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SOFTWARE TESTING AND DEMONSTRATION LICENSE AGREEMENT BETWEEN SAP AMERICA AND HAHT COMMERCE EFFECTIVE AS OF ——————–, 2000 mySAP.com PARTNER – SERVICES AGREEMENT SAP AMERICA, INC. – HAHT COMMERCE, INC. SOFTWARE TESTING AND DEMONSTRATION LICENSE (“LICENSE”)
WHEREAS, SAP America, Inc., a Delaware corporation with offices at 3999 WestChester Pike, Newtown Square, Pennsylvania 19073 (“SAP”) owns rights in theUnited States to certain software for operation and management of businesses; WHEREAS, HAHT Commerce, Inc. (“Partner”), a Delaware corporation with offices at400 Newton Road, Raleigh, NC 27615, desires a license for testing anddemonstration purposes only; and WHEREAS, SAP desires to grant to Partner, and Partner desires to license fromSAP, such software upon the terms and conditions hereinafter set forth; NOWTHEREFORE, SAP and Partner agree as follows: 1. DEFINITIONS. 1.1 “Correction Level” means a change in the Software between Versions (3.1(a)). 1.2 “Designated Site(s)” means the location(s) controlled by and specified in agreed upon Appendices or Exhibits to this Agreement. 1.3 “Designated Unit(s)” means each individual computer located at a DesignatedSite in which the Software and Third-Party Database are installed. 1.4 “Documentation” means SAP’s documentation, in any medium, which is deliveredto Partner under this Agreement, including SAP’s manuals, training materials, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, and complete or partial copies of the foregoing. 1.5 “Extension” means an addition to the Software which does not require a Modification. 1.6 “Modification” means a change to the Software which changes the source code. 1.7 “Non-productive Use” Non-productive Use is the use of the Software for demonstration or training purposes. 1.8 “Productive Use” Productive Use means the use of the Software in the operation of Partner’s business. 1.9 “Program Concepts” means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs or modules included in the Software, including their structure, sequence, and organization . 1.10 “Proprietary Information” means: (i) with respect to SAP, the Software andDocumentation and any complete or partial copies thereof, the Program Concepts, SAP licensors’ Third-Party Database, any other third-party software licensed with or as part of the Software, benchmark results, and any other information identified or reasonably identifiable as confidential and proprietary information of SAP, SAP AG, or their licensors (“SAP Proprietary Information”); and (ii) with respect to Partner, information identified or reasonably identifiable as the confidential and proprietary information of Partner (“Partner Proprietary Information”), excluding any part of the SAP or Partner 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. 1.11 “Software” means (i) all software specified in agreed upon Appendices orExhibits hereto, developed by or for SAP and/or SAP AG and delivered to Partner hereunder; (ii) any Releases, Versions, or Correction Levels and including all improvements, modifications, and extensions of the Software as contemplated by this Agreement; and (iii) any complete or partial copies of any of the foregoing. 1.12 “Territory” means the United States of America. 1.13 “Third-Party Database” means a third-party proprietary database licensedthrough SAP to Partner. 1.14 “Version” means each issuance of each Release of the Software, excludingthird party software, identified by the numeral to the right of the decimal point (3.1). 1.15 “Release” means each issuance of the Software, excluding third partysoftware, identified by the numeral to the left of the decimal point (e.g., 3.0). 2. LICENSE GRANT. 2.1. Scope of License. Subject to the terms and conditions and the accuracy of Partner’s representations hereinafter set forth, SAP grants to Partner anon-exclusive, non-transferable license to the Software, Documentation and Third Party Database specified in Appendices or Exhibits hereto within the Territory solely for non-productive testing, training and demonstration purposes as contemplated by this Agreement. No additional copies of the Software or any part thereof may be made by Partner without the express written consent of SAP. 2.2. Restrictions on Use. Partner agrees to use the Software, Documentation and Third Party Database or other SAP Proprietary Information provided hereunder solely for training and demonstration purposes in furtherance of this Agreement. Partner will not use the Software, Documentation, Third Party Database or other SAP Proprietary Information in connection with running its own business or the business of any firm, person or organization. This license does not permit Partner to: (i) use the Software and Third-Party Database for a service bureau application; or (ii) sublicense, or rent the Software or Third-Party Database. Subject to the provisions of this Section 2.2, Partner shall use the Software exclusively on the Designated Unit(s) identified in Appendices or Exhibits hereto. Except to the extent expressly authoriized herein, third parties an affiliates of Partner are not authorized to use or have access to the Software, Documentation, Third Party Database or other SAP Proprietary Information. 2.3. Transfer of Software. Partner may transfer the Software and Third-PartyDatabase from one Designated Unit to another at no additional license fee, andshall provide written notice to SAP within five business days of suchinstallation. Partner shall be responsible for the cost of any migration tools, Third-Party Database costs, third-party software or additional Software required for the new Designated Unit. The Software and Third-Party Database must be promptly deleted in their entirety from the Designated Unit no longer in use and from each back-up copy for that Designated Unit. 2.4. Audit Right. During normal business hours and at any time during which theSoftware, Documentation, Third-Party Database, and other SAP ProprietaryInformation are being utilized, SAP or its authorized representatives orLicensors shall have the right, upon reasonable advance notice, to audit andinspect Partner’s utilization of such items, in order to verify compliance with the terms of this Amendment. Upon SAP’s reasonable request, Partner shall deliver to SAP a report, as defined by SAP, evidencing Partner’s usage of the Software licensed under the Agreement. 2.5. License for Third-Party Database. The Software requires a third-partydatabase which may be licensed through SAP or directly from a third-partydatabase licensor approved by SAP. In the event Partner obtains a licensedirectly from a third-party database licensor, any restrictions imposed onPartner directly by such third-party database licensor shall apply. SAP makes norepresentations or warranties as to the Third-Party Database or its operation. 3. DELIVERY. 3.1. Delivered Copy. The licensed Software in machine-readable format, and the Documentation, shall be delivered as specified in Appendices or Exhibits hereto (“Delivery”). Partner shall be responsible for installation of the Software. 4. PRICE AND PAYMENT. 4.1. License Fee. In consideration of the license granted hereunder, Partnershall pay to SAP license fees for the Software on such terms as set forth in Appendices or Exhibits hereto (“License Fees.”) Any fees Partner does not pay when due shall accrue interest at the rate of 18% per annum, but not to exceed the maximum amount as allowed by law. Partner also agrees to pay SAP all reasonable costs and expenses of collection, including attorney’s fees. Additional copies may be delivered upon written agreement by Partner and SAP and will be provided at SAP’s then current prices in effect. 4.2. Additional Fees. Any fees and charges set forth in this Agreement, in any Appendices or Exhibits to this Agreement, and in SAP’s current List of Prices do not include federal, state, or local sales, use, property, excise, service or similar taxes (“Taxes”) now or hereafter levied, all of which shall be at Partner `s account. With respect to state/local sales tax, direct pay permits or a valid tax-exempt certificates must be provided to SAP prior to the execution of this Agreement. If SAP is required to pay Taxes (excepting taxes on SAP’s income), SAP shall invoice Partner for such Taxes. Partner hereby agrees to indemnify SAP for and hold it harmless from any Taxes and related costs, interest and penalties paid or payable by SAP. 5. TERM AND TERMINATION. 5.1. Term of License. This Agreement shall have an initial term expiring December 31, 2000 and shall thereafter be automatically renewed for successive one year terms, unless at least six weeks prior to the expiration of the current renewal term, either party gives written notice of its intention not to renew this Agreement or unless this Agreement is otherwise terminated upon termination of the Implementation Partner Agreement between the parties dated as of even date hereof; provided, however, that in the event of a material breach of any provision of this Agreement by which has not been cured within thirty (30) days of written notice of such breach, (other than Partner’s breach of its obligations under Sections 6 or 10, which breach shall result in immediate termination), including more than thirty days delinquency in Partner’s payment of any money due hereunder, unless Partner has cured such breach during such thirty day period; or immediately in the event Partner files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors. 5.2. Effect of Termination. Upon termination of this Agreement:
(i) the provisions of Sections 2.3, 4, 6, 8.3, 9, 11.5, 11.6 and 11.7 shall survive the termination; (ii) Partner’s rights under Section 2 (License Grant) shall immediately cease; and (iii) Partner shall perform its obligations under Section 5.3.
In the event of any termination hereunder, Partner shall not be entitled to toany refund of any payments made by Partner. 5.3 Duties Upon Termination. Upon any termination hereunder, Partner shall immediately cease use of all SAP Proprietary Information and shall irretrievably delete and/or remove such items from all computer hardware and storage media. Within thirty days after any termination, Partner shall deliver to SAP at Partner’s expense (adequately packaged and insured for safe delivery) or destroy all copies of the SAP Proprietary Information in every form. Partner agrees an officer of Partner’s organization shall certify in writing to SAP that it has performed the foregoing. Within thirty days after any termination, SAP shall return the Partner Proprietary Information to Partner. 6. PROPRIETARY RIGHTS. 6.1 SAP Proprietary Information. (a) Partner acknowledges that ownership of and title in and to allintellectual property rights, including patent, trademark, service mark,copyright, and trade secret rights, in the SAP Proprietary Information are andshall remain in SAP and its licensors. Partner acquires only the right to usethe SAP Proprietary Information and does not acquire any ownership rights ortitle in or to the SAP Proprietary Information and that of SAP’s licensors. (b) Partner shall not copy, translate, disassemble, or decompile, norcreate or attempt to create, by reverse engineering or otherwise, the sourcecode from the object code of the Software. In the event source code is providedto Partner, SAP, in its sole discretion, reserves the right to delete, or torequire the deletion of, such source code and all copies thereof in Partner’spossession or control whenever a future Release, Version, or Correction Levelprovides for like functionality in an object code format. (c) Subject to Section 6.3, all Modifications and Extensions to theSoftware and Documentation shall be considered part of the Software andDocumentation for purposes of this Section 6. 6.2. Protection of Proprietary Information. In order to protect the rights of SAP and its licensors and Partner in their respective Proprietary Information, SAP and Partner agree 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. 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 its bona fide employees, officers, directors, or consultants 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 third party, including identifiable Consultants , it will obtain from that third party a written acknowledgment that such third party will be bound by the same terms as specified in this Section 6 with respect to the Proprietary Information and in the case of SAP Proprietary Information, naming SAP as a third party beneficiary. 6.3. Modifications and Extensions. Partner may not modify or write extensionsto the Software without the prior written authorization of SAP. Partnerexpressly agrees that any Modifications and Extensions of the Software developed by SAP, Partner, their employees, agents or consultants shall become part of the Software and will be the property of SAP AG and that Partner will not grant, either expressly or by implication, any rights, title, interest or licenses to the Modifications or Extensions to any third party. Partner shall provide complete source code for all Modifications and Extensions to SAP. Partner agrees that it will not modify any provided Third Party Software hereunder unless expressly authorized in writing by such Third Party Vendor. 7. SUPPORT SERVICES. 7.1. At Partner’s request, and on terms to be agreed upon separately, SAP mayagree to provide pre-installation support, installation support training and consulting services for the Software. 8. PERFORMANCE WARRANTY. 8.1 Warranty Period;Warranty. SAP warrants that the Software will substantiallyconform to the functional specifications contained in the Documentation for sixmonths following Delivery (the “Warranty Period”) when used without material alteration on the Designated Unit(s). SAP’s warranty is subject to Partner providing SAP necessary access, including remote access, to the Software. Partner shall provide SAP with sufficient test time and support on Partner’s Designated Unit(s) to correct the defect. 8.2 Scope of Warranty. (a) The warranty set forth in this Section 8.2 shall not apply: (i) if theSoftware is not used in accordance with the Documentation; or (ii) to anyExtensions or Modifications; or (iii) if the defect is caused by: a Modificationor Extension, Partner, or a third-party software malfunction. (b) SAP does not warrant that the Software will operate uninterrupted orthat it will be free from minor defects or errors which do not materially affectsuch performance or that the applications contained in the Software are designedto meet all of Partner’s business requirements. 8.3. Disclaimer. SAP AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES EXPRESS ORIMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. 9. LIMITATION OF LIABILITY. 9.1 Partner’s Remedies. Partner’s sole and exclusive remedies for any damagesor loss in any way connected with the Software or services furnished by SAP andits licensors, whether due to SAP’s negligence or breach of any other duty, shall be, at SAP’s option: (i) to bring the performance of the Software into substantial compliance with the functional specifications; (ii) re-performance of services; or (iii) return of an appropriate portion of any payment made by Partner with respect to the applicable portion of the Software or services. 9.2 SAP Not Responsible. SAP will not be responsible under this Agreement for:(i) any alteration of the Software to fit the particular requirements of Partner; or (ii) the correction of any defects resulting from Modifications or Extensions or as a result of misuse of the Software by Partner; or (iii) preparation or conversion of data into the form required for use with the Software or (iv) ensuring the security of Partner’s networked installation of the Software. THE SOFTWARE IS NOT SPECIFICALLY DEVELOPED OR LICENSED HEREUNDER FOR USE IN ANY DIRECT AND ACTIVE OPERATIONS OF ANY EQUIPMENT IN ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATIONS, OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. THE PARTIES HERETO AGREE THAT USE OF THE SOFTWARE AND THIRD-PARTY SOFTWARE FOR FINANCIAL APPLICATION PURPOSES OR SUCH OTHER ADMINISTRATIVE PURPOSES SHALL NOT BE DEEMED INHERENTLY DANGEROUS APPLICATIONS IF SUCH USE DOES NOT AFFECT THE OPERATIONS OR MAINTENANCE OF SUCH EQUIPMENT. SAP AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE LICENSEDHEREUNDER. 9.3 LIMITATION OF LIABILITY. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING,UNDER NO CIRCUMSTANCES SHALL SAP AND ITS LICENSORS BE LIABLE TO PARTNER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES OR BE LIABLE IN ANY AMOUNT 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 provisions of the Agreement allocate risks between SAP and PARTNER. The License Fees reflect the allocation of risk and the limitations of liability herein. 9.4 Severability of Actions. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACHAND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OFLIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. 10. NON-ASSIGNMENT. 10.1. Partner may not assign, delegate, sublicense, pledge, or otherwisetransfer this Agreement, or any of its rights or obligations under thisAgreement, to any party. 10.2. SAP may assign this Agreement to SAP AG or to an entity designated by SAPAG. 11. GENERAL PROVISIONS. 11.1 Rights to Injunctive Relief. Partner acknowledges that remedies at law maybe inadequate to provide SAP with full compensation in the event of any material breach Sections 2, 6, 10 or 11.5 of this Agreement by Partner, and that SAP shall therefore be entitled to injunctive relief in the event of any such material breach. 11.2 Severability. It is the intent of the parties that in case any one or moreof the provisions contained in this Agreement shall be held to be invalid or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein. 11.3. No Waiver. If either party should waive any breach of any provisions ofthis Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provisions hereof. 11.4 Counterparts. This Agreement may be signed in two counterparts, each ofwhich shall be deemed an original and which shall together constitute oneAgreement. 11.5 Export Control Notice. Regardless of any disclosure made by Partner to SAPof an ultimate destination of the Software, Documentation, Third-Party Database, and other provided SAP Proprietary Information, Partner acknowledges that SAP’s Software, Documentation, Proprietary Information,, and the Third-Party Databas are being released or transferred to Partner in the United States and are therefore subject to the U.S. export control laws. Partner acknowledges its exclusive obligation to ensure that its exports from the United States are in compliance with the U.S. export control laws. Partner shall also be responsible for complying with all applicable governmental regulations of any foreign countries with respect to the use of the Proprietary Information by its affiliates outside of the United States. Partner agrees that it will not submit the Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of SAP. Partner shall defend, indemnify, and hold SAP and SAP AG and its licensors harmless from and against any and all claims, judgments, awards, and costs (including reasonableattorneys’ fees) arising out of Partner’s noncompliance with applicable U.S. or foreign law with respect to the use or transfer of the Proprietary Information outside the United States by Partner. 11.6 Confidential Terms and Conditions. Partner shall not disclose the termsand conditions of this Agreement and the pricing contained therein to anythird-party. Pursuant to Section 9.(a) of the National Implementation Partner Agreement, Partner hereby consents to SAP’s inclusion of Partner’s name inPartner listings which may be published as part of SAP’s marketing efforts. 11.7 Governing Law. This Agreement shall be governed by and construed under Commonwealth of Pennsylvania law without reference to its conflicts of lawprinciples. In the event of any conflicts between foreign law, rules, andregulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. 11.8 Notices. All notices or reports which are required or may be givenpursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of SAP and Partner at the addresses first set forth above. 11.9 Force Majeure. Any delay or nonperformance of any provision of thisAgreement (other than for the payment of amounts due hereunder) caused byconditions beyond the reasonable control of the performing party shall notconstitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance. 11.10 Entire Agreement. This Agreement and each Appendix or Exhibit heretoconstitute the complete and exclusive statement of the agreement between SAP and Partner with regard to the subject matter herein, and all previous representations are merged in and supersed by this this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement and each Appendix or Exhibit hereto shall prevail over any additional, conflicting, or inconsistent terms and conditions appearing on any purchase order submitted by Partner. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto agreeto the foregoing Agreement as of the date first above written. SAP America, Inc. (Partner) By: /s/ Jesse Judd (Jesse Judd) ———————————— Title: VP Alliance Management ———————————— HAHT Commerce, Inc. (SAP) By: /s/ Rowland Archer ——————————— Title: President & CEO ———————————
Exhibit 1 effective August 6, 2000 (“Exhibit”) to SAP America, Inc. (“SAP”) SOFTWARE TESTING AND DEMONSTRATION LICENSE effective August 6, 2000 (“Agreement”) with HAHT Commerce, Inc. (“Partner”) [TEXT OF EXHIBIT 1 OMITTED]
Schedule 1 to Exhibit 1 effective August 6, 2000 Software and User Allocation [TEXT OF SCHEDULE 1 OMITTED]

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