Software License and Distribution Agreement - BackWeb Technologies Ltd. and SAP AG
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
FOR EMBEDDED PRODUCTS
This Software License and Distribution Agreement for Embedded Products
("Agreement") is made and entered into as of by and between BackWeb
Technologies, Ltd. ("Licensor") having principal offices at 34 Tuval St.,
Ramat-Gan 52136 Israel, and SAP AG "SAP"), having principal offices at
Neurottstrasse 16, 69190 Walldorf, Germany.
PREAMBLE
WHEREAS, SAP designs, develops, markets, licenses and sells worldwide the
SAP software products with integrated financial human resources logistics
and manufacturing standard application programs based on client-server
architecture;
WHEREAS, Licensor designs, develops, markets and licenses Software
Products for internet communication applications.
NOW THEREFORE, the parties agree as follows:
1.1 DEFINITIONS
1.1 "Applicable Entity/Entities" shall mean SAP's subsidiaries and/or
distributors or marketing partners or training partners authorized by SAP.
1.2 "Attachments" shall mean all attachments to this Agreement.
1.3 "Effective Date" shall mean the date of execution of this Agreement by
both parties.
1.4 "End User" shall mean any combination of the types of users licensed by
SAP or Applicable Entities under their standard form end-user license
agreements.
1.5 "Internal Use" shall mean as well development use of the Software Products
e.g. to embed Software Products into SAP Software and/or to adapt
applications of the embedded Software Products for its own internal
business utilization by SAP or Applicable Entities as the use of the
Software Products "stand-alone" and or embedded into SAP Software for
business utilization by SAP or its subsidiaries.
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1.6 "Mobile Named User" means that type of user licensed by SAP or Applicable
Entities under their standard form end-user license agreements who
directly utilizes Software Products functionalities. This user type may
change in future. Therefore the parties agree to negotiate any necessary
changes to this section 1.6 in good faith in case of any such changes.
1.7 "Not For Distribution Use" or "NDR" shall mean use of the Software
Products for SAP or Applicable Entities, internal training and testing,
and for demonstrations to prospects and internal personnel of such
entities.
1.8 "SAP Software" shall mean the SAP software product module currently known
as "mobile sales" and "mobile service", any successor product of the
mentioned product modules due to name change or nay other SAP product
which includes these products modules, e.g. CRM, as well as third party
products other than Software Products, marketed and licensed to End Users
by SAP or the Applicable Entities as a part or component of the above
mentioned SAP products.
1.9 "Software Products" shall mean the Licensor's products to be embedded
in SAP Software, and/or any combinations of Licensor's products, as listed
in Attachment A hereto, including all updates, upgrades, new versions and
releases and resulting Software Products and applicable End-User
documentation. Licensor shall have the right to modify the Software
Products. The Software Products for purposes of this Agreement, shall
include any software products (other than SAP Software) provided by third
parties and licensed with, or as part of, the Software Products. The
Software Products shall also include other third party software products
embedded in the Software Products licensed hereunder after the Effective
Date of this Agreement.
1.10 "Software Products Fee" shall mean the license fee payable by SAP to
Licensor for the Software Products licensed by SAP or the Applicable
Entities to End Users hereunder as stipulated in Attachments A.
1.11 "Software Products Royalty Report" shall mean a written report to be
produced by SAP, if SAP is required to do so in Attachment A, by the 15th
of each month in respect to the preceding month containing reasonably
detailed information on the numbers of Mobile Named Users licensed to End
Users by SAP and/or the Applicable Entities during that month and
specifications regarding the required commencement date for Support
Services.
1.12 "Support Services" shall mean the Licensor's support services as set forth
in Attachment B.
1.13 "Support Services Fee" shall mean the fee payable by SAP to Licensor for
the provisions of Support Services by Licensor as stipulated in Attachment
A.
1.14 "Territory" shall mean all countries of the world.
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2. SCOPE OF AGREEMENT
2.1 This Agreement, including any Attachments hereto, sets forth the terms
and conditions pursuant to which SAP will license Software Products from
Licensor and market these Software Products in connection with SAP
Software.
2.2 Deviating conditions, including, without limitation, those contained in
any of Licensor's standard terms and/or standard contracts shall not
apply even if referred to by Licensor and not expressly objected to by
SAP. Silence by SAP amounts to rejection of Licensor's standard terms or
contracts.
3. RIGHTS OF SAP
3.1 Licensor hereby grants to SAP and the Applicable Entities a
non-exclusive paid up license to use the Software Products on an NDR Use
basis. Licensor hereby grants to SAP and its subsidiaries a non
exclusive license to use the Software Products on an Internal Use basis
subject to Attachment A.
3.2 Licensor hereby grants to SAP the non-exclusive right to make copies of
the master media copies of the Software Products and sublicense and
distribute them to End Users within the Territory as a product embedded
into SAP Software. The Software Products will be distributed by SAP and
the Applicable Entities pursuant to the same license agreements by which
SAP and the Applicable Entities license SAP Software to End Users.
Licensor agrees that End-Users may purchase the Software Products
according to local law and SAP's and the Applicable Entities license
agreements. SAP and the Applicable Entities shall be entitled to
determine the Software Products license fees that SAP charges End Users
for the Software Products licensed by SAP to End Users independently of
Licensor.
SAP shall not market the Software Products separate from the SAP
Software and shall not adopt any pricing methodologies on its standard
price lists which will show a separate price for the Software Products.
3.3 Licensor further grants SAP the non-exclusive right to sublicense the
Software Products to the Applicable Entities by providing copies of the
Software Products and authorizing the Applicable Entities to make copies
thereof and sublicense and distribute them to End Users within the
Territory as a product embedded in SAP Software.
3.4 Licensor further grants SAP and/or the Applicable Entities the
non-exclusive paid-up license to sublicense the Software Products to
Partners of SAP and/or the Applicable Entities as a product embedded in
SAP Software for internal training and testing, and for demonstration to
prospects and internal personnel of such Partners.
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3.5 SAP has the right to develop software competitive to the Software Products,
to embed software of competitors of Licensor in SAP Software and to provide
interfaces to software competitive to the Software Products [*] and in case
SAP embeds software of competitors of Licensor, that is competitive to the
Software Products, in SAP Software within said period, SAP shall continue
to comply with its payment obligations under this Agreement [*]. Upon
receipt of such notice, Licensor shall no longer be obligated to fulfill
development activities under this Agreement and shall have the right to
terminate this Agreement upon sixty (60) days prior written notice.
Subject to the provisions of this section 3.5, in the event SAP decides to
develop a competitive product, SAP agrees to only disclose such decision
pursuant to appropriate confidentiality agreements [*].
3.6 SAP shall not use or duplicate the Software Product (including the
Documentation) for any purpose other than as specified in this Agreement or
make the Software Product available to unauthorized third parties. Unless
otherwise agreed in writing, SAP and the Applicable Entities shall not
carry out or permit the reverse engineering, disassembly, or decompilation
of the Software Product, except to the extent required to obtain
interoperability with other independently created software or as specified
by law.
4. LICENSOR'S OBLIGATIONS
4.1 Licensor agrees to ship within five (5) business days after the Effective
Date one (1) set of mastar media copies of the Software Products to the SAP
location identified by SAP. Licensor shall be responsible for all costs of
export and shipping of the master media copies of the Software Products.
4.2 Licensor shall provide to SAP master media copies, NDR Use copies and
Internal Use copies of the Software Products, including applicable user
documentation, updates and new releases on a preferred basis, but in all
events not later than its first shipment to its own customers, distributors
or development partners.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.3 Licensor shall provide Support Services to SAP as described in
Attachment B. Licensor may provide some Support Services from BackWeb
Technologies, Inc. According to Section 3.1 of Attachment B SAP's
support organization shall be solely responsible for receiving Cases
and providing initial problem evaluation to End-Users.
4.4 Licensor shall provide training to SAP with respect to the Software
Products for the number of employees and days as mutually agreed upon
by SAP and Licensor. Pricing and locations for such training shall be
as mutually agreed upon by the parties prior to such training taking
place. Licensor shall assign a Licensor trainer to be responsible for
the training on-site.
4.5 Licensor shall ensure that all Software Products are and continue
during the entire term of this Agreement to be compatible to SAP
Software including new versions or releases thereof.
4.6
(a) Licensor represents and warrants that the source code for the
Software Products, together with related documentation as it is or
becomes available (the "Deposited Material"), has been deposited in an
escrow account maintained at Source File, Oakland, California (the
"Escrow Agent"), pursuant to an agreement between the Escrow Agent and
Licensor (the "Escrow Agreement") which authorizes the Escrow Agent to
release Deposited Material, if so requested, directly to SAP upon the
occurrence of events as listed in Section 4.5(c).
(b) Licensor shall deposit into the escrow account copies of the source
code for each new release, version, and update of the Software
Products and related documentation immediately after they have been
made available to SAP.
(c) SAP may request the Escrow Agent to release a copy of the relevant
Deposited Material to SAP upon the occurrence of any of the following
events:
(i) Licensor has been ordered under a final court decision to
release the relevant Deposited Material to SAP;
(ii) Licensor has agreed in writing to release the relevant
Deposited Material to SAP;
(iii) Filing of a petition to commence bankruptcy or composition
proceedings regarding Licensor's assets which is not
dismissed in one (1) month and unless Licensor proves its
ability to comply with its obligations under this
Agreement;
(iv) Cancellation of the registration of Licensor in the
competent commercial register for reasons of lack of assets
which is not cured in one (1) month and unless Licensor
proves its ability to comply with its obligations under
this Agreement;
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(v) Registration of a winding-up order with regard to Licensor
in the competent commercial register which is not dismissed in
one (1) month and unless Licensor proves its ability to comply
with its obligations under this Agreement;
(vi) Licensor's material breach in carrying out the Support
Services imposed on it pursuant to this Agreement after an
extension of one (1) month has been granted to Licensor to
perform such obligations and Licensor has been ordered under a
preliminary injunction after an oral hearing to release the
relevant Deposited Material to SAP.
(d) Subject to the occurrence of an event listed in Section 4.6(c)
Licensor herewith grants SAP the irrevocable and non-exclusive right
to use the released source code of Deposited Materials to the extent
necessary to ensure continued maintenance of, and support for, the
relevant Software Products. This right includes the right to copy,
translate, modify or otherwise change the released source code to the
extent required by the aforementioned objectives.
SAP agrees to maintain the released source code in strict confidence
and to not disclose it to third parties and to use it solely for the
continued maintenance of and support for the relevant Software
Products and not for the development of any own software products.
5. SAP's OBLIGATIONS
5.1 SAP agrees to utilize the licensed copies of the Software Products
for NDR Use and Internal Use on such terms as set forth herein
including any Attachments hereto and as may be mutually agreed upon
by Licensor and SAP.
5.2 SAP shall enter into legally enforceable, written, license agreements
with each of its customers (Applicable Entities and End Users)
containing the terms and conditions under which the Software Products
are sublicensed in compliance with this Agreement.
5.3 By the 15th of each month, SAP shall submit a Software Products
Royalty Report to Licensor, if SAP is required to do so in Attachment
A. SAP shall keep accurate records regarding the number of Mobile
Named Users licensed to End Users by SAP and/or the Applicable
Entities. Upon Licensor's request and reasonable advance notice, SAP
will permit Licensor to have such records audited at its own costs by
a CPA of its choice once every calendar year during SAP's regular
business hours.
5.4 SAP shall make correct statements concerning the Software Products in
its marketing materials.
6. JOINT OBLIGATIONS OF LICENSOR AND SAP.
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6.1 Both parties realize the impact the changes to and new releases of their
respective software products may have on the other parties products. Each
party shall use reasonable efforts to give three (3) months written notice
to the other party of any changes to their respective software products
which might impact the other party's products hereunder and agrees
otherwise to consult with the other party on such prospective changes.
6.2 Neither Licensor nor SAP shall, during the term of the Agreement and for a
period of one (1) year following termination, actively solicit for
employment any of the other party's employees without the prior written
approval of the other party.
This Section shall not be deemed to prohibit either party from placing
general advertisements or solicitations for employment in journals,
publications, on the internet etc. and from hiring any persons responding
to such advertisements.
6.3 During the Term both parties intend to do the following marketing
activities:
(a) participate in one joint press releases approved in writing by both
parties prior to their being released promptly after the Effective Date;
(b) publish one fact sheet which mentions Licensor's name and brand;
(c) jointly publish one customer case study and one success story, both
related to SAP Software; and
(d) Licensor may use SAP's name in web-sites, presentations and sales
materials but only to the extent to point out that SAP is a Customer and a
Partner of Licensor.
(e) any other marketing and promotion activities mutually agreed to from
time to time.
7. FUTURE DEVELOPMENT/ENHANCEMENTS, DEVELOPMENT SERVICES
7.1 Licensor agrees to provide future development/enhancements according to
Attachment A.
7.2 Licensor agrees to provide development services to SAP to enable the
embedment of the Software Product in the SAP Software as may be mutually
agreed upon by the parties in cases where SAP cannot perform the
applicable development activities with its own resources.
8. PAYMENT TERMS
8.1 Following the end of each month, Licensor will invoice SAP for the
Software Product Fees for licenses granted to SAP and Applicable Entities
to End Users during that month with respect to the Mobile Named User as
reported to Licensor via Software Products Royalty Reports.
8.2 Licensor shall invoice SAP for Support Services Fees within one (1) month
after the respective Support Services commencement date specified in the
Software Products Royalty Reports for a period of twelve (12) months of
Support Services.
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8.3 Software Products Fees and Support Services Fees shall be invoiced in US
Dollars.
8.4 SAP shall remit the invoiced Software Products Fees and Support Services
Fees within one (1) month from receipt of the respective invoice.
8.5 All taxes or customs duties except income or corporation taxes will be
borne by SAP. If any such tax or duty has to be withheld or deducted from
any payment under this Agreement, SAP will increase payment under this
Agreement by such amount as shall ensure that after such withholding or
deduction Licensor shall have received an amount equal to the payment
otherwise required.
Income taxes will be borne by the Licensor. If SAP is required to withhold
income or corporation tax or a similar tax from any payment to the
Licensor under this Agreement SAP shall be entitled to withhold or deduct
such tax from the gross amount to be paid. However, SAP shall use all
endeavours to reduce any such withholding tax payable to the lowest
possible rate subject to compliance with all applicable laws and double
taxation treaties. Licensor will cooperate with SAP to the extent that is
necessary to apply for such reduction, especially by, but not limited to,
providing the necessary forms to SAP or the relevant tax authority.
Otherwise, SAP is entitled to withhold tax at standard rates according to
the relevant laws.
9. TERM AND TERMINATION
9.1 The initial term of this Agreement shall commence on the Effective Date
and shall continue in effect until three (3) years from the Effective
Date, subject to earlier termination as specified in this Agreement.
Thereafter, this Agreement shall automatically renew for one (1) year
periods until terminated for convenience by either party upon three (3)
months prior written notice with effect to the end of a calendar quarter.
9.2 Either party may terminate this Agreement for cause. This includes,
without limitation, situations where (a) the other party neglects or fails
to perform a material obligation hereunder, and such neglect or failure
continues unremedied for a period of one (1) month after written notice is
sent to the defaulting party by the first party; or (b) the other party
becomes insolvent; proposes any dissolution, liquidation, composition,
financial reorganization or similar proceedings with respect to its
property or business, and such continues unremedied for a period of one (1)
month after written notice is sent by the other party; (c) Licensor
becomes subject to a change in its ownership that is not reasonably
acceptable to SAP; public offerings and/or mergers or acquisitions related
to such public offerings are not considered as such changes in Licensor's
ownership unless a Competitor of SAP acquires interest in Licensor either
direct or indirect in a share that is not reasonably acceptable to SAP.
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9.3 Termination of this Agreement shall not affect any of the individual
sublicense agreements between SAP or the Applicable Entities and the End
Users. Except for cases of termination for cause by Licensor, SAP remains
entitled to make copies of the Software Products to the extent required in
order to fulfill all contracts with End Users and/or Applicable Entities
concluded in the ordinary course of business prior to the date on which
the termination becomes effective that cannot be reasonably terminated,
provided, however, that SAP or the Applicable Entities shall not enter
into new individual sublicense agreements as of the date the termination
becomes effective and SAP shall pay to Licensor the applicable Software
Product Fees related to such sublicensing provided that SAP is obligated
to pay such Software Product Fees.
9.4 Subject to Section 9.3, SAP, upon an event of termination, shall
immediately discontinue any copying and sublicensing of the Software
Products. Additionally, the parties hereto agree that communications to
End Users and any publications/press releases regarding such
termination shall be mutually agreed upon, in writing, prior to
distribution.
9.5 Any provisions of this Agreement which, by their nature, require
performance after termination, shall survive any termination of this
Agreement. In particular, Licensor's obligation with respect to the
minimum period for the continued supply of Support Services as stipulated
in Attachment B shall not be affected by termination subject to payment of
the applicable Support Service Fees provided that SAP is obligated to pay
such Support Service Fees.
9.6 Any payments owing or accrued as of the effective date of termination,
shall be promptly paid by the respective party to the other.
10 COPYRIGHT NOTICE, TRADEMARKS
10.1 SAP has the irrevocable right not to provide the Software Products
embedded in the SAP Software with a copyright notice of Licensor provided
that it includes its own copyright notice in SAP Software in which the
Software Products are embedded. Licensor waives any such right to be named
as author or creator of the Software Products. SAP may remove any
copyright notice on the Software Products delivered to SAP except a one
time only copyright notice to appear during implementation.
Notwithstanding any copyright notice by SAP to the contrary, subject to
the rights granted to SAP and the Applicable Entities in this Agreement
the copyright to the Software Products included in any such SAP Software
shall remain in Licensor.
10.2 SAP may use Licensor's branding and trademarks. If SAP includes Licensor's
trademarks in its marketing materials, SAP will comply with Licensor's
guidelines for the use of the trademarks which Licensor shall forward to
SAP by the Effective Date.
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11. PROPRIETARY RIGHTS; CONFIDENTIALITY
11.1 Title to and ownership of the Software Products shall remain with
Licensor and/or with the respective manufacturer or author of such
Software Products. All rights to patents, copyrights, trademarks and
trade secrets in the Software Products shall remain with Licensor and/or
with the respective manufacturer or author of such Software Products.
All intellectual property rights, confidentiality and proprietary
provisions, rights to patents, copyrights, trademarks and trade secrets
in SAP Software shall remain with SAP and/or with the respective
manufacturer or author of such SAP Software.
11.2 Licensor and SAP recognize that, in the course of marketing the Software
Products, Licensor, SAP and the Applicable Entitles may learn or be
exposed to confidential and/or proprietary information which is the
property of the other party. Such information will be marked or
otherwise identified in writing as confidential, or will be reasonably
identifiable as confidential.
In order to provide an unrestricted basis of communication for marketing
activities hereunder, Licensor and SAP agree that they will take all
reasonable efforts to prevent such confidential information from
becoming known to anyone except those of their and the Applicable
Entities' employees, agents or consultants with a need to know in order
to properly fulfill their duties under the respective employment or
agency or independent contractor agreements with either of the parties
or any Applicable Entity. The particular provisions of this Agreement
shall be deemed confidential in nature and neither party hereto shall
divulge any provisions as set forth herein to any third parties except
to their respective attorneys or accountants and except as may be
required by law.
11.3 Neither party's non-disclosure obligations hereunder shall extend to
any confidential or proprietary information or any portion thereof which:
(a) the disclosing party can establish was known to it without
restriction prior to disclosure by the other party or was
independently developed by the disclosing party; or
(b) is now or hereafter comes into the public domain through no
fault of the disclosing party; or
(c) is required by operation of law to be disclosed, provided,
however, that the other party is given reasonable advance notice
of the intended disclosure and reasonable opportunity to
challenge such legal requirement(s); or
(d) is disclosed to the disclosing party without restriction on
disclosure by a third party who has the lawful right to make
such disclosure.
11.4 Unless expressly agreed to in writing, and other than as specified
above, each party expressly prohibits any direct use or reference to its
name, trademarks or trade names.
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11.5 Subject to Section 3.5, Licensor recognizes that SAP has the right to
develop independently software that would compete with the Software
Products and with this only provide confidential information that is
necessary to fulfill its obligations under this Agreement.
12. THIRD PARTY RIGHTS
12.1 Licensor represents and warrants that it is the owner of the Software
Products, including all intellectual property rights thereunder,
copyright, patent, trademark, trade secret and other applicable law,
and that it has the right to authorize the use of the Software
Products and the licensing of the Software Products to End-Users by
SAP and the Applicable Entities.
12.2 Licensor represents and warrants that the execution of this Agreement
by Licensor does not conflict with any provision of any other
agreement, court decision or administrative order binding upon it.
12.3 Licensor represents and warrants that the Software Products do not
infringe any copyright, patent, trademark, trade secret, or other
intellectual property right of any third party.
12.4 Licensor shall fully indemnify, hold harmless and defend SAP and/or
the Applicable Entities against suits based on any claim that the
Software Products infringe any patent, copyright, trademark, trade
secrets, or other proprietary right, provided that the entity
concerned gives Licensor prompt written notice of such suits and
permits Licensor to control the defense and settlement thereof. In the
event that, as a result of any such claim of infringement, SAP and/or
the Applicable Entities are enjoined from using, marketing, or
licensing the Software Products, Licensor shall either procure at its
expense the right for SAP or the Applicable Entities to continue to
use, market, and license the Software Products, or replace or modify
at its expense the Software Products so as to make them
non-infringing, provided that the performance thereof is not adversely
affected. Should Licensor fail to do so, Section 9.2 shall apply.
Irrespective of the aforementioned remedies, Licensor remains liable
to fully compensate SAP and/or the Applicable Entities concerned for
any costs and reasonable expenses incurred in connection with such
third party intellectual property infringement claims up to the amount
of fees paid by SAP under this Agreement. Damages shall be compensated
in full. The limitation of liability in Section 14.1 shall not apply.
13. WARRANTY
13.1 Licensor warrants that the unmodified Software Products will conform
materially to the specifications and descriptions contained in
Licensor's then current and applicable documentation.
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13.2 The warranty period for all Software Products delivered hereunder shall
extend for 6 months from the time the respective End User has received the
Software Product(s) from SAP. In case of any timely notice of defects by
SAP, the warranty period will be extended for the period of time running
from the dispatch of the notice of defects until their elimination with
respect to the affected End Users, if such remedy is elected by SAP.
13.3 With respect to major defects of the master media copies of the Software
Products which SAP reports to Licensor prior to the expiration of the
warranty period, Licensor shall either (a) at its expense eliminate the
defect without undue delay; or (b) at its expense provide SAP with a non
defective replacement delivery. If Licensor fails to fulfill its
obligations as stated in (a) and (b) without undue delay and not later than
two (2) months after being informed of the defect SAP may terminate this
Agreement in whole or in part.
13.4 Licensor shall pay for all parts, labor, and travel expenses for Licensor's
service personnel required to fulfill its warranty obligations under this
Agreement.
13.5 Licensor guarantees, irrespective of fault that the Software Products are,
and in future releases will be, Year 2000 Compliant. As used in this
Agreement, "Year 2000 Compliant" shall mean the ability of the Software
Products to provide the following functions:
(a) consistently handle data information before, during, and after January
1, 2000, including but not limited to accepting date input, providing
date output, and performing calculations on dates or portions of
dates;
(b) function accurately in accordance with the relevant documentation and
without interruption before, during, and after January 1, 2000,
without any change in operations associated with the advent of the new
century and/or the occurrence of February 29, 2000 (leap day);
(c) respond to two-digit year-date input in a way that resolves the
ambiguity as to century in a disclosed, defined, and predetermined
manner; and
(d) store and provide output of date information in ways that are
unambiguous as to century.
13.6 In addition to the aforementioned warranty obligations Licensor must
indemnify and hold harmless SAP from all claims raised by End Users and/or
the Applicable Entities against SAP for rescission of contract, reduction
of license fees or damage compensation related to defects of the Software
Products or the pertinent documentation, but only to the extent that
liability of SAP for any such claim cannot validly be excluded or limited
in standard terms and conditions pursuant to mandatory law in the relevant
jurisdiction.
This shall not apply to the extent that such defects did not exist at the
time of receipt of the Software Products by the End User or the Applicable
Entities or in situations where the
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claims are based on the lack of expressly warranted feature unless the
subject of such warranty corresponds to a similar warranty given by
Licensor. The limitation of liability in Section 14.1 shall not apply. SAP
notifies Licensor of such claims as soon as they come to SAP's knowledge.
14. LIMITATION OF LIABILITY
14.1 In no event shall either party be liable for any indirect, incidental,
special or consequential damages, or damages for loss of profits, revenue,
data or use, incurred by either party, whether in an action in contract or
tort, even if the other party has been advised of the possibility of such
damages. The parties liability for direct damages hereunder shall not
exceed the amount of fees paid by SAP under this Agreement.
14.2 The limitation of liability provided in section 14.1 shall not apply to any
direct, indirect, incidental, special or consequential damages or damages
for loss of profits, revenue, data or use arising from any act which, even
in the absence of this Agreement, would amount to infringement of a
copyright or patent or misappropriation of a trade secret of the other
party.
14.3 Either party's liability is not limited in those cases in which:
It acted with intent or gross negligence.
14.4 Licensor's liability is not limited in those cases in which SAP seeks
Indemnification under Section 12.4 and 13.6.
15. GENERAL
15.1 Notices. All notices shall be in writing and delivered personally, by mail
or via facsimile. All notices shall be addressed to the addresses appearing
below and shall be deemed delivered upon receipt. Each party may change its
address by written notice in accordance with this section.
If to SAP: SAP Aktiengesellschaft
Head of Basis Development
Neurottstrasse 16
D-69190 Walldorf
Germany
plus a copy to the following if the matter is a legal matter:
SAP Aktiengesellschaft
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Legal Department
Neurottstrasse 16
D-69190 Walldorf
Germany
If to Licensor: BackWeb Technologies Ltd.
P.O. Box 3581
34 Tuval St.
Ramat-Gan
52136 Israel
Attn: Finance Controller
plus a copy to the following:
BackWeb Technologies, Inc.
2077 Gateway Place, Suite 500
San Jose, CA 95110
Attn: Director of Finance
15.2 Modification. This Agreement may only be modified in writing by SAP and
Licensor. This also applies to any waiver of this written form requirement.
15.3 Nonwaiver of Rights. The failure of either party to this Agreement to
object to any conduct of the other party that is in violation of the terms
of this Agreement shall not be construed as a waiver thereof, or as waiver
of any future breach or subsequent wrongful conduct.
15.4 Entire Agreement. This Agreement, including attachment, shall represent the
entire understanding between the parties hereto relating to the Software
Products and supersede any and all prior proposals or agreements, whether
written or oral, that may exist between the parties. No oral side
agreements exist.
15.5 Export. SAP agrees to comply fully with all relevant export laws and
regulations, in particular German, European and US ("Export Laws") to
assure that neither the Software Products nor any direct product thereof
are (1) exported, directly or indirectly, in violation of Export Laws; or
(2) are intended to be used for any purposes prohibited by the Export Laws,
including, without limitation, nuclear, chemical or biological weapons
proliferation.
15.6 Governing Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of Germany without reference to the conflicts
of law principles. This Agreement shall not be governed by the United
Nations Convention of Contracts for the International Sale of Goods, the
application of which is hereby expressly excluded. Exclusive
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venue for all claims arising out of or in connection with this
Agreement shall be Munich, Regional Court of Munich 1. SAP shall
remain entitled to commence action or initiate other court proceedings
at the registered seat of Licensor.
15.7 Severability. If a court finds any provision of this Agreement
invalid or unenforceable, this will not affect any other provision of
this Agreement.
15.8 Independent Contractors. Both parties represent that they are
independent contractors in performing all obligations hereunder, and
nothing contained herein shall be deemed or construed to create any
employer/employee relationship or any partnership or joint venture
between the parties or their respective directors, officers,
employees, or independent contractors.
15.9 Assignments: Unless otherwise provided for in this Agreement,
neither party shall transfer, assign or sublicense its rights or
obligations under this Agreement to any other third party, in whole or
in part, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Assignment in whole by
either party to its respective parent organization is permitted
without written consent of the other party.
16. ATTACHMENTS
The following documents are incorporated as an integral part of this
Agreement.
Attachment A - Software Products, Software Products Fees and
Support Services Fees
Attachment B - Licensor's Support Services
Licensor SAP
By: /s/ GWEN SPERTELL BY: /s/ HEINZ HESS
--------------------------------- --------------------------------
Typed: Gwen Spertell Typed: Heinz Hess
------------------------------ -----------------------------
Title: Senior Vice President Title: Member of the Extended
------------------------------ Executive Board
-----------------------------
Date: March 16, 1999 Date: March 17, 1999
------------------------------- ------------------------------
<PAGE> 17
EXHIBIT 10.13
ATTACHMENT A
1: PRODUCT FUNCTIONALITY SPECIFICATION
1.1 BackWeb Integrated Client Interface for SAP Mobile Sales
Chant interface showing structured and unstructured data in a single
interface, across three html screens to ensure all relevant
information is "on hand" [*].
These information views, whether sourced from the WWW or from
internal sources, are displayed as channels and can be subscribed to
on an individual basis in the client interplace, or subscription to
selected channels can be initiated from the saver.
[*] months
1.2 Attention Management - Flash alerting (Automated Marketing
Encyclopedia)
Active alert mechanism to actively alert clients to new MES
Documents, even when not in the applications: [*]
[*] months
1.3 Multiple display Options (Client Options)
In addition to the client interface, options include wallpaper,
tickers, "News Title" and Screensavers.
1.4 Support of all electronic formats for publishing (Automated Marketing
Encyclopedia)
Allow the automated publishing of all file formats. Including , but
not restricted to, PPT, PDF, AVI, DOC, XLS, etc. to MES. In addition,
software delivery etc. which may not be required to go through the
MES, are also supported.
[*] months
1.5 Preview before MES subscription (Automated Marketing Encyclopedia)
Ability to view document title/summary info before subscription.
[*] months
1.6 Graphical Publishing Tool (BackWeb Foundation)
Allowing the administrator to very easily assign content to
respective target groups based on the user administration.
[*] months
1.7 Client Side API
BackWeb will provide a client side API that allows the SAP
application access to the BackWeb client functionality. [*] (note:
these interactions will not be included in the server reporting and
tracking)
API in [*] months
Starting date to be [*]
1.8 Hook for the SAP Middleware server; API for the integration of
corporate data systems, WWW, newsfeeds, etc.
Create a productized "hook" which enables the collection of data from
defined fields in the database and deliver via flash for notification
purposes. SAP or SAP Consultants can, on their own, use this API as
an interface with other corporate information systems, WWW, external
news sources. These will have to be custom created by the consultants
in the particular customer site and do not constitute "standard
products".
API in [*] months
For Hook, date to be [*]
1.9 Integration of User's/ groups for targeting (BackWeb Foundation)
Allow profiles, access rights, controls and targeting from the SAP
Mobile Series/Service user database. Single group/user identification
for personalization.
Date to be [*]
1.10 Reporting on downloads and interactions (BackWeb Foundation)
Reports on aggregate downloads and interactions with flashes. (This
feature is available through the BackWeb administration console, not
through the client UI)
[*] months
1.11 "Polite communication" (BackWeb Foundation)
Allow the delivery of large, multimedia files, software updates,
etc. to the client, without affecting their connection, extending the
Middleware synch process or interfering with end user connectivity
[*] months
1.12 News Delivery Capability (Marketing Intelligence Manager)
Agents that can automatically gather information from the WWW or
intranet and deliver this information to the user "Neva" interface.
[*] months
1.13 Co-Develop Flexible Administration Tool
Allow the system administrator to handle BackWeb server control and
content management under the Mobile Sales Administration console.
This feature needs to be co-developed with SAP, a functional
specification and development roadmap will need to be defined.
Date to be [*]
1.14 Languages - supported
[*]
Available
1.15 Languages - Planned
[*]
[*] months
1.16 Languages - double byte
[*]
Longer than [*] months, date to be jointly agreed
1.17 Platform - O/S
[*] not committed
Available
1.18 Platform - RDMS
[*] Support
SQL Server - available Oracle in [*] months.
--------------
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
<PAGE> 18
ATTACHMENT A CONTINUED
---
2
<PAGE> 19
ATTACHMENT A CONTINUED
---
3
<PAGE> 20
2. SOFTWARE PRODUCTS
including up-date, new versions and releases and resulting Software Products.
BackWeb product modules including but not limited to the Product Functionality
Specification in Section 1 of this Attachment A:
[*]
3. LIMITATION
The Parties hereto acknowledge and agree that the Software Products include
only the modules identified in Section 2, of this Attachment A. In the event
that BackWeb produces additional modules or functionality for its other
software products. BackWeb shall have no obligation to provide such modules or
functionality to SAP under this Agreement unless mutually agreed by the parties
in writing. Such additional modules or functionality may be subject to separate
charges.
4. LANGUAGE SUPPORT:
[*]
5. FUTURE DEVELOPMENT/ENHANCEMENTS
As defined in Joint Obligations of Licensor and SAP, Section 6.1 of the
Agreement, parties shall use reasonable efforts to notify each other of any
changes or enhancements to SAP Software, respectively Software Product. In the
event that changes and/or enhancements to the SAP Software necessitate major
and unavoidable changes and/or enhancements to the Software Product, BackWeb
shall, on SAP's request and at SAP's expense, perform such changes and/or
enhancements subject to availability of resources and on a mutually agreed upon
schedule. SAP will provide licensor reasonable support for such activities.
Such development may be subject to separate charges, which will be negotiated
in good faith.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
---
4
<PAGE> 21
6. PRICING AND TERMS
i) PREPAYMENT:
Within 30 days of the Effective Date, SAP shall pay to Licensor the amount of
USD [*] prepaid license fees and within 30 days after general availability of
the mobile sales application of the SAP Products but not later than 30 days
after December, 31, 1999, SAP shall pay to Licensor the amount of USD [*]
additional prepaid license fees ("Prepaid Fees"). Such payment shall be
understandable and such payment obligation shall be deemed non-cancelable.
During the term of this Agreement, SAP shall apply any Software Product Fees due
and payable to Licensor against the Prepaid Fees until the Prepaid Fees are
exhausted.
ii) SOFTWARE PRODUCT FEE:
For each Mobile Named User SAP agrees to pay to Licensor a Software Product Fee
of [*]
Licensor will consider First Customer Shipment (FCS) as trial software without
any payment obligation for SAP with respect to Software Products licensed by
SAP or the Applicable Entities to End-Users or partners of SAP and/or the
Applicable Entities during the FCS Phases. The term of FCS Agreements will not
be longer than nine (9) month.
In case of general license agreements between SAP and an End-User the parties
agree to decide on the Software Product Fee on a case by case basis and as
mutually agreed upon by the parties.
Pricing for other users than Mobile Named Users, which are to be defined when
the product modules mentioned in section 1.8 of the Agreement are included in
any other SAP products, shall be reduced in proportion to the degree of use of
the Software Products by other users of SAP Software in comparison to the Mobile
Named User in accordance with this Agreement. With the first release of any
other SAP product which becomes general available and which includes the product
modules mentioned in section 1.8 of the Agreement, parties agree to take the
first [*] customers to define an appropriate pricing model, not to exceed a
price per user of USD [*].
iii) PAYMENT TERMS:
Net 30 days upon receipt of invoice.
iv) SUPPORT SERVICES FEES:
5
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 22
Licensor shall invoice SAP the Support Service Fee in the amount of [*] of the
Software Products Fee licensed to End-Users. Such Support Service Fee shall
cover twelve (12) months of Support Services.
v) INTERNAL USE
Within 30 days of the Effective date SAP shall pay to Licensor the amount of
USD _______ or Internal Use of the Software products by SAP's presales, sales
and service personnel and its subsidiaries.
vi) SOFTWARE PRODUCTS ROYALTY REPORT
A written report is to be produced by SAP by the 15th of each month in respect
to the preceding month containing point of sales and reasonably detailed
information on the number of Named Users during that month.
vi) TRAINING:
The parties agree to the following additional terms and conditions:
1. Initial training courses to be performed by Licensor for SAP personnel
shall be subject to mutual agreement of the parties and shall be [*]
Licensor will provide respectively on initial one-week training course per
region (Europe, America, Asia). If additional training is required, it
will be charged at standard rates.
2. SAP will provide one initial technical support training on SAP Software to
Licensors technical support contacts at a SAP location to be mutually
agreed upon by the parties.
6
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 23
ATTACHMENT B
SUPPORT SERVICES
This Attachment sets forth the terms and conditions pursuant to which SAP and
Licensor will cooperate in providing support services for Software Products to
End Users.
1. DEFINITIONS
For the purposes of this Attachment, the following expressions shall have
the meaning as set forth below. Expressions not specifically defined in
this Attachment shall have the meaning as set forth in Section 1 of this
Agreement.
1.1 "Case" shall mean the support incident starting with the complete failure
or the functional impairment of a Software Products or with the reasonable
probability that a defect is caused by a Software Product. As soon as
either party's support organization is formed, the incident becomes a Case.
1.2 "Case Remedy" shall mean the remedy for a Case taking the form of
eliminating the defect, providing a new program version, or demonstrating
how to avoid the effects of the defect with reasonable effort. Case Remedy
corresponds with error corrections, patches, bug fixes, workarounds,
replacement deliveries or any other type of software or documentation
corrections or modification.
1.3 "Common Case Priorities" shall mean the priorities as referenced in Exhibit
C hereto.
1.4 "End User" shall mean any End User as defined in Section 1.4 of this
Agreement and who has a valid support contract with SAP.
1.5 "Licensor Support Terminology" shall mean the structure of Licensor's
support organization and the internal assignment of tasks as described in
Exhibit A hereto.
1.6 "SAP Support Terminology" shall mean the structure of SAP's support
organization and the internal assignment of tasks as described in Exhibit B
hereto.
1.7 "Support Site" shall mean the location out of which either of the parties
provide support services for analysis and remedy of Cases. The Support
Sites act as interfaces between either Support Partner's technical support
organization. The
<PAGE> 24
Support Sites correspond with the locations of either party's technical
support departments as referenced in Exhibit H hereto.
2. GEOGRAPHIC SCOPE
The geographic scope of this Attachment extends to all countries to which
SAP licenses Software Products under this Agreement.
3. SUPPORT SERVICES
The parties agree on the following principles for providing support
services for Software Products to End Users.
3.1 SAP's support organization shall be solely responsible for receiving Cases
and providing initial problem evaluation to End Users.
3.2 The parties agree to the Common Case Priorities as the basis for the
classification of and adequate response to cases.
3.3 Licensor agrees to provide Case Remedy to SAP in accordance to the
requirements set forth by the Common Case Priorities and in Section 5 of
this Attachment. Both parties will use reasonable efforts to assist the
other party in resolving the End User Cases in a prompt manner. In
particular Licensor agrees to provide End Users directly with a Case Remedy
when necessary to resolve the End User Cases in a prompt manner.
3.4 The parties agree that at least one technical support contract (Section 4.1
of this Attachment) is available locally or remotely to assist the other
party when needed. Based on the hours of support listed in Exhibit A
(Regular Hours) and Exhibit H.
3.5 The parties agree that escalation contacts (Section 4.1 of this Attachment)
will be available on a 24 hours, 7 days a week basis to handle emergency
situations. (see escalation contact/pager contact in Exhibit 1).
3.6 With respect to different priority categories pursuant to the Common Case
Priorities, Licensor agrees that priority 1 problems are handled 24x7 as of
Q1, 2000, and all other priorities (2,3, and 4) during normal business
hours.
3.7 Both parties agree on a problem transfer and escalation procedure worldwide
for End User problems. Details are given in the Support Process Description
in
<PAGE> 25
Exhibit D hereto. The procedure might be changed at any time on
mutual agreement in accordance to the business plan (Section 4.3 of
this Attachment) and business needs.
3.8 On SAP's reasonable request, licensor will send engineers to end-users
site to resolve escalated end user cases. The engineers are highly
skilled in Software Products and have a profound product knowledge in
the integrated Software.
3.9 Licensor shall establish on-site resources in accordance to Section 6
of this Attachment dependent on the business plan (Section 4.3 of this
Attachment) and business requirements as mutually agreed, for best
performance Case Remedy and Case Remedy of non-specific (gray zone)
Cases. Establishing on-site resources requires to adapt the Support
Process Description (Exhibit D hereto) accordingly.
3.10 Either party's support organization will ensure that the support
personnel are trained on the other party's products in accordance to
Section 7 of this Attachment.
3.11 Either party's support organization will use reasonable efforts in
tracking any Case down to the level of investigation specified in
Exhibit F before transferring the Case to the other party's support
organization.
4. OBLIGATION OF BOTH PARTIES
4.1 Each party will designate in Exhibit H hereto the names and contact
information of the technical support departments and in Exhibit I the
names and contact information of individuals within its respective
support organization that will be providing technical support
(technical support contacts) and escalation support (escalation
contacts) to the other party. The contact information includes,
without limitation, direct dial telephone/fax number, electronic
access (Internet/WWW. user, password). The designated contacts may be
changed at any time by verbal notice to the other party confirmed in
writing at least 10 business days prior to such changes.
4.2 Each party will designate in Exhibit I the names and contact
information of the primary individuals responsible for facilitating
communications between the parties. Each party may change such
information at any time by written notice to the other party.
<PAGE> 26
4.3 The parties will set up a business plan which should include expected
case load, breakdown of current issues, mean time to repair (mttr),
mean time between failure (mtbf), engineering change policy and
procedures, software release strategy, overall support strategy and
locations of offices, subsidiaries and number of on-site engineers.
The parties will review the business plan with special emphasize on
numbers, quality of the dedicated personnel and resources, on a
quarterly basis and will mutually agree on additional commitments as
business circumstances require.
5. SUPPORT LEVELS
5.1 The Common Case Priorities apply to the support of the Software
Products.
5.2 In order to ensure SAP's support of Software Products toward End Users
in compliance with the Common Case Priorities, Licensor agrees to
respond to SAP in accordance with the times as shown in the table
below. These are the times Licensor gives SAP feedback about the case
acceptance (initial response time) and status of the solution process
(update period). Start time is the date and time of the case receipt
by Licensor. If the case could not be solved in the time passed
(update period), SAP will escalate the case within Licensor.
Thereafter Licensor will use its best reasonable efforts to solve the
case within the last period (response goal).
Priority Severity Initial Response Update period Response goal
-------- --------- ---------------- ------------- -------------
1 very high 60 minutes 4 hours 2 days
2 high 4 hours 1 day 4 days
3 normal 8 hours 2 days 8 days
4 Low 16 hours 4 days 16 days
Priority 1,2,3,4,: hours and days are in support hours
As of Q1, 2000, Priority 1 will be handled 24x7
6. ON-SITE RESOURCE
If found to be necessary, BackWeb will comply with Sections 3.8 and
4.3 of this Attachment. Licensor will hire, train and send the agreed
upon number of support engineer(s) to the designated SAP technical
support department(s). Licensor's support engineer(s) is/are high
skilled in the Software Products, with a support point of view, and
have profound product knowledge in SAP's Software. The support
engineer(s) will work at the SAP technical support department to
<PAGE> 27
resolve End User Cases. The support engineer(s) will provide support
in direct communication to End Users. SAP will provide the support
engineer(s) with an office and all needed infrastructure, including
network connection to Licensor's support organization. Licensor's
support engineer(s) will get access to and may use SAP's support
organization on SAP's discretion. On-Site resources will be funded by
SAP and Licensor on a [*] basis of the cost based rate. This will be
mutually agreed, as required.
7. TECHNICAL TRAINING
7.1 SAP and Licensor will train an adequate number of personnel of its
technical support contacts in the other parties software product as
needed due to the business plan, to handle the problem load and to
fulfill the level of Case investigation specified in Exhibit F hereto.
7.2 Training sessions shall be provided by the technical support or
education organizations of each party in the training facilities in
which it generally provides such training or at such other location as
the parties may mutually agree. The content and scheduling of the
training sessions shall be determined by the party providing the
training and shall be substantially similar to the standard training
session it provides to its own employees.
7.3 The recommended basic training courses for the SAP and Licensor
technical support contacts both companies have mutually agreed on are
specified in Exhibit G hereto. Basic training will be charged at
standard rates for Licensor and SAP unless otherwise agreed. Licensor
will provide initial basic training courses to at least two SAP
technical support contacts at each SAP Support Center free of charge.
7.4 Each party (the "Training Party") agrees to allow certain technical
support contacts of the other party (the "Trained Party") to
participate in "On the Job Training" (OJT), for the Training Party's
software products and at the Training Party's Support Site to be
mutually agreed by the parties. Prior to the OJT the designated
technical support personnel has successfully attended the recommended
basic training (Section 7.3 of this Attachment) of has comparable
skills. The Training Party will provide OJT by means of its support
engineers that perform the function in the Support Site or such other
location as the parties mutually agree. The content and scheduling of
OJT will be determined by the Training Party.
8. TECHNICAL/SUPPORT INFORMATION DATABASES
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
<PAGE> 28
18.1 Licensor posts technical information to its technical information
database.
8.2 SAP posts the support knowledge in its support information database
in the form of notes and Hot News.
8.3 Each party shall provide the other party free of charge the right to
(a) access those portions of its technical/support information
database that the other party determined, in its sole discretion, are
reasonably necessary for the purpose of facilitating the resolution
of specific End User Cases; and to (b) use such portions of the
technical/support information database for the foregoing purpose.
8.4 Neither party may license, transfer, sell, lease, loan, distribute or
otherwise provide the other party's technical/support information
database, or any portion thereof, to any third party, unless expressly
agreed to in writing in advance by the parties.
9. TECHNOLOGY AND INFORMATION EXCHANGE
Both parties will cooperate in providing automatic case transmission
between either party's call management system. This includes the
provision of interface specifications and implementation/test support.
This statement does not constitute any commitment as to the
responsibility for implementation costs of automatic case
transmission.
10. REVIEW MEETINGS
10.1 The parties will meet quarterly at a mutually agreed upon time and
location to review and discuss the worldwide support performance
pursuant to this Attachment.
10.2 On executive level both parties will meet during the SAP partner
congress (special event, once a year) to discuss the strategic view of
the support cooperation.
11. COSTS, FEES AND EXPENSES
Costs, fees and expenses are due as stipulated specifically in this
Attachment B or generally in Attachment A. Otherwise, support services
are free of charge to the other party.
<PAGE> 29
Exhibit A:
Licensor Support Terminology
SUPPORT ORGANIZATION AND ASSIGNMENT OF TASKS
o Only available during technical support hours (Section 5.2 and Exhibit H)
o Product specific skills
o Primary tasks
o Respond to Cases where SAP was unable to find resolution
o Analyze dumps and configurations
o Reproduce problems
o Provide circumvention
o Secondary tasks
o Works closely with the development and quality assurance teams
o Provide code fixes to customers
Write notes describing customer fix
<PAGE> 30
EXHIBIT B:
SAP Support Terminology
SUPPORT ORGANIZATION AND ASSIGNMENT OF TASKS
o LOCAL SUPPORT
-- Country specific support
-- Only available during business hours (prime shift)
-- Generalist skills
o Primary Tasks
-- Translation from customer native language to English
-- Assign problem record to specific product component
o Secondary Tasks
-- Search technical support database for known defects (i.e. notes or old
cases)
-- Check functionality of customers remote connection
o REGIONAL SUPPORT
-- Located in the following regions:
-- USA (Philadelphia): North- and South America
-- Europe (Walldorf and Ireland); Europe, South Africa, Middle East
-- Singapore: Southwest Asia and Pacific (Australia, New Zealand)
-- Japan: Northeast Asia, Japan
-- Worldwide coverage (Follow the Sun principal, covered by USA, Europe
and Singapore)
-- Product specific skills
o Primary Tasks
-- Search technical support database for known defects (i.e. note or old
cases)
o Secondary Tasks
-- Check customizing
-- Analyze dumps, write traces or traps, reproduce problems
-- Provide circumvention
-- Write notes describing customer fix
o DEVELOPMENT SUPPORT
-- Located in Walldorf (Germany) and Palo Alto (USA)
-- Available during business hours, callout on exception basis
-- In depth product specific skills
-- Provides code fixes to customers (Hot Packages)
-- Works closely with, or may be a part of the development team
<PAGE> 31
Identical problem situations in test systems will normally justify a
priority that is one level lower than the equivalent priority in a
production system.
<PAGE> 32
EXHIBIT C:
Common Case Priorities
The End User himself defines the case priority/severity in accordance to the
following general rules.
o Priority 1; Very high:
A message with priority "very high" is justified when extremely serious
interruptions in normal operations occur. Tasks that brook no delay
whatsoever cannot be executed. This is caused by a complete crash of or by
interruptions in main functions of the respective software product.
The message requires immediate processing, as the breakdown can result in
significant losses.
o Priority 2; High:
A message with priority "high" is justified when serious interruptions
in normal operations occur. Important tasks cannot be performed. This is
caused by a malfunctioning or unavailable function in the respective
software product that is urgently required to deal with the current
situation.
The message requires quick processing, as a lasting malfunction could
cause serious interruptions to all work in the production system.
o Priority 3; Medium:
A message with priority "medium" is justified when interruptions in normal
operations occur. This is caused by a malfunctioning or unavailable
function in the respective software product.
o Priority 4; Low:
A message with priority "low" is justified when only minor interruptions in
normal operations occur. This is caused by a malfunctioning or unavailable
function in the respective software product that is not required on a
daily basis or not used regularly.
o Classification of Test Systems:
<PAGE> 33
Identical problem situations in test systems will normally justify a
priority that is one level lower than the equivalent priority in a
production system.
<PAGE> 34
EXHIBIT D:
SUPPORT PROCESS DESCRIPTION
1. PROCESS DESCRIPTION
1.1 SAP's support organization shall be solely responsible for receiving Cases
and providing Initial problem evaluation to End Users. Before transferring
the case to Licensor, SAP will make reasonable efforts to track any case
down to the level of investigation specified in Exhibit F. If SAP is
unable to resolve the problem in a timely manner, SAP will initially
contact the designated technical support department(s), and, if needed,
the technical support contact(s) of Licensor.
1.2 SAP will supply the technical support department/contact with the required
End User information specified in Exhibit E. Licensor's technical support
department/contact will then use reasonable efforts to provide SAP with a
Case Remedy that is satisfactory to the End User in accordance with the
applicable priority category of the Common Case Priorities. Licensor agrees
to provide End Users directly with a Case Remedy when necessary to resolve
the End User Cases in a prompt manner.
1.3 Each party shall respond to and use reasonable efforts to resolve End User
Cases in a prompt manner. The solving party will inform the other of the
final resolution to achieve a Case closure. The decision on whether and
when a Case is successfully resolved and can therefore be closed is done
by the End User. Each party acknowledges that, despite a party's
reasonable efforts, not all problems may be solvable.
2. ESCALATION OF END-USER PROBLEMS
2.1 The escalation procedure ("escalation") will be followed if either party
believes a Case requires additional attention by the other party to
resolve the problem. The escalation process is mainly in progress when a
technical problem situation arises, however, solution of this problem
requires non technical support for solving it. Escalation is triggered by
high levels of End User anxiety when either case occurs:
<PAGE> 35
(a) A case remedy leads to a not satisfactory End User solution by either party
involved:
(b) SAP concerns about the solution given by Licensor (or v.v.);
(c) the End User who reported the original case is dissatisfied with a given
solution and comes back to SAP.
2.2 For direct escalation, either party's escalation contact or support
engineer may call the other party's escalation contact or support engineer
to start a case escalation. Once a party requests escalation a mutual
action plan will be developed which defines steps, to resolve End User
problem. The steps are at minium:
(a) address resources or increase them if already addressed, and
(b) define responsibilities for each action, and
(c) expected completion date and time of each action, and
(d) contingency/next steps if desired results are not achieved.
2.3 This action plan will be modified by mutual agreement among the designated
contacts whenever the situation requires.
2.4 When the End User states the problem is resolved or the situation no longer
requires escalation, the escalation is closed. Each party will exchange
with the other party the final reports summarizing the actions taken and
results of these actions, likelihood of problem recurrence and recommended
future actions.
2.5 A review of the case will be provided for the End User at the End User's
request or upon the request of SAP.
<PAGE> 36
EXHIBIT E:
REQUIRED END USER INFORMATION
SAP REQUIRED END USER INFORMATION
o End User Name
o Company Name/Address
o End User Telephone Number
o SAP Contract Number (i.e. customer number, installation number)
o R/3 Release, Database Type and Release, Operating-System-type
o System type (Production, Test system)
o Description of Problem
o Name and local Phone Number of Respective Licensor
o Technical Contact Transferring the Call
o Case number of End Users Incident in Licensor call tracking system
LICENSOR REQUIRED END USER INFORMATION:
o End User Name
o Company Name/Address
o End User Telephone Number
o Description of Problem
o System type (Production, Test system)
o SFA Release, Database Type and Release, Operating-System-type, BackWeb
configuration details and version number
o Name and Local Phone Number of Respective SAP Technical Contact Transferring
the Call
o Case number in SAP's call tracking system
<PAGE> 37
EXHIBIT F
Level of investigation
SAP will provide the initial problem evaluation through SAP Support. The SAP
Support will make a determination of whether a Case is due to a problem with the
integration or the Software Products. If the Case appears to be due to incorrect
installation of the Software Products, due to a defect in the Software Products'
modules of integration, due to use of Software Products, or due to a defect in
Software Products, the SAP Support will refer the Case to Licensor.
If available the SAP Support will include specific identification of the cause
of the problem where possible and providing test cases of same, to the extent
practicable in the circumstances.
<PAGE> 38
EXHIBIT G:
RECOMMENDED BASIC TRAINING
SAP Training Requirement
--------------------------------------------------------------------------------
BackWeb Overview Feature/Functionality Call Center - General
understanding
--------------------------------------------------------------------------------
BackWeb Server set up and Technical Support
Administration administration; problem
resolution - scripting;
integration exp.
--------------------------------------------------------------------------------
BackWeb Training Requirement
o SAP Mobile Sales product overview
o SAP Mobile Sales product technical training - installation details,
configurations, communication, database, etc.
o Integration details - how BackWeb and SAP Mobile sales have been
integrated
<PAGE> 39
EXHIBIT H:
DEPARTMENTS
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SAP
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Europe Mo-So: 8:00- +49 180/5343431
Neurottstrasse
Europe 18:00 CET +49 180/5343436 Prio 1 69190 Walldorf, Germany
Middle- +49 180/5343430 (FAX) Tel. +49-6227-747474
East, Africa
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USA Mo-Fr: 14:00- +1 800 677 7271
Americas 24:00 CET: (only inside USA) 3999 West Chester Pike
Sa-So: 18:00- +1 610 355-5821 Newton Square, PA 19073
02:00 CET +1 610 355-3106 (FAX)
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Singapore Mo-So: 1:00- +65 2491-700 750A Chai Chee Road
Asia 8:00- CET +65 2491-718 (FAX) 7th Floor Chai Chee Industrial
Pacific Park
Australia Singapore
not Japan
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Japan Mo-Fr: 8:00- +51 120-33-2909 Time24
Japan 18:00 Japan +51 120-33-2903 (FAX) 45 Aomi, 2-chrome, Koto-Ku
Korea J-Tokyo 135-73, Japan
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BACKWEB
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USA 7:00 a.m.-6:00 p.m. 408-533-1702 2077 Gateway Place 2nd tier support
Worldwide Monday-Friday Suite 500
support (excluding San Jose, CA
scheduled BackWeb 95110
holidays)
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EUROPE 7:00 a.m.-5:00 p.m. TBA, Q2, 99 TBA 2nd tier support
Worldwide Monday-Friday
support (excluding
scheduled BackWeb
holidays)
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<PAGE> 40
EXHIBIT I:
CONTACTS
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SAP
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Americas Escalation Mark Moeller +1 610 355 3350 mark-moeller@sap-
Contact Pager: 800-370- ag.de
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Europe Escalation Hirsch, Karola +49-6227-7- karola-hirsch@sap-
Contact 43393 ag.de
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Europe Manager Juergen Viehl +49-6227-7- juergen.viehl@sap-
MM Support 45435 ag.de
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Corporate Support Schneider, +49-6227-7- hans- Primary
Cooperation Haris-Ludwig 44638 ludwig-schneider Communication
Manager @sap-ag.de Contact
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Corporate Central Walner, +49-8227-7- friedrich-walner Escalation
Customer Friedrich 45123 @sap-ag.de Management
Escalation Team
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BACKWEB
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Coporate Service Kathy Neri +1 409-933-1702 Kneri@backweb.com Primary
Contact +1 408-933-1755 communication
Pager: 1-877-855- contact
7243
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Europe Service TBA - Q2,99 TBA Primary
Contact communication
contact
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Corporate Escalation Marg +1 408-833-1722 marg@backweb.com Escalation
Vallaricourt management
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