1.1 "Add-on": any development that adds new and independent functionality but does not modify existing SAP functionality and is developed using SAP application programming interfaces or other SAP code that allows other software products to communicate with or to call up the SAP Software. 1.2 "Affiliate": any legal entity located in the Territory, in which Licensee holds, directly or indirectly, more than fifty percent (50%) of the shares or voting rights. This legal entity will be considered an Affiliate only for the period of existence of said participation. 1.3 “Agreement” means the EULA Acceptance Form, this EULA and the Software Use Terms (SUR). 1.4 "Subsidiary": a company directly or indirectly controlled by a natural or legal person for the sole period of existence of this situation of Control. 1.5 "Business Partner": a legal or natural person who needs access to the Software in connection with Licensee's internal business operations, such as Licensee's customers, distributors and/or suppliers. 1.6 "Confidential Information": with respect to the Licensee: the marketing plans and business plans and/or financial information of the Licensee, and with respect to SAP: a) the Software, Documentation and other SAP Materials bearing, by way of example, the following information about the Software: (i) computer software (object and source code), programming techniques and programming concepts, processing methods, system designs embedded in the Software; (ii) benchmarking results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, ideas, designs, flowcharts, documentation, product specifications, API specifications, techniques and processes relevant to the Software; (b) research and development or otherwise investigative activities performed by SAP; and (c) product offerings, content partners, product pricing, product availability, engineering designs, algorithms, processes, ideas, techniques, formulas, data, patterns, trade secrets, know-how, improvements, inventions (patentable or less), marketing plans, forecasts and strategies. In addition to the foregoing, Confidential Information belonging to SAP or Licensee ("Disclosing Party" means the party disclosing such information) may also include information that the Disclosing Party protects against unauthorized disclosure to others who (i) the Disclosing Party or its representatives designate as confidential at the time of disclosure; or (ii) should reasonably be understood as confidential due to the nature of the information and the circumstances of its disclosure; including without limitation, information regarding or relating to any third party disclosed pursuant to this Agreement. 1.7 "Control": the power to exercise a dominant influence over a legal person, as a result of (i) the direct or indirect holding of more than fifty percent (50%) of the voting rights or similar rights or (ii ) of the right to appoint the management or directors of the legal person pursuant to the articles of association, shareholders' agreements or other contractual obligations. 1.8 "Designated Unit" means any single computing device (such as hard disk or CPU) identified by End User or Partner under or in connection with this Agreement that has been previously approved by SAP or otherwise officially disclosed to the public as suitable for use or interoperation with the Software. 1.9 "Distributor" means the person or entity to whom SAP markets and distributes certain Software and from whom Partner has acquired or will acquire the Software if it has not or does not intend to acquire the Software directly from SAP. 1.10 "Documentation" means the current SAP technical and/or functional documentation provided or made available by SAP to Licensee indirectly through Distributor and/or Partner or directly with the Software. 1.11 “Effective Date” means the effective date indicated as the “Effective Date” in the EULA Acceptance Form. 1.12 "EULA Acceptance Form": the "End User License Agreement (for SAP On Premise indirect sales) acceptance form" between SAP and Licensee. 1.13 "EUMA": the "SAP Provided Support Agreement (for SAP On Premise indirect sales)", which governs in which ways and terms SAP provides support to the End User. 1.14 "Export Regulations" means the laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, authorizations of restrictive measures, sanctions, embargoes and others mandatory legal requirements of all federal, national, international, state and local government authorities concerning the export, re-export or import. 1.15 "Intellectual property rights": patents of all kinds, design rights, utility models or other similar rights on industrial inventions, copyrights, semiconductor topography, trade secrets or privacy rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations relating to any of the foregoing rights in any state, whether based on statute, common law or contract and regardless of whether such rights are already perfected, existing, forthcoming filing, concession or acquisition. 1.16 "Licensee" means the end user identified as "End User" in the EULA Acceptance Form. 1.17 "Modification": (i) a change to the source code or metadata provided; or (ii) any development, which is not a modification of the provided source code or metadata, for the purpose of customizing, expanding or modifying the existing functionality of the Software, including, but not limited to, the creation of new programming interfaces of the application (API) or alternative user interfaces (UI), extension of SAP data structures, or (iii) any other modification of the Software (other than an Addon) that uses or incorporates any SAP Materials. br> 1.18 "Partner": the partner identified as "Partner" in the EULA Acceptance Form. 1.19 "SAP": the SAP Group company identified as "SAP" in the EULA Acceptance Form. 1.20 "Support Provided by SAP" means the support offered directly by SAP to the End User as defined in the terms and conditions in the manner and terms provided by the EUMA. 1.21 "SAP Group": the Parent Company SAP and any of its Subsidiaries. 1.22 "SAP Materials" means any software, program, tool, system, data or other material made available to Licensee directly by SAP or through the Partner on or after the Effective Date, including without limitation the Software and Documentation. 1.23 "Parent SAP": SAP SE, European company (Societas Europaea) with registered office at Dietmar-Hopp-Allee 16 in 69190 Walldorf, Germany and registered in the commercial register of Mannheim under number HRB 350269. 1.24 "Software": (i) each and all software products licensed to Licensee under this Agreement as set forth in the EULA Acceptance Form, as developed by or for the SAP Group and supplied by SAP indirectly through Distributor and/ or Partner or directly to the Licensee; (ii) new releases, updates or versions thereof, made available without obligation under SAP's support agreement or warranty obligations; (iii) all complete or partial copies of any of the foregoing. 1.25 "Schedule to the Software Use Terms" means the Schedule to the Effective Effective Date of the Software Use Terms of the EULA Acceptance Form, located at: www.sap.com/company/legal.< /br> 1.26 "Territory": the territory indicated in the EULA Acceptance Form. 1.27 "Third Party Software": (i) each and all software products licensed to Licensee under this Agreement as set forth in the EULA Acceptance Form, as developed by or for companies other than the SAP Group and provided by SAP indirectly through Distributor and/or Partner or directly to Licensee; (ii) new releases, updates or versions thereof, made available without obligation under SAP's support agreement or warranty obligations; (iii) all complete or partial copies of any of the foregoing. 1.28 "Use/Use": the activation of the processing processes of the Software, loading, execution, access, use of the Software, as well as the display of information resulting from these activities.
2. LICENSED RIGHTS
SAP may audit the use of the SAP Materials (at least annually and in accordance with standard SAP procedures, which may include on-site and/or remote audits) ("audit"). Licensee shall cooperate reasonably in conducting such audits. If the audit reveals that (i) Licensee has failed to pay SAP all due license fees and/or SAP Support and/or (ii) Licensee has Used the Software in excess of the number of licenses purchased, or at the license level specified in the EULA Acceptance Form, Licensee shall pay SAP the amounts due in accordance with the SAP price list and terms and conditions in effect at the time of the audit and shall order quantities or license levels of the overused Software by the Partner and/or SAP by signing an additional EULA Acceptance Form for the number of additional licenses or additional levels. Licensee shall indemnify SAP against reasonable costs incurred in performing the audit if it reveals use of the Software in excess of the number of licenses purchased or the level licensed. However, SAP reserves the right to enforce statutory rights in connection with non-payment of SAP license and Support fees and non-regulation of software used in excess of what is licensed. SAP reserves the right to delegate to a Partner or require a Partner to perform any of the rights listed in this Clause 3.
4. ELECTRONIC DELIVERY
In the case of electronic delivery, SAP makes the download of the Software available over the network at SAP's expense, and Licensee bears the cost of downloading the Software.
5.1. Duration. This Agreement and the licenses granted hereunder become effective on the Effective Date and continue in effect until: (i) 30 days after Licensee notifies SAP in writing of its intention to terminate this Agreement for one any reason; (ii) 30 days after SAP notifies Licensee in writing of a material breach by SAP of any provision of this Agreement (other than a breach by Licensee of its obligations under Clauses 6, 10, or 11, the breach of which will result in immediate termination of the Agreement), provided that Licensee has not remedied it within such 30 day period (iii) immediately if Licensee is declared bankrupt, becomes insolvent or is subject to bankruptcy proceedings. For clarification, the termination of this Agreement will affect all Software licenses covered by this Agreement and its appendices, attachments, addendums and purchase orders and therefore any partial termination of the Agreement by the Licensee is expressly excluded. br> 5.2 Expiration Obligations. Upon termination of the Agreement, Licensee and its Affiliates must immediately cease Use of any SAP Materials and SAP Confidential Information. Within thirty (30) days of termination, Licensee shall permanently destroy or, upon request by SAP, return to SAP all copies of the SAP Materials and SAP Confidential Information in any form, unless legal obligations exist require them to be kept for a longer period, in which case the return or destruction must take place at the end of the aforementioned period. Licensee must certify in writing to SAP that it has fulfilled its obligations under this Clause 5.2. Licensee must also certify in writing to SAP that each of its Affiliates has complied with the foregoing. As a result of the termination of the Agreement, Licensee will not be entitled to any refund from SAP of payments made to SAP. Termination does not release Licensee from its obligation to pay unpaid fees.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Retention of Title. The SAP Materials and SAP Confidential Information, and all title, rights and interests thereto, including the respective Intellectual Property Rights, are the sole and exclusive property of the SAP Group or its licensors, without prejudice to any right, title or interests expressly granted to Licensee pursuant to Clauses 2 and 6.3 of this Agreement. Except for the rights set forth in Clauses 2 and 6.3 of this Agreement, Licensee may not modify or otherwise create derivative works of the Software or other SAP Materials. 6.2 Protection of rights. Licensee may not copy, translate, disassemble, decompile or reverse engineer the Software or other SAP Materials. Licensee may not create or attempt to create source code from the object code of the Software or other SAP Materials. The Licensee is entitled to back-up the data in accordance with established IT practice and to this end, to create the necessary back-up copies of the Software. Backup copies made on mobile disks or other data carriers must be marked as backup copies and bear the same copyright and copyright notice as stamped on the original disks or other data carriers, unless this is technically feasible. Licensee may not modify or remove any SAP copyright or copyright notices. 6.3 Modifications/Add-ons 6.3.1 Licensee shall comply with the SAP registration procedure before making Modifications or Add-ons. All Modifications and all rights associated with them shall be the exclusive property of SAP, SAP Parent Company or their licensors. All Add-ons developed by SAP (independently or jointly with Licensee) and all rights thereto shall be the exclusive property of SAP, SAP Parent Company and their licensors. Licensee agrees to prepare all documents reasonably necessary to grant SAP rights to the above Modifications and Add-ons. All Add-ons developed by or on behalf of Licensee without SAP's participation ("License Add-ons"), and all rights associated therewith, are the exclusive property of Licensee, without prejudice to SAP's rights in and to the SAP Software and Materials; and provided that Licensee does not market, market, distribute, license, sublicense, transfer, or otherwise assign any such Licensee Add-ons. SAP reserves the right to develop its own Modifications or Add-ons for the Software and Licensee agrees to refrain from any conduct that could restrict SAP's sale, assignment, licensing, or use of its Software or related Modifications and Add-ons. 6.3.2 Any Modifications developed by or on behalf of Licensee without the participation of SAP or Licensee's Add-ons may not (and subject to the other limitations set forth herein): result in the circumvention or circumvention of any of the restrictions set forth in this Agreement and/or allow the Licensee access to the Software for which he does not have the relevant licenses for Use; nor unreasonably impair, degrade, or reduce the performance or security of the Software; nor make or disclose any information about the SAP software license terms, the Software, or any other information relating to the SAP Materials. 6.3.3 Licensee agrees, on its own behalf and on behalf of its successors and assigns, not to claim against SAP, its affiliates or their respective resellers, distributors, suppliers, business partners and customers, for any rights relating to to any (i) Licensee's Modifications and Add-Ons or (ii) any other functionality of the SAP Software accessible by such Licensee's Modifications or Add-ons.
7. GUARANTEE OF GOOD OPERATION AND CONFORMITY
7.1 Warranty. SAP warrants that the Software will substantially conform to the description contained in the Documentation for a period of six (6) months following delivery. The warranty does not apply: (i) if the Software is not used in accordance with the Documentation, or (ii) if the non-conformity is caused by a Modification or Add-on (other than a Modification or Add-on developed by an SAP Group company and provided through SAP Support or under warranty), by a Partner, Licensee, any other third party, third party software or database, or any other software not distributed by SAP; or (iii) any unlicensed activities of Licensee. SAP does not warrant that the Software will be uninterrupted or free from minor errors or defects that do not materially affect its operation, or that the applications contained in the Software are designed to meet all of Licensee's business needs. Provided that Licensee notifies SAP in writing of a detailed description of the nonconformance of the Software within the warranty period and SAP confirms the existence of such nonconformance, SAP, at its option, may: a) repair or replace the nonconforming Software or b) refund Licensee the license fees paid by Licensee to the Partner for the nonconforming Software upon return of such nonconforming Software. The foregoing is Licensee's sole and exclusive remedy under this warranty. Licensee's written notification of any nonconformance must be detailed enough for SAP to investigate the alleged nonconformance. Licensee shall provide reasonable assistance to SAP in analyzing and resolving the nonconformance of the Software. 7.2 Warranty Disclaimer. SAP and its licensors disclaim all other representations, warranties, conditions or indemnities expressed or implied with respect to the Software, including, without limitation, all implied warranties of merchantability, quality or fitness for a particular purpose, without prejudice to the which by law cannot be excluded.
8. THIRD PARTY CLAIMS
8.1 Infringement Charged by Licensee and its Defense. SAP will defend (including through settlement agreements or amicable settlements) Licensee against claims brought against Licensee in the Territory that (i) are brought by a third party owner of the intellectual property rights specified below and that (ii) involve that Licensee's Use of the Software in accordance with this Agreement constitutes a direct violation of the licensee's patent, copyright, trademark, or trade secret rights. SAP will pay the damages (or the amount of any settlement SAP enters into) ultimately awarded to Licensee in connection with such claims. SAP's obligation is terminated if the alleged infringement results from (i) Use of the Software in conjunction with any software or service other than the Software; (ii) Use of the Software in conjunction with any apparatus other than a Designated Unit, (iii) failure to timely use an update provided by a SAP Group company if such infringement could have been avoided by using the update, or ( iv) any Use not permitted by this Agreement. SAP shall be relieved of its obligations under this Clause if Licensee fails to promptly notify SAP in writing of its claim; however, Licensee's failure or delay in notifying SAP will not relieve SAP of its obligations under this Section, except to the extent that SAP is injured or injured as a result of Licensee's failure to or delay in notifying SAP. SAP will be granted full control of the defense, including the ability to reach a settlement agreement, provided that this does not include a financial obligation or admission of liability by Licensee. In the event that Licensee declines the indemnity offered by SAP, or otherwise does not allow full control of the defense by SAP's designated attorney, SAP will be released from its obligations under this Clause 8.1. Licensee shall cooperate reasonably with SAP in the defense and shall provide SAP with all relevant information and reasonable assistance as necessary. Licensee may, at Licensee's expense, participate in the proceeding by being represented by an attorney reasonably acceptable to SAP. SAP expressly reserves the right to discontinue such defense if the Software ceases to infringe, or is deemed to have ceased to infringe, the rights of any third party. SAP may settle or reduce the amount of damages from any or potential claims by offering to replace the Software with substantially equivalent and non-infringing programs and supporting documentation. Licensee shall not take any action in response to the infringement or of the Software that may prejudice SAP's rights. 8.2 The limitations of liability and obligations assumed by SAP under this Clause 8 also apply to the benefit of any SAP Group company and its licensors. 8.3 The provisions of this Clause 8 establish the sole, exclusive and entire liability and obligation of SAP and its licensors to Licensee and are Licensee's sole remedy for infringement of any third party's intellectual property rights.
9. LIMITATION OF LIABILITY
9.1 Disclaimer. SAP and its licensors shall have no liability under this Agreement (i) if the Software is not used in accordance with the Software Documentation; (ii) if the defect or damage is caused by Licensee or Partner, a Modification or Add-on (other than a Modification or Add-on made by a SAP Group company and provided through SAP Support or under warranty) or by third-party software; or (iii) if the Software is used in conjunction with any third-party software for which Licensee does not have the necessary use rights; or (iv) for any Licensee activity not permitted by this Agreement. SAP and its licensors will not in any event be liable for damages or losses resulting from an objectively harmful use of the Software and/or a third party software licensed under this agreement. 9.2 Exclusion of Damages; Limitation of Liability. Except as otherwise provided in this clause, and except in cases of (i) damages resulting from (a) unauthorized use or disclosure of confidential information, (b) willful misconduct or gross negligence of one of the parties, or from (ii) SAP's obligations under Clause 8.1, in no event, regardless of the nature of the claim, will SAP, its licensors or Licensee be liable for damages in excess of the license fees paid by Licensee to the Software Partner directly causing the damage or otherwise liable for any amount in consequential or indirect damages, loss of goodwill or business profits, work stoppage, loss of data, computer failure or malfunction, attorneys' fees, and court costs . 9.3 Exclusions and Limitations regarding Third Party Software. Notwithstanding the disclaimers under the Clause 9.2 and with respect to the Third Party Software, in no event and regardless of the nature of any claim, SAP and its licensors will be liable for any charges in excess of the license fees paid for the Third Party Software which directly caused the damage. 9.4 The provisions of this Agreement allocate the risks between SAP and Licensee. The fees payable by Licensee take into account this allocation of risks and the limitations of liability set forth in this Agreement. It is expressly acknowledged and agreed that every single provision of this Agreement which provides for a limitation of liability, an exclusion of warranty, or an exclusion of damages is to be understood as separable and independent of any other provision and as such must be applied.< /br> 9.5 Extension to Group Members. The limitations of liability and obligations assumed by SAP under this Section 9 also apply to the benefit of any SAP Group company and its licensors.
10.1 Use of Confidential Information. It is expressly forbidden to use or reproduce the Confidential Information, in any form, except to the extent necessary for the fulfillment of this Agreement. Reproductions of any Confidential Information of the Disclosing Party remain the property of the Disclosing Party and must bear any inscriptions present in the originals which certify their confidentiality or ownership. With respect to the Disclosing Party's Confidential Information, the party acquiring the Confidential Information (the "Receiving Party"): (a) shall take all Reasonable Steps (as defined below) to keep all Confidential Information strictly confidential; and (b) will refrain from disclosing any Confidential Information of the other Party to other subjects except to those who need to access it in order to exercise the rights and/or fulfill the obligations deriving from this Agreement and provided that they have assumed obligations of confidentiality substantially comparable to those established here. "Reasonable Measures" means all those measures that the Receiving Party adopts to protect its own confidential and proprietary information of a similar nature; such measures cannot however be inferior to a reasonable standard of diligence required according to the circumstances. The Confidential Information of each Party disclosed before the execution of this Agreement is subject to the protections provided for by this Agreement. 10.2 Waivers. The foregoing restrictions on the use and disclosure of Confidential Information do not apply to Confidential Information which: (a) is independently developed by the Receiving Party without reference to the Confidential Information of the disclosing party, or has been lawfully received and without limitation by a third party authorized to provide such Confidential Information, (b) have become public domain without breach of the Contract by the Receiving Party, (c) at the time of their disclosure, are already known to the Receiving Party and free from any constraint, or (d) the Disclosing Party releases, in writing, the other Party from its commitment to keep it confidential. 10.3 Reserved Terms and Conditions: Advertising Obligations. The Licensee is not authorized to disclose the terms and conditions of this Agreement to any third party, except the Partner and the Distributor. Neither Party will use the other Party's name for advertising or similar purposes without the prior written consent of the other, except that SAP Group companies may use Licensee's name in customer directories or, in the manner and terms mutually agreed between the Parties, as part of SAP marketing efforts (including, without limitation, referrals, press releases, site visits, participation in SAPPHIRE). SAP will use reasonable efforts to prevent such activities from unreasonably interfering with Licensee's business. Licensee authorizes SAP to share its data with all other SAP group companies for marketing or business purposes and confirms to SAP that it has also received such authorization from its employees.
Without SAP's prior written consent, Licensee may not assign, novate, delegate, pledge, or otherwise transfer the Agreement or any of its rights or obligations hereunder or any SAP Materials or Confidential Information SAP to another party, voluntarily or by law, including transfers resulting from a business transfer, merger or demerger. SAP may assign, novate, delegate, pledge, or otherwise transfer this Agreement or any of its rights or obligations hereunder (in whole or in part) to any SAP Group company. SAP and any SAP Group company may subordinate to third parties the performance of their respective rights or obligations assumed under this Agreement. SAP will continue to be responsible for these obligations.
12. GENERAL PROVISIONS