National Partner Agreement - KPMG Peat Marwick and SAP America Inc.
R/3 NATIONAL PARTNER AGREEMENT
SAP AMERICA, INC. - KPMG PEAT MARWICK
This National Partner Agreement (the "Agreement"), made as of September
20, 1993, is by and between KPMG Peat Marwick, ("KPMG"), a partnership with a
principal office located at Valleybrooke III, Suite 400, 101 Lindanwood Drive,
Malvern, PA 19355, and SAP America, Inc., ("SAP"), a Delaware corporation with
its principal place of business at International Court Three, 300 Stevens Drive,
Lester, Pennsylvania 19133.
RECITALS
A. WHEREAS KPMG and SAP, desiring to work together, pursuant to the
intent of the R/3 Partner Program of SAP, with the goal of furthering the
implementation of SAP's R/3 Software System;
B. WHEREAS SAP desires to enhance its capabilities to market and
support SAP Products through the use of KPMG's services; and
C. WHEREAS KPMG and SAP desire to expand their formal relationship by
entering into this non-exclusive arrangement to undertake cooperative efforts
for SAP R/3 Products within the SAP Partner Program.
NOW, THEREFORE, in reliance upon the foregoing recitals, intending
to be legally bound, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, KPMG and SAP agree as follows:
1. Definitions.
As used in this Agreement:
(a) The SAP-KPMG R/3 National Partner Program (the "R/3
Program") means the business relationship set forth in this Agreement and
Appendix A to this Agreement.
(b) Software. Software shall mean all SAP R/3 software, in
whole or in part, provided to KPMG under the R/3 Program by SAP AG, SAP America,
Inc., or any SAP full-time or engagement consultants, in any release, version or
correction level and including all improvements, modifications, and extensions
thereto, whether in human or machine readable form.
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(c) Documentation. Documentation shall mean all human and
machine readable materials and copies of SAP manuals, program listings, flow
charts, logic diagrams, input and output forms, data models, specifications, and
instructions relating to the Software made available to KPMG under this
Agreement.
(d) R/3 Products. R/3 Products shall mean the Software,
Documentation and related materials.
(e) Confidential Information. Confidential Information shall
include information concerning KPMG and KPMG's clients, and their respective
products, businesses, techniques, designs, formulations, systems, programs,
processes, policies, business strategies and plans or other information which is
not in the public domain, and SAP's R/3 Products, program concepts including
literal and nonliteral structure, sequence and organization, SAP's training
materials, literature, and related SAP materials, SAP's customers, their
respective products, businesses, techniques, designs, formulations, systems,
programs, processes, policies, business strategies and plans and all other
information which is disclosed by either party to the other party either in
writing and marked bearing a legend such as "confidential" or "proprietary" or
"for internal use only" or orally when contemporaneously described as such.
(f) Territory. Territory shall mean the United States of
America.
2. Authorization and Commitment of Resources.
(a) SAP hereby authorizes KPMG to offer services as related to
R/3 Products to potential users in the Territory under the terms of this
Agreement and any Appendices hereto. This authorization does not include
maintenance of the R/3 Products, physical installation of the R/3 Products, and
training; it may be extended to include physical installation of the R/3
Products and training only upon amendment to this Agreement providing such
written authorization. This authorization is non-exclusive and non-transferable
except to KPMG's successors in interest to which authorization may be
transferred with SAP's prior written consent.
(b) As a National Partner, KPMG is entitled to display the SAP
R/3 Partner Logo which will identify it as an official R/3 Partner, authorized
as described in Section 2.(a), upon SAP's written consent for each such display.
(c) KPMG agrees to make its name and logo available to SAP for
SAP's use in promoting KPMG's services under the R/3 Program. Prior to each new
use, SAP shall submit the proposed use to KPMG for its consent.
(d) SAP shall have the right to limit the Territory, the R/3
Products, and the type of customers to be covered by this Agreement, as SAP
deems advisable following reasonable notice and consultation with KPMG. Such
limitation shall be based on the business plan provided in accordance with
Section 5.(c) of this Agreement and the annual performance
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review of such business plan. SAP may authorize other parties to offer services
as related to the R/3 Products in the Territory as it deems advisable in its
sole discretion.
(e) Services to be provided by either party to its clients and
customers are to be contracted for separately by each party, independently of
each other, unless otherwise expressly agreed upon in writing between SAP and
KPMG for that specific engagement. Each party shall be solely liable to its
customers and clients for its own services.
3. Services and Responsibilities of SAP.
(a) SAP shall provide to KPMG the Software under the terms of
the R/3 Software Training and Demonstration License which is attached to this
Agreement as Appendix A. The Software shall only be used internally by KPMG
solely for (i) training of KPMG's personnel who are to work under this Agreement
and (ii) for demonstration of the Software to potential prospects upon the prior
written consent of SAP. The development of modifications and extensions to the
Software will be covered under a mutually agreeable development license
exclusive of this Agreement. The Software copy provided hereunder may not be
used in the operation of the business of KPMG or of any other entity or person.
(b) Should KPMG desire to license all or any part of the
Software for use in the operation of its own business, SAP will license it to
KPMG under the terms of SAP's standard end-user license agreement and at SAP's
standard license fees then in effect, less any discounts which may be
applicable.
(c) With regard to training for the Software, SAP shall:
(i) use reasonable efforts to offer training to KPMG
personnel prior to the public announcement of new products or new features for
the Software;
(ii) provide SAP regularly scheduled alliance partner
training. The cost for such training is to be determined by mutual agreement on
an annual basis. KPMG shall be responsible for all related travel and living
expenses;
(iii) provide access to KPMG for its personnel
participating in the R/3 Partner Program to customer training courses generally
offered by SAP, such training courses to be available at SAP's current prices
and terms;
(iv) provide marketing-oriented training courses to KPMG
on a cost-sharing basis to be agreed upon between the parties; and
(v) in consultation with KPMG, consider the need and
demand for other training courses, such courses to be offered on a cost-sharing
basis to be agreed upon between the parties.
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(d) Upon KPMG's prior written request, SAP, in its sole
discretion, shall provide KPMG, on a no cost basis, reasonable quantities of
SAP's published marketing materials.
(e) With respect to participation in SAP events;
(i) SAP shall permit up to two (2) KPMG personnel to
participate (without payment of SAP's usual charges) in SAP's regularly
scheduled user conference held in the United States for the R/3 Products. KPMG
shall be responsible for its personnel's travel and living expenses.
(ii) SAP shall organize "Partner Days", on a calendar
quarterly basis, to develop and promote joint marketing activities as well as to
inform KPMG of upcoming and ongoing projects scheduled for the next twelve (12)
months.
(f) SAP shall provide to KPMG access to SAP internal support
systems as mutually agreed upon by the parties.
(g) SAP shall otherwise inform and instruct KPMG as to R/3
Products and provide guidance, as SAP deems necessary in its sole judgment, for
KPMG to carry out its responsibilities under this Agreement.
4. Services and Responsibilities of KPMG.
KPMG agrees that it shall:
(a) acquire as soon as possible and maintain a comprehensive
and fundamental knowledge of the R/3 Products and ensure that its employees are
technically qualified and sufficiently trained in SAP courses, including ongoing
training at SAP, and internally, to provide appropriate advice on the use of the
R/3 Products to clients and prospective users of the Software;
(b) use its best efforts to promote internally the R/3
Products and to offer services as related to the R/3 Products throughout the
Territory and ensure that its employees who perform any services hereunder shall
have the proper skill, training and background to enable them to demonstrate the
R/3 Products in a competent and professional manner;
(c) ensure that it has the necessary number of qualified
personnel (as set out in Section 4.(a) of this Agreement) available according to
the annual business plans (as set out in Section 5.(c) of this Agreement);
(d) continually improve its training of all personnel who are
or will be acting under this Agreement;
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(e) use its best efforts to make the R/3 Products known to its
customers and potential customers; make every effort to see that the R/3
Products it suggests to each potential customer meet that entity's application
requirements; present the R/3 Products using only the product names given by
SAP; provide potential customers such marketing materials and nonconfidential
information necessary for evaluating the R/3 Products being considered (except
as limited by Section 10.(b) below); and, make no warranties, assurances or
statements concerning R/3 Product features that are misleading or materially
divergent from the descriptive literature supplied by SAP;
(f) to the extent it conducts end-user training within its
other consultation activities, not offer or conduct end user training in the
functions and features of the R/3 Software products which competes with official
SAP courses offered by SAP or SAP AG or any other SAP-related entity without
prior written authorization from SAP;
(g) participate actively in joint marketing events by
presenting speeches, providing information to potential prospects (subject to
Section 10.(b) below), and assisting in the organization and implementation of
the events;
(h) organize information events jointly with SAP for the
exchange of information between SAP and KPMG;
(i) expressly inform its customers that modifications and
extensions to the Software may impair or terminate the maintenance or support
services provided by SAP and may nullify the warranty; and
(j) undertake to qualify and train its professional staff and
be prepared to provide professional services at KPMG's standard hourly rates
then in effect when requested by an SAP customer to assist such customer in
release and version management and migration support as related to the Software
during the period that such customer is installing the Software.
5. Services and Responsibilities of the Parties.
To the extent reasonable under the circumstances, the parties
shall undertake the following cooperative activities with respect to identifying
and bringing to each other opportunities to promote the R/3 Products:
(a) Regularly inform each other about general market
developments and factors relating to the R/3 Products in the marketplace and
current projects and customer implementations in which KPMG is involved; this
information shall be designated and treated as confidential information under
Section 10. of this Agreement;
(b) Furnish each other with appropriate information for
support and planning purposes; provided, however, that each party reserves the
right, in its sole discretion, to determine the content and availability of such
information;
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(c) Based upon each party's own business plan, mutually agree
on an annual basis upon business plans for the implementation of the goals of
this Agreement, which plans shall be updated quarterly; the business plans
should detail such items as planned training of KPMG personnel who will be
working under this Agreement, marketing, and other projects;
(d) Inform appropriate personnel in their respective
organizations of the existence of this Agreement;
(e) Subject to confidentiality constraints, endeavor to keep
each other appraised about new products and services;
(f) Each establish an internal R/3 support group with an
adequate support structure to coordinate activities with the other party and
designate a contact person within the support group to be available to the other
party and authorized to act on behalf of that party within the scope of this
Agreement; and
(g) Exchange such other information and conduct such other
activities as the parties agree will carry out the intent of this Agreement.
6. General Representations and Warranties.
Each party hereby represents and warrants to the other that:
(a) it has the right and power to enter into this Agreement;
(b) entering into this Agreement does not violate the terms
and conditions of any other agreement providing for cooperative marketing of
products of another entity, or any other legal obligations;
(c) the information which it may disclose to the other party,
and the process of disclosure and use of such information in accordance with the
provisions of this Agreement, will not violate any trade secret right,
trademark, issued United States patent, copyright or other proprietary right of
any third party;
(d) it holds good title or right, free and clear of all liens
and encumbrances, to the products and services which it is providing under this
Agreement;
(e) the products and services being provided under this
Agreement do not infringe any United States copyright, trademark, issued patent,
trade secret or other proprietary right of any third party; and
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(f) EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PARTY
MAKES ANY OTHER WARRANTY TO THE OTHER PARTY, EITHER EXPRESS, IMPLIED OR
STATUTORY, OR ARISING BY COURSE OF CONDUCT OR PERFORMANCE, CUSTOM OR USAGE IN
THE TRADE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Term and Termination.
(a) This Agreement shall have an initial term expiring on
December 31, 1994, with an automatic renewal for two (2) additional years
unless, at least six (6) weeks prior to the renewal date, either party gives
written notice of its intention not to renew this Agreement.
(b) At least four (4) months prior to any scheduled expiration
date, SAP will decide whether to continue or terminate the Agreement applying
the following criteria:
i. Customer satisfaction with the projects conducted by
KPMG, with special regard to the length and cost of
the project, the project objectives met by KPMG, and
the achievements and professionalism of KPMG
employees;
ii. Number and scope of R/3 projects executed;
iii. Number and quality of the events coordinated by
KPMG;
iv. Thoroughness of employee training;
v. Extent of KPMG participation in partner program
events;
vi. Accomplishment of goals set herein and in the annual
business plans;
vii. Nature and volume of the information exchange with
SAP; and
viii. Extent and effectiveness of use of marketing
materials.
The specific goals to be accomplished, the procedure for
evaluating KPMG's performance under this Agreement, and the specific weights to
be assigned to each evaluation criterion will be mutually developed and agreed
to during the development of the annual business plan and will be included as
part of the annual business plan.
On the basis of this evaluation and subsequent consultations
with KPMG,
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KPMG agrees that SAP, in its sole discretion, may choose to terminate this
Agreement six (6) weeks prior to the next scheduled expiration date.
(c) Notwithstanding the above, either party may terminate this
Agreement:
(i) In accordance with the provisions of Section 7.(a) and
(b) at the end of a term;
(ii) Upon a determination by SAP that KPMG is offering
potential customers of R/3 Products other products that are in competition with
the R/3 Products; excepting the following KPMG products and their extensions:
FAMIS, STARS and R-STARS (a series of finance, accounting and administrative
applications primarily provided to institutions and government entities) and
ALLIANCE/FM, ALLIANCE/HR, ALLIANCE/IQ, and ALLIANCE/DK (a series of finance,
accounting, materials management, human resource, payroll, benefits, and
administrative applications developed jointly by KPMG's Alliance Group and
Unisys); KPMG expressly waives any claim to damages arising from termination on
this ground;
(iii) Upon thirty (30) days prior written notice in the
event of material breach of a material provision of this Agreement by the other
party, except that the party in breach shall have the right, during that 30-day
period, to cure the claimed breach or default; for purposes of this Paragraph
7.(c)(iii) only, Sections 2.(e), 4., 5.(a), 6., 8., 9., 10., and 11.(h) shall
be considered to be material provisions of this Agreement; or
(iv) Immediately and without prior written notice if there
is: (a) a consolidation, merger or reorganization of the other party with or
into another corporation or entity which has not received the prior written
approval of the terminating party; (b) creation of a new majority interest in,
or change in majority ownership of, the other party; (c) a sale of all or
substantially all of the assets of the other party; or (d) a breach of the
confidentiality provisions as specified in Section 10. below.
(d) Upon any termination of this Agreement:
(i) each party shall promptly return to the other party or
dispose of as mutually agreed all advertising materials and other properties,
including all confidential materials, furnished to it by the other party
pursuant to this Agreement and so certify in writing;
(ii) KPMG shall promptly return R/3 Products and related
materials and all copies thereof to SAP, or as the case may be, delete all R/3
Products from KPMG hardware, including binary or other resulting files (if any),
and erase all R/3 Products from any storage media before discarding such, and so
certify in writing;
(iii) KPMG shall not hold itself out as a participant in
the R/3 National Partner Program; and
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(iv) both parties shall cease acting in a manner that
would suggest any continuing relationship between the parties regarding SAP's
Software, and shall cease all display and advertising contemplated under this
Agreement.
(e) Termination of this Agreement shall not impact upon any
proposals issued to clients or prospective clients prior to such termination, or
upon any active engagements in process prior to such termination.
(f) The following provisions of this Agreement shall in all
events survive its termination: Section 6. (General Representations and
Warranties); 7. (Provisions Applicable to Termination); 8. (Relationship of
Parties); 10. (Confidentiality); and 11. (General Provisions).
(g) Termination of this Agreement shall result in termination
of Appendix A, R/3 Software Training and Demonstration License.
8. Relationship of Parties.
(a) KPMG and SAP are independent contractors acting for their
own account, and neither party or its employees are authorized to make any
representation otherwise or any commitment on the other party's behalf unless
previously authorized by such party in writing. Neither party is responsible to
any end user for the quality of services or products provided by the other
party. Each party is solely responsible for establishing the prices for its own
products.
(b) Neither party is a distributor or agent for the products
or services of the other. Each party's products and services shall be available
to a prospective client only through separate agreement between that party and
the client. Each party shall independently develop and price its respective
products and services offered between such party and a client.
(c) It is understood and agreed upon by the parties hereto,
that during the term of this Agreement, the use of the terms "joint venturer,"
"co-venturer," "partner," "marketing partner," "partnership" or similar terms to
be used to describe the relationship between the parties under this Agreement
refer to the spirit of cooperation between KPMG and SAP, and do not describe, or
expressly or by implication create, a legal partnership or joint venture, or
any responsibility by one party for the actions of the other.
9. Intellectual Property Rights.
(a) The name "R/3 Partner Program" shall be used by the
parties only jointly and pursuant to the terms of this Agreement; and upon any
termination of this Agreement, neither SAP nor KPMG may use the name in
conjunction with the parties'
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respective corporate names; however, SAP shall have the right to use the name
with any other parties who choose to participate in the SAP R/3 Partner
Programs.
(b) Nothing in this Agreement grants to either party the right
to use or display any other names, trademarks, trade names, logos or service
marks of the other party, except to identify the products and associated
services and deliverables of the other party to the extent obligations are
undertaken pursuant to this Agreement. Except in the case of correspondence and
proposals issued in the ordinary course of business, each party agrees to submit
to the other party for written prepublication approval, any materials which may
use or display any name, trademark, trade name, logo or service mark of the
other party. Notwithstanding the foregoing, nothing contained in this Agreement
shall affect either party's rights and obligations to use any trademarks,
service marks or proprietary words or symbols of the other party to properly
identify the goods or services of such other party to the extent otherwise
permitted by applicable law or by written agreement between the parties.
(c) KPMG herein acknowledges that title to all intellectual
property rights, including patent, copyright, trademark, and trade secret rights
in R/3 Products, including any modifications, enhancements, versions, releases,
or correction levels thereto, program concepts including literal or nonliteral
structure, sequence and organization, training materials, literature, and other
SAP related materials shall remain exclusively with SAP AG, Walldorf, Germany,
or SAP as the case may be, and that by virtue of this Agreement, no such rights
have been transferred, licensed, granted, assigned or acquired by KPMG from
SAP AG or SAP.
(d) SAP herein acknowledges that title to all intellectual
property, including patent, copyright, trademark, and trade secret rights in
KPMG methodologies, tool kits, software products, training materials,
literature, and other proprietary materials shall remain exclusively with KPMG,
and that by virtue of this Agreement, no such rights have been transferred,
licensed, granted, assigned or acquired by SAP from KPMG.
10. Confidentiality.
(a) Each party acknowledges that, during the term of this
Agreement, it will receive Confidential Information from the other party.
Neither party shall disclose, provide or otherwise make available to any third
party (including any prospective client) any Confidential Information of the
other party and shall utilize such Confidential Information on an internal
organization need-to-know basis only to the extent necessary to effect the
provisions and purposes of, and as expressly contemplated under the terms of,
this Agreement.
(b) Each party agrees that it will protect the Confidential
Information of the other party through the exercise of no less protection and
care than it customarily uses in safeguarding its own confidential and
proprietary information which it desires to retain in confidence, but always at
least a reasonable degree of care. Disclosure of the other party's Confidential
Information to employees shall only be made on a need-to-know basis. Further,
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each party shall take reasonable steps to advise their employees of the
confidential nature of Confidential Information, to ensure by agreement or
otherwise that such employees are prohibited from copying, revealing or using
such Confidential Information except to the extent required to carry out the,
parties' obligations under this Agreement, and to require that Confidential
Information be kept in a secure location. Each party will promptly notify the
other if it believes that Confidential Information has lost its status as such.
(c) The foregoing shall not prohibit or limit a party's use of
information, including but not limited to ideas, concepts, know how, techniques
and methodologies, which: (i) is or become publicly available through no act or
failure to act of the receiving party; (ii) is released by the disclosing party
to any other person, firm or entity without restriction; (iii) rightfully
obtained by the receiving party without restriction; (iv) is released by the
receiving party into the public domain in response to lawful legal process and
with prior notice to the other party; (v) is rightfully already known to or is
independently developed by the receiving party prior to disclosure; or (vi) is
or becomes part of the public domain through no breach of the confidentiality
provisions of this Agreement.
(d) Neither party will be liable to the other for any
inadvertent or accidental disclosure of Confidential Information if the
disclosure occurs notwithstanding the party's exercise of (i) the precautions
set forth in this Section; and (ii) the same level of care that each party
customarily uses in preserving and safeguarding its Confidential Information,
but always at least a reasonable degree of care.
(e) Notwithstanding the foregoing, each party hereto
understands that they may become familiar with each other's services and that
KPMG may become familiar with SAP's R/3 Products, specifically its proprietary
software. Accordingly, KPMG agrees, with respect to the R/3 Products (including
all program concepts therein) SAP's training materials, literature and other SAP
related materials, that as the case may be, KPMG shall not copy, translate,
disassemble or decompile, nor create or attempt to create by reverse engineering
or otherwise the source code from the object code, or to use such items to
create derivative works, unless so authorized in advance, in writing, by SAP.
All updates, replacements, revisions, enhancements, additions, or conversions to
such SAP items specified above shall be subject to the provisions as stated
herein.
11. General Provisions.
(a) Non-solicitation. During the term of this Agreement and
for one (1) year after its termination, SAP and KPMG agree that neither shall
directly or indirectly solicit for employment any staff of the other party who
have been directly and substantively involved in performance under this
Agreement.
(b) Non-exclusivity. Nothing in this Agreement shall limit or
restrict either party from entering into or continuing any agreement or other
arrangement with any other party, whether similar to this Agreement in nature or
scope. Moreover, each party shall
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remain free to provide products and services to any client or prospective client
so long as the terms of this Agreement are not violated.
(c) Notices. All notices required to be given under this
Agreement shall be sent by certified mail to:
KPMG Peat Marwick
101 Lindanwood Drive, Suite 400
Malvern, PA 19355
215-889-7882
Attention: Charles F. Burns III
Partner
and to
SAP America, Inc.
International Court One
100 Stevens Drive, Suite 350
Lester, PA 19113
Attention: Mr. James J. Soenksen, Director, Alliance
Program
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without reference to its choice of law rules. To the extent that the parties are
permitted under this Agreement to seek judicial remedies, each party hereby
consents to the jurisdiction of the federal and state courts within the
Commonwealth of Pennsylvania to resolve any and all such matters.
(e) Merger. This Agreement and any Appendices hereto
constitute the entire agreement between the parties with respect to the matters
set forth herein. All prior agreements, oral or otherwise, between the parties
and relating to the subject matter contained herein, are hereby superseded,
provided, however, that in the event KPMG executed an Alliance Agreement and
related License and Maintenance Agreement for SAP's R/2 Software Systems, such
agreement shall continue pursuant to its terms.
(f) Amendments. This Agreement may not be modified except by a
writing signed by both parties.
(g) Severability. If any of the provisions of this Agreement
are held invalid, such provisions shall be deemed severed and the remaining
provisions shall remain in full force and effect.
(h) Non-assignment. This Agreement may not be assigned or
transferred, nor may rights or obligations be delegated, without the prior
written agreement of the parties;
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notwithstanding the foregoing, this Agreement shall be binding upon and inure
to the benefit of the parties of this Agreement, as well as their respective
permitted successors and assigns.
(i) Waiver. Failure of any party to enforce, in any one or
more instances, any of the terms or conditions of this Agreement shall not be
construed as a waiver of the future performance of any such terms or conditions.
(j) Limitation of Liability. In no event shall:
(i) EITHER PARTY BE LIABLE TO THE OTHER OR THIRD PARTIES
FOR ANY LOSS OF BUSINESS OR LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN APPRISED
OF THE POSSIBILITY THEREOF, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS
RESULTING FROM ANY UNAUTHORIZED MODIFICATION OR DISTRIBUTION OF SAP SOFTWARE; or
(ii) the liability of either party to the other under this
Agreement, for any reason whatsoever, whether in contract, tort or statute
(including, without limitation, negligence), or otherwise, exceed $1,000,000.00;
provided, however, that this limitation of liability clause shall not be
construed to limit any amounts payable to SAP under Section 3. of this
Agreement. Further, the foregoing limitation shall not apply to claims for
personal injury caused by a party's negligence or willful misconduct.
(k) No Endorsement. Execution of this Agreement does
not, and shall not be construed to be, an endorsement by either party of the
products or services of the other party.
(l) Press Releases and Publicity. Any news release, public
announcement, advertisement, or publicity proposed to be released by either
party concerning the R/3 Partner Program or any matters arising under this
Agreement shall be subject to the approval of the designated representatives of
both parties.
(m) Dispute Resolution Procedures.
(i) Any dispute, disagreement, claim or controversy
between the parties arising under or relating to this Agreement or the parties'
performance thereunder (the "Disputed Matter") which cannot be resolved by
consultations between the senior executives of KPMG and SAP shall be resolved by
binding arbitration, according to the then prevailing Commercial Arbitration
Rules of the American Arbitration Association, before a panel of three
arbitrators. Each party will select one arbitrator, and the third arbitrator
will be selected by the party-selected arbitrators. Any such arbitration shall
be held in the City of Philadelphia, Pennsylvania. The parties will share the
cost of the arbitration equally, subject to any final apportionment by the
arbitrators. The arbitrators will apply Pennsylvania law, without reference to
its choice of law rules, in resolving the Disputed Matter. The decision of the
arbitrators will be final and conclusive on the parties, and each party
consents that judgment
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upon an award rendered by the arbitrators may be entered in any court of
competent jurisdiction.
(ii) Neither party shall institute any action or
proceeding against the other in any court concerning any Disputed Matter that is
or could be the subject of a claim or proceeding under this Section; provided,
however, that if a party believes in good faith that a temporary or preliminary
injunction is necessary to preserve the status quo or otherwise to avoid
irreparable harm to such party, such as in the event of a breach of Section 9.
or Section 10., such party shall not be precluded by this Section from seeking
such injunctive relief from a court of competent jurisdiction.
(iii) Pending the resolution of a Disputed Matter, to the
extent feasible, both parties shall continue their performance under this
Agreement.
IN WITNESS WHEREOF and intending to be legally bound, the
parties have caused this Agreement to be signed by their authorized
representatives as of the date shown above.
KPMG PEAT MARWICK SAP AMERICA, INC.
By: /s/ CHARLES F. BURNS III By: /s/ KLAUS P. BESIER
------------------------ ---------------------------
Printed Printed
Name: Charles F. Burns III Name: Klaus P. Besier
---------------------- -------------------------
Title: Partner Title: President
---------------------- ------------------------
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APPENDIX A TO
R/3 NATIONAL PARTNER AGREEMENT
SAP AMERICA, INC. - KPMG PEAT MARWICK
R/3 SOFTWARE TRAINING AND DEMONSTRATION LICENSE ("License")
THIS APPENDIX A is effective this 20th day of September, 1993.
WHEREAS, SAP America, Inc., a Delaware corporation with offices at
International Court Three, 300 Stevens Drive, Lester, Pennsylvania 19113 ("SAP")
owns rights in the United States to certain software for operation and
management of businesses;
WHEREAS, KPMG Peat Marwick ("KPMG") a partnership with offices at
Valleybrooke III, Suite 400, 101 Lindanwood Drive, Malvern, PA 19355 desires to
use such software solely for training and demonstration purposes under the terms
of the SAP - KPMG R/3 National Partner Agreement (the "National Agreement") to
which this License is an Appendix; and
WHEREAS, SAP desires to grant to KPMG, and KPMG desires to license from
SAP, such software upon the terms and conditions hereinafter set forth;
IT IS THEREFORE AGREED AS FOLLOWS:
1. DEFINITIONS.
1.1 Software. Software shall include one (1) 32-Active User
package of the software components identified in Paragraph 1(b) of the
National Agreement to which this License is a part and specifically set forth in
Exhibits hereto or as otherwise mutually agreed upon in writing between SAP and
KPMG, improved or otherwise modified, all releases, versions and correction
levels of such Software, in machine readable and/or printed form, furnished to
KPMG by or on behalf of SAP under the National Agreement, and any full or
partial copies of any of the foregoing.
1.2 Documentation. Documentation shall include all materials,
whether in human readable or machine readable format, and any copies of the
foregoing, in any medium, related to the Software and delivered to KPMG under
the National Agreement, including but not limited to SAP's manuals, program
listings, flow charts, logic diagrams, input and output forms, data models,
specifications, and instructions.
1.3 Territory. Territory shall mean the United States of
America.
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1.4 Designated Unit. Designated Unit shall mean the Central
Processing Unit ("CPU") in which the Software and database are installed and
identified by manufacturer name, model name or number and the system serial
number in Exhibits attached hereto and which have been declared by SAP in
writing to be compatible with the Software. The Designated Unit may have
multiple application servers directly networked to such Designated Unit and
terminals, and personal computers directly networked to the application servers.
1.5 Designated Site(s). Designated Site(s) means the
location(s) controlled by KPMG and listed in Exhibits to this License.
1.6 R/3 Confidential Information. R/3 Confidential Information
means all of the Software, Documentation, Program Concepts, and any other
information proprietary to SAP and identified as confidential, except any part
which, (a) is or becomes publicly available through no act or failure of KPMG,
(b) was or is rightfully acquired by KPMG from a source other than SAP, before
being received from SAP, (c) becomes independently available to KPMG as a matter
of right from a third party, or (d) is required by law or legal process to be
disclosed, with prior notice to SAP.
1.7 On-line Software Services (OSS). OSS is a service of SAP
AG which allows KPMG to obtain up-to-date information, on-line, concerning all
known problems relating to the standard release of the Software in effect which
have been reported and solved by SAP AG.
1.8 Program Concepts. Program Concepts are the techniques and
ideas embodied and expressed in the Software, including the structure, sequence,
and organization of the Software.
1.9 Modification. A Modification is a change in the Software
in which there is a change in the source code.
1.10 Extension. An Extension is an addition to the Software
which does not require a Modification of the Software.
2. LICENSE GRANT.
2.1 Scope of License. Subject to the terms and conditions and
the accuracy of KPMG's representations hereinafter set forth, SAP grants to
KPMG a non-exclusive, non-transferable license to use the Software specified in
Exhibits hereto or portions thereof within the Territory solely for
demonstration and training purposes as contemplated by the terms of the National
Agreement. KPMG is granted the right to make one (1) copy of the Software for
back-up purposes, provided KPMG clearly identifies the
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storage medium containing such back-up Software as confidential, proprietary,
and trade-secret material of SAP.
2.2 Restrictions on Use. KPMG agrees to use the Software and
Documentation solely for demonstration and for training KPMG personnel in
furtherance of the purposes of the National Agreement. KPMG will not use the
Software or Documentation in connection with running its own business or the
business of any firm, person or organization. Subject to the provisions of this
Section 2.2, KPMG shall use the Software exclusively on the Designated Unit.
During normal business hours and any time during which KPMG is using the
Software, SAP or its authorized representative, upon reasonable advance notice,
may audit and inspect the Software then in use for the purpose of determining
that the provisions of this License are being complied with by KPMG.
2.3 Source Code. In the event source code is provided to KPMG
hereunder, SAP, in its sole discretion, reserves the right to delete, or to
require the deletion of, such source code and all copies thereof from KPMG's
Designated Unit when a future Release, Version, or Correction Level to the
Software provides for like functionality in an object code format. Such exchange
would be at no charge to KPMG.
3. DELIVERY.
3.1 Delivered Copy. One (1) copy of the Software shall be
delivered in machine readable format, together with one (1) copy of the
Documentation, a part of which may be on machine-readable media.
3.2 Installation. KPMG is responsible for the installation and
implementation of the Software licensed hereunder. At KPMG's request and at
terms to be agreed upon by the parties, SAP will install the Software.
Installation by SAP includes placement of the Software in the Designated Unit(s)
central system database. It is KPMG's responsibility to configure and install
required disk storage systems and network software prior to installation by SAP.
4. PRICE AND PAYMENT.
4.1 License Fee. For each 32-Active User License granted
hereunder KPMG shall pay to SAP an annual, non-refundable fee of $15,000.00 and
execute a separate Training and Demonstration License. The license fee shall be
due as set forth in the related Exhibit under which it is being paid. The annual
renewal fee shall be invoiced annually in advance. In the event the License
starts during a calendar year, the license fee shall be prorated until the
beginning of the next calendar year. The annual fee for each copy shall include
maintenance provided by SAP as described in Section 7. below.
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4.2 Third-Party Database. KPMG shall license a third party
database either through SAP or directly from such third party. License fees for
any third party database whether licensed through SAP or directly from the third
party shall be in addition to the license fee set forth herein for the Software.
4.3 Additional Fees. Fees and charges set forth in this
License, in any Exhibits to this License, and in SAP's current List of Prices do
not include federal, state or local sales, use, excise or other taxes now or
hereafter levied. Any taxes or amounts in lieu thereof paid or payable by SAP in
respect of any such taxes on such fees or charges (excepting only taxes on net
income) shall be added to KPMG's obligations as an additional fee which shall be
due within thirty (30) days after SAP's invoice to KPMG.
5. TERM AND TERMINATION.
5.1 Term of License. This License shall become effective upon
execution of the National Agreement and this Appendix and any related Exhibits
by SAP and KPMG and shall continue unless terminated in writing by SAP.
Notwithstanding such provision for renewal, SAP may terminate this License
without notice upon the earlier of: the termination of the National Agreement,
the material breach of any provision of this License by KPMG, and upon any
attempt by KPMG to assign, delegate, sublicense or otherwise transfer this
License.
5.2 Third-Party Database. This License shall terminate
automatically and without notice to KPMG if, for any reason, KPMG fails to
obtain a license for the third-party database contained in the Software either
from SAP or directly from that third-party, or if, for any reason, such
third-party database license terminates prior to the termination of this
License, or if, for any reason, KPMG materially breaches the terms of such
third-party license whether obtained from SAP or directly from the third-party.
5.3 Effect of Termination. Upon termination of this License:
(i) KPMG's obligations under Sections 6., 9., 10., 11.,
and 12. shall survive the termination;
(ii) KPMG's rights under Section 2. (License Grant) shall
immediately cease; and
(iii) KPMG shall perform its obligations under Section
6.5.
Each party's right to terminate as expressed in this License
shall be in addition to any other rights provided by law.
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5.4 No Refunds. In the event of any termination, KPMG shall
not be entitled to any refund of payments made by KPMG.
6. PROPRIETARY RIGHTS
6.1 Title to Rights. KPMG acknowledges that title to all
intellectual property rights, including patent, trademark, copyright, and trade
secret rights, in (and title to all copies of and all media bearing) the
Software, Documentation, Program Concepts, and other R/3 Confidential
Information are and shall remain in SAP AG, Walldorf, Germany, under primary
license to SAP and that by virtue of this License KPMG acquires only the right
to use the R/3 Confidential Information as defined in Section 1.6 above under
the terms and conditions of this License for so long as it is in effect and does
not acquire any rights of ownership or title in the R/3 Confidential
Information. KPMG further acknowledges that any publication or disclosure to
third parties of the R/3 Confidential Information may cause immediate and
irreparable harm to SAP AG and to SAP. KPMG will take all reasonable steps and
the same protective precautions to maintain the confidentiality of the R/3
Confidential Information as it takes with its own proprietary and confidential
information.
6.2 Protection of Rights. KPMG's rights to the Software are
expressly limited to the right to use or copy the Software in accordance with
the terms of this License. In order to protect SAP's rights to the Software
under this License, KPMG agrees as follows:
(i) KPMG shall not, without SAP's prior written consent,
disclose, provide or make available any of the R/3 Confidential Information in
any form to any person, except to those KPMG personnel whose access is necessary
to enable KPMG to exercise its rights and obligations under the National
Agreement and this License. KPMG expressly agrees that prior to providing access
to any R/3 Confidential Information to any person it will obtain from that
person written acknowledgment that such person has read this License and agrees
to be bound by its terms.
(ii) KPMG agrees to keep confidential and protect from
unauthorized disclosure by its employees, agents or any person with access to
the Software, (a) the contents of the R/3 Confidential Information, including
the Software and Documentation, and (b) any information obtained from SAP or its
personnel concerning the Software, Documentation, SAP's operations, SAP's
existing or future computer programs or data analysis or its record keeping
procedures.
6.3 Trademarks. KPMG acknowledges the high value of all SAP
trademarks and service marks, wherever used or registered. All advertising and
promotional materials of KPMG which uses any SAP trademark shall bear such
trademark
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and service mark notices and legends, in the same form and location as any
notices and legends appearing on the marks as used by SAP. KPMG shall acquire no
rights to the marks of SAP or SAP AG, except as expressly granted in the
National Agreement. KPMG shall give SAP all necessary assistance in obtaining
all registrations of SAP trademarks and service marks in the Territory at no
out-of-pocket cost to KPMG.
6.4 Copyright and Copying.
(i) KPMG 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 supplied hereunder or use it to create a
derivative work, unless authorized in writing in advance by SAP. This same
provision applies to any source code which may be provided to KPMG by SAP.
(ii) KPMG shall not permit any person or organization to
copy any of the Software, Documentation or Program Concepts except that
Documentation may be copied by KPMG for its internal purposes.
(iii) KPMG shall not remove any proprietary, copyright or
trade secret legend from any Software or Documentation or any copy thereof.
(iv) The inclusion of a copyright notice on any of the
Software or Documentation shall not cause or be construed to cause it to be a
published work.
6.5 KPMG's Duties Upon Termination. Upon termination, KPMG
shall delete the Software from all Designated Units. Within five (5) days after
any termination, KPMG shall immediately deliver to SAP at KPMG's sole cost and
expense (adequately packaged and insured for safe delivery) or destroy all
copies of the Software, Documentation, R/3 Confidential Information and related
materials [or destroy all copies of the Software, Documentation, R/3
Confidential Information] and portions thereof, in every form, including binary
or other, resulting files and all copies of records and back-up copies. Upon
termination, KPMG shall erase all licensed programs from any storage media
before discarding the storage media. Within fourteen (14) days after the
termination of this License, KPMG shall certify in writing to SAP that, to the
best of KPMG's knowledge, all copies of the Software, Documentation, and R/3
Confidential Information have been returned or destroyed, and that no duplicate
copies of the Software, Documentation, or R/3 Confidential Information or any
portion thereof exist at KPMG's sites or with KPMG's employees, contractors, or
consultants.
6.6 Modifications and Extensions. KPMG may not modify or write
extensions to the Software without the prior written authorization of SAP.
Modifications or extensions shall addressed in a separate written agreement
mutually agreed to by SAP and KPMG.
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6.7 Other Duties. KPMG shall be exclusively responsible for
the supervision, management and control of its use of the Software.
7. MAINTENANCE.
SAP will provide maintenance service with respect to the Software by:
(a) delivering promptly each new release, version, and
correction level of the Software, together with one set of the related
documentation, after the publication of such release or version. KPMG will
return to SAP such prior releases, versions and correction levels as SAP and
KPMG agree are no longer useful for demonstration or training; and,
(b) providing maintenance support via telephone, and the
correction of defects, remote support/update and OSS. In order to receive remote
support/update KPMG must make required connections and development to the
Designated Unit(s) as requested by SAP.
8. WARRANTY.
8.1 Software. SAP warrants that the Software, when delivered,
will be in good working order and will perform in substantial compliance with
the specifications contained in that portion of the Documentation pertaining to
the Software, when used, without material alteration, on the Designated Unit, in
accordance with the instructions set forth in the Documentation. SAP's warranty
is predicated upon KPMG providing SAP necessary remote access to the Software.
8.2 Software Components. Should any component of the Software
fail to conform substantially to the Software specifications during the warranty
period, SAP's sole obligation shall be to correct the defect by bringing the
performance of the Software into substantial compliance with the specifications
or replace the component after receiving notice from KPMG of the failure.
8.3 Third-Party Database. SAP makes no representations or
warranties as to the terms of any license or the operation of any third-party
database software obtained directly from a third-party software supplier by
KPMG.
8.4 Disclaimer. SAP DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
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9. LIMITATION OF LIABILITY.
9.1 KPMG's Remedies.
(i) Subject to the limitations set forth in Section 8.
regarding SAP's breach of warranty, KPMG's sole and exclusive remedies for any
damages or loss in any way connected with any software (including the Software)
or services furnished by SAP whether by SAP's negligence, or any breach of any
other duty, shall be the replacement of the Software.
(ii) The foregoing limitation of liability does not apply
to infringement of the property rights referred to in Section 10. below, or to
personal injury or death caused solely by the gross negligence or willful
misconduct of SAP. With respect to damage to tangible property, SAP will not be
responsible in any amount in excess of the amount which such damage is paid by
SAP's liability insurance.
9.2 No Consequential Damages. ANYTHING TO THE CONTRARY HEREIN
NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL SAP BE LIABLE TO KPMG OR ANY OTHER
PERSON OR ENTITY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES,
LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, THIRD PARTY
CLAIMS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR
LOSS, AND EXEMPLARY OR PUNITIVE DAMAGES.
9.3 Severability of Disclaimer Provisions. IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS LICENSE WHICH
PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF
DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER
PROVISION AND TO BE ENFORCED AS SUCH.
10. INDEMNIFICATION.
10.1 SAP. SAP shall indemnify KPMG against all claims,
liabilities, and costs, including reasonable attorneys' fees, of defending any
claim or suit arising from alleged infringement by any of the Software of any
United States patent or copyright, or the trademark, trade secret or unfair
competition rights of a third party, to the extent such infringement was known
to SAP at the time of such infringement and provided that KPMG promptly notifies
SAP in writing of the claim or suit or any claim of infringement and that SAP is
permitted to control fully the defense and any settlement of the claim or suit.
KPMG shall cooperate fully in the defense of the claim or suit, and may
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appear, at its own expense, through counsel of its choice. SAP may settle any
such claim or suit at its sole discretion and without recourse by KPMG.
10.2 KPMG. KPMG shall indemnify SAP against all claims,
liabilities, and costs, including reasonable attorneys' fees, of defending any
claim or suit, other than for SAP's infringement of intellectual property
rights, arising out of the use of any copy of the Software provided under this
License, provided that SAP promptly notifies KPMG in writing of such claim or
suit and KPMG is permitted to control fully the defense and any settlement of
the claim or suit.
10.3 Limitations on Liability. THE PROVISIONS OF THIS SECTION
10. STATE THE SOLE EXCLUSIVE AND ENTIRE LIABILITY OF SAP FOR PATENT, TRADEMARK,
COPYRIGHT AND TRADE SECRET INFRINGEMENT OR THE LIKE, OR ANY WARRANTIES REGARDING
THE SAME, EXPRESS OR IMPLIED.
11. NON-ASSIGNMENT.
11.1 KPMG may not assign, delegate, sublicense, pledge, or
otherwise transfer this License, or any of its rights or obligations under this
License, to any party except to KPMG's successors in interest to which this
license may be transferred with SAP's prior written consent.
11.2 SAP may assign this License to SAP AG or to an entity
designated by SAP AG. Such assignment may include all rights to the R/3
Confidential Information and to provide services under this License.
12. EXPORT LICENSES.
Regardless of any disclosure made by KPMG to SAP of an ultimate
destination of the Software, KPMG will not re-export or transfer, whether
directly or indirectly, the Software, the Documentation, or any other R/3
Confidential Information including the Program Concepts, or any system
containing the Software, the Documentation, or any other R/3 Confidential
Information, to anyone outside the United States of America or to anyone in such
manner that constitutes an exportation under United States law without first
obtaining a license from the U.S. Department of Commerce or any other agency or
department of the United States government and meeting any other requirement of
the United States government, and also without first obtaining the prior written
approval of SAP. KPMG shall be responsible for complying with all applicable
governmental regulations of the United States or any foreign countries with
respect to the use of the Software by its Affiliates outside of the United
States, including, but not limited to import and export restrictions, obtaining
any necessary consents and licenses and
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registering or filing any documents. KPMG shall be solely responsible for all
costs associated with such compliance. KPMG shall defend, indemnify and hold SAP
harmless from and against any and all claims, judgments, costs, awards, expenses
(including reasonable attorneys' fees) and liability of any kind arising out of
the non-compliance with applicable governmental regulations, statute, decree or
other obligation with respect to the use or transfer of the Software outside the
United States by KPMG and its Affiliates.
IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto agree to the foregoing agreement as of the date first above written.
KPMG PEAT MARWICK
By: /s/ CHARLES F. BURNS III
-------------------------------------
Title: Partner
----------------------------------
Date: September 20, 1993
-----------------------------------
SAP AMERICA, INC.
By: /s/ KLAUS P. BESIER
-------------------------------------
Title: President
----------------------------------
Date: September 20, 1993
-----------------------------------
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AMENDMENT
EFFECTIVE JANUARY 1, 1999
TO
R/3 NATIONAL PARTNER AGREEMENT
("AGREEMENT")
BETWEEN
SAP AMERICA, INC. ("SAP")
AND
KPMG PEAT MARWICK ("PARTNER")
EFFECTIVE SEPTEMBER 20, 1993
As of the issuance date of January 1, 1999, this Amendment modifies the above
referenced Agreement between the parties. In each instance in which the
provisions of this Amendment contradict or are inconsistent with the provisions
of the Agreement, the provisions of this Amendment shall prevail and govern and
the contradicted or inconsistent provisions shall be deemed amended accordingly.
SAP and Partner agree that the Agreement effective September 20, 1993 is
modified as follows:
1. Delete section 7(a) in its entirety, and insert in lieu thereof:
"(a) This Agreement shall have a term expiring on December 31, 1999, with
an automatic renewal for one (1) year periods unless, at least six (6)
weeks prior to a scheduled renewal date, either party gives written notice
of its intentions not to renew this Agreement."
EXCEPT AS HEREIN PROVIDED, NONE OF THE PROVISIONS OF THE AGREEMENT SHALL BE
AFFECTED BY THIS AMENDMENT.
ACCEPTED BY: ACCEPTED BY:
SAP America, Inc. KPMG Peat Marwick
SAP Partner
BY: BY: /s/ Charles F. Burns III
-------------------------- --------------------------
NAME: NAME: Charles F. Burns III
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TITLE: TITLE: Partner 12/28/98
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