SAP SE, registered with the commercial register of the local court of Mannheim, Germany, under HRB 719915 ("SAP") created and maintains the SAP Partner Portal website and other websites added to SAP Partner Portal from time to time (together "SAP Partner Portal") where partners may obtain information about partner programs, products, services and other topics found on SAP Partner Portal.
2. ACCEPTANCE OF TERMS
3. ACCESS AND USE OF SAP PARTNER PORTAL
Company is permitted to use the content and offerings posted on SAP Partner Portal solely for informational, noncommercial purposes.
4. NON EXCLUSIVITY; FREEDOM OF ACTION
1. Company's and SAP's (both together a "Party") obligations under this TOU are non-exclusive. SAP is not precluded from marketing, licensing, positioning, providing and distributing SAP Products through other partners. Nothing in this TOU prohibits or restricts either Party's right to develop, make, use, market, license, provide and distribute products or services similar to or competitive with those disclosed in the Confidential Information as long as it does not thereby breach this TOU.
2. SAP is not required to disclose any particular information to Company. Any disclosure is entirely voluntary and is not intended to be construed as: (a) creating a commitment as to any SAP product, including the development or functionality of any SAP Product; (b) soliciting any business or incurring any obligation not specified herein; or (c) prohibiting either Party from associating itself with competitors of the other Party for purposes substantially similar to those involved herein.
1. "Confidential Information" means all information which SAP, its subsidiaries or both ("SAP Group") protect against unrestricted disclosure to others, that (i) any member of the SAP Group identifies as confidential and/or proprietary at the time of disclosure and/or (ii) should reasonably be understood to be confidential given the nature of the information, the circumstances surrounding its disclosure or both, including but not limited to information that is related to:
a) SAP Group's software, cloud services, maintenance service, other services, the program guides and in each case other related documentation (“SAP Products”) including, without limitation, the following information:
i. computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in any SAP Product;
ii. benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats relating to any SAP Product, and
iii. discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to any SAP Product;
b) the research and development or investigations of SAP Group;
c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. the business plans or operations of SAP Group;
d) the business of any customer or partner of SAP Group;
e) SAP Group's properties, employees, finances, operations; and
g) any information about or concerning any third party (which information was provided to SAP Group subject to an applicable confidentiality obligation to the third party).
2. Confidential Information must not be used or reproduced in any form except as authorized at the time of disclosure. Any reproduction of any Confidential Information remains the property of SAP Group and must contain any and all confidential or proprietary notices or legends which appear on the original.
3. Company must (a) take all Reasonable Steps (as defined below) to keep all Confidential Information strictly confidential; (b) not disclose any Confidential Information to any person other than its Representatives; and (c) not use Confidential Information for any purpose other than solely as authorized at the time of disclosure.
"Reasonable Steps" means those steps Company takes to protect its own similar proprietary and confidential information, which must not be less than a reasonable standard of care.
"Representatives" means (a) employees, consultants and (sub)-contractors of Company; and (b) attorneys, accountants or other professional business advisors of Company, in both cases who need to know the Confidential Information and are put under obligations of confidentiality substantially similar to those set forth herein.
4. Company will be responsible for any breach of the terms of this TOU by it or its Representatives.
5. Confidential Information of SAP Group disclosed prior to execution of this TOU is subject to the protections afforded hereunder.
6. The above restrictions on the use and disclosure of the Confidential Information do not apply to any Confidential Information that (a) is independently developed by Company without reference to or use of the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this TOU by Company; (c) at the time of disclosure was known to Company free of restriction; or (d) any member of the SAP Group agrees in writing is free of such restrictions.
7. Company must not disclose the terms and conditions of this TOU to any third party. Neither Party will use the name of the other Party in publicity, advertising, or similar activity, without the prior written consent of the other, except that any member of the SAP Group may use Company's name in customer and partner listings or, at times mutually agreeable to the Parties, as part of the marketing efforts of any member of the SAP Group (including without limitation reference calls and stories, press testimonials, site visits, SAPPHIRE participation). The SAP Group will make reasonable efforts to avoid having the reference activities unreasonably interfere with Company's business.
8. In the event that Company or any of its Representatives are requested pursuant to, or required by, applicable law, regulation, court order, regulatory agency or other legal process to disclose any Confidential Information or any other information concerning the SAP Group, this TOU, or the Parties' performance hereunder, Company must provide SAP with prompt notice of such request or requirement in order to enable SAP Group (i) to seek an appropriate protective order or other remedy; (ii) to consult with Company with respect to the SAP Group taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of this TOU. In the event that such protective order or other remedy is not obtained in a timely manner, or SAP waives compliance, in whole or in part, with the terms of this TOU, Company or its Representative will use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.
9. Company will not be in violation of this TOU due to the use of any Residuals (defined below) resulting from authorized access to or work with Confidential Information of the SAP Group.
"Residuals" means information in non-tangible form which may be incidentally retained in the unaided memory of Representatives of Company who have had access to the Confidential Information, so long as such persons have not studied the information for the purpose of replicating the same from memory; provided, however, that in no event will Residuals include any information that a reasonable person would know was Confidential Information of the SAP Group. Nothing in this Article 5 (Confidentiality) no. 8 will be deemed to grant any right, title or interest in or to (i) the Confidential Information (except solely for the purpose as authorized at the time of disclosure) and/or (ii) any intellectual property right of any member of the SAP Group. Neither Party will have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of Residuals.
6. EXCLUSION OF WARRANTY
1. The SAP Partner Portal website and the content and offerings posted thereon are being provided as is. Statements and explanations to SAP Partner Portal, in the content, offering, promotional materials and the documentation posted on SAP Partner Portal are made for explanatory purposes only.
2. SAP does not give any warranty, guarantee, representation or undertaking as to the uninterrupted availability of SAP Partner Portal.
3. No warranty, condition, guarantee, representation or undertaking of any kind is made by, given by or to be implied against SAP as to (i) any features or qualities, (ii) the sufficiency, accuracy or fitness for purpose and (iii) the absence of any infringement of any proprietary right (including, without limitation, intellectual property rights, trade secret rights and rights over confidential information) of third parties in all cases of the content and offerings posted on the SAP Partner Portal website. Company will bear the entire risk of any consequences that may arise from the use to which it puts the content and offerings posted on the SAP Partner Portal website.
4. SAP does not represent or endorse the accuracy or reliability of any (i) links to web-pages of third parties contained on the SAP Partner Portal website, or the content and offerings obtainable thereon or (ii) information provided by third parties on SAP Partner Portal. SAP only reviews whether the content of such web-page at the time it was linked and information provided by third parties on the SAP Partner Portal website evidently contain illegal content or infringements against intellectual property rights. SAP will not permanently control and/or review the linked web-pages and the information provided by third parties but upon sufficiently proven indication will remove the respective link and/or information.
7. RESPONSIBILITY FOR LINKS AND CONTENT
SAP Group is only responsible and liable for the Content posted on the SAP Partner Portal website to the extent required by the German Telemedia Act (Telemediengesetz, TMG). SAP Partner Portal may contain links to external websites and information provided on such external websites. SAP Group will not be responsible for the contents of any linked website or any changes or updates to such websites. SAP Group will also not be directly or indirectly responsible and liable for any damage or loss caused or alleged to be cause by or in connection with the use of or reliance on any content, goods or services available on or through any such linked external website. Any article, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message or other posting to any forum, wiki or blog on SAP Partner Portal ("Content"), whether publicly poster or privately transmitted, is the sole responsibility of the person or entity providing the Content.
8. LIMITATION OF LIABILITY
1. SAP's liability in contract, tort, and otherwise for loss including but not limited to wasted anticipatory expenditure, is excluded except for:
a) cases of willful misconduct, in which case SAP's liability extends to the full loss; and
b) cases of gross negligence, in which case SAP's liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care.
2. Any claim arising under or in connection with this TOU will be barred after one year whereby the period begins at the point in time specified in section 199 no. 1 of the German Civil Code (BGB); otherwise five years after the claim arises. This will not apply in cases of damages resulting from fraud or willful misconduct and death or personal injury arising from either Party's gross negligence or willful misconduct.
3. Any limitations to the liability and obligations of SAP according to this Article 8 (Limitation of Liability) will also apply for the benefit of any member of the SAP Group.
9. CHANGES TO TERMS
1. SAP reserves the right to (i) change or delete any or all content and offerings of the SAP Partner Portal website, (ii) individualize the content and offerings for Company in both cases at any time without prior written notice and (iii) close down the SAP Partner Portal website (partly or totally) or to provide an alternative partner website with one month's prior written notice.
2. SAP reserves the right to change this TOU (in particular by replacing parts of it with an updated version) as may be reasonably required and consistent with SAP's practices.
3. SAP will give Company at least:
a) if Company is located in EMEA or APJ, three months; and
b) if Company is located in North America or Latin America, sixty days, prior notice in writing or in any other documented form of changes to any or all parts of this TOU as set out in this Article 9 (Changes to Terms) no. 2. Unless otherwise stated in the notice, the notice will become effective:
a) if Company is located in EMEA or APJ, after three months; and
b) if Company is located in North America or Latin America, after sixty days ("Change Period").
If the justified interests of Company are negatively affected by any of the above changes, Company is entitled to terminate this TOU with effect to the expiration of the applicable Change Period. If Company does not terminate within the applicable Change Period, the changes are deemed to be accepted by Company.
4. Any change that SAP reasonably believes to be beneficial to Company may, at SAP's discretion, become effective upon notice by SAP. Should Company believe a change not to be beneficial, Company must notify SAP in writing within five days of receipt of such notice that Company does not agree with SAP's assumption and state the reasons why the change would not be beneficial to Company. In such case, this Article 9 (Changes to Terms) no. applies.
10. EXPORT REGULATIONS
Company must not grant access to and must ensure that none of its Representative grants access to SAP Partner Portal and the Confidential Information to any person if such person is subject to embargos, trade sanctions or other restrictive measures of any applicable export law, including, without limitation, if such Representative is listed on any sanctioned party list of the US, the EU and/or any of its member states.
11. REFUSAL OF ACCESS
1. SAP may, in its sole discretion, at any time refuse Company any current or future use of or access to SAP Partner Portal, any areas of SAP Partner Portal or any content and offerings posted thereon, especially if:
a) Company does not comply with any provision of this TOU;
b) Company or SAP or both terminate this TOU;
c) Company cannot be relied upon to observe SAP Group's rights in any or all SAP Products;
d) Company holds itself out to be a partner of SAP without having the right to do so under a valid SAP partner agreement whereby this TOU does not grant Company to right to hold itself out to be a partner of SAP;
e) Company uses any SAP logo or trademark without having the right to do so whereby this TOU does not grant Company such right;
f) access to any or all SAP Products posted on SAP Partner Portal is subject to the prior obtaining of export or import authorizations or prohibited by any applicable export laws, whereby export laws includes, without limitation, all constitutions, laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits, restrictive measures, trade sanctions, embargos and other legally binding requirements of all federal, country, international, state and local governmental authorities relating to export, re-export or import; and
g) SAP determines that the laws and policies or both of any country are or become insufficient to protect any proprietary right (including, without limitation, intellectual property rights, trade secret rights and rights over confidential information) of any member of the SAP Group.
2. If SAP refuses Company access to SAP Partner Portal,
a) Company's right to use the Confidential Information immediately ends;
b) Company must within thirty days irretrievably destroy or upon SAP's request deliver to SAP all Confidential Information and all copies, reproductions, summaries, or extracts thereof or based thereon in Company's possession, custody or control or in the possession, custody or control of any Representative of Company, except to the extent Company is legally required to keep a copy for a longer period in which case such return or destruction shall occur at the end of such period. However, (i) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered and (ii) Company shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held in archive or back-up systems in accordance with general systems archiving or backup policies; and
c) a duly authorized representative of the Company must certify in writing to SAP within thirty days of SAP's written request that Company has fulfilled its obligations under this Article 11 (Refusal of access) no. 2b).
1. Partial Invalidity. If any provision of this TOU is or becomes wholly or in part illegal, invalid or unenforceable, the illegality, invalidity or unenforceability of such provision will not affect the other provisions of this TOU, which will remain in full force and effect. The illegal, invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in cases of contractual gaps.
2. Waiver. The waiver by either Party of a breach of, non-compliance with or default in any of the provisions of this TOU by the other Party may not be construed as a waiver of any succeeding breach, non-compliance or default of the same or other provisions; nor will any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that is has or may have hereunder be operated as a waiver thereof; nor will any single or partial exercise of any right, power or privilege prevent any further or other exercise thereof or the exercise of any other right, power or privilege.
3. Priority of Agreements. In the event of any conflict or inconsistency between this TOU and
a) any SAP partner agreement that Company signs with any member of the SAP Group, the SAP partner agreement will prevail;
4. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION COMMENCED UNDER OR IN CONNECTION TO ANY PART OF THIS TOU.
5. Governing Law and Jurisdiction
a) This TOU and any claims (including any non-contractual claims) arising out of or in connection with this TOU and its subject matter are governed by the laws of Germany to the exclusion of the international law of conflicts and the United Nations Convention on Contracts for the International Sale of Goods.
b) The exclusive place of jurisdiction for all disputes arising out of or in connection with this TOU (including any dispute regarding the existence, validity or termination of this TOU) ("Dispute") is Karlsruhe, Baden Wuerttemberg, Germany. The Parties agree that the courts of Karlsruhe, Baden Wuerttemberg, Germany, are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
6. Survival. Article 5 (Confidentiality), Article 6 (Exclusion of Warranty), Article 8 (Limitation of Liability), Article 12 no. 1 (Partial Invalidity), Article 12 no. 4 (Waiver of Jury Trial), Article 12 no. 5 (Governing Law and Jurisdiction) will survive any termination of any part of this TOU.
Revised and posted as of May 20, 2021