05/06/2016

TERMS OF USE AGREEMENT FOR SAP HYBRIS AS A SERVICE

A.GENERAL

  • 1. SCOPE SAP America, Inc., 3999 West Chester Pike, Newtown Square, PA 19073, USA, (“SAP”) operates SAP Hybris as a Service which you (the “Customer”) can use and access and where Customer can (i) obtain information on software packages offered by SAP as a cloud service where these services can be combined to build business services (“Cloud Service”) and related products (also third party products) and services, (ii) subscribe to Cloud Services to be rendered by SAP, and (iii) make available to SAP any soft-ware to build business services developed by Customer for review and re-sale as an additional Cloud Service by SAP. Subscription to any Cloud Ser-vices offered on SAP Hybris as a Service is NOT available for consumers, but solely for merchants/corporations.
  • 2. ACCOUNT TERMS Customer can surf on some pages of SAP Hybris as a Service without any registration. Customer must register for a SAP Hybris as a Service Account (the "SAP Hybris as a Service Account”) to actively access and use the functionalities of the domains of SAP Hybris as a Service. In order to cre-ate Customer’s SAP Hybris as a Service Account, Customer must provide Customer’s full private or legal name, Customer’s current postal address, a valid e-mail address (which will serve as Customer’s User ID), a pass-word (which Customer may create at his/her own discretion, but pursuant to the password instructions and any other information indicated as re-quired. To register for a SAP Hybris as a Service Account, Customer must (i) be 18 years or older and (ii) be fully legally capable and not in any kind limited in Customer’s legal capacity. SAP may reject Customer’s applica-tion for a SAP Hybris as a Service Account, or cancel an existing SAP Hy-bris as a Service Account, for any reason in its sole discretion. If Customer is accessing and/or using the domains "SAP Hybris as a Service Market" or "SAP Hybris as a Service Builder" on SAP Hybris as a Service either on Customer’s own, or on behalf of a third party entity (the "Organization, Customer under his/her SAP Hybris as a Service Account and such Organization collectively “Customer’s Company”), or where Customer uses any other functionality of SAP Hybris as a Service, Cus-tomer represents and warrants that Customer has the authority to act on behalf of and bind Customer’s Company to the terms of this Terms of Use Agreement (the “ToU”) and to the terms of the additional Framework Agreement (including the Cloud Services General Terms and Conditions and the Services Description) if Customer wishes to subscribe to Cloud Services on the SAP Hybris as a Service Market domain.

    Everywhere in this ToU that refers to Customer, shall also include Cus-tomer’s Company.

    Customer is responsible and obliged to keep his/her password secure and confidential. Customer hereby acknowledges and agrees that any activity on SAP Hybris as a Service under Customer’s User ID and password will be treated as Customer’s personal activity, i.e. Customer will be held lia-ble and responsible for any such activity. SAP will not be liable and is not obliged to indemnify or hold Customer harmless from any loss or damage resulting from Customer’s failure to maintain the confidentiality and secu-rity of his/her SAP Hybris as a Service Account and his/her password.
  • 3. ACCEPTANCE OF TERMS Unless otherwise agreed to in a separate signed writing, Customer’s ac-cess and use of SAP Hybris as a Service, or any APIs, command line inter-faces, forums, wikis, blogs, or services provided on SAP Hybris as a Ser-vice (any “SAP Hybris as a Service Services”), are subject to this ToU and – as the case may be – the additional Framework Agreement (includ-ing the Cloud Services General Terms and Conditions and the Services De-scription) and individual subscription terms, if any (the “Additional Legal Terms”). Additionally, Customer’s use of SAP Hybris as a Service, Cloud Services, and the SAP Hybris as a Service Services may also be subject to disclaimers, legal notices, click-through agreements, or other legal agreements between Customer and SAP, which may be posted on SAP Hybris as a Service where applicable. These ToU and the applicable Addi-tional Legal Terms form a legally binding agreement between Customer and SAP regarding Customer’s access and use of SAP Hybris as a Service, Cloud Services, and the SAP Hybris as a Service Services. Whenever there is a conflict between the terms in this ToU and the Additional Legal Terms, the terms in the Additional Legal Terms shall control.

    By accessing or using SAP Hybris as a Service, Customer accepts and agrees to abide by the terms of this ToU. If Customer does not agree to the terms of this ToU, Customer must not attempt to access or use SAP Hybris as a Service. Customer’s access and use of any Cloud Service or related documentation made available through SAP Hybris as a Service shall be subject to the Additional Legal Terms made available to Customer by SAP. SAP recommends the Customer prints copies of these ToU, the Framework Agreement, the Cloud Services General Terms and Conditions and the Services Description for Customer’s own records.

    For subscriptions or contributions made on SAP Hybris as a Service, Cus-tomer agrees to receive invoices, or credit notes respectively, in electronic format, e.g. via e-mail, if electronic delivery is compliant with local law of the country the subscription or the contribution is made in.
  • 4. CHANGES AND NOTICES SAP reserves the right to make changes to this ToU and to modify, change or discontinue any part or all of SAP Hybris as a Service and/or the SAP Hybris as a Service Services at any time. SAP may notify Customer of any changes to this ToU, SAP Hybris as a Service, and/or the SAP Hybris as a Service Services when Customer visits SAP Hybris as a Service, via email, or by updating the ToU which can be viewed via the Legal Terms link. SAP may make reasonable changes to its service offerings at any time with reasonable notice.

    Notwithstanding applicable specific legal and/or formal requirements un-der applicable law, Customer hereby acknowledges and agrees that SAP may use the e-mail address Customer provided when registering for a SAP Hybris as a Service Account as the primary method for communication.

    THE MOST CURRENT VERSION OF THIS TOU CAN BE ACCESSED BY CLICKING LEGAL TERMS WHICH IS INCLUDED ON THE BOTTOM OF EACH WEB PAGE COMPRISING YAAS.
  • 5. Customer Legitimization SAP shall be entitled to verify the information provided by Customer when registering for his/her SAP Hybris as a Service Account or for an Organiza-tion and to transfer such information for this purpose to any third party.
  • 6. Subscription Master Agreement, If Customer wishes to subscribe to a Cloud Service and related SAP Hybris as a Service Services on the SAP Hybris as a Service domain "SAP Hybris as a Service Market", Customer is first required to register an Organiza-tion under Customer’s Account. Customer can then subscribe to a Cloud Service for this Organization under his/her Account, but on behalf of the Organization as well as build, customize and configure Customer’s own webshop or parts thereof (the "Project"). Customer will be entitled to in-vite other account holders to work in or for Customer’s Project. When reg-istering for an Organization, Customer must enter into the Framework Agreement (including the Cloud Services General Terms and Conditions and the Services Description). Customer may enter into a Framework Agreement both in Customer’s own name and on Customer’s own behalf, or on behalf of Customer’s Company or any other legal entity on which behalf Customer is authorized to act and to enter into legally binding con-tracts.

    When entering into the Framework Agreement, Customer will be asked to enter credit card information since any fees which will become due for the subscription to a Cloud Service Customer wishes to subscribe will be bal-anced to such credit card. Please note that there is no other payment method available than credit cards. SAP accepts only those credit cards for which the payment scheme owner requires an additional verification (ei-ther by a password, or by entering a transaction number transmitted to a mobile phone authorized by the cardholder) of any payment transaction to be processed through the Internet. Customer is requested to ensure that Customer has the relevant information (card number, CVC number, card-holder's name as imprinted on the credit card and the validity date) avail-able before Customer starts the process to conclude the Framework Agreement and whenever Customer wishes to subscribe to an individual Cloud Service hereunder. Each individual subscription to a Cloud Service against the credit card designated in the applicable Framework Agreement will need such verification by the cardholder. Customer should make sure beforehand that the cardholder will authorize any such transaction.

    When registering Customer’s SAP Hybris as a Service Account for an Or-ganization, Customer will further be required to determine a term which will be used to designate the technical path to the projects of Customer’s Organization (the “Base Path”). Customer shall indemnify and hold SAP, its affiliates, subsidiaries, officers, agents, partners, employees, and licen-sors harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of SAP using the Base Path term within SAP Hybris as a Service as described above.

    When subscribing to a specific Cloud Service, any service-specific terms and conditions applicable to the specific Cloud Service only, in particular, but without limitation, specific subscription price, price metrics, and/or a specific service level agreement applicable to this Cloud Service, shall be set forth in an individual sheet (the "Subscription Details") which is made available to Customer before Customer decides whether to sub-scribe. By ticking the respective “Subscribe Now” acceptance tick box Cus-tomer enters into a legally binding individual subscription agreement that includes the relevant Subscription Details .
  • 7 PERMISSIBLE USE OF YAAS Customer agrees not to access or utilize the SAP Hybris as a Service Ser-vices or access SAP Hybris as a Service for purposes that are inconsistent with SAP's legitimate business interests. Customer is permitted to use the SAP Hybris as a Service Services and SAP Hybris as a Service only in strict compliance with the terms of this ToU to (a) obtain information (so long as that information is not being gathered for a use in any manner which is or could be detrimental to SAP (unless such use is otherwise protected by law)), and/or (b) to provide feedback or other constructive comments to SAP (both positive and negative) and/or (c) subscribe to a Cloud Service through SAP Hybris as a Service.
  • 8. CONFIDENTIAL INFORMATION As used herein, Confidential Information shall mean all trade secrets and other information or SAP Hybris as a Service Services which SAP or third parties protect against unrestricted disclosure to others which is either la-belled Confidential, accessed through a restricted area of SAP Hybris as a Service, pursuant to software downloads, or is reasonably identifiable as confidential based on the type of information and the manner of its disclo-sure. Reasonable steps means those steps Customer and/or Customer’s Company takes to protect Customer’s own similar confidential information, which shall not be less than a reasonable standard of care.

    A. Except for Web sites within SAP Hybris as a Service which are clearly identified as non-public forums (each a “Non-Public Forum”), SAP Hybris as a Service is intended to be a public forum and Customer agrees not to provide SAP or other users with any confidential or proprietary information that Customer or the owner of the information does not intend to become public information. Except for Cloud Services clearly labelled as confiden-tial that Customer uploads into a Non-Public Forum, any Cloud Service that Customer sends or uploads to SAP Hybris as a Service will be deemed NOT to be confidential or proprietary, and Customer expressly agrees that Customer waives any trade secret or other confidentiality rights with re-spect to such uploaded Cloud Service.

    B. Customer agrees not to reproduce any Confidential Information to which Customer is provided access through SAP Hybris as a Service in any form except as authorized at the time of disclosure. Any reproduction of SAP's Confidential Information shall remain the property of SAP and shall contain any and all confidential or proprietary notices or legends which appear on the original. Customers agrees to:
    1. take all reasonable steps (defined below) to keep all Confidential In-formation strictly confidential;
    2. use Confidential Information solely as authorized at the time of dis-closure; and
    3. not disclose any Confidential Information to any party without the prior written consent of SAP.

    Customer does not acquire any rights in Confidential Information except the limited rights as described above.
    In no event shall Customer use Confidential Information to create, en-hance, modify, rent, lease, loan, sell, distribute or create derivative works based on the Cloud Service or SAP Hybris as a Service Services, or com-pete with a Cloud Service or SAP Hybris as a Service Services in whole or in part.

    ALL UPLOADS BY CUSTOMER INTO YAAS, WHETHER INTO A PUBLIC FO-RUM OR NON-PUBLIC FORUM, SHALL BE AT CUSTOMER’S OWN RISK AND
  • 9. CUSTOMER’S INFORMATION, PRIVACY, AND DATA PROTECTION Customer is solely responsible to provide SAP with Customer’s complete, true, and current user information and to keep Customer’s user infor-mation accurate and up to date. Customer is solely responsible with re-gard to usage and security of Customer’s password and any activities that occur under Customer’s Account. Customer shall not use the account of anyone else at any time. Customer understands and agrees that SAP col-lects, uses, stores and otherwise processes Customer’s personal infor-mation and utilization data and may share such data with third party ser-vice providers for the purposes of improving or providing the SAP Hybris as a Service Services subject to SAP's Privacy Statement. Where SAP through SAP Hybris as a Service temporarily collects and utilizes Custom-er’s credit card, a credit card of Customer’s Company or other personal information provided by Customer for the purposes of processing a sub-scription contract for a Cloud Service, collection and processing of such personal information will be treated in compliance with SAP's Privacy Statement, and applicable law. Customer agrees that SAP may access, preserve and disclose Customer’s SAP Hybris as a Service Account infor-mation, information related to the credit card of Customer’s Company, and/or a Cloud Service if required to do so by law or to:

    1. comply with a legal process;
    2. respond to claims that any Cloud Service violates the rights of third parties; or
    3. protect the rights, property or personal safety of SAP, users, and the public; or
    4. to enable SAP Hybris as a Service to process business transactions (subscription of Cloud Services, resale of developments provided by Customer, or any other SAP Hybris as a Service Service) between Customer and SAP.

    CUSTOMER AGREES TO COMPLY WITH THE TERMS OF THE SAP PRIVACY STATEMENT, WHICH CAN BE FOUND BELOW OR BY CLICKING ON PRIVA-CY AT THE BOTTOM OF EACH WEB PAGE COMPRISING YAAS.
  • 10. COPYRIGHT POLICY As used herein, Intellectual Property Rights means patents of any type, design rights, utility models or other similar invention rights, copyrights, trademarks, service marks, trade secret or confidentiality rights, and any other intangible property rights including applications for any of the fore-going, in any country, arising under statutory or common law or by con-tract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

    Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holder’s rights. Customer agrees that Customer will not use SAP Hybris as a Service to infringe the Intellectual Property Rights of SAP or others in any way. Customer must not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notice of ownership from any originals or copies of a Cloud Service, or any Cloud Service accessed on SAP Hybris as a Service.

    Customer agrees to comply with the terms of the SAP Copyright Policy, which can be found BELOW OR by clicking on LEGAL TERMS at the bottom of each web page comprising SAP Hybris as a Service.
  • 11. RESPONSIBILITY FOR LINKS AND CLOUD SERVICES SAP is only responsible or liable for a Cloud Service posted on SAP Hybris as a Service to the extent required by applicable statutory law. SAP Hybris as a Service may contain links to external web sites and information pro-vided on such external websites by SAP partners and third-party service providers. SAP shall not be responsible for any software on any linked web site, or any changes or updates to such sites. Customer 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 Customer’s use of or reliance on any Cloud Service, goods or services available on or through any such linked web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, vid-eo, photograph, message, or posting to any forum, wiki, or blog on SAP Hybris as a Service (any “Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the Content.
  • 12. INTELLECTUAL PROPERTY RIGHTS REGARDING SHOP CONTENT; INDEMNIFICATION SAP does not claim any Intellectual Property Rights in the material Cus-tomer uploads to Customer’s webshop (or parts thereof) run by using Cloud Services (“Shop Content”). All Shop Content Customer uploads remains Customer’s. Customer can remove his/her webshop (or parts thereof) and any Shop Content therein at any time by deleting Customer’s Account or Customer’s Organization. Customer is solely responsible for compliance of Customer’s Shop Content with any applicable laws or regu-lations.

    By uploading Shop Content, Customer agrees: (a) to allow other internet users to view his/her Shop Content; (b) to allow SAP by operating a Cloud Service subscribed by Customer to display and store Customer’s Shop Content; and (c) that SAP can, at any time, review all the Shop Content submitted by Customer to its Service.

    Customer agrees to indemnify and hold SAP, its affiliates, subsidiaries, officers, agents, partners, employees, and licensors harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of Customer’s Shop Content.
  • 13. TERMINATION AND ACCOUNTABILITY In the event Customer is in material breach of these ToU or any Additional Legal Terms, SAP may, at its sole discretion, suspend or terminate Cus-tomer’s SAP Hybris as a Service Account and refuse any current or future use of SAP Hybris as a Service by Customer. SAP may remove any Cloud Service posted on SAP Hybris as a Service at SAP's sole discretion. SAP shall not be liable to Customer or any third party for any termination or change to SAP Hybris as a Service and/or the SAP Hybris as a Service Services. If Customer sends or uploads Content or software for being of-fered by SAP as an additional Cloud Service that is confidential or proprie-tary of a third party without that third party's permission, or, if Customer transmits or uploads Content or software for being offered by SAP as an additional Cloud Service that is intended to infect, corrupt or otherwise disrupt the operation of SAP Hybris as a Service or any other user's com-puter system, SAP may report Customer to the relevant authorities to en-sure Customer is held accountable to the fullest extent of applicable laws. Customer agrees not to use SAP Hybris as a Service to:

    • publish, upload, post, email, transmit or otherwise make available any Content or Cloud Service that (a) Customer does not have the right to make available, (b) is unlawful, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, (c) infringes any Intellectual Property Rights of any party, (d) includes any unso-licited or unauthorized advertising, promotional materials, surveys, junk mail, spamming, chain letters, or any other form of solicitation, commercial or otherwise, or (e) contains a software virus, Trojan horse, worm, time bomb, cancelbot, corrupted file, or any other com-puter file or software designed to interrupt, destroy, damage or limit the functionality of any computer hardware, software or other proper-ty;

    • defame, harass, abuse, stalk, threaten or violate the legal rights of others such as rights of privacy and publicity;

    • impersonate any person or entity, including, but not limited to, an SAP official, SAP employee, or any other third party, or falsely state or otherwise misrepresent Customer’s affiliation with a person or enti-ty;

    • forge email headers or otherwise manipulate identifiers in order to disguise the origin of any Content or Cloud Service transmitted through the SAP Hybris as a Service Services;

    • download any file or Content or Cloud Service posted by another user that Customer knows, or reasonably should know, should not be le-gally reproduced, displayed, performed and/or distributed in such manner;

    • interfere with or disrupt the SAP Hybris as a Service Services, serv-ers, or networks which support the SAP Hybris as a Service Services, or disobey any requirements, procedures, policies or regulations of networks connected to the SAP Hybris as a Service Services;

    • violate any applicable local, state, national or international law and any regulations;

    • harvest, collect, or store personal information or data of other SAP Hybris as a Service users.
  • 14. LIMITATION OF LIABILITY TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, SAP AND ITS AFFILI-ATES, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS ARE NOT LIABLE TO CUSTOMER OR ANY USER FOR ANY DI-RECT INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, USE, DATA, OR OTHER NON-PECUNIARY LOSSES (EVEN IF SAP HAS BEEN ADVISED OF THE POSSIBIL-ITY OF SUCH DAMAGES), HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RESULTING FROM:

    1. THE USE OR THE INABILITY TO USE YAAS, CONTENT, OR YAAS SER-VICES;

    2. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND YAAS SERVICES ARISING OUT OF CUSTOMER’S USE OR INABILITY TO USE ANY CLOUD SERVICE, CONTENT, OR YAAS SERVICES SUBSCRIBED OR OBTAINED DURING TRANSACTIONS CONDUCTED ON YAAS;

    3. UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA;

    4. STATEMENTS, MESSAGES, OR CONDUCT OF ANY THIRD PARTY ON YAAS; OR

    5. ANY OTHER MATTER RELATING TO YAAS OR YAAS SERVICES.

    NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THESE LIMI-TATIONS SHALL NOT APPLY IN CASE OF MALICIOUS INTENT OR GROSS NEGLIGENCE BY SAP AND IN CASE OF SAP'S STATUTORY LIABILITY FOR PERSONAL INJURY AND DEFECTIVE PRODUCTS.
  • 15. APPLICABLE LAW This site is created and controlled by SAP in the United States. The laws of the Commonwealth of Pennsylvania, USA, will govern this ToU without giving effect to any principles of conflicts of laws. Customer also agrees to comply with all laws from the country in which Customer resides that are applicable to the transmission of data on the Internet, including, but, not limited to laws governing the use of encryption and laws governing the transmission of data across international boundaries, into prohibited coun-tries, and containing personally identifiable information. SAP and Custom-er hereby irrevocably and unconditionally submit to the exclusive jurisdic-tion of the State and Federal courts in Pennsylvania, USA, with respect to any dispute or claim arising out of or in connection with these ToU.
  • 16. SURVIVAL Customer’s obligations under Section 3 (Acceptance of Terms), 7 (Permis-sible Use), 8 (Confidential Information), 9 (Customer’s Information, Priva-cy and Data Protection), 10 (Copyright Policy), 11 (Responsibility for Links and Cloud Services), 14 (Limitation of Liability), 15 (Applicable Law), this Section 16 (Survival) and Section 17 (Waiver and Severability) shall sur-vive termination of Customer’s account. Upon any termination of Custom-er’s SAP Hybris as a Service Account, or SAP’s written request, Customer must cease use of Confidential Information, discoveries, and/or SAP Hy-bris as a Service Services and return or destroy all Confidential Infor-mation in Customer’s possession or control.
  • 17. WAIVER AND SEVERABILITY The failure of SAP to exercise or enforce any right or provision of this ToU shall not constitute a waiver of such right or provision. To the extent that any provision in this ToU shall be found to be unenforceable, such provi-sion shall be modified in such a manner so as to make this ToU as modi-fied, legal and enforceable under applicable laws and the balance of the provisions of this ToU shall not be affected thereby.
  • 18 USE OF SAP BETA VERSIONS OF CLOUD SERVICES If Customer wishes to use Beta versions of a Cloud Service, the following terms shall apply exclusively to such usage:

    • 18.1 Scope
      Under this section 18 Customer (as an individual and not as Customer’s Company) is granted a free trial license to access, test and evaluate the Cloud Service as offered on the SAP Hybris as a Service domain “Market” under the “BETA section” tab (hereinafter for the purposes of this Section 18 "Software") remotely on SAP systems. Such offering can be changed or reduced by SAP in its sole discretion at any time.
      The purpose of this section 18 is to enable Customer to test the Software and evaluate how Customer may use the Software to support its business processes and for SAP to receive Customer’s feedback about such test and evaluation of the Software. In addition, under this section 18 Customer may get familiar with the functionality of the Software to determine its possible use in a productive use environment. Customer acknowledges that the Software is a preliminary version and not subject to any produc-tive use license agreement or any other agreement with SAP. SAP has no obligation to offer the Software for productive use or any other use, be it remotely accessible or by any other form of access. In addition, SAP has no obligation to include or remove any functionality from the Software in any future version or in any SAP standard product. Customer and SAP mutually acknowledge and agree that it would be imprudent and unrea-sonable to rely upon the expectation of entering into a contract regarding the productive use of the Software.
    • 18.2 Use of the SAP systems is limited to access the Software for the purpose as permitted under the ToU, in particular, but without limitation under this section 18.
    • 18.3 SAP is not responsible for any data produced, used or inserted by Customer under this section 18.
    • 18.4 Customer shall not put any personal data into the Service. 'Personal data' means any information relating to an identified or identifiable natural or legal person and an' identifiable person' is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Customer represents and warrants that Customer’s Content does not contain personal data. Furthermore, Customer shall indemnify SAP for any claims or losses arising from a breach of the foregoing representation and warranty.
    • 18.5 Remote access to the Software is dependent upon the availability of the related SAP systems. SAP may suspend access to such SAP systems at any time, in its sole discretion. SAP shall endeavour to provide Customer with advance notice of any such suspension if practicable.
    • 18.6 Remote access might also be subject to acceptance of separate terms.
    • 18.7 Remote access connectivity is Customer’s sole responsibility. SAP is not responsible for any problems or interruptions with respect to the con-nectivity to the SAP systems or Software under this section 18.
    • 18.8 License Rights and Intellectual Property
      During the term of this section 18, SAP grants to Customer a non-transferable and non-exclusive, limited license to remotely access and use the Software for the exclusive purpose of testing and evaluation. Custom-er shall not use the Software for any productive purposes.
      Customer must not exceed the usage of the Software as set forth in the respective description/documentation on SAP Hybris as a Service pertain-ing to a specific Beta Package.
      Customer shall not remove notices and notations in the Software that re-fer to copyrights, trademark rights, patent rights and other intellectual property rights. Unless expressly agreed otherwise in these ToU, any and all patent rights, copyrights, trademark rights and other rights in the Software and the SAP Materials, as well as any improvements, inventions, design contributions or derivative works conceived or created by either party in or to the Software, shall remain the exclusive property of SAP and/or its licensors. Except for the limited license rights expressly granted herein, this section 18 does not transfer any proprietary right or interest in the Software to Customer. Between Customer and SAP all title to and rights in the Software, operational know-how and business secrets related thereto vest exclusively in SAP and/or its licensors, notably copyright and rights of authorship, rights to inventions, and any other industrial and in-tellectual property rights. All license rights not expressly granted to Cus-tomer in this section 18 are reserved by SAP and its licensors. Customer does not acquire any rights to the source code of the Software.
      ‘SAP Materials’ mean any materials, deliverables or work products (set forth in a specification document or the like) produced or furnished or de-veloped by SAP, independently or with Customer’s cooperation on SAP Hybris as a Service or within a SAP Hybris as a Service Service, each un-der these ToU, including in the delivery of any support to Customer. SAP Materials do not include Customers data, Shop Content or Customer’s Confidential Information or a Cloud Service.
      As far as any proprietary rights described in this section 18 directly accrue to an employee or subcontractor of Customer involved in the testing and evaluating, Customer shall ensure the grant of rights under this section 18 through appropriate undertakings with such employees and subcontrac-tors.
      Customer shall not be entitled to license, sell, lease, rent, outsource or otherwise transfer, make available or otherwise give access to the Soft-ware to third parties. Customer may utilize subcontractors for those activi-ties within the scope of this section 18 provided Customer ensures that such subcontractors adhere to the provisions set forth in this section 18 and Customer remains liable to SAP for the acts and omissions of its sub-contractors.
    • 18.9 Customer shall not be entitled to duplicate, translate, decompile, reverse-engineer or otherwise modify any parts of the Software and the SAP Materials. No development activities are allowed or supported under this section 18.
    • 18.10 Services and Support by SAP
      The use of the Software is an unsupported service. SAP is not obliged to provide or offer any updates to the Software. SAP may, in its sole discre-tion, provide Customer with guidelines for testing and evaluation purpos-es.
      Any services by SAP, in particular assistance and consulting with respect to the use of the Software for individual business needs of Customer, are not subject to this section 18 or the ToU.
    • 18.11 Limitation on Warranties and Liabilities
      THE SOFTWARE IS LICENSED TO CUSTOMER “AS IS”, WITHOUT ANY WARRANTY, ESCROW, TRAINING, MAINTENANCE, OR SERVICE OBLIGA-TIONS WHATSOEVER ON THE PART OF SAP. SAP MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FIT-NESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH ITS USE OF THE SOFTWARE AND THE SAP MATERI-ALS, INCLUDING WITHOUT LIMITATION RISKS RELATING TO QUALITY, PERFORMANCE, DATA LOSS, AND UTILITY IN A PRODUCTION ENVIRON-MENT. IN NO EVENT SHALL SAP BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, CON-SEQUENTIAL, INCIDENTAL, PUNITIVE OR ANY OTHER TYPE OF DAMAGE) ARISING IN CONNECTION WITH (i) CUSTOMER’S USE OF OR INABILITY TO USE THE SOFTWARE OR THE SAP MATERIALS, (ii) SAP’S PROVISION OF OR FAILURE TO PROVIDE SERVICES PERTAINING TO THE SOFTWARE OR THE SAP MATERIALS, OR (iii) AS A RESULT OF ANY DEFECT IN THE SOFTWARE OR THE SAP MATERIALS. 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. CUSTOMER’S SOLE REMEDY IN THE EVENT OF BREACH OF THIS AGRREEMENT BY SAP OR FOR ANY OTHER CLAIM RELATED TO THE SOFTWARE OR SAP MATE-RIALS SHALL BE TERMINATION OF THE RIGHTS AND OBLIGATIONS UN-DER THIS SECTION 18.