A.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† These Terms and Conditions are to be reviewed along with the SAP Business One Software and any subsequent third party software Licence and Maintenance Contract, which is between B1 Systems Limited and a specific Customer.
B.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems wishes to grant to the Customer and the Customer wishes to accept, a licence to use certain software on the terms set out in this Agreement. The usage authorised by this Agreement is set out in the Schedule; this may increase over time by means of further Schedules being signed.
C.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† This licence will enable the Customer to permit both use of the software by Group Companies and Outsource Providers and access to it by Supply Chain Third Parties on certain conditions.
D.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† The licence fees are calculated on the basis of user fees; fees for supplementary software products and database fees. A global pricing adjustment applies to users and supplementary software instances in certain countries.
E.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† The project definition document and change request process will be covered by these terms and conditions.
IT IS AGREED:
1. ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Definitions/Interpretation
1.1¬†¬†¬†¬†¬†¬†¬†¬†¬† In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
‚ÄúAgreement": this Software Licence and Maintenance Agreement together with the Schedules If Applicable and any licence applying to database software licensed from B1 Systems (see clause 3.6).
"Confidential Information": the following information (whether it is conveyed orally, in writing, on electronic data media or in any other manner):
(a) ¬†¬†¬†¬†¬†¬†¬†¬†¬† The commercial terms of this Agreement;
(b) ¬†¬†¬†¬†¬†¬†¬†¬†¬† Trade secrets and know-how (including the concepts, techniques and ideas embodied in the Software and the structure, sequence and organisation of the Software);
(c) ¬†¬†¬†¬†¬†¬†¬†¬†¬† Technical data or specifications, commercial information or data or ideas belonging to the disclosing party or its licensors or relating to the business or affairs of the disclosing party or its licensors, the release of which could be injurious to the disclosing party or its relevant licensor or advantageous to its/their rivals or to others; and
(d) ¬†¬†¬†¬†¬†¬†¬†¬†¬† Any other information which the recipient ought reasonably to know is confidential in light of the usage and practice of the industries in which the disclosing party is involved.
"Documentation": the descriptions accompanying the Software in machine-readable form and all updates thereto supplied as part of the warranties and maintenance services.
"Enhancement": new code that is connected to the Software and has been created using the development and administration tools contained within the Software.
"Schedule": the Schedules issued with this Agreement plus any further Schedules which reference this Agreement.
"Group Company": any company in which the Customer owns or controls a majority of the voting rights at the general meetings of that company.
"IPR": all intellectual property rights arising by virtue of or in relation to copyright, database rights, patents, trade marks (registered or unregistered), applications for any of the foregoing, trade secrets and know-how and any other similar rights in any country.
"Modification": an adaptation of the Software (e.g. a change made to the source code) using the development and administration tools contained within the Software. Configuration of the Software does not constitute a Modification.
"Named User": an individual representative (e.g. employee, agent, consultant, contractor) of the Customer, a Group Company, an Outsource Provider or a Supply Chain Third Party who is authorised to access the Software directly or indirectly (e.g. via the Internet or by means of a hand-held or third party device or system). The extent to which a Named User is authorised to use the Software depends upon his user category as set out in the Schedule.
"Outsource Provider": any third party whose identity has been approved by B1 Systems pursuant to clause 3.8.
"SAP": means SAP (UK) Limited (Company No 2152073).
"SLMC": means SAP Business One Software Licence and Maintenance Contract.
"Software": the software set out in the Schedule together with any software provided as part of warranty and maintenance service.
"Supply Chain Third Party": a third party that requires access to the Software in connection with the operation of the business of the Customer and/or it‚Äôs Group Companies (e.g. customers, distributors and suppliers).
"Third-party Software / Products" non-SAP Software which B1 Systems is entitled to market, distribute and sub-license hereunder.
"Working Day": any weekday other than a statutory, bank or public holiday.
1.2 ¬†¬†¬†¬†¬†¬†¬†¬† Interpretation
1.2.1 ¬†¬†¬†¬†¬† The clause references in this Agreement are references to the relevant clauses in this Agreement.
1.2.2 ¬†¬†¬†¬†¬† The clause headings are for ease of reference and are not intended to influence the meaning of this Agreement.
1.2.3 ¬†¬†¬†¬†¬† A reference to a statute (or a section of a statute) shall include any modification or re-enactment in force from time to time and any statutory instrument or regulations made under the relevant statute.
1.2.4¬† ¬†¬†¬†¬† Any phrase introduced by "including", "in particular", "e.g." or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.¬† ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Export/Delivery/Cancelation
The Software is Subject to various export control regulations, including those of Germany, England and the USA, which may apply not just to the initial export but also to any re-export (including to a Group Company). Electronic transfer of the Software can constitute export as well as any physical shipping of data media. The import and use of the Software in the country of destination may also be restricted or banned by national law of that country. The Customer shall comply with all relevant export and import regulations affecting the Software and shall indemnify SAP and its licensors against all losses, costs and expenses arising out of non-compliance. Subject to the need to comply with those regulations and to clause 3.11, B1 Systems shall, via electronic download and free on board delivery if required, deliver one copy of the then current release of the Software and the Documentation to the Customer following execution of this Agreement and receipt by B1 Systems of the written details of the equipment upon which the Customer will install the Software and the delivery location.
3. ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Licence
3.1 Subject to clause 14, B1 Systems grants to the Customer a non-exclusive and perpetual licence to use the Software and Documentation.
3.2 The authorised usage of the Software is set out in these Terms and Conditions. The Customer shall inform B1 Systems promptly if its usage is beyond that set out, in which case additional licence and maintenance fees will become payable in accordance with clause 6.2.
3.3 Programs other than the Software may be included on the media on which the Software is shipped by B1 Systems but the Customer is not licensed to access or use those other programs, even if it is technically possible for it to do so.
3.4 The Software and Documentation may only be used for the Customer's internal business transactions and those of its Group Companies; the Customer is not permitted to use the Software and Documentation to undertake computer centre or service bureau operations, application service provision, managed services or similar activities.
3.5.1 The Software may not be used to operate power stations, mass transit applications or for any direct medical application.
3.6 ¬†¬†¬†¬†¬†¬†¬†¬† Where the Customer is licensing third party database software from B1 Systems, additional terms imposed by the relevant manufacturers may apply to its use and in such circumstances the Customer must sign the respective database licence before using such software. In the event that Customer enters into any financing or leasing agreement in relation to the Software, Customer's right to use the Software, and to receive maintenance services, may (pursuant to the terms of any such financing or leasing agreement) be subject to the Customer complying with its obligations under such financing or leasing agreement
3.7¬†¬†¬†¬†¬†¬†¬†¬†¬† The Software may only be installed on equipment written details of which (including details of the location) have first been given to B1 Systems and which is located at premises owned or controlled either by the Customer or a Group Company or an Outsource Provider.
3.8 In connection with a disaster recovery, outsourcing or facilities management arrangement, the Customer may appoint a third party to host and/or operate the Software on its behalf in accordance with the terms of this Agreement
3.8.1 ¬†¬†¬†¬†¬† Provided B1 Systems has given its prior written approval to the identity of that third party, such approval not to be unreasonably withheld or delayed;
3.8.2 ¬†¬†¬†¬†¬† Provided the Software and Documentation remain under the Customer's control; and provided there is no novation or assignment of this Agreement by the Customer in favour of the Outsource Provider.
3.9 ¬†¬†¬†¬†¬†¬†¬†¬† The Customer shall be responsible for the acts and omissions of Outsource Providers as if they were the Customer's acts and omissions.
3.10 ¬†¬†¬†¬†¬†¬† Subject both to clause 3.11 and to the further condition that, Named Users specified in any Licence Type may not be allocated or re-allocated, unless discussed and agreed with B1 Systems, the Customer may set up any number of live instances of the Software (or any of its components) and up to five non-productive instances for each live instance. Non-productive instances shall be used solely for the purposes of development, testing and internal training. (One instance is the sum of all components of the Software that access or interoperate with, either directly or indirectly, a single database, i.e. a database that does not contain any database table more than once.)
3.11 ¬†¬†¬†¬†¬†¬† Subject to clause 2, instances of the Software (whether live or non-productive) may be located anywhere in the world except for territories where B1 Systems reasonably believes that its IPR in the Software and Documentation or those of its licensors may be unenforceable.
3.12 ¬†¬†¬†¬†¬†¬† A Named User's password may only be used by or passed on to another person in exceptional circumstances (e.g. if the Named User has left or is absent from work due to extended illness or vacation).
3.13¬†¬†¬†¬†¬†¬†¬† The Customer is permitted to create back-up copies of the Software in accordance with good technological practice.
3.14 ¬†¬†¬†¬†¬†¬† The Customer is permitted to copy the Software to set up new instances (both live and non-productive) and to copy the Documentation as required for purposes ancillary to the permitted use of the Software under this Agreement. The copyright and other IPR notices that appear in the programs and on the original media on which the Software and Documentation were delivered shall be reproduced on all copies.
3.15 ¬†¬†¬†¬†¬†¬† The Customer shall not decompile or disassemble any part of the Software or attempt to do so unless permitted by s.50B, Copyright, Designs and Patents Act 1988. Prior to carrying out any decompilation or disassembly permitted by that statutory provision, the Customer must first ask B1 Systems to provide the information necessary to produce interoperability and only if B1 Systems fails to do this within a reasonable period of time, may the Customer proceed to rely on s.50B.
3.16 ¬†¬†¬†¬†¬†¬† The Customer may authorise Group Companies to use the Software and Documentation in accordance with the terms of this Agreement but the Customer shall be responsible for the acts and omissions of Group Companies as if they were the Customer's acts and omissions.
3.17 ¬†¬†¬†¬†¬†¬† A Group Company's right of use shall terminate as soon as it ceases to be a Group Company and then the procedure set out in clause 14.2.2 shall be followed to the appropriate extent with the certificate being given by the Customer.
3.18 ¬†¬†¬†¬†¬†¬† The Customer may authorise Supply Chain Third Parties to access the Software within the following bounds:
3.18.1 ¬†¬†¬† Usage by Supply Chain Third Parties shall be classified in the same manner as usage by the Customer and Group Companies (e.g. numbers and categories of Named Users and supplementary software product usage);
3.18.2 ¬†¬†¬† Supply Chain Third Parties shall have no access to the source or object code of the Software;
3.18.3 ¬†¬†¬† Supply Chain Third Parties may only use the Software for the internal business transactions of the Customer and it‚Äôs Group Companies;
3.18.4 ¬†¬†¬† The Customer shall be responsible for the acts and omissions of Supply Chain Third Parties as if they were the Customer's acts and omissions.
3.19 ¬†¬†¬†¬†¬†¬† During the first month of each calendar quarter, the Customer shall, using the tools provided by B1 Systems, generate from each instance of the Software and deliver to B1 Systems the information necessary to check that usage of the Software corresponds with the Schedule. If Customer fails to do so then the Customer shall permit B1 Systems reasonable direct and/or remote access to the Software and the equipment on which it is installed to verify usage. In so doing, B1 Systems shall comply with the Customer's reasonable security requirements. If usage is discovered which does not correspond to the Schedule, additional licence and maintenance fees will become payable as referred to in clause 6.2.
4. ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Development
4.1 ¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems is not authorised to grant permission to adapt Non-SAP software (e.g. the database software) and the Customer acknowledges that nothing in this clause 4 authorises it to do so.
4.2 ¬†¬†¬†¬†¬†¬†¬†¬† To the extent that the Software contains development and administration tools, Developer Users and DW Users (as defined in the Schedule) may use those tools to modify, enhance, deploy and manage the Software or third-party applications or for the purpose of creating, modifying, enhancing, deploying and managing custom-developed applications provided they do so without making any unauthorised de¬≠compilation or disassembly. The tools may not be transferred, either in whole or in part, into Modifications, Enhancements, third-party or custom¬≠ developed applications.
4.3¬†¬†¬†¬†¬†¬†¬†¬†¬† The Software contains function modules that are stored in a function library. Some of these function modules carry a release indicator for transfer into Modifications or Enhancements and it is only these function modules that may be transferred into Modifications or Enhancements. None of the function modules may be adapted, decompiled or disassembled.
4.4 ¬†¬†¬†¬†¬†¬†¬†¬† If the Customer wishes to carry out a Modification or Enhancement, it must first obtain a developer's key from SAP AG. The Customer shall own all newly¬≠ created IPR in Modifications and Enhancements undertaken solely by the Customer but SAP shall be entitled to obtain the exclusive transfer of those rights to SAP or any of its licensors in return for a suitable remuneration; in this case, the Customer will retain the same rights to the Modifications and Enhancements as it has to the Software under this Agreement.
4.5 ¬†¬†¬†¬†¬†¬†¬†¬† Where any Modifications or Enhancements are carried out by B1 Systems, in part or in whole, the Customer will have the same rights to those Modifications and Enhancements as it has to the Software under this Agreement. All other rights shall be due exclusively to SAP and its licensors.
4.6 ¬†¬†¬†¬†¬†¬†¬†¬† Whilst all IPR in the development and administration tools and the function modules contained within the Software are and shall remain vested in SAP and its licensors, B1 Systems claims IPR in custom-developed applications created using those tools or function modules or in such applications or third-party applications that the Customer requests, deploys, manages or modifies using those tools or function modules.
4.7 ¬†¬†¬†¬†¬†¬†¬†¬† SAP and the Customer acknowledge that B1 Systems undertakes SAP Development activities to provide vertical Add On solutions. The IPR related to such Add On developments belongs to B1 Systems. Nothing in this Agreement shall restrict the development activities of SAP and its licensors in anyway.
4.7¬†¬†¬†¬†¬†¬†¬†¬†¬† The Customer acknowledges that major, unforeseeable malfunctions may occur in the Software or other programs, as a result of carrying out Modifications or Enhancements, which may affect use, operating security, warranty and maintenance services.
4.8 ¬†¬†¬†¬†¬†¬†¬†¬† The Customer uses the development and administration tools and function modules at its own risk.
4.9 ¬†¬†¬†¬†¬†¬†¬†¬† It shall be the Customer's sole responsibility to maintain compatibility between Enhancements, Modifications, the configuration of the Software, third party and custom developed applications and devices and subsequent releases of the Software.
5.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Title and Rights
All IPR in the Software and the Documentation are and shall remain vested in SAP and its licensors. Except to the extent expressly permitted by this Agreement or by law, all copying, distribution, rental, adaptation, decompilation and disassembly of the Software and the Documentation is prohibited.
6.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Fees Payment
6.1¬†¬†¬†¬†¬†¬†¬†¬†¬† Except as set out in clause 6.2, the licence fee payable under each Schedule shall be paid by the Customer (and received by B1 Systems) in full, and prior to date of the SLMC. The associated maintenance fees shall also be paid by the Customer (and received by B1 Systems) in full and prior to the date of the SLMC for the balance of the then current calendar year and after that shall be payable annually in advance being invoiced on 1st December and paid by the Customer (and received by B1 Systems) by 31st December of each year.
6.2 ¬†¬†¬†¬†¬†¬†¬†¬† Without prejudice to any other rights and remedies of or available to B1 Systems, if usage of the Software does not correspond to Terms and Conditions contained herein, additional licence and maintenance fees calculated in accordance with SAP's then current price list shall be due from the date on which the unauthorised usage was first identified. The Customer shall promptly sign and return to B1 Systems a further Schedule that B1 Systems shall prepare detailing the relevant usage and fees but B1 Systems' right to receive payment of those fees shall not be dependant upon signature of this Schedule.
6.3¬†¬†¬†¬†¬†¬†¬†¬†¬† All fees are exclusive of Value Added Tax or any similar sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law. All fees due under this Agreement shall be paid in full without any deduction or withholding other than as required by law and the Customer shall not be entitled to assert any right of set-off against B1 Systems in order to justify withholding payment of any fees. The Customer agrees that late payments shall be treated as qualifying debts under the Late Payment of Commercial Debts (Interest) Act 1998 and, as such, attract simple interest if not paid on time.
7.¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Customer Responsibilities
7.1 ¬†¬†¬†¬†¬†¬†¬†¬† The Customer shall take all reasonable precautions:
7.1.1¬†¬†¬†¬†¬†¬† Against the possibility that the Software, or any component of it, should not function properly (e.g. data back-ups, error diagnosis and regular results monitoring); and
7.1.2 ¬†¬†¬†¬†¬† To safeguard the Software and the Documentation (in particular, any source code and related documentation that has been made available to the Customer) to prevent its misuse.
8. ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† Warranties
8.1 ¬†¬†¬†¬†¬†¬†¬†¬† SAP's start-up procedure, including the procedure for the issue of licence key codes, must be followed each time the Software is installed. Failure to follow this procedure will cause the Software to have limited user access and may affect the performance of the Software.
8.2 ¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems warrants in relation to the Software which is first delivered immediately following the signature of this Agreement and receipt of software payment in full that for six months from the date of such delivery, when operated in accordance with the terms of this Agreement and the Documentation, the Software shall:
8.2.1¬†¬†¬†¬†¬†¬† Substantially conform to the documentation;
8.2.2¬†¬†¬†¬†¬†¬† be capable of satisfying the legal requirements applicable to the euro as set out in EC Regulation number 1103/97, recognise the industry standard keyboard configurations or key-strokes and screen layouts for the euro symbol and perform all of its monetary functions in euro.
8.3 ¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems warrants that the troubleshooting and proactive remote services to be performed as part of maintenance services pursuant to clause 10 shall be performed with reasonable skill and care.
8.4¬†¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems does not warrant that the Software will operate uninterrupted or that it is designed to meet all local requirements.
8.5 ¬†¬†¬†¬†¬†¬†¬†¬† The warranties in clause 8.2 shall not apply to the extent that any defect is caused either by a Modification or an Enhancement carried out by someone other than B1 Systems or its licensors.
8.6¬†¬†¬†¬†¬†¬†¬†¬†¬† The Customer acknowledges that the Software has not been prepared to meet the Customer's individual requirements and that it has been the responsibility of the Customer to ensure that the Software is appropriate for its requirements.
8.7 ¬†¬†¬†¬†¬†¬†¬†¬† In the first instance, B1 Systems‚Äô sole obligation under the warranties shall be to remedy the defect, provided that, in the case of an alleged breach of clause 8.2, B1 Systems receives notice of the defect within the stated six-month period. The remedy may take the form of eliminating the defect, providing a new release of the Software or correction package or demonstrating how to avoid the effects of the defect in a reasonable manner. The Customer shall support B1 Systems in locating any defect and its cause by ensuring the co¬≠operation of its employees, allowing access (including remote access) to the Software and the equipment on which it functions and providing as detailed a description of the defect as possible. The Customer shall be obliged to accept B1 Systems‚Äô recommended remedy for the defect. If B1 Systems should fail to remedy a defect within a reasonable period of time, B1 Systems and the Customer shall agree in writing a reasonable course of action, including a new date by which the defect should be remedied. Only if B1 Systems should fail to remedy the defect by that agreed date, shall the Customer be entitled to seek damages; claims for damages shall be governed by clause 12. All other rights are excluded.
8.8 ¬†¬†¬†¬†¬†¬†¬†¬† If a notice alleging a breach of warranty is received from the Customer but upon investigation by B1 Systems it is determined that the problem complained of is baseless or is for any other reason not a breach by B1 Systems of the warranties contained in this clause 8 (e.g. it is due to a Modification carried out by the Customer), then the Customer shall remunerate B1 Systems for the services it has provided in investigating the matter in accordance with B1 Systems' then current time and materials rates.
9. ¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬† IPR Indemnity
9.1 ¬†¬†¬†¬†¬†¬†¬†¬† B1 Systems warrants that it has the authority to license the Software and to provide maintenance on the terms of this Agreement. This clause 9 sets out the Customer's sole remedies if there is a breach (or alleged breach) of this warranty. It is not subject to the limit of liability set out in clause 12.1. All other rights are excluded.
9.2¬†¬†¬†¬†¬†¬†¬†¬†¬† Subject to clause 9.4, if any claim is brought or threatened by a third party against the Customer alleging that its use or possession of any components of the Software in accordance with the terms of this Agreement infringes the IPR of that third party then SAP shall at its own expense defend that claim and shall indemnify the Customer against all damages and costs awarded against the Customer or agreed by SAP by way of settlement provided that:
9.2.1¬†¬†¬†¬†¬†¬† The Customer informs SAP promptly and fully in writing of the claim and does not concede or otherwise prejudice the claim;
9.2.2¬†¬†¬†¬†¬†¬† The Customer authorises SAP (or any of its licensors nominated by SAP) to assume sole conduct of the dispute with the third party both in and out of court; and
9.2.3¬†¬†¬†¬†¬†¬† At the cost of SAP, the Customer gives SAP (or the person nominated by SAP to have conduct of the dispute) all reasonable assistance.
9.3¬†¬†¬†¬†¬†¬†¬†¬†¬† Subject to the Customer complying with the provisos to clause 9.2, if the use or possession of any components of the Software in accordance with the terms of this Agreement infringes or, in SAP's opinion, may be held to infringe the IPR of a third party, SAP shall at its expense either procure for the Customer the right to continue to use those components or adapt or replace them to avoid the infringement (without materially detracting from their functionality), whichever SAP thinks is best, or, if none of the previous options can be accomplished on reasonable terms, terminate this Agreement in respect of the affected components of the Software and refund the licence fees paid by the Customer for those components.
9.4¬†¬†¬†¬†¬†¬†¬†¬†¬† SAP shall have no obligation under causes 9.2 and 9.3 to the extent that any claim:
9.4.1 ¬†¬†¬†¬†¬† is based on any acts or omissions of the Customer not authorised by this Agreement (or of any third party authorised to use or access the Software pursuant to the terms of this Agreement); or
9.4.2¬†¬†¬†¬†¬†¬† Arises as a result of the use of the Software in combination with any equipment or programs or data not supplied by SAP; or
9.4.3¬†¬†¬†¬†¬†¬† Arises as a result of a Modification or Enhancement which was carried out by someone other than SAP or its licensors; or
9.4.4 ¬†¬†¬†¬†¬† Arises as a result of not using the latest release of the Software or correction package.
10.1 In accordance with and subject to the terms of this clause 10, B1 Systems shall provide the following;-
10.1.1 Troubleshooting (clauses 10.10-10.12).
10.1.2 Maintenance and services from the date of the Schedule;
10.1.3 Access to SAP's on-line information database (clause 10.13) ;
10.1.4 Updates of the Software (clause 10.14);
10.1.5 Use of SAP Solution Manager and SAP EarlyWatch¬ģ Alert (clause 10.15);
10.1.6 Proactive remote services (clauses 10.16¬≠-10.18) ;
10.1.7 Any other tools and services provided by SAP to its customer base generally as part of its maintenance services.
10.2¬†¬†¬†¬†¬†¬†¬† B1 Systems reserves the right to alter the scope of the maintenance services if and to the extent that changes are made for SAP's customer base generally.
10.3¬†¬†¬†¬†¬†¬†¬† B1 Systems shall not be obliged to provide any of the maintenance services unless the maintenance fees have been paid or, in the event of any breach by Customer of its obligations under any financing or leasing agreement, terminate or suspend the provision of any of the maintenance services in accordance with the terms of such financing or leasing agreement.
10.4¬†¬†¬†¬†¬†¬†¬† B1 Systems shall provide troubleshooting and (subject to clause 10.5) proactive remote services where the Customer is using a release of the Software that is classified by SAP at the relevant time as a current standard release and it has a remote data transmission unit that enables SAP to provide such services remotely. Details of SAP's current standard releases from time to time are available via SAP's on-line information database.
10.5 ¬†¬†¬†¬†¬†¬† B1 Systems shall provide proactive remote services where, in addition to the requirements of clauses 10.3 and 10.4, the Customer:
10.5.1 ¬†¬†¬† Has installed the appropriate tools and monitors supplied by B1 Systems (e.g. SAP Solution Manager, SAP EarlyWatch¬ģ Alert);
10.5.2 ¬†¬†¬† Has sent the SAP EarlyWatch¬ģ data to B1 Systems monthly;
10.5.3 ¬†¬†¬† Has submitted an order for the services at least three months before it wishes the services to be performed; and
10.5.4 ¬†¬†¬† Provides remote access to its live instance of the Software.
10.6 ¬†¬†¬†¬†¬†¬† Each Software instance must be supported by a Competence Centre. A Competence Centre is an organisational unit, rather than a physical location. The Competence Centre shall act as a support desk providing first-level support for the SAP Software during normal local working hours, which shall act as a permanent centre of expertise and a central point of contact between B1 Systems and the Customer organisation. It is deemed that B1 Systems will be the Customer's Competence Centre. A competence centre shall fulfil the following functions:
10.6.1 ¬†¬†¬† Support desk: the provision of first-level support for the Software during normal local working hours (at least 7.5 hours a day, five days a week). Support requests are to be submitted via B1 Systems Web Portal in the first instance.
10.6.2 ¬†¬†¬† Contract administration: co-operation with B1 Systems over contract administration (e.g. system measurement, maintenance fee invoicing, release order processing, user master and instance data management);
10.6.3 ¬†¬†¬† Development request co-ordination: collection and co-ordination of development requests from within the Customer and Group Company organisations and representation of the interests of those businesses to B1 Systems;
10.6.4 ¬†¬†¬† Information management: distribution of information about the competence centre within the Customer and Group Company organisations and performance of internal demonstrations, Information events and marketing for SAP solutions.
10.7 ¬†¬†¬†¬†¬†¬† The Customer acknowledges that any failure by it to Utilise the proactive remote maintenance services offered as part of this Agreement may result in unsatisfactory Software performance and affect B1 Systems‚Äô and or SAP's ability to correct malfunctions.
10.8 ¬†¬†¬†¬†¬†¬† The Customer shall actively co-operate with B1 Systems, and, or SAP in connection with the provision of maintenance services; in particular, it shall provide adequate information to enable the diagnosis of malfunctions when providing troubleshooting support.
10.9 ¬†¬†¬†¬†¬†¬† When malfunctions are reported by the Customer, B1 Systems shall try to supply information on how to remedy, avoid and bypass them. The main channel for requesting troubleshooting support shall be via B1 Systems on-line support system although the Customer may also contact B1 Systems by telephone during the hours of 0900 to 1730 (Normal Working Hours) on any Working Day.
Estimated resolution times are provided by request.
Malfunctions can be reported on a 24x7 basis via B1 Systems on-line support system. Prior to the Customer establishing its first competence centre, only three nominated Named Users shall be entitled to submit requests to B1 Systems for troubleshooting support.
10.10 ¬†¬†¬†¬† The Customer shall be responsible for implementing any remedy provided by SAP or B1 Systems as part of troubleshooting support.
10.11 ¬†¬†¬†¬† B1 Systems shall endeavour to provide troubleshooting support for third-party database software supplied as part of the Software.
10.12 ¬†¬†¬†¬† The Customer may access SAP's on-line information database which contains details and fixes on how to correct, avoid or bypass certain known malfunctions. SAP's on-line information database also contains information provided by SAP user groups that has not been tested or approved by SAP and the Customer uses this at its own risk.
10.13 ¬†¬†¬†¬† SAP publishes its release strategy from time to time and, upon request, B1 Systems shall supply to the Customer all applicable new releases of the Software and correction packages as they are made generally available.
10.14 ¬†¬†¬†¬† The Customer shall receive SAP Solution Manager and SAP EarlyWatch¬ģ Alert and shall be licensed to use them to support its use of the Software in accordance with the terms of this Agreement. The SAP Solution Manager contains tools that monitor systems and core business processes. SAP EarlyWatch¬ģ Alert is an automated tool that gives regular updates on system status.
10.15 ¬†¬†¬†¬† The maintenance fees shall be calculated from the date of the SLMC as a percentage of the gross licence fees (fees for part years being apportioned on a pro rata basis), for the permitted usage of the Software
10.16 ¬†¬†¬†¬† Maintenance will terminate automatically on termination of this Agreement pursuant to clause 14.
10.17 ¬†¬†¬†¬† During the continuance of the Maintenance Contract, the Customer shall:
10.17.1¬† Ensure that only properly trained and authorised persons use the System and that such persons at all times follow B1 Systems‚Äô and, where applicable, SAP's recommendations and requirements from time to time regarding the use of the same and the provision of security and backup copies.
10.17.2 Nominate a system supervisor who will handle most communications between the Customer and B1 Systems regarding the use of the System and the provisions of the Maintenance.
10.17.3 Promptly notify B1 Systems if any part of the SAP Software is not working properly.
10.17.4¬† Provide at its own expense such telecommunication facilities as are reasonably required by B1 Systems and/or SAP for testing and diagnostic purposes and to facilitate access to SAP's on-line information database.
10.17.5¬† Keep full security copies of the Customer's programs, databases and computer records in accordance with best computing practice.
10.17.6 Provide at its own expense all information and facilities reasonably required by B1 Systems to enable B1 Systems to perform the Maintenance.
10.17.7¬† Provide, upon reasonable request by B1 Systems, the applicable licence number(s) for the SAP Software.
10.17.8 Use the SAP Software (and the Designated Equipment upon which the same is run) in a proper and careful manner and, in the case of the SAP Software, in accordance with the written instructions of B1 Systems or SAP and to use only such media as B1 Systems may from time to time approve in connection with such SAP Software.
10.18 ¬†¬†¬†¬† If the Customer has failed to make payment of any maintenance fees that are due, B1 Systems may serve notice on the Customer requesting it to remedy its breach by paying those fees within 15 days of the date of service of the notice. If the fees are not paid, B1 Systems shall have the right at any time after the expiry of that 15 day period and whilst the fees remain unpaid, to terminate maintenance immediately by giving notice to that effect to the Customer.
10.19¬†¬†¬†¬†¬† Either party may terminate maintenance, by giving not less than three months notice to the other.
10.20¬†¬†¬†¬†¬† Following termination, the Customer may reinstate maintenance by paying to B1 Systems all maintenance fees that would have been due but for the termination.
10.21¬†¬†¬†¬†¬† In the event of termination during a current maintenance period B1 Systems has no obligation to refund any payments made for that current period.
11.¬†¬†¬†¬†¬†¬†¬†¬†¬† Confidentiality and Publicity
11.1¬†¬†¬†¬†¬†¬†¬† Each party shall maintain the confidentiality of the other party's Confidential Information and shall not use or disclose any of it without the prior written consent of the other party other than as necessary to fulfil this Agreement or as required by law.
11.2¬†¬†¬†¬†¬†¬†¬† Each party undertakes to disclose the other party's Confidential Information only to those of its officers, employees, agents, contractors, auditors or other professional advisors to whom, and to the extent to which, disclosure is necessary for the fulfilment of this Agreement or for the purposes of professional advice and to ensure that those persons observe the terms of clauses 11.1 and 11.2
11.3¬†¬†¬†¬†¬†¬†¬† Clauses 11.1 and 11.2 shall still apply after termination of this Agreement except to information which loses its necessary quality of confidence in any way other than as a result of a breach by either party of clause 11.1 or 11.2 or a disclosure by either party or a third party in breach of any other obligation of confidence.
11.4¬†¬†¬†¬†¬†¬†¬† The parties shall work together to manage publicity concerning their relationship and, in particular, they shall try to agree co-operation in the following areas: use of the Customer's name in B1 Systems customer lists; reference site visits to Customer/Group Company premises by other B1 Systems customers or prospects; reference telephone calls between nominated contacts of Customer/Group Companies and other B1 Systems customers or prospects; publication of case studies relating to the business benefits and technical aspects of Customer/Group Company B1 Systems software projects; speaking engagements and press releases.
12. ¬†¬†¬†¬†¬†¬†¬†¬† Limits of Liability
12.1¬†¬†¬†¬†¬†¬†¬† Except as referred to in clause 12.3 and subject to clause 12.2, the aggregate liability of B1 Systems in respect of all claims arising under or in connection with this Agreement or the legal relationship established by this Agreement (whether in contract, tort or otherwise) shall be limited so that it shall in no circumstance exceed 125% of the total licence fees payable under this Agreement.
12.2 ¬†¬†¬†¬†¬†¬† B1 Systems shall not in any circumstance (other than those referred to in clause 12.3) be liable for any loss of profits (actual or anticipated), loss of revenue, loss of anticipated savings, loss of goodwill, loss or corruption of or damage to data or for any indirect, incidental, consequential or special loss or damage.
12.3 ¬†¬†¬†¬†¬†¬† Nothing in this Agreement shall exclude or limit B1 Systems' liability for death or personal injury resulting from negligence or in relation to any claim based on fraud, criminal act or a breach of the obligations imposed by s.12, Sale of Goods Act 1979 or s.2, Supply of Goods and Services Act 1982.
The Customer may not assign or otherwise transfer or hold on trust its rights and obligations under this Agreement in whole or in part. Furthermore, the Customer may not sub-license its rights and obligations or any of them except as referred to in clauses 3.8, 3.16 and 3.18.
14.1 ¬†¬†¬†¬†¬†¬† This Agreement may be terminated:
14.1.1 ¬†¬†¬† By the Customer giving 3 months written notice to B1 Systems;
14.1.2 ¬†¬†¬† By either party immediately on giving notice to the other where that other party has committed a material breach of any term of this Agreement and, in the case of a breach which is capable of being remedied, shall¬†have failed to remedy that breach within 30 days after receiving a notice from the other party requesting it to do¬†so; or
14.1.3 ¬†¬†¬† By either party immediately upon the other passing a resolution for winding-up (for a reason other than a¬†bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction making an order to that effect or the other party ceasing or threatening to cease to carry on business or the occurrence of any similar event in any jurisdiction.
14.1.4 ¬†¬†¬† (Where the Customer has entered into any financing or leasing agreement in relation to the Software) by B1¬†Systems in accordance with the terms agreed by Customer in such financing or leasing agreement.
14.2 ¬†¬†¬†¬†¬†¬† Upon termination for any reason:
14.2.1 ¬†¬†¬† All rights granted to the Customer under this Agreement and by the Customer to Group Companies, Supply¬†Chain Third Parties and Outsource Providers shall end;
14.2.2 ¬†¬†¬† Within 30 days of termination, the Customer shall return (or, if so requested by B1 Systems, destroy) the¬†Software and Documentation and all copies of it or any part of it and shall erase all stored copies, unless there is a legal requirement for it to keep them for a longer period in which case it shall give notice to B1 Systems informing B1 Systems as to that requirement and shall subsequently return them to B1 Systems as soon as practicable when that legal requirement ceases to apply. The Customer shall certify that this has been done and this certificate shall be served in accordance with clause 15.8.
14.2.3 ¬†¬†¬† Any term of this Agreement which is expressly or by implication intended to come into or continue in force on or after termination shall come into force or continue in force as intended; and
14.2.4 ¬†¬†¬† Rights that have accrued to either party prior to termination shall not be affected.
14.2.5¬†¬†¬†¬† Termination by the customer will not result in the refunding of any maintenance or support revenue.
15. ¬†¬†¬†¬†¬†¬†¬†¬† General
15.1 ¬†¬†¬†¬†¬†¬† This Agreement constitutes the entire agreement and understanding of the parties relating to the supply, licensing, use, possession and maintenance of the Software and Documentation; it supersedes any previous agreement or understanding between the parties relating to that subject matter. Subject to clause 12.3, the Customer acknowledges that in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any representation or statement (written or oral) made by any person (whether or not a party to this Agreement) other than those expressly set out in this Agreement and that, in respect of the representations and statements which are expressly set out in this Agreement, the Customer's only remedies shall be for breach of contract under the terms of this Agreement.
15.2¬†¬†¬†¬†¬†¬†¬† The terms of this Agreement are in lieu of all warranties, conditions, undertakings, terms and obligations concerning the supply, licensing, use, possession and maintenance of the Software and Documentation which might but for this clause have effect between B1 Systems and the Customer or would otherwise be implied or incorporated into this Agreement or considered to take effect as a collateral contract, whether by statute, common law, trade usage, course of dealing or otherwise, all of which are agreed to be excluded to the fullest extent permitted bylaw.
15.3 ¬†¬†¬†¬†¬†¬† No variation of this Agreement shall be valid unless it is in writing, it expressly states that it varies this Agreement and it is signed by authorised representatives of each party.
15.4¬†¬†¬†¬†¬†¬†¬† A failure to exercise or a delay in exercising a right or remedy provided by this Agreement or by law shall not constitute a waiver of that right or remedy. If an effective waiver of a breach of any of the terms of this Agreement is made, that waiver shall not constitute a waiver in respect of any other breach.
15.5 ¬†¬†¬†¬†¬†¬† If any term of this Agreement is or becomes unenforceable or invalid, such invalidity or unenforceability shall not affect the other terms of this Agreement which shall remain in full force and effect.
15.6 ¬†¬†¬†¬†¬†¬† If any term of this Agreement is or becomes invalid or unenforceable but would be valid or enforceable if some part of it were deleted or modified by the parties, the term in question shall apply with such modification as may be necessary to make it valid and enforceable. The parties shall act reasonably and in good faith to agree any such modification.
15.7¬†¬†¬†¬†¬†¬†¬† No delay, failure or default in the performance of any obligation under this Agreement shall constitute a breach of contract to the extent caused by circumstances beyond the reasonable control of the party whose performance is affected but nothing in this clause shall excuse the Customer from any payment obligations under this Agreement.
15.8¬†¬†¬†¬†¬†¬†¬† All notices which are required to be given under this Agreement shall be in writing and shall be sent to the then current registered office of the recipient or such other address as the recipient may designate by notice given in accordance with this clause. All notices must be addressed to the parties' respective Finance Directors. Any notice must be delivered personally or sent by first class pre-paid recorded delivery and shall be deemed to have been served, if delivered personally at the time of delivery, or, if sent by post 48 hours after posting.
15.9¬†¬†¬†¬†¬†¬†¬† A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
15.10 ¬†¬†¬†¬† This Agreement shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with this Agreement or the legal relationship established by this Agreement.
15.11 ¬†¬†¬†¬† Project definition documentation, when signed by all parties will define the scope of the project implementation. Any changes to this document after commencement of the project will be covered by the change request procedure, during this procedure impact analysis will determine if the said changes will impact any costs. Any additional costs attributed to the project via the change request process will be invoiced as extra for full payment by the customer.
15.12 Whilst B1 Systems aims to keep the necessity for expenses to a minimum, all expenses incurred in the delivery of the project will charged to and be reimbursed by the customer¬†unless other wise agreed.