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EXHIBIT 10.24
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
SOFTWARE LICENSE AGREEMENT
(“Agreement”)
This Agreement is made effective as of the 30 day of September, 2007, by and between SAP America, Inc., a Delaware corporation, with offices at 3999 West Chester Pike, Newtown Square, PA 19073 (“SAP”), and Pacer International, Inc., a Tennessee corporation, with offices at 2300 Clayton Road, Concord, CA 94520 (“Licensee”).
1. DEFINITIONS.
1.1 “Affiliate” means a legal entity (A) in which Licensee owns, directly or indirectly, (i) at least fifty percent (50%) of the voting securities or (ii) in the case of a limited liability company (“LLC”) or limited liability partnership (“LLP”), (1) owns directly or indirectly at least fifty percent (50%) equity interest (i.e. [ *1 ]) and (2) possesses the controlling interest [ *2 ] and Licensee [ *3 ] has the contractual power and right to direct the day to day management and policies of such entity or (B) other entities as mutually agreed upon by the parties as listed in Part II of Exhibit B. Any such entity shall be considered an Affiliate only for such time as Licensee continues to own at least such equity interest or maintains at least such equity or controlling interest in such entity or other criteria as agreed upon by the parties for the entities on Part II of Exhibit B.
1.2 “Business Partner” means an entity that requires access to the Software in connection with the operation of Licensee’s or its [ *4 ] business, including, but not limited to, [ *5 ].
1.3 “Documentation” means SAP’s documentation, including SAP’s standard manuals, [ *6 ] which is part of the Software as defined in Section 1.7 hereof), [ *7 ], and complete or partial copies of the foregoing, which is delivered to Licensee under this Agreement or as otherwise generally available to SAP’s licensee base.
1.4 “Modification” means a change to the Software that changes the delivered source code or an enhancement to the Software that is made using SAP tools [ *8 ] or utilizing or incorporating SAP Proprietary Information.
1.5 “Named Users” means any combination of users licensed under this Agreement. [ *9 ]
1.6 “Proprietary Information” means: (i) with respect to SAP and SAP AG (the licensor of the SAP Proprietary Information to SAP), the Software and Documentation, any other third-party software licensed with or as part of the Software, benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) with respect to SAP and SAP AG, the concepts, techniques, ideas, and know-how embodied and expressed in the Software; (iii) with respect to both parties, information reasonably identifiable as the confidential and proprietary information of SAP or Licensee or their licensors; and (iv) with respect to Licensee, (1) non-public information relating to Licensee’s technology, products, business plans, promotional and marketing activities, finances and other business affairs; (2) third party information that Licensee is obligated to keep confidential; (3) data of or with respect to employees of Licensee or its Affiliates; and (4) all supplier and customer and supplier and customer transactional information. Proprietary Information does not include 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 without obligation of confidence by the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) can be shown by documentation to have been independently developed by the receiving party without reference to any Proprietary Information of the other party.
1.7 “Software” means (i) all software, which may be in [ *10 ] as delivered [ *11 ] specified in agreed upon Appendices hereto, developed by or for SAP and/or SAP AG and delivered to Licensee hereunder; (ii) any new releases thereof made generally available [ *12 ] as Licensee is then receiving from SAP; and (iii) any complete or partial copies of any of the foregoing.
1.8 “Territory” means the United States of America [ *13 ]. Named Users may be located outside the Territory, except in those countries to which export of the SAP Confidential Information is restricted by U.S. export control laws.
1.9 “Use” means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display [ *14 ] information resulting from such capabilities.
2. LICENSE GRANT.
2.1 License.
(a) SAP grants Licensee a non-exclusive, perpetual (unless terminated in accordance with Section 5 herein) license to Use the Software, Documentation, other SAP Proprietary Information, at specified site(s) within the Territory to run Licensee’s internal business operations and to provide internal training and testing for such internal business operations and as further set forth in Appendices hereto. This license does not permit Licensee to use the SAP Proprietary Information to provide business process outsourcing, service bureau applications, third party training or similar services to third parties. Business Partners may have screen and other access to the Software solely in conjunction with Licensee’s Use and may not Use the Software to run any of their business operations separate from their business interaction with Licensee.
SAP CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(b) Licensee agrees to install the Software only on hardware [ *15 ] identified by Licensee pursuant to this Agreement that has been previously approved by SAP in writing or otherwise officially made known to the public as appropriate for Use or interoperation with the Software or otherwise set forth in the Documentation (the “Designated Unit”). Except as otherwise provided in the Appendix applicable to the Software, any individuals that Use the Software including employees or agents of Affiliates and Business Partners, must be licensed as Named Users. Use may occur by way of an interface delivered with or as a part of the Software, a Licensee or third-party interface, or another intermediary system.
(c) Provided Licensee does not exceed the number of Named Users licensed hereunder, Licensee may transfer the Software from one Designated Unit to another, or may add additional Designated Units [ *16 ] additional license fee, and shall provide written notice to SAP within [ *17 ] business days of such installation. Licensee shall be responsible for the cost of any migration tools, third-party database costs or third-party software required for the new or additional Designated Unit(s). In the event of a transfer from one Designated Unit to another, the Software 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 Affiliate Use. The Affiliates identified in Exhibit B may Use the Software provided a breach by any such Affiliate shall be considered a breach by Licensee hereunder. Affiliates listed on Exhibit B may Use the Software. In the event an Affiliate is not listed on Exhibit B, Affiliates may Use the Software provided that: (i) in the event the Affiliate uses a copy of the Software, each such Affiliate agrees to be bound by the terms herein in the form of Exhibit A attached hereto prior to delivery of the Software copy; and (ii) a breach of such Exhibit by Affiliate shall be considered a breach by Licensee hereunder. Exhibit B may be amended (a) by Licensee to remove an Affiliate by notice to SAP; (b) by Licensee to add an Affiliate described by clause (A) of the definition of “Affiliate” by notice to SAP and (c) by written agreement of the parties to add as an Affiliate any entity not described by clause (A) of the definition of “Affiliate”.
2.3 Delivery of Software and Maintenance.
(a) The Software [ *18 ], and the Documentation, shall be delivered as specified in Appendices hereto. SAP will use commercially reasonable efforts to cooperate with Licensee’s request to deliver SAP Software and Support by making it available for download or other electronic transmission to Licensee’s location in: Concord, California. Notwithstanding the foregoing, in the event Licensee requests physical delivery of the Software, the parties agree to amend this Agreement to reflect Licensee’s delivery preference and SAP shall promptly so deliver the Software to a Licensee location within the Territory designated by Licensee in writing.
(b) Licensee will defend and indemnify SAP for any Taxes, penalties and related interest (excluding taxes based on SAP’s income or upon its property) should such taxes result from the license of the Software and provision of Maintenance, as SAP makes no representations regarding the taxability of such transaction but is simply complying with Licensee’s request. Licensee agrees that, in the event any physical delivery of Software or Maintenance should occur, such delivery shall be rejected by Licensee if Licensee has not requested the same. Licensee additionally acknowledges that should any Software or Maintenance be unavailable electronically, and unless Licensee requests physical delivery, then a delay in receipt of such Software or Maintenance deliverable may extend until electronic delivery is available or until SAP and Licensee agree contractually on another form of delivery, as provided in Section 2.3(a) above.
2.4 Archival Copy; Restriction on Copies; Legends to be Reproduced.
(a) Licensee may make one copy of the Software for archival purposes, one copy for each Designated Unit and such number of backup copies of the Software as are consistent with Licensee’s normal periodic backup and recovery procedures. Licensee shall maintain a log of the number and location of all originals and copies of the Software. [ *19 ]
(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 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 or SAP Proprietary Information shall not cause or be construed to cause it to be a published work.
2.5 Outsourcing. Licensee may permit the services providers to be identified by executing the Confidentiality Agreement in the form attached as Exhibit C, to have a copy and to operate the Software solely for the purpose of providing facility, systems, or disaster recovery services to Licensee in connection with the business of Licensee for which the Software is herein licensed provided: (i) SAP, Licensee, and each such services provider execute the Confidentiality Agreement in the form attached as Exhibit C prior to such access; (ii) all employees of such services provider authorized to access the Software shall be considered Named Users; (iii) such services provider shall be permitted to Use the Software solely to perform the services required by Licensee in connection with Licensee’s operation of its business as set forth herein, (including in the case of a disaster recovery vendor, to provide disaster recovery services); (iv) under no circumstances may such services provider Use the Software to operate or provide processing services to any other party, or in connection with such services provider’s own business operations; (v) Licensee shall be responsible for any additional Software, migration tools, or third party software needed to effect such transition; and (vi) Licensee expressly agrees to indemnify SAP, its officers, employees, agents and subcontractors from and against all claims, liabilities, losses, damages and costs (including reasonable attorney fees) suffered by SAP arising from a breach by the services provider of the conditions of this Agreement or the Confidentiality Agreement.
2
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
3. VERIFICATION. Upon SAP’s reasonable request [ *20 ] Licensee shall deliver to SAP a report, as defined by SAP, and produced by the Software evidencing Licensee’s usage of the Software licensed under this Agreement. In the event an audit reveals Licensee’s non-compliance with the terms of the Agreement, SAP shall be permitted to perform a re-audit [ *21 ]. Should Licensee fail to produce such report within the period reasonably defined in SAP’s request, SAP (or its authorized representative) reserves the right to access Licensee’s Software installation(s) upon [ *22 ] prior written notice during normal business hours and subject to any restrictions imposed by Licensee’s reasonable access and other information technology security policies to generate a usage report and Licensee shall pay SAP’s reasonable costs of generating such report. Such reports shall be maintained by Licensee and generated using reporting software either embedded in the Software or provided by SAP for the purpose of Licensee generating reports in accordance with this provision. In the event an onsite or electronic audit reveals that Licensee underpaid License and/or applicable Support Fees to SAP, SAP will so notify Licensee of the underpayment [ *23 ]. Licensee shall pay such underpaid fees based upon the prices and conditions set forth in this Agreement and the applicable Appendix, or if not so set forth herein or therein, on SAP’s list of prices and conditions[ *24 ].
4. PRICE AND PAYMENT.
4.1 License Fees. Licensee shall pay to SAP license fees for the Software and applicable Support fees [ *25 ] such level of support as Licensee is then receiving from SAP) on the terms and conditions in Appendices hereto. Fees for Services will be paid as set forth in the Professional Services Schedule hereto. Any [ *26 ] fees not paid when due shall accrue interest at the rate of [ *27 ] per annum, but not to exceed the maximum amount as allowed by law.
4.2 Taxes. Fees and other charges described in this Agreement, or in SAP’s most recent list of prices and conditions, do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar [ *28 ] taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Licensee’s account. Taxes shall not include taxes on SAP’s income or on its property. With respect to state/local sales tax, direct pay permits or valid tax-exempt certificates must be provided to SAP prior to the execution of this Agreement. If SAP is required to pay Taxes, Licensee shall reimburse SAP for such amounts. [ *29 ]
SAP shall contact Licensee during the course of its audits conducted by the tax authorities to determine whether Licensee has already been audited for the same periods, has been assessed taxes or has self-assessed taxes on the same transactions. SAP shall supply Licensee with information and documents as Licensee may reasonably request in regard to the tax authorities’ potential assessments of Licensee’s transactions. Licensee’s responses and any supporting documentation will be timely presented to the tax authorities. Licensee hereby agrees to indemnify SAP for any Taxes and related costs, interest and penalties paid or payable by SAP.
5. TERM.
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 upon the earliest to occur of the following: (i) thirty (30) 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 applicable Support Fees then due and owing; (ii) [ *30 ] days after either party gives notice of the other party’s material breach of any provision of the Agreement (other than a party’s breach of its obligations under Sections [ *31 ] including more than [ *32 ] days delinquency in Licensee’s payment of any [ *33 ] money due hereunder, unless such party has cured such breach during such [ *34 ] day period or if such breach is not [ *35 ] cured within such [ *36 ] day period, [ *37 ]; or (iii) [ *38 ] days after a party gives the other party notice of such other party’s material breach of Section [ *39 ] which is not cured in such [ *40 ] day period or otherwise such longer period as reasonably agreed upon by the parties in good faith; or (iv) by written notice with immediate effect by a party upon the existence of any one or more of the following circumstances, uncorrected for more than [ *41 ] days: entry of an order for relief under Title 11 of the United States Code as to the other party; the making by the other party of a general assignment for the benefit of creditors; the appointment of a general receiver or trustee in bankruptcy of the other party’s business or property; or action by the other party under any state insolvency or similar law for the purpose of its bankruptcy, reorganization, or liquidation. [ *42 ] With respect to (iii) above, this Agreement shall not be terminable in the event a party has filed for bankruptcy under Chapter 11 of Title 11 of the U.S. Code, and provides adequate written assurances to the other party within thirty (30) days of such filing of such party’s willingness and ability to cure any default and continue to perform its obligations pursuant to the terms and conditions of this Agreement.
5.2 End of Term Duties. Upon [ *43 ]. Upon any termination hereunder, Licensee and its Affiliates shall immediately cease Use of all SAP Proprietary Information. Within thirty (30) days after any termination, Licensee shall deliver to SAP or destroy all copies of the SAP Proprietary Information in every form. Licensee agrees to certify in writing to SAP that it and each of its Affiliates has performed the foregoing. Sections 4, 6, 7.2, 7.6, 8, 9, 11.4, 11.5 and 11.6 shall survive such termination. In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee[ *44 ]. Within thirty (30) days after any termination, SAP shall return the Licensee Proprietary Information to Licensee.
6. PROPRIETARY RIGHTS.
6.1 Protection of Proprietary Information. Except as provided herein, 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. Except for the rights set forth below, Licensee is not permitted to make derivative works of the Software and ownership of any unauthorized derivative works shall vest in SAP. SAP and Licensee agree to take all reasonable steps and the same protective precautions to protect the Proprietary Information of the other party hereto from disclosure to third parties as with its own proprietary and confidential information, and each party will use the other party’s Proprietary Information solely as reasonably necessary for
3
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
such party to perform its obligations and exercise its rights as contemplated hereunder. The receiving party will take commercially reasonable measures to avoid disclosure, dissemination or unauthorized use of the disclosing party’s Proprietary Information. The parties acknowledge that the disclosing party’s Proprietary Information may constitute material non-public information under U.S. securities laws and regulations, and each party agrees that it will not transact in securities of the other party based on any such Proprietary Information in violation of any applicable securities laws. Neither party shall, without the other party’s prior written consent, disclose any of the Proprietary Information of the other party 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 or fulfill its obligations hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party to any third party, 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. The receiving party may disclose Proprietary Information of the other party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law (e.g., disclosure obligations to any securities regulatory agency or stock agency), provided that the receiving party (i) gives the disclosing party reasonable written notice to allow the disclosing party to seek a protective order or other appropriate remedy (except to the extent that the receiving party’s compliance with the foregoing would cause it to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by Law, and (iii) uses commercially reasonable efforts to obtain confidential treatment for any Proprietary Information so disclosed.
6.2 Modifications.
(a) Licensee may make Modifications 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) [ *45 ]
(c) In the event SAP develops either independently, or jointly with Licensee, any Modification to the licensed Software, such Modification and all rights associated therewith 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 to any third party. [ *46 ] Licensee agrees to assign all right, title and interest in and to jointly developed Modifications to SAP. Licensee agrees to execute, acknowledge and deliver to SAP all documents and do all things necessary[ *47 ] to enable SAP to obtain and secure such Modifications 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 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) Except for enforcement of its rights under this Agreement or enforcement of its own intellectual property rights, Licensee agrees not to take any action that would limit SAP’s independent development, sale, assignment, licensing or use of SAP’s own Software or SAP’s own independently developed Modifications thereto.
7. WARRANTIES.
7.1 [ *48 ] Warranty. SAP warrants that the Software will materially conform to the functional specifications contained in the Documentation [ *49 ], for [ *50 ] months following delivery. The warranty shall not apply: (i) if the Software is not used in accordance with the Documentation; or (ii) if the defect is caused by a Modification, Licensee, third-party software [ *51 ], or by a third party database [ *52 ] Without limiting the foregoing, SAP does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software are designed to meet all of Licensee’s business requirements.
7.2 Supplemental Warranties. SAP represents that (i) it or its licensors own the Proprietary Information licensed by SAP hereunder, including all intellectual property rights therein, and that SAP has all rights from its licensors necessary to license, in accordance with the terms of this Agreement, such Proprietary Information to Licensee; and (ii) SAP’s Services shall be performed consistent with generally accepted industry standards.
7.3 General Warranty. SAP warrants that: (i) it is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and it has the corporate power and has all necessary licenses, rights and authorities to grant the License and perform its obligations under this Agreement, including all Schedules and Appendices, (ii) the execution of this Agreement and the performance of its obligations hereunder will not result in any violation or default of or conflict with (a) its Certificate or Articles of Incorporation or Bylaws, or (b) the provisions of any other agreement to which it is a party or by which it is bound and (iii) it has performed all corporate actions and received all corporate authorizations necessary, if any, to execute and deliver this Agreement and to perform its obligations hereunder. SAP further warrants that it shall use commercially reasonable efforts to comply with all applicable laws, judgments or regulations of any governmental authority.
7.4 No Virus. SAP warrants and represents that it has taken reasonable steps to ensure that Software is free from Computer Virus at the time of delivery. “Computer Virus” is defined as a computer program attached to or a section of code hidden within the Software that performs a function unauthorized by Software published documentation which adversely affects Licensee’s computer systems or the Software itself.
7.5 No Disabling Code. SAP warrants and represents that it has taken reasonable steps to test the Software for Disabling Code (as defined herein) and to the best of its knowledge, the Software is free of Disabling Code as of the date of delivery by SAP. “Disabling Code” is defined as computer instructions that alter, destroy or inhibit the licensed Software and/or Licensee’s processing environment, including but not limited to other program’s data storage and computer libraries, programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function.
4
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
7.6 Express Disclaimer. [ *53 ] SAP AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
8. INDEMNIFICATION.
8.1 Indemnification of Licensee. SAP shall defend, indemnify and hold harmless Licensee [ *54 ] against all claims, liabilities, and costs, including reasonable attorneys’ fees, reasonably incurred in the [ *55 ] defense [ *56 ] of any claim brought against Licensee in the Territory by third parties alleging that Licensee’s Use of the Software and Documentation infringes or misappropriates (i) any patent of the United States [ *57 ]; or (ii) a copyright; (iii) trade secret rights or (iv) other proprietary right of any third party, provided that: such indemnity shall not apply if the alleged infringement results from Use of the Software in conjunction with any other [ *58 ], an apparatus other than a Designated Unit, or unlicensed activities by Licensee. Licensee will promptly notify SAP in writing of any such claim and permit SAP to control fully the defense of such claim [ *59 ] any settlement of such claim as long as such settlement shall not include a financial obligation on Licensee [ *60 ]. Licensee shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to SAP. SAP may settle any claim on a basis requiring SAP to substitute for the Software and Documentation alternative substantially equivalent non-infringing programs and supporting documentation. Licensee shall not undertake any action in response to any infringement or alleged infringement of the Software and Documentation [ *61 ].
In the event that any preliminary injunction, temporary restraining order or final injunction shall be obtained in the Territory, SAP shall, at its sole option, either:
(a) obtain the right for continued use of the infringing Software and Documentation; or
(b) modify the infringing Software and Documentation to avoid such infringement while obtaining at least equivalent functionality; or
(c) substitute for the Software and Documentation alternative equivalent software and supporting documentation; or
(d) provide a refund to Licensee of paid license fees for that part of the Software under claim of infringement[ *62 ]. All such refunds shall be depreciated on a [ *63 ], with such depreciation beginning [ *64 ] following the initial delivery of the Software under claim of infringement.
For clarity, SAP shall first attempt to perform the actions set forth in clauses (a), (b) and (c), and only if such actions are not feasible despite SAP’s commercially reasonable best efforts shall SAP perform the actions set forth in clause (d), in accordance with the above terms.
8.2 THE PROVISIONS OF THIS SECTION 8 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF SAP AND ITS LICENSORS TO LICENSEE, AND IS LICENSEE’S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS BY SAP.
9. LIMITATIONS OF LIABILITY.
9.1 Licensee’s Remedies. Except for: (i) unauthorized use or disclosure of Licensee’s Proprietary Information, or (ii) SAP indemnification requirements under Section 8.1 herein, or (iii) SAP’s violation of Section 10 herein, Licensee’s sole and exclusive remedies for any damages or loss in any way connected with the operation or functional characteristics of the Software 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) to bring the performance of the Software into material compliance with the functional specifications or to the characteristics of the warranty set forth in Section 7.1, as the case may be; (ii) re-perform Support or (iii) return of an appropriate portion of any payment [ *65 ] made by Licensee with respect to the applicable portion of the Software (together with any prepaid but unearned [ *66 ] Support [ *67 ] Fees therefor).
9.2 Not Responsible. SAP will not be responsible under this Agreement (i) if the Software is not used in accordance with the Documentation; or (ii) if a defect in the Software is caused by Licensee, a Modification [ *68 ] third-party software, or third party database [ *69 ] SAP AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD PARTY SOFTWARE LICENSED HEREUNDER.
9.3 Limitation of Liability.
(a) ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR (I) DAMAGES RESULTING FROM UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY INFORMATION, [ *70 ] UNDER NO CIRCUMSTANCES SHALL SAP, ITS LICENSORS OR LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF [ *71 ] OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES.
(b) The foregoing limitation of liability on direct damages only does not apply to damages arising out of personal injury or death caused by the negligence or willful misconduct of SAP. In addition, the foregoing limitation of liability on direct damages only does not apply to damages arising out of tangible property damage caused by the negligence or willful misconduct of SAP up to [ *72 ].
5
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
9.4 Severability of Actions. SUBJECT TO THE TERMS OF THIS AGREEMENT, 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.
9.5 Coordination of Provisions. The limitation of liability and remedies provisions contained in this Section 9 shall not apply to Services provided pursuant to either the Professional Services Schedule to this Agreement (“PSS”) or a statement of work issued pursuant to the PSS; the limitation of liability and available remedies for such Services shall be as set forth in the PSS. Furthermore, in each instance in which provisions of the PSS contradict or are inconsistent with the provisions of this Agreement, the provisions of the PSS shall prevail and govern. Additionally, in each instance in which provisions of a statement of work contradict or are inconsistent with the provisions of the PSS, the provisions of the statement of work shall prevail and govern.
10. ASSIGNMENT.
10.1 In General. Neither party may, without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, assign, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or the other party’s Proprietary Information, to any party. Notwithstanding the foregoing, Licensee shall have the right to assign this Agreement and its rights to SAP’s Proprietary Information [ *73 ] to any United States headquartered entity [ *74 ] which is not a Competitor of SAP and which acquires all or substantially all of Licensee’s operating assets, or, in the event Licensee is merged or reorganized pursuant to any plan of merger or reorganization, subject to the condition that Licensee provides SAP with: (1) a statement, signed on behalf of the Assignee, that such Assignee agrees to abide by the terms of this Agreement; (2) evidence, satisfactory to SAP, of such Assignee’s corporate authority to enter into this Agreement; and (3) a copy of the Assignee’s most current audited financial statements, prepared in accordance with generally accepted accounting principals consistently applied, showing that such Assignee has a minimum net worth sufficient to allow Assignee to perform its obligations under this Agreement; provided, however, that an Assignee with a net worth equal to or greater than Licensee’s net worth as of the Effective Date of this Agreement shall be deemed to be sufficient to allow such Assignee to perform its obligations hereunder. [ *75 ] SAP may assign this to Agreement to its affiliates [ *76 ]. A “Competitor” of SAP is an entity whose primary business is marketing and licensing computer software equivalent to the computer software marketed and licensed by SAP.
10.2 Departing Business Units. Should Licensee, from time to time, sell or otherwise transfer the assets or equity ownership of any Licensee division, Affiliate or business unit (all jointly hereafter referred to as “Business Unit”) and such Business Unit ceases to be otherwise eligible hereunder to Use the Software as Licensee or as an Affiliate, and as part of such transfer Licensee agrees to provide transitional services to the Business Unit in connection with the transfer of such Business Unit, including the use of Software by Licensee for such Business Unit, then Licensee shall have the right to do so for a period of [ *77 ] as if such Business Unit were still part of Licensee or an Affiliate, as the case may be. If Licensee, as part of any agreement with such Business Unit, is required to provide such services for a period beyond [ *78 ], then Licensee shall have the right to so provide such services for up to [ *79 ] subject to a mutually agreed upon payment to SAP. Upon Licensee no longer providing services to such Business Unit pursuant to this provision, SAP agrees that SAP will offer to license the Software to such Business Unit on SAP’s then current prices [ *80 ] in effect.
10.3 Bankruptcy. Except for any trademarks contained therein, the parties agree that the licenses granted hereunder are of intellectual property (as defined in 11 U.S.C. §101(35A). In the event of an entry of an order for relief under Title 11, United States Code, as to Licensee, the trustee may elect, pursuant to 11 U.S.C. §365(b) or, if rejected by the trustee, Licensee may elect, pursuant to 11 U.S.C. §365(n), to continue Licensee’s rights under the Agreement following notice and assumption of Licensee’s obligations hereunder. [ *81 ] However, nothing in this Section 10.3 shall be construed to be consent by SAP required for any assignment of this Agreement by the trustee or Licensee in a proceeding under Title 11, United States Code.
10.4 Assignment of Software as Part of Transfer. Upon (i) a sale or transfer of assets or equity ownership of any Business Unit permitted hereunder, (ii) the voluntary end or expiration of the transitional period described above, and (iii) such Business Unit subsequently entering into a separate SAP license agreement, Licensee may assign the applicable Software licenses (entirely [ *82 ]; but specifically excluding licenses for third party software and/or third party database) and license to such Business Unit any Modifications [ *83 ] (as defined in this Agreement) accessed as part of transitional services for such Business Unit (collectively, the “Transferred Software”), provided that [ *84 ]. Upon the occurrence of the foregoing, Licensee’s rights to the Software licenses included within Terminated Software shall immediately cease and the parties hereto shall mutually execute an amendment to the Agreement memorializing the termination of the applicable Software licenses, and associated Maintenance Fees. [ *85 ]
11. GENERAL PROVISIONS.
11.1 Severability. 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 or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein.
11.2 No Waiver. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
11.3 Counterparts. This Agreement and any amendments, appendices, schedules and exhibits hereto, may be executed (if required) in multiple counterparts, and each such counterpart shall have the same force and effect as an original and shall constitute an effective, binding agreement on the part of each of the undersigned. Photocopies, facsimiles and all other electronic versions of any such documents shall be deemed originals for all purposes.
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SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
11.4 Export Control Notice. The Software, Documentation and Proprietary Information are being released or transferred to Licensee in the United States and are therefore subject to the U.S. export control laws. Licensee acknowledges its obligation to ensure that its exports from the United States are in compliance with the U.S. export control laws. Licensee 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 Subsidiaries outside of the United States. Licensee agrees that it will not submit the Software to any government agency for licensing consideration or other regulatory approval without the prior written consent of SAP.
11.5 Confidential Terms and Conditions. Neither party shall disclose the terms and conditions of this Agreement or the pricing contained therein to any third party except as required by applicable law, rule, or regulation. Provided, however, that either party may disclose such terms, conditions or pricing to legal, accounting and professional advisors bound by formal ethical or fiduciary duties requiring such advisors to treat, hold and maintain such information in accordance with the terms and conditions of this Agreement. Except as set forth in Appendices, neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other.
11.6 Governing Law. This Agreement shall be governed by and construed under the Commonwealth of Pennsylvania law without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. Process may be served on either party by U.S. Mail, postage prepaid, certified or registered, return receipt requested, or by such other method as is authorized by applicable law or court rule.
11.7 Notices. All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be delivered to the respective executive offices of SAP and Licensee at the addresses first set forth above. All such notices or reports shall be deemed to have been delivered (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of delivery by nationally-recognized, overnight courier, on the next business day where sent following dispatch, and (iii) in the case of mailing, on the fourth business day where sent after such mailing. In this Agreement, the term “business day” means, as to any location, any day that is not a Saturday, a Sunday or a day on which banking institutions in such location are authorized or required to be closed. Either party may change its address(es) for notices by notice to the other party given consistent with this Section 11.7.
11.8 Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance; provided the party claiming force majeure (a) promptly [ *86 ] notifies the other party of the event, (b) takes all reasonably diligent steps to reduce and overcome the event’s impact and (c) immediately resumes performance when the event ends. The foregoing, however, will not excuse SAP from meeting any service and disaster response and recovery times set forth in any support schedule or Appendix.
11.9 Entire Agreement. This Agreement and each Schedule and Appendix hereto constitute the complete and exclusive statement of the agreement between SAP and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by, this Agreement. This Agreement may be modified only by a writing signed by both parties. This Agreement and each Appendix hereto shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Licensee to SAP or by SAP to Licensee.
11.10 Licensee Policies. SAP represents that it has received and such SAP Consultants shall abide by Licensee’s reasonable policies governing passwords, acceptable use, code of ethics, access controls and systems security policies, safety, workplace conduct and no smoking policies (the “Licensee Policies”), which may be updated from time to time. In the event there are material changes to such Licensee Policies, Licensee agrees to provide SAP with updated copies prior to any engagement of SAP Consultants. SAP agrees, and agrees to cause each service team member, to report immediately to Licensee’s project manager any information that it may learn concerning a violation of any of the Licensee Policies or of any law. SAP shall, and shall cause all employees and contractors to comply with all applicable laws and Licensee Policies.
11.11 Controls Summary. Subject to a mutually agreeable Statement of Work and related terms, including fees, upon request by Licensee, SAP agrees reasonably to cooperate with Licensee in complying with the Sarbanes-Oxley Act of 2002, as amended, and related laws, rules and regulations, in preparing a Controls Summary. As used herein a “Controls Summary” is a document that addresses how the Software incorporates controls and procedures: (i) to support accuracy and completeness of transaction processing, authorization and validity; (ii) to maintain the accuracy and validity of data inputs, including edit, validity and bound checks; (iii) to report errors identified in processing (i.e., audit trails or exception reports); (iv) to enable access controls and authorize compliance with system requirements; and (v) to support security as well as Software program output integrity, completeness, accuracy and validity.
12. ESCROW OF SOURCE CODE.
12.1 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 by a third party provider (the “Escrow Agent”), pursuant to an agreement between the Escrow Agent and SAP, (the “Escrow Agreement”). SAP will at all times maintain in force and perform its obligations under either (i) the Escrow Agreement or (ii) a successor escrow agreement with a successor escrow agent. SAP will (i) notify Licensee of any change of the escrow agent under the Escrow Agreement, of any change to the terms of the Escrow Agreement or of any termination thereof; and (ii) provide in all Escrow Agreements for release of the source code of the Software to Licensee on at least those conditions set forth below and provide for Licensee to have rights under such arrangement consistent with this Agreement. Licensee is an intended beneficiary under the Escrow Agreement, and will be an intended beneficiary under any successor escrow agreement.
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SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
12.2 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 promptly following availability of the same to SAP’s licensees generally.
12.3 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:
(a) 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;
(b) 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
(c) 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.
12.4 Upon the occurrence of any of the events set forth in Section 12.3 above, Licensee may obtain from the trustee, pursuant to 11 U.S.C. §365(n)(3)(A), as amended, a copy of the source code to updates, patches and/or fixes to the deposited material (and any documentation relating to such source code) held by the trustee, if any, after Licensee (i) provides the trustee with a written request for a copy of any such source code or its related documentation, and (ii) provides SAP with written notice of Licensee’s request at least [ *87 ] before the trustee is required to comply with such request. Notwithstanding the foregoing, Licensee may only avail itself of 11 U.S.C. §365(n)(3)(A), as amended, if obtaining the subject source code or its related documentation thereunder either (i) does not interfere in any material fashion with the administration of the underlying bankruptcy proceedings, or (ii) is approved by order of the bankruptcy court having jurisdiction over the subject matter.
12.5 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.
12.6 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.
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SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Agreement to become effective as of the date first above written.
| SAP America, Inc. | Pacer International, Inc. | |||||||
| (SAP) | (Licensee) | |||||||
| By: | /s/ Charles F. Tisa | By: | /s/ Michael E. Uremovich | |||||
| Name: | Charles F. Tisa | Name: | Michael E. Uremovich | |||||
| Title: | Vice President | Title: | Chairman & CEO | |||||
| Date: | 9/28/07 | Date: | 9/26/07 | |||||
9
SAP CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
EXHIBIT A
to
SAP AMERICA, INC. (“SAP”)
SOFTWARE LICENSE AGREEMENT effective September , 2007 (“Agreement”)
with
PACER INTERNATIONAL, INC. (“Licensee”)
AFFILIATE USE AGREEMENT
This Affiliate Use Agreement is made effective as of the day of , 200 between SAP America, Inc., a Delaware Corporation, with offices at 3999 West Chester Pike, Newtown Square, PA 19073 (“SAP”) and , a corporation, with offices at (“Subsidiary”).
| 1. | Affiliate is entitled to have Named Users Use the Software on the Designated Unit(s) identified in the SAP America, Inc. / Pacer International, Inc. Software License Agreement (“Agreement”). |
| 2. | Affiliate agrees to abide by and be bound by all of the terms and conditions of the Agreement applicable to Subsidiary and applicable to Licensee. SAP may directly enforce all such terms and conditions against it directly. |
| 3. | Affiliate agrees that its right to Use SAP Software and receive applicable Support services shall be governed solely by the Agreement. In the event that the Agreement is terminated, this Affiliate Use Agreement is terminated or if Affiliate ceases to meet the definition of “Affiliate” therein, Affiliate agrees that all of its rights to the Software will cease effective as of the termination date. |
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Affiliate Use Agreement.
| SAP America, Inc. | ||||||||
| (SAP) | (Subsidiary) | |||||||
| By: | By: | |||||||
| Title: | Title: | |||||||
| Date: | Date: | |||||||
10
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
EXHIBIT B
to
SAP AMERICA, INC. (“SAP”)
SOFTWARE LICENSE AGREEMENT effective September 30, 2007 (“Agreement”)
with
PACER INTERNATIONAL, INC. (“Licensee”)
LIST OF AFFILIATES
Part I. The following Affiliates otherwise qualify under Clause (A) of the Affiliate definition:
Intermodal Container Service, Inc.
Manufacturing Consolidation Service of Canada, Inc.
Ocean World Lines, Inc.
Ocean World Lines Bremen GmbH
Ocean World Lines Bremen GmbH & Co. Kommanditgesellschaft
Ocean World Lines Europe GmbH
Ocean World Lines (UK) Ltd.
Pacer Cartage, Inc.
Pacer Distribution Services, Inc.
Pacer Global Logistics, Inc.
Pacer Stacktrain, Inc.
Pacer Stacktrain S. de R.L. de C.V.
Pacer Transport, Inc. (formerly known as Pacific Motor Transport Company)
PDS Trucking, Inc.
Rail to Rail Transport, Inc.
RF International, Ltd.
S&H Transport, Inc.
S&H Leasing, Inc.
Stacktrain Mexico, S. de R.L. de C.V.
Part II. The following entities do not otherwise qualify as Affiliates under Clause (A) of the Affiliate definition, but will be deemed Affiliates hereunder. If minimum requirements are listed below for any such entity, it will be deemed an Affiliate only so long as such minimum requirements are met:
None, as of the effective date of the Agreement.
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SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
EXHIBIT C
to
SAP AMERICA, INC. (“SAP”)
SOFTWARE LICENSE AGREEMENT effective September 30, 2007 (“Agreement”)
with
PACER INTERNATIONAL, INC. (“Licensee”)
Confidentiality Agreement
This Agreement made this th day of , 200 among SAP America, Inc. having its principal place of business at 3999 West Chester Pike, Newtown Square, Pennsylvania 19073 (hereinafter referred to as “SAP”), , having its principal place of business at (hereinafter referred to as “Vendor”) and Pacer International, Inc., a Tennessee corporation, with offices at 2300 Clayton Road, Concord, CA 94520 (hereinafter referred to as “Pacer”).
WHEREAS, SAP is in the business of providing proprietary software, documentation, and related services to its customers; and
WHEREAS, Pursuant to the Software License Agreement dated September , 2007, between SAP and Pacer (“License Agreement”), SAP has licensed its proprietary Software (“Software”) to Pacer for use in its business operations.
WHEREAS, Pacer has engaged Vendor to perform certain facilities and/or information systems management services as set forth in the Agreement between Vendor and Pacer dated (“Services”) that will require Vendor to have access to the Software.
WHEREAS, SAP and/or Pacer will disclose to Vendor the Software, whether in source or object code, including unique concepts or techniques embodied therein and the Documentation therefor, and any other information marked or reasonably identifiable as proprietary or confidential (hereinafter referred to as “Proprietary Information”) for the sole purpose of allowing Vendor to provide the Services to Pacer.
NOW THEREFORE, in consideration of disclosure to Vendor of the Proprietary Information, and intending to be legally bound, the parties agree as follows:
1. Permissible Users.
Vendor agrees that it will use the Proprietary Information solely for providing the Services to Pacer and that Vendor will not use the Proprietary Information to process its own business information or to provide processing or facilities management or other services to any party other than Pacer.
2. SAP Proprietary Information.
(a) Vendor acknowledges SAP’s assertion that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the Proprietary Information are and shall remain in SAP and SAP AG and their respective licensors. Vendor acquires only the right to use the Proprietary Information under the terms and conditions of this Agreement and does not acquire any ownership rights or title in or to the Proprietary Information and that of their respective licensors.
(b) SAP agrees that no restrictions are made upon Vendor with respect to any Proprietary Information that: (a) is already rightfully possessed by Vendor without obligation of confidentiality; or (b) is developed independently by Vendor without breach of this Agreement; or (c) is rightfully received by Vendor from a third party without obligation of confidentiality; or (d) is, or becomes, publicly available without breach of this Agreement.
(c) Vendor shall not remove any proprietary, copyright, trademark, or service mark legend from the Software or Documentation.
(d) Vendor 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.
3. Protection of Proprietary Information.
(a) Vendor agrees that it will not disclose, provide, or make available any of the Proprietary Information in any form to any person, except to bona fide employees, officers, or directors whose access is necessary to enable Vendor to exercise its rights hereunder, without the SAP’s prior written consent.
(b) Vendor shall not copy, translate, disassemble, or decompile, nor create or attempt to create 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.
(c) Vendor acknowledges that any disclosure to third parties of Proprietary Information may cause immediate and irreparable harm to SAP, therefore, Vendor agrees to take the same protective precautions to protect the Proprietary Information from disclosure to third parties as it takes with its own proprietary and Proprietary information of a similar nature.
4. Duties Upon Termination.
Upon any termination hereunder, Vendor shall immediately cease Use of the Proprietary Information and shall irretrievably delete the Software, Third-Party Database and Documentation from all Vendor computer hardware, including CPU,
12
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
application servers, terminals, workstations, and data files. Within thirty days after any termination, Vendor shall deliver to SAP at Vendor’s expense (adequately packaged and insured for safe delivery) or, at SAP’s request, destroy all copies of the Proprietary Information in every form. Vendor further agrees to erase the Software and Documentation from any storage media. Vendor shall certify in writing to SAP that it has performed the foregoing.
5. No Rights Transferred.
The furnishing of the Proprietary Information for the limited purposes set forth herein does not constitute the grant, option, license, sublicense, assignment, or other form of transfer to Vendor of any rights, title or interest in or to such Proprietary Information.
6. Modifications and Extensions.
Vendor, under the terms of this Agreement, expressly warrants and represents on its behalf, and on behalf of its agents and employees, that no Modifications or Extensions for the licensed Software will be performed without providing prior written notice to SAP. All Modifications and Extensions to the Software owned by SAP shall be considered part of the Software for purposes of this Agreement.
7. Indemnification.
(a) Vendor agrees to indemnify and defend SAP, its parent, affiliates, its and their officers, directors and employees, from and against any and all loss, claim or damage, including attorney’s fees and costs, which SAP may suffer, that arise from or are in any way connected with Vendor’s provision of the Services to Pacer or breach of Vendor’s obligations hereunder.
(b) ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL SAP OR VENDOR BE LIABLE TO THE OTHER 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. THE FOREGOING LIMITATIONS OF LIABILITY DOES NOT APPLY TO DAMAGES ARISING OUT OF BREACH OF SECTIONS 3, 5 AND 8 HEREOF, OR TO PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF VENDOR.
8. Assignment.
Vendor may not, without SAP’s prior written consent, assign, delegate, sublicense, pledge, or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement. Any permitted assignment of this Agreement shall provide that the provisions of this Agreement shall continue in full force and effect and that Vendor shall guaranty the performance of its assignee and shall remain liable for all obligations hereunder.
9. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
(b) The provisions of this Agreement, together with any agreements incorporated or referred to herein, shall (i) with regard to the subject matter hereof, supersede all prior agreements and negotiations, and (ii) be modified only by a written agreement.
(c) In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements of or to this Agreement or such other appropriate actions as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein, and the other provisions of this Agreement shall, as so amended, modified, or supplemented, or otherwise affected by such action, remain in full force and effect.
(d) This Agreement shall be governed by and construed under the Commonwealth of Pennsylvania law without reference to its conflicts of law principles. The parties consent to the jurisdiction of any federal or state court sitting in Delaware County, Pennsylvania, for all claims, suits, or actions arising under this Agreement.
This Agreement shall be in effect beginning on the date first above written and shall continue in effect until otherwise agreed upon by the parties in writing.
IN WITNESS HEREOF, and intending to be legally bound, the parties have executed this Agreement on the date and year first written above.
| SAP AMERICA, INC. | (VENDOR) | |||||||
| By: | By: | |||||||
| Title: | Title: | |||||||
| Date: | Date: | |||||||
13
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
| PACER INTERNATIONAL, INC. | ||
| By: | ||
| Title: | ||
| Date: | ||
14
SAP AND LICENSEE CONFIDENTIAL & SUBJECT TO NON-DISCLOSURE
[ * ] CERTAIN INFORMATION IN THIS EXHIBIT HAS
BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
PREMIUM SUPPORT SCHEDULE (“Schedule”)
to
SAP AMERICA, INC. (“SAP”)
SOFTWARE LICENSE AGREEMENT effective September 30, 2007 (“Agreement”)
with
PACER INTERNATIONAL, INC. (“Licensee”)
This Schedule is hereby annexed to and made a part of the Agreement specified above. In each instance in which provisions of this Schedule contradict or are inconsistent with the provisions of the Agreement, the provisions of this Schedule shall prevail and govern.
Licensee may request and SAP shall provide, to such degree as SAP makes such services generally available in the Territory, premium support services for the Software (“Premium Support”). Premium Support currently includes the delivery of new releases of the Software and Software correction packages, support via telephone, remote support/update, Service Level Agreement, SAP Premium Support Advisor, Assessment Services, Proactive Remote Services, Early Watch Alert and SAP’s support portal.
Alternately, Licensee may request and SAP shall provide, to such degree as SAP makes such services generally available in the Territory, maintenance for the Software (“Maintenance”). Maintenance currently includes the delivery of new releases of the Software and Software correction packages, support via telephone, remote support/update, Early Watch Alert, and SAP’s support portal. In order to receive Maintenance, Licensee must make all required remote support and update connections to each Designated Unit as reasonably requested by SAP. In order to receive Premium Support, Licensee must make all required remote support and update connections to each Designated Unit as requested by SAP. In the event SAP licenses third party software to Licensee under the Agreement, SAP shall provide Premium Support or Maintenance on such third party products to the degree the applicable third party makes such Premium Support or Maintenance services available to SAP. Premium Support or Maintenance services are only provided for the software ordered by the customer and for the then current standard releases as defined in http://service.sap.com/releasestrategy. Notwithstanding the foregoing, SAP agrees to support each Version of its Software for not less [ *88 ] after it is made commercially available. “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, e.g., 3.1. “Release” means each issuance of the Software, excluding third party software, identified by the numeral to the lef