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Exhibit 10.33
R/3 NATIONAL IMPLEMENTATION PARTNER AGREEMENT
SAP AMERICA, INC. - CONLEY, CANITANO & ASSOC., INC.
This R/3 National Implementation Partner Agreement (the "Agreement"), made this
2nd day of April, 1996, is by and between Conley, Canitano & Assoc., Inc.
("CCAi"), a Ohio corporation with offices at Signature Square, Suite 390, 25201
Chagrin Boulevard, Beachwood, Ohio 44122, and SAP America, Inc., ("SAP"), a
Delaware corporation with its principal place of business at 701 Lee Road, Suite
200. Wayne, Pennsylvania 19087.
RECITALS
A. WHEREAS CCAi and SAP, desiring to work together, in connection with the SAP
RI3 National Implementation Partner Program (as defined below), with the goal of
furthering the implementation of SAP's R/3 Software System;
B. WHEREAS SAP desires to enhance its capabilities to market and support SAP
Products through the use of CCAi's services; and
C. WHEREAS CCAi and SAP desire to formalize their relationship by entering into
this Agreement to undertake cooperative efforts for SAP R/3 Products within the
SAP CCAi Program.
NOW, THEREFORE, in reliance upon the foregoing recitals, intending to
be legally bound, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, CCAi and SAP agree as follows:
1. DEFINITIONS.
As used in this Agreement:
(a) The SAP- CCAi R/3 National Implementation Partner Program (the "R/3
NIP Program") means the business relationship set forth in this Agreement and
Appendix A to this Agreement.
(b) SOFTWARE. Software shall mean all SAP R/3 software, in whole or in
part, licensed by SAP AG or SAP America, Inc. in any release, version or
correction level and including all improvements, modifications, and extensions
thereto; whether in human or machine readable form.
(c) DOCUMENTATION. Documentation shall mean all human and machine
readable materials and copies of SAP manuals, program listings, flow charts,
logic diagrams, input and output forms, data models, specifications, and
instructions relating to the Software made available to CCAi under this
Agreement, or, generally, to SAP end-user licensees.
(d) R/3 PRODUCTS. R/3 Products shall mean the Software, Documentation
and related materials.
(e) "PROPRIETARY" INFORMATION" means; (i) with respect to SAP, the
Software and Documentation and any complete or partial copies thereof, the
Program Concepts, SAP licensors' Third-Party Database, any other third-party
software licensed with or as part of the Software, benchmark results, and any
other information identified or reasonably identifiable as confidential and
proprietary information of SAP, SAP AG, or their licensors ("SAP PROPRIETARY"
INFORMATION"); and (ii) with respect to CCAi, information identified or
reasonably
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identifiable as the confidential and proprietary information of CCAi ("CCAi
PROPRIETARY INFORMATION"); provided that, any part of the SAP or CCAi
Proprietary Information which: (a) is or becomes publicly available through no
act or failure of the other party; or (b) was or is rightfully acquired by the
other party from a source other than the disclosing party prior to receipt from
the disclosing party; or (c) becomes independently available to the other party
as a matter of right, shall be excluded.
(f) TERRITORY. Territory shall mean the United States of America.
2. AUTHORIZATION AND COMMITMENT OF RESOURCES.
(a) SAP hereby authorizes CCM to offer services as related to R/3
Products to potential users in the Territory under the terms of this Agreement
and any Appendices hereto. This authorization does not include maintenance of
the R/3 Products, physical installation of the R/3 Products, and training. This
authorization is non-exclusive and non-transferable.
(b) SAP in its sole discretion shall have the right to limit the
Territory, the R/3 Products, and the type of customers to be covered by this
Agreement, as SAP deems advisable in its sole discretion following reasonable
notice and consultation with CCAi. SAP may authorize other parties to offer
services as related to the R/3 Products in the Territory as it deems advisable
in its sole discretion.
(c) Services to be provided by either party to its clients and
customers are to be contracted for separately by each party, independently of
each other, unless otherwise expressly agreed upon in writing between SAP and
CCAi for that specific engagement. Each party shall be solely liable to its
customers and clients for its own services.
3. SERVICES AND RESPONSIBILITIES OF SAP.
(a) SAP shall provide to CCAi the Software under the terms of the
Appendix A. The Software shall only be used internally by CCAi solely for (i)
training of CCAi's personnel who are to work under this Agreement and (ii) for
demonstration of the Software to potential prospects upon the prior written
consent of SAP. The Software copy provided hereunder may not be used in the
operation of the business of CCAi or of any other entity or person.
(b) Should CCAi desire to license all or any part of the Software for
use in the operation of its own business, SAP will license it to CCAi under the
terms of SAP's standard end-user license agreement and at SAP's standard license
fees then in effect.
(c) With regard to training for the Software, SAP shall:
(i) invite CCAi, on a space available basis, at negotiated rates, to
SAP regularly scheduled alliance partner training. CCAi shall be responsible for
all related travel and living expenses;
(ii) provide access, on a space available basis, to CCAi for its
personnel participating in the R/3 NIP Program to customer training courses
generally offered by SAP, such training courses to be available at SAP's current
prices and terms;
(iii) provide marketing-oriented training courses to CCAi on a
cost-sharing basis to be agreed upon between the parties; and
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(d) SAP shall otherwise inform and instruct CCAi as to R/3 Products and
provide guidance, as SAP deems necessary in its sole judgment, for CCAi to carry
out its responsibilities under this Agreement.
4. SERVICES AND RESPONSIBILITIES OF CCAi.
CCAi agrees that it shall:
(a) acquire as soon as possible and maintain a comprehensive and
fundamental knowledge of the R/3 Products and ensure that its employees are
technically qualified and sufficiently trained in SAP courses, including ongoing
training at SAP, and internally, to provide appropriate advice on the use of the
R/3 Products to clients and prospective users of the Software;
(b) use its best efforts to promote internally the R/3 Products and to
offer services as related to the R/3 Products throughout the Territory and
ensure that its employees who perform any services hereunder shall have the
proper skill, training and background to enable them to demonstrate the R/3
Products in a competent and professional manner, it being understood that CCAi
will have no liability to SAP in the event that it fails to successfully promote
R/3 Products and related services except as committed to in this Agreement;
(c) use its best efforts to meet the goals relative to the R/3 NIP
Program set out in CCAi's annual business plan, which is attached hereto as
Appendix B, and to update such business plan quarterly;
(d) ensure that it has the necessary number of qualified personnel
available according to CCAi's annual business plan attached as Appendix B;
(e) continually improve its training of all personnel as offered in
Section 3. who are or will be acting under this Agreement;
(f) use its best efforts to make the R/3 Products known to its
customers and potential customers; make every effort to see that the R/3
Products it suggests to each potential customer meet that entity's application
requirements; present the R/3 Products using only the product names given by
SAP; provide potential customers such marketing materials and nonconfidential
information necessary for evaluating the R/3 Products being considered (except
as limited by Section 10.(b) below); and, make no warranties, assurances or
statements concerning R/3 Product features that are misleading or materially
divergent from the descriptive literature supplied by SAP;
(g) not engage in any business activity, either directly or indirectly,
in any manner or capacity, in its own behalf or in behalf of any other person,
firm, corporation or organization, nor accept or continue any obligations which
may interfere with or impair its ability to perform any of its duties or
obligations under this Agreement;
(h) to the extent it conducts end-user training within its other
consultation activities, not offer or conduct end user training which competes
with official SAP courses offered by SAP or SAP AG or any other SAP-related
entity without prior written authorization from SAP;
(i) upon invitation by SAP to participate in SAP sponsored marketing
events by presenting speeches, providing information to potential prospects
(subject to Section 10.(b) below), and assisting, where requested, in the
organization and implementation of the events;
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(j) expressly inform its customers that modifications and extensions to
the Software may impair or terminate the maintenance or support services
provided by SAP and may nullify the warranty;
(k) undertake to provide customers with release and version management
and migration support as related to the Software throughout the period of
productive installation of the Software; and
(l) dedicate a coordinator with an adequate support structure to act as
the central focal point to coordinate activities with SAP and designate a
contact person within the support group to be available to SAP who is authorized
to act on behalf of CCAi within the scope of this Agreement.
5. SERVICES AND RESPONSIBILITIES OF THE PARTIES.
To the extent reasonable under the circumstances, the parties shall
undertake the following cooperative activities with respect to identifying and
bringing to each other opportunities to promote the R/3 Products:
(a) Regularly inform each other about general market developments and
factors relating to the R/3 Products in the marketplace and current projects and
customer implementations in which CCAi is involved; this information shall be
designated and treated as Proprietary Information under Section 10. of this
Agreement;
(b) Furnish each other with appropriate information for support and
planning purposes; provided, however, that each party reserves the right, in its
sole discretion, to determine the content and availability of such information;
(c) Inform appropriate personnel in their respective organizations of
the existence of this Agreement;
(d) Subject to confidentiality constraints, endeavor to keep each other
appraised about new products and services;
(e) Exchange such other information and conduct such other activities
as the parties agree will carry out the intent of this Agreement.
6. GENERAL REPRESENTATIONS AND WARRANTIES.
Each party hereby represents and warrants to the other that:
(a) it has the right and power to enter into this Agreement;
(b) entering into this Agreement does not violate the terms and
conditions of any other agreement providing for cooperative marketing of
products of another entity, or any other legal obligations;
(c) the information which it may disclose to the other party, and the
process of disclosure and use of such information in accordance with the
provisions of this Agreement, will not violate any trade secret right,
trademark, issued United States patent, copyright or other proprietary right of
any third party;
(d) it holds good title or right, free and clear of all liens and
encumbrances, to the products and services which it is providing under this
Agreement;
(e) the products and services being provided under this Agreement do
not infringe any United States copyright, trademark, issued United States
patent, trade secret or other proprietary right of any third party; and 4
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(f) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY
MAKES ANY OTHER WARRANTY TO THE OTHER PARTY, EITHER EXPRESS, IMPLIED OR
STATUTORY, OR ARISING BY COURSE OF CONDUCT OR PERFORMANCE, CUSTOM OR USAGE IN
THE TRADE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. TERM AND TERMINATION.
(a) This Agreement shall have an initial term expiring on December 3 1,
1996, with an automatic renewal for one (1) additional year uniess, at least six
(6) weeks prior to the renewal date, either party gives written notice of its
intention not to renew this Agreement.
(b) At least four (4) months prior to any scheduled expiration date,
SAP will decide whether to continue or terminate the Agreement applying the
following criteria:
i. Customer satisfaction with the projects conducted by
CCAi, with special regard to the length and cost of
the project, the project objectives met by CCAi, and
the achievements and professionalism of CCAi
employees;
ii. Number and scope of R/3 projects executed;
iii. Thoroughness of employee training;
iv. Accomplishment of goals set herein and in the annual
business plans; and
v. Level of effective communication with SAP.
The procedures for such audits and the weights to be assigned each
criterion will be provided in writing by SAP to CCAi prior to the first such
audit.
On the basis of this evaluation and subsequent consultations with CCAi,
CCAi agrees that SAP, in its sole discretion, may choose to terminate this
Agreement six (6) weeks prior to the next scheduled expiration date.
(c) Notwithstanding the above, either party may terminate this
Agreement:
(i) In accordance with the provisions of Section 7.(a) and (b) at
the end of a term;
(ii) Upon a determination by SAP that CCAi is offering potential
customers of R/3 Products other products that are in competition with the R/3
Products; CCAi expressly waives any claim to damages arising from termination on
this ground;
(iii) Upon thirty (30) days prior written notice in the event of
material breach of a material provision of this Agreement by the other party,
except that the party in breach shall have the right, during that 30-day period,
to cure the claimed breach or default; or
(iv) Immediately upon prior written notice if there is: (a) a
consolidation, merger or reorganization of the other party with or into another
corporation or entity; (b) creation of a new majority
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interest in, or change in majority ownership of, the other party; (c) a sale of
all or substantially all of the assets of the other party; or (d) a breach of
the confidentiality provisions as specified in Section 10. below.
(d) Upon any termination of this Agreement:
(i) each party shall, within ten (10) business days after
termination is effective, return to the other party or dispose of as mutually
agreed all advertising materials and other properties, including all Proprietary
Information, furnished to it by the other party pursuant to this Agreement and
so certify in writing;
(ii) within ten (10) business days after termination is effective,
CCAi shall promptly return R/3 Products and related materials and all copies
thereof to SAP, or as the case may be, delete all R/3 Products and Proprietary
Information from CCAi's hardware, including binary or other resulting files (if
any), and erase all R/3 Products and Proprietary Information from any storage
media before discarding such, and so certify in writing;
(iii) CCAi shall not hold itself out as a participant in the R/3 NIP
Program; and
(iv) both parties shall cease acting in a manner that would suggest
any continuing relationship between the parties regarding SAP's Software, and
shall cease all display and advertising contemplated under this Agreement.
(e) Termination of this Agreement shall not impact upon any active
engagements in process prior to such termination.
(f) The following provisions of this Agreement shall in all events
survive its termination: Section 6. (General Representations and Warranties); 7.
(Provisions Applicable to Termination); 8. (Relationship of Parties); 10.
(Confidentiality); and 11. (General Provisions).
(g) Termination of this Agreement shall result in termination of
Appendix A, R/3 Software Training and Demonstration License.
8. RELATIONSHIP OF PARTIES.
(a) CCAi and SAP are independent contractors acting for their own
account, and neither party or its employees are authorized to make any
representation otherwise or any commitment on the other party's behalf unless
previously authorized by such party in writing. Neither party is responsible to
any end user for the quality of services or products provided by the other
party. Each party is solely responsible for establishing the prices for its own
products.
(b) Neither party is a distributor or agent for the products or
services of the other. Each party's products and services shall be available to
a prospective client only through separate agreement between that party and the
client. Each party shall independently develop and price its respective products
and services offered between such party and a client.
(c) It is understood and agreed upon by the parties hereto, that
during the term of this Agreement, the use of the terms "joint venturer,"
"co-venturer," "partner," "marketing partner," "partnership" or similar terms to
be used to describe the relationship between the parties under this Agreement
refer to the spirit of cooperation between CCAi and SAP, and do not describe, or
expressly or by implication create, a legal partnership or joint venture, or any
responsibility by one party for the actions of the other.
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9. INTELLECTUAL PROPERTY RIGHTS.
(a) The name "R/3 NTP Program" shall be used by the parties only
jointly and pursuant to the terms of this Agreement; and upon any termination of
this Agreement, neither SAP nor CCAi may use the name in conjunction with the
parties' respective corporate names; however, SAP shall have the right to use
the name with any other parties who choose to participate in the SAP R/3 NIP
Programs.
(b) Nothing in this Agreement grants to either party the right to use
or display any other names, trademarks, trade names, logos or service marks of
the other party, except to identify the products and associated services and
deliverables of the other party to the extent obligations are undertaken
pursuant to this Agreement. Except in the case of correspondence and proposals
issued in the ordinary course of business, each party agrees to submit to the
other party for written prepublication approval, any materials which may use or
display any name, trademark, trade name, logo or service mark of the other
party. Notwithstanding the foregoing, nothing contained in this Agreement shall
affect either party's rights and obligations to use any trademarks, service
marks or proprietary words or symbols of the other party to properly identify
the goods or services of such other party to the extent otherwise permitted by
applicable law or by written agreement between the parties.
(c) CCAi herein acknowledges that title to all intellectual property
rights, including patent, copyright, trademark, and trade secret rights in R/3
Products, including any modifications, enhancements, versions, releases, or
correction levels thereto, program concepts including literal or nonliteral
structure, sequence and organization, training materials, literature, and other
SAP related materials shall remain exclusively with SAP AG, Walldort, Germany,
or SAP as the case may be, and that by virtue of this Agreement, no such rights
have been transferred, licensed, granted, assigned or acquired by CCAi from SAP
AG or SAP.
10. CONFIDENTIALITY.
(a) Each party acknowledges that, during the term of this Agreement, it
will receive Proprietary Information from the other party. Neither party shall
disclose, provide or otherwise make available to any third party (including any
prospective client) any Proprietary Information of the other party and shall
utilize such Proprietary Information on an internal organization need-to-know
basis only to the extent necessary to effect the provisions and purposes of, and
as expressly contemplated under the terms of, this Agreement and for no other
purpose.
(b) Each party agrees that it will protect the Proprietary Information
of the other party through the exercise of no less protection and care than it
customarily uses in safeguarding its own confidential and proprietary
information which it desires to retain in confidence, but always at least a
reasonable degree of care. Disclosure of the other party's Proprietary
Information to employees shall only be made on a need-to-know basis. Further,
each party shall take reasonable steps to advise their employees of the
confidential nature of Proprietary Information, to ensure by agreement or
otherwise that such employees are prohibited from copying, revealing or using
such Proprietary Information except to the extent required to carry out the
parties' obligations under this Agreement, and to require that Proprietary
Information be kept in a secure location. Each party will promptly notify the
other if it believes that Proprietary Information has lost its status as such.
(c) The foregoing shall not prohibit or limit a party's use of
information, including but not limited to ideas, concepts, know how, techniques
and methodologies, which: (i) is or become publicly available through no act of
failure to act of the receiving party; (ii) rightfully obtained by the receiving
party without restriction; (iii) is released by the receiving party in response
to lawful legal process and with prior notice to the other party; (iv) is
rightfully already known to or is independently developed by the receiving party
prior to disclosure.
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(d) Notwithstanding the foregoing, each party hereto understands that
they may become familiar with each other's services and that CCAi may become
familiar with SAP's R/3 Products, specifically its proprietary software.
Accordingly, CCAi agrees, with respect to the R/3 Products (including all
program concepts therein) SAP's training materials, literature and other SAP
related materials, that as the case may be, CCAi shall not copy, translate,
disassemble or decompile, nor create or attempt to create by reverse engineering
or otherwise the source code from the object code, or to use such items to
create derivative works, unless so authorized in advance, in writing, by SAP.
All updates, replacements, revisions, enhancements, additions, or conversions to
such SAP items specified above shall be subject to the provisions as stated
herein.
11. GENERAL PROVISIONS
(a) NON-SOLICITATION. During the term of this Agreement and for one (1)
year after its termination, SAP and CCAi agree that neither shall directly or
indirectly solicit for employment any staff of the other party who have been
directly and substantively involved in performance under this Agreement.
(b) NON-EXCLUSIVITY. Nothing in this Agreement shall limit or restrict
either party from entering into or continuing any agreement or other arrangement
with any other party, whether similar to this Agreement in nature or scope.
Moreover, each party shall remain free to provide products and services to any
client or prospective client so long as the terms of this Agreement are not
violated.
(c) NOTICES. All notices required to be given under this Agreement
shall be sent by certified mail to:
CCA
25201 Chagrin Blvd.
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Beachwood, OH 44112
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Attention: Kenneth L Conley
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Partner
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and to
SAP America, Inc
Attn: Contracts Department
701 Lee Road, Suite 200
Wayne, PA 19087
(d) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to its choice of law rules. To the extent that the parties are permitted under
this Agreement to seek judicial remedies, each party hereby consents to the
jurisdiction of the federal and state courts within the Commonwealth of
Pennsylvania to resolve any and all such matters.
(e) MERGER. This Agreement and any Appendices hereto constitute the
entire agreement between the parties with respect to the matters set forth
herein. All prior agreements, oral or otherwise, between the parties and
relating to the subject matter contained herein, are hereby superseded,
provided, however, that in the event CCAi executed an Alliance Agreement and
related License and Maintenance Agreement for SAP's R/2 Software Systems, such
agreement shall continue pursuant to its terms.
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(f) AMENDMENTS. This Agreement may not be modified except by a writing
signed by both parties.
(g) SEVERABILITY. If any of the provisions of this Agreement are held
invalid, such provisions shall be deemed severed and the remaining provisions
shall remain in full force and effect.
(h) NON-ASSIGNMENT. This Agreement may not be assigned or transferred,
nor may rights or obligations be delegated, without the prior written agreement
of the parties; notwithstanding the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties of this Agreement, as well as their
respective permitted successors and assigns.
(i) WAIVER. Failure of any party to enforce, in any one or more
instances, any of the terms or conditions of this Agreement shall not be
construed as a waiver of the future performance of any such terms or conditions.
(j) LIMITATION OF LIABILITY.
(i) SAP AND ITS LICENSORS SHALL NOT BE LIABLE TO CCAI OR THIRD
PARTIES FOR ANY LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF DATA OR COMPUTER
MALFUNCTION, OR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, EVEN IF SAP HAS BEEN APPRISED OF THE POSSIBILITY THEREOF; OR
(ii) in no event shall the liability of SAP under this Agreement,
for any reason whatsoever, whether in contract, tort or statute (including,
without limitation, negligence), or otherwise, exceed $1,000,000.00; provided,
however, that this limitation shall not apply to claims for personal injury
caused by SAP's gross negligence or willful misconduct.
(k) NO ENDORSEMENT. Execution of this Agreement does not, and shall not
be construed to be, an endorsement by either party of the products or services
of the other party.
(l) PRESS RELEASES AND PUBLICITY. Any news release, public
announcement, advertisement, or publicity proposed to be released by either
party concerning the R/3 NIP Program or any matters arising under this Agreement
shall be subject to the approval of the designated representatives of both
parties.
(m) DISPUTE RESOLUTION PROCEDURES.
(i) Any dispute, disagreement, claim or controversy between the
parties arising under or relating to this Agreement or the parties' performance
thereunder (the "Disputed Matter") which cannot be resolved by consultations
between the senior executives of CCAI and SAP shall be resolved by binding
arbitration, according to the then prevailing Commercial Arbitration Rules of
the American Arbitration Association, before a panel of three arbitrators. Each
party will select one arbitrator, and the third arbitrator will be selected by
the party-selected arbitrators. Any such arbitration shall be held in the City
of Philadelphia, Pennsylvania. The parties will share the cost of the
arbitration equally, subject to any final apportionment by the arbitrators. The
arbitrators will apply Pennsylvania law, without reference to its choice of law
rules, in resolving the Disputed Matter. The decision of the arbitrators will be
final and conclusive on the parties, and each party consents that judgment upon
an award rendered by the arbitrators may be entered in any court of competent
jurisdiction.
(ii) Neither party shall institute any action or proceeding against
the other in any court concerning any Disputed Matter that is or could be the
subject of a claim or proceeding under this Section;
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provided, however, that if a party believes in good faith that a temporary or
preliminary injunction is necessary to preserve the status quo or otherwise to
avoid irreparable harm to such party, such as in the event of a breach of
Section 9. or Section 10., such party shall not be precluded by this Section
from seeking such injunctive relief from a court of competent jurisdiction.
(iii) Pending the resolution of a Disputed Matter, to the extent
feasible, both parties shall continue their performance under this Agreement.
IN WITNESS WHEREOF and intending to be legally bound, the
parties have caused this Agreement to
be signed by their authorized representatives as of the date shown
above.
Conley, Canitano & Assoc, Inc SAP America, Inc
(CCAi) (SAP)
By: /s/ Kenneth L. Conley By: /s/ Allen R. Brault
------------------------------ ---------------------------------
Printed Printed
Name: Kenneth L. Conley Name: Allen R. Brault
---------------------------- -------------------------------
Title: Partner Title: Director
--------------------------- ------------------------------
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Appendix 1 to
R/3 NATIONAL IMPLEMENTATION PARTNER AGREEMENT ("Agreement")
SAP AMERICA, INC. ("SAP") - CONLEY, CANITANO & ASSOC., INC. ("CCAi")
EFFECTIVE APRIL 2, 1996
ISSUED APRIL 2,1996
This Appendix is hereby annexed to and made a part of the Agreement specified
above. In each instance in which provisions of this Appendix contradict or are
inconsistent with the provisions of the Agreement, the provisions of this
Appendix shall prevail and govern, and the contradicted or inconsistent
provisions of the Agreement shall be deemed amended accordingly.
Designated Unit(s) to be identified by CCAi to SAP in writing.
Type/Model No. : DATA General
Serial No.: CCAi
Designated Site: 25201 Chagrin Blvd.
Beachwood, OH 44112
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1. Software licensed to CCAi pursuant to the above-referenced Agreement
consists of the following SAP functional modules which are to be installed
on the above referenced Designated Unit(s) at the specified Designated
Site. For the prices set forth herein, CCAi is authorized to have fifty
(50) Named Users to access the Software, as per the terms of the Agreement,
at such Designated Site on such Designated Unit(s).
Quantity
Denote "X" Licensed
FI Financial Accting/Asset Accting X
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TR-CM Cash Management X
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IM Investment Management X
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CO Controlling X
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EC Enterprise Controlling X
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PS Project System X
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MM Material Management X
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PM Plant Maintenance X
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SD Sales and Distribution X
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PP Production Planning X
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DW ABAP/4 Development Workbench X 1
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BC Basis Sys W/ ADABASD Database ($270 per user)
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BC Basis Sys W/ Oracle 7 Runtime Db X ($270 per user)
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PA Personnel Administration and Payroll
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PD Personnel Planning and Development
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BC/DS R/3 Data Model in SAP Format ($5,000 ea)
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SAP R/3 Analyzer ($13,500 per site)
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2. The License Support Fee for the Software set forth in item 1 above is USD
15,000. The annual license fee will be invoiced April 15, 1996 and is due
and payable net thirty (30) days. The Annual License Fee will be invoiced
and is due and payable annually thereafter.
3. Delivery by SAP of the Software is estimated to take place in April, 1996.
4. Delivery of one (1) set of CD-ROM Documentation, in the English language,
to the above-specified Designated Site shall be initiated upon execution of
this Appendix by the parties hereto. Additional Documentation for the
above-specified Designated Site may be ordered by CCAi at SAP's then
current prices in effect.
5. Software licensed hereunder currently requires a Third-Party Database,
which has been licensed hereunder as a runtime version at a license fee of
USD 13,500 ($270 per user). Such runtime version shall be limited to use by
CCAi for the purpose of running the Software licensed hereunder, and
utilizing SAP tools to modify and/or extend the Software as well as writing
in-house developments. Such Modification/Extension rights only apply to
Non-Productive Use of the Software. The license fee for the Third-Party
Database will be invoiced CCAi and is due and payable CCAi.
In the event CCAi uses the licensed database other than as specified above,
a Full License, including programming tools provided through such
third-party supplier can be licensed directly from a third party database
supplier, or as mutually agreed upon in writing by CCAi and SAP, the
runtime version licensed hereunder can be upgraded at agreed upon fees.
6. The Non-Productive Use copy of the Software licensed hereunder requires a
license keycode. The license keycodes will be issued by SAP AG within four
(4) weeks from the date of installation of the Software on the Designated
Unit. The required form to receive the license keycodes from SAP AG must be
executed by Licensee and faxed to SAP AG within the four (4) week period
following installation of the Software. The applicable form and fax number
will be included in each installation kit provided to CCAi upon delivery of
the Software. In the event that CCAi subsequently changes Designated Units
for Use of the licensed Software must be re-issued license keycodes for
each respective copy of the licensed Software. Failure of CCAi to obtain
necessary license keycodes for the licensed Software within four (4) weeks
of installation of such Software, will cause the Software to have limited
User access until such time as the license keycodes are issued.
7. The Software, including all third-party software, is not specifically
developed or licensed hereunder for Use in any direct and active operations
of any equipment in any nuclear, aviation, mass transit, or medical
applications, or in any other inherently dangerous applications. The
parties hereto agree that Use of the Software and third-party software for
financial application purposes or such other administrative purposes shall
not be deemed inherently dangerous applications if such Use does not affect
the operations or maintenance of such equipment. SAP, SAP AG, and its
licensors shall not be liable for any claims or damages arising from
inherently dangerous Use of the Software and/or third-party software
licensed hereunder.
8. In the event Licensee is utilizing EDI functionality, Licensee is
responsible to license or purchase a required third-party EDI
translator/interpreter. Such EDI translator/interpreter shall be license or
provided directly form a third party vendor to Licensee.
9. In the event Optional Packages are license by Licensee hereunder, all such
Optional Package Software (excluding TR-TM Treasury Management) must be
license at a minimum quantity of one (1) per Designated Site. Such
quantities of Optional Packages as well as ABAP/4 Workbenches are as
specified in item 1. above. The R/3 Analyzer may be used on one (1) or more
Personal Computers (PC's) per Designated Site, but may only be stored in
the hard disks and PC's which are part of the respective Software
installation. One (1) set of data carrier for the RI3 Analyzer will be
supplied by SAP. Licensee is not permitted to copy the RI3 Analyzer
reference model or use it to create new models. In order to copy the
reference model or create new models with the R/3 Analyzer, additional
Software must be licensed from a third-party vendor approved by SAP AG.
10. The validity of this Appendix will expire thirty (30) days from its issue
date, unless sooner executed by the parties hereto, or extended in writing
by SAP.
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11. Upon execution of this Appendix, Licensee's and SAP's R/3 National
Implementation Partner Agreement ("Prior Agreement") and related Appendix,
effective January 13,1995, shall be deemed terminated in their entirety.
All Software, Documentation, and Confidential Information for the Software
license hereunder, will remain in Licensee's possession and be considered
licensed to Licensee pursuant to the terms and conditions as contained
herein, and the Agreement to which this Appendix is a part. All Software,
Documentation, and Confidential Information provided to Licensee under the
Prior Agreement but not licensed hereunder shall be deleted/returned to SAP
in accordance with Section 7(d) of the Prior Agreement.
Accepted by Accepted by:
SAP America, Inc Conley, Canitano & Assoc, Inc
(SAP) (CCAi)
By: /s/ Allen R. Brault By: /s/ Kenneth L. Conley
--------------------------------- -------------------------------------
Title: Director Title: Partner
------------------------------ ----------------------------------
Date: 6/24/96 Date: 5/2/96
------------------------------- -----------------------------------
14
APPENDIX A TO
R/3 NATIONAL IMPLEMENTATION PARTNER AGREEMENT
SAP AMERICA, INC. - CONLEY, CANETANO & ASSOC., INC.
R/3 SOFTWARE TRAINING AND DEMONSTRATION LICENSE ("LICENSE")
THIS Agreement is effective this 2nd day of April, 1996.
WHEREAS, SAP America, Inc., a Delaware corporation with offices at 701 Lee Road,
Suite 200, Wayne, Pennsylvania 19087 ("SAP") owns rights in the United States to
certain software for operation and management of businesses;
WHEREAS, Conley, Canitano & Assoc., Inc. ("CCAi"), a Ohio corporation with
offices at Signature Square, Suite 390, 25201 Chagrin Boulevard, Beachwood, Ohio
44122 desires a license for trial and demonstration purposes only; and
WHEREAS, SAP desires to grant to CCAi, and CCAi desires to license from SAP,
such software upon the terms and conditions hereinafter set forth;
IT IS THEREFORE AGREED AS FOLLOWS:
1. DEFINITIONS.
1.1. SOFTWARE. Software shall include one 50-Named User package of the software
components identified in Appendix "1" hereto or as otherwise mutually agreed
upon in writing between SAP and CCAi, in machine readable and/or printed form,
furnished to CCAi by or on behalf of SAP and any full or partial copies of any
of the foregoing.
1.2. NAMED USERS. Means that number of individuals who by password allocation
are authorized to log on to the Software and execute Software transactions.
Named Users may also be referred to as "Operational Users".
1.3. DOCUMENTATION. Means SAP's standard documentation, in human- or
machine-readable format, in any medium, which is delivered to CCAi under this
Agreement, including SAP'S standard manuals, program listings, data models, flow
charts, logic diagrams, input and output forms, functional specifications,
instructions, and complete or partial copies of the foregoing.
1.4. TERRITORY. Territory shall mean the United States of America.
1.5. DESIGNATED UNIT(S). Designated Unit(s) means each individual computer
located at a Designated Site in which the Software and Third-Party Database are
installed. Each Designated Unit must be approved by SAP as compatible with the
Software and must be identified as specified in Appendices hereto.
1.6. DESIGNATED SITE(S). Designated Site(s) means the location(s) controlled by
CCAi and listed in Appendix "1" to this Agreement.
1.7. PROPRIETARY INFORMATION. Proprietary Information means: (i) with respect to
SAP, the Software and Documentation and any complete or partial copies thereof,
the Program Concepts, SAP licensors' Third-Party Database, any other third-party
software licensed with or as part of the Software, benchmark results, and any
other information identified or reasonably identifiable as confidential and
proprietary information of SAP, SAP AG, or their licensors ("SAP PROPRIETARY
INFORMATION"); and (ii) with respect to CCAi, information identified or
reasonably identifiable as the confidential and proprietary information of CCAi
("CCAi PROPRIETARY INFORMATION"), PROVIDED that, any part of the SAP or CCAi
Proprietary Information which: (a) is or becomes publicly available through no
act or failure of the other party; or (b) was or is rightfully acquired by the
other party from a source other than the disclosing party prior to receipt from
the disclosing party; or (C) becomes independently available to the other party
as a matter of right, shall be excluded.
15
1.8. PROGRAM CONCEPTS. Program Concepts are the techniques and ideas embodied
and expressed in the Software, including the structure, sequence, and
organization of the Software.
1.9. MODIFICATION. A Modification is a change in the Software in which there is
a change in the source code.
1.10. EXTENSION. An Extension is an addition to the Software which does not
require a Modification of the Software.
1.11. NON-PRODUCTIVE USE. Non-productive Use is the use of the Software for
demonstration or testing purposes.
1.12. PRODUCTIVE USE. Productive Use means the use of the Software in the
operation of CCAi's business.
1.13 THIRD-PARTY DATABASE. Third -Party Database means a third-party proprietary
database described in Section 2.6.
2. LICENSE GRANT.
2.1. SCOPE OF LICENSE. Subject to the terms and conditions and the accuracy of
CCAI's representations hereinafter set forth, SAP grants to CCAi a
non-exclusive, non-transferable license to the Software, Documentation and Third
Party Database specified in Appendix "1'. hereto or portions thereof 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 CCAi without the express written consent of SAP.
2.2. RESTRICTIONS ON USE. CCAi agrees to use the Software, Documentation and
Third Party Database or other SAP Proprietary Information provided hereunder
solely for testing, trial and demonstration purposes in furtherance of this
Agreement. CCAi 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. Subject to the provisions
of this Section 2.2, CCAi shall use the Software exclusively on the Designated
Unit(s) identified in Appendices hereto.
2.3. SOURCE CODE. In the event source code is provided to CCAi hereunder, SAP,
in its sole discretion, reserves the right to delete, or to require the deletion
of, such source code and all copies thereof from CCAi's Designated Unit(s) and
the return of all source code on non-magnetic media. Source code shall not be
shown to any person not an employee of CCAi.
2.4. TRANSFER OF SOFTWARE. CCAi may transfer the Software and Third-Party
Database from one Designated Unit to another at a licensed Designated Site upon
prior written notice to SAP. The Software and Third-Party Database must be
promptly deleted in their entirety from the Designated Unit no longer in use and
from each archival and back-up copy for that Designated Unit.
2.5. AUDIT. Dunng normal business hours and at any time during which the
Software, Documentation, Third-Party Database, and 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 CCAi's utilization of such items, in order to verify compliance with the
terms of this Agreement.
2.6. RUNTIME LICENSE FOR APPLICATION DATABASE. The Software requires a
Third-Party Database which may be licensed as an SAP R/3 component (the "RUNTIME
LICENSE") or directly as a full license ("FULL LICENSE") from a third-party
database licensor approved by SAP. CCAi shall certify in an Appendix to this
Agreement either that it will use and maintain the Runtime License from SAP or
that it has obtained and will maintain a Full License from such a licensor. This
Agreement shall terminate automatically if; for any reason: (i) Licensee fails
to obtain or maintain a Runtime License or Full License; or (ii) Licensee's
Runtime License or Full License terminates prior to the termination of this
Agreement. SAP makes no representations or warranties as to the Third-Party
Database or its operation.
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16
3. DELIVERY.
3.1. DELIVERED COPY. One copy of the Software shall be delivered in machine
readable format and one (1) copy of the Documentation in CD ROM format.
3.2. INSTALLATION. CCAi shall be responsible for installation of the Software.
At CCAi request, and on terms to be agreed upon, SAP will install the Software.
It is CCAi responsibility, in coordination with SAP, to configure and install
required disk storage systems and network software prior to installation.
4. PRICE AND PAYMENT.
4.1. LICENSE FEE. The License fee for the Software licensed hereunder shall be
as set forth in the applicable Appendix. Additional copies may be delivered upon
written agreement by CCAi 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 to this Agreement, and in SAP's current List of Prices do not include
federal, state, or local sales, use, excise, or other taxes now or hereafter
levied. Any taxes or amounts in lieu thereof paid or payable by SAP in respect
of any such taxes on such fees or charges (excepting only taxes on net income)
shall be added to CCAi's obligations as an additional fee which shall be due
within thirty (30) days after SAP's invoice to CCAi
5. TERM AND TERMINATION.
5.1. TERM OF LICENSE. This Agreement shall have an initial term expiring
December 31, 1996, 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 R/3 National Implementation Partner Agreement between the parties dated
as of even date hereof; provided, however, that in the event of a material
breach of this Agreement by CCAi which has not been cured within ten (10) days
of written notice of such breach, or upon any attempt by CCAi to assign,
delegate, sublicense or otherwise transfer this Agreement in violation hereof,
this Agreement will terminate at the end of such ten (10) day cure period.
5.2. EFFECT OF TERMINATION. Upon termination of this Agreement:
(i) the provisions of Sections 6, 8.4, 9, 11 and 12.6 shall survive the
termination;
(ii) CCAi's rights under Section 2 (License Grant) shall immediately
cease; and
(iii) CCAi shall perform its obligations under Section 6.3.
Each party's right to terminate as expressed in this Agreement shall be in
addition to any other rights provided by law.
6. PROPRIETARY RIGHTS.
6.1. SAP PROPRIETARY INFORMATION.
(a) CCAi acknowledges and shall cause its authorized Affiliates to
acknowledge that ownership of and title in and to all intellectual property
rights, including patent, trademark, service mark, copyright, and trade secret
rights, in the SAP Proprietary Information are and shall remain in SAP and SAP
AG and their respective licensors. CCAi acquires only the right to use the SAP
Proprietary Information under the terms and conditions of this Agreement and
does not acquire any ownership rights or title in or to the SAP Proprietary
Information and that of their respective licensors.
(b) CCAi shall not copy, translate, disassemble, or decompile, nor
create or attempt to create, by reverse engineering or otherwise, the source
code from the object code of the Software licensed hereunder or use it to create
a derivative work, unless authorized in writing by SAP. In the event source code
is provided to CCAi, SAP, in its sole discretion, reserves the right to delete,
or to require the deletion of, such source code
3
17
and all copies thereof from CCAi's Designated Unit(s), application server(s),
computer terminals or workstations, and data files whenever a future release,
version, or correction level provides for like functionality in an object code
format. Other than as specified herein, any tools licensed with or included in
the Software may not be copied, in whole or in part, without the express written
consent of SAP.
(c) CCAi shall not remove any proprietary, copyright, trademark, or
service mark legend from the Software, Documentation, Third-Party Database, or
SAP Proprietary Information.
(d) CCAi 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.
6.2. PROTECTION OF PROPRIETARY INFORMATION. In order to protect the rights of
SAP and its licensors, and CCAi in their respective Proprietary Information, SAP
and CCAi agree as follows:
(a) Neither party shall, without the other party's prior written
consent, disclose, provide, or make available any of the Proprietary Information
of the other party in any form to any person, except to bona fide employees,
officers, directors, or consultants of such party whose access is necessary to
enable such party to exercise its rights hereunder. Each party agrees that prior
to disclosing any Proprietary Information of the other party to any consultant,
it will obtain from that consultant a written acknowledgment that such
consultant will be bound by the same terms as specified in this Section 6 with
respect to the Proprietary Information.
(b) CCAi 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.
6.3. DUTIES UPON TERMINATION. Upon any termination hereunder, CCAi shall
immediately cease use of the Software, Documentation, Third-Party Database, and
other SAP Proprietary Information, and shall irretrievably delete and/or remove
such items from all Designated Units, application servers, computer terminals,
workstations, data files, and Designated Sites. Within thirty days after any
termination, each party shall deliver to the other party(adequately packaged and
insured for safe delivery) or, at the other party's request, destroy all copies
of the other party's Proprietary Information in every form. CCAi further agrees
to erase the Software, Documentation, Third-Party Database, and other provided
SAP Proprietary Information from any storage media. CCAi agrees an officer of
CCAi's organization, with the express authority to make such representation,
shall certify in writing to SAP that it has performed the foregoing.
6.4. MODIFICATIONS AND EXTENSIONS. CCAi may not modify or write extensions to
the Software without the prior written authorization of SAP. CCAi expressly
agrees that any Modifications and Extensions of the Software developed by SAP,
CCAi, their employees, agents or consultants shall become part of the Software
and will be the property of SAP AG and that CCAi will not grant, either
expressly or by implication, any rights, title, interest or licenses to the
Modifications or Extensions to any third party. CCAi shall provide complete
source code for all Modifications and Extensions to SAP. CCAi agrees that it
will not modify any provided Third Party Software hereunder unless expressly
authorized in writing by such Third Party Vendor.
6.5. OTHER DUTIES. CCAi shall be exclusively responsible for the supervision,
management and control of its use of the Software.
7. SUPPORT SERVICES.
7.1. At CCAi's request, and on terms to be agreed upon separately, SAP may agree
to provide pre-installation support, installation support training and
consulting services for the Software.
8. WARRANTY.
8.1. SOFTWARE. SAP warrants that the Software, when delivered, will be in good
working order and will substantially conform to the specifications contained in
the Documentation for six (6) months following delivery (The "Warranty Period")
when in use without material alteration, on the Designated Unit(s), in
accordance with
4
18
the functional specifications set forth in the Documentation. SAP's warranty is
subject to CCAi providing SAP necessary access, including remote access to the
Software.
8.2. SOFTWARE COMPONENTS. Should any component of the Software fail to conform
substantially to the Software specifications during the warranty period SAP's
sole obligation shall be to correct the defect by bringing the performance of
the Software into substantial compliance with the specifications or replace the
component.
8.3. CCAi'S DEFECT REPORTS. CCAi must specifically identify to SAP the nature of
the perceived Software defect which causes the Software not to conform
substantially to the functional specifications and specifically describe the
conditions under which the perceived defect occurs. On SAP's request, CCAi shall
deliver such information in written form. CCAi shall provide SAP with sufficient
test time and support on CCAi's Designated Unit(s) to duplicate the problem, to
verify that the problem is with the Software, and to confirm that the problem
has been corrected.
8.4. DISCLAIMER. SAP DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY.
9.1 CCAi'S REMEDIES. Subject to the limited warranty set forth in Section 8,
CCAi's sole and exclusive remedies for any damages or loss in any way connected
with the Software or services furnished by SAP and its licensors, whether due to
SAP's negligence or breach of any other duty, shall be, at SAP's option: (i)
replacement of the Software or performance of services; or (ii) return or credit
of an appropriate portion of any payment made or to be made by CCAi with respect
to the applicable portion of the Software or services. The foregoing limitation
of liability does not apply to personal injury or death caused solely by the
gross negligence or willful misconduct of SAP. With respect to damage to
tangible property, SAP and its licensors will not be responsible in any amount
in excess of the amount by which such damage is paid by SAP's liability
insurance.
9.2 SAP NOT RESPONSIBLE. SAP will not be responsible under this Agreement for:
(i) the modification or improvement of the Software to fit the particular
requirements of CCAi; or (ii) the correction of any program errors resulting
from Modifications or Extensions; or (iii) the correction of any program errors
as a result of misuse of the Software by CCAi. Under no condition will SAP be
responsible under this Agreement for preparation or conversion of data into the
form required for use with the Software.
9.3 EXCLUSION OF DAMAGES. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER
NO CIRCUMSTANCES SHALL SAP AND ITS LICENSORS BE LIABLE TO CCAi OR ANY OTHER
PERSON OR ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES,
LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER
FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR
EXEMPLARY OR PUNITIVE DAMAGES.
9.4 SEVERABILITY OF ACTIONS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND
EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO
BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
10. NON-ASSIGNMENT.
10.1. CCAi may not assign, delegate, sublicense, pledge, or otherwise transfer
this Agreement, or any of its rights or obligations under this Agreement, to any
party.
10.2. SAP may assign this Agreement to SAP AG or to an entity designated by SAP
AG.
5
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11. EXPORT CONTROL NOTICE
Regardless of any disclosure made by CCAi to SAP of an ultimate destination of
the Software, Documentation, Third-Party Database, and other provided SAP
Proprietary Information, CCAi acknowledges that SAP's Software, Documentation,
Proprietary Information, and the Third-Party Database are being released or
transferred to CCAi in the United States and are therefore subject to the U.S.
export control laws. CCAi acknowledges its exclusive obligation to ensure that
its exports from the United States are in compliance with the U.S. export
control laws. CCAi 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. CCAi
shall defend, indemnify, and hold SAP and SAP AG and its licensors harmless from
and against any and all claims, judgments, awards, and costs (including
reasonable attorneys fees) arising out of CCAi'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 CCAI.
12. OTHER PROVISIONS.
12.1. CCAi acknowledges that remedies at law may be inadequate to provide SAP
with full compensation in the event of any material breach of this Agreement by
CCAi, and that SAP shall therefore be entitled to injunctive relief in the event
of any material breach.
12.2. This Agreement and all Appendices hereto constitute the complete and
exclusive statement of the agreement between SAP and CCAi, and all previous
representations are merged in this Agreement. This Agreement may be modified
only by a writing signed by both parties. This Agreement prevails over any
additional, conflicting, or inconsistent terms and conditions appearing on any
purchase order submitted by CCAi
12.3. It is the intent of the parties that in case any one or more of the
provisions contained in this Agreement shall be held to be invalid or
unenforceable in any respect, such invalidity, 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. In case any one or more of the provisions contained
in this Agreement shall be held to be excessively broad as to duration,
geographical scope, activity or subject, such provision shall be construed by
limiting and reducing it in accordance with a judgment of a court of competent
jurisdiction, so as to be enforceable to the extent compatible with applicable
law.
12.4. If either party should waive any breach of any provisions of this
Agreement, it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provisions hereof.
12.5. The headings of the sections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
12.6. This Agreement shall be governed by and construed under Pennsylvania law.
CCAi consents to the jurisdiction of any federal or state court sitting in
Delaware County, Pennsylvania for all claims, suits, or actions arising under
this Agreement or in connection with CCAi's use of or possession of the
Software.
IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto agree
to the foregoing Agreement as of the date first above written.
SAP America, Inc. Conley, Canitano & Assoc., Inc.
(SAP) (CCAi)
By: /s/ Allen R. Brault By: Kenneth L. Conley
---------------------------- -------------------------------
Title: Director Title: Partner
------------------------- ----------------------------
Date: 6/24/96 Date: 5/2/96
-------------------------- -----------------------------
/s/ ??????????
6
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ASAP PARTNER ADDENDUM
TO
R/3 NATIONAL IMPLEMENTATION PARTNER AGREEMENT ("NIP AGREEMENT")
BETWEEN
SAP AMERICA, INC. ("SAP") - CONLEY, CANITANO & AssOC., INC. ("PARTNER")
EFFECTIvE JULY 1, 1997
A. WHEREAS, Partner desires to utilize SAP's rapid R/3 implementation
methodology and to become an AcceleratedSAP Partner ("ASAP Partner") by meeting
the performance criteria established by SAP.
B, WHEREAS, SAP desires to offer the opportunity to Partner to achieve such
status, subject to the terms below.
C. NOW THEREFORE, SAP and Partner agree as follows:
1. SAP hereby grants Partner the right to identify itself publicly as an
ASAP Partner for so long as the NIP Agreement is in effect and Partner complies
with SAP's then-current criteria for participation in its AcceleratedSAP Partner
Program.
2. SAP's current criteria for participation in the AcceleratedSAP Partner
Program are as follows:
(a) 70% of consultants that comprise Partner's SAP Practice must be
AcceleratedSAP certified by attending SAP's 3-day course (current release)
within the timeframe (6 months) established in the business plan.
(b) All Partner consultants assigned to an accelerated project must be
AcceleratedSAP certified.
(c) All Partner project managers must be certified through SAP's
Project Manager course within three (3) months after SAP's first public offering
of such course.
(d) Partner must utilize 100% of the AcceleratedSAP methodology as
identified from time to time by SAP.
(e) Any AcceleratedSAP Project will include quality assurance
monitoring by an SAP Project Executive.
(f) Partner must adhere to SAP's status reporting criteria established
by SAP on all ASAP projects.
3. Any AcceleratedSAP materials, including the ASAP CD, made available to
Partner pursuant to this Addendum shall be considered SAP Confidential and/or
Proprietary Information as defined in the NIP Agreement.
4. Upon compliance with the terms of this Addendum, Partner shall be
authorized to represent itself as an authorized ASAP Partner and to display the
ASAP Partner logo. Partner's failure to
21
comply with the terms of the Addendum shall result in termination of the
Addendum, unless such failure is cured to SAP's reasonable satisfaction within
thirty (30) days of written notice of such failure.
5. The term of this Addendum shall be coterminus with that of the NIP
Agreement, unless earlier terminated pursuant to the provisions of Section 4 of
this Addendum.
6. Except as specifically modified herein, all terms and conditions of the
NIP Agreement shall be applicable to this Appendix and the subject matter
hereof.
By: /s/ Nicholas A. Canitano By: /s/ Cheryl C. Groonel
----------------------------- -----------------------------
Title: President CCAi Title: Director
-------------------------- ---------------------------
Date: 7/16/97 Date: 7/30/97
--------------------------- ----------------------------
22
AMENDMENT
effective January 1, 1999
to
National Implementation Partner Agreement
("Agreement")
between
SAP America, Inc. ("SAP")
and
CCAI ("Partner")
effective April 2, 1996
As of the issuance date of January 1, 1999, this Amendment modifies the above
referenced Agreement between the parties. In each instance in which the
provisions of this Amendment contradict or are inconsistent with the provisions
of the Agreement, the provisions of this Amendment shall prevail and govern and
the contradicted or inconsistent provisions shall be deemed amended accordingly.
SAP and Partner agree that the Agreement effective April 2, 1996 is modified as
follows:
1. Delete section 7)(a) in its entirety, and insert in lieu thereof:
"(a) This Agreement shall have a term expiring on December 31, 1999, with
automatic renewals for one (1) year periods unless, at least six (6) weeks
prior to a scheduled renewal date, either party gives written notice of
its intentions not to renew this Agreement."
EXCEPT AS HEREIN PROVIDED, NONE OF THE PROVISIONS OF THE AGREEMENT SHALL BE
AFFECTED BY THIS AMENDMENT.
ACCEPTED BY: ACCEPTED BY:
SAP America, Inc.
SAP -----------------------------
CCAI
BY: BY: /S/ KENNETH L. CONLEY
-------------------------- ---------------------------
NAME: NAME: Kenneth L. Conley
------------------------- TITLE: President & COO
TITLE:
-----------------------
SAP CONFIDENTIAL