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"). By clicking "I Accept", "I Agree" (or clicking a similar expression of acceptance) or by attempting to access or use the SAP Afaria Cloud services made available by SAP with the SAP Afaria Cloud Service (collectively, the "Service
") and other materials that accompany the Service ("SAP Materials
"), You agree that this Agreement forms a legally binding agreement between You ("You
" or "Your
") and SAP AG, for and on behalf of itself and its subsidiaries and affiliates (as defined in Section 15 of the German Stock Corporation Act) and You agree to be bound by all of the terms and conditions stated in this Agreement. If You are trying to access the Service or SAP Materials on behalf of Your employer or as a consultant or agent of a third party (either "Your Company
"), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the terms of this Agreement and everywhere in this Agreement that refers to ‘You' or ‘Your' shall also include Your Company. If You do not agree to these terms, do not click "I Accept", and do not attempt to access or use the Service or SAP Materials. SAP may change the terms of this Agreement upon posting them to the Service or the website through which You access the Service, and Your continued use of the Service constitutes Your acceptance of the changed terms of this Agreement.
- YOUR RIGHTS TO USE THE SERVICE. SAP shall make the Service and SAP Materials available to You during the term of this Agreement to remotely access and use the Service solely for Your own internal personal use for non-productive testing and evaluation as permitted by this Agreement and the Service documentation made available by SAP ("Documentation"). The right to use the Service is worldwide, with the exception of those countries listed on
http://www.sap.com/company/legal/index.epx and subject to applicable export control laws.
- WHAT'S INCLUDED. The Service includes web-based access to a solution portal containing an application catalog and the ability to implement application security policies through post compilation application wrapping, web-based access to the Afaria Administrative Console for device administration and security functions, web-based access to the Afaria Self Service Portal for Device Enrollment, Afaria Package server for software deployment, web-based access to Business Objects Web Intelligence and Explorer for web-based analytics and SAP Mobile BI for mobile analytics which can be accessed by You and any other features SAP may add during the term of this Agreement.
- RESTRICTIONS. This license is limited to non-productive testing and evaluation for management of ten mobile devices using the Service, and access by one (1) administrative and reporting user. This license may not be transferred by You. SAP has no obligation to make any software or other SAP Materials available for use by You in physical form; use of the Service and SAP Materials is limited to remote access via a website made available by SAP. You shall not sublicense, license, sell, lease, rent, outsource or otherwise make the Service available to third parties. You shall be responsible for the acts and omissions of anyone accessing the Service with Your access credentials as if they were Your acts and omissions. SAP may limit storage for Your Content without notice to You. In addition, SAP has no obligation to include or remove any functionality from the Service in any future version or in any SAP standard product. You may not access or use the Service if you are a competitor of SAP and You may not access or use the Service in order to develop a competing product or service.
- INTELLECTUAL PROPERTY. You shall not remove notices and notations in the Service that refer to copyrights, trademark rights, patent rights and other intellectual property rights. SAP or its licensors own all right, title and interest in any and all copyrights, trademark rights, patent rights and other intellectual property or other rights in the Service and SAP Materials, and any improvements, design contributions or derivative works conceived or created by either You or SAP in or to the Service or SAP Materials. Except for the limited rights expressly granted herein, this Agreement does not transfer from SAP any proprietary right or interest in the Service or SAP Materials. All rights not expressly granted to You in this Agreement are reserved by SAP and its licensors.
- ACCEPTABLE USE. When using the Service, You shall not, and shall ensure that any other user accessing the Service under your account ("End User") does not: (a) translate, decompile, reverse-engineer or otherwise modify any parts of the Service (except as described and permitted in the Documentation) (b) transmit any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any entity; (d) interfere with or disrupt the SAP software or SAP systems used to host the Service, or other equipment or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service made known to You; (e) use the Service in the operation of a service bureau, outsourcing or time-sharing service; (f) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or other similar item (other than a "bookmark" from a Web browser), to the Service, or any part thereof; (g) circumvent the user authentication or security of the Service or any host, network, or account related thereto; (h) use any application programming interface to access the Service other than those made available by SAP and described and permitted in the Documentation; (i) make any use of the Service that violates any applicable local, state, national, international or foreign law or regulation; or (j) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, You for access to the Service.
- OTHER COMPANIES' WEB SITES. The Service may contain links to external Web sites (including embedded widgets or other means of access) and information provided on such external websites by SAP partners and third-party service providers. SAP shall not be responsible for the contents of any linked Web site, or any changes or updates to such sites. You further agree that SAP shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any content, goods or services made available on the Service by another user or through any linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog in the Service, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content.
- THIRD-PARTY CONTENT. The Service may include content provided by third parties including other users of the Service ("Content") for use in conjunction with the Service. This Content is provided "as is", and SAP makes no warranty as to the accuracy or completeness of such Content. You use such Content at Your own risk, and SAP shall have no liability to You or any third party based on Your use of or reliance on such Content.
- COMPLIANCE WITH THIS AGREEMENT. SAP shall be entitled to monitor Your compliance with the terms of this Agreement, and, SAP may utilize the information concerning Your use of the Service to improve SAP products and services and to provide You with reports on Your use of the Service.
- CHANGES TO THE SERVICE. SAP may change or modify the Service at any time. Your sole recourse is termination of this Agreement.
- YOUR CONTENT. By submitting, posting or displaying content or data (including content or data provided by End Users) ("Your Content") on or through the Service, You hereby grant SAP a worldwide, sublicensable, non-transferable, non-exclusive, terminable, limited license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute Your Content for the sole purpose of enabling SAP to provide You with the Service in accordance with this Agreement, including making Your Content available to other users of the Service that you authorize to view Your Content. You are responsible for entering Your Content into the Service and You are responsible for the maintenance of Your Content. You shall ensure that Your Content is free of all viruses, Trojan horses, and malicious code which could harm the systems or software used by SAP or its subcontractors to provide the Service. SAP may use the information or data you submit through the Service or in any other form to create aggregated statistics of usage of the Service. Such aggregated statistics may be shared by SAP with other users of the Service or to the public. Such aggregated statistics will not identify You or Your Company.
- PRIVACY OF END USERS. You may have the ability to access, monitor, use, or disclose content, data and materials submitted by End Users through the Service. You will protect the privacy and legal rights of End Users under all applicable laws and regulations, which includes a legally adequate privacy notice
communicated from You.
- PUBLIC SOFTWARE. You may not use, and shall not permit any End Users to use, any Public Software in connection with the Service in any manner that requires, pursuant to the license applicable to such Public Software, that any SAP software applications or other materials be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. "Public Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) the GNU General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (b) The Artistic License (e.g., PERL), (c) the Mozilla Public License, (d) the Netscape Public License, (e) the Sun Community Source License (SCSL), (f) the Sun Industry Standards License (SISL), (g) the BSD License and (h) the Apache License.
- TERM AND TERMINATION. The term of this Agreement shall begin on the date you first access the Service and shall end upon the earlier of the date that is thirty (30) days thereafter or the termination by either party. You may terminate this Agreement at any time during the term upon written notice to SAP. Your failure to access the Service for a period of fifteen days will be deemed a termination of this Agreement by You. SAP may terminate this Agreement at any time upon notice to You, which may include notice by email. SAP may suspend Your access to the Service or remove all or part of Your Content from the Service at any time in order to protect SAP's or its customers' business interests if, in SAP's sole judgment, Your use of the Service or Your Content violate or misappropriate the rights of any third party or violate any applicable law or regulation, or may result in harm to SAP, its customers, vendors or their systems. Either party may terminate this Agreement upon notice to the other party (including via email) in the event the other party breaches an obligation under this Agreement. Upon termination of the Agreement, You will no longer have access to Your Content and it will not be retained by SAP unless SAP is required to retain it under applicable law or legal process. SAP offers no migration of Your Content to any generally available version of the Service.
- SUPPORT. Under this Agreement SAP does not provide any support services for the Services.
LIMITATION OF LIABILITY:
- If You are located outside the US or Canada: AS THE SERVICE AND SAP MATERIALS ARE PROVIDED TO YOU FREE OF CHARGE, SAP DOES NOT GUARANTEE OR WARRANT ANY FEATURES OR QUALITIES OF THE SERVICE OR SAP MATERIALS OR GIVE ANY UNDERTAKING WITH REGARD TO ANY OTHER QUALITY. NO SUCH WARRANTY OR UNDERTAKING SHALL BE IMPLIED BY YOU FROM ANY DESCRIPTION IN THE SERVICE, SAP MATERIALS OR ANY AVAILABLE DOCUMENTATION OR ANY OTHER COMMUNICATION OR ADVERTISEMENT. IN PARTICULAR, SAP DOES NOT WARRANT THAT THE SERVICE WILL BE AVAILABLE UNINTERRUPTED, ERROR FREE, OR PERMANENTLY AVAILABLE. ALL WARRANTY CLAIMS ARE SUBJECT TO THE LIMITATION OF LIABILITY SECTION BELOW.
- If You are located in the US or Canada: THE SERVICE AND SAP MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGATIONS WHATSOEVER. SAP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND CONDITIONS OF MERCHANTABLE QUALITY, WHETHER ARISING BY STATUTE OR IN LAW OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of certain damages, so the above exclusions may not apply to You.
THIRD PARTY CLAIMS. You shall indemnify and hold SAP harmless from third party claims arising from or related to (i) any use of the Service (a) in breach of this Agreement; or (b) in violation of any applicable law or regulation; or (ii) an allegation that Your Content or Your use of the Service in violation of this Agreement violates, infringes or misappropriates the rights of a third party. The foregoing shall apply regardless of whether such damage is caused by Your conduct and/or Your End Users or by the conduct of a third party using Your access credentials. The foregoing is, however, conditional upon SAP (i) notifying You thereof in writing and in detail without undue delay; (ii) authorizing You to conduct any judicial and extrajudicial proceedings with such third party on its own; and (iii) providing You, at Your expense, with any reasonable assistance so that You can defend against the claim. You are permitted to fully control the defense and any settlement of any such claim as long as such settlement does not include a financial obligation on SAP. In the event SAP declines Your proffered defense, or otherwise fails to cede full control of the defense to Your designated counsel, then SAP waives Your obligations under this Section. SAP shall fully cooperate in the defense of such claim and may appear, at its own expense, through counsel of its own choosing.
DATA PRIVACY. You and SAP shall comply with applicable data protection laws and regulations. You agree not to submit any personal data to the Service except as required for your registration. In case of contractual data processing or transfer of personal data outside the EU, You must contact SAP to execute a written agreement containing adequate regulations to protect the individuals' privacy and comply with EU data protection laws.
CONFIDENTIALITY. Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other party shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential, provided each party may disclose Confidential Information to individuals whose access is necessary to enable it to exercise its rights hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein "reasonable steps" means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
- If You are located outside the US or Canada: IRRESPECTIVE OF THE LEGAL REASONS, SAP SHALL ONLY BE LIABLE FOR DAMAGES UNDER THIS AGREEMENT IF SUCH DAMAGE (I) CAN BE CLAIMED UNDER THE GERMAN PRODUCT LIABILITY ACT OR (II) IS CAUSED BY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF SAP OR (III) CONSISTS OF PERSONAL INJURY OR DEATH CAUSED BY THE WILLFUL MISCONDUCT OR NEGLIGENCE OF SAP OR (IV) RESULTS FROM A SLIGHTLY NEGLIGENT BREACH BY SAP OF A SIGNIFICANT CONTRACTUAL OBLIGATION (IN WHICH CASE, HOWEVER, SAP'S LIABILITY SHALL BE LIMITED TO SUCH DAMAGES, WHICH ARE TYPICAL FOR THIS TYPE OF AGREEMENT AND PREDICTABLE AT THE POINT IN TIME OF ITS COMING INTO FORCE). IN ALL OTHER CASES, NEITHER SAP NOR ITS EMPLOYEES, AGENTS AND SUBCONTRACTORS SHALL BE LIABLE FOR ANY KIND OF DAMAGE OR CLAIMS HEREUNDER.
- If You are located in the US or Canada: IN NO EVENT SHALL SAP BE LIABLE TO YOU, YOUR COMPANY OR TO ANY THIRD PARTY FOR ANY DAMAGES IN AN AMOUNT IN EXCESS OF $100 ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SERVICE OR SAP MATERIALS, OR AS A RESULT OF ANY DEFECT IN THE SERVICE. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST SAP, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE. YOUR SOLE REMEDY IN THE EVENT OF BREACH OF THIS AGREEMENT BY SAP OR FOR ANY OTHER CLAIM RELATED TO THE SERVICE SHALL BE TERMINATION OF THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL SAP AND ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES.
- Exclusions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
- Publicity. 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 You agree that SAP may use Your name and corporate logo in customer listings or as part of SAP's
marketing efforts (including without limitation reference calls and stories, press testimonials, site visits, SAPPHIRE participation) at times mutually agreeable to the parties. SAP will make reasonable efforts to avoid having the reference activities unreasonably interfere with Your business.
- Definition. "Confidential Information" means, with respect to SAP, all information which SAP protects against unrestricted disclosure to others, including but not limited to: (a) the Service, including, without limitation, the following information regarding the Service: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Service; (ii) benchmark results, program listings, data structures, logic diagrams, functional specifications, file formats; and (iii) system infrastructure, security/architecture design and/or operations processes (iv) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Service; (b) the research and development or investigations of SAP; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to SAP subject to an applicable confidentiality obligation to such third party). With respect to You, "Confidential Information" means Your Content.
- Your Feedback. You may provide, or SAP may solicit, input regarding the Service, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Service or any other SAP site, service or product, or input as to whether You believe SAP's development direction is consistent with Your business and IT needs, the technology marketplace in general, and the like (collectively "Feedback"). You acknowledge and agree that any information disclosed by SAP during discussions related to Feedback shall be considered SAP Confidential Information and shall be protected from disclosure in accordance with the terms of this Agreement. In order for SAP to utilize such Feedback, You hereby grant to SAP a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license, with the right to sublicense to SAP's licensees and customers, under Your relevant intellectual property rights, to use, publish, and disclose such Feedback in any manner SAP chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of SAP's and its sublicensees' products or services embodying Feedback in any manner and via any media SAP chooses, without reference to the source. SAP shall be entitled to use Feedback for any purpose without restriction or remuneration of any kind with respect to You and/or Your representatives. You acknowledge that the information related to the Service disclosed by SAP under this Agreement is only intended as possible strategies, developments, and functionalities of the Service and is not intended to be binding upon SAP to any particular course of business, product strategy, and/or development.
Export. The Service, Documentation and other SAP Materials are subject to the export control laws of various countries, including without limitation the laws of the United States and Germany. You will not submit the Service, Documentation or other SAP Materials to any government agency for licensing consideration or other regulatory approval without the prior written consent of SAP, and will not export the Service, Documentation and SAP Materials to countries, persons or entities prohibited by such laws. You shall also be responsible for complying with all applicable governmental regulations of the country where You reside or Your Company is registered, and any foreign countries with respect to the use of the Service, Documentation or other SAP Materials.
MISCELLANEOUS. This Agreement, along with the Afaria Cloud Privacy Statement, constitutes the complete and exclusive statement of the agreement between SAP and You related to the subject matter hereof, and supersedes all prior written and oral contracts, proposals and other communications between the parties relating to the subject matter. Oral agreements do not exist. You may not assign or otherwise transfer any of its rights under this Agreement without SAP's prior written consent. If any provision of this Agreement proves to be invalid, this will not affect any other provision of this Agreement. The waiver by either party of any of its rights hereunder shall not be construed as a waiver of any subsequent breach. SAP's performance shall be excused under this Agreement to the extent its failure to perform is caused by events beyond its reasonable control.
If You are located in mainland China ("China"), You acknowledge and accept that the Service is provisioned at the location of SAP's data center outside China, by non-Chinese entities, and it is solely Your obligation to ensure use of the Service complies with Chinese laws. Notwithstanding anything else in this Agreement, (i) You are solely responsible for obtaining Internet connection to the Service from within China and (ii) SAP is not providing any form of telecommunication service under the Agreement (and any representation or warranty to such effect is disclaimed).
You agree that SAP may perform its obligations hereunder with personnel of SAP or any of its affiliates (each, a "Client Entity" and, collectively, "Client Entities") or with subcontractors of Client Entities. SAP shall be solely responsible for the performance of its obligations under this Agreement, whether or not performed, in whole or part, by Client, or any other Client Entity, or any subcontractor of any Client Entity. You shall have no recourse against, and shall bring no claim against, any other Client Entity or any subcontractor or vendor of any Client Entity, including third party infrastructure providers, or any member, shareholder, director, officer, manager or employee of any Client Entity or any subcontractor of any Client Entity with respect to any liability or obligations for which SAP is responsible under this Agreement.
- If You are located outside the US or Canada: This Agreement is governed by and construed in accordance with the laws of Germany. You and SAP agree to submit to the exclusive jurisdiction of, and venue in, the courts of Karlsruhe in Germany in any dispute arising out of or relating to this Agreement.
- If You are located in the US or Canada: This Agreement shall be governed by and construed under the Commonwealth of Pennsylvania law without reference to its conflicts of law principles. In the event of any conflicts between foreign law, rules, and regulations, and United States of America law, rules, and regulations, United States of America law, rules, and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. You and SAP agree to submit to the exclusive jurisdiction of, and venue in, the state or federal courts located in Philadelphia, Pennsylvania in any dispute arising out of or relating to this Agreement