Software End User License Agreement

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SAP AMERICA, INC.
SOFTWARE END-USER LICENSE AGREEMENT


This Agreement is made effective as of the 15th day of May, 2002, by and between SAP America, Inc., a Delaware corporation, with offices at 3999 West Chester Pike, Newtown Square, Pennsylvania 19073 ("SAP"), and Safety-Kleen Services, Inc., a Delaware corporation, with offices at 1301 Gervais Street, Columbia, South Carolina 29201 ("Licensee").


RECITAL
WHEREAS, SAP desires to grant to Licensee, and Licensee desires to accept from SAP, a license to Use (as defined herein) SAP's proprietary Software (as defined herein) upon the terms and conditions hereinafter set forth; NOW, THEREFORE, SAP and Licensee agree as follows:


1. DEFINITIONS.
------------ 1.1 "AFFILIATE" means any legal entity located in the Territory directly or indirectly controlled by Licensee or Safety-Kleen Corp., the parent company of Licensee, through : (i) the holding of more than 50% of the voting securities of another company; or ii) the holding of more than 50% of the ownership interest in any other legal entity (including a partnership) providing Licensee has the right to vote or appoint a controlling number of its directors or functional equivalents. Any such entity shall be considered an Affiliate for only such time as Licensee or Safety-Kleen Corp. continues to own such equity or ownership interest. SAP agrees to negotiate in good faith to add entities on a case by case basis to this Exhibit A upon the request of Licensee. An Affiliate shall include the companies listed on Exhibit A for only such time as Licensee continues to hold the specific equity interest stated in Exhibit A.


1.2 "BLUE BUSINESS" or "CHEMICAL SERVICES DIVISION" means that organization which primarily provides hazardous and non-hazardous waste collection, treatment, recycling, disposal and destruction of hazardous and non-hazardous waste at Licensee owned and operated facilities.


1.3 "BUSINESS THIRD PARTY" means any third party that requires access to the Software in connection with the operation of Licensee's and/or its Affiliates' business including, but not limited to, customers, distributors and suppliers.


1.4 "CORRECTION LEVEL" means a change in the Software between Versions made generally available to SAP Licensees [e.g., 3.1(a)].


1.5 "DESIGNATED UNIT" means each individual computer in which the Software and Third-Party Database are installed. Designated Unit(s) may have, but the term "Designated Unit(s)" shall not include, multiple application servers directly networked to such Designated Unit(s), and terminals and personal computers directly networked to the application servers.


1.6 "DOCUMENTATION" means SAP's documentation, in any medium, which is delivered to Licensee under this Agreement, including SAP's manuals, training materials, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, and complete or partial copies of the foregoing.


1.7 "EXTENSION" means an addition to the Software which does not require a Modification.


1.8 "MODIFICATION" means a change to the Software which changes the source code.


1.9 "NAMED USERS" means any combination of users licensed under this Agreement.


1.10 "NON-PRODUCTIVE USE" means Use of the Software solely for Licensee's or an authorized Affiliate's internal training, testing or developmental work.


1.11 "PRODUCTIVE USE" means Use of the Software solely to operate Licensee's or an authorized Affiliate's business.


1.12 "PROGRAM CONCEPTS" means the concepts, techniques, ideas, and know-how embodied and expressed in any computer programs or modules included in the Software, including their structure, sequence, and organization.


1.13 "PROPRIETARY INFORMATION" means: (i) with respect to SAP and SAP AG, the Software and Documentation and any complete or partial copies thereof, the Program Concepts, Third-Party Database, any other third-party software licensed with or as part of the Software, benchmark results; and (ii) information reasonably identifiable as the confidential and proprietary information of SAP or Licensee or their licensors excluding, any part of the SAP or Licensee Proprietary Information which: (a) is or becomes publicly available through no act or failure of the other party; or (b) was or is rightfully acquired by the other party from a source other than the disclosing party prior to receipt from the disclosing party; or (c) becomes independently available to the other party as a matter of right.


1.14 "RELEASE" means each issuance of the Software developed by or for SAP and/or SAP AG, excluding third party software, identified by the numeral to the left of the decimal point (e.g., 3.0).


1.15 "SAP AG" means SAP Aktiengesellschaft, the licensor of the SAP Proprietary Information to SAP.


1.16 "SOFTWARE" means (i) all software specified in agreed upon Appendices hereto, developed by or for SAP and/or SAP AG and delivered to Licensee hereunder; (ii) any Releases, Versions, or Correction Levels of the Software as contemplated by this Agreement; and (iii) any complete or partial copies of any of the foregoing.


1.17 "TERRITORY" means the United States of America, Canada, Mexico and all other countries in which SAP AG has wholly owned subsidiaries, which at the time of this Agreement, included the countries specified in Exhibit B, subject to United States export control laws as specified in Exhibit C.


1.18 "THIRD-PARTY DATABASE" means third-party proprietary database software licensed through SAP to Licensee.


1.19 "USE" means to load, execute, access, employ, utilize, store, or display the Software.


1.20 "VERSION" means each issuance of each Release of the Software developed by or for SAP and/or SAP AG, excluding third party software, identified by the numeral to the right of the decimal point (e.g., 3.1).


1.21 "YELLOW BUSINESS" or "BRANCH SALES AND SERVICES DIVISION" means that organization which provides cleaner services for parts and other specialized services to automotive repair, commercial and manufacturing customers. The division provides its services primarily through a network of locations supported by accumulation centers, recycling plants, oil refining plants and pcb processing facilities.


2. LICENSE GRANT.
-------------- 2.1 GRANT OF LICENSE.
(a) Subject to this Agreement, SAP grants and Licensee accepts, a non-exclusive, perpetual (unless terminated in accordance with Section 5 herein) license to Use the Software, Documentation, other SAP Proprietary Information and Third-Party Database provided by SAP to Licensee, at specified site(s) within the Territory for Productive and Non-Productive Uses. This license does not permit Licensee to: (i) Use the Software and Third-Party Database for a service bureau application; (ii) sublicense or rent the Software or Third-Party Database; or (iii) provide training to any third party except as specifically permitted hereunder.


(b) Licensee agrees to install the Software and Third-Party Database only on Designated Unit(s), intranet server(s) or internet server(s) as identified by Licensee pursuant to this Agreement and which have been previously approved by SAP in writing or otherwise officially made known to the public as appropriate for Use or interoperation with the Software and Third Party Database [such as through the Documentation or as found on SAPNet site (http://www.sap.com/service /index.htm)]. Any individuals directly or indirectly accessing the Software on behalf of Licensee, its Affiliates or Business Third Parties must be licensed as Named Users. The maximum number of Named Users (or other relevant metric) licensed to directly or indirectly access the Software, and/or Third Party Database, shall be specified in Appendices to this Agreement. Access by non-Named Users may be authorized provided the appropriate Software is licensed in Appendices hereto. Licensee shall promptly provide written notice to SAP if the number of Named Users or other relevant metric exceeds such maximum numbers.


(c) Licensee may transfer the Software and Third-Party Database from one Designated Unit to another at no additional license fee except for surcharges for specific installation locations as stated in Exhibit C, and shall provide written notice to SAP within fifteen business days of such installation. Licensee shall be responsible for the cost of any migration tools, Third-Party Database costs, third-party software or additional Software required for the new Designated Unit. The Software and Third-Party Database must be promptly deleted in their entirety from the Designated Unit no longer in Use and from each back-up copy for that Designated Unit.


(d) Licensee may install or have installed the Software and any Third Party Database on any reasonable number of Designated Units as necessary for Licensee to exercise its rights hereunder.


(e) Licensee may permit the services provider(s) reasonably selected by Licensee ("Outsourcers") to access the Software and Third Party Database solely for the purpose of providing facility, systems, outsourcing, development, implementation, processing, maintenance, support or other similar service, or disaster recovery services to Licensee, its Affiliates, and those parties identified in and in the manner provided in Section 10.3 in connection with the business of Licensee for which the Software is herein licensed PROVIDED: (i) SAP, Licensee, and such services provider execute a Confidentiality Agreement in the form attached as Exhibit D or a form which is materially equivalent to Exhibit D prior to such access; prior to such access; (ii) all employees of such services provider authorized to access the Software shall be considered Users; (iii) such services provider shall be permitted to Use the Software solely to operate the business of Licensee, its Affiliates, and those parties identified in and in the manner provided in Section 10.3 as set forth herein, (or in the case of a disaster recovery vendor, to provide disaster recovery services only); (iv) under no circumstances may such services provider Use the Software to operate or provide processing services to any other party, or in connection with such services provider's own business operations; (v) Licensee shall be responsible for any additional Software, migration tools, or third party software needed to effect such transition; and (vi) Licensee expressly agrees to indemnify SAP, its officers, employees, agents and subcontractors from and against all claims, liabilities, losses, damages and costs (including reasonable attorney fees) suffered by SAP arising form a breach by the services provider of the conditions of this Agreement or the Confidentiality Agreement


2.2 AUTHORIZATION OF AFFILIATES TO USE THE SOFTWARE. Affiliates shall be authorized to Use the Software and Third-Party Database; PROVIDED that: (i) each Affiliate shall first sign and deliver to SAP its agreement to be bound by the terms herein in the form of Exhibit E attached hereto; and (ii) such Use shall be subject to the following: (A) Licensee accepts responsibility for the acts or omissions of


such Affiliate as if they were Licensee's acts or omissions; (B) Licensee shall indemnify SAP against losses or damages suffered by SAP arising from breach of this Agreement by any such Affiliate as if effected by Licensee; and (C) such Use shall not constitute an unauthorized exportation of any SAP Proprietary Information under U.S. Government laws and regulations.


2.3 AUTHORIZATION OF BUSINESS THIRD PARTIES TO ACCESS THE SOFTWARE. Business Third Parties may have access to the Software provided (i) each Business Third Party accessing the Software shall execute a confidentiality agreement pursuant to Section 6.2 herein; (ii) all individuals directly or indirectly accessing the Software on behalf of Business Third Parties shall be licensed as Named Users; (iii) Business Third Parties are expressly limited to screen access to the Software; (iv) in no circumstances may Business Third Parties have access to Software source code; (v) in no circumstances shall Business Third Parties Use the Software to operate or manage the business of such Business Third Parties (vi) such Use shall be subject to the following: (A) Licensee accepts responsibility for the acts or omissions of such Business Third Parties as if they were Licensee's acts or omissions; (B) Licensee shall indemnify SAP against losses or damages suffered by SAP arising from breach of this Agreement by any such Business Third Party as if effected by Licensee; and (C) such Use shall not constitute an unauthorized exportation of any SAP Proprietary Information under U.S. Government laws and regulations.


2.4 AUDIT RIGHT. Upon SAP's reasonable request, which shall not occur more than once annually, Licensee shall deliver to SAP a report, as defined by SAP, evidencing Licensee's usage of the Software licensed under this Agreement. Should Licensee fail to produce such report within a reasonable period of time, SAP (or its authorized representative) reserves the right to access Licensee's Software installation(s) during normal business hours to generate a usage report and Licensee shall pay SAP's reasonable costs of generating such report. In the event an audit reveals Licensee's non-compliance with the terms of the Agreement or if SAP has a good faith reason to believe that the usage report generated by Licensee is inaccurate, SAP shall be permitted to perform a re-audit notwithstanding the one audit per year limitation.


(a) In the event Licensee does not provide the report as required above, during normal business hours and at any time during which the Software, Documentation, Third-Party Database, or other SAP Proprietary Information are being utilized, SAP, or its authorized representative or licensors, shall have the right during normal business hours upon reasonable advance notice to audit and inspect Licensee's or any Affiliate's utilization of such items, in order to verify compliance with the terms of this Agreement. SAP agrees to adhere to any reasonable governmental and/or Licensee security rules and regulations governing access to any Licensee Designated Site or Designated Unit(s) used by Licensee.


(b) In the event an audit reveals that Licensee underpaid License and/or Maintenance Fees to SAP, Licensee shall pay such underpaid fees based on the prices and conditions stated in Appendices to this Agreement..


(c) If SAP Proprietary Information is given to Business Third Parties pursuant to this Agreement, Licensee shall secure the right for SAP to audit such Business Third Party as specified in this Section. Upon SAP's reasonable request, Licensee shall deliver to SAP a report, as defined by SAP, evidencing Licensee's Usage of the Software licensed under this Agreement.


2.5 ARCHIVAL COPY; RESTRICTION ON COPIES; LEGENDS TO BE REPRODUCED. Licensee may make one (1) copy of the Software for archival purposes and such number of backup copies of the Software as are consistent with Licensee's normal periodic backup procedures. Licensee shall maintain a log of the number and location of all originals and copies of the Software. Licensee may reproduce or copy any portion of the Documentation into machine-readable or printed form for its internal use and only as required to exercise its rights hereunder. Licensee shall include, and shall under no circumstances remove, SAP's and its licensors' copyright, trademark, service mark, and other proprietary notices on any complete or partial copies of the Software, Documentation, Third-Party Database, or SAP Proprietary Information in the same form and location as the notice appears on the original work. The inclusion of a copyright notice on any portion of the Software, Documentation, Third-Party Database, or SAP Proprietary Information shall not cause or be construed to cause it to be a published work.


2.6 LICENSE FOR THIRD-PARTY DATABASE. The Software requires a third-party database which may be licensed through SAP or directly from a third-party database licensor approved by SAP. In the event Licensee obtains a license directly from a third-party database licensor, any restrictions imposed on Licensee directly by such third-party database licensor shall apply. SAP makes no representations or warranties as to the Third-Party Database or its operation.


3. DELIVERY. The licensed Software in machine-readable format (including,
--------- currently, the Software's application source code. Source code for the basis system, however, shall not be delivered except as may be provided for in Section 11), and the Documentation, shall be delivered as specified in Appendices hereto ("Delivery"). Licensee shall be responsible for installation of the Software. At Licensee's request, and in accordance with the terms of this Agreement and a Professional Services Agreement to be negotiated, Licensee may elect and SAP may agree to provide pre-installation support, installation support, consulting and training services ("Services") for the Software licensed hereunder.


4. PRICE AND PAYMENT.
------------------ 4.1 LICENSE FEES. In consideration of the license granted hereunder, Licensee shall pay to SAP license fees for the Software on such terms as set forth in Appendices hereto ("License Fees"). Fees for Maintenance ("Maintenance Fees") shall be paid as set forth in Appendices hereto. Fees for Professional Services ("Consulting Fees") shall be paid as set forth in a Professional Services Agreement. SAP's preferred method of receiving payment for all fees invoiced under this Agreement are by ACH or wire transfer to the SAP account listed on the invoice. Any fees Licensee does not pay when due and not disputed in good faith shall accrue interest at the rate of 18% per annum, but not to exceed the maximum amount as allowed by law. Licensee also agrees to pay SAP all reasonable costs and expenses of collection, including attorneys' fees.


4.2 TAXES. Fees and other charges described in this Agreement, or in SAP's most recent List of Prices and Conditions, do not include federal, state or local sales, use, property, excise, service, or similar taxes now or hereafter levied as a direct result of the Software license transactions as contemplated by this Agreement ("Tax(es)"), all of which shall be for Licensee's account. With respect to state/local sales tax, direct pay permits or a valid tax-exempt certificates must be provided to SAP prior to the execution of this Agreement. If SAP is required to pay Taxes (excepting taxes on SAP's income or franchise taxes), SAP shall invoice Licensee for such Taxes. Licensee hereby agrees to indemnify SAP for and hold it harmless from any Taxes and related costs, interest and penalties paid or payable by SAP, including late fees provided SAP timely invoices Licensee for such taxes and timely remits such payments made by Licensee to the applicable taxing authority.


5. TERM AND TERMINATION.
--------------------- 5.1 TERM. This Agreement and the license granted hereunder shall become effective as of the date first set forth above and shall continue in effect thereafter unless terminated under Section 5.2 .


5.2 TERMINATION. This Agreement and the license granted hereunder shall terminate upon the earliest to occur of the following: (i) sixty (60) days after Licensee gives SAP written notice of Licensee's desire to terminate this Agreement, for any reason, but only after payment of all License and Maintenance Fees then due and owing; (ii) sixty (60) days after SAP gives Licensee notice of Licensee's material breach of any provision of the Agreement (other than Licensee's breach of its obligations under Sections 6) including more than sixty (60) days delinquency in Licensee's payment of any money due hereunder not disputed in good faith, unless Licensee has cured such breach during such sixty (60) day period; or (iii) ten (10) days after SAP gives Licensee notice of Licensee's material breach of Section 6 unless Licensee has cured such breach during such ten (10) day period; (iv) immediately upon the occurrence of any of the following events, which exist as to Licensee and remain uncured for a period of more than thirty (30) days: (A) entry of an order for relief under Chapter 11 of the United States Code, appointment of a receiver or trustee in bankruptcy of Licensee's business or property, or an action under any state insolvency or similar law for the purpose of bankruptcy, reorganization, or liquidation, unless within the specified thirty (30) day period, Licensee, its receiver, or its trustee in bankruptcy provides to SAP adequate written assurances, reasonably acceptable to SAP, of Licensee's continuing ability and willingness to fulfill all of its obligations under the Agreement; (B) the making of an assignment for the benefit of creditors; or (C) Licensee's insolvency which means Licensee demonstrates an inability to meet its obligations under this Agreement when due. Notwithstanding the preceding (iv), SAP acknowledges and agrees that the current Chapter 11 bankruptcy proceeding, filed in the United States Bankruptcy Court for the District of Delaware, shall not be deemed a qualifying event under this section (iv)(A) however SAP in making this acknowledgement does not waive any rights it may have under applicable bankruptcy or other laws.


5.3 EFFECT OF TERMINATION. Upon any termination of this Agreement: Sections 2.4, 4, 6, 7.6, 8, 9, 12.5, 12.6 and 12.7 shall survive such termination; Licensee's rights under Section 2 shall immediately cease; and SAP and Licensee each shall promptly perform its obligations under Section 5.4. In the event of any termination hereunder, Licensee shall not be entitled to any refund of any payments made by Licensee. Termination of Maintenance or professional services provided to Licensee by SAP shall not terminate the license granted in Section 2 herein.


5.4 DUTIES UPON TERMINATION. Upon any termination hereunder, Licensee and its authorized Affiliates shall immediately cease Use of all SAP Proprietary Information and shall irretrievably delete and/or remove such items from all computer hardware and storage media. Notwithstanding the foregoing, in the event SAP is in material breach of the Agreement and the Agreement is terminated by Licensee, Licensee shall: (a) discontinue Use of the Software and all of the SAP Proprietary Information; (b) destroy or return, as provided herein, the CDs of the Software and all of the SAP Proprietary Information; and (c) reasonably destroy or delete the Software and all SAP Proprietary Information from the archival and backup copies. Within thirty (30) days after any termination, Licensee shall deliver to SAP at Licensee's expense (adequately packaged and insured for safe delivery) or destroy all copies of the SAP Proprietary Information. Licensee agrees an officer of Licensee's organization shall certify in writing to SAP that it and each of its authorized Affiliates has performed the foregoing. Within thirty (30) days after any termination, SAP shall return the Licensee Proprietary Information to Licensee.


6. PROPRIETARY RIGHTS.
------------------- 6.1 SAP PROPRIETARY INFORMATION.


(a) Licensee acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the SAP Proprietary Information are and shall remain in SAP and its licensors. Licensee acquires only the right to Use the SAP Proprietary Information and does not acquire any ownership rights or title in or to the SAP Proprietary Information and that of SAP's licensors.


(b) Licensee shall not copy, translate, disassemble, or decompile, nor create or attempt to create, by reverse engineering or otherwise, the source code from the object code of the Software. In the event source code is provided to Licensee, SAP, in its sole discretion, reserves the right to delete, or to require the deletion of, such source code and all copies thereof in Licensee's possession or control whenever a future Release, Version, or Correction Level provides for like functionality in an object code format. Subject to the Licensee receiving Maintenance, SAP will not, however, delete or require deletion of such source code and all copies thereof unless or until the parties mutually agree upon the migration to a future Release, Version, or Correction Level.


(c) Subject to Section 6.3(b), all Modifications and Extensions to the Software and Documentation shall be considered part of the Software and Documentation for purposes of this Section 6.


6.2 PROTECTION OF PROPRIETARY INFORMATION. In order to protect the rights of SAP and its licensors and Licensee in their respective Proprietary Information, SAP and Licensee agree to take all reasonable steps and the same protective precautions to protect the Proprietary Information from disclosure to third parties as with its own proprietary and confidential information. Neither party shall,


without the other party's prior written consent, disclose, provide, or make available any of the Proprietary Information of the other party in any form to any person, except to its bona fide employees, officers, directors, consultants, service providers or third parties whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees that prior to disclosing any Proprietary Information of the other party to any third party, it will obtain from that third party a written acknowledgment that such third party will be bound by the same terms as specified in this Section 6 with respect to the Proprietary Information and naming SAP or Licensee, as the case may be, as a third party beneficiary. To the extent any Proprietary Information is required to be disclosed pursuant to a requirement of a government agency, a court exercising proper jurisdiction, or by operation of law, rule, or regulation the disclosing party may make such disclosure provided that the disclosing party will promptly notify the other party in writing prior to making any such disclosure in order to facilitate the non-disclosing party seeking a protective order or other appropriate remedy from the proper authority. The disclosing party agrees to cooperate with the other party in seeking such order or other remedy. The disclosing party further agrees that if the other party is not successful in precluding the requesting legal body from requiring the disclosure of the Proprietary Information, it will furnish only that portion of the Proprietary Information which is, in the opinion of its counsel, required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Proprietary Information.


6.3 MODIFICATIONS AND EXTENSIONS.
(a) Licensee and at Licensee's direction, its authorized Affiliates and Outsourcers may make Modifications and Extensions to the Software developed by or for SAP and/or SAP AG other than third party software, for Use on the Designated Unit(s) under the terms set forth in this section. Licensee shall register all Modifications to the Software with SAP prior to making such Modifications through the SAPNet R/3 Frontend [formerly known as On-line Software Services (OSS)]. Licensee agrees to insert in all copies of the Software as modified all copyright, trade secret, or other notices thereon or therein as SAP may from time to time direct.


(b) In the event Licensee without SAP's participation develops any Modification or Extension (hereinafter referred to as "Licensee Extension" or "Licensee Mod ...