-readable format and one
copy of the Documentation shall be delivered to Licensee at a Designated Site
during the period specified in Appendices hereto ("Delivery").
3.2 Installation; Support Services.
(a) Licensee shall be responsible for installation of the Software. At
Licensee's request and on terms to be agreed upon, SAP will install the
Software. SAP's installation services are limited to loading the Software into
the Designated Unit and testing the Software using SAP's standard set of test
data. Licensee shall be responsible for configuring and installing any required
disk storage systems, network software, Application Servers, Designated Units
and computer terminals and workstations prior to installation of the Software.
Installation will be deemed successful and completed when the Software is
loaded on a Designated Unit and is ready for Use.
(b) At Licensee's request, and on terms to be agreed upon separately,
SAP may agree to provide pre-installation support, installation support,
training, and consulting services for the Software.
4. PRICE AND PAYMENT.
4.1 License Fees. In consideration of the license granted hereunder, Licensee
shall pay to SAP license fees for the Software as set forth in Appendices
hereto ("License Fees"). The amount of License Fees shall be calculated
based on the total number of Users and Software licensed, and the payment terms
for such License Fees shall be as specified in Appendices hereto. Fees for
Maintenance Service ("Maintenance Fees") shall be paid as set forth in Section
7.4
4.2 Taxes. License and Maintenance Fees and other charges described in this
Agreement and its Appendices, or in SAP's most recent List of Prices and
Conditions, do not include federal, state, or local sales, use, property,
excise, service, or other taxes now or hereafter levied, all of which shall
be for Licensee's account. Any taxes or amounts in lieu thereof paid or payable
by SAP in respect of any such taxes on such fees or charges (excepting only
taxes on net income) shall be for Licensee's account and remitted by Licensee
directly to the applicable tax authorities.
4.3 Expenses. Daily fees, pre-approved travel expenses, and incidental
expenses relating to support services shall be paid as set forth in SAP's then
current List of Prices and Conditions. SAP shall xxxx such fees and expenses
monthly, attaching time sheets or other records customarily used by SAP.
5. TERM AND TERMINATION
5.1 Term. This Agreement and the license granted hereunder shall become
effective upon execution by both parties 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) thirty days
after Licensee gives SAP written notice of Licensee's desire to terminate
this Agreement, for any
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reason, but only after payment of all License and Maintenance Fees then due
and owing; (ii) thirty 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 or 12, which breach shall result in
immediate termination), including more than thirty days delinquency in
Licensee's payment of any money due hereunder, unless Licensee has cured such
breach during such thirty day period; (iii) immediately if any of the following
events, which exist as to Licensee, remain uncured for more than sixty days:
(A) entry of an order for relief under Title 11 of the United States Code; (B)
the making of a general assignment for the benefit of creditors; (C) the
appointment of a general receiver or trustee in bankruptcy, reorganization, or
liquidation, unless within the specified sixty-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 its obligations under this Agreement.
5.3 Effect of Termination. Upon any termination of this Agreement, Sections
6, 8.6, 9, 10, 11, 14.7 and 14.9 shall survive such termination; Licensee's
rights under Section 2 shall immediately cease, and SAP and Licensee each shall
promptly perform it obligations under Section 6.3
5.4 No Refund. In the event of any termination hereunder, Licensee shall not be
entitled to any refund of any payments made by Licensee.
6. PROPRIETARY RIGHTS.
6.1 SAP Proprietary Information
(a) Licensee acknowledges and shall cause its authorized Affiliates to
acknowledge that ownership of and title in and to all intellectually property
rights, including patent, trademark, service xxxx, copyright, and trade
secret rights, in the SAP Proprietary Information are and shall remain in SAP
and 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, 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. In the event source
code is provided to Licensee, SAP, in its sole discretion, reserves the right
to delete, or to require the deletion of, such source code and all copies
thereof from Licensee's Designated Unit(s), Application Server(s), computer
terminal or workstations, and data files whenever a future Release, Version,
or Correction Level provides for like functionality in an object code format.
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.
(d) Licensee 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.
(e) 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 as follows:
(a) Neither party shall, without the other party's prior written consent,
disclose, provide, or make available any of the Proprietary Information of
the other party in any form to any person, except to bona fide employees,
officers, directors, or consultants of such party whose access is necessary
to enable such party to exercise its rights hereunder. Each party agrees
that prior to disclosing any Proprietary Information of the other party to
any consultant, it will obtain from that consultant a written acknowledgment
that such consultant will be bound by the same terms as specified in this
Section 6 with respect to the Proprietary Information.
(b) Licensee and SAP acknowledge that any disclosure to third parties
of Proprietary Information may cause immediate and irreparable harm to the
owner of the disclosed Proprietary Information; therefore, each party
agrees 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.
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6.3 Duties Upon Termination. Upon any termination hereunder, Licensee and
its authorized Affiliates shall immediately cease Use of the Software,
Documentation, Third-Party Database, and other SAP Proprietary Information,
and shall irretrievably delete and/or remove such items from all Designated
Units, Application Servers, computer terminals, workstations, data files,
and Designated Sites. Within thirty days after any termination, Licensee shall
deliver to SAP at Licensee's expense (adequately packaged and insured for safe
delivery) or, at SAP's request, destroy all copies of the SAP Proprietary
Information in every form. Licensee further agrees to erase the Software,
Documentation, Third-Party Database, and other provided SAP Proprietary
Information from any storage media. Licensee agrees an officer of Licensee's
organization, with the express authority to make such representation, shall
certify in writing to SAP that it and each of its authorized Affiliates
has performed the foregoing. Within thirty days after any termination, SAP
shall return the Licensee Proprietary Information to Licensee.
6.4 Modifications and Extensions.
(a) Licensee may make Modifications and Extensions to the Software for
Use on the Designated Unit(s) under the terms set forth in this Section 6.4.
(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 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, without
the express prior written consent of SAP, which consent shall not be
unreasonably withheld. Licensee agrees to offer SAP the right of first refusal
to any license or to assignment of such Licensee Modification or Licensee
Extension and SAP agrees to negotiate in good faith a mutually agreeable
license or other arrangement for such rights.
(c) In the event SAP develops either independently, or jointly with
Licensee, any Modification or Extension to the licensed Software, such
Modifications or Extensions 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 on
the Designated Unit(s) at the Designated Site(s) under the terms set forth
in this Agreement.
(d) The parties hereto agree that the granting of any rights, title, or
interest to Licensee in any Modification or Extension (including Licensee
Modifications and Licensee Extensions) shall not be construed by the
parties hereto, or any court of law or equity, to mean that SAP has granted
or given up any rights, title, or interest in or to the SAP Proprietary
Information or any part thereof.
(e) Licensee agrees that it will not to modify any provided third-party
software hereunder, unless expressly authorized in writing by such third-party
vendor.
(f) Licensee shall register all Modifications to the Software, using
OSS (Online Software Service), with SAP prior to making such Modifications.
Modifications may be used only on the Designated Unit(s).
(g) Licensee agrees to: (i) keep and maintain adequate and current
records of all Licensee Modifications or Licensee Extensions (which
records shall be made reasonably available to SAP); (ii) promptly disclose
to SAP and provide copies to SAP of any Licensee Modifications or Licensee
Extensions in which SAP has ownership rights; and (iii) insert in all
copies of the Software as modified all copyright, trade secret, or other
notices thereon or therein as SAP may from time to time direct.
7. MAINTENANCE
7.1 Maintenance Service.
(a) Following the expiration of the Warranty Period (as defined in
Section 8), and for such period as Licensee may elect in writing, but only
for so long as SAP makes such services generally available in the Territory,
Licensee may request maintenance service ("Maintenance Service") from SAP
with respect to the Software. Maintenance Service by SAP includes the
delivery of Releases and Versions, support via telephone, the correction of
defects, remote support/update, SAP's On-line Software Services, and, if
separately purchased at fees and terms to be agreed upon, SAP's Early Watch
Services. In order to receive Maintenance Service hereunder, Licensee must
make all required remote support and update connections to each Designated
Unit, at its expense, as requested by SAP.
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(b) Maintenance Service shall not include the other services referenced
in Section 7.3 and will be offered only for the most recent Version and the
Version immediately prior thereto. Whenever a new Release shall become
commercially available, Maintenance Service will be offered for such new
Release and the latest Version of the prior Release only until such time as
a new Version becomes available.
7.2 New Releases and Versions. Upon Licensee's request and provided that
Licensee has purchased Maintenance Service from SAP, SAP shall deliver new
Releases and Versions and related Documentation. Maintenance Service does
not include the delivery of any Software and Documentation which SAP offers
as separate products which have not been licensed by Licensee.
7.3 Other Services. All other services not referred to in this Section 7
shall be agreed upon separately and shall be subject to additional changes,
including without limitation, the installation of new Releases and Versions,
the incorporation of Modifications or Extensions into new Releases or Versions
and related Documentation, and the adaptation of any authorized Modifications
or Extensions developed by or for Licensee to new Releases or Versions.
7.4 Payment of Maintenance Fees. Unless otherwise specified in Appendices
hereto, Maintenance Fees shall be paid annually in advance in an amount
calculated as the then current percentage factor multiplied by the then
current list price of the Software licensed hereunder.
7.5 Termination of Maintenance Service. Maintenance Service may be
terminated by either party in writing at any time upon three months prior
written notice.
8. PERFORMANCE WARRANTY.
8.1 Warranty Period; Warranty. SAP warrants that the Software will
substantially conform to the functional specifications contained in the
Documentation for six months following Delivery (the "Warranty Period") and
will perform, when in Use without material alteration on the Designated
Unit(s), in accordance with the functional specifications set forth in the
Documentation. SAP's warranty is subject to Licensee providing SAP necessary
access, including remote access, to the Software.
8.2 Licensee's Defect Reports. Licensee must identify in reasonable detail
to SAP the nature of the perceived Software defect which causes the Software
not to conform substantially to the functional specifications and specifically
describe the conditions under which the perceived defect occurs. On SAP's
request, Licensee shall deliver such information in written form. Licensee
shall provide SAP with sufficient test time and support on Licensee's
Designated Unit(s) to duplicate the problem, to verify that the problem is
with the Software, and to confirm that the problem has been corrected.
8.3 SAP's Obligation to Correct or Replace Defects. Should any component of
the Software fail to conform substantially to the functional specifications
therefor during the Warranty Period, SAP's sole obligation shall be, at SAP's
option, to correct the defect by bringing the performance of the Software
into substantial compliance with the functional specifications or to
replace the defective component. When Productive Use of the Software is
significantly restricted by a reported defect and Licensee expressly so
states in written form, SAP shall use its best efforts to commence work on
correcting the defect no later than the first working day after its receipt
of written notice, subject in each case to the provisions of this Section 8.
The correction of defects shall be in the manner specified in this Section 8.
8.4 Correction of Defects. SAP will deliver a correction of the defect in
writing and, if appropriate, in machine-readable form. Any installation shall
be the responsibility of Licensee unless otherwise agreed to in writing by
the parties. If, at Licensee's request, SAP corrects a defect of any
unsupported Version or Release, SAP may request, and Licensee shall pay,
additional charges.
8.5 Scope of Warranty.
(a) The warranty set forth in this Section 8 shall not apply: (i) if
the Software is not used in accordance with the Documentation; or (ii) to
any Extensions or Modifications; or (iii) if the defect is caused by a
Modification or Extension; or (iv) if the Software is not installed on a
Designated Unit; or (v) to the extent that the defect is caused by or is
contributed to by Licensee; or (vi) if Licensee does not provide access,
including remote access, to the Software as required under Section 8.1; or
(vii) if the defect is caused by a Third-Party Database malfunction.
(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 Licensee's or its authorized Affiliates' business
requirements.
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8.6 Express Disclaimer. SAP DISCLAIMS 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.
9. LIMITATION OF LIABILITY.
9.1 Licensee's Remedies. Subject to the limited warranty set forth in
Section 8, Licensee's sole and exclusive remedies for any damages or loss in
any way connected with the Software or services furnished by SAP 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 in the event SAP cannot replace the Software or reperform the
services, Licensee shall have the option of (ii) an appropriate return or
credit of an amount in proportion to any payment made or to be made by
Licensee with respect to the applicable portion of the Software or services. The
foregoing limitation of liability does not apply to infringement of the
property rights referred to in Section 10, or to personal injury or death
caused solely by the gross negligence or willful misconduct of SAP. 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.
9.2 SAP Not Responsible. SAP will not be responsible under this Agreement
for: (i) the 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) the correction of
any program errors as a result of misuse of the Software by Licensee.
Under no condition will SAP be responsible under this Agreement for preparation
or conversion of data into the form required for use with the Software.
9.3 Exclusion of Damages. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING,
UNDER NO CIRCUMSTANCES SHALL SAP 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.
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. INDEMNIFICATION.
10.1 SAP Representation. SAP represents that SAP AG and its licensors own
the Proprietary Information licensed by SAP hereunder, including all
intellectual property rights therein, and that SAP has all rights from SAP AG
and its licensors necessary to license, in accordance with the terms of this
Agreement, such Proprietary Information to Licensee.
10.2 No Representation Regarding Combination Use. SAP makes no representation
with respect to the possibility of infringement by Combination Use of the
Software. The parties agree that SAP has no duty to investigate nor to warn
Licensee of any such possibility. As used herein, "Combination Use" means
Use of the Software in combination or conjunction with any of the following,
unless such Use is prescribed in the Documentation: (i) any software other
than the Software (including any Licensee Extension or Licensee Modification);
(ii) any apparatus other than a Designated Unit; and/or (iii) any activities
of Licensee or its authorized Affiliates not licensed under this Agreement.
10.3 Indemnification of Licensee.
(a) Subject to Section 10.2, SAP shall indemnify Licensee against all
claims, liabilities, and costs, including reasonable attorneys' fees, up to
the maximum amount described in Section 10.3(b), 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 patent of which SAP is
aware; or (ii) a United States copyright; or (iii) trade secret rights,
provided that, Licensee promptly notifies SAP in writing of any such claim
and SAP is permitted to control fully the defense and any settlement of
such claim. Licensee shall cooperate fully in the defense of such claim
and may appear, at its own expense, through counsel reasonably acceptable
to SAP. SAP may, in its sole discretion, 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.
(b) The maximum aggregate liability of SAP under the indemnity provided
in Section 10.3(a) above shall be a sum equal to two times the aggregate
payments actually made by Licensee to SAP under this Agreement at the time
the
8
claim of infringement arises, and if there should be more than one claim of
infringement, the amount payable under such indemnity in respect of each
claim shall be divided pro rata.
10.4 Indemnification of SAP and SAP AG. Licensee shall indemnify SAP and
SAP AG and its licensors against all claims, liabilities, and costs, including
reasonable attorneys' fees, reasonably incurred in the defense of any claim
(other than for the infringement of intellectual property rights specified in
Section 10.3 above), arising out of Licensee's 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.
10.5 SAP's Right to Commence Infringement Actions. SAP alone shall be
responsible for taking such actions which it determines are reasonably
necessary or desirable in its sole discretion in connection with any
infringement or alleged infringement by a third party of any portion of the
Software 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 in taking whatever action (including consenting to being named as a party
to any suit or other proceeding) which SAP determines to be reasonably
necessary or desirable. SAP agrees to reimburse Licensee for reasonable legal
fees and other expenses incurred in connection with investigating or defending
any such claim, suit, damage, or loss.
10.6 SAP's Duty to Indemnify Licensee. THE PROVISIONS OF THIS SECTION 10
STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SAP, SAP AG, AND ITS
LICENSORS TO LICENSEE AND LICENSEE'S SOLE REMEDY WITH RESPECT TO THE
INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
11. ARBITRATION.
Except for the right of either party to apply to a court of competent
jurisdiction for a Temporary Restraining Order or other provisional remedy
to preserve the status quo or prevent irreparable harm pending the selection
and confirmation of a panel of arbitrators, and for the right of SAP to bring
suit on an open account for any payments due SAP hereunder, any controversy
or claim arising out of or relating to this Agreement shall be settled by
arbitration in New York, New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment
upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. Arbitration shall be conducted by a panel of
three members, SAP and Licensee each selecting one member and the third member,
who shall be chairman, selected by agreement between the other two members.
The chairman shall be an attorney-at-law, and the other members shall have
a background or training in computer law, computer science, or marketing
of computer products. The arbitrators shall have the authority to grant
injunctive relief in a form substantially similar to that which would
otherwise be granted by a court of law.
12. ASSIGNMENT.
Licensee 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, or the SAP Proprietary
Information, to any party, including any Affiliate. Any permitted assignment
of this Agreement shall provide that the provisions of this Agreement shall
continue in full force and 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.
13. ESCROW OF SOURCE CODE.
13.1 SAP warrants that the source code for the Software, together with
related Documentation as it is or becomes available, has been deposited in
an escrow account maintained at Data Securities International Inc.,
Burlington, Massachusetts (the "Escrow Agent"), pursuant to an agreement
between the Escrow Agent and SAP (the "Escrow Agreement").
13.2 SAP will from time to time deposit into the escrow account copies of
source code for Releases and Versions of the Software and related
Documentation.
13.3 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;
9
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.
13.4 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.
13.5 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.
14. GENERAL PROVISIONS.
14.1 Agreement Binding. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns.
14.2 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 or 14.7, 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.
14.3 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.
14.4 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.
14.5 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.
14.6 Counterparts. This Agreement may be signed in two counterparts, each of
which shall be deemed an original and which shall together constitute one
Agreement.
14.7 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 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 and SAP AG and its licensors harmless from and against
any and all claims, judgments, awards, and costs (including reasonable
attorneys' fees) arising out of Licensee's noncompliance with applicable
U.S. or foreign law with respect to the use or transfer of the Proprietary
Information outside the United States by Licensee and its Affiliates.
10
14.8 Publicity. Neither party shall use the name of the other in publicity,
advertising, or similar activity, without the prior written consent of the
other, except that Licensee hereby consents to SAP's inclusion of Licensee's
name in customer listings which may be published as part of SAP's marketing
efforts.
14.9 Governing Law. This Agreement shall be governed by and construed under
the Commonwealth of Pennsylvania law 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.
14.10 Equal Opportunity. Licensee hereby incorporates by reference as part
of this Agreement applicable provisions of Executive Order 11246, regarding
equal opportunity for all persons without regarding color, religion, sex or
national origin; the Vietnam Era Veterans Readjustment Assistant Act of 1974,
as amended (the "Veterans Act"), the Rehabilitation Act of 1973 (the "Rehab
Act"), and the Small Business Act of 1958 (the "Small Business Act").
Pursuant to Executive Order 11246 and particularly 41 C.F.R. 60-1.2, and by
acceptance of this Agreement SAP certifies that it complies with the
provisions of Executive Order 11246, the Veterans Act, the Rehab Act and
the Small Business Act and SAP does not and will not maintain any facilities
in a segregated manner or permit SAP's employees to perform their services
at any locale under SAP's control, where segregated facilities are
maintained. Further, SAP agrees that SAP will obtain a certificate containing
similar statements prior to the award of any nonexempt subcontract.
14.11 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.
14.12 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.
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. PLUMA, INC.
By: By: (Signature of Xxxxxx X. Xxxxxx)
--------------------------------- -------------------------------
Name: Name: XXXXXX X. XXXXXX
--------------------------------- -------------------------------
Title: Title: VICE PRESIDENT OF OPERATION
--------------------------------- -------------------------------
Date: Date: OCTOBER 14, 1996
--------------------------------- -------------------------------
11
Appendix 1
issued October 9, 1996
to
SAP AMERICA, INC. ("SAP") - PLUMA, INC. ("Licensee")
R/3 SOFTWARE END-USER INDIVIDUAL LICENSE AGREEMENT
effective October 9, 1996 ("Agreement")
This Appendix 1 is hereby annexed to and made a part of the Agreement
specified above. In each instance in which provisions of this Appendix 1
contradict or are inconsistent with the provisions of the Agreement, the
provisions of this Appendix 1 shall prevail and govern, and the contradicted
or inconsistent provisions of the Agreement shall be deemed amended accordingly.
Designated Unit to be identified by Licensee to SAP in writing.
Type/Model No.: ______________________
Serial No.: ______________________
Designated Site: 000 Xxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000
1. General Function Blocks, and Basis/Workflow and Database licensed by
Licensee from SAP to be installed on the above-referenced Designated
Unit at the above-referenced Designated Site, are as follows:
GENERAL FUNCTION BLOCKS LICENSED: Named Users* D/W Users*
Licensed Licensed
------------ ----------
FI Financial Accounting/Asset Accounting 15
------------
CO Controlling......................... 15
------------
MM Material Management................. 20
------------
SD Sales and Distribution.............. 25
------------
PP Production Planning.................. 20
------------
DW ABAP/4 Development Workbench........................ 2
------------
*The above Users are also licensed as Basis/Workflow Users
DATABASE:
Database Interface.................................. 150 Users
------------
2. The total List Price License Fee to Licensee for the Software specified
in Item 1 above for the total number of Users is USD 429,800. Provided
the following Use restrictions are observed by Licensee, and additional
Software is not subsequently licensed by Licensee, such List Price
License Fee shall be discounted by USD 800 for an invoice amount to
Licensee of USD 429,000. The Use restrictions are:
A. Not more than the total number of Users specified in Item 1 above
access and/or Use the Software as specified in the Agreement.
B. Not more than one (1) Productive copy of the Software is licensed
from SAP or SAP AG to be installed on Designated Unit in the
territory; and
C. Not more than one (1) Designated Site is provided Maintenance
Service support through SAP or SAP AG.
3. The USD 429,000 invoice amount as specified in Item 2 above shall be
invoiced on October 30, 1996, and is due and payable as follows:
USD 214,500 net thirty (30) days;
USD 107,250 due January 15, 1997;
USD 107,250 due April 15, 1997.
4. Delivery by SAP of the Software is to take place in October 1996.
5. Maintenance Service for the Software licensed hereunder, for the above-
specified number of Users, shall commence in May 1997, and shall be priced
at the then-current factor in effect multiplied by the then-current List
Price for licensed Software. Until such date, Maintenance Service shall
be provided pursuant to Section 8., Performance Warranty, of the Agreement.
Maintenance Fees are invoiced on an annual basis effective January 1 of a
calendar year. Any Maintenance Fees due prior to January 1 are invoiced on
a pro-rata basis for the given calendar year in effect. The current
pro-rated Maintenance Fee for the Software licensed under this Appendix
for the period from May 1, 1997 through December 31, 1997, is USD 42,980,
which shall be invoiced in May 1997. Maintenance Fees are subject to change
once during a calendar year upon ninety (90) days notice to Licensee. SAP
agrees however, increases in Maintenance Fees per calendar year (if any)
for the Software licensed in Item 1 of this Appendix, shall not be
greater than the percentage increase in the Consumer Price Index, plus
five percent (5%) per year, unless additional Software or Users are
added to the Agreement.
6. Delivery of one (1) set of CD-ROM Documentation, in the English language,
to the above-specified Designated Site shall be initiated upon execution
of this Appendix by the parties hereto. Additional Documentation for the
above-specified Designated Site may be ordered by Licensee at SAP's then-
current prices in effect.
7. The license and maintenance fees as specified herein are predicated upon
the aforementioned Use restrictions being observed by Licensee and its
Affiliates for the licensed Software. In the event such Use restrictions
are not adhered to by Licensee or its Affiliates, or additional Software
is licensed by Licensee, Licensee agrees, within a reasonable period of
time, to provide written notice to SAP, and SAP reserves the right to
modify the fees accordingly.
8. The Software licensed hereunder contains a copy of Microsoft's SQL Server
product which has either been integrated or pre-installed as part of the
Software. Each Microsoft product is subject to its respective Microsoft
End-User License Agreement contained in the software packages or license
agreements accompanying the Microsoft SQL Server, with the exception that
the Microsoft product functionality as integrated in the Software may
differ from a non-integrated Microsoft product. Issues concerning the
functionality or performance of the Software and the Microsoft product
should be first directed to SAP and not to Microsoft. This Agreement
does not contain a license to use the integrated Microsoft Product.
Please be advised that you have no right to use and are not licensed to
use the copy of Microsoft's SQL Server contained in the Software until
you have executed the Agreement, this Appendix and purchase and/or
sign a Microsoft End-User License Agreement for the SQL Server.
9. Software specified in this Appendix shall be delivered in source code
(ABAP/4) or object code for the application modules. Source code for
the Basis System shall not be delivered; however, Basis System source
code remains available to Licensee in accordance with Section 13, Escrow
of Source Code, of the Agreement.
10. SAP 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. 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.
11. In the event Licensee is utilizing EDI functionality, Licensee is
responsible to license or purchase a required third-party EDI translator/
interpreter. Such EDI translator/interpreter shall be licensed or
provided directly from a third-party vendor to Licensee.
12. In the event Licensee elects SAP's Early Watch System Service, which
provides for remote diagnostics and performance monitoring from SAP of
the Software installed on specified Designated Units, Licensee shall
be separately invoiced at SAP's then current Early Watch System Service
fees in effect. Accordingly, a separate order form for Early Watch System
Service will be provided to Licensee upon request of such service.
Additionally, all costs associated with telecommunication access, line
charges, and remote access costs shall be borne by Licensee for the
Early Watch System. It shall be Licensee's responsibility to provide
adequate security measures for its systems and any data contained therein.
SAP agrees to treat any tangible data remotely accessed, which is
designated as confidential, proprietary, or trade secret information of
Licensee, pursuant to the terms of the Agreement.
2
13. Each Productive Use copy and Non-Productive Use copy of the Software
licensed hereunder requires a license keycode. For each installation of the
Software, five (5) keycodes shall be provided; quantity one (1) for
Productive Use of the Software; and quantity four (4) for Non-Productive
Use of the Software. The license keycodes will be issued by SAP AG wthin
four (4) weeks from the date of installation of the Software on each
Designated Unit. The required form to receive the license keycodes from
SAP AG must be executed by Licensee and faxed to SAP AG within the
four (4) week period following installation of the Software. The applicable
form and fax number will be included in each installation kit provided to
Licensee upon delivery of the Software. Licensees that subsequently change
Designated Units for Use of the licensed Software must be re-issued license
keycodes for each respective copy of the licensed Software. Failure of
Licensee to obtain necessary license keycodes for the licensed Software
within four (4) weeks of installation of such Software, will cause the
Software to have limited User access until such time as the license
keycodes are issued.
14. The Software, including all third-party 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, SAP AG, 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.
15. The validity of this Appendix will expire October 30, 1996, unless sooner
executed by the parties hereto, or extended in writing by SAP.
Accepted by: Accepted by:
SAP America, Inc. Pluma, Inc.
By:_______________________________________ By: (Sig of Xxxxxx X. Xxxxxx)
Name:_____________________________________ Name: (Xxxxxx X. Xxxxxx)
Title:____________________________________ Title: Vice President of Operations
Date:_____________________________________ Date: October 14, 1996
2
