SAP® BUSINESSOBJECTS™ LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SAP BUSINESSOBJECTS FOR THE SAP BUSINESSOBJECTS SOFTWARE ACCOMPANYING THIS AGREEMENT, WHICH MAY INCLUDE COMPUTER SOFTWARE, ASSOCIATED MEDIA, PRINTED MATERIALS AND ONLINE OR ELECTRONIC DOCUMENTATION (“SOFTWARE”). BEFORE CONTINUING WITH THE INSTALLATION OF THE SOFTWARE, YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT THAT FOLLOWS (“AGREEMENT”). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU MAY RETURN, WITHIN THIRTY (30) DAYS OF PURCHASE, THE SOFTWARE TO THE PLACE YOU OBTAINED IT FOR A FULL REFUND.
1. GRANT OF LICENSE. SAP BusinessObjects grants you a nonexclusive and limited license to use the Software products and functionalities for which you have paid the applicable fees solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. The Software is licensed, not sold, to you. If you acquired this product as a special offer or as a promotional license included with another SAP BusinessObjects product, additional restrictions apply as set forth in section 3.9 (“Promotional License”) below. If you acquired this product bundled or in combination with a third party product, you may only use the Product with the third party product as described in section 3.6 (“Restricted License”) below. This license does not apply to any other software program provided with the Software, including promotional software, which is governed by the online software license agreement included with that software. If you acquire or are provided with any directories, components, connectors, utilities, data, or other items from SAP BusinessObjects for use with the Software (the “Additional Technology”), your use of the Additional Technology shall be in accordance with the terms, conditions, obligations and restrictions of this Agreement. The term “Software” as used herein, shall be deemed to include the Additional Technology and Third Party Products.
“SAP BusinessObjects” is the Business Objects company from whom you are purchasing the Software or related services, either directly or indirectly through a reseller; or if no Business Objects company exists in your country, then Business Objects Software Limited.
2. INSTALLATION AND USE. You may install and use the Software only in the configuration and for the number of licenses acquired by you. You may also install non-production copies of the Software as is reasonably necessary for disaster recovery, emergency restart and backup, including, but not limited to making copies for such purposes for use at one or more disaster recovery sites. In order to exercise your rights to the Software under this License Agreement you must activate your copy of the Software in the manner described during the launch sequence. SAP BusinessObjects may control the number and type of licenses and the use of the Software by key codes.
3. LICENSE TYPES, AND DEFINITIONS.
3.1. Application License. An Application License permits you to install a single instance of the Software in a single or multi-server environment and to allow users with a NUL for such Software to access and use the Software. Each Application License is assigned to a single Deployment, and may not be shared among different Deployments.
3.2. Named User License (“NUL”). When the Software is licensed on a Named User basis, each individual end user must be specifically identified as the sole holder of a NUL. The sharing of the NUL by more than one individual is expressly prohibited. In addition, NUL(s) may not be transferred from one individual to another unless the original end user no longer requires, and is no longer permitted, access to the Software.
3.3. Concurrent Access License (“CAL”). When the Software is licensed on a Concurrent Access basis, the aggregate number of end users accessing the Software at any one time may not exceed the number of CALs you have obtained. CAL(s) are assigned to a particular Deployment, and may not be shared among different Deployments. When using Concurrent Access licenses, you may not utilize a program or system to cache or queue report requests.
3.4. Processor or CPU License. When the Software is licensed on a Processor or CPU basis the aggregate number of central processing units (“Processors”) running any Software components(s) (except as to the following components of Crystal Enterprise: the Web Connector, SDK, Report Publishing Wizard and report viewers) may not exceed the number of Processors or CPU licensed. A multi-core chip Processor with N processor cores shall be counted as follows: the first processor core in each physical CPU shall be counted as 1 Processor or CPU, and each incremental processor core in each physical CPU shall be counted as 0.5 Processor or CPU.
3.5. Server License. When the Software is licensed on a Server basis, the Software may be loaded onto a single computer with up to four (4) Processors or CPUs. A multi-core chip Processor with N processor cores shall be counted as follows: the first processor core in each physical CPU shall be counted as 1 Processor, and each incremental processor core in each physical CPU shall be counted as 0.5 Processor.
3.6. Subscription License. When the Software is licensed on a Subscription basis, you are granted a non-exclusive and non-transferable license to use the Software for a twelve-month term, renewable annually at Licensor’s then current rate or such other term as mutually agreed by the parties.
3.7. Restricted License. If you acquired the Software bundled or otherwise provided in combination with or for use with a third party product (OEM Application), you have acquired a Restricted License. You may use each licensed copy of the Software only in conjunction with the OEM Application with which it was provided. Accessing data that is not specifically created or used by the OEM Application is in violation of this license. If the OEM Application requires the use of a data mart or data warehouse, the Software may be used with the data mart or data warehouse only to access data created or processed by the OEM Application. If you acquired Crystal Xcelsius bundled or otherwise provided in combination with Planning Applications, you have acquired a Restricted License with respect to Crystal Xcelsius. You may use Crystal Xcelsius only in conjunction with the Planning Applications, and accessing data that is not specifically created or used by the Planning Applications is in violation of this license. Restricted Licenses may not be combined with unrestricted licenses in the same Deployment.
3.8. Development License. If you receive a Development License, you may use the number and type of licenses acquired only to develop or test Development. A Development License cannot be used in or transferred to a production environment.
3.9. Update License. If you received the Software as an update to a previously licensed product, your license to use the Software is limited to the aggregate number of licenses you have acquired for the previous product. If you choose to use the Software and the previous product simultaneously, the aggregate number of licenses used to access the Software and the previous product may not exceed the aggregate number of licenses you acquired for the previous product.
3.10. Promotional License. If you received the Software as a special offer or promotional license (“Promotional License”), you may only use the Promotional Licenses with a new Deployment. Promotional Licenses may not be added to or used with an existing Deployment or Project.
3.11. Evaluation/Not for Resale License. An Evaluation or Not For Resale License may be used only for the number and type of licenses specified and for the period specified on the Software packaging, ordering or shipping documentation. Upon expiration of such specified period, the Software associated with an Evaluation or Not For Resale license will not function unless Licensee has obtained applicable permanent license keys. If the ordering or shipping documentation specifies a particular project, the Software may be used only with that project. An Evaluation License may only be used for evaluation purposes and may not be used for production purposes. Notwithstanding any other provision of this Agreement, Software provided under an Evaluation or Not for Resale License are provided “AS-IS” without warranty of any kind, express or implied. An Evaluation License or Not for Resale License may be terminated by SAP BusinessObjects upon written notice at any time.
3.12. Definitions. “Deployment” means a single installation of one of the following Software modules: Repository, Security Domain, Central Management Server (“CMS”) or CMS Cluster. “Project” means one or more Deployments (a) providing the same or substantially similar reports; (b) utilizing the same or a substantially similar custom application interface; or (c) used with applications consisting of related modules or components.
3.13. Third Party Products. “Third Party Product” means any product listed on SAP BusinessObjects’ Third Party Price List, or otherwise specified as a third party product on the ordering documentation or the SAP BusinessObjects product documentation. If included with the Third Party Product, use thereof is solely governed by the terms and conditions of the shrink-wrap or click-wrap agreement accompanying such Third Party Product (“Third Party End User Agreement”). All Third Party Products are restricted for use solely in conjunction with the particular Software intended by Licensor to be used therewith or with which SAP BusinessObjects provides the Third Party Product, and may not be used with any other SAP BusinessObjects products, or on a stand alone basis
4. PRODUCT SPECIFIC USE RIGHTS. Additional terms relating to your use of the Software are found at www.sap.com/company/licenses/product-use-rights, which are incorporated herein by this reference. You acknowledge and agree that these additional terms form an integral part of this Agreement.
5. OWNERSHIP. SAP BusinessObjects and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to retain the Software, the terms of this Agreement as well as any Software benchmark or similar tests (whether performed by you, SAP BusinessObjects or any third party) in confidence and prevent them from unauthorized disclosure or use except with SAP BusinessObjects’ prior written consent. SAP BusinessObjects and/or its suppliers reserve all rights not expressly granted to you. SAP BusinessObjects’ suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein.
6. COPYRIGHT. The Software is copyrighted by SAP BusinessObjects and/or its suppliers and is protected by United States copyright and patent laws and international treaty provisions. You may not copy the Software except: (a) to provide a non-production backup copy; or (b) to install the Software components licensed by you, as set forth in Sections 2, on to computers as part of executing the Software. Solely with respect to the documentation included with the Software, you may make a reasonable number of copies (either in hardcopy or electronic form), provided that such copies shall be used only by licensed end users in conjunction with their use of the Software and are not republished or distributed to any third party. You must reproduce and include all copyright notices, trademarks or other proprietary legends of SAP BusinessObjects and its suppliers on any copy of the Software or documentation made by you. Any and all other copies of the Software made by you are in violation of this License Agreement.
7. RESTRICTIONS. Except as expressly permitted by this License Agreement or by applicable law you may not: (a) lease, loan, resell, assign, sublicense, or otherwise distribute the Software or any of the rights granted by this License Agreement without the express written permission of SAP BusinessObjects; (b) use the Software to provide or operate Application Service Provider (ASP), service bureau, marketing, third party training, outsourcing services, or consulting services, or any other commercial service related to the Software such as develop training materials; (c) modify (even for purposes of error correction), adapt, or translate the Software or create derivative works therefrom except as necessary to configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (d) in any way reverse engineer, disassemble or decompile the Software or the .RPT report file format (including reverse compiling to ensure interoperability) or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (e) use the Software to develop a product which is competitive with any SAP BusinessObjects product offerings; (f) use the Software to develop a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of SAP BusinessObjects; (g) use unauthorized keycode(s) or distribute keycode(s); (h) disclose any Software benchmark results to any third party without SAP BusinessObjects’ prior written approval, (i) permit third party access to, or use of the Software except as expressly permitted herein, and (j) distribute or publish keycode(s). If you wish to exercise any right to reverse engineer to ensure interoperability in accordance with applicable law, you shall first provide written notice to SAP BusinessObjects and permit SAP BusinessObjects, at its discretion, to make an offer to provide information and assistance reasonably required to ensure Software interoperability with your other products for a fee to be mutually agreed upon (if any).
8. LIMITED WARRANTY AND REMEDY.
(a) Excluding Third Party Products, SAP BusinessObjects warrants to you that: (i) for a period of six (6) months from delivery of the Software, the Software will substantially conform to the functional description set forth in its standard documentation; and (ii) for a period of six (6) months from delivery the physical media (e.g., CD-ROM, DVD, and Electronic Software Distribution) will be free from defects in materials and workmanship. Any implied warranties on the Software and Third Party Products and media are limited to thirty (30) days from delivery, to the extent such warranties cannot be disclaimed under Section 8(c) below. The above warranties specifically exclude defects resulting from accident, abuse, unauthorized repair, modifications, or enhancements, or misapplication. SAP BusinessObjects does not warrant that use of the Software will operate uninterrupted or error free. Delivery of additional copies of, or revisions or upgrades to, the Software, including releases provided under Support Services, shall not restart or otherwise affect the warranty period.
(b) Your exclusive remedy for breach of the above-stated limited warranty shall be, at SAP BusinessObjects' option, either: (i) correction or replacement of the Software with product(s) which conform to the above-stated limited warranty; or (ii) return of the price paid for the Software and termination of this License Agreement with respect to those copies not in compliance. Such remedy shall be provided to you by SAP BusinessObjects only if you give SAP BusinessObjects written notice of any breach of the above-stated limited warranty, within six (6) months of delivery of the Software.
(c) EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS SECTION 8, SAP BUSINESSOBJECTS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR (IV) AGAINST HIDDEN DEFECTS. Some states/jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you, and you may have other legal rights that vary from state to state or by jurisdiction. YOU ACKNOWLEDGE THAT IN ENTERING INTO THIS AGREEMENT, YOU HAVE RELIED UPON YOUR OWN EXPERIENCE, SKILL AND JUDGEMENT TO EVALUATE THE SOFTWARE AND THAT YOU HAVE SATISFIED YOURSELF AS TO THE SUITABILITY OF THE SOFTWARE TO MEET YOUR REQUIREMENTS.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event will SAP BUSINESSOBJECTS or its DISTRIBUTORS, SUPPLIERS or aFFILIATES be liable TO you OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUES, LOSS OR INACCURANCY OF ANY DATA, OR COST OF SUBSTITUTE GOODS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF SAP BUSINESSOBJECTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAP BUSINESSOBJECTS AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO YOU FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE SOFTWARE LICENSE FEES PAID BY YOU FOR THE SOFTWARE OR THE FEES PAID BY YOU FOR THE SERVICE DIRECTLY CAUSING THE DAMAGES. SAP BUSINESSOBJECTS WILL NOT BE LIABLE FOR DAMAGES FROM THIRD PARTY products. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. Some states/jurisdictions do not allow the limitation or exclusion of liability IN CERTAIN CIRCUMSTANCES INCLUDED IN THIS SECTION, so the above limitation may not apply to you ONLY IN SUCH CIRCUMSTANCES.
10. SUPPORT SERVICES. If you purchased Support Services, SAP BusinessObjects will provide to you product support services for the Software in accordance with SAP BusinessObjects then current Support Services terms and conditions. If you purchase Support Services for the Software, you must purchase Support Services for all authorized copies of said Software in your possession. Notwithstanding the foregoing, SAP BusinessObjects does not provide Support Services for Third Party Products.
12. AUDIT. During the term of this Agreement and for three (3) years after termination or expiration, SAP BusinessObjects may audit, upon reasonable notice to you and at SAP BusinessObjects’ expense, your books and records to determine your compliance with this Agreement. In the event any such audit reveals that you have underpaid SAP BusinessObjects by an amount greater than five percent (5%) of the amounts due SAP BusinessObjects in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as SAP BusinessObjects may have, you shall pay or reimburse to SAP BusinessObjects the cost of the audit.
13. GENERAL. Except as otherwise preempted by United States federal law, this Agreement is governed by the laws of the State of New York, United States, without reference to conflict of laws provisions and the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement. This Agreement constitutes the entire agreement between you and SAP BusinessObjects, and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be modified except by an instrument in writing duly signed by an authorized representative of each of the parties. If you are acquiring the Software on behalf of an entity, you represent and warrant that you have the legal capacity to bind such entity to this Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this Agreement. In the event you and SAP BusinessObjects have executed a mutually agreed upon a separately Master Software License Agreement (“MSLA”) and acquired the Software pursuant to such MSLA, the terms of the MSLA may govern your use of the Software and the terms of this Agreement shall be superseded by the MSLA. The product name for the Software is a trademark or registered trademark of SAP BusinessObjects. Should you have questions concerning this License Agreement, please contact your local SAP BusinessObjects sales office or authorized reseller, or write to: SAP BusinessObjects, Attn: Contracts Department, 3410 Hillview Ave., Palo Alto, CA 94304, USA.
14. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. Manufacturer is SAP BusinessObjects, 3410 Hillview Ave., Palo Alto, CA 94304, USA.
15. EXPORT CONTROLS. The use of this Software is subject to the U.S. Export Administration Regulations. You agree to the following: (a) you are not a citizen, national or resident of, and am not under the control of, the government of Cuba, Iran, North Korea, Syria, Sudan nor any other country to which the United States has prohibited export; (b) you will not export or re-export the Software, directly or indirectly, neither to the above mentioned countries nor to citizens, nationals or residents of those countries; (c) you are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders; (d) you will not export or re-export the Software, directly, or indirectly, to persons on the above mentioned lists; and (e) you will not use the Software for, and will not allow the Software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction. For more information, see www.sap.com/company/export.
16. ORDER TERMS. Purchase orders conforming to SAP BusinessObjects purchase order requirements may be accepted from qualified companies. All pre-printed terms of any purchase order not approved in writing by SAP BusinessObjects shall have no effect. Payment terms are net-30 days from date of invoice. FOB SAP BusinessObjects facility. SAP BusinessObjects specifically disclaims price guarantees of any kind. You are responsible for payment of all applicable sales, use, consumption, VAT, GST, and other taxes and all applicable export and import fees, custom duties and similar charges, excluding taxes based on SAP BusinessObjects net income.
17. COUNTRY UNIQUE TERMS. If you purchased the Software in any territory specified below (the “Local Territory”), this section sets forth specific provisions as well as exceptions to the above terms and condition. To the extent any provision applicable to the Local Territory (the “Local Provision”) set forth below is in conflict with any other term or condition in this agreement, the Local Provision will supersede such other term or condition with respect to any licenses purchased in the Local Territory.
Australia:
a) Limited Warranty and Remedy (Section 8): The following is added:
The warranties specified in this Section are in addition to any rights You may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation.
b) Limitation of Liability (Section 9): The following is added:
To the extent permitted by law, where SAP BusinessObjects is in breach of a condition or warranty implied by the Trade Practices Act 1974 or the equivalent State or Territory legislation which cannot be excluded, SAP BusinessObjects’ liability is limited, at SAP BusinessObjects’ sole election: (i) in case of the Software: (a) (i) to repair or replace the goods, or the supply of equivalent goods, or (ii) payment of the cost of such repair or replacement or of acquiring equivalent goods; and (ii) in case of Support Services: (x) re-supply of the Support Services; or (y) the cost of having the services supplied again. In calculating SAP BusinessObjects’ aggregate liability under this Agreement, the amounts paid or the value of any goods or services replaced, repaired, or supplied by SAP BusinessObjects pursuant to this paragraph shall be included.
c) General (Section 13): The following replaces the first sentence of this section:
This Agreement is governed by the laws of the State or Territory in which you acquired the Software, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto.
Belgium and France
a) Limitation of Liability (Section 9): The following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. SAP BusinessObjects’ liability for any damages and losses that may arise as a result of the performance of its obligations in connection with this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if SAP BusinessObjects is at fault), for a maximum amount equal to the charges You paid for the Software that has caused the damages. This limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which SAP BusinessObjects is legally liable.
2. UNDER NO CIRCUMSTANCES IS SAP BUSINESSOBJECTS, OR ANY OF ITS SOFTWARE DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by SAP BusinessObjects but also to the activities performed by its suppliers and Software developers, and represents the maximum amount for which SAP BusinessObjects as well as its suppliers and Software developers, are collectively responsible. This limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which SAP BusinessObjects is legally liable.
b) General (Section 13): The following replaces the first sentence of this section:
This Agreement is governed by the laws of country in which you acquired the Software, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto.
Brazil
a) Warranty (Section 8): The following replaces the terms of this section in its entirety:
(a) SAP BusinessObjects warrants to you that: (i) for a period of six (6) months from delivery of the Software, the Software will substantially conform to the functional description set forth in the standard documentation accompanying the Software; and (ii) for a period of six (6) months from delivery the physical media (e.g., CD-ROM), such physical media will be free from defects in materials and workmanship. The above warranties specifically exclude defects resulting from accident, abuse, unauthorized repair, modifications, or enhancements, or misapplication. You understand and agree that the state of the art does not allow the development of bug free of software. As a consequence SAP BusinessObjects cannot warrant that the Software will operate uninterrupted or error free. Delivery of additional copies of, or revisions or upgrades to, the Software, including releases provided under Support Services, shall not restart or otherwise affect the warranty period.
(b) Your exclusive remedy for breach of the above-stated limited warranty shall be, at SAP BusinessObjects' option, either: (i) correction or replacement of the Software with product(s) which conform to the above-stated limited warranty; or (ii) return of the price paid for the Software and termination of this License Agreement with respect to those copies not in compliance. Such remedy shall be provided to you by SAP BusinessObjects only if you give SAP BusinessObjects written notice of any breach of the above-stated limited warranty, within thirty (30) days of delivery of the Software.
(c) LICENSEE UNDERSTANDS AND AGREES THAT THE STATE OF THE ART DOES NOT ALLOW THE DEVELOPMENT OF BUG FREE SOFTWARE AND THAT THE SOFTWARE HAS BEEN DEVELOPED FOR THE USE OF BUSINESS SOFTWARE GENERAL CUSTOMERS. THEREFORE, EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS SECTION 7, SAP BUSINESSOBJECTS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR (IV) AGAINST HIDDEN DEFECTS. Some states/jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you, and you may have other legal rights that vary from state to state or by jurisdiction. LICENSEE ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT, LICENSEE HAVE RELIED UPON LICENSEE’S OWN EXPERIENCE, SKILL AND JUDGEMENT TO EVALUATE THE SOFTWARE AND THAT LICENSEE HAS SATISFIED ITSELF AS TO THE SUITABILITY OF THE SOFTWARE TO MEET LICENSEE’S REQUIREMENTS.
b) Limitation of Liability (Section 9): the following replaces the terms of this section in its entirety:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, in no event will SAP BUSINESSOBJECTS or its DISTRIBUTORS, SUPPLIERS or aFFILIATES be liable TO you OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OR INACCURANCY OF ANY DATA, OR COST OF SUBSTITUTE GOODS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF SAP BUSINESSOBJECTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAP BUSINESSOBJECTS AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO LICENSEE FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE SOFTWARE LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE OR THE FEES PAID BY LICENSEE FOR THE SERVICE DIRECTLY CAUSING THE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. LICENSEE FURTHER ACKNOWLEDGES THAT THE LIMITATIONS OF THIS SECTION ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THE PRICING AND OTHER TERMS SET FORTH IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
c) General (Section 13) The following replaces the word “New York”:
Brazil
Germany and Austria
a) Warranty (Section 8): The following replaces the terms of this section in its entirety:
SAP BusinessObjects warrants that the Software provides the functionalities set forth in the associated documentation (“Documented Functionalities”) for the Limited Warranty Period following receipt of the Software when used on the recommended hardware configuration. Limited Warranty Period means one year if you are a business user and two years if you are not a business user. Non-substantial variation from the Documented Functionalities does not establish any warranty rights. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE PROVIDED TO YOU FREE OF CHARGE (FOR EXAMPLE, UPDATES, PRE-RELEASE, EVALUATION, OR NFR) OR SOFTWARE THAT HAS BEEN ALTERED BY YOU, TO THE EXTENT SUCH ALTERATION CAUSED A DEFECT. To make a warranty claim, you must return, at SAP BusinessObjects expense, the Software and proof of purchase to the company from whom you obtained it. If the functionalities of the Software vary substantially from the agreed upon functionalities, SAP BusinessObjects is entitled, by way of re-performance and at is own discretion, to repair or replace the Software. If that fails, you are entitled to a reduction of the purchase price or to cancel the purchase agreement.
b) Limitation of Liability (Section 9): the following paragraph is added to this Section:
The limitations and exclusions specified in this Section will not apply to damages caused by SAP BusinessObjects’ intentional or by gross negligence. In addition, SAP BusinessObjects shall be responsible up to the amount of the typically foreseeable damages from any damage which has been caused by SAP BusinessObjects or its agents due to the slightly negligent breach of a material contractual duty. This limitation of liability shall apply to all damage claims, irrespective of the legal basis there of and in particular, to any pre-contractual or auxiliary contractual claims. This limitation of liability shall not, however, apply to any mandatory statutory liability under the product liability act nor to any damage which is caused due to the breach of an express warranty to the extent the express warranty was intended to protect you from the specific damage incurred. This clause shall not be intended to limit liability where the extent of liability is provided by mandatory law.
c) General (Section 13): The following replaces the first sentence of this section:
This Agreement is governed by the laws of country in which you acquired the Software, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto.
italy
a) Limitation of Liability (Section 9): the following replaces the terms of this section in its entirety:
Apart from damages arising out of gross negligence or willful misconduct for which SAP BusinessObjects may not limit its liability, SAP BusinessObjects’ liability for direct and indirect damages related to the original or further defects of the Software, or related to the use or the nonuse of the Software or related to any case whatsoever for breach of the Agreement, shall be limited to the fees paid by you to SAP BusinessObjects for the Software or for the part of the Software upon which the damages were based.
b) General (Section 13): The following replaces the first sentence of this section:
This Agreement is governed by the laws of country in which you acquired the Software, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto.
United Kingdom
c) General (Section 13): The following replaces the first sentence of this section:
This Agreement is governed by the laws of England and Wales, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto. Notwithstanding any other provision in this Agreement, nothing in this Agreement shall create or confer (whether expressly or by implication) any rights or other benefits whether pursuant to the Contracts Rights of Third Parties) Act 1999 or otherwise in favour of any person not a party hereto.
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