HomeMy WebLinkAboutContract 50895 Do ID:85477DA5-OAE9-4F31-BE79-4378F4781A1E
CITY SECRETARY
h61 r2�� CONTRACT NO.
� O
CV
—. SAP SUPPORT AGREEMENT
US SAP ort Agreement("Agreement")is entered into by and between SAP 6ff&,i jB ,TaVQ6"e corporation,with offices
1?8g999 s Chester Pike,Newtown Square,PA 19064,(here1Wafter"SAP") rLd K I a
,NSR corporation,with offices at 2U0 TexafU and the following
rube (hereinafter"Customer"),together referred to as"Parties".
'j� 0 RECITAL
WHEREAS, Customer has acquired the right to use SAP Software from an authorized SAP Reseller under a software sales agreement
("Software Sales Agreement") and receives the right to use the SAP Software pursuant to a software license agreement between
Customer and SAP("EULA");and
WHEREAS,SAP provides,through its employees and third party contractors,software support services.
NOW, THEREFORE, in consideration of the mutual promises and obligations in this Agreement, the sufficiency of which is hereby
acknowledged,the Parties,intending to be legally bound,agree as follows:
1. Definitions
1.1 "Distributor' means the person or entity to which SAP markets and distributes certain Software and from which the Reseller
buys the Software.
1.2 "Documentation" means SAP's documentation which is delivered to Customer under the Software Sales Agreement, the EULA
or this Agreement.
1.3 "Proprietary Information"means: (i)with respect to SAP and SAP AG (the licensor of the SAP Proprietary Information to SAP),
the Software and Documentation and SAP Support Components, any other third-party software licensed with or as part of the Software,
benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications; (ii) the concepts,
techniques, ideas, and know-how embodied and expressed in the Software and (iii) information reasonably identifiable as the
confidential and proprietary information of SAP or Customer or their licensors excluding any part of the SAP or Customer Proprietary
Information which: (a) is or becomes publicly available through no act or failure of the other party;or(b)was or is rightfully acquired by
the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) becomes independently
available to the other party as a matter of right.
"Reseller" means the person or entity to which the Distributor markets and distributes certain Software and from which the Customer
acquires the Software.
1.4 "Sales Order Effective Date"means the date that the Distributor places the order for the support model chosen by the End User
under Section 2(Agreement on SAP Support)in SAP's online ordering system.
1.5 "SAP Enterprise Support Schedule"—means the current, applicable "Enterprise Support Schedule"which is made available and
currently stated at http://www.sap.com/corporate-en/our-company/agreements/index.epx.
1.6 "SAP Standard Support Schedule" means the current, applicable "Standard Support Schedule" which is made available and
currently stated at http://www.sap.com/corporate-en/our-company/agreements/index.epx.
1.7 "SAP Support"means SAP's then-current SAP support offering made available to Customer, as stated in this Agreement as well
as the applicable SAP Support Schedule.
1.8 "SAP Support Schedule"means either the SAP Enterprise Support Schedule or the SAP Standard Support Schedule,whichever
is applicable.
1.9 "Software"means (i)all software developed by or for SAP and/or SAP AG and delivered to Customer under the Software Sales
Agreement; (ii) any new releases thereof made generally available pursuant to SAP Support; and (iii) any complete or partial copies of
any of the foregoing.
1.10 'Work Product"means any and all deliverables,information,documentation,modifications or enhancements to the Software and
other materials created, developed, reduced to practice, or otherwise or produced hereunder (whether as individual items and/or a
combination of components and whether or not the applicable services are completed), and all rights of patent, copyright, trademark,
trade secret and other proprietary rights therein and thereto.
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 1
DocuSign Envelope ID:85477DA5-OAE9-4F31-BE79-4378F4781A1E
2. Agreement on SAP Support. Subject to the terms and conditions set out in this Agreement as well as specified in the applicable
SAP Support Schedule which is incorporated and made a part hereof by reference, SAP herewith offers to the Customer to provide
(select one):
® SAP Enterprise Support
❑ SAP Standard Support
for USD $ 180.86 per year for the Supported Software. Customer accepts such offer. In case Customer chooses SAP Enterprise
Support, the SAP Enterprise Support Schedule applies. In case the Customer chooses SAP Standard Support, the SAP Standard
Support Schedule applies.
3. Separate Software Sales Agreement. Customer has acquired certain SAP software as identified in Schedule 1 from Reseller
under the Software Sales Agreement(the Software identified in Schedule 1 being the"Supported Software").
Customer understands and acknowledges that provision of SAP Support is at all times conditional upon Customer holding valid licenses
to the Supported Software. In addition,Customer agrees and warrants to install any software for which SAP Support is delivered directly
by SAP on a separate technical installation from software that is supported by an SAP reseller("VAR Delivered Support').
Customer represents and warrants that the Schedule 1 contains an accurate and complete list of all software that Customer has
acquired from Reseller and is subject to SAP Support. Customer shall inform SAP promptly about any additional SAP software that
Customer has acquired from Reseller and is subject to SAP Support. SAP shall then be entitled to increase the fee for SAP Support to
include the additional software (including a retroactive increase). SAP shall have the same right if SAP learns that Customer failed to
promptly inform SAP of such additional purchase.
Under this Agreement, Customer only receives SAP Support; the licensing of and the fees for the Software themselves are not
contemplated under this Agreement. Under this Agreement, SAP grants a non-exclusive, non-transferrable, terminable license to new
releases of the Software and other software and materials provided as part of SAP Support outlined below ("SAP Support
Components")and only during the term of the EULA.
Licenses to SAP Support Components shall be subject to the terms of the EULA, except as follows and otherwise as stated in this
Agreement: (i) use of the SAP Support Components shall be limited to use with Software licensed under the EULA; (ii) such use shall
be limited solely to running Customer's internal business operations and to provide internal training and testing for such internal
business operations; (iii) Customer shall not use the SAP Support Components to provide services to third parties (e.g., business
process outsourcing,service bureau applications or third party training).
4. Order of SAP Support.The Customer herewith authorizes the Reseller to provide the Distributor with any information useful for
or required by the Distributor in order to complete the order for SAP Support. Furthermore, Customer authorizes Distributor to order the
support model chosen by it under Section 2 (Agreement on SAP Support) above (which is either SAP Enterprise Support or SAP
Standard Support)with SAP and to also provide SAP with a signed version of this Agreement.
5. Services To Be Performed. SAP will provide SAP Support as specified in this Agreement as well as in the applicable SAP
Support Schedule, incorporated and made a part hereof by reference. Customer is responsible for making the necessary internal
arrangements for the carrying out of SAP Support on a non-interference basis. Customer understands that SAP Support under this
Agreement only applies to the Supported Software as originally provided by SAP to Reseller via the Distributor from whom the Reseller
acquired the Software, excluding without limitation any modifications, add-ons or enhancements to the Software that have been
developed by the Distributor, Reseller or any third party.
For purposes of this Agreement and the delivery of SAP Support hereunder, "Enterprise Support Solutions" and "Standard Support
Solutions" as defined in the applicable SAP Support Schedule shall not include software sold by Reseller to Customer that is not
provided through Reseller's agreement with the Distributor and the distribution agreement between the Distributor with SAP. As used in
the SAP Support Schedule,references to"Licensee"shall mean Customer.
6. SAP Support Fees. Fees for SAP Support shall be paid annually in advance and shall be as specified above. After the Initial
Term (defined in Section 9), any limitations on increases to Fees for SAP Support are subject to Customer's compliance with the
Customer COE requirements specified in the applicable SAP Support Schedule.
SAP agrees that the fee for SAP Standard Support shall remain unchanged for the Initial Term and the first Renewal Term. After the
Initial Term and first Renewal Term, SAP reserves the right to increase Customer's Fee for SAP Standard Support hereunder (without
additional notice)from the prior year by the percentage increase in the Consumer Price Index(CPI), applied on a cumulative year-over-
year basis starting from either the date of this Agreement or the date of Customer's last Fee for SAP Standard Support increase,
whichever occurred later. CPI as used herein means "U.S. Consumer Price Index for all Urban Consumers, U.S. City Average - All
Items 1982-1984=100 Base for a twelve(12)month period prior to such increase as published by the Bureau of Labor Statistics".
SAP agrees that the fee for SAP Enterprise Support shall remain unchanged until December 31, 2016. Thereafter, the Fee for SAP
Enterprise Support is subject to change once during a calendar year upon ninety(90)days'notice to Customer.
Not raising fees in any given year or years is not a waiver of SAP's right to do so.
Fees for SAP Support will increase as additional Software is acquired.
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 2
DocuSign Envelope ID:85477DA5-OAE9-4F31-BE79-4378F4781A1E
Support Advisory Center access, Continuous Quality Checks, Go Live Checks and Enterprise Support Reports (each as may be
applicable and only as described in the SAP Support Schedule) will only be provided in the event Customer establishes a mission
critical deployment by certifying its Customer COE.
Customer acknowledges that SAP Solution Manager Enterprise Edition is available to all SAP Support customers to the extent stated in
the applicable SAP Support Schedule, but does currently interface only with selected Software products. In the event that at feast one
acquired Software product is supported by the SAP Solution Manager Enterprise Edition, the Customer will be required to install the
SAP Solution Manager Enterprise Edition and to utilize its capabilities. Remote Support Component must be utilised instead of SAP
Solution Manager Enterprise Edition if the licensed Software is supported by Remote Support Component.
7. Invoicing/Payment Terms. For the Initial Term,the Reseller will invoice and collect all fees for SAP Support from the Customer.
For the Renewal Term(s), SAP will directly invoice and collect from the Customer all fees for SAP Support. Fees for SAP Support are
invoiced before each Renewal Term.
All fees are in US Dollars. All payment terms are net thirty (30) days from date of invoice. Any fees not paid when due shall accrue
interest at the rate of 18% per annum, but not to exceed the maximum amount as allowed by law. However, the assertion of further
damages is not excluded.
8. Taxes. Fees and other charges described in this Agreement do not include federal, state or local sales, VAT, GST, foreign
withholding, use, property, excise, service, or similar taxes ("Tax(es)") now or hereafter levied, all of which shall be for Customer's
account. Direct pay permits or valid tax-exempt certificates must be provided to SAP prior to the execution of this Agreement. If SAP is
required to pay Taxes, Customer shall reimburse SAP for such amounts.Customer hereby agrees to indemnify SAP for any Taxes and
related costs,interest and penalties paid or payable by SAP.
9. Term. SAP Support shall commence as of the first day of the Sales Order Effective Date. "Initial Term"shall mean one year
from the Sales Order Effective Date.After the Initial Term and subject to the Agreement and SAP Support Schedule,SAP Support shall
automatically renew on each renewal date for the subsequent one year periods(the"Renewal Term(s)").
10. Proprietary Information.
10.1 SAP Proprietary Information
(a) Customer acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service
mark, copyright, and trade secret rights, in the SAP Proprietary Information are and shall remain in SAP and SAP AG and their
respective licensors. Customer acquires only the right to use the SAP Proprietary Information as stated in Section 2 below and does
not acquire any ownership rights or title in or to the SAP Proprietary Information and that of SAP's and SAP AG's respective licensors.
(b) Customer shall not copy,translate,disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise,
the source code from the object code of the Software provided in connection with the Software Sales Agreement or under this
Agreement.
(c) Customer shall not remove any proprietary,copyright,trademark,or service mark legend from any SAP Proprietary Information.
10.2 Protection of Proprietary Information. In order to protect the rights of SAP and its licensors and Customer in their respective
Proprietary Information, SAP and Customer agree to take all reasonable steps and the same protective precautions to protect the
Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall,
without the other party's prior written consent,disclose, provide,or make available any of the Proprietary Information of the other party
in any form to any person, except to its bona fide employees, officers, directors, or third parties whose access is necessary to enable
such party to exercise its rights hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party to
any third party, it will obtain from that third party a written acknowledgment that such third party will be bound by terms no less
restrictive than those specified in this Section 10 Wth respect to the Proprietary Information and naming SAP,or Customer, as the case
may be,as a third party beneficiary.
11. Work Product.
Customer agrees not to take any action that would limit SAP's independent development, sale, assignment, licensing or use of its own
Software,modifications or enhancements thereto.
SAP shall have the sole and exclusive right, title and ownership to any Work Product and all ideas, concepts, or other intellectual
property rights related in any way to the Work Product, techniques, knowedge or processes of the SAP Support services and
deliverables,whether or not developed for Customer.
12. No Warranty.
SAP AND ITS LICENSORS DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT EXCEPT
TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
13. Limitation of Liability.
ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR DAMAGES RESULTING FROM UNAUTHORIZED
USE OR DISCLOSURE OF THE PROPRIETARY INFORMATION AND SAP'S RIGHT TO COLLECT UNPAID FEES, UNDER NO
CIRCUMSTANCES SHALL SAP, ITS LICENSORS OR CUSTOMER BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR
ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID FOR THE SAP SUPPORT SERVICES HEREUNDER
DURING THE ONE(1)YEAR PERIOD PRECEDING THE EVENTS GIVING RISE TO THE CLAIM FOR DAMAGES, OR BE LIABLE IN
ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 3
DocuSign Envelope ID:85477DA5-OAE9-4F31-BE79-4378F4781AtE
PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSS,OR EXEMPLARY OR PUNITIVE DAMAGES.
14. General Provisions
14.1 Assignment. Customer may not, without SAP's prior written consent, assign, delegate, pledge or otherwise transfer this
Agreement,or any of its rights or obligations under this Agreement, or the SAP Proprietary Information,to any party,whether voluntarily
or by operation of law, including by way of sale of assets, merger or consolidation. SAP may assign, delegate, pledge or otherwise
transfer this Agreement or any of its rights or obligations thereunder(in whole or in part)to SAP AG and/or any of SAP AG's affiliates.
14.2 Partial Invalidity. If any provision of this Agreement is or becomes wholly or in part illegal, invalid or unenforceable, the illegality,
invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement,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 gaps.
14.3 Remedies and Waiver. The waiver by either party of a breach or default in any of the provisions of this Agreement by the other
party shall not be construed as a waiver of any succeeding breach or default of the same or other provisions; nor shall 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 shall 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.
14.4 Notices.Any notice or other communication under or in connection with this Agreement to any party must be made in writing. The
address details regarding notices or other communication may be changed by either Party by notifying the other Party in writing.
14.5 Independent Contractor. The relationship of SAP and Customer established by this Agreement is that of an independent
contractor.
14.6 Force Majeure. Any delay or non-performance of any provision of this Agreement (other than for the payment of amounts due
hereunder)caused by conditions beyond the reasonable control of SAP shall not constitute a breach of this Agreement, and the time for
performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing
such performance.
14.7 Governing law and jurisdiction. This Agreement and any claims (including any non-contractual claims) arising out of or in
connection with this Agreement are governed by Pennsylvania law to the exclusion of the international law of conflicts and the UN Sales
Convention.
14.8 Non-Disclosure. Customer shall not disclose the terms and conditions of this Agreement or the pricing to any third party except for
the Reseller and/or the Distributor. Neither party shall use the name of the other party in publicity, advertising, or similar activity,without
the prior written consent of the other, except that Customer agrees that SAP may use Customer's name in customer listings or as part
of SAP's marketing efforts.
14.9 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between SAP and
Customer,and all previous representations,discussions,and writings are merged in,and superseded by this Agreement.
14.10 Amendments. Any modification, amendment or supplement to this Agreement (including this Section 14.10) must be made in
writing.
14.11 Priority of Agreements. In the event of any inconsistencies between this Agreement and the SAP Support Schedules, this
Agreement shall take precedence over any SAP Support Schedule. Any purchase order or other document issued by Customer is for
administrative convenience only. In the event of any conflict between the provisions of this Agreement and any purchase order or other
document issued by the Customer, as well as the introduction of new terms by the Customer, the provisions of this Agreement shall
prevail and govern and any additional terms in the purchase order or other document shall be inapplicable.
15. Survival.Sections 10,11, 12, 13 and 14 shall survive any termination of this Agreement.
16. Replacement in Support Schedules
16.1 SAP Enterprise Support Schedule
In the introductory paragraph of the SAP Enterprise Support Schedule the following sentence will be deleted:
"In each instance in which provisions of this Schedule contradict or are inconsistent with the provisions of the Agreement including any
appendices,exhibits, order forms or other documents attached to or incorporated by reference to the Agreement,the provisions of this
Schedule shall prevail and govern."
16.2 SAP Standard Support Schedule
In the introductory paragraph of the SAP Standard Support Schedule the following sentence will be deleted:
"In each instance in which provisions of this Schedule contradict or are inconsistent with the provisions of the Agreement, including any
appendices,exhibits, order forms or other documents attached to or incorporated by reference to the Agreement,the provisions of this
Schedule shall prevail and govern."
17. Definitions for Support Schedules
The following definitions will apply to the SAP Support Schedules:
"Territory'means the territory for which the Software is sold by the Reseller to the Customer.
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 4
DocuSign Envelope ID:85477DA5-OAE9-4F31-BE79-4378F4781A1E
For Customer:
4;��
s))
Susan Alanis
(Name/s in print) Assist=t City Manager
(Title/s in print)
rb �
(Date)
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 5
CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration of this
contract, including ensuring all performance and
By:
L reporting requirements.
Name: _ usan Alanis
Title: Assistant City Manager
v �I 1�' 6By.
Date: 1 �Q Q�
3 Name: _ t e Streiffert
APPROVAL RECOMMENDED:
Title: Assistant Director,IT Solutions
APPROVED AS TO FORM AND LEGALITY:
By:
Name:
By:
Title: N e: _J B. S ong_
T' le: Assistant ty Attorney
ATTEST:
CONTRACT AUTHORIZATION:
M&C: N/A
By:
Date Approved: N/A
, — —
ame: _MV J ays r Form 1295 Certification No.: N/A
Title: City Secretary
C) �c
�C .r
rEXPS `
OFFICIAL RECORD
CITY SECRETARY
FT-WORMM,TX
Docu8iign Envelope ID:85477DA5-OAE9-4F31-BE79-4378F4781 Al E
SCHEDULE 1—SUPPORTED SOFTWARE
[Please include complete list of Supported Software resold by Reseller to Customer]
7008441-7018708-ENT: AP CRYSTAL SERVER (USER) FYM ENT SUPPORT
Qty.2
SAP Authorized Reseller Program—SAP Support Agreement enUS v 10.16.13 Page 6