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SOFTWARE END-USER LICENSE AGREEMENT

End User License Agreement

SOFTWARE END-USER LICENSE AGREEMENT | Document Parties: COLLEGIATE PACIFIC INC | SAP AMERICA, INC. | Sport Supply Group, Inc. You are currently viewing:
This End User License Agreement involves

COLLEGIATE PACIFIC INC | SAP AMERICA, INC. | Sport Supply Group, Inc.

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Title: SOFTWARE END-USER LICENSE AGREEMENT
Date: 11/21/2005
Industry: Retail (Catalog and Mail Order)     Sector: Services

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SAP AMERICA, INC.
R/3 SOFTWARE END-USER LICENSE AGREEMENT
(“Agreement”)

     This Agreement is made effective as of the 11th day of June, 1998, by and between SAP AMERICA, INC., a Delaware corporation, with offices at 701 Lee Road, Wayne, Pennsylvania 19087 (“ SAP ”), and Sport Supply Group, Inc., a Delaware corporation, with offices at 1901 Diplomat Drive, Farmers Branch, Texas 75234 (“ Licensee ”).

RECITAL

     WHEREAS, SAP desires to grant to Licensee and Licensee desires to accept from SAP, a license to Use (as defined herein) SAP’s proprietary R/3 Software (as defined herein) upon the terms and conditions hereinafter set forth;

         NOW, THEREFORE, SAP and Licensee agree as follows:

1.

 

DEFINITIONS .

 

 

 

1.1

 

ABAP /4 Development Workbench Users” (“D/W Users”) means those individuals authorized to use the ABAP/4 Development Workbench. Each D/W User must also be licensed as a Basis/Workflow User.

 

 

 

1.2

 

Affiliate ” means a corporation located in the Territory in which Licensee owns more than fifty percent of the voting securities. Any such entity shall be considered an Affiliate for only such time as Licensee continues to own such equity interest.

 

 

 

1.3

 

Basis/Workflow Users ” means those individuals authorized to access the licensed Software solely for the purpose of executing the following transactions: (i) document management, including optical archiving; (ii) workflow organizational management; (iii) monitoring and administration of the Software; (iv) creating IDocs; (v) initializing workflows; (vi) all Enterprise Office/HR User transactions in the licensed Software as specified herein; and (vii) all transactions in the licensed Human Resources functionality.

 

 

 

1.4

 

Business Third Party ” means any third party that requires access to the Software in connection with the operation of Licensee’s and/or its Affiliates’ business including, but not limited to, customers, distributors and suppliers.

 

 

 

1.5

 

Correction Level ” means a change to the Software between Versions (3. l( a )).

 

 

 

1.6

 

Designated Unit ” means each individual computer in which the Software and Third-Party Database are installed.

 

 

 

1.7

 

Documentation ” means SAP’s standard documentation, in any medium, which is delivered to Licensee under this Agreement, including SAP’s standard manuals, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, and complete or partial copies of the foregoing.

 

 

 

1.8

 

Enterprise Office/HR Users ” means those individuals authorized to access the licensed Software solely for the purpose of executing the following transactions: (i) employee records maintenance; (ii) employee time and attendance entry; (iii) employee travel and expense report filing; (iv) employee directory; (v) employee training registration; (vi) employee opportunity inquiry and response; (vii) calendar functions; (viii) employee specific purchase requisition; and (ix) e-mail. Each Enterprise Office/HR User may execute the above transactions solely for such individual’s own purposes or on behalf of other licensed Users and may not execute transactions for or on behalf of unlicensed individuals.

 

 

 

1.9

 

Extension ” means an addition to the Software which does not require a Modification.

 

 

 

1.10

 

Information Users ” (“Info Users”) means those individuals authorized to access the licensed Software solely to perform “ read only ” Software transactions. Each Information User must also be licensed as a Basis/Workflow User.

 

 

 

1.11

 

Modification ” means a change to the Software which changes the source code.

SAP CONFIDENTIAL

 


 

1.12

 

Named Users or Operational Users ” means those individuals authorized to access the licensed Software to execute Software transactions. Each Named or Operational User must also be licensed as a Basis/Workflow User.

 

 

 

1.13

 

Non-Productive Use ” means Use of the Software solely for Licensee’s or an authorized Affiliate’s internal training, testing or developmental work.

 

 

 

1.14

 

Productive Use ” means Use of the Software solely to operate Licensee’s or an authorized Affiliate’s business.

 

 

 

1.15

 

Program Concepts ” means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs or modules included in the Software, including their structure, sequence, and organization.

 

 

 

1.16

 

Proprietary Information ” means: (i) with respect to SAP and SAP AG, the Software and Documentation and any complete or partial copies thereof, the Program Concepts, Third-Party Database, any other third- party software licensed with or as part of the Software, benchmark results,; and (ii) information reasonably identifiable as the confidential and proprietary information of SAP or Licensee or their licensors excluding, any part of the SAP or Licensee Proprietary Information which: (a) is or becomes publicly available through no act or failure of the other party; or (b) was or is rightfully acquired by the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) becomes independently available to the other party as a matter of right.

 

 

 

1.17

 

Release ” means each issuance of the Software, excluding third party software, identified by the numeral to the left of the decimal point (e.g., 3 .0).

 

 

 

1.18

 

Requisitions and Confirmation Users” (“R/C Users”) means those individuals authorized to access the licensed Software solely for the purpose of submitting purchase requisitions or entering production order completion confirmations, Each R/C User must also be licensed as a Basis/Workflow User.

 

 

 

1.19

 

SAP AG ” means SAP Aktiengesellschaft, the licensor of the SAP Proprietary Information to SAP.

 

 

 

1.20

 

Session Users ” means (i) that number of individuals, other than employees of Licensee, Affiliates, or identifiable employees of Business Third Parties, licensed to simultaneous execute sessions on an internet server or Third Party Front-End interfaced to the Software or; (ii) that number of devices authorized to simultaneously execute sessions on an internet server or Third Party Front-End interfaced to the Software.

 

 

 

1.21

 

Software ” means (i) all software specified in agreed upon Appendices hereto, developed by SAP AG and delivered to Licensee hereunder; (ii) any Releases, Versions, or Correction Levels of the Software as contemplated by this Agreement; and (iii) any complete or partial copies of any of the foregoing.

 

 

 

1.22

 

Territory ” means the United States of America and any additional countries as agreed upon in advance in writing by the parties.

 

 

 

1.23

 

Third Party Front-End ” means any Licensee or third party software and/or device interfaced to the Software.

 

 

 

124

 

Third-Party Database ” means third-party proprietary database software licensed through SAP to Licensee.

 

 

 

1.25

 

Use ” means to load, execute, access, employ, utilize, store, or display the Software.

 

 

 

1.26

 

Users ” means any combination of Named or Operational, Information, R/C, D/W, Basis/Workflow, Enterprise Office/HR, or Session Users licensed under this Agreement.

 

 

 

1.27

 

Version ” means each issuance of each Release of the Software, excluding third party software, identified by the numeral to the right of the decimal point (3. 1 ).

      SAP CONFIDENTIAL

2


 

2.

 

LICENSE GRANT .

 

 

 

2.1

 

Grant of License .

(a) Subject to this Agreement, SAP grants and Licensee accepts, a non-exclusive, perpetual (unless terminated in accordance with Section 5 herein) license for Users to Use the Software, Documentation, other SAP Proprietary Information and Third-Party Database provided by SAP to Licensee, at specified site(s) within the Territory for Productive and Non-Productive Uses. This license does not permit Licensee to: (i) Use the Software and Third-Party Database for a service bureau application; or (ii) sublicense, or rent the Software or Third-Party Database.

(b) Licensee agrees to install the Software and Third-Party Database only on Designated Unit(s), intranet server(s) or internet server(s) as identified by Licensee pursuant to this Agreement and which have been previously approved by SAP in writing or otherwise officially made known to the public as appropriate for Use or interoperation with the Software and Third Party Database. The maximum number of Users licensed to directly or indirectly access the Software, and Third Party Database, shall be specified in Appendices to this Agreement. Licensee shall promptly provide written notice to SAP if the number of Users exceeds such maximum number.

(c) Licensee may transfer the Software and Third-Party Database from one Designated Unit to another at no additional license fee, and shall provide written notice to SAP within ten business days of such installation. Licensee shall be responsible for the cost of any migration tools, Third-Party Database costs, third-party software or additional Software required for the new Designated Unit. The Software and Third-Party Database must be promptly deleted in their entirety from the Designated Unit no longer in use and from each back-up copy for that Designated Unit.

2.2

 

Authorization of Affiliates to Use the Software . Affiliates shall be authorized to Use the Software and Third-Party Database; provided that: (i) each Affiliate shall first sign and deliver to SAP its agreement to be bound by the terms herein in the form of Exhibit B attached hereto; and (ii) such Use shall be subject to the following: (A) Licensee accepts responsibility for the acts or omissions of such Affiliate as if they were Licensee’s acts or omissions; (B) Licensee shall indemnify SAP against losses or damages suffered by SAP arising from breach of this Agreement by any such Affiliate as if effected by Licensee; and (C) such Use shall not constitute an unauthorized exportation of any SAP Proprietary Information under U.S. Government laws and regulations.

 

 

 

2.3

 

Authorization of Business Third Parties to Access the Software . Business Third Parties may have access to the Software provided: (i) each Business Third Party shall execute a confidentiality agreement pursuant to Section 6.2 herein; (ii) all Business Third Parties accessing the Software shall be licensed as Users; (ii) Business Third Parties are expressly limited to screen access to the Software; (iv) in no circumstances may Business Third Parties have access to Software source code; (v) in no circumstances shall Business Third Parties Use the Software to operate or manage the business of such Business Third Parties (vi) such Use shall be subject to the following: (A) Licensee accepts responsibility for the acts or omissions of such Business Third Parties as if they were Licensee’s acts or omissions; (B) Licensee shall indemnify SAP against losses or damages suffered by SAP arising from breach of this Agreement by any such Business Third Party as if effected by Licensee; and (C) such Use shall not constitute an unauthorized exportation of any SAP Proprietary Information under U.S. Government laws and regulations.

 

 

 

2.4

 

Audit Right . During Licensee’s normal business hours and at any time during which the Software, Documentation, Third-Party Database, or other SAP Proprietary Information are being utilized, SAP, or its authorized representative or licensors, shall have the right upon at least 10 business days advance written notice to audit and inspect Licensee’s or any Affiliate’s utilization of such items, in order to verify compliance with the terms of this Agreement. If Proprietary Information is given to Business Third Parties pursuant to this Agreement, Licensee shall secure the right for SAP to audit such Business Third Party as specified in this Section.

 

 

 

2.5

 

Archival Copy; Restriction on Copies; Legends to be Reproduced .

(a) Licensee may make one copy of the Software for archival purposes and such number of backup copies of the Software as are consistent with Licensee’s normal periodic backup procedures. Licensee shall maintain a log of the number and location of all originals and copies of the Software.

      SAP CONFIDENTIAL

3


 

(b) Licensee shall include, and shall under no circumstances remove, SAP’s and its licensors’ copyright, trademark, service mark, and other proprietary notices on any complete or partial copies of the Software, Documentation, Third-Party Database, or SAP Proprietary Information in the same form and location as the notice appears on the original work. The inclusion of a copyright notice on any portion of the Software, Documentation, Third-Party Database, or SAP Proprietary Information shall not cause or be construed to cause it to be a published work.

2.6

 

License for Third-Party Database . The Software requires a third-party database which may be licensed through SAP or directly from a third-party database licensor approved by SAP. In the event Licensee obtains a license directly from a third-party database licensor, any restrictions imposed on Licensee directly by such third-party database licensor shall apply. SAP makes no representations or warranties as to the Third-Party Database or its operation.

 

 

 

3.

 

DELIVERY . The licensed Software in machine-readable format, and the Documentation, shall be delivered as specified in Appendices hereto (“ Delivery ”). Licensee shall be responsible for installation of the Software.

 

 

 

4.

 

PRICE AND PAYMENT .

 

 

 

4.1

 

License Fees . In consideration of the license granted hereunder, Licensee shall pay to SAP license fees for the Software on such terms as set forth in Appendices hereto (“ License Fees.”) Fees for Maintenance (“ Maintenance Fees ”) shall be paid as set forth in Appendices hereto. Any fees Licensee does not pay when due shall accrue interest at the rate of 18% per annum, but not to exceed the maximum amount as allowed by law. Licensee also agrees to pay SAP all reasonable costs and expenses of collection, including attorney’s fees.

 

 

 

4.2

 

Taxes . License and Maintenance Fees and other charges described in this Agreement and its Appendices, or in SAP’s most recent List of Prices and Conditions, do not include federal, state or local sales, use, property, excise, service, or similar taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Licensee’s account. With respect to state/local sales tax, Licensee shall provide prior to the execution of this Agreement (i) a valid Direct Pay Permit to SAP; or (ii) a valid Tax-Exempt Certificate to SAP. If Licensee does not comply with (i) or (ii), SAP will determine the appropriate Taxes (excepting only taxes on net income) which are due, invoice Licensee for such sales tax, and pay the Taxes it determined to be due to the appropriate tax authorities. Licensee hereby agrees to indemnify SAP for and hold it harmless from (1) any Taxes (excepting only taxes on net income) paid or payable by SAP; (2) all costs incurred by SAP in determining and remitting the Taxes due; and (3) interest and penalties, if any, imposed by reason of the late payment or miscalculation of any Taxes.

 

 

 

5.

 

TERM AND TERMINATION.

 

 

 

5.1

 

Term . This Agreement and the license granted hereunder shall become effective as of the date first set forth above and shall continue in effect thereafter unless terminated under Section 5.2.

 

 

 

5.2

 

Termination . This Agreement and the license granted hereunder shall terminate upon the earliest to occur of the following: (i) thirty days after Licensee gives SAP written notice of Licensee’s desire to terminate this Agreement, for any reason, but only after payment of all License and Maintenance Fees then due and owing; (ii) forty-five days after SAP gives Licensee written notice of Licensee’s material breach of any provision of the Agreement), including more than forty-five days delinquency in Licensee’s payment of any money due hereunder, unless Licensee has cured such breach during such forty five day period; (iii) ten days after SAP gives notice of Licensee’s material breach of Section 6, unless Licensee has cured such breach during such ten day period (iv) Immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors.

 

 

 

5.3

 

Effect of Termination . Upon any termination of this Agreement: Sections 6, 7.4, 8, 9, 10, 12.5, and 12.7 shall survive such termination; Licensee’s rights under Section 2 shall immediately cease; and SAP and Licensee each shall promptly perform its obligations under Section 5.4 . In the event of any termination hereunder, except as otherwise may be provided for pursuant to Section 8.3 or Section 9.1 (iii), Licensee shall not be entitled to any refund of any payments made by Licensee.

SAP CONFIDENTIAL

 

4


 

 

5.4

 

Duties Upon Termination . Upon any termination hereunder, Licensee and its authorized Affiliates shall immediately cease Use of all SAP Proprietary Information and shall irretrievably delete and/or remove such items from all computer hardware and storage media. Within forty-five days after any termination, Licensee shall deliver to SAP at Licensee’s expense (adequately packaged and insured for safe delivery) or destroy all copies of the SAP Proprietary Information in every form. Licensee agrees an officer of Licensee’s organization shall certify in writing to SAP that it and each of its authorized Affiliates has performed the foregoing. Within forty-five days after any termination, SAP shall return the Licensee Proprietary Information to Licensee.

 

 

 

6.

 

PROPRIETARY RIGHTS

 

 

 

6.1

 

SAP Proprietary Information .

(a) Licensee acknowledges 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 its licensors. Licensee acquires only the right to Use the SAP Proprietary Information and does not acquire any ownership rights or title in or to the SAP Proprietary Information and that of SAP’s licensors.

(b) Licensee 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. ln the event source code is provided to Licensee, SAP, in its sole discretion, reserves the right to delete, or to require the deletion of, such source code and all copies thereof in Licensee’s possession or control whenever a future Release, Version, or Correction Level provides for like functionality in an object code format.

(c) Subject to Section 6.3(b), all Modifications and Extensions to the Software and Documentation shall be considered part of the Software and Documentation for purposes of this Section 6.

6.2

 

Protection of Proprietary Information . In order to protect the rights of SAP and its licensors and Licensee in their respective Proprietary Information, SAP and Licensee agree to take all reasonable steps and the same protective precautions to protect the Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall, without the other party’s prior written consent, disclose, provide, or make available any of the Proprietary Information of the other party in any form to any person, except to its bona fide employees, officers, directors, or third parties whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party to any third party, including identifiable Business Third Parties, it will obtain from that third party a written acknowledgment that such third party will be bound by the same terms as specified in this Section 6 with respect to the Proprietary Information and naming SAP as a third party beneficiary.

 

 

 

6.3

 

Modifications and Extensions .

(a) Licensee may make Modifications and Extensions to the Software, other than third party software, for Use on the Designated Unit(s) under the terms set forth in this Section. Licensee shall register all Modifications to the Software with SAP prior to making such Modifications. Licensee agrees to insert in all copies of the Software as modified all copyright, trade secret, or other notices thereon or therein as SAP may from time to time direct.

(b) In the event Licensee without SAP’s participation develops any Modification or Extension (hereinafter referred to as “Licensee Extension” or “Licensee Modification”) to the Software, Licensee shall have all rights, title, and interest in such Licensee Modification or Licensee Extension subject to SAP’s rights in the Software. Licensee agrees to offer SAP the first right to negotiate a license to or assignment of such Licensee Modification or Licensee Extension and the parties agree to negotiate such rights in good faith. Licensee agrees that prior to SAP’s exercise or waiver of its first right to negotiate, such Licensee Modification or Licensee Extension will be used solely in connection with Licensee and its Affiliates’ business operations, and that such Licensee Modification or Licensee Extension will not be marketed, licensed or sublicensed, sold, assigned, or otherwise transferred or made available to any third party or other entity.

(c) In the event SAP develops either independently, or jointly with Licensee, any Modification or Extension to the licensed Software, such Modification or Extensions and all rights associated therewith

SAP CONFIDENTIAL

5


 

will be the exclusive property of SAP and SAP AG, and Licensee will not grant, either expressly or impliedly, any rights, title, interest, or licenses to such Modifications or Extensions to any third party. Licensee shall be entitled to Use such Modifications and Extensions developed for or with Licensee on the Designated Unit(s) under the terms set forth in this Agreement. Licensee agrees to assign all right, title and interest in and to jointly developed Modifications and Extensions to SAP. Licensee agrees to execute, acknowledge and deliver to SAP all documents and do all things necessary, at SAP’s expense, to enable SAP to obtain and secure such Modifications or Extensions throughout the world. Licensee agrees to secure the necessary rights and obligations from relevant employees, or third parties in order to satisfy the above obligations.

(d) The parties hereto agree that the granting of any rights, title, or interest to Licensee in any Modification or Extension shall not be construed by the parties hereto, any court of law or equity, or any arbitration panel to mean that SAP has granted or given up any rights, title, or interest in or to the SAP Proprietary Information.

(e) Licensee agrees not to take any action that would limit SAP’s independent development, sale, assignment, licensing or use of its own Software or Modifications or Extensions thereto.

6.4

 

Escrow Of Source Code .

(a) SAP warrants that the source code for the Software, together with related Documentation as it is or becomes available, has been deposited in an escrow account maintained at Data Securities International Inc. Burlington, MA (the “Escrow Agent”), pursuant to an agreement between the Escrow Agent and SAP, (the “Escrow Agreement”).

(b) SAP will from time to time deposit into the escrow account copies of source code for Releases and Versions of the Software and related Documentation.

(c) SAP or SAP’s trustee in bankruptcy shall authorize the Escrow Agent to make and release a copy of the applicable deposited materials to Licensee upon the occurrence of any of the following events:

(i) The existence of any one or more of the following circumstances, uncorrected for more than thirty (30) days: entry of an order for relief under Title 11 of the United States Code; the making by SAP of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of SAP’s business or property; or action by SAP under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation; unless within the specified thirty (30) day period, SAP (including its receiver or trustee in bankruptcy) provides to Licensee adequate assurances, reasonably acceptable to Licensee, of its continuing ability and willingness to fulfill its maintenance obligations under this Agreement;

(ii) SAP has ceased its on-going business operations or that portion of its business operations relating to the sale, licensing and maintenance of the Software; or

(iii) Failure of SAP to carry out the material maintenance obligations imposed on it pursuant to this Agreement after reasonable opportunity has been provided to SAP and SAP AG to perform such obligations.

(d) In no event shall Licensee have the right to access the applicable deposited materials if SAP AG agrees to assume SAP’s maintenance obligations under this Agreement.

(e) In the event of release under this Agreement, Licensee agrees that it will treat and preserve the deposited materials as a trade secret of SAP AG in accordance with the same precautions adopted by Licensee to safeguard its own trade secrets against unauthorized use and disclosure and in all cases at least with a reasonable degree of care. Release under this provision shall not extend Licensee any greater rights or lesser obligations than are otherwise provided or imposed under this Agreement. This provision shall survive any termination of this Agreement. SAP agrees not to change the Escrow Agent described herein without prior written notice to Licensee.

SAP CONFIDENTIAL

6


 

7.

 

PERFORMANCE WARRANTY .

 

 

 

7.1

 

Warranty Period; Warranty . SAP warrants that the Software will substantially conform to the functional specifications contained in the Documentation for nine months following Delivery (the “ Warranty Period ”) when Used without material alteration on the Designated Unit(s). SAP’s warranty is subject to Licensee providing SAP necessary access, including remote access, to the Software. Licensee shall provide SAP with sufficient test time and support on Licensee’s Designated Unit(s) to correct the defect.

 

 

 

7.2

 

Scope of Warranty.

(a) The warranty set forth in this Section 7 shall not apply: (i) if the Software is not used in accordance with the Documentation; or (ii)unless otherwise agreed upon in writing, to any Extensions or Modifications; or (iii) if the defect is caused by: a Modification or Extension, Licensee, or a third-party software malfunction.

(b) SAP does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors which do not materially affect such performance or that the applications contained in the Software are designed to meet all of Licensee’s or its authorized Affiliates’ business requirements.

7.3

 

Year 2000 Compliance. SAP represents and warrants that its R/3 Software is Year 2000 Compliant. Year 2000 Compliant means the ability of R/3 to:

(a) consistently process R/3 date information before, during, and after January 1, 2000 correctly, including accepting date input, providing date output, and processing dates or portions of dates;

(b) function before, during and after January 1, 2000, without the need for program changes caused by the advent of the new century;

(c) respond to two-digit year-date input in a way that resolves the ambiguity as to century in a disclosed and defined manner predetermined by the end-user; and

(d) store and provide output of date information in ways that are unambiguous as to century.

7.4

 

SAP has taken best efforts to test the Software licensed pursuant to the Appendices for Disabling Code (as defined herein) and to the best of its knowledge, the Software and all current and future


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