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SAP AMERICA, INC.
R/3 SOFTWARE END-USER LICENSE AGREEMENT
(Agreement)
 SAP Licensee
    1.
    
    DEFINITIONS.1.1
    
    ABAP /4 Development Workbench Users (D/W Users) means those individuals
authorized to use the ABAP/4 Development Workbench. Each D/W User must also be licensed as a
Basis/Workflow User.1.2
    
    Affiliate means a corporation located in the Territory in which Licensee owns more
than fifty percent of the voting securities. Any such entity shall be considered an
Affiliate for only such time as Licensee continues to own such equity interest.1.3
    
    Basis/Workflow Users means those individuals authorized to access the licensed
Software solely for the purpose of executing the following transactions: (i) document
management, including optical archiving; (ii) workflow organizational management; (iii)
monitoring and administration of the Software; (iv) creating IDocs; (v) initializing
workflows; (vi) all Enterprise Office/HR User transactions in the licensed Software as
specified herein; and (vii) all transactions in the licensed Human Resources functionality.1.4
    
    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.1.5
    
    Correction Level means a change to the Software between Versions (3. l(a)).1.6
    
    Designated Unit means each individual computer in which the Software and
Third-Party Database are installed.1.7
    
    Documentation means SAPs standard documentation, in any medium, which is delivered
to Licensee under this Agreement, including SAPs standard manuals, program listings, data
models, flow charts, logic diagrams, functional specifications, instructions, and complete or
partial copies of the foregoing.1.8
    
    Enterprise Office/HR Users means those individuals authorized to access the
licensed Software solely for the purpose of executing the following transactions: (i) employee
records maintenance; (ii) employee time and attendance entry; (iii) employee travel and
expense report filing; (iv) employee directory; (v) employee training registration; (vi)
employee opportunity inquiry and response; (vii) calendar functions; (viii) employee specific
purchase requisition; and (ix) e-mail. Each Enterprise Office/HR User may execute the above
transactions solely for such individuals own purposes or on behalf of other licensed Users
and may not execute transactions for or on behalf of unlicensed individuals.1.9
    
    Extension means an addition to the Software which does not require a Modification.1.10
    
    Information Users (Info Users) means those individuals authorized to access the
licensed Software solely to perform  read only  Software transactions. Each Information User
must also be licensed as a Basis/Workflow User.1.11
    
    Modification means a change to the Software which changes the source code.
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1.12
    
    Named Users or Operational Users means those individuals authorized to access the
licensed Software to execute Software transactions. Each Named or Operational User must
also be licensed as a Basis/Workflow User.1.13
    
    Non-Productive Use means Use of the Software solely for Licensees or an authorized
Affiliates internal training, testing or developmental work.1.14
    
    Productive Use means Use of the Software solely to operate Licensees or an
authorized Affiliates business.1.15
    
    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.1.16
    
    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.1.17
    
    Release means each issuance of the Software, excluding third party software, identified by
the numeral to the left of the decimal point (e.g., 3.0).1.18
    
    Requisitions and Confirmation Users (R/C Users) means those individuals authorized to
access the licensed Software solely for the purpose of submitting purchase requisitions or
entering production order completion confirmations, Each R/C User must also be licensed as a
Basis/Workflow User.1.19
    
    SAP AG means SAP Aktiengesellschaft, the licensor of the SAP Proprietary Information to SAP.1.20
    
    Session Users means (i) that number of individuals, other than employees of Licensee,
Affiliates, or identifiable employees of Business Third Parties, licensed to simultaneous
execute sessions on an internet server or Third Party Front-End interfaced to the Software or;
(ii) that number of devices authorized to simultaneously execute sessions on an internet
server or Third Party Front-End interfaced to the Software.1.21
    
    Software means (i) all software specified in agreed upon Appendices hereto, developed by
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.1.22
    
    Territory means the United States of America and any additional countries as agreed upon in
advance in writing by the parties.1.23
    
    Third Party Front-End means any Licensee or third party software and/or device
interfaced to the Software.124
    
    Third-Party Database means third-party proprietary database software licensed through
SAP to Licensee.1.25
    
    Use means to load, execute, access, employ, utilize, store, or display the Software.1.26
    
    Users means any combination of Named or Operational, Information, R/C, D/W, Basis/Workflow,
Enterprise Office/HR, or Session Users licensed under this Agreement.1.27
    
    Version means each issuance of each Release of the Software, excluding third party
software, identified by the numeral to the right of the decimal point (3.1).
 SAP CONFIDENTIAL
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2.
    
    LICENSE GRANT.2.1
    
    Grant of License.
    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 B 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 shall execute
a confidentiality agreement pursuant to Section 6.2 herein; (ii) all Business Third Parties
accessing the Software shall be licensed as Users; (ii) 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. During Licensees 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 upon
at least 10 business days advance written 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. If 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.2.5
    
    Archival Copy; Restriction on Copies; Legends to be Reproduced.
  SAP CONFIDENTIAL
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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, and the
Documentation, shall be delivered as specified in Appendices hereto
(Delivery). Licensee shall be responsible for installation of the Software.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. Any fees
Licensee does not pay when due 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
attorneys fees.4.2
    
    Taxes. License and Maintenance Fees and other charges described in
this Agreement and its Appendices, 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 (Tax(es)) now or hereafter levied, all of
which shall be for Licensees account. With respect to state/local sales tax,
Licensee shall provide prior to the execution of this Agreement (i) a valid
Direct Pay Permit to SAP; or (ii) a valid Tax-Exempt Certificate to SAP. If
Licensee does not comply with (i) or (ii), SAP will determine the appropriate
Taxes (excepting only taxes on net income) which are due, invoice Licensee for
such sales tax, and pay the Taxes it determined to be due to the appropriate
tax authorities. Licensee hereby agrees to indemnify SAP for and hold it
harmless from (1) any Taxes (excepting only taxes on net income) paid or
payable by SAP; (2) all costs incurred by SAP in determining and remitting the
Taxes due; and (3) interest and penalties, if any, imposed by reason of the
late payment or miscalculation of any Taxes.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) thirty 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) forty-five days after SAP gives
Licensee written notice of Licensees material breach of any provision of the
Agreement), including more than forty-five days delinquency in Licensees
payment of any money due hereunder, unless Licensee has cured such breach
during such forty five day period; (iii) ten days after SAP gives notice of
Licensees material breach of Section 6, unless Licensee has cured such breach
during such ten day period (iv) Immediately if Licensee files for bankruptcy,
becomes insolvent, or makes an assignment for the benefit of creditors.5.3
    
    Effect of Termination. Upon any termination of this Agreement:
Sections 6, 7.4, 8, 9, 10, 12.5, 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, except as otherwise may be provided for pursuant to
Section 8.3 or Section 9.1 (iii), Licensee shall not be entitled to any refund of any payments made by Licensee.
 SAP CONFIDENTIAL
 
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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. Within forty-five 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 in every form. 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 forty-five days after any termination, SAP
shall return the Licensee Proprietary Information to Licensee.6.
    
    PROPRIETARY RIGHTS6.1
    
    SAP Proprietary Information.
    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, 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, including identifiable Business Third Parties, 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 as a third party beneficiary.6.3
    
    Modifications and Extensions.
    SAP CONFIDENTIAL
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6.4
    
    Escrow Of Source Code.
         SAP CONFIDENTIAL
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7.
    
    PERFORMANCE WARRANTY.7.1
    
    Warranty Period; Warranty. SAP warrants that the Software will
substantially conform to the functional specifications contained in the
Documentation for nine months following Delivery (the Warranty
Period) when Used without material alteration on the Designated Unit(s).
SAPs warranty is subject to Licensee providing SAP necessary access, including
remote access, to the Software. Licensee shall provide SAP with sufficient test
time and support on Licensees Designated Unit(s) to correct the defect.7.2
    
    Scope of Warranty.
   7.3
    
    Year 2000 Compliance. SAP represents and warrants that its R/3
Software is Year 2000 Compliant. Year 2000 Compliant means the ability of
R/3 to:
     7.4
    
    SAP has taken best efforts to test the Software licensed pursuant to the
Appendices for Disabling Code (as defined herein) and to the best of its
knowledge, the Software and all current and future Releases and Versions of the
Software delivered to Licensee shall be free of Disabling Code as of the date
of delivery by SAP. Disabling Code is defined as computer instructions that
alter, destroy or inhibit the licensed Software and/or Licensees processing
environment, including but not limited to other programs data storage and
computer libraries, programs that self-replicate without manual intervention,
instructions programmed to activate at a predetermined time upon a specified
event, and/or programs purporting to do a meaningful function but designed for
a different function or any other computer virus. It is agreed this Section
does not include screen lock-out features for: (i) Users in excess of the
number of Users authorized under this Agreement; (ii) Use of an unauthorized
copy of the Software; or (iii) unauthorized Modifications pursuant to Section
6.3(a) of the Agreement. In the event SAP intends to use Disabling Code in
the future, SAP will notify Licensee in writing.7.5
    
    Express Disclaimer. SAP AND ITS LICENSORS DISCLAIM ALL OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY
WAIVED.8.
    
    INDEMNIFICATION.8.1
    
    SAP Representation. SAP represents that its licensors own the Proprietary Information licensed by SAP hereunder, including all intellectual property rights therein, and that SAP has all rights from its licensors
necessary to license, in accordance with the terms of this Agreement, such Proprietary Information to
Licensee.8.2
    
    No Representation Regarding Combination Use. SAP and its licensors
make no representation with respect to the possibility of infringement by
Combination Use of the Software. The parties agree that SAP has no duty to
investigate nor to warn Licensee of any such possibility. Combination
Use means Use of
 SAP CONFIDENTIAL
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8.3
    
    Indemnification of Licensee.
 provided in
  8.4
    
    Indemnification of SAP. Licensee shall indemnify SAP, and its licensors, against all
third party claims, liabilities, and costs, including reasonable legal fees, reasonably
incurred in the defense of any claim (other than for the infringement of intellectual property
rights specified in Section 8.3 above), arising out of Licensees unauthorized Use of the
Software, Documentation, Third-Party Database, and other SAP Proprietary Information, licensed
under this Agreement, provided that, SAP promptly notifies Licensee in writing of such
claim and that Licensee is permitted to control fully the defense and any settlement of the
claim.8.5
    
    SAPs Right to Commence Infringement Actions. SAP alone shall be responsible for
taking such actions which it determines are reasonably necessary or desirable in its sole
discretion in connection with any infringement or alleged infringement by a third party of any
portion of the Software and Documentation. Licensee shall not undertake any action in response
to any infringement or alleged infringement of the Software and Documentation without the
prior written consent of SAP, which consent shall not be unreasonably withheld. Licensee
agrees to cooperate with and assist SAP by taking whatever action which SAP determines to be
reasonably necessary or desirable. SAP agrees to reimburse, within a commercially reasonable
period of time. Licensee for reasonable legal fees and other expenses incurred in connection
with any such claim, suit, damage, or loss.8.6
    
    SAPs Duty to Indemnify Licensee. THE PROVISIONS OF THIS SECTION 8 STATE THE SOLE,
EXCLUSIVE, AND ENTIRE LIABILITY OF SAP AND ITS LICENSORS TO LICENSEE, AND IS LICENSEES SOLE
REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.9.
    
    LIMITATIONS OF LIABILITY.9.1
    
    Licensees Remedies. Licensees sole and exclusive remedies for any damages or
loss in any way connected with the Software or services furnished by SAP and its licensors,
whether due to SAPs negligence or breach of any other duty, shall be, at SAPs option: (i)
to bring the performance of the Software into substantial compliance with the functional
specifications; (ii) re-performance of services; or
 SAP CONFIDENTIAL
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9.2
    
    SAP Not Responsible. SAP will not be responsible under this Agreement for: (i) any
alteration of the Software to fit the particular requirements of Licensee; or (ii) the
correction of any defects resulting from Modifications or Extensions or as a result of misuse
of the Software by Licensee; or (iii) preparation or conversion of data into the form required
for use with the Software or (iv) ensuring the security of Licensees networked installation
of the Software. THE SOFTWARE IS NOT SPECIFICALLY DEVELOPED OR LICENSED HEREUNDER FOR USE
IN ANY DIRECT AND ACTIVE OPERATIONS OF ANY EQUIPMENT IN ANY NUCLEAR, AVIATION, MASS
TRANSIT, OR MEDICAL APPLICATIONS, OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. THE
PARTIES HERETO AGREE THAT USE OF THE SOFTWARE AND THIRD-PARTY SOFTWARE FOR FINANCIAL
APPLICATION PURPOSES OR SUCH OTHER ADMINISTRATIVE PURPOSES SHALL NOT BE DEEMED INHERENTLY
DANGEROUS APPLICATIONS IF SUCH USE DOES NOT AFFECT THE OPERATIONS OR MAINTENANCE OF SUCH
EQUIPMENT. SAP AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING
FROM SUCH INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD-PARTY SOFTWARE
LICENSED HEREUNDER.9.3
    
    Exclusion of Damages. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR
DAMAGES RESULTING FROM UNAUTHORIZED USE AND/OR DISCLOSURE OF THE PROPRIETARY INFORMATION OR AS
PROVIDED PURSUANT TO SECTION 8.3(b), UNDER NO CIRCUMSTANCES SHALL SAP AND ITS LICENSORS OR
LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT OF DAMAGES IN
EXCESS OF THE PAID LICENSE FEES OR BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR
INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER
FAILURE OR MALFUNCTION, OR EXEMPLARY OR PUNITIVE DAMAGES. The provisions of the Agreement
allocate the risks between SAP and Licensee, The License Fees reflect this allocation of risk
and the limitations of liability herein.9.4
    
    Severability of Actions. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND
EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF
WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT
OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
 SAP CONFIDENTIAL
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10
    
    ARBITRATION. Except for the right of either party to apply to a court of
competent jurisdiction for injunctive relief, any controversy or claim arising out of or
relating to this Agreement, other than as to ownership or title to intellectual property
rights in the Proprietary Information or the right of SAP to bring suit for any payments
due hereunder, shall be settled by arbitration in Dallas, Texas in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
Arbitration shall be conducted by a panel of three members, SAP and Licensee each selecting
one member and the third member, who shall be chairman, selected by agreement between the
other two members. The chairman shall be an attorney-at-law, and the other members shall
have a background or training in computer law, computer science, or marketing of computer
products. The arbitrators shall have the authority to grant injunctive relief in a form
substantially similar to that which would otherwise be granted by a court of law.11
    
    ASSIGNMENT. Neither party may, without the others prior written consent which
consent shall not be unreasonably withheld, assign, delegate, sublicense, pledge, or otherwise
transfer this Agreement, or any of its rights or obligations under this Agreement, or the SAP
Proprietary Information , to any party, including any Affiliate. Any permitted assignment of
this Agreement shall provide that the provisions of this Agreement shall continue in full
force and effect and the assigning party shall guaranty the performance of its assignee and
shall remain liable for all obligations hereunder. Notwithstanding the foregoing,SAP may
assign this Agreement to SAP AG. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.Notwithstanding the foregoing, Licensee shall have the right to assign or transfer this
Agreement or any interest herein (excluding any third party products) to any entity which
acquires all or substantially all of Licensees operating assets, or in the event Licensee
is merged or reorganized pursuant to any plan of merger or reorganization, subject to the
condition that Licensee provides SAP with: (a) a statement, signed on behalf of the
Assignee, that such Assignee agrees to abide by the terms of this Agreement; (b) evidence,
reasonably satisfactory to SAP, of such Assignees corporate authority to enter into this
Agreement; and (c) sufficient evidence that such Assignee has a minimum net worth
sufficient in SAPs reasonable judgment, to allow Assignee to perform its obligations
under this Agreement.12
    
    GENERAL PROVISIONS.12.1
    
    Rights to Injunctive Relief. Both parties acknowledge that remedies at law may be
inadequate to provide SAP or Licensee with full compensation in the event of Licensees
material breach of Sections 2, 6,11 or 12.5, or SAPs material breach of Section 6 with
respect to Licensee Proprietary Information, and that the non-breaching party shall therefore
be entitled to seek injunctive relief in the event of any such material breach.12.2
    
    Severability. It is the intent of the parties that in case any one or more of the
provisions contained to this Agreement shall be held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not affect the other provisions of this
Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision
had never been contained herein.12.3
    
    No Waiver. If either party should waive any breach of any provision of this
Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of
the same or any other provision hereof.12.4
    
    Counterparts. This Agreement may be signed in two counterparts, each of which shall
be deemed an original and which shall together constitute one Agreement.12.5
    
    Export Control Notice. Regardless of any disclosure made by Licensee to SAP of an
ultimate destination of the Software, Documentation, Third-Party Database, and other
provided SAP Proprietary Information Licensee acknowledges that the Software, Documentation,
Proprietary Information, and the Third-Party Database are being released or transferred to
Licensee in the United States and are therefore subject to the U.S. export control laws.
Licensee acknowledges its exclusive obligation to ensure that its exports from the United
States are in compliance with the U.S. export control laws. Licensee shall also be
responsible for complying with all applicable governmental regulations of any foreign
countries with respect to the use of the Proprietary Information by its Affiliates outside
of the United States. Licensee agrees that it will not submit the Software to any government
agency for licensing consideration or other regulatory approval
 SAP CONFIDENTIAL
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12.6
    
    Confidential Terms and Conditions. Licensee shall not disclose the terms and
conditions of this Agreement and the pricing contained therein to any third-party, except
as required to be disclosed pursuant to the requirements of a government agency or by
operation of law, rule or regulation, provided that SAP is consulted prior to such
disclosure. Neither party shall use the name of the other party in publicity, advertising,
or similar activity, without the prior written consent of the other, except that Licensee
hereby consents to SAPs inclusion of Licensees name in customer listings which may be
published as part of SAPs marketing efforts.12.7
    
    Governing Law. This Agreement shall be governed by and construed under Delaware
law without reference to its conflicts of law principles. In the event of any conflicts
between foreign law, rules, and regulations, and United States of America law, rules, and
regulations, United States of America law, rules, and regulations shall prevail and govern.
The United Nations Convention on Contracts for the International Sale of Goods shall not
apply to this agreement.12.8
    
    Notices. All notices or reports which are required or may be given pursuant to this
Agreement shall be in writing and shall be deemed duly given when delivered to the respective
executive offices of SAP and Licensee at the addresses first set forth above.12.9
    
    Force Majeure. Any delay or nonperformance of any provision of this Agreement
(other than for the payment of amounts due hereunder) caused by conditions, including an act
of God, war, civil commotion, fire, explosion or other similar event beyond the reasonable
control, and without the fault or negligence of the nonperforming party, shall not constitute
a breach of this Agreement, and the time for performance of such provision, if any, shall be
deemed to be extended for a period equal to the duration of the conditions preventing
performance.12.10
    
    Entire Agreement. This Agreement and each Appendix hereto constitute the
complete and exclusive statement of the agreement between SAP and Licensee, and all previous
representations, discussions, and writings are merged in, and superseded by, this Agreement.
This Agreement may be modified only by a writing signed by both parties. This Agreement and
each Appendix hereto shall prevail over any additional, conflicting, or inconsistent terms
and conditions which may appear on any purchase order or other document furnished by Licensee
to SAP.
  Approved:
    
    
    
    Approved:SAP AMERICA, INC.
    
    
    
    Sport Supply Group, Inc.By:
    
    /s/ BRAD C. BRUBAKER
    
    
    
    By:
    
    /s/ JOHN WALKERName:
    
    BRAD C. BRUBAKER
    
    
    
    Name :
    
    JOHN WALKERTitle:
    
    VICE PRESIDENT
    
    
    
    Title :
    
    EVP- CEODate:
    
    6/28/98
    
    
    
    Date:
    
    6/11/98
 SAP CONFIDENTIAL
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EXHIBIT A
to
SAP AMERICA, INC.  SPORT SUPPLY GROUP R/3 SOFTWARE END-USER LICENSE AGREEMENT
(Agreement) effective June 11, 1998
 AUTHORIZED AFFILIATE AGREEMENT
 
   3.
    
    The number of Users licensed under the Agreement by Licensee and allocated to Affiliate hereunder is as follows:
 Named Users
    
    ____________Information Users
    
    ____________Requisition and confirmation Users
    
    ____________Development Workbench Users
    
    ____________Basis/Workflow Users
    
    ____________Enterprise Office/HR Users
    
    ____________
   SAP AMERICA, INC.
    
    
    
    ATHLETIC TRAINING EQUIPMENT COMPANY, INC.SAP
    
    
    
    
    
    AffiliateBy:
    
    
    
    
    
    By:By:
    
    
    
    
    
    Title:Date:
    
    
    
    
    
    Date:
 SAP
CONFIDENTIAL




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Appendix 1
effective June 11, 1998 (Appendix)
to
SAP AMERICA, INC. (SAP)  SPORT SUPPLY GROUP, INC.
(Licensee) R/3 SOFTWARE
END-USER LICENSE AGREEMENT effective June 11, 1998 (Agreement)
  1.
    
    SOFTWARE/USERS LICENSED:
 1.1
    
    GENERAL FUNCTION BLOCKS LICENSED:
 FI
    
    Financial Accounting/Asset AccountingTR-CM, FM
    
    Cash and Funds ManagementIM
    
    Investment ManagementCO
    
    ControllingEC
    
    Enterprise ControllingPS
    
    Project SystemMM
    
    Material ManagementPM
    
    Plant MaintenanceSD
    
    Sales and DistributionPP
    
    Production PlanningDW
    
    ABAP/4 Development WorkbenchBC
    
    Basis
 1.2
    
    USERS:
 Number of Users Licensed:Named/Operational Users
    
    
    160
    
    
    Users*Info Users
    
    
    40
    
    
    Users*D/W Users
    
    
    3
    
    
    Users*
 
 *The above Users are also licensed as Basis/Workflow Users 1.3
    
    DATABASE:
 Database Interface
    
    
    203
    
    
    Users
 OTHER SOFTWARE LICENSED:
 None
  SAP
CONFIDENTIAL
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Prices and Conditions. Double byte functionality and European country/language
functionality cannot be installed on the same Designated Unit.2.
    
    LICENSE FEE AND PAYMENT: The total List Price License Fee to Licensee for the
Software specified above for the total number of Users is USD 785,990. Such List Price
License Fee shall be discounted by USD 117,899 for a total Net License Fee to Licensee of USD
668,092 which shall be invoiced on June 30, 1998 and is payable net thirty (30) days thereafter.In the event the quantity of Users and/or Software licensed above are not adhered to by
Licensee or its Affiliates, Licensee agrees, within a reasonable period of time, to
provide written notice to SAP, and SAP reserves the right to modify the Agreement to
reflect such additional Software and/or Users, invoice Licensee for such additional
Software and/or Users at SAPs then current pricing in effect and increase Maintenance
Fees accordingly.3.
    
    INSTALLATION: For Software to be installed on a specific Licensee or Affiliate
Designated Unit within the Territory, Licensee shall provide SAP with written notice of the
type/model and serial number and location of each Designated Unit and the number of Users allocated to
each such Designated Unit prior to such installation. Such notice shall be sent to Attention:
SAP Contract Department, Attention Contract Manager, Six Concourse Parkway, Suite 1200,
Atlanta, Georgia 30328-5351.4.
    
    DELIVERY: Initial delivery by SAP of the above-specified Software and
Documentation is estimated to take place in June, 1998.5.
    
    MAINTENANCE:
 5.1 Maintenance
 5.2
 5.3
 5.4
  5.5
 SAP CONFIDENTIAL
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5.6
  5.7 EXAMPLE:
 6.
    
    THIRD-PARTY DATABASE:Software licensed hereunder currently requires a Third-Party Database, which Licensee
is licensing directly from a third party. 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.
    
    LICENSE KEY: Each Productive Use copy and Non-Productive Use copy of the Software
licensed hereunder requires a license keycode. For each installation of the Software, five (5)
keycodes shall be provided; quantity one (1) for Productive Use of the Software; and quantity four
(4) for Non-Productive Use of the Software. The license keycodes will be issued by SAP
 SAP CONFIDENTIAL
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##### 



AG within four (4) weeks from the date of installation of the Software on each
Designated Unit. The required form to receive the license keycodes from SAP AG must be
executed by Licensee and faxed to SAP AG within the four (4) week period following
installation of the Software. The applicable form and fax number will
be included in each
installation kit provided to Licensee upon delivery of the Software. Licensees that
subsequently change Designated Units for Use of the licensed Software must be re-issued
license keycodes for each respective copy of the licensed Software. Failure of Licensee to
obtain necessary license keycodes for the licensed Software within four (4) weeks of
installation of such Software, will cause the Software to have limited User access until
such time as the license keycodes are issued.8.
    
    Until November 1, 2001, Licensee have the right to license additional Users or SAP R/3
software (excluding third party software, optional packages, industry specific software or
other SAP software published as non-discountable) at a discount of fifteen percent (15%) from
SAPs then current list price. Additional Users shall be licensed in minimum blocks of ten (10)
Users (any combination of Named, Info, R/C, D/W or Basis/Workflow). Such License Fee shall
include all General Function Blocks set forth in item 1. above. Licensee shall be
responsible for Third-Party Database license fees in connection with licensing such additional Users or
software. Payment for such additional license fees due SAP shall be net 30 days from the date of SAP
invoice. After November 1, 2001, all such pricing shall be at SAPs then-current prices
in effect.9.
    
    VALIDITY OF OFFER: The validity of this Appendix will expire June 30, 1998, unless
sooner executed by the Licensee hereto, or extended in writing by SAP.
 Approved:
    
    
    
    Approved:SAP AMERICA, INC.
    
    
    
    Sport Supply Group, Inc.By:
    
    /s/ Brad C. Brubaker
    
    
    
    By:
    
    /s/ John WalkerName:
    
    Brad C. Brubaker
    
    
    
    Name:
    
    John WalkerTitle:
    
    Vice President
    
    
    
    Title:
    
    EVP & CFODate:
    
    6/28/98
    
    
    
    Date:
    
    6/11/98
 SAP CONFIDENTIAL




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##### 



SAP DEDUCTIONS MANAGEMENT
 APPENDIX 2
effective October 15, 1998 (Appendix)
to
SAP AMERICA, INC. SOFTWARE END-USER LICENSE AGREEMENT (Agreement)
with
SPORT SUPPLY GROUP, INC.
effective June 11, 1998
 This Appendix is hereby annexed to and made a part of the Agreement specified above. In
each instance in which provisions of this Appendix contradict or are inconsistent with the
provisions of the Agreement, the provisions of this Appendix shall prevail and govern, and
the contradicted or inconsistent provisions of the Agreement shall be deemed amended
accordingly; otherwise, all provisions of the Agreement remain in effect.1.
    
    LICENSE GRANT:1.1
    
    SAP Deductions Management Component
(Software)
Provided Licensee does not exceed the annual revenue level specified below Level,
Users licensed in Appendices to the Agreement are permitted to Use the Software in accordance
with their respective User type.LICENSEES ANNUAL REVENUE:
 Check Applicable Level:X
    
    Up to USD 200,000,000Up
to 1.0 billionUp
to 2.5 billionUp
to 5.0 billionGreater
than 5.0 billion
 2.
    
    The Net License Fee to Licensee for the Component specified above is USD 15,000. Such
Net License Fee shall be discounted by USD 2,250 for a total Invoice
Amount to Licensee of
USD 12,750 which shall be invoiced on October 30, 1998 and is payable net thirty (30) days thereafter.In the event the quantity of Users and/or Software licensed above are not adhered to
by Licensee or its Affiliates, Licensee agrees, within a reasonable period of time, to
provide written notice to SAP, and SAP reserves the right to modify the Agreement to reflect
such additional Software and/or Users, invoice Licensee for such additional Software and/or
Users at SAPs then current pricing in effect and increase Maintenance Fees accordingly.3.
    
    For Software to be installed on a specific Licensee or Affiliate Designated Unit within the
Territory, Licensee shall provide SAP with written notice of the type/model and serial number and location of each Designated
Unit and the number of Users allocated to each such Designated Unit prior to such installation. Such notice shall be in a
form materially similar to Schedule I attached hereto and is to
be sent to: SAP America, Inc., Attention: Contract
Manager, 5555 Glenridge Connector, Atlanta, Georgia 30342.4.
    
    Initial delivery by SAP of the above-specified Component is estimated to take place in October
1998.5.
    
    Licensee acknowledges that the Component is designed for use with Release 3.0F and up. The
Component is not downwardly compatible with previous Releases, Versions or Levels.6.
    
    Licensee acknowledges that the Component is available in English language only.7.
    
    (a)      Maintenance of the Software shall be provided in accordance with Appendix 1
effective June 11, 1998.(b)      Maintenance at such site(s) shall commence November 1, 1998.In the event Maintenance does not commence upon execution of this Appendix, or is otherwise
declined for some period of time, and is subsequently requested or reinstated, SAP will invoice the customer the accrued
maintenance service fees associated with such time period plus a
reinstatement fee.
 SAP CONFIDENTIAL
 1




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(c) The Maintenance Fee for the Software licensed under this Appendix, for the total
number of Users specified above is currently priced at fifteen percent (15%) of the Net
License Fee. The current Maintenance Fee for the Software licensed under this Appendix is USD
2,250. Other than as provided for above, Maintenance Fees are subject to change once during a
calendar year upon ninety (90) days notice to Licensee.8.
    
    The validity of this Appendix will expire October 30, 1998, unless sooner executed by
the parties hereto, or extended in writing by SAP.
 Approved:
    
    
    
    Approved:SAP AMERICA, INC.
    
    
    
    SPORT SUPPLY GROUP, INC.By:
    
    /s/ Brad C. Brubaker
    
    
    
    By:
    
    /s/ Jennifer E. ThomasName :
    
    Brad C. Brubaker
    
    
    
    Name:
    
    Jennifer E. ThomasTitle:
    
    Vice President
    
    
    
    Title:
    
    VP-FinanceDate :
    
    12/26/98
    
    
    
    Date:
    
    12/26/98
 SAP CONFIDENTIAL
 2




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Schedule 1
to Appendix 2 effective October 15, 1998
 Software and User Allocation
   Location of Designated Unit:
    1901 DiplomatFarmers Branch, TX   75234Telephone Number:
    972-406-3407Software Delivery Contact Person: John Maguire
 Hardware Information
    
    Operating System
    
    DatabaseManufacturer
    
    Model
    
    Manufacturer
    
    Release
    
    Manufacturer
    
    ReleaseIBM
    
    AS400
    
    IBM
    
    OS400
    
    IBM
    
    DB2400Tape Formal
    
    o 4MM(only for OS/390)
    
    o 3480o 6250
  160
    
    Named/Operational Users
    
    
    
    Enterprise Office/HR Users40
    
    Information Users
    
    
    
    Session UsersR/C Users
    
    
    
    PA Master RecordDevelopment Workbench Users
    
    
    
    PD Master RecordBasis/Workflow Users
  
 Jennifer E. Thomas
    
    
    
    Date:
    
    10/26/98Name:V.P. FinanceTitle:Sport
Supply Group, Inc.Company (Licensee)
 SAP CONFIDENTIAL




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##### 



Amendment 1 to Appendices 1 and 4
Effective January 1, 2004
to
SAP AMERICA, INC. (SAP)  SPORT SUPPLY GROUP, INC.
(Licensee) R/3
SOFTWARE END-USER LICENSE AGREEMENT effective June 11, 1998 (Agreement)
  A. Appendix 1
  a)
    
    delete 160 Named/Operational Users and replace with
98 Named/Operational Users,b)
    
    delete 40 Info Users and replace with 45 Info Users,c)
    
    delete 3 D/W Users and replace with 10 D/W Users, andd)
    
    delete 203 Database Interface Users and replace with
153 Database InterfaceUsers.
   B. Appendix 4
  a)
    
    delete 11 R/C Users and replace with 40 R/C Users andb)
    
    delete 9 Basis Users and replace with 17 Basis Users.




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##### 



ACCEPTED BY:
    
    
    
    ACCEPTED BY:SAP AMERICA INC.
    
    
    
    SPORT SUPPLY GROUP, INC.BY:
    
    /s/ Charles F. Tisa
    
    
    
    BY:
    
    /s/ Terrence M. BabillaNAME:
    
    Charles F. Tisa
    
    
    
    NAME:
    
    Terrence M. BabillaTITLE:
    
    Vice President
    
    
    
    TITLE:
    
    COODATE:
    
    4-15-04
    
    
    
    DATE:
    
    4-15-04




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##### 



VIA DHL
 Sport Supply Group, Inc.
 Re:
    
    R/3 Software End-User License Agreement effective June 11, 1998; Exhibit A;
Appendix 1 effective June 11, 1998
    770-353-2937
 
 /s/ Rebecca SwavelyRebecca SwavelyLegal Assistant
   3999
West Chester Pike  Newtown Square, PA 19073
phone: 610-355-2500  fax: 610-355-2501