City Auditor - City Recorder - Council Ordinance - 182738 SAP Public Services additional software licenses contract 36718 amendment

A. This Appendix 7 is hereby annexed to and made a part of the Agreement specified above.

B. The following Articles and Provisions of the Agreement are specifically incorporated herein by reference: 1 (Definitions), 2 (License Grant), 3 (Verification), 4 (Price and Payment), 5 (Term), 6.1 (Protection of Proprietary Information), 7.7 (Express Disclaimer), 9 (Limitation of Liability), 10 (Assignment) and 11 (General Provisions). Unless stated otherwise herein, all other provisions of the Agreement are specifically excluded with respect to this Appendix. In each instance in which provisions of this Appendix contradict or are inconsistent with the incorporated provisions of the Agreement, the provisions of this Appendix shall prevail and govern.

1.1 The third party software licensed to Licensee pursuant to this Appendix consists of the Adobe software components (Enable the Enterprise (includes 20 Interactive Forms) identified in this Section 1.1 as being licensed (“Adobe Software”). Only individuals licensed as Named Users of SAP Software under separate Appendices to the Agreement are permitted to Use the Adobe Software licensed hereunder, and such Use shall (i) be in accordance with each individual’s Named User type and (ii) in no case exceed the “Licensed Level” specified below. The Adobe Software licensed by Licensee from SAP hereunder is as follows:

“X” if Licensed

Component

License Metric

Licensed
Level

__X__

Interactive Forms Based on Adobe:

• Enable the Enterprise (includes 20 Interactive Forms)

# of SAP Named Users⁽¹⁾

__6,000__

(1) The total number of SAP Named Users licensed to Use SAP Software under separate Appendices to the Agreement may never exceed the License Level for Enable the Enterprise(includes 20 Interactive Forms).

2. LICENSE FEE AND PAYMENT: The Net License Fee to Licensee for the Adobe Software licensed hereunder is USD 135,000, which shall be invoiced upon execution of this Appendix and is payable net thirty (30) days of the date of invoice.

3. INSTALLATION: For the Adobe Software to be installed at a specific Licensee and/or Subsidiary site within the Territory other than where SAP Software is installed, Licensee shall provide SAP with written notice of the location of each computer and the number of Named Users allocated to each such device within sixty (60) days of the use of such device. Such notice shall be in a form materially similar to the notice sent to SAP for SAP Software and is to be sent to: SAP Contract Department, Attention: Director of Contracts, 3999 West Chester Pike, Newtown Square, PA 19073. Licensee is responsible for installation of the Adobe Software.

4. DELIVERY: Delivery of the above-specified Adobe Software is estimated to take place in April, 2009. Physical delivery will be free on board shipping point to the Licensee at the following location: EBS Project Manager, 1120 SW 5^th Avenue, Room 1435, Portland OR 97204. Licensee agrees and understands that the calculation of, and payment obligation for, sales tax in accordance with applicable state sales tax laws, which shall be the responsibility of Licensee, may be affected by the delivery method, and the delivery location (as specified above), of the Adobe Software (and corresponding SAP Enterprise Support) as addressed herein.

5. SAP ENTERPRISE SUPPORT AND PAYMENT FOR THIRD PARTY SOFTWARE: SAP Enterprise Support offered by SAP is set forth in the Schedule to the Agreement. SAP Enterprise Support at the site(s) specified in the Schedule to the Agreement shall commence as of the first day of the month following initial delivery of the Adobe Software. The initial term of SAP Enterprise Support is the remainder of the current calendar year and the next full calendar year. After the initial term and subject to the Agreement and SAP Enterprise Support Schedule, SAP Enterprise Support shall renew at the beginning of each calendar year.

The SAP Enterprise Support Fee for the Adobe Software licensed under this Appendix is priced at the then current annual SAP Enterprise Support Factor in effect (currently 22%) multiplied by the total Net License Fee for the licensed Adobe Software. The current annual SAP Enterprise Support Fee for the Adobe Software licensed under this Appendix is USD 29,700 (22% of USD 135,000). SAP agrees that the SAP Enterprise Support Factor shall remain at 22% until December 31, 2012. Thereafter, the SAP Enterprise Support Factor is subject to change once during a calendar year upon ninety (90) days notice to Licensee.

SAP Enterprise Support Fees are invoiced on an annual basis effective January 1 of a calendar year and payable net thirty (30) days from date of invoice. Any SAP Enterprise Support Fees due prior to January 1 are invoiced on a pro-rata basis for the given calendar year in effect.

6. THIRD-PARTY DATABASE: The Adobe Software licensed hereunder requires a third party database, which is a third party product which has either been integrated or pre-installed as part of the Adobe Software, or which must be installed to Use the Adobe Software. If integrated, third party database product functionality as integrated in the Adobe Software may differ from a non-integrated third party database product. Each third party database product is subject to its respective third party vendor License Agreement. This Appendix and the Agreement do not contain a license to use any third party database product, even if integrated. Licensee has no right to use and is not licensed to use any copy of the third party database until Licensee has executed the Agreement, this Appendix, and a third party database license agreement for the applicable third party database. Upon request, Licensee shall provide to SAP the invoice number and/or license number and corresponding date for the third party database. SAP makes no representations or warranties as to the terms of any license or the operation of any third-party database obtained directly from a third party supplier by Licensee. Licensee is responsible for support and maintenance of the third-party database licensed from a third party supplier, and SAP has no responsibility in this regard.

7. LIMITATION OF LIABILITY: In no event shall SAP’s total liability for damages of any kind or nature in any way arising from or related to the Adobe Software licensed hereunder exceed an amount equal to the Net License Fee identified in Section 2 hereof.

8. PUBLICITY: Licensee agrees to provide mutually agreeable telephone references for prospective SAP customers.

9. VALIDITY OF OFFER: The validity of this Appendix 7 will expire May 30, 2009 unless sooner executed by Licensee, or extended in writing by SAP.

This Schedule is hereby annexed to and made a part of the Agreement specified above. In each instance in which provisions of this Schedule contradict or are inconsistent with the provisions of the Agreement, the provisions of this Schedule shall prevail and govern.

This Schedule governs the provision of support services by SAP as further defined herein (“SAP Enterprise Support”) for all software licensed by Licensee under the Agreement (hereinafter collectively referred to as the “Enterprise Support Solutions”), excluding software to which special support agreements apply.

1.1 “Go-Live” marks the point in time from when, after implementation of Enterprise Support Solution or an upgrade of Enterprise Support Solution, the Enterprise Support Solution can be used by Licensee for processing real data in live operation mode and for running Licensee’s business in accordance with the Agreement.

1.2 “Licensee Solution” shall mean Enterprise Support Solutions and any other software licensed by Licensee from third parties provided such third party software is operated in conjunction with Enterprise Support Solutions.

1.3 “Production System” shall mean a live SAP system used for normal business operations and where Licensee’s data is recorded.

1.4 “SAP Software Solution(s)” shall mean a group of one or multiple Production Systems running Licensee Solutions and focusing on a specific functional aspect of Licensee’s business.

1.5 “Service Session” shall mean a sequence of support activities and tasks carried out remotely to collect further information on an incident by interview or by analysis in a Production System resulting in a list of recommendations. A Service Session could run manually, as a self-service or fully automated.

1.6 “Top-Issue” shall mean issues and/or failures identified and prioritized jointly by SAP and Licensee in accordance with SAP standards which (i) endanger Go-Live of a pre-production system or (ii) have a significant business impact on Licensee’s core Production System.

2. Scope of SAP Enterprise Support. Licensee may request and SAP shall provide, to such degree as SAP makes such services generally available in the Territory, SAP Enterprise Support services. SAP Enterprise Support currently includes:

• New software releases of the licensed Enterprise Support Solutions, as well as tools and procedures for upgrades.

• Support packages - correction packages to reduce the effort of implementing single corrections or changes to existing functionality. Support packages may also contain corrections to adapt existing functionality to changed legal and regulatory requirements.

• Available ABAP source code for Software applications and additionally released and supported function modules.

• SAP Service Marketplace - SAP's knowledge database and SAP’s extranet for knowledge transfer on which SAP makes available content and services to licensees and partners of SAP.

• SAP Notes on the SAP Service Marketplace document software errors and contain information on how to remedy, avoid and bypass errors. SAP Notes may contain coding corrections that customers can implement into their SAP system. SAP Notes also documents related issues, customer questions, and recommended solutions (e.g. customizing settings).

• SAP Note Assistant - a tool to install specific corrections and improvements to SAP components.

• Global message handling by SAP for problems related to Enterprise Support Solutions (excluding software to which special support agreements apply), including Service Level Agreements for Initial Reaction Time and Corrective Action (for more information refer to Section 2.1.1).

• Monitoring components and agents for systems to help optimize available resources with SAP EarlyWatch Alert.

• Collector components for systems to report on the status of the Enterprise Support Solutions.

• Content and supplementary tools designed to help increase efficiency, which may include implementation methodologies and standard procedures, Best Practices, an Implementation Guide (IMG), Business Configuration (BC) Sets and Customizing Monitoring.

• Access to the SAP Service Marketplace, which may include implementation and operations processes and content designed to help reduce costs and risks.

• Participation in SAP's customer and partner community (via SAP Service Marketplace), which provides data about best business practices, service offerings, etc.

2.1. Global Message Handling and Service Level Agreement (SLA). When Licensee reports malfunctions, SAP supports Licensee by providing information on how to remedy, avoid and bypass errors. The main channel for such support will be the support infrastructure provided by SAP. Licensee may send an error message at any time. When Licensee creates an error message, the system automatically collects the most important system data (transaction code, program ID, Support Package level, message number, etc). All persons involved in the message solving process can access the status of the message at any time.

In exceptional cases, Licensee may also contact SAP by telephone. For such contact (and as otherwise provided) SAP requires that License provide remote access as specified in Section 3.2(iii). SAP Enterprise Support is provided exclusively to Licensee’s Customer Center of Expertise.

The following Service Level Agreements (“SLA” or “SLAs”) shall apply to all Licensee support messages that SAP accepts as being Priority 1 or 2 and which fulfill the prerequisites specified herein. Such SLAs shall commence in the first full Calendar Quarter following the Effective Date of this Schedule and the completion of Licensee’s implementation of the mandatory recommendations resulting from the Initial Assessment specified in Section 2.2 below. As used herein, “Calendar Quarter” is the three month period ending on March 31, June 30, September 30 and December 31 respectively of any given calendar year.

a. Priority 1 Support Messages (“Very High”). SAP shall respond to Priority 1 support messages within one (1) hour of SAP’s receipt (twenty-four hours a day, seven days a week) of such Priority 1 support messages. A message is assigned Priority 1 if the problem has very serious consequences for normal business transactions and urgent, business critical work cannot be performed. This is generally caused by the following circumstances: complete system outage, malfunctions of central SAP functions in the Production System, or Top-Issues.

b. Priority 2 Support Messages (“High”). SAP shall respond to Priority 2 support messages within four (4) hours of SAP’s receipt (during SAP’s normal business hours in the region Licensee is located) of such Priority 2 support messages. A message is assigned Priority 2 if normal business transactions are seriously affected and necessary tasks cannot be performed. This is caused by incorrect or inoperable functions in the SAP system that are required to perform such transactions and/or tasks.

2.1.2 SLA for Corrective Action Response Time for Priority 1 Support Messages: SAP shall provide a solution, work around or action plan for resolution (“Corrective Action”) of Licensee’s Priority 1 support message within four (4) hours of SAP’s receipt (twenty-four hours a day, seven days a week) of such Priority 1 support message (“SLA for Corrective Action”). In the event an action plan is submitted to Licensee as a Corrective Action, such action plan shall include: (i) status of the resolution process; (ii) planned next steps, including identifying responsible SAP resources; (iii) required Licensee actions to support the resolution process; (iv) to the extent possible, due dates for SAP’s actions; and (v) date and time for next status update from SAP. Subsequent status updates shall include a summary of the actions undertaken so far; planned next steps; and date and time for next status update. The SLA for Corrective Action only refers to that part of the processing time when the message is being processed at SAP (“Processing Time”). Processing Time does not include the time when the message is on status “Partner Action”, “Customer Action” or “SAP Proposed Solution”, whereas (a) the status Partner Action means the support message was handed over to a technology or software partner of SAP or a third party vendor of SAP for further processing; (b) the status Customer Action means the support message was handed over to Licensee; and (c) the status SAP Proposed Solution means SAP has provided a Corrective Action as outlined herein. The SLA for Corrective Action shall be deemed met if within four (4) hours of processing time: SAP proposes a solution (status “SAP Proposed Solution”), a workaround or an action plan; or if Licensee agrees to reduce the priority level of the message.

2.1.3.1 Prerequisites. The SLAs shall only apply when the following prerequisites are met for all support messages: (i) support messages are related to releases of Enterprise Support Solutions which are classified by SAP with the shipment status “unrestricted shipment”; (ii) support messages are submitted by Licensee in English via the SAP Solution Manager Software in accordance with SAP’s then current support message processing log-in procedure which contain the relevant details necessary (as specified in SAP Note 16018 or any future SAP Note which replaces SAP Note 16018) for SAP to take action on the reported error; (iii) support messages are related to a product release of Enterprise Support Solutions which falls into Mainstream Maintenance or Extended Maintenance. For Priority 1 support messages, the following prerequisites must be fulfilled by Licensee: (a) the issue and its business impact are described in detail sufficient to allow SAP to assess the issue; (b) Licensee makes available for communications with SAP, twenty four (24) hours a day, seven (7) days a week, an English speaking contact person with training and knowledge sufficient to aid in the resolution of the Priority 1 message consistent with Licensee’s obligations hereunder; and (c) a Licensee contact person is provided for opening a remote connection to the system and to provide necessary log-on data to SAP.

2.1.3.2 Exclusions. For SAP Enterprise Support the following types of Priority 1 messages are excluded from the SLAs: (i) support messages regarding a release, version and/or functionalities of Enterprise Support Solutions developed specifically for Licensee (including without limitation those developed by SAP Custom Development and/or by SAP subsidiaries); (ii) support messages regarding country versions that are not part of the Enterprise Support Solutions and instead are realized as partner add-ons, enhancements, or modifications is expressly excluded even if these country versions were created by SAP or an associated organization; and (iii) the root cause behind the support message is not a malfunction, but a missing functionality (“development request”) or the support message is ascribed to a consulting request.

2.1.4.1 SAP shall be deemed to have met its obligations pursuant to the SLAs as stated above by reacting within the allowed time frames in ninety-five percent (95%) of the aggregate cases for all SLAs within a Calendar Quarter. In the event Licensee submits less than twenty (20) messages (in the aggregate for all SLAs) pursuant to the SLAs stated above in any Calendar Quarter during the Enterprise Support term, Licensee agrees that SAP shall be deemed to have met the its obligations pursuant to the SLAs stated above if SAP has not exceeded the stated SLA time-frame in more than one support message during the applicable Calendar Quarter.

2.1.4.2. Subject to Section 2.1.4.1 above, in the event that the timeframes for the SLA’s are not met (each a “Failure”), the following rules and procedures shall apply: (i) Licensee shall inform SAP in writing of any alleged Failure; (ii) SAP shall investigate any such claims and provide a written report proving or disproving the accuracy of Licensee’s claim; (iii) Licensee shall provide reasonable assistance to SAP in its efforts to correct any problems or processes inhibiting SAP’s ability to reach the SLAs; (iv) subject to this Section 2.1.4, if based on the report, an SAP Failure is proved, SAP shall apply a Service Level Credit (“SLC”) to Licensee’s next SAP Enterprise Support Fee invoice equal to one quarter percent (0.25%) of Licensee’s SAP Enterprise Support Fee for the applicable Calendar Quarter for each Failure reported and proved, subject to a maximum SLC cap per Calendar Quarter of five percent (5%) of Licensee’s SAP Enterprise Support Fee for such Calendar Quarter. Licensee bears the responsibility of notifying SAP of any SLCs within thirty (30) days after the end of a Calendar Quarter in which a Failure occurs. No penalties will be paid unless notice of Licensee’s claim for SLC(s) is received by SAP in writing. The SLC stated in this Section 2.1.4 is Licensee’s sole and exclusive remedy with respect to any alleged or actual Failure.

2.2 SAP Support Advisory Center. For Priority 1 and Top-Issues directly related to the Enterprise Support Solutions, SAP shall make available a global unit within SAP’s support organization for mission critical support related requests (the “Support Advisory Center”). The Support Advisory Center will perform the following mission critical support tasks: (i) remote support for Top-Issues – the Support Advisory Center will act as an additional escalation level, enabling 24X7 root cause analysis for problem identification; (ii) Continuous Quality Check service delivery planning in collaboration with Licensee’s IT, including scheduling and delivery coordination; (iii) remote certification of the SAP Customer Center of Expertise if requested by Licensee; and (iv) providing guidance in cases in which Continuous Quality Checks (as defined in Section 2.3 below), an action plan and/or written recommendations of SAP show a critical status (e.g. a red CQC report) of the Enterprise Support Solution.

As preparation for the Service Level Agreement and Continuous Quality Check delivery through SAP Solution Manager Enterprise Edition, Licensee’s Contact Person and SAP shall jointly perform one mandatory setup service (“Initial Assessment”) for the Enterprise Support Solutions. The Initial Assessment shall be based upon SAP standards and documentation.

The designated SAP Support Advisory Center will be English speaking and available to Licensee’s Contact Person (as defined below) or its authorized representative twenty-four hours a day, seven days a week for mission critical support related requests. The available local or global dial-in numbers are shown in SAP Note 560499. For eight hours per day (9AM to 5PM Eastern Standard Time) five days a week (Monday through Friday, excluding public holidays) communication with the support advisory with the Support Advisory Center is also possible via customer message using component SV-ES-SAC for SAP Enterprise Support related mission critical service related requests.

The Support Advisory Center is only responsible for the above mentioned mission critical support related tasks to the extent these tasks are directly related to issues regarding the Enterprise Support Solutions.

2.3 SAP Continuous Quality Check. In case of critical situations related to the SAP Software Solution (such as, implementation, upgrade, migration or Top Issues), SAP will provide at least one Continuous Quality Check (the “Continuous Quality Check” or “CQC”) per year for each SAP Software Solution. The CQC portfolio of services for licensees includes, but is not limited to,

• SAP GoingLive™ Functional Upgrade Check for an upgrade to a higher release.

The CQC may consist of one or more manual or automatic remote Service Sessions. SAP may deliver further CQC’s in cases where vital alerts reported by SAP EarlyWatch Alert or in those cases where Licensee and the SAP Advisory Center mutually agree that such a service is needed to handle a Top-Issue. Details, such as the exact priorities of a CQC, shall be mutually agreed upon between the parties. At the end of a CQC, SAP will provide Licensee with an action plan and/or written recommendations. Licensee acknowledges that all or part of the CQC sessions may be delivered by SAP and/or a certified SAP partner acting as SAP’s subcontractor and based on SAP’s CQC standards and methodologies. Licensee agrees to provide appropriate resources, including but not limited to equipment, data, information, and appropriate and cooperative personnel, to facilitate the delivery of CQC’s hereunder.

In the event the Effective Date of this Schedule is after September 30^th of the year in which the Effective Date occurs, Licensee shall not be entitled to receive the above mentioned CQC services for the remainder of such calendar year.

Licensee acknowledges that SAP limits CQC re-scheduling to a maximum of three times per year. Re-scheduling must take place at least 5 working days before the planned delivery date. If Licensee fails to follow these guidelines, SAP is not obliged to deliver the yearly CQC to the Licensee.

2.4 SAP Solution Manager Enterprise Edition. SAP Solution Manager Enterprise Edition includes SAP Solution Manager Standard Edition plus additional functionalities (“ES Components”). ES Components are activated separately and cannot function without SAP Solution Manager Standard Edition.

SAP Solution Manager shall be subject to the Agreement and is for the following purposes only: (i) delivery of SAP Enterprise Support and support services for Licensee Solution including delivery and installation of software and technology maintenance for Enterprise Support Solutions; (ii) the operation of a service desk for Enterprise Support Solutions and remote diagnostic tools for Licensee Solutions; (iii) application management for Licensee Solutions including implementation, testing, change request management, operations and continuous improvement for Enterprise Support Solutions; and; (iv) administration, monitoring and reporting for Licensee Solution. The use for the SAP Solution Manager Enterprise Edition is limited to the Licensee Solutions only.

SAP Solution Manager Enterprise Edition is subject to the usage rights granted in the Agreement and may not be used for any other purposes than those specified herein. The right to use any SAP Solution Manager Enterprise Edition capabilities other than those above is subject to a separate written agreement with SAP, even if such capabilities are contained in or related to SAP Solution Manager Enterprise Edition.

3.1 SAP Enterprise Support Program Management. In order to receive SAP Enterprise Support hereunder, Licensee shall designate a qualified English speaking contact within its SAP Customer Center of Expertise for the Support Advisory Center (the “Contact Person”) and shall provide contact details (in particular e-mail address and telephone number) by means of which the Contact Person or the authorized representative of such Contact Person can be contacted at any time. Licensee’s Contact Person shall be Licensee’s authorized representative empowered to make necessary decisions for Licensee or bring about such decision without undue delay.

3.2 Other Requirements. In order to receive SAP Enterprise Support hereunder, Licensee must:

(i) Continue to pay all Enterprise Support Service Fees in accordance with the Agreement.

(iii) Provide and maintain remote access via a technical standard procedure as defined by SAP and grant SAP all necessary authorizations, in particular for problem analysis as part of message handling. Such remote access shall be granted without restriction regarding the nationality of the SAP employee(s) who process support messages or the country in which they are located. Licensee acknowledges that failure to grant access may lead to delays in message handling and the provision of corrections, or may render SAP unable to provide help in an efficient manner. The necessary software components must also be installed for support services. For more details, see SAP Note 91488.

(iv) Establish and maintain an SAP certified Customer COE meeting the requirements specified in Section 4 below within twelve months of the Effective Date of this Schedule.

(v) Have installed, configured and be using productively, an SAP Solution Manager Standard Edition Software system, with the latest patch levels for Basis, ABAP, and the latest SAP Solution Manager Standard Edition Software support packages.

(vi) Activate SAP EarlyWatch Alert for the Production Systems and transmit data to Licensee’s productive SAP Solution Manager system. See SAP Note 207223 for information on setting up this service.

(vii) Establish a connection between Licensee’s SAP Solution Manager Software installation and SAP and a connection between the Licensee Solutions and Licensee’s SAP Solution Manager Software installation. Licensee shall maintain the solution landscape in Licensee’s SAP Solution Manager Software system for all Production Systems and systems connected to the Production Systems. Licensee shall maintain the Software Solutions and core business processes in Licensee’s SAP Solution Manager Software system at least for the Production Systems. Licensee shall document any implementation or upgrade projects in Licensee’s SAP Solution Manager Software system.

(viii) To fully enable and activate the SAP Solution Manager Enterprise Edition specific enhancements to SAP Solution Manager, Licensee shall adhere to the applicable documentation.

(ix) Licensee agrees to maintain adequate and current records of all Modifications and, if needed, promptly provide such records to SAP.

4. Customer Center of Expertise. In order to receive SAP Enterprise Support hereunder, Licensee shall establish a Customer Center of Expertise (“Customer COE”). The Customer COE is an organizational unit within Licensee’s organization covering all Licensee core business process operations that acts as Licensee’s central point of contact with SAP’s support organization. SAP recommends starting the implementation of the Customer COE as a project that runs in parallel with the functional and technical implementation projects.

A Customer COE must support each installation covered by the Agreement. If Enterprise Support Solutions are installed in more than one of three regions (EMEA, Americas, Asia/Pacific) a Customer COE may be set-up in each region.

• Support Desk: Set-up and operation of a support desk with a sufficient number of support consultants for infrastructure/application platforms and the related applications during regular local working hours (at least 8 hours a day, 5 days (Monday through Friday) a week). Licensee support process and skills will be jointly reviewed in the framework of the service planning process and the certification audit.

• Contract administration: Contract and license processing in conjunction with SAP (license audit, maintenance billing, release order processing, user master and installation data management).

• Coordination of innovation requests: Collection and coordination of development requests from the Licensee. In this role the Customer COE shall also be empowered to function as an interface to SAP to take all action and decisions needed to avoid unnecessary modification of Software and to ensure that planned modifications are in alignment with the SAP software and release strategy. The Customer COE shall also coordinate Licensee’s Modification notification and disclosure requirements.

• Information management: Distribution of information (e.g. internal demonstrations, information events and marketing) about Software and the Customer COE within the Licensee’s organization.

• Service Planning: Licensee shall regularly engage in a service planning process with SAP. The service planning starts during the initial implementation and will then be continued regularly.

All Named Users may have access to SAP’s support portal however, only Licensee Customer COE employees are authorized to contact SAP after attempting to resolve the matter. In the event Licensee does not establish and maintain a certified Customer COE(s) in accordance with the above (including any required recertification), SAP shall be entitled to increase Licensee’s then current maintenance percentage factor then in effect. Licensee is required to certify their Customer COE through an audit, conducted by SAP, verifying Licensee’s compliance with the obligations described in this Section 4. Detailed information on the initial certification and re-certification process and conditions are available in SAP CCCNet in the SAP Service Marketplace.

5. Enterprise Support Fees. SAP Enterprise Support Fees shall be paid annually in advance and shall be specified in Appendices to the Agreement. SAP Enterprise Support offered by SAP may be changed annually by SAP at any time upon three months prior written notice. After the initial term, the Enterprise Support Fees and any limitations on increases are subject to Licensee’s compliance with the Customer COE requirements specified above.

6. Termination. After the initial term, Enterprise Support may be terminated by either party with 90 days written notice prior to the start of the following renewal period. Any termination will be effective at the end of the then-current Enterprise Support period during which the termination notice is received by SAP. Notwithstanding the forgoing, SAP may terminate Enterprise Support after thirty days written notice of Licensee’s failure to pay Enterprise Support Fees.

7. Changes to Licensee Information. In order to receive SAP Enterprise Support hereunder, Licensee undertakes to inform SAP without undue delay of any changes to Licensee’s installations and Named Users and all other information relevant to the Enterprise Support Solutions. To ensure compliance with the terms of this Schedule, SAP shall be entitled to periodically monitor (i) the correctness of the information Licensee provided and (ii) Licensee’s usage of the Solution Manager Enterprise Edition in accordance with the rights and restrictions set out in Section 2.4.

8. Reinstatement. In the event Licensee elects not to commence SAP Enterprise Support upon the first day of the month following initial delivery of the Software, or SAP Enterprise Support is otherwise terminated pursuant to Section 6 above or declined by Licensee for some period of time, and is subsequently requested or reinstated, SAP will invoice Licensee the accrued SAP Enterprise Support Fees associated with such time period plus a reinstatement fee.

9.1 In order to receive SAP Enterprise Support hereunder, Licensee shall have obtained all licenses for the Licensee Solutions and the only support and/or maintenance services received by Licensee for Enterprise Support Solutions shall be the services described in this Schedule.

9.2 As a condition of receiving SAP Enterprise Support hereunder, Licensee shall not reallocate users and/or Software to the Enterprise Support Solutions from other SAP Software Solutions that are not covered under SAP Enterprise Support, without the express consent of SAP.

9.3 FAILURE TO UTILIZE SAP ENTERPRISE SUPPORT PROVIDED BY SAP MAY PREVENT SAP FROM BEING ABLE TO IDENTIFY AND ASSIST IN THE CORRECTION OF POTENTIAL PROBLEMS WHICH, IN TURN, COULD RESULT IN UNSATISFACTORY SOFTWARE PERFORMANCE.

9.4 In the event SAP licenses third party software to Licensee under the Agreement, SAP shall provide Enterprise Support on such third party products to the degree the applicable third party makes such Enterprise Support available to SAP. Licensee may be required to upgrade to more recent versions of its operating systems and databases to receive SAP Enterprise Support.

9.5 SAP Enterprise Support is provided according to the current maintenance phases of SAP Software releases as stated in http://service.sap.com/releasestrategy.