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Exhibit 10.12
MARKETING ALLIANCE AGREEMENT
THIS MARKETING ALLIANCE AGREEMENT (the "Agreement"), is made and entered into as
of February 10, 2000 (the "Effective Date"), by and between Corio, Inc. ("AP"),
a Delaware corporation, and SAP America, Inc. ("SAP"), a Delaware corporation.
WITNESSETH
WHEREAS, AP and SAP desire to develop, market, sell and deliver SAP's
application software products and AP's systems management services together as a
combined service offering to prospective customers (more further defined herein
as the "Alliance Offering"); and
WHEREAS, AP and SAP desire to define the respective rights, duties and
obligations of the parties with respect to the development and delivery of the
Alliance Offering that are more fully described herein; and
NOW THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereby agree as follows:
ARTICLE I. DEFINITION AND SCOPE OF OFFERING
1.1 GENERAL. The Alliance Offering consists of (i) SAP offering a SAP R/3
and SAP On-Line Store software application (the "SAP Software") and (ii)
AP providing the hardware location at which the SAP Software would be
run and AP's "CORIO HOSTED SOLUTION FOR SAP R/3 AND SAP ONLINE STORE"
(collectively "AP Services"). As a result, AP and SAP will be offering
to certain companies a SAP Software environment (the "SAP Environment")
as a "hosted application" service. SAP will license the SAP Software
pursuant to a mutually agreeable SAP End User Agreement. The AP Services
will be made available pursuant to a mutually agreeable AP End User
Agreement which may include the delivery and support of other third
party products. This Agreement is in effect only for the delivery of the
Alliance Offering, to the extent presently defined in this Agreement, to
only those companies which are located in [*] and their parent company's
global headquarters, if any, located within [*]. The roles and
activities of each party are more fully described herein. In the event
AP requests that the Alliance Offering be extended into [*], SAP shall
use reasonable efforts to assist AP and the respective SAP sister
company to execute an agreement which is substantially the same as this
Agreement. AP acknowledges that SAP America does not have distribution
rights in these countries and does not have the authority to execute
agreements in the name of such sister companies and, further, that the
decision to extend the Alliance Offering into these countries is solely
that of the respective SAP sister company.
ARTICLE II. TERM AND TERMINATION
2.1 TERM. This Agreement shall commence as of the Effective Date and will
continue for a period of three (3) years from the Effective Date unless
otherwise terminated in accordance with this Section. This Agreement may
be extended by mutual agreement of the parties for successive one year
periods.
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2.2 TERMINATION FOR CAUSE. If either party materially defaults in the
performance of any of its duties or obligations under this Agreement,
which default is not cured within 60 days after written notice is given
to the defaulting party specifying such default or, with respect to
those defaults that cannot reasonably be cured within 60 days, should
the defaulting party fail to proceed within 60 days to commence curing
the default and thereafter to proceed with reasonable diligence to cure
the default, the party not in default may, by giving written notice
thereof to the defaulting party, terminate this Agreement as of the date
of receipt by the defaulting party of such notice or as of a future date
specified in such notice of termination. Notwithstanding the above,
material breaches as related to the disclosure of a party's proprietary
information shall give rise to a right to terminate for cause if such
default is not cured within 30 days after written notice is given to the
defaulting party specifying such default.
2.3 TERMINATION FOR BANKRUPTCY AND RELATED EVENTS. Subject to Xxxxx 00,
Xxxxxx Xxxxxx Code, if either party becomes or is declared insolvent or
bankrupt, is the subject of any proceedings relating to its liquidation,
insolvency or for the appointment of a receiver or similar officer for
it, makes an assignment for the benefit of all or substantially all of
its creditors or enters into an agreement for the composition, extension
or readjustment of all or substantially all of its obligations, then the
other party may, by giving written notice thereof to such party,
terminate this Agreement as of a date specified in such notice of
termination.
2.4 INTENTIONALLY BLANK.
2.5 RIGHTS AND OBLIGATIONS FOR EXPIRATION OF THIS AGREEMENT. Upon expiration
of this Agreement, the parties agree to the following:
(A) OUTSTANDING END USER AGREEMENTS. When one or more End User
Agreements are outstanding there shall be a three year wind-down
period whereby the terms of this Agreement, other than as
specified in sections (b) and (c) below, will remain in full
force and effect solely for purposes of allowing the Customers
which are subject to current End User Agreements to receive the
Integrated Customer Services set forth in Section 4.10. This
Agreement shall terminate 3 years from the date of notice of
termination pursuant to the mutual agreement of the parties or
expiration. In the event AP desires to continue to provide
hosted application services to any current End Users of AP and
SAP under contract pursuant to this Agreement (hereinafter
"Customers") once the terms and conditions of this Agreement are
no longer in effect, AP and SAP shall execute the non-disclosure
agreement in the form of Exhibit 1 listing those Customers.
(B) OUTSTANDING SALES LEADS. The parties agree to cease any joint
marketing and selling of the Alliance Offering either directly
or through any indirect sales channel(s) immediately. AP will
not be permitted to offer the services described in Section 4.10
to any prospect or non-Customers. The parties may continue to
market and sell their respective products and services
separately.
(C) NEW BUSINESS. Any End User Agreements executed prior to such
termination notification date or expiration date will be
considered an outstanding End User
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Agreement under Section 2.5(a) herein. For those companies which
are subject to an SAP End User Agreement only and become
customers of AP and who desire the AP Services after such
termination or expiration, AP and such customer must execute a
standard Outsource Nondisclosure Agreement (attached hereto as
Exhibit 2) in order to continue to provide AP Services to such
customers, and AP will not be permitted to provide the services
described in Section 4.10.
2.6 RIGHTS AND OBLIGATIONS FOR TERMINATION OF THIS AGREEMENT FOR CAUSE.
(A) In the event that either party terminates this Agreement
pursuant to Section 2.2, this Agreement shall terminate
immediately after the cure period and the parties agree to the
following:
(I) OUTSTANDING END USER AGREEMENTS. The services described
in Section 4.10 will be discontinued under all AP End
User Agreements as of the effective date of termination
of this Agreement. In the event AP desires to continue
to provide hosted application services to any Customers
under contract pursuant to this Agreement once the terms
and conditions of this Agreement are no longer in
effect, AP and SAP shall execute the non-disclosure
agreement in the form of Exhibit 1 listing those
Customers which will continue to receive such services.
Notwithstanding the foregoing, in the event the
termination of this Agreement was the result of an AP
breach then, SAP shall be entitled to require additional
terms and conditions be added to the non-disclosure
agreement to provide additional, reasonable safeguards
to SAP considering the nature and severity of the
breach.
(II) OUTSTANDING SALES LEADS. The parties agree to cease the
joint marketing and selling of the Alliance Offering
through the indirect sales channels(s) and its own
internal sales channel. AP will not be permitted to
offer the services described in Section 4.10 to
prospects or non-Customers. The parties remain free to
continue to market and sell their respective products
and services separately.
(B) In the event that SAP terminates this Agreement pursuant to
Section 2.2 due to AP's material violation of SAP's Proprietary
Information, the parties agree that the provisions of 2.6(a)
shall apply in addition to the following:
(I) AP shall immediately cease Use of the SAP Proprietary
Information and shall irretrievably delete the SAP
Software, third-party database and documentation from
all AP computer hardware, including CPU, application
servers, terminals, workstations, and data files (to the
extent permitted by law). Within thirty days after any
such termination, AP shall deliver to SAP at AP's
expense (adequately packaged and insured for safe
delivery) or, at SAP's request, destroy all copies of
the Proprietary Information in every form. AP further
agrees to erase the SAP Software and documentation from
any storage media. AP shall certify in writing to SAP
that it has performed the foregoing. AP shall be solely
liable to its Customers and shall hold SAP harmless as a
result of having to comply with this Section 2.6(b)(i).
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(II) Prior to termination of this Agreement for AP's material
violation relating to SAP Proprietary Information, SAP
will provide AP with an additional thirty days to cure
such violation and avoid termination hereunder so long
as AP acknowledges that SAP does not waive any rights to
damages which have accrued or may continue to accrue by
permitting continued Use during the attempted cure
period and SAP shall remain entitled to all damages
available pursuant to this Agreement for any breach of
the Agreement.
2.7 RIGHTS AND OBLIGATIONS FOR TERMINATION OR EXPIRATION OF END-USER
AGREEMENTS. Upon expiration or termination for any reason of any
Customer's SAP End User Agreement, AP shall immediately cease Use of the
SAP Proprietary Information and shall irretrievably delete the SAP
Software, third-party database and documentation from all AP computer
hardware, including CPU, application servers, terminals, workstations,
and SAP data files (to the extent allowed by law and after having the
opportunity to provide such SAP data files to the Customer) all as it
relates to such Customer. Upon SAP's request, AP shall certify in
writing to SAP that it has performed the foregoing.
ARTICLE III. GENERAL ROLES AND RESPONSIBILITIES
3.1 ALLIANCE GENERAL MANAGERS; ALLIANCE TEAM. SAP and AP will each assign a
representative who will be the primary point of contact in dealing with
the other under this Agreement and will have the authority to make
decisions with respect to actions taken under this Agreement (the
"Alliance General Managers"), provided however, that this Agreement may
only be amended by authorized representatives of AP and SAP. AP and SAP
will assign resources to develop required business plans and sales plans
and will cooperate to meet any mutually determined target completion
dates.
3.2 EXECUTIVE STEERING COMMITTEE. Each of SAP and AP will provide the other
with the names of up to three members of its senior management staff
(inclusive of the Alliance General Managers) who will serve on an
executive steering committee ("Executive Steering Committee"). The
Executive Steering Committee will be responsible for (a) generally
overseeing the performance of each party's obligation under this
Agreement, and (b) making, and providing continuity for making,
strategic decisions regarding the Alliance Offering. The Executive
Steering Committee will meet quarterly. Topics of these meetings may
include the strategic objectives of the parties and long-range planning.
3.3 JOINT BRANDING AND ADVERTISING. It is the parties' intent to jointly
brand the Alliance Offering and associated promotional, marketing, and
advertising materials as jointly agreed upon by the Alliance General
Managers and subject to each party's corporate approvals.
3.4 PROSPECTIVE CUSTOMER COMMUNICATIONS. All SAP and/or AP communications
with any prospective Customers pertaining to the Alliance Offering (and
any subsequent End User Agreements) will be in accordance with the Sales
Plan and coordinated through the Alliance General Managers or their
designees unless AP and SAP otherwise mutually agree in writing.
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3.5 EXPENSES. Each party shall bear its own respective costs, expenses,
risks and liabilities arising out of performance hereunder, except where
the parties agree in writing to share in such expenses.
3.6 INVESTMENT. If AP consummates a private placement of series D preferred
stock (the "Financing") prior to consummation of its initial public
offering of common stock pursuant to a registration statement on Form
S-1 (the "IPO"), AP will permit SAP to participate in the Financing on
terms substantially similar to those pursuant to which other
participants participate and in an amount to be agreed upon by AP and
SAP prior to consummation of the Financing. As consideration for the
SAP's actual participation in the Financing, SAP agrees to develop, with
AP, a joint strategic initiative to be agreed upon by the parties that
will further the objectives of the Alliance. Except for the foregoing
sentence, this section shall terminate at the earlier of the IPO and the
termination of this Agreement.
3.7 COMPETITOR OWNERSHIP CHANGE. In the event an SAP competitor, where a
competitor is defined as an entity which distributes software product(s)
which compete with SAP software which currently includes SAP X/0, XXX
X0X, XXX XX, XXX XXX, XXX CRM, xxXXX.xxx and SAP Knowledge Warehouse,
obtains direct or indirect ownership, or control of, five percent or
more of the equity of Corio or an SAP competitor's employee or officer
becomes a member of the Corio board of directors, SAP shall have the
right to terminate this agreement upon sixty days prior written notice
to Corio. A termination pursuant to this provision shall be treated in
the same manner as the expiration of the agreement as related to the
section 2. transition period.
ARTICLE IV. DELIVERY OF THE ALLIANCE OFFERING
4.1 MARKETING, COMMUNICATION & PROMOTIONAL PLANS. The parties agree to
jointly develop and execute marketing, communications, and promotional
plans and/or policies that are compatible ("Marketing Plan").
Promotional activities will likely consist of direct telephone and mail
marketing, direct print advertising in trade journals, Internet
advertising, public and media relations, third party industry analyst
briefings and relations, and select trade conference joint activities.
The parties agree to appoint a "Marketing Lead" representative, who
reports to the Alliance General Manager for purposes of Alliance
activities, who will be the primary point of contact in dealing with the
other under this paragraph and will have the authority to make decisions
with respect to actions taken under this paragraph. Any changes made to
these plans must be approved in writing by the Alliance General
Managers. These plans will be reviewed at the Executive Steering
Committee meetings.
4.2 SAP END USER AGREEMENT. SAP will create its own end user agreement (the
"SAP End User Agreement") and will utilize the SAP End User Agreement to
contract directly with Customers for the SAP Software used in the
Alliance Offering and related software support services. SAP will
license the SAP software to Customers on a "per user/per month" basis as
its primary pricing structure. SAP may, at its own discretion, offer
paid-up licenses and/or the ability to accelerate monthly payments as an
option.
4.3 AP END USER AGREEMENT. AP will create its own end user agreement (the
"AP End User Agreement") and will utilize the AP End User Agreement to
contract directly with Customers for the provision of the AP Services on
a "per user/per month" basis as its primary pricing structure.
Configuration and implementation services may not be subject to the "per
user/per month" pricing structure.
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4.4 MODIFICATIONS TO END USER AGREEMENTS. The SAP and AP End User Agreements
attached hereto as Attachments A and B respectively have been jointly
agreed upon as of the Effective Date. Unless otherwise agreed, any party
making a change to its End User Agreement (other than changes that
correct errors in grammar, typos, and format or changes made for a
specific customer which do not impact the offering of the other party or
otherwise materially change the Alliance Offering) must give the other
party notice of such change and any objection to such change must be
provided to the other party in writing within 10 business days from the
receipt of such notification. Objections will be addressed by the
Alliance General Managers and the Executive Steering Committee as
appropriate. In the event of any change to a party's standard End User
Agreement, such party will promptly provide an updated version of its
End User Agreement to the other party. Neither party may bind or impose
any liabilities, obligations, responsibilities or conditions on the
other party in any way under their respective End User Agreement.
4.5 PERFORMANCE. SAP and AP will each execute their own respective End User
Agreements with each Customer and will be responsible for their own
performance under each End User Agreement.
4.6 CERTIFIED BUSINESS SOLUTION PARTNER AGREEMENTS. In the event the
Alliance Offering is extended to prospects with annual revenues less
than $200 million, the parties agree that the Alliance Offering will be
marketed via the SAP Certified Business Solution Partners ("CBS
Partners"). The SAP Certified Business Solution Partners who elect to
participate as the primary sales channel of the Alliance Offering, as
described in Section 4.9(a), will execute an agreement between
themselves and SAP and a separate agreement between themselves and AP
which will govern any such sale of the Alliance Offering (the "Certified
Business Solution Partner Agreement"). The parties agree that their
respective Certified Business Solution Partner Agreements will contain
at a minimum the compensation models and sales targets related to that
Certified Business Solution Partner for the Alliance Offering and will
provide such compensation models and sales targets to the other party.
Each party will be solely responsible for all payments due to the
Certified Business Solution Partners under their respective Certified
Business Solution Partner Agreements.
4.7 SALES PLAN. AP and SAP agree to jointly develop a sales plan that will
more definitively define the roles and responsibilities pertaining to
any sale of the Alliance Offering (the "Sales Plan"). Such Sales Plan
shall allocate the responsibility between the parties to provide lead
qualification and tracking and shall specify the conditions, manner and
amount of compensation to be paid by each party in the event that a
Customer is signed up which was, at that time, an active sales prospect
of SAP, AP or SAP Certified Business Solutions Partner as defined in the
Sales Plan. Any changes made to the Sales Plan must be approved in
writing by the Alliance General Managers. The Sales Plan will be
reviewed at the Executive Steering Committee meetings and updated
periodically, such period to be specified in the Sales Plan.
4.8 SALES TARGETS. In accordance with the Sales Plan, the parties agree to
establish joint sales volume targets, the channel sales model, and rules
of engagement as mutually agreed upon in writing. The parties agree to
assign professional staff (such as sales representatives, sales support
representatives, or pre-sales technical representatives) who
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will have individual performance objectives and personal compensation
metrics (commission or bonus plans) connected to the achievement of the
sales targets.
4.9 ALLIANCE OFFERING SALES CHANNELS. AP and SAP mutually agree to make the
Alliance Offering generally available through the following:
(A) PRIMARY SALES CHANNEL. The primary sales channel for the
Alliance Offering will be each parties' direct sales force. Each
party may utilize third party sales agents and/or marketing
representatives to fulfill some of their sales responsibilities
after receiving the prior written consent of the other party.
Such consent shall be not be unreasonably withheld and shall
consider factors such as the sales agent's or marketing
representative's ability to properly represent and demonstrate
the offering from a technical, business and support perspective.
A party may withhold consent if, in that party's sole
determination, it believes that the use of such sales agent or
marketing representative may result in a business conflict or is
otherwise not in the best interest if the offering. All sales
agents and marketing representatives must execute a
confidentiality agreement acceptable to the parties. Use of the
CBS Partners as sales agents and/or marketing representative
shall not require the consent of the other party. AP and SAP
will jointly establish requirements and a certification process
for SAP Certified Business Solutions Partners who participate in
the sale of the Alliance Offering. The parties agree that any
such Certified Business Solutions Partner must execute a
Certified Business Solutions Partner Agreement in order to be
authorized to sell the Alliance Offering. Any such agreement
entered into by the Certified Business Solutions Partner must
include, among other items, a provision requiring the Certified
Business Solutions Partner to comply with its sales targets. In
the event that an SAP Certified Business Solutions Partner
elects not to execute the SAP Certified Business Solutions
Partner Agreement with SAP or fails to meet its Alliance
Offering sales targets, SAP agrees to take reasonable steps to
implement a plan to meet the sales targets in that specific
Certified Business Solutions Partner's territory.
4.10 INTEGRATED CUSTOMER SUPPORT PLAN. The parties agree to share customer
support knowledge, processes and tools in an effort to design, execute,
and jointly manage a process whereby Alliance Offering Customer support
requests may be shared or transferred from one party to the other in
accordance with the following:
(A) INTEGRATED CUSTOMER SUPPORT ENVIRONMENT PLAN. The parties agree
that the Integrated Customer Support Environment ("Customer
Support Plan") plan is to be jointly developed to meet the
mutual service level requirements of the parties utilizing the
support infrastructures of the Alliance Offering Customer, AP,
SAP, and the Certified Business Solutions Partner.
(B) CHANGE PROCESS. The parties acknowledge and agree that the
procedures, processes, and technology used to implement the
Integrated Customer Support Environment plan may change over
time. Any changes to the Integrated Customer Support Environment
plan shall be mutually agreed to by the Customer Support Leads.
The Integrated Customer Support Environment plan may be reviewed
at the Executive Steering Committee meetings as required.
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(C) CUSTOMER SUPPORT LEAD. Each party will designate a Customer
Support Lead who will be the point of contact for Integrated
Customer Support Environment related matters. The Integrated
Customer Support Environment plan will identify each party's
Customer Support Lead.
4.11 POST TERMINATION ACCESS. Upon the expiration or termination of this
Agreement and the section 2.5(a) wind-down period, if any, or upon
termination of this Agreement by AP due to SAP's material breach under
section 2.6, AP access to the Software for the purpose of performing
customer support shall arise pursuant to the SAP End User Agreement with
a Customer and the executed Outsource Non-Disclosure Agreement to be
executed by SAP and AP.
ARTICLE V. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
5.1 CONFIDENTIALITY.
(A) DEFINITION OF PROPRIETARY INFORMATION. For purposes of this
Agreement, "Proprietary Information" means (i) with respect to
SAP, the software and documentation and any complete or partial
copies thereof, the concepts, techniques, ideas and know-how
embodied and expressed in any computer programs or modules
included in the SAP software, including the structure, sequence,
and organization of such programs or modules ("Program
Concepts"), SAP licensors' third-party database, any other
third-party software licensed with or as part of the SAP
software, benchmark results, information contained in SAP's
Customer Support systems (CSS, CSU, and OSS), customer support
metrics and methodologies, customer list, marketing lead
information, and any other information identified or reasonably
identifiable as confidential and proprietary information of SAP,
or its licensors ("SAP Proprietary Information"); (ii) with
respect to AP, customer support metrics and methodologies,
customer list, marketing lead information and information
identified or reasonably identifiable as the confidential and
proprietary information of AP ("AP Proprietary Information");
and provided that, any part of the SAP or AP 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; or (d) already known to a party without an
obligation of confidentiality; or (e) is independently developed
without use of the other party's Proprietary Information; or (f)
disclosed without similar restrictions by SAP to a third party;
or (g) approved by the party for disclosure; or (h) is required
to be disclosed pursuant to the requirement of a government
agency or by operation of law subject to prior consultation with
the disclosing party's legal counsel shall be excluded.
(B) LIMITS OF DISCLOSURE. 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
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will obtain from that consultant a written acknowledgment that
such consultant will be bound by the same terms as specified in
this Section 5 with respect to the Proprietary Information.
(C) PROTECTIVE PRECAUTIONS. AP agrees to maintain a log of the
number and location of all originals and copies of the SAP
software which it comes into possession as related to the
Alliance Offering. AP 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.
5.2 CERTAIN DEFINITIONS.
(A) "Extension" means an addition to the Software which does not
require a Modification.
(B) "Modification" means a change to the Software which changes the
source code.
5.3 OWNERSHIP.
(A) Each party will retain all rights it possessed prior to the
Effective Date in any software, ideas, concepts, know-how,
development tools, techniques or any other proprietary material
or information that may be used by such party in connection with
its role relating to the development or delivery of the Alliance
Offering. All software that is licensed by a party from a third
party vendor will be and remain the property of such vendor.
Notwithstanding anything to the contrary in this Agreement, (I)
AP (i) will retain all right, title and interest in and to all
development tools, know-how, methodologies, processes,
technologies or algorithms used in performing the AP Services
which are based on trade secrets or proprietary information of
AP or are otherwise owned or licensed by AP and developed
without the assistance of SAP or are not based on SAP
Proprietary Information, (ii) will be free to use the ideas,
concepts and know-how which are developed by AP in the course of
performing the AP Services and may be retained by AP's employees
in intangible form so long such ideas, concepts or know-how are
not based on SAP Proprietary Information, and (iii) will retain
ownership of any AP-owned software or development tools that are
used in the Alliance Offering and become embedded in any
components of the Alliance Offering; and (II) SAP (i) will
retain all right, title and interest in and to all development
tools, know-how, methodologies, processes, technologies or
algorithms used in performing the SAP services which are based
on trade secrets or proprietary information of SAP or are
otherwise owned or licensed by SAP and developed without the
assistance of AP or are not based AP Proprietary Information,
(ii) will be free to use the ideas, concepts and know-how which
are developed by SAP in the course of performing the SAP
services and may be retained by SAP employees in intangible
form, and (iii) will retain ownership of any SAP-owned software
or development tools that are used in the Alliance Offering and
become embedded in any components of the Alliance Offering.
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(B) In the event AP without SAP's participation develops any
Modification or Extension (hereinafter referred to as "AP
Extension" or "AP Modification") to the SAP Software for an
Alliance Offering Customer, AP agrees that ownership of such AP
Extension or AP Modification shall be in accordance with the SAP
End User Agreement with such Customer.
(C) Unless otherwise agreed to in writing, in the event SAP develops
either independently, or jointly with AP, any Modification or
Extension to the SAP Software, such Modifications or Extensions
will be the exclusive property of SAP and SAP AG, and AP will
not grant, either expressly or impliedly, any rights, title,
interest, or licenses to such Modifications or Extensions to any
third party. AP shall be entitled to Use such Modifications and
Extensions solely in support of Alliance Offering Customers as
contemplated in this Agreement.
(D) AP agrees that it will not modify any provided third-party
software hereunder, unless expressly authorized in writing by
such third-party vendor.
(E) AP shall register all Modifications to the SAP Software, using
OSS (Online Software Service), with SAP prior to making such
Modifications.
(F) AP agrees to: (i) keep and maintain adequate and current records
of all Software Modifications (which records shall be made
reasonably available to SAP); (ii) promptly disclose to SAP and
provide copies to SAP of any Software Modifications in which SAP
has ownership rights; and (iii) insert in all copies of the SAP
Software as modified all copyright, trade secret, or other
notices thereon or therein as SAP may from time to time direct.
(G) No licenses will be deemed to have been granted by either party
to any of its patents, trade secrets, trademarks or copyrights,
except as otherwise expressly provided in this Agreement.
Nothing in this Agreement will require AP or SAP to violate the
proprietary rights of any third party in any software or
otherwise. The furnishing of the Proprietary Information for the
purposes set forth in this Agreement does not constitute the
grant, option, license, sublicense, assignment, or other form of
transfer to the other party of any rights, title or interest in
or to such Proprietary Information. AP expressly warrants and
represents on its behalf, and on behalf of its agents and
employees, that no Modifications and Extensions for the licensed
SAP Software will be performed without providing prior written
notice to SAP. All Modifications and Extensions to the SAP
Software shall be considered part of the SAP Software and SAP
Proprietary Information for the purposes of this Agreement.
5.4 AP RIGHT TO ACCESS SAP SOFTWARE. SAP grants AP a right to use, load,
execute, employ, utilize, store, and display ("Use") the SAP Software
which is licensed to Alliance Offering Customers pursuant to an SAP End
User Agreement at a designated AP location. AP agrees that it will Use
such SAP Software solely for providing AP Services to such Customers. AP
agrees that such Use is contingent upon the SAP End User Customer
licensing the appropriate type and number of Users for AP's Use. AP will
not Use the SAP Software to process its own business information or to
provide processing or facilities management or other services to any
other parties other than Alliance Offering Customers unless there is a
separate agreement executed by AP for purposes other than the Alliance
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Offering. All SAP software Used by AP pursuant to this Agreement shall
be protected from disclosure in accordance with the terms and conditions
of this Agreement.
AP shall be entitled to a reasonable number of copies of the SAP
Software in various configurations (e.g. R/3 on NT with Oracle, R/3 on
HP Unix with Informix) solely for non-productive Alliance Offering use
such as demonstration purposes and preparation of Alliance Offering
roll-out on these configurations. Such SAP Software shall be provided at
no charge and AP agrees that it is responsible to secure all third party
software and database licenses, if any, associated with the
configurations. AP shall execute an SAP provided Appendix and Schedule
for each copy of the Software licensed pursuant to this provision.
5.5 SURVIVAL OF ARTICLE V. The provisions of Sections 5.1, 5.2, 5.3, and 5.4
will survive the expiration or termination of this Agreement for any
reason.
ARTICLE VI. INDEMNITIES AND LIABILITIES
6.1 NO REPRESENTATION REGARDING COMBINATION USE. SAP makes no representation
with respect to the possibility of infringement by Combination Use of
the SAP Software. The parties agree that SAP has no duty to investigate
nor to warn AP of any such possibility. As used herein, Combination Use
means Use of the SAP Software in conjunction with any of the following:
(i) any software other than the SAP Software or (ii) any apparatus other
than a Designated Unit (each individual computer in which the Software
and Third-Party Database are installed), unless such Use is prescribed
in the Documentation.
6.2 INTELLECTUAL PROPERTY INDEMNIFICATION.
(A) Except for Combination Use, each party shall indemnify the
other, up to the maximum amount described in Section 6.2(c),
against all claims, liabilities, awards, and costs, including
reasonable attorneys' fees reasonably incurred in the defense of
any claim brought against a party by third parties alleging that
the other party's software and documentation (other than third
party software and documentation) infringes or misappropriates:
(i) any United States patent; or (ii) a United States copyright;
or (iii) trade secret rights, provided that, the party seeking
indemnification promptly notifies the other party in writing of
any such claim and the indemnitor is permitted to control fully
the defense and any settlement of such claim. The indemnitee
shall reasonably cooperate in the defense of such claim and may
appear, at its own expense, through counsel. The indemnitor may,
in its sole discretion, settle any such claim on a basis
requiring indemnitor to substitute for the infringing software
and documentation alternative substantially equivalent
non-infringing programs and supporting documentation.
(B) If software or documentation becomes the subject of a claim
under this Section 6.2, or in the indemnitor's opinion is likely
to become the subject of such a claim, then, in addition to
defending the claim and paying any damages and attorneys' fees
as required above in this Section 6.2, the indemnitor will
either (A) replace or modify the software or confidential
information to make it noninfringing or cure any claimed misuse
of another's trade secret or (B) procure for the indemnitee the
right
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to continue using the software or confidential information
pursuant to this Agreement. Any costs associated with
implementing either of the above alternatives will be borne by
the indemnitor but will be subject to Section 6.2(c). If neither
option is available to the indemnitor through the use of
reasonable, diligent efforts, (x) the indemnitee will return
such software or confidential information to the indemnitor and
(y) if requested by the indemnitee in good faith, the parties
will negotiate, pursuant to Section 7.2 but subject to Section
6.2(c), to reach a written agreement on what, if any, monetary
damages (in addition to the indemnitor's obligation to defend
the claim and pay any damages and attorneys' fees as required
above in this Section 6.2) are reasonably owed by the indemnitor
to the indemnitee as a result of the indemnitee no longer having
use of such software or confidential information.
(C) The maximum aggregate liability of the indemnifying party under
the indemnity provided in this Section 6.2 shall be a sum equal
to ten million dollars. 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.
6.3 PROCEDURES TO COMMENCE INFRINGEMENT ACTIONS. The indemnifying party
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 pursuant to
6.2. The indemnitee shall not undertake any action in response to any
infringement or alleged infringement without the prior written consent
of the indemnitor, which consent shall not be unreasonably withheld. The
indemnitee agrees to cooperate with and assist the indemnitor in taking
whatever action (including consenting to being named as a party to any
suit or other proceeding) which the indemnitor determines to be
reasonably necessary or desirable.
6.4 SOLE REMEDY. THE PROVISIONS OF SECTION 6.2 AND 6.3 STATE THE SOLE,
EXCLUSIVE, AND ENTIRE LIABILITY OF THE PARTIES TO EACH OTHER, TO SAP AG
AND THEIR LICENSORS TO THE OTHER PARTY AND THE OTHER PARTY'S SOLE REMEDY
WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY
RIGHTS.
6.5 UNAUTHORIZED USE INDEMNITY. AP shall indemnify SAP, and its licensors,
against all third party claims, liabilities, and costs, including
reasonable legal fees, reasonably incurred in the defense of any claim
(other than for the infringement of intellectual property rights
specified in Section 6.2 above), arising out of AP's unauthorized Use of
the Software or third-party software, provided that, SAP promptly
notifies AP in writing of such claim and that AP is permitted to control
fully the defense and any settlement of the claim. Further, SAP agrees
to cooperate with and assist AP in taking whatever action (including
consenting to being named as a party to any suit or other proceeding)
which the AP determines to be reasonably necessary or desirable.
6.6 LIMIT OF LIABILITY. Except for the infringement indemnity obligations
set forth in Sections 6.2 and for damages resulting from a breach of
Section 5, neither party will be liable to the other for an amount in
excess of $5,000,000. FURTHER, EXCEPT FOR DAMAGES RESULTING FROM
UNAUTHORIZED USE OR DISCLOSURE OF THE PROPIETARY INFORMATION, NEITHER
PARTY WILL BE LIABLE TO THE OTHER FOR ANY AMOUNTS FOR LOSS OF INCOME,
PROFIT OR SAVINGS OR
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INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL
DAMAGES IN ADVANCE, AND ALL SUCH DAMAGES ARE EXPRESSLY DISCLAIMED. NO
CLAIM, DEMAND FOR MEDIATION OR ARBITRATION OR CAUSE OF ACTION WHICH
AROSE OUT OF AN EVENT OR EVENTS WHICH OCCURRED MORE THAN TWO YEARS PRIOR
TO THE FILING OF A DEMAND FOR MEDIATION OR ARBITRATION OR SUIT ALLEGING
A CLAIM OR CAUSE OF ACTION MAY BE ASSERTED BY EITHER PARTY AGAINST THE
OTHER.
6.7 END USER AGREEMENT: CERTIFIED BUSINESS SOLUTION PARTNER AGREEMENTS
INDEMNIFICATION. Subject to Section 6.6, each party shall indemnify the
other against all claims, liabilities, awards, and costs, including
reasonable attorneys' fees, reasonably incurred in the defense of any
claim brought against a party (the party seeking indemnification) by end
user customers and/or third parties relating to the indemnifying party's
End User Agreement (as contemplated in Sections 4.2 and 4.3) or
Certified Business Solution Partner Agreements (as contemplated in
Section 4.6), provided that, the party seeking indemnification promptly
notifies the other party in writing of any such claim and the
indemnifying party is permitted to control fully the defense and any
settlement of such claim. The party seeking indemnification shall
reasonably cooperate in the defense of such claim and may appear, at its
own expense, through counsel.
6.8 SURVIVAL OF ARTICLE VI. The provision of this Article VI will survive
the expiration or termination of this Agreement for any reason.
ARTICLE VII. MISCELLANEOUS
7.1 ASSIGNMENT: SUBCONTRACTING.
(A) ASSIGNMENT. Neither party shall assign or in any manner transfer
any obligation assumed or contemplated by this Agreement without
the prior written consent of the other party to this Agreement,
the granting of which shall not be unreasonably withheld;
provided, that a change of control or acquisition of a party
shall be considered an assignment for the purposes of this
Section 7.1. Notwithstanding the foregoing, consent to the
assignment to a competitor can be withheld for any reason.
(B) SUBCONTRACTING. Notwithstanding the forgoing and subject to
Section 4.9(a), each party shall be reasonably permitted to
subcontract its services in the performance of its obligations
hereunder so long as all or substantially all of a core
obligation is not subcontracted.
7.2. MEDIATION: ARBITRATION. Any dispute, controversy or claim arising under,
out of, in connection with or in relation to this Agreement, or the
breach, termination, validity or enforceability of any provision hereof
(a "Dispute"), if not resolved informally through negotiation between
the parties, will be submitted to non-binding mediation. The parties
will mutually determine who the mediator will be from a list of
mediators obtained from the American Arbitration Association office
located in the city determined as set forth below in this Section 7.2
(the "AAA"). If the parties are unable to agree on the mediator, the
mediator will be selected by the AAA. If any Dispute is not resolved
through mediation, it will be resolved by final and binding arbitration
conducted in accordance with
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and subject to the Commercial Arbitration Rules of the AAA then
applicable. One arbitrator will be selected in accordance with such
rules, and the arbitrators will allow such discovery as is appropriate,
consistent with the purposes of arbitration in accomplishing fair,
speedy and cost effective resolution of disputes. The arbitrator will
reference the rules of evidence of the Federal Rules of Civil Procedure
then in effect in setting the scope of discovery. Judgment upon the
award rendered in any such arbitration may be entered in any court
having jurisdiction thereof, or application may be made to such court
for a judicial acceptance of the award and an enforcement, as the law of
such jurisdiction may require or allow. Any negotiation, mediation or
arbitration conducted pursuant to this Section 7.2 will take place in
Palo Alto, California, if initiated by SAP, and in Philadelphia, Pa, if
initiated by AP. Other than those matters involving injunctive relief,
claims relating to the ownership or title to intellectual property
rights in the Proprietary Information or any action necessary to enforce
the award of the arbitrator, the parties agree that the provisions of
this Section 7.2 are a complete defense to any suit, action or other
proceeding instituted in any court or before any administrative tribunal
with respect to any Dispute or the performance of the AP Services by AP.
Nothing in this Section 7.2 prevents the parties from exercising their
right to terminate this Agreement in accordance with Article II.
7.3 RIGHT TO ENGAGE IN OTHER ACTIVITIES. This Agreement relates exclusively
to the development, marketing, sales and delivery efforts of the
Alliance Offering. In no way does this Agreement (i) constitute an
understanding in regard to other programs or business activities of
either party, (ii) constitute an understanding as to any other
procurements by one party from the other, nor (iii) prevent either party
from engaging in similar activities with other companies.
7.4 RELATIONSHIP. Nothing in this Agreement shall be deemed to constitute,
create, give effect to, or otherwise recognize a joint venture,
partnership, pooling arrangement, formal business entity or any type of
permanent arrangement, and the employees of one party shall not be
deemed employees of the other. SAP and AP shall be acting in their
respective capacities as independent contractors and under no
circumstances will either party be deemed to be in any relationship with
the other carrying with it fiduciary or trust responsibilities, whether
through partnership or otherwise, and neither party undertakes by this
Agreement or otherwise to perform any obligation of the other party,
whether regulatory or contractual, or to assume any responsibility for
the other party's business or operations. Each party has the sole right
and obligation to supervise, manage, contract, direct, procure, perform
or cause to be performed, all work to be performed by it hereunder.
Nothing in this Agreement shall grant to either party the right to make
commitments of any kind for or on behalf of the other party without the
prior written consent of the other party.
7.5 MEDIA RELEASES: ADVERTISING. All media releases, public announcements
and public disclosures by SAP or AP relating to this Agreement or its
subject matter, including, without limitation, promotional or marketing
material (but not including any announcement intended solely for
internal distribution at SAP or AP, as the case may be, or any
disclosure required by legal, accounting or regulatory requirements
beyond the reasonable control of SAP or AP, as the case may be) shall be
coordinated and jointly agreed upon by the Alliance General Managers
(subject to both company's corporate approvals) prior to the release
thereof.
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7.6 AUDIT RIGHT. During normal business hours and at any time during which
the SAP Software, documentation, third-party software, 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 AP's utilization of such items, in
order to verify compliance with the terms of this Agreement. Such
inspection right shall occur no more frequently than once per year
unless the results of an inspection reveal non-compliance with the
license in which case SAP shall be permitted re-audit within any year.
Upon SAP's reasonable request, AP shall deliver to SAP a report, as
defined by SAP, evidencing AP's and Customers' usage of the Software
licensed pursuant to the SAP end User Agreement
7.7 EXCUSED PERFORMANCE. Each party shall be excused from performance
hereunder (other than performance of obligations to make payment, if
any) for any period and to the extent that it is prevented from
performing pursuant hereto, in whole or in part, as a result of delays
caused by the other or third parties or an act of God, war, civil
disturbance, court order, labor dispute, or other cause beyond its
reasonable control, including failures or fluctuations in electrical
power, heat, light, air conditioning or telecommunications equipment,
and such nonperformance shall not be a default hereunder or a ground for
termination hereof.
7.8 NOTICES. All notices under this Agreement will be in writing and will be
deemed to have been duly given if delivered personally or by a
nationally recognized courier service, faxed or mailed by registered or
certified mail, return receipt requested, postage prepaid, to the
parties at the addresses set forth below. All notices under this
Agreement that are addressed as provided in this Section 7.8, (a) if
delivered personally or by a nationally recognized courier service, will
be deemed given upon delivery, (b) if delivered by facsimile, will be
deemed given when confirmed and (c) if delivered by mail in the manner
described above, will be deemed given on the fifth business day after
the day it is deposited in a regular depository of the United States
mail. Either party may change its address or designee for notification
purposes by giving notice to the other of the new address or designee
and the date upon which such change will become effective.
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In the case of AP: In the case of SAP:
------------------------------- -------------------------------
AP Alliance General Manager SAP Alliance General Manager
(Address) (Address)
------------------------------- -------------------------------
------------------------------- -------------------------------
7.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect
to principles of conflict of laws.
7.10 ENTIRE AGREEMENT. This Agreement, including any Schedules or Exhibits
referred to herein and attached hereto, each of which is incorporated in
this Agreement for all purposes, constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement
and there are no representations, understandings or agreements relating
to this Agreement which are not fully expressed herein. No amendment,
modification, waiver or discharge hereof shall be valid unless in
writing and signed by an authorized representative of the party against
which such amendment, modification, waiver or discharge is sought to be
enforced.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized representative as of the day and year first
above written.
CORIO, INC. SAP AMERICA, INC.
/s/ Signature Illegible /s/ Signature Illegible
BY: BY:
NAME: LAURENT PACALIN NAME: XXXX XXXXXX
------------------------- -------------------------
TITLE: VP Business Development TITLE: COO
------------------------- -------------------------
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EXHIBIT 1
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") made this ____th day of ______,
20___ between SAP America, Inc. having its principal place of business at 0000
Xxxx Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to
as "SAP"), and ________________, having its principal place of business at
________________________ (hereinafter referred to as "AP").
WHEREAS, SAP is in the business of providing proprietary software,
documentation, and related services to its Customers;
WHEREAS, pursuant to the Marketing Alliance Agreement dated ________ __, 200___,
between SAP and AP (Marketing Agreement"), SAP and AP have jointly developed a
customer base (Customers) for which SAP has licensed its Software, Documentation
and other Proprietary Information to Company for Use in its business operations
and AP has provided hosted application services (the list of permissibly
Customers are listed on Exhibit A, attached hereto);
WHEREAS, Customers have engaged AP to perform certain facilities and/or
information systems management services as set forth in the Agreements between
AP and Customers ("Services") that will require AP to access to the Software;
and
WHEREAS, the Marketing Agreement has been terminated and Customers continue to
want to receive hosted application services from AP;
WHEREAS, SAP and/or Customers will disclose to AP the Software, whether in
source or object code, including unique concepts or techniques embodied therein,
Documentation, any Third-Party Database or Third-Party Software sublicensed from
SAP, and any other Proprietary Information for the sole purpose of allowing AP
to provide the Services to Company;
NOW THEREFORE, in consideration of disclosure to AP of such Proprietary
Information, and intending to be legally bound, the parties agree as follows:
1. Permissible Users.
AP agrees that it will Use the Proprietary Information solely for
providing the Services to Customers. AP shall be permitted to use, load,
execute, employ, utilize, store, and display ("Use") the SAP Software which is
licensed to a Customers listed on Exhibit A pursuant to an SAP End User
Agreement at a designated AP location. AP agrees that such Use is contingent
upon the SAP End User Customer licensing the appropriate type and number of
Users for AP's Use. AP will not Use the SAP Software to process its own business
information or to provide processing or facilities management or other services
to any other parties other than Customers listed on Exhibit A unless there is a
separate agreement executed by AP for such purposes.
2. SAP Proprietary Information.
(a) AP acknowledges SAP's assertion that ownership of and title in and
to all intellectual property rights, including patent, trademark, service xxxx,
copyright, and trade secret rights, in the Proprietary Information are and shall
remain in SAP and SAP AG and their respective licensors. AP acquires only the
right to use the Proprietary Information under the terms and conditions of this
Agreement and does not acquire any ownership rights or title in or to the
Proprietary Information and that of their respective licensors.
(b) SAP agrees that no restrictions are made upon AP with respect to any
Proprietary Information that: (a) is already rightfully possessed by AP without
obligation of confidentiality; or (b) is developed independently by AP without
breach of this Agreement; or (c) is rightfully received by AP from a third party
without obligation of Confidentiality; or (d) is, or becomes, publicly available
without breach of this Agreement.
(c) AP shall not remove any proprietary, copyright, trademark, or
service xxxx legend from the Software, Documentation or other provided
Proprietary Information.
18
(d) AP shall maintain a log of the number and location of all originals
and copies of the Software. The inclusion of a copyright notice on any portion
of the Software or Documentation shall not cause or be construed to cause it to
be a published work.
3. Protection of Proprietary Information.
(a) AP agrees that it will not disclose, provide, or make available any
of the Proprietary Information in any form to any person, except to bona fide
employees, officers, or directors whose access is necessary to enable AP to
exercise its rights hereunder, without the SAP's prior written consent.
(b) AP shall not copy, translate, disassemble, or decompile, nor create
or attempt to create the source code from the object code of the Software
licensed hereunder or use it to create a derivative work, unless authorized in
writing by SAP.
(c) AP acknowledges that any disclosure to third parties of Proprietary
Information may cause immediate and irreparable harm to SAP, therefore, AP
agrees to take the same protective precautions to protect the Proprietary
Information from disclosure to third parties as it takes with its own
proprietary and Proprietary information of a similar nature.
4. Duties Upon Termination.
Upon any termination of the License Agreement between a Customer and SAP
or the agreement for the Services between a Customer and AP, AP shall
immediately cease Use of the Proprietary Information and shall irretrievably
delete the Software, Third-Party Database and Documentation from all AP computer
hardware, including CPU, application servers, terminals, workstations, and data
files with respect to that Customer. Within thirty days after any termination,
AP shall deliver to SAP at AP's expense (adequately packaged and insured for
safe delivery) or, at SAP's request, destroy all copies of the Proprietary
Information in every form. AP further agrees to erase the Software and
Documentation from any storage media. AP shall certify in writing to SAP that it
has performed the foregoing. Upon termination of this Agreement, AP shall
perform the above duties in regards to all Customers.
5. No Rights Transferred.
The furnishing of the Proprietary Information for the limited purposes
set forth herein does not constitute the grant, option, license, sublicense,
assignment, or other form of transfer to AP of any rights, title or interest in
or to such Proprietary Information.
6. Indemnification.
(a) AP agrees to indemnify and defend SAP, its parent, affiliates, its
and their officers, directors and employees, from and against any and all loss,
claim or damage, including attorney's fees and costs, which SAP may suffer, that
arise from or are in any way connected with AP's provision of the Services to
Company or breach of AP's obligations hereunder provided that, SAP promptly
notifies AP in writing of any third party claim and that AP is permitted to
control fully the defense and any settlement of the third party claim. Further,
SAP agrees to cooperate with and assist AP in taking whatever action (including
consenting to being named as a party to any suit or other proceeding) which the
AP determines to be reasonably necessary or desirable.
(b) ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO
CIRCUMSTANCES SHALL SAP BE LIABLE TO AP, COMPANY OR ANY OTHER PERSON OR ENTITY
FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL
OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION,
ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS OF LIABILITY DOES NOT APPLY TO PERSONAL INJURY OR
DEATH CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SAP.
7. Assignment.
AP shall not assign or in any manner transfer any obligation assumed or
contemplated by this Agreement without the prior written consent of SAP, the
granting of which shall not be unreasonably withheld; provided, that a change of
control or acquisition of a party shall be considered an assignment for the
purposes of this Section 7. Notwithstanding the foregoing, consent to the
assignment to a competitor of SAP can be withheld for any reason.
19
8. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors assigns.
(b) The provisions of this Agreement, together with any agreements
incorporated or referred to herein, shall (i) with regard to the subject matter
hereof, supersede all prior agreements and negotiations, and (ii) be modified
only by a written agreement.
(c) In the event that any provision of this Agreement shall, for any
reason, be determined to be invalid, illegal, or unenforceable in any respect,
the parties hereto shall negotiate in good faith and agree to such amendments,
modifications, or supplements of or to this Agreement or such other appropriate
actions as shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties as
reflected herein, and the other provisions of this Agreement shall, as so
amended, modified, or supplemented, or otherwise affected by such action, remain
in full force and effect.
(d) This Agreement shall be governed by and construed under the
Commonwealth of Pennsylvania law without reference to its conflicts of law
principles.
This Agreement shall be in effect beginning on the date first above written and
shall continue in effect until otherwise agreed upon by the parties in writing.
IN WITNESS HEREOF, and intending to be legally bound, the parties have executed
this Agreement on the date and year first written above.
SAP AMERICA, INC. Corio Inc (AP)
By: By: /s/ Signature Illegible
------------------------------ ---------------------------
Title: Title: VP Business ??.
--------------------------- -------------------------
Date: Date: 2/14/00
--------------------------- ---------------------------
20
EXHIBIT 2
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement ("Agreement") made this ____th day of____, 200__
between SAP America, Inc. having its principal place of business at 0000 Xxxx
Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as
"SAP"), _____________________, having its principal place of business at
_________________ (hereinafter referred to as "AP") and ______________________,
having its principal place of business at _________________, hereinafter
referred to as ("Company").
All terms as set forth in the SAP America, Inc. R/3 End-User Value License
Agreement ("License Agreement") and referred to herein, shall have the same
meaning as set forth in the License Agreement unless otherwise modified herein.
WHEREAS, SAP is in the business of providing proprietary software,
documentation, and related services to its Customers;
WHEREAS, Pursuant to the License Agreement dated _____ __, 200__, between SAP
and Company, SAP has licensed its Software, Documentation and other Proprietary
Information to Company for Use in its business operations;
WHEREAS, Company has engaged AP to perform certain facilities and/or information
systems management services as set forth in the ____________________ Agreement
between AP and Company dated ______________ ("Services") that will require AP to
have access to the Software; and
WHEREAS, SAP and/or Company will disclose to AP the Software, whether in source
or object code, including unique concepts or techniques embodied therein,
Documentation, any Third-Party Database or Third-Party Software sublicensed from
SAP, and any other Proprietary Information for the sole purpose of allowing AP
to provide the Services to Company;
NOW THEREFORE, in consideration of disclosure to AP of such Proprietary
Information, and intending to be legally bound, the parties agree as follows:
1. Permissible Users.
AP agrees that it will Use the Proprietary Information solely for
providing the Services to Company. AP shall be permitted to use, load, execute,
employ, utilize, store, and display ("Use") the SAP Software which is licensed
to Company pursuant to an SAP End User Agreement listed at a designated AP
location. AP agrees that such Use is contingent upon Company licensing the
appropriate type and number of Users for AP's Use. AP will not Use the SAP
Software to process its own business information or to provide processing or
facilities management or other services to any other parties other than Company
unless there is a separate agreement executed by AP for such purposes.
2. SAP Proprietary Information.
(a) AP acknowledges SAP's assertion that ownership of and title in and
to all intellectual property rights, including patent, trademark, service xxxx,
copyright, and trade secret rights, in the Proprietary Information are and shall
remain in SAP and SAP AG and their respective licensors. AP acquires only the
right to use the Proprietary Information under the terms and conditions of this
Agreement and does not acquire any ownership rights or title in or to the
Proprietary Information and that of their respective licensors.
(b) SAP agrees that no restrictions are made upon AP with respect to any
Proprietary Information that: (a) is already rightfully possessed by AP without
obligation of confidentiality; or (b) is developed independently by AP without
breach of this Agreement; or (c) is rightfully received by AP from a third party
without obligation of Confidentiality; or (d) is, or becomes, publicly available
without breach of this Agreement.
(c) AP shall not remove any proprietary, copyright, trademark, or
service xxxx legend from the Software, Documentation or other provided
Proprietary Information.
21
(d) AP shall maintain a log of the number and location of all originals
and copies of the Software. The inclusion of a copyright notice on any portion
of the Software or Documentation shall not cause or be construed to cause it to
be a published work.
3. Protection of Proprietary Information.
(a) AP agrees that it will not disclose, provide, or make available any
of the Proprietary Information in any form to any person, except to bona fide
employees, officers, or directors whose access is necessary to enable AP to
exercise its rights hereunder, without the SAP's prior written consent.
(b) AP shall not copy, translate, disassemble, or decompile, nor create
or attempt to create the source code from the object code of the Software
licensed hereunder or use it to create a derivative work, unless authorized in
writing by SAP.
(c) AP acknowledges that any disclosure to third parties of Proprietary
Information may cause immediate and irreparable harm to SAP, therefore, AP
agrees to take the same protective precautions to protect the Proprietary
Information from disclosure to third parties as it takes with its own
proprietary and Proprietary information of a similar nature.
4. Duties Upon Termination.
Upon any termination of the License Agreement of the Services hereunder,
AP shall immediately cease Use of the Proprietary Information and shall
irretrievably delete the Software, Third-Party Database and Documentation from
all AP computer hardware, including CPU, application servers, terminals,
workstations, and data files. Within thirty days after any termination, AP shall
deliver to SAP at AP's expense (adequately packaged and insured for safe
delivery) or, at SAP's request, destroy all copies of the Proprietary
Information in every form. AP further agrees to erase the Software and
Documentation from any storage media. AP shall certify in writing to SAP that it
has performed the foregoing.
5. No Rights Transferred.
The furnishing of the Proprietary Information for the limited purposes
set forth herein does not constitute the grant, option, license, sublicense,
assignment, or other form of transfer to AP of any rights, title or interest in
or to such Proprietary Information.
6. Modifications and Extensions.
AP, under the terms of this Agreement, expressly warrants and represents
on its behalf, and on behalf of its agents and employees, that no Modifications
or Extensions for the licensed Software will be performed without providing
prior written notice to SAP. All Modifications and Extensions to the Software
owned by SAP shall be considered part of the Software for purposes of this
Agreement.
7. Indemnification.
(a) AP agrees to indemnify and defend SAP, its parent, affiliates, its
and their officers, directors and employees, from and against any and all loss,
claim or damage, including attorney's fees and costs, which SAP may suffer, that
arise from or are in any way connected with AP's provision of the Services to
Company or breach of AP's obligations hereunder provided that, SAP promptly
notifies AP in writing of any third party claim and that AP is permitted to
control fully the defense and any settlement of the third party claim. Further,
SAP agrees to cooperate with and assist AP in taking whatever action (including
consenting to being named as a party to any suit or other proceeding) which the
AP determines to be reasonably necessary or desirable.
(b) ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO
CIRCUMSTANCES SHALL SAP BE LIABLE TO AP, COMPANY OR ANY OTHER PERSON OR ENTITY
FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL
OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION,
ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
THE FOREGOING LIMITATIONS OF LIABILITY DOES NOT APPLY TO PERSONAL INJURY OR
DEATH CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SAP.
22
8. Assignment.
AP shall not assign or in any manner transfer any obligation assumed or
contemplated by this Agreement without the prior written consent of SAP, the
granting of which shall not be unreasonably withheld; provided, that a change of
control or acquisition of a party shall be considered an assignment for the
purposes of this Section 8. Notwithstanding the foregoing, consent to the
assignment to a competitor of SAP can be withheld for any reason.
9. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors assigns.
(b) The provisions of this Agreement, together with any agreements
incorporated or referred to herein, shall (i) with regard to the subject matter
hereof, supersede all prior agreements and negotiations, and (ii) be modified
only by a written agreement.
(c) In the event that any provision of this Agreement shall, for any
reason, be determined to be invalid, illegal, or unenforceable in any respect,
the parties hereto shall negotiate in good faith and agree to such amendments,
modifications, or supplements of or to this Agreement or such other appropriate
actions as shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties as
reflected herein, and the other provisions of this Agreement shall, as so
amended, modified, or supplemented, or otherwise affected by such action, remain
in full force and effect.
(d) This Agreement shall be governed by and construed under the
Commonwealth of Pennsylvania law without reference to its conflicts of law
principles.
This Agreement shall be in effect beginning on the date first above written and
shall continue in effect until otherwise agreed upon by the parties in writing.
IN WITNESS HEREOF, and intending to be legally bound, the parties have executed
this Agreement on the date and year first written above.
SAP AMERICA, INC. (AP)
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By: By:
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Title: Title:
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Date: Date:
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(Company)
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By:
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Title:
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Date:
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