SAP TERMS AND CONDITIONS
These SAP Terms and Conditions (“EULA”) of BusinessObjects Software Limited T/A SAP Solutions (“SAP”) govern the access to and use of one or more SAP applications, including SAP BusinessObjects (each, a “Software”) by the WellSky client listed on the applicable Order Form (“Client”). By signing the Order Form, Client agrees to be bound by the terms and conditions set forth herein.
- License Grant
(a) During the term of the Order Form, SAP grants to Client a non-exclusive and non-transferable license to use the Software and SAP documentation only as an integrated part of the Cloud Services, solely in support of Client’s permitted use, and not to run any of Client’s business operations. The Software may only be used with the Cloud Services to enable its performance, with data access limited to data created by the Cloud Services or data processed by the Cloud Services that is necessary to enable the functionalities of the Cloud Services.
(b) Such license cannot be reallocated or transferred by Client from one end user to another end user. For the avoidance of doubt, notwithstanding the foregoing, an end user assignment may be transferred from one individual to another employed or affiliated with Client, but only if the individual to which the end user is assigned: (i) is on vacation; (ii) is absent due to sickness; (iii) has their employment terminated; or (iv) is moved into a new job function which no longer requires them to use the Software.
- License Restrictions
(a) With respect to the Software and other SAP materials, Client will not:
i. disassemble, decompile, reverse-engineer, copy, translate, or make derivative works,
ii. except as expressly authorized under the EULA, permit any third party to: (i) provide services to third parties (such as service bureau, business process outsourcing or training); (ii) distribute or publish Software keycodes.
iii. use software components other than as intended and as specifically identified in the Order Form, even if it is technically possible for Client to otherwise access such components;
iv. transmit any content or data that is unlawful or infringes any intellectual property rights of SAP or WellSky; or
v. circumvent or endanger the operation or security of the Software and other SAP materials.
(b) Client must not create or attempt to create the source code from the object code of the Software or other SAP materials.
- Client Obligations
(a) Client is solely responsible for obtaining all account and authentication credentials required to access or use the Software or Cloud Services.
(b) Client expressly agrees to indemnify WellSky and SAP, and each party’s respective officers, employees, agents and subcontractors from and against all claims, liabilities, losses, damages and costs (including reasonable attorney fees) suffered by WellSky or SAP arising from the use of any Software by Client.
(c) SAP or WellSky may throttle, suspend or terminate the Client’s access Software if Client violates or causes WellSky to violate the terms of this EULA.
(d) Client will conduct operations in compliance with applicable laws, rules and regulations in exercising its rights and obligations under this EULA. Laws may include but not be limited to the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and local anticorruption legislation that may apply
(e) Client is responsible for obtaining internet connectivity and SAP will not be responsible for loss of functionality due to failure of internet connectivity
- Warranty, Remedy, and Disclaimer
(a) Warranty: SAP warrants that the Software will substantially conform to the specifications contained in the SAP documentation during the term of the applicable Order Form for the SAP Software. For the avoidance of doubt, WellSky makes no warranties or representations of the Software.
(b) Remedy: Client’s sole and exclusive remedies and WellSky’s and SAP’s entire liability for breach of the warranty under this Section will be:
i. for SAP to repair or replace the nonconforming Software, and
ii. if SAP fails to repair, replace, or re-perform within a reasonable time, Client may terminate its license for the affected Software. Any termination must occur within three months of SAP’s failure to repair, replace, or re-perform
(c) Disclaimer: Except as set forth in this EULA, neither SAP, WellSky, nor such party’s respective subcontractors make any representation or warranties, and SAP, WellSky, and such party’s respective subcontractors disclaim all representations, warranties, terms, conditions or statements, which might have effect between the parties or be implied or incorporated into the EULA or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded to the fullest extent permitted by law including the implied conditions, warranties or other terms as to merchantability, suitability, originality, or fitness for a particular use or purpose. Further, except as expressly provided in the EULA, neither SAP, WellSky, nor such party’s respective subcontractors make any representations, warranties, terms, conditions or statements of non-infringement or results to be derived from the use of or integration with any products or services, or that the operation of any products or services will be secure, uninterrupted or error free. Client agrees that it is not relying on delivery of future functionality, public comments or advertising of SAP or product roadmaps in obtaining a license for the Software.
- Limitation of Liability
(a) ANYTHING TO THE CONTRARY HEREIN OR IN THE AGREEMENT NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL SAP, WELLSKY, OR ITS RESPECTIVE LICENSORS BE LIABLE TO EACH OTHER OR TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN EXCESS OF THE PAID LICENSE FEES FOR THE SOFTWARE DIRECTLY CAUSING THE DAMAGES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES.
(b) Notwithstanding anything to the contrary in the Agreement or the EULA, Client does not exclude or limit its liability for damages resulting from:
i. unauthorized use or disclosure of SAP confidential information;
ii. breach or violation of SAP and its affiliates’ intellectual property rights;
iii. Client’s indemnity obligations under the EULA;
iv. death or bodily injury arising from Client’s negligence or willful misconduct;
v. breach of the obligations imposed by s.12, Sale of Goods Act 1893, as amended by the Sale of Goods and Supply of Services Act 1980; and
vi. any other liability which cannot be excluded or limited by applicable law.
- Assignment. Client may not assign or transfer the EULA (or any of its rights or obligations) to any party.
