1.1 This End User License Agreement („EULA“) is between the respective NTT DATA Business Solutions Group company (hereinafter referred to as „NTT DATA“) and the Customer (defined in Section 1.2 below) for the provisioning and use of SAP Software (hereinafter “Software”) and related Services as described in the following period:
- On-premise perpetual software license (one time license fees for unlimited period of time)
- Use of Documentation or other materials, limited or unlimited in time
The provisions of this EULA shall apply in respect only insofar as the corresponding Software have been ordered by Customer through a separate order form, software terms and conditions, license and software maintenance agreement or other contractual document with the respective contracting NTT DATA company (the “Agreement”). This EULA is hence part of this Agreement.
1.2 In all (also future) contractual relationships in which NTT DATA (i) provides Software and related services to other companies, legal entities under public law or special funds under public law (hereinafter referred to as „Customer“) and (ii) grant rights of use thereto for an unlimited or limited period of time and/or this EULA shall apply in its respective valid version at the time of the respective conclusion of the Agreement and unless otherwise expressly agreed in writing between the parties the Agreement. The EULA is in addition, to the Agreement and the respective documents relevant to the use or service, such as product or service descriptions or other applicable supplemental terms, which shall be made available to the Customer at any time upon request. The“SAP Price and Conditions List for SAP Software and Support“ („PKL“) apply.
1.3 Counter-confirmations and/or general terms and conditions of business or purchase of Customer shall not be recognised or valid unless NTT DATA has expressly agreed to their validity in writing. This EULA shall also apply if the services of NTT DATA are rendered without reservation in the knowledge of conflicting or deviating conditions of the Customer. The provisions shall apply accordingly to pre contractual relationships. In the event of a conflict between the terms of the EULA and the Agreement, the Agreement shall prevail for only the SAP Software conditions shall prevail.
1.4 The Agreement and this EULA shall become effective upon Customer’s acceptance of the contractual documents required for NTT
DATA´s provisioning of the Software and/or access to the Services.
2 General Definitions
2.1 „Agreement“ (also Contract) means the offer or the license and software maintenance agreement pertaining to this EULA concluded between the Customer and NTT DATA.
2.2 „Add-On“ means any software created by NTT DATA or a third party that communicates with, adds or enhances functionality to, and is not a Modification of, the provided Software via APls. NTT DATA Software may be an add-on to the SAP Software.
2.3 „API (SAP specific)“ means SAP application programming interface(s) provided under the Agreement and other SAP code that enables other software products to communicate with or call SAP Software (e.g. SAP Enterprise Services, BAPls, IDocs, RFCs and ABAP or other user exits).
2.4 „Affiliate“ means any corporation, partnership or legal entity under applicable corporate law that is owned or controlled, directly or indirectly, by the Customer, NTT DATA, SAP or other NTT DATA third party licensor (as the case may be through ownership of more than 50% of the voting or management rights and located in the Territory.
2.5 „Data Center Operation“ means the use of or access to the Software by or for third parties, in particular to operate or manage the business of a third party, or the provision of outsourcing services.
2.6 „Defined User (also „Authorized User“)“ means an employee of Customer, its Affiliates or a Third-Party Business Partner who is authorized to directly or indirectly access the Licensed Software.
2.7 „Designated Unit“ means each individual computer or server on which the Software and the Third-Party Database are installed.
2.8 „Documentation“ means the technical and/or functional documentation belonging to the Software and, if applicable, descriptions of roles and responsibilities, as amended from time to time, of the respective manufacturer, which is provided or made available to the Customer together with the Software. Manuals are not included in the scope of delivery.
2.9 “Export Law“ means all applicable import, export control and sanctions law, in particular without limitation the law of the United States of America (US), the European Union (EU) and Germany.
2.10 “Licensed Software” means, SAP Software that Customer has acquired through NTT DATA via an executed Agreement including.
2.11 „Maintenance“ means the Software support/maintenance provided by NTT DATA as agreed in the Agreement for the Software.
2.12 „Modification“ means developments/changes to the Software that potentially could jeopardize or prevent the release capability of the Software. For the avoidance of doubt, customizing and parameterization of the On-Premise Software do not constitute a Modification, but are generally permissible within the framework of the Agreements.
2.13 „Non-Productive Use“ means the use of the Software solely for the Customer’s internal training purposes to enable the Customer’s permanent employees to use the Software to process the Customer’s internal business transactions or for internal testing or development work in support of the Customer’s productive environment.
2.14 “On Premise Software” means Software that is licensed (either for a limited or unlimited time period) and provided for installation and Use from Client provided Designated Unit.
2.15 “Partner or NTT DATA´s licensor” means any other party whose software or services are distributed, sold, loaned, offered as a service, or otherwise made available by NTT DATA. Including, for the avoidance of doubt, SAP.
2.16 „PKL (SAP Specific)“ means the SAP price and conditions list SAP Software and Support of SAP. The applicable PKL shall be published by SAP on its homepage at www.sap.com/germany/ „About SAP“ „SAP Agreements“ „SAP On-Premise Software Customers“ „Product Use & Support Terms“ „On-Premise Software: Software Use Rights“ or shall be provided to Customer by NTT DATA at any time upon request. For outside of Germany and if applicable, the SAP local country PKL will be provided by the local registered NTT DATA company in the Customer Agreement.
2.17 “Productive Use“ means the use of the Software exclusively for the processing of Customer’s internal business transactions. Preparation for productive operation shall also constitute productive use.
2.18 „Proprietary Information“ means (i) in relation to the Software and Documentation and any full or partial copies thereof, the program concepts, the Third Party Database, any other Third Party Software provided with or as part of the Software and results of comparative tests and (ii) any information which NTT DATA, Partner or NTT DATA licensor or Customer protect against unrestricted disclosure to third parties or which, in the circumstances of disclosure or according to its content, is to be regarded as confidential (”Confidential Information”). Excluded from this is such Confidential Information that (a) is or becomes publicly known without any act or omission by the other party or (b) is or becomes lawfully acquired by the other party from a source other than the disclosing party prior to disclosure by the disclosing party or (c) lawfully and independently becomes available to the other party.
2.19 „Release“ means any edition of the Software.
2.20 „SAP Software“ means (i) the Software developed for or by SAP SE or an SAP Affiliate and provided to Customer under the Agreement, consisting of the executable machine programs and related written documents, including without limitation the Documentation, but excluding the Third-Party Database, (ii) new versions (including without limitation releases, versions, updates, patches, corrections/) of the Software and (iii) any copy or substitution thereof in whole or in part. The Software Development Tools are not part of the Software; they may only be used on the basis of a separate agreement. To the extent described in the Documentation, the Software may include the Software Development Kit Implementation Version
2.21 „Software Development Kit Implementation Version (SAP specific)“ means (i) the SAP Software Development Kit, including User interface components, included in the version in existence at the time of entering into the Agreement and delivered to Customer together with the Software, used solely for Non-Productive Use in implementing and configuring the SAP Software, (ii) any Releases, versions or correction levels, if any, of such Software Development Kit under the Agreement, (iii) any other SAP Software tools for SAP Software delivered for the purpose specified in this definition, and (iv) any complete or partial copies thereof.
2.22 „Software Development Tools“ means all development tools (software in object code and documentation as softcopy and/or hardcopy) provided by NTT DATA in connection with the Software for non-productive use in the development of extensions based on the relevant Agreements. The Software Development Tools may include the Software Development Kit development version („SDK“) or may be included in the licensed ABAP workbench. The term „Software Development Tool“ includes (i) all Releases, versions or correction levels of a Software Development Tool and (ii) all complete or partial copies thereof.
2.23 „Standard Software“ means standard software of NTT DATA, SAP and other partners or licensors.
2.24 „Supplemental Terms“ (or „Supplement“) means the product-specific supplemental terms and conditions applicable to the and referenced in an Agreement.
2.25 “Territory” means the territory in which the Software is installed, provided that the installation may only be made in one country at any one time.
2.26 “Term” means the agreed term of a Use right or Maintenance Agreement, consisting of minimum term and renewal terms.
2.27 „Third Party Database“ means any third-party proprietary database software, if any, for which NTT DATA has licensed the Customer.
2.28 „Third Party Business Partner“ means any third party that requires access to the Software, in connection with the conduct of Customer’s or its Affiliates‘ internal business, including, without limitation, Customer’s auditors, distributors, Customers, service providers and/or suppliers.
2.29 „Third Party Software“ means (i) all software products and related documentation to which Customer acquires rights of use under the Agreement, but which have been developed for or by companies other than NTT DATA or their affiliates and are not NTT DATA Software; (ii) all new versions (including, without limitation, releases, updates, patches, corrections) of such Third Party Software made available to Customer in performance of the Agreement; and (iii) all full or partial copies thereof.
2.30 „Use“ means the execution of the process functions of the Software, loading, executing, accessing, using the Software or displaying data resulting from those functions. Use may occur through an interface provided with or as part of the Software, through a customer or Third-Party interface, or through another intermediary system.
2.31 „Usage Metric“ (or „Usage Metric“) means the usage parameters for determining the agreed usage volume and calculating the relevant remuneration for a Software under the Agreement.
3 Ownership and Intellectual Property Rights
All rights to the Software, regardless of whether it is offered on a permanent, temporary or service basis, – in particular the copyright , trade secret and all other intellectual property rights with all powers to all programs, documentation, documents, program concepts (such as concepts, methods, best practices, ideas and know-how) and other protected information provided within the scope of delivery, Agreement initiation and execution including subsequent performance and/or Maintenance – are and shall remain exclusively vested in and be the sole and exclusive property of SAP). SAP and its Partners or licensors retain all rights to the Software and Proprietary Information not expressly granted to Customer under this EULA or an Agreement. All rights going beyond the rights of Use described below, in particular the right to distribute the Software, , translate, edit, arrange and make the Software available to the public, shall remain exclusively with SAP or the respective Partner or licensor. The Customer is not granted any rights to or in relation to the source code of a Software. The Customer shall only be granted the following non-exclusive rights to the Software that is the subject matter of the Agreement.
4 Granting of use rights / license
Against payment of the fee agreed in the Agreement NTT DATA grants the Customer use rights on the Software to the agreed extent as specified in the Agreement. Depending on which model the Customer chooses for the Software, the following conditions apply accordingly.
4.1 General conditions
4.1.1 Extent of Use and Users – Without prejudice to the following conditions, the Customer may only Use the Licensed Software, to the extent stipulated in the Agreement. The right of Use is limited to the contractual software or services (functions) to the extent regulated therein, even if the Customer could technically access other software or service components. The Customer must have the necessary rights of Use for all persons (Customer employees, Affiliates and Customer Third Party Business Partners) who use the Software. The Customer may permit Authorized Users to use the Software to the contractually agreed extent, which may not exceed the licensed maximum number of Defined Users or the Usage Metric and must correspond to the details in the Agreement submitted by the Customer.
The Customer shall be liable for acts and omissions of its Authorized Users, Affiliates and Third Party Business Partners as for its own acts and omissions and shall oblige them to use the provided Software and/or Documentation or other Materials in accordance with this EULA and the Agreement. It is not possible to return or exchange Usage Metrics and Defined Users if the actual usage turns out to be less than expected or if actual usage changes.
A license key is required for the Use of the SAP Software and may be required for use of other Licensed Software as well.
a) Authorization of the Customer to Use the Software or Services for the Benefit of Affiliated Companies – Customer is authorized to Use the Software and the Third Party Database, for Productive Use for its Affiliates provided that (i) the Affiliate has previously signed and delivered to NTT DATA an contract to comply with the EULA in the form set out in the Agreement and confirms this contract to NTT DATA, (ii) rights of Use have been acquired for all persons using the Software directly and/or indirectly for the Affiliate, (iii) the Software and the Third Party Database are not installed at the Affiliate’s sites. Customer shall provide NTT DATA with a list of its Affiliates in writing prior to the conclusion of the Agreement, which forms an integral part of the Agreement.
b) Authorization of Third Party Business Partners to Access the Software – Customer is authorized to allow Customer’s Third Party Business Partners to access the Software to assist Customer in conducting its internal business transactions, provided that (i) each Third Party Business Partner with access to the Software, enters into a non-disclosure agreement with NTT DATA, (ii) all Third Party Business Partner’s persons accessing the Software shall be consider an Authorized User, (iii) Third Party Business Partners access to the Software, is expressly limited to screen access only, (iv) s Third Parties Business Partners will not have access to the source code of the Software, (v) Third Party Business Partners will not use the Software, to conduct their internal business transactions or to operate or manage their own business.
4.1.2 Prohibits of use and obligations of Customer – Customer is prohibited from using the Licensed Software,: (a) copy, translate, disassemble, decompile, reverse engineer, or otherwise modify (except as required by law or permitted under the applicable terms of the EULA or Agreement) all or any portion of the Software, and the source code, Documentation, or other materials thereunder, or create derivative works thereof; provided, however, that Documentation may be copied for internal use to the extent necessary; (b) use any Software in a manner that violates any applicable law, including but not limited to the transmission of information or data that is unlawful or infringes any third party proprietary rights; (c) use the Software, to develop application or interface functionality with, or provide access to, the functionality of the Software, or any database used with the Software, , except through the use of permitted software development tools; (d) use the Software, in excess of the usage rights granted, both quantitatively and qualitatively; and (e) interfere with or circumvent the operation or security of the; and (f) sublicense, license, sell, lease or otherwise make the Software, available to any third party, except as expressly permitted under this EULA.
4.1.3 Intellectual Property Rights & Infringement of Intellectual Property Rights – The Software, including without limitation, any and all related source code, object code, materials, designs, techniques, methods, inventions, forms, formulas, and other works of authorship and any extracts or derivatives shall remain the sole and exclusive property of NTT DATA or its licensors with NTT DATA or its licensor, as appropriate, owning and retaining all rights, title and interest in and to the foregoing under copyright, trade secret, trademark, patent and other intellectual property laws. Customer shall in no event infringe the rights of NTT DATA or its licensors or other partners in the Software. Customer is responsible for monitoring proper use. If Customer recognizes, suspects or becomes aware that a breach of contract or rights is imminent, or has occurred, NTT DATA must be informed immediately. NTT DATA or its licensors or other partners and their vicarious agents shall be indemnified against all claims of third parties that are based on an illegal use of the Software by the Customer or that have been made with the Customer’s approval. In any case NTT DATA shall be entitled to assert the rights under section 13
4.2 Conditions for On-Premise (perpetual) Software
a) General – NTT DATA grants to the Customer the non-exclusive right to Use the Licensed Software (whether delivered in source or object code), either perpetual or terminable in accordance with section 14 hereof. This right applies including the Documentation, as well as other Proprietary Information and the Third-Party Database provided by NTT DATA to Customer for Productive and Non-Productive Use at the specified location(s) in the Agreement Territory. The Customer accepts this granting of rights of use and declares that Customer has read and understood the conditions of use before signing. In particular, Customer is not permitted (i) to use the Software, other Proprietary Information and the Third-Party Database other than for itself and its Affiliates without permission in Data Center Operations (see section 4.2 b), (ii) to provide training to third parties except to the extent expressly provided for in this EULA or (iv) to use the Software for the control of power plants or means of mass transportation. Customer may only use a delivered Software Development Kit Implementation Version to implement the SAP Software for itself. Use for other purposes is not permitted. The Use right always refers only to the current version of the Software. Software may be used via an interface supplied with or as part of the Software, via an interface of the Customer, a third-party supplier or via another intermediary system. The interface chosen to access the functions and data of the Software is irrelevant for the determination of the price. The decisive factor is the Use of the Software by the Customer.
The Customer may transfer the Software and the Third-Party Database from one Designated Unit to another without additional remuneration. The Customer shall notify NTT DATA in writing of such installation within five business days following the date of the transfers. The Software and Third-Party Database shall be immediately and completely deleted from the Designated Unit no longer in use and from any backup copies for that Designated Unit.
b) Storage location, use in Data Center operation – All data processing devices (e.g. hard disks and processors) onto which the Software is copied in whole or in part, temporarily or permanently, are located on the premises or in the direct possession of the Customer or one of its Affiliates.
If the Customer wishes to operate or have operated the Software for the processing of its internal business transactions on data processing equipment which is located on the premises and in the direct possession of a third company (outsourcing), this shall require a corresponding agreement. The Customer may therefore not use the Software, other Proprietary Information and the Third Party Database in the Data Center Operation without such an agreement.
c) Resale of perpetual Licensed Software to third parties – In the case of Software licensed on a perpetual basis the following shall apply:
Customer may transfer the rights granted to it in respect of perpetual Licensed Software (including Software acquired through any subsequent licenses or through Maintenance) to a third party (the new user) only uniformly and with complete and final abandonment of its own Use and only if it has notified the new user of the transfer in writing without undue delay, stating its name and address, and has paid the fees for the Software and Maintenance in full to NTT DATA. Transfer of the Licensed Software is conditioned upon (i) Customer providing the new user with the terms and conditions of Use and transfer of the Software, (ii) Customer completely and permanently discontinuing and abandoning Use of the Software, and (iii) Customer promptly deleting all copies of the Software in their entirety and from all backup copies and not retaining any copies of the Software or Proprietary Information. A temporary or partial transfer to third parties or a transfer to several third parties is not permitted. The restrictions of the preceding sentences shall also apply in the event of corporate transformations and legal successions. The Customer may not pass on to third parties‘ Software which Customer acquired in a manner other than according to the contract purchase. The above mention es only applicable under the scope of application of the European Regulatory EU2009/24. For Third Party Database and other third-Party Software, deviating provisions may apply be made as identified When Customer’s requests a transfer.
d) Archival copy, copy restrictions, origin notes to be reproduced – Customer may make one (1) copy of the Software for archival purposes and such number of backup copies of the Software as is consistent with Customer’s usual, regular backup procedures. Customer shall document the number and location of all originals and copies of the Software. The Customer may copy or reproduce parts of the Documentation for internal purposes in machine-readable or printed form, but only to the extent necessary to exercise its rights under this EULA. Customer shall affix notices of copyrights, trademarks, service marks or other proprietary rights of NTT DATA or its licensors or other partners to all copies, in whole or in part, of the Software, Documentation, Third Party Database or Proprietary Information in the same form and location as such notices appear on the originals. Under no circumstances may Customer remove such notices.
e) Modifications, Changes, Extensions and Add-Ons – Customer may only use APIs, SAP Software Development Kit Implementation Version and other tools contained in the Software subject to this EULA or otherwise acquired for the purpose of creating or using Modifications or Add-Ons in compliance with the obligations set forth in this Section. For the avoidance of doubt, any Modifications or Add-Ons developed for Customer or available as a product or Software by NTT DATA, SAP or any other third party licensor or any of their Affiliates shall be governed exclusively by the terms of the applicable Agreement and shall not be subject to this Section 4.2 (e).
The Customer is not entitled to create, use or make available to third parties‘ Modifications or Add-Ons to the Licensed Software unless expressly permitted to do so by mandatory law or in accordance with this section. Modifications may only be made in relation to the Software supplied to the Customer by NTT DATA in source code.
NTT DATA points out that even minor changes, extensions, Modifications of the Software or other interventions may lead to unforeseeable and considerable disruptions in the operation of the Software and other programs or in the communication between the Software and other programs. Disruptions may also result from changes, extensions or Modifications not being compatible with later versions of the Software. Customer shall be responsible for any disruptions in the operation, security or performance of the Licensed Software and other programs, or in the communication of the Licensed Software and other programs (collectively, „Disruptions“) caused by Modifications or Add-Ons to the Licensed Software . NTT DATA shall not be obliged to remedy any malfunctions arising in connection with changes, extensions, Modifications, Add-Ons or other interventions or otherwise be responsible for such malfunctions or Disruptions. In particular, NTT DATA shall be entitled to modify the Software including the APIs at any time without ensuring that Modifications used by Customer are compatible with later versions of the Software. The foregoing provisions of this section shall apply mutatis mutandis to the use of the Software together with Add-Ons.
NTT DATA is also not obliged to provide Maintenance services if and to the extent that their provision is impeded by Modifications or AddOns to the Licensed Software.
These Modifications and Add-Ons may only be used together with the Licensed Software and only in accordance with the right to Use the Licensed Software. Modifications and Add-Ons may not (subject to the further restrictions regulated herein) be suitable for the following: circumvent the contractually agreed restrictions and/or enable Customer to access Software for which it has not licensed or otherwise acquired any rights of use; nor make accessible or available any information about the Software itself.
Customer is aware that the Software is continuously developed and modified by NTT DATA, its licensors and/or other partners in accordance with their release and development strategy. NTT DATA, its licensors and/or the partners shall be entitled at any time to develop, use and distribute Modifications or developments whose functions are wholly or partially identical to Modifications or developments that may be developed by or for the Customer; neither party being entitled to copy the Customer’s source codes. Customer agrees not to assert any IP rights in such Modifications/ or developments against NTT DATA, its Affiliates and/or its licensors and its Affiliates or other partners.
If Customer opts for certain preset solutions, Add-Ons or other best practice solutions, full functionality or compatibility of the Licensed Software with pre-set solutions, Add-Ons or best practice solutions may not be guaranteed.
f) Decompiling – The Customer may not disassemble, decompile, reverse engineer or use any other method to obtain the source code of the Software. However, the Customer shall have the right to decompile the Software to the extent necessary to achieve interoperability with another program, if it complies with the limits of Article 6 („Decompilation“) of Directive 2009/24 of EU or other applicable local legislation and with the provisions of below.
To this end, prior to any decompilation of the Licensed Software Customer shall request NTT DATA or its licensors or other partners in writing, setting a reasonable deadline, to provide the information and documents necessary to establish interoperability. Only after fruitless expiry of the time limit shall the Customer be entitled within the limits of Article 6 („Decompilation“) of Directive 2009/24 or other the applicable local legislation. Prior to the involvement of third parties, the Customer shall provide NTT DATA or its licensors or other partners with a written declaration by the third party that the latter undertakes directly vis-à-vis NTT DATA or its licensors or other partners to comply with the provisions contained in section 3 and 4.
g) Rights to new versions of the On-Premise Software – If the Customer receives from NTT DATA copies of new versions of a Licensed Software (e.g. within the scope of rectification or Maintenance), which replace a previously provided Software version, the right of use granted to the Customer shall exist exclusively regarding the most recently received version. The right of use with respect to the previously provided version shall expire as soon as the Customer implements the new version for Productive Use. However, the Customer may use the new version for test purposes alongside the old version in productive use for a period of three (3) consecutive calendar months.
4.3 Specific conditions for SAP Software
Customer’s use of the SAP On-Premise Software is further subject to the Software Use Rights set forth in Part 2 of the applicable SAP PKL.
In case of On-Premise Software, NTT DATA recommends that Customer register Modifications and Add-Ons in accordance with the registration procedure provided by SAP at http://sup-port.sap.com/sscr in order to facilitate NTT DATA/SAP in identifying the cause of possible support Issues.
Insofar as an Affiliate of the Customer holds independent transfer or Maintenance contracts for SAP Software with NTT DATA, SAP or its Affiliator another authorized SAP sales partner, the following shall apply in the absence of any express agreement to the contrary between SAP and the Customer:
The SAP Licensed Software may not be used for the processing of internal business transactions of the Customer Affiliate, and the Customer may not provide its Affiliate with Maintenance services received under the Software Agreement. This shall also apply if the independent Maintenance Agreement of the Customer Affiliate has been or will be terminated.
SAP best practices solutions or other available solutions are available on the SAP Support Portal.
The SAP Software is delivered tuned to a Third Party Database and may only be used in conjunction with a Third Party Database tuned to the SAP Software. A right to use a Third Party Database shall be licensed via NTT DATA from a Third Party Database licensor as a runtime license („Runtime License“) or directly as a full License („Full License“) from a Third Party Database Licensor. In either case, Customer shall license a Third-Party Database for the operation of the SAP Software either through NTT DATA or a Third-Party Database Licensor. In the event that a runtime license is licensed through NTT DATA, such Runtime License shall be limited solely to or for the purpose of the Use and operation of the SAP Software (functions) purchased pursuant to the Agreement for its Productive and Non-Productive Use. Additional or more detailed provisions shall be specified in the respective contract in each individual case. If Customer does not license a database through NTT DATA, Customer shall provide NTT DATA with written evidence of the licensing of the required database prior to Customer commencing Use of the SAP Software.
Indirect access to the Licensed Software (indirect use) – The use of the SAP Software is generally based on Defined Users, whereas the NTT DATA Software is mainly used by defined Usage Metrics. Users of upstream or intermediary systems are also considered Defined Users or are taken account for Usage Metrics within the upper threshold/package, provided that there is dialog-oriented or real-time communication between the Licensed Software, whereby it is insignificant whether access is direct or indirect. In addition, if the upstream or intermediate systems that access the Licensed Software use redundant functionality, which is also present in the Licensed Software, the users are also deemed as Defined Users or are taken into account for Usage Metrics within the upper limit/packages, even if the data is transmitted to the Licensed Software in the background, i.e., not dialog oriented.
Real-time or dialog-oriented means that a user can access the Software during the execution of an activity or a work step via an upstream and/or intermediary system. Indirect means hereunder that the user communicates with an upstream system of the Software, which transmits the communication processes to the installation of the Licensed Software or otherwise accesses the Licensed Software or uses its functions. Indirect or indirect Use shall be deemed to include in particular: (i) users who enter or provide data in an upstream system that is transmitted to or exchanged with the Licensed Software, e.g. order entry with mobile systems/end devices or users of a portal insofar as they use functions of the Licensed Software; (ii) users who, through the use of non-SAP or non NTT DATA software (third-party software), access data that are read, changed or stored with the Licensed Software and use SAP and/or NTT DATA programs for this purpose, such as Business Application Program Interface (BAPI), Remote Function Call (RFC) or transaction calls.
4.4 Prerequisites for Use, delivery of Software
In order to use the On-Premise Software certain requirements must be met by the hardware used by the Customer. The Customer shall be responsible for sufficient server hardware and, if applicable, system software. NTT DATA can provide release-dependent minimum requirements upon request by the Customer. NTT DATA reserves the right to adapt these requirements.
Delivery shall be effected, at NTT DATA’s option, by (i) NTT DATA making the Licensed Software available to Customer for download, in the case of SAP Software on the SAP Support Portal (http://service.sap.com/swdc), or (ii) by shipping the Licensed Software on DVD or other data carriers to the agreed delivery address (Physical Delivery). In the case of physical delivery, the time at which NTT DATA hands
over the Licensed Software to the data carrier shall be decisive for compliance with delivery dates and the passing of risk. In the case of Electronic Delivery, the time at which the Licensed Software is made available for download, and this is communicated to Customer (download letter) and delivery shall be deemed to have taken place upon notification to Customer that the Licensed Software is available for download.
If the Customer does not accept the Licensed Software on the agreed date despite the setting and expiry of a reasonable grace period (receiving), NTT DATA may – without prejudice to its statutory rights arising from default – withdraw from the Agreement and demand liquidated damages (due immediately in one sum in lieu of performance) in the amount of twenty-five percent (25%) of the total remuneration accruing up to the date on which the Customer could have terminated the Agreement as well as compensation for services already rendered. The amount shall be set higher or lower if NTT DATA demonstrates to the Customer that NTT DATA has incurred a higher or lower damage. NTT DATA is entitled to exercise other claims owing to late payments.
5 Overuse, system measurement (license audit), additional purchase
5.1 Customer shall be responsible for monitoring proper use and shall immediately notify NTT DATA in writing of any use in excess of any Agreement, including but not limited to any exceeding of the Usage Metrics. In this case, Customer shall be obligated to sign an extension agreement showing the additional usage and the additional remuneration. The corresponding remuneration shall be due as of the day on which the overrun exists.
5.2 Any use of the Licensed Software, that goes beyond the Agreements shall be notified to NTT DATA in writing in advance. It requires a separate agreement on the additional scope of use (additional purchase). The additional purchase shall be made on the basis of the price lists and metrics of NTT DATA, its licensors or partners valid at the time of the additional purchase.
5.3 NTT DATA or a third party authorized by NTT DATA, in particular NTT DATA´s licensors or partners,
a) shall be entitled to verify the use of the Licensed Software (in principle once a year) and in accordance with applicable standard procedures of the Software- owner by measurement. Surveys shall take place regularly in the form of self-reports using surveying tools or similar procedures. Customer undertakes in particular to draw up the surveying protocol at the latest two (2) weeks after request by NTT DATA and/or a third party authorized by NTT DATA, in particular NTT DATA´s licensors or partners. The result of the survey shall be transmitted to NTT DATA in unchanged form in writing and in file form (e.g. txt.pdf).
b) may also carry out remote surveys if the self-disclosure by the Customer was refused, did not provide any meaningful results or and there are objective indications of a violation of rights by the Customer exist. NTT DATA or a third party authorized by NTT DATA, in particular NTT DATA´s licensors or partners, may exceptionally carry out on-site surveys if he remote survey was refused, did not provide meaningful results or there are objective indications of an infringement of rights by the Customer.
5.4 The Customer shall cooperate in an appropriate manner with NTT DATA and/or the third party authorized by NTT DATA in the performance of such surveys, by granting insight into its systems to the required extent in the case of remote surveys and on-site surveys. NTT DATA shall give Customer reasonable notice of on-site surveys. Customer’s confidentiality interests as well as the protection of its business operations against impairment shall be considered in an appropriate manner. The reasonable costs of the survey shall be borne by the Customer if the results of the survey reveal Customer Use not in accordance with the Agreement.
5.5 If it becomes apparent during the measurement or in any other way that the use of the Licensed Software by the Customer exceeds the Agreements, a contract on additional purchase shall be concluded. Any special, previously agreed to purchase terms of the parties, including agreed discounts, shall not be applicable as Section 5.1, sentences 2 and 3 shall apply accordingly. NTT DATA reserves the right to claim damages and interest on arrears.
5.6 Purchases increase the contract price and thus the Software license or service fees in total. The Software license or service fees are based on the prices for the Software valid at the time of the additional purchase.
6 Country versions/language versions and restrictions on availability and use in multinational environments
6.1 Software or parts thereof may be subject to restrictions with regard to their availability. No rights of use for valid country/language versions of the Software are acquired from the Customer unless expressly agreed otherwise in the Agreement. Packages may be subject to certain restrictions on availability. Information on these restrictions, including, for example, availability in certain countries, supported languages, supported operating systems and databases, will be made available to the Customer upon request.
6.2 Software may only be used in the country in which they were purchased unless otherwise agreed in the Agreement.
6.3 Information on country versions/languages and other may be listed for Software in the Product Availability Matrix (PAM) published by SAP on its homepage (the current link can be found in the PKL) or otherwise contained in the Documentation. Certain SAP Software applications may be used in other countries at no additional cost (but subject to the availability restrictions specified in the PAM above).
7 Condition of the Software and Services and obligations of Customer
7.1 The product description in the Agreement and the Documentation are conclusively authoritative for the quality of the Software. NTT DATA does not owe and will not provide any further quality statements concerning the Software. In particular, the Customer cannot derive obligations from public statements or in advertising for the Software. Any warranties shall be specified in this EULA and/or the Agreement.
7.2 The Customer is responsible for understanding the essential functional features of the Software and their technical requirements (e.g. with regard to database, operating system, hardware and data carriers, internet connection). Customer bears the risk that the Software meeting their requirements and areas of use. The Customer may seek advice or inquire on Software licensors‘ websites at any time for information.
7.3 Customer shall provide for the working infrastructure and IT environment of the Software covered by the Agreement, if applicable, in accordance with the specifications of NTT DATA and the Software licensors. It is Customer’s responsibility to create the necessary IT requirements and to ensure the proper operation of the necessary IT infrastructure environment, if necessary, through maintenance contracts with third parties. The Customer shall observe the specifications of the Documentation and notes made available. NTT DATA shall not be responsible for any loss of function if the customer provided infrastructure and IT environment requirements are not met or in the event of Internet connection failures.
7.4 Customer shall cooperate in the performance of the Agreement free of charge to the extent reasonably required, e.g. by providing NTT DATA and authorized third parties with employees, work rooms, IT infrastructure systems, data and telecommunication facilities or by granting access to the Licensed Software (application) or to the IT infrastructure systems directly and by means of remote data transmission. The Customer shall name in writing a contact person for NTT DATA and an address, (mobile) telephone number and e-mail address at which the contact person can be reached. Customer’s contact person must be able to make the necessary decisions for the Customer or to bring them about without delay. In case of a change of the contact person, Customer shall inform NTT DATA immediately in writing.
7.5 The Customer shall thoroughly test the Licensed Software for freedom from defects before commencing its operational use immediately after receipt of or receipt of access authorization to the Software, usually within 10 days after receipt at the latest. This shall also apply to Software which Customer receives within the scope of subsequent performance and Maintenance. The Customer shall declare complaints immediately in writing with a detailed description of the problem by Customer’s dedicated contact person according to section 7.4.
7.6 The Customer shall take reasonable precautions if Customer believes the Licensed Software does not work properly in whole or in part (e.g. by means of data backup, fault diagnosis, regular checking of results). In the absence of an express written notice in the individual case, all persons involved by NTT DATA in the performance of the services shall assume that the Customers Data with which they may come into contact are secured.
7.7 The Customer shall bear any disadvantages and additional costs arising from Customer’s breach of its obligations.
7.8 Any delay or nonperformance of any provision of this EULA (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this EULA, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
8 Remuneration, payment, taxes, reservation
8.1 Customer shall pay NTT DATA the contractually agreed remuneration for (a) the Licensed Software and for the Maintenance of the Licensed Software. No discount shall be granted. Software Maintenance fees and the annual remuneration shall be calculated as a percentage of the respective contract price of Software (Maintenance Base). The Maintenance Base does not depend on the actual use of the Software.
8.2 All prices are subject to the applicable statutory value added tax or other country specific sales or use tax. If NTT DATA is required to pay taxes, Customer shall reimburse NTT DATA for such amounts. Customer hereby agrees to indemnify NTT DATA for any Taxes and related costs, interest and penalties paid or payable by NTT DATA.
8.3 In the case of On Premise perpetual Software Agreements, the invoice shall be issued after delivery of the Licensed Software.
8.4 Software Maintenance represent recurring fees which are invoiced in advance as specified in the Agreement. For any partial period, the billing shall be on a pro rata basis. The payment obligation begins with the start of the respective Agreement.
8.5 NTT DATA and the respective licensors reserve all rights to the delivered Software, in particular to versions made available within the scope of the Maintenance Agreement, until full settlement of their claims under the Agreement. Customer shall immediately notify NTT DATA in writing in the event of access by third parties to Software subject to retention of title and inform the third party of the rights of NTT DATA and the respective licensors.
8.6 Payments shall be made to the account specified in the invoice and shall be due and payable within ten (10) calendar days of the invoice date. Upon the due date, NTT DATA may charge default interest in the amount of the applicable statutory default interest rate. After prior written notice, NTT DATA may suspend Customer’s use of Maintenance until payment is made.
8.7 The Customer may only offset undisputed or legally established claims and may only base a right of retention on undisputed or legally established claims. The Customer may not assign its claims to third parties without prejudice to mandatory statutory provisions.
8.8 NTT DATA may change the remuneration for Maintenance in each case by sending written notice to Customer in accordance within a notice period specified in the Agreement. The new remuneration will be effective starting January 1st of the next calendar year in compliance with the principles below. NTT DATA shall change the remuneration at most to the extent that the change framework has changed in the index mentioned under a) for Agreements subject to German law or under b) for all other contracts under different law.
a) The index of the average gross monthly earnings of full-time employees in Germany for the economic sector of the provision of information technology services (currently published in quarterly figures by the Federal Statistical Office in Fachserie 16, Reihe 2.4, Gruppe J 62) shall be used as the basis for determining the change framework. Should this index no longer be published, the index published by the Federal Statistical Office which most closely reflects the development of average gross monthly earnings in the aforementioned sector of the economy shall be decisive for the determination of the change framework. If this is the first compensation adjustment, the index development between the index level published at the time of the conclusion of the agreement and the index level last published at the time of the adjustment declaration shall be decisive for the change framework. If a remuneration adjustment has already taken place previously, the change framework shall be defined by the index development between the index level last published at the time of the preceding adjustment declaration and the index level last published at the time of the new adjustment declaration.
b) at its discretion, up to three percentage (3 %) points of the respective annual remuneration or as specified in the Agreement. If the Customer does not terminate the respective Agreement at the end of the calendar year by providing the termination notice within the time period specified in the Agreement (special right of termination), the new remuneration shall be deemed to have been agreed. NTT DATA shall point this out in the adjustment declaration. The regulations for termination shall apply accordingly.
9 Warranties, Defects as to Quality, Defects in title, other faults
9.1 Exclusions – The warranty shall not apply: (i) if the Software is not used in accordance with the Documentation; or (ii) if the defect is caused by a Modification or Add-on (other than a Modification or Add-on made by NTT DATA or its licensors or partners, which is provided through NTT DATA support or under a services warranty), by Customer or its third-party software provider; or (iii) to any Customer unlicensed activities. NTT DATA does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software are designed to meet all of Customer´s business requirements.
9.2 Warranties on On-Premise Software
a) Applicability for all countries under this EULA – NTT DATA warrants that the Software will substantially conform to the specifications contained in the Documentation for six months following delivery. The Customer has the remedies set forth in Section 9.4. This is Customer´s sole and exclusive warranty and remedy for the Licensed Software.
Express Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NTT DATA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, OR ORAL OR WRITTEN) INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
b) Conditions for Agreements under German Law – NTT DATA warrants, in accordance with the rules of the law on the sale of goods, the agreed quality of the Software that is the subject matter of the agreement and that the transfer of the agreed rights of use to the Customer (cf. Section 4) does not conflict with any rights of third parties. The limitation period for claims in course of defects of software is one year and begins with the delivery of the contractual Software. This shall also apply to claims for withdrawal and mitigation. The reduction of the limitation period does not apply in the event of intent or gross negligence by NTT DATA, fraudulent concealment of defects, personal injuries or legal deficiencies in accordance with Section 438(1)(1a) BGB. For defects with regard to rectification services, workarounds or new deliveries as part of subsequent performance, the limitation shall end at the same time. However, if NTT DATA checks the presence of a defect or provides subsequent performance with the Customer’s agreement, the limitation period shall be suspended until NTT DATA informs the Customer of the results of its inspections or declares that the subsequent performance has ended or rejects the subsequent performance. The limitation takes effect three months after the end of the suspension at the earliest.
9.3 Remedies – In the event of proven material defect, NTT DATA will, at its sole option repair or replace the nonconforming Software or re-perform the deficient. The rectification of defects may also consist of NTT DATA offering the Customer reasonable options to avoid the effects of the defect. The foregoing remedy can also be effected via telephone, written or electronic instructions provided to the Customer which the Customer is reasonably expected to be capable of implementing. If the subsequent remedy performance ultimately fails after an appropriate and agreed cure period of minimum ten (10) days, the Customer may withdraw from the Agreement in case of On Premise Software, provided that the defect is not inconsiderable, or to reduce the remuneration by an agreed to amount. The remuneration owed under a Maintenance Software subscription shall be the subject of any potential right of reduction if agreed to by the parties. The Customer has explicitly to indicate in writing in this respect that it reserves the right to withdraw from or terminate the Agreement in the event of repeated failure. The requirements of Section 9.4 must be satisfied in the grace period. The limits stipulated in Section 11 shall apply to claims for damages and reimbursement of expenditure incurred as a result of a defect.
9.4 Reporting – Customer shall promptly notify NTT DATA in writing of any breach of duty, describing in detail the reason for such defect. If the Customer reports a defect that is not demonstrable or not attributable to NTT DATA, or if the Licensed Software is not used in compliance with the Documentation, NTT DATA can claim the expenses for troubleshooting or rectification the reported defect from the Customer. In particular, the additional expenses incurred by NTT DATA as a result of rectifying the defects shall be compensated where NTT DATA incurs these expenses as a result of the Customer (a) not satisfying its duties of cooperation properly, operating the contractual Software improperly, (b) not using the support or other services recommended by NTT DATA, or (c) itself and/or a third party interfering with the Software.
9.5 Maintenance – Should NTT DATA not provide Maintenance, in accordance with the Agreement terms, the Customer must notify NTT DATA in writing of the non-conformance and provided NTT DATA a cure period of minimum ten (10) days, within which NTT DATA shall be given the opportunity to perform the service properly or to otherwise remedy the situation. Section 16 shall apply for notices. Section 11 shall apply to claims for damages and reimbursement of expenses. Section 14 applies accordingly to material damage and defects of title or disrupted performance of Maintenance services. The termination of the Maintenance agreement takes the place of the withdrawal from the Agreement unless otherwise agreed to in writing by the parties. The remuneration owed under a Maintenance agreement may be the subject of any potential right of reduction.
10 Third Party claims
In the event of proven defects in title or right and authority to provide the Licensed Software, NTT DATA shall provide remedy the matter by obtaining the right for Customer to use the Licensed Software or replace or modified with an equivalent software. The Customer must adopt a new Software version if need to preserve the scope of functions under the Agreement remains and provided that such adoption is not unreasonable.
If a Third Party asserts claims, which are opposed to the exercise of the authorization to Use, the Customer shall inform NTT DATA completely and immediately in writing. Customer shall not acknowledge any claim prior to a written confirmation by NTT DATA. If the Customer discontinues the Use of the Licensed Software due to mitigation measures or for other valid reasons, Customer shall notify the third party that such discontinuation does not constitute acknowledgement of the claimed infringement. Customer entitles NTT DATA, as far as permitted, to settle the dispute with the third party alone both in and outside of the courts; or else only to conduct the discussion in agreement with NTT DATA. Making use of this authorization shall be at the discretion of NTT DATA. The Customer shall provide the required support as well as the necessary information during the dispute with the third party. NTT DATA shall hold the Customer harmless from costs and damages, which are resulting from the defense against such claim by NTT DATA if the Customer has complied with the conditions stated herein and if the claim is not based on or contributed to the behavior of the Customer. The conditions of section 11 shall apply accordingly.
11.1 In any case of contractual or non-contractual liability, only the following apply:
a) Unless otherwise specified in the Agreement, each Party is fully liable for willful misconduct and fraudulent intent, body damages, unauthorized use or disclosure of Confidential Information or granted license, either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of personal data, according to relevant mandatory laws, or any failure by Customer to pay any fees due under the Agreement.
b) In cases of gross negligence and failure to meet warranty standards, NTT DATA shall only be liable in the amount of foreseeable, direct damages that should have been prevented by the breached obligation or guarantee.
11.2 In all other cases, NTT DATA shall only be liable for breaches of material obligations (cardinal obligations) and to the extent stated in the liability limits indicated in the following subparagraph. Cardinal obligations are those obligations that must be fulfilled for the proper execution of the Agreement in the first place, or breach of which jeopardizes achievement of the contractual purpose and compliance with which the Customer may regularly rely upon. In such case, liability is limited to foreseeable, direct and typical damages. Moreover, total liability in such cases is limited to the fees paid under this Agreement within the past twelve months for all damages. In the case of default due to impossibility by NTT DATA, total liability is limited to a maximum of the twenty percent (20 %) of the fees paid under the Agreement within the past twelve (12) months.
11.3 The option of a plea of contributory negligence remains open. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 11, IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, CONSEQUENTIAL, SPECIAL, INDICENTIAL OR PUNITIVE DAMAGES HOWEVER ARISING OUT OR RELATING TO THIS EULA.
11.4 In the event of a loss of data, NTT DATA shall be liable only for the expenses that would have been necessary for the recovery of the data at reasonable expense given the regular and proper backup of the data by the Customer, however not exceeding the maximum limits specified in Section 11.2. The limitation shall not apply if and provided that NTT DATA is responsible for data backup within the context of the to be rendered by it.
11.5 A limitation period of up to one (1) year shall apply to all claims for damages or reimbursement of expenses against NTT DATA arising from this EULA. The limitation period shall commence at the end of the calendar year in which the claim arose, or the Customer should have become aware of it. The provisions in this section shall not apply to liability in cases of willful misconduct, fraudulent intent or gross negligence or in cases of bodily injury or under mandatory law.
12 Confidentiality and Data Protection
12.1 In accordance with the statutory provisions, in particular trade secret laws, the parties undertake to treat all Proprietary Information of the other party obtained prior to and in the course of the performance of the contract as confidential for an unlimited period of time in the same way as they protect their own comparable Proprietary Information, but at least with reasonable care. Disclosure by the receiving party to third parties shall only be permitted to the extent necessary for the exercise of the receiving party’s rights or for the performance of the Agreement and such persons are subject to substantially similar obligations of confidentiality as set forth herein. Reproductions of Proprietary Information of the other party shall contain, to the extent technically possible, all notices and legends as to its confidential or secret nature contained in the original.
12.2 NTT DATA and its Affiliates use the data of the Customer and/or the contact person (name, business address and email address) to send to the Customer product information, service offers, event information, news of interest to the Customer, and other information about NTT DATA goods and services. In order to address advertisements to the Customer, NTT DATA may share names and addresses with processors (e.g. shipping service providers, media agencies) that process this data for the purpose of compiling advertising material and sending this to the Customer. The processing of the aforementioned data is required for the legitimate interests of NTT DATA and is justified by weighing interests in favor of NTT DATA. In choosing the channels of communication for advertising (by mail and, for self-promotion to existing Customers, via email), NTT DATA shall take all due care to ensure that such communication represents the lowest possible level of disturbance to the Customer. The Customer or the person addressed in the advertising material may object to receiving such advertising at any time.
12.3 NTT DATA shall observe the rules of data protection law. Insofar as NTT DATA receives access to the Customer’s hardware and
software (e.g. for remote maintenance), this does not require any processing or use of personal data by NTT DATA for business purposes. NTT DATA shall handle any personal data in accordance with currently applicable data protection regulations and other applicable protection regulations. The final provisions of the contractual parties’ data protection obligations in the context of potential order processing (in particular as part of maintenance services) result from an order processing agreement to be entered into between the parties.
12.4 Customer is responsible for the content of Customers Data and its collection in the Maintenance. Subject to this Section, Customer grants NTT DATA (and its Affiliates and subcontractors) the non-exclusive right to use Customers Data solely and to the extent necessary (i) for the purpose of providing the Maintenance (including, without limitation, making backup copies and performing penetration testing) and related support, and (ii) to verify Customer’s compliance with the terms of the Agreement.
13 Export control
The Software is subject to the export control laws of various countries, in particular the laws of the United States of America and the Federal Republic of Germany. Customer agrees not to transfer the Software subject to this Agreement to (i) any governmental authority for review of a possible grant of rights of use or for other regulatory approval without the prior written consent of NTT DATA or NTT DATA´s licensors or partners, (ii) not to export it to any country or to any person or entity subject to export prohibitions under the applicable laws of the U.S. the EU, Ireland or Germany and/or any other applicable export control and trade sanctions law and (iii) to end user with whom it is prohibited to do business. Furthermore, the Customer shall be responsible for compliance with all applicable legal provisions of the country in which the Customer’s head office is located and of other countries regarding the use of the contractual software by the Customer and its Affiliated Companies. Customer shall impose on the End User the same restrictions as those set out in this Section 13 (Export control). Further information about SAP’s Export Control and Sanctions Compliance is published by SAP at https://www.sap.com/about/agreements/exportstatements.html. SAP also publishes the currently valid SAP EECN Matrix here and makes it available for download.
14 Duration and termination of the software transfer
14.1 In principle, Software usage rights to On-Premise Software, are perpetual usage rights which remain with the Customer in perpetuity. With an unlimited right of use, the Customer is entitled to use the rights of use to software for an unlimited period if the authorization is not revoked or terminated for good cause. Good cause shall only exist if it is unreasonable for NTT DATA to maintain the contract in view ofthe circumstances of the individual case and after weighing the interests of the parties. For example, good cause shall be deemed to exist if a case of software piracy can be traced back to the Customer in which the persons acting have committed a criminal offence.
14.2 In the case of Software Maintenance, if not otherwise specified, the following applies:
a) The arrangement will be effective the signing of the Agreement and ends with the expiration of the Agreement term or contract period.
b) Unless otherwise stated in the Agreement, the initial term or contract period shall be the end of the third full calendar year following the effective date of the Agreement (minimum term). If the Agreement begins on January 1 of a calendar year, the minimum period for the agreement shall be until December 31 of the third calendar year. Should no termination take place by the time the end of the initial term, the Agreement shall be extended automatically by a further calendar year (extension).
c) An acquisition automatically extends the term of the Maintenance by a further full calendar year. This does not apply if (i) the purchase takes place before the last calendar year of the initial term or if (ii) the Customer has terminated the relevant Agreement in due time and the purchase takes place after confirmation of the termination but before termination of the Agreement, e.g. during a measurement.
d) After the initial terms, all Agreements may be terminated in writing with four (4) months prior notice before the end of a calendar year. Separate termination rights and termination for cause shall remain unaffected. Section 16.3 remains unaffected.
e) If the Customer is in default with the payment of fees for the License Software, Maintenance, or of a not insignificant part of the prices for two (2) consecutive months, or in a period extending over more than two (f) months with Customer’s non payment of the fees in an amount that reaches the basic price for one quarter, NTT DATA may terminate the Agreement extraordinarily without notice. NTT DATA reserves the right to terminate for good cause, especially in the case of multiple instances or gross neglect of essential contractual obligations (e.g. Sections 3, 4, 7, 11, 13, 16). In this case, NTT DATA reserves the claim to remuneration that has accrued prior to termination and can demand an immediate claim to flat-rate compensation in the amount of 60% of the remuneration accrued to the point at which the Customer could have ordinarily terminated the Agreement for the first time. The amount shall be set higher or lower if NTT DATA demonstrates higher or lower damage to the Customer. NTT DATA is entitled to exercise other claims owing to late payments.
14.3 In all cases of termination of Customer’s right of Use, the Customer is obliged to immediately cease using the Licensed Software and the Confidential Information. No later than one month after the end of the right of Use, Customer shall immediately irrevocably and permanently discontinue Use of the Software and destroy all copies of the Licensed Software in any form in an unrecoverable manner or – at the request of NTT DATA or the licensors – hand over all copies of the Licensed Software to NTT DATA and the licensors. A right of retention shall be excluded. This shall also apply to any copies of the Software, the codes and any backup copies that may have been made, unless their retention for a longer period is strictly required by law; in this case the return or destruction shall take place with the end of this period. Any use of the Software by the Customer, its Affiliates or Third Party Business Partners is strictly prohibited from this point in time. Customer shall assure NTT DATA and licensor in writing that it and all of its Affiliates and Third Party Business Partners have complied with the obligations set forth herein.
15 Modifications to the EULA, Business and Service Descriptions and Pricing
NTT DATA shall be entitled to adapt the EULA, prices and product descriptions, including the scope of Maintenance, to technical, economic and legal progress or for ongoing compliance with applicable mandatory laws. NTT DATA shall notify the Customer by e-mail or by other suitable means about any intended changes to the EULA, the specifications of Maintenance, Services and/or the prices at least two (2) months before the change takes effect. In this case, the Customer is entitled to an extraordinary right of termination at the date the changes take effect. If the Customer does not give written notice of termination within two (2) weeks after receipt of the notice of change, the changes shall become part of the contract at the date the announced modification comes into effect and the contract shall be continued with the changed conditions. In its notice, NTT DATA shall point this out. NTT DATA is entitled to adapt the scope of services of Maintenance, to the development of software and technical advances. If a change in services could negatively affect the legitimate interests of the Customer, NTT DATA shall inform the Customer of this change in services in writing or electronically no later than three (3) months before its entry into force and, in this notification, shall refer to its subsequent right of termination and the consequences of not exercising the right to termination. In this case, the Customer is entitled to terminate the Maintenance agreement early within two (2) months following the date that the amendment entered into force (extraordinary right of termination). Should the Customer not assert its right to terminate, the Maintenance, shall continue with the amended scope of services.
16 General Provisions
16.1 It is the intent of the parties that in case any one or more of the provisions contained in this EULA shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this EULA, and this EULA shall be construed as if such invalid or unenforceable provision had never been contained herein.
16.2 If either party should waive any breach of any provision of this EULA, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
16.3 Amendments and supplements to the EULA and Agreement as well as all notices or reports which are required or may be given
pursuant to this EULA and Agreement, in particular notices of termination, reminders or setting of deadlines, must be made in writing. This shall also apply to the waiver of the written form requirement. The written form requirement may also be complied can be met by facsimile transmission, exchange of letters or other written form, including email (except for notices of termination or notice of a material breach). Notices of termination or material breach must be delivered via postal delivery to the respective executive offices of the parties.
16.4 Deadlines set by the Customer provided for by law or contract must – except in urgent cases – be at least ten (10) working days. If the fruitless expiry of a set deadline is to entitle the Customer to dissolve the contract (e.g. by rescission, termination or damages instead of performance) or to reduce the remuneration, the Customer must threaten these consequences of the fruitless expiry of the deadline in writing together with the setting of the deadline.
16.5 Offers made by NTT DATA shall be subject to change without notice, unless it has agreed in writing to be bound by them. The order form or order confirmation of NTT DATA shall be decisive for the acceptance of Customer’s offer.
16.6 The parties agree that all disputes between them shall be promptly submitted for informal resolution to their respective executives with power to bind their respective company. The foregoing process shall not require a party to delay obtaining any injunctive relief or equitable remedies based on a claim arising from the other party’s breach of intellectual property, or confidentiality obligations hereunder. The whole Agreement and any claims arising out of or relating to this Agreement and its subject matter shall be governed by and construed exclusively by the law of the country in which the contracting NTT DATA entity, has its registered office (local NTT DATA office), without reference to its conflicts. In the event of any conflict between foreign laws, rules and regulations the laws, rules and regulations of the local NTT DATA office, shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as amended, do not apply. All disputes will be subject to the exclusive jurisdiction of the courts located in the city of the registered office of the local NTT DATA office.
16.7 All contractual and non-contractual claims shall be governed exclusively by the law of the country in which NTT DATA has its registered local office, without application of the UN Convention on Contracts for the International Sale of Goods (if applicable). The conflict of laws shall not apply. The exclusive place of jurisdiction for all disputes arising from or in connection with the Agreement shall be the registered local office of NTT DATA, provided that the Customer is a merchant, a legal entity under public law or a special fund under public law.
16.8 The Customer may transfer the rights and obligations under this EULA and the Agreement to a third party only with the prior written consent of the NTT DATA.
16.9 Other services that are not covered by the express descriptions of the On–Premise perpetual, or Maintenance Agreements must be agreed separately and are not the subject of this EULA or the Agreement.
17 Additional Software Maintenance services provisions
17.1 The Customer shall receive the rights of Use in accordance with Section 4 for new versions/releases that are delivered as part of Maintenance.
17.2 Maintenance for SAP Software always refers to the Customer’s overall inventory of SAP Software, provided that NTT DATA or its licensor offers Maintenance hereof. The Customer must always keep all installations of its SAP Software for which maintenance is offered (including by potential later acquisitions or NTT DATA Software acquired as part of Maintenance) completely maintained by NTT DATA in order to claim Maintenance services, or to terminate Maintenance altogether. This provision also includes SAP Software which the Customer has procured from a third party and for which NTT DATA/SAP provides Maintenance. Acquisitions obligate the Customer to extend Maintenance based on separate Maintenance agreements with NTT DATA. The provisions on terms, in particular minimum term, shall apply accordingly.
17.3 Maintenance for NTT DATA Software always refers to the Customer’s overall inventory of maintenance-related NTT DATA Software or the Customer’s respective NTT DATA Software. The Customer must always keep all installations of NTT DATA Software for which maintenance is offered (including by potential later acquisitions or NTT DATA Software acquired as part of maintenance) completely maintained by NTT DATA in order to claim Maintenance services. The Customer may terminate the Maintenance agreement for NTT DATA Software altogether or only for individual NTT DATA Software products (e.g. it.x-press). If the Customer cancels the Maintenance services for a single NTT DATA Software product, the remaining Maintenance services for any other NTT DATA software products shall remain unaffected.
17.4 In cases in which Software Maintenance is not in effect from delivery of the Software but rather is only agreed later, to keep the Software updated, the Customer shall pay the Maintenance fees retroactively that it would have paid for the Maintenance services as of delivery. The retroactive payment is due and payable immediately and in its entirety. This shall equally apply in the case of a termination and subsequent reactivation of Maintenance.
17.5 Change to a different type of Maintenance support for SAP Software during the term of the Agreement
In case the Customer decides during the term of the Agreement, while observing and complying with the following provisions, to change the Maintenance for SAP Software to another type of support, this shall always require a separate written supplementary agreement between NTT DATA and the Customer.
a) SAP Software Maintenance change to SAP Enterprise Support
The Customer can give notice in writing at any time that it would like to contractually change to SAP Enterprise Support. The changer to SAP Enterprise Support shall occur after (3) months from the signing of a corresponding amendment to the Agreement, effective on the 1st of the calendar month following the 3 month period, if there are no reasons against such a change (e.g. the Customer is found to be in default of payment). Provision of and billing for SAP Enterprise Support shall commence immediately on the date the change becomes effective.
A change always applies to Customer entire SAP software inventory (including SAP Software acquired through any purchases or as part of Maintenance). After the change to SAP Enterprise Support takes effect, a new minimum contractual term begins, i.e. the term of the Enterprise Support Services and Agreement is for at least one full calendar year and ends on December 31 of the full calendar year following the dater of the change. If the change takes effect on January 1 of a calendar year, the minimum term ends on December 31 of the same calendar year.
b) SAP Software Maintenance change to SAP Standard Support
The Customer may give four (4) months‘ written notice prior to the end of the calendar year that it wishes to switch to SAP Standard Support at the beginning of the next calendar renewal period, but no earlier than at the end of the minimum term. The change to SAP Standard Support shall then occur after the signing of a corresponding amendment to the Agreement, effective on 1st day of the first month of the new calendar year. The conversion to SAP Standard Support requires that the Customer is not in default with the fulfillment of its contractual obligations towards NTT DATA (including the obligation to pay the transfer and Maintenance fee).
17.6 A change in Maintenance support always applies to Customer’s entire SAP Software inventory (including SAP Software acquired
through any purchases or as part of Maintenance). After the change to SAP Standard Support takes effect, a new minimum term of Standard Support and the Agreement is for at least one full calendar year and ends on December 31 of the full calendar year following the change. Should the Customer desire consultancy services and/or other services outside of the agreed Maintenance services for which NTT DATA has no duty to perform under the Agreement, NTT DATA may elect to perform such services and charge Customer based on the standard time and materials rates and subject to the applicable protections of this EULA and the Maintenance Agreement specifically the confidentiality, ownership, warranty and liability terms. NTT DATA notes that all consultation questions in particular shall incur costs. Compensation shall also be paid for any additional expenses incurred by NTT DATA in connection with the use of the Maintenance services due to the Customer’s failure to properly fulfill its obligations to cooperate, improper use of the Licensed Software or failure to use recommended services by NTT DATA, or intervention in the Licensed Ssoftware by the Customer and/or third parties.
17.7 NTT DATA and the affiliated companies are entitled to use various external functions to accelerate and improve the processing of tickets, in particular for the purpose of Ticket Translation, Incident Solution Matching & Component Prediction and / or Ticket Solution Prediction. Further functions may be added at NTT DATA’s discretion if appropriate. NTT DATA uses external resources or companies for the use of these functions. All tickets are cleansed of personal data by means of an anonymization system before being transmitted to the external resources or companies. The basis for the above transfers and processing is the fulfillment of the contract and the protection of legitimate interests of NTT DATA (Art. 6 letter b and f EU-DSGVO). NTT DATA shall determine the duration and scope of the transfers. Further information may be provided to the Customer at any time upon written request.