APPARENT FINANCING BY SAP
IF YOU DO NOT AGREE TO THE TERMS IN THIS AGREEMENT, DO NOT CLICK THE “REGISTER” BUTTON AND DO NOT ATTEMPT TO ACCESS OR USE THE AF SITE OR AF SERVICE. Your use of the AF Service will also be subject to terms that will be presented to You by one or more Financing Companies that are referred to You through Your use of the AF Service.
Capitalized terms not otherwise defined elsewhere in this Agreement shall have the following meaning:
- “AF Account” means the on-line account You must create when You register on the AF Site to receive the AF Service.
- "AF Service" means the service SAP provides to help match qualified Borrowers with interested Financing Companies and the Financing Companies’ business loan products to meet each Borrower’s business needs. The AF Service includes Your use of an AF Account, the AF Site, and optional use of a Box Account (use of which is governed by the Box Terms of Service) to enable collaboration and sharing of Customer Information and other information.
- "AF Site" means the Apparent Financing by SAP website at: https://www.apparentfinancing.com/, the use of which this Agreement governs, and through which the AF Service is made available by SAP to You.
- "Affiliate" means any legal entity that directly, or indirectly through one or more intermediaries, controls or is controlled by either party to this Agreement, or is under common control as a party to this Agreement. For the purposes of this Agreement, “control” means owns more than fifty percent (50%) of the shares or voting rights.
- "Authorized User" means a person that is employed by You, working for You, or is an agent of Your Company that You have authorized to access and use the AF Service for Your business purposes. You are responsible and liable for the acts and omissions of Your Authorized Users.
- “Borrower” means a business entity within the United States of America that has registered for an AF Account to use the AF Site and AF Service to seek an introduction to one or more interested Financing Companies offering business loans or other forms of financing under this Agreement.
- “Box Account” means the online Box account that You create on Box.com by completing a registration form and designating a user ID and password directly with Box that You use for the purposes of collaborating with SAP and cloud-based storing of Your Customer Information and other documents that You are authorizing SAP to distribute to Financing Companies that might be interested in making a loan or other form of financing to You. SAP will be an Administrator User of Your Box Account.
- “Box Service” means all of the collaboration, document sharing, and cloud-based document storage services that are made available by Box to You as a licensed user of Your Box Account.
- "Confidential Information" means, all information that either party treats as confidential and protects against unrestricted disclosure to others, and if in tangible form, is clearly identified as confidential or proprietary at the time of disclosure; and if in intangible form (disclosure made orally or visually), is identified as confidential or proprietary at the time of disclosure, is summarized in writing, and such summary is delivered to the other party within thirty (30) calendar days of any such disclosure. With respect to SAP, “Confidential Information” shall also include, but is not limited to information regarding: (a) the AF Service, pricing, documentation, marketing plans, forecasts, strategies and operational processes; (b) logic diagrams, flow charts, technical drawings, algorithms, formulas, techniques, processes, data, functional specifications and system designs; (c) benchmark results; (d) system infrastructure and security architecture; (e) ideas, trade secrets, know-how; and (f) any information about or concerning a partner or other third party that was provided to SAP subject to an obligation of confidentiality. With respect to Your Company, "Confidential Information" also includes Customer Information.
- “Contact Information” means the name, phone number and email address of Your primary contact and the name and address of Your Company.
- "Content" means all numeric, graphical, text, or other content or data, user interfaces, visual interfaces, photographs, trademarks (whether registered or not), logos, sounds, artwork of any kind, and computer code, including but not limited to the design, structure, coordination, selection, appearance, and arrangement of the Content, that is made available by SAP on the AF Site, through the Box Services, or otherwise for Your use in conjunction with the AF Service.
- "Customer Information" means Your Contact Information and any data, information or materials concerning You that (a) You provide to SAP either directly, or by depositing into Your Box Account in the course of registering for or using the AF Service, or, (b) You provided SAP or an Affiliate of SAP outside of the AF Service and have authorized SAP to access and use in the performance of the AF Service.
- "Documentation" means SAP's FAQs, materials, and documents (if any) that are made available to You that explain how the AF Site and the AF Service function.
- “Financing Company(ies)” means the independent, third party banks, credit unions, and other traditional and alternative financial institutions within the United States of America that are under an obligation of confidentiality with SAP that have agreed to offer business loans, factoring, or other forms of invoice financing to qualified Borrowers using the AF Service under this Agreement.
- "SAP" is defined in the Header to this Agreement.
- “Term” means the period of time that this Agreement is in effect as a legal contract between the parties. The Term will begin on the date You accept the terms and conditions of this Agreement (“Effective Date”) and end the earlier of one year from the Effective Date or upon the termination of this Agreement by either party.
2. The Apparent Financing by SAP Service
- The Scope of the AF Service. SAP is not a Financing Company or an agent of a Financing Company. SAP is not a broker or dealer in securities, or an investment or financial advisor. You are solely responsible for Your investment and financing research. Prior to undertaking any securities or financing transaction, You should consult a broker or other financial advisor with respect to the price, suitability, value or other aspects of any financing or investment opportunity. SAP provides the AF Service as a (a) marketing service to help small and medium businesses connect with interested Financing Companies, and (b) lead generation service for the participating Financing Companies offering financing services. All financing solutions made available by the Financing Companies that result from introductions arranged through the use of the AF Service are provided by Financing Companies that are solely responsible for their financing products and services. Each Financing Company is solely responsible for compliance with all applicable laws and disclosures. SAP does not make any financing, lending, factoring, or credit decisions on their behalf, nor does SAP participate in any underwriting decisions.
- Your Instructions to SAP. Upon completion of Your registration for an AF Account to receive the AF Service and Your submission of completed application forms and documentation, You hereby direct SAP to review, analyze, match, and forward Customer Information to one or more Financing Companies for further review and analysis. If one or more Financing Companies indicate that they are interested in making a loan or extending credit to You, SAP will introduce You to the applicable Financing Companies to allow interested Financing Companies to contract directly with You and/or request additional information from You before making a final determination. SAP makes no guarantees as to the number of Financing Companies SAP can match You to or the ability to obtain a business loan or other access to credit.
3. License Grant. SAP grants You a nontransferable and nonexclusive right during the Term to use and permit Your Authorized Users to use the AF Site and the AF Service according to this Agreement and as described in the Documentation (if any).
4. Customer Information.
- Communication and Privacy. To use the AF Service You must provide SAP with Your Contact Information to make it possible for SAP to communicate with You regarding the AF Service. By accepting this Agreement, You hereby instruct SAP to use Your Contact Information to notify You of important changes to the AF Service or AF Site, or inform You of special offers. SAP will not distribute Your Contact Information to any third party other than Financing Companies as authorized by You hereunder. Upon the expiration of termination of this Agreement, SAP may continue to retain and use Your Contact Information to inform You of special offers regarding the AF Service unless You opt-out of receiving such emails and phone calls by contacting SAP at email@example.com and informing SAP that You are withdrawing Your consent to continue to receive the communications from SAP that are authorized under this Agreement.
- License to Customer Information. By providing Your Customer Information, You represent and warrant that You have the right to grant, and You do grant to SAP, a non-exclusive, fully-paid license to access, use, review, reproduce, and distribute Your Customer Information to Financing Companies, and to prepare derivative works of, or incorporate into other works, such Customer Information for the purposes of providing You the AF Service during the Term. To perform the AF Service, SAP will (i) transmit or distribute Your Customer Information over various public networks and in various forms, and (ii) make necessary format changes to Your Customer Information in order to perform its obligations hereunder.
- Use of Ariba Network and Business One Customer Information. Notwithstanding any language to the contrary, if You are an existing SAP customer with an active subscription to use the Ariba Network, the SAP Ariba Payables product, or SAP Business One, You hereby authorize SAP to share Your Customer Information (which may include but is not limited to Customer Information from Your Ariba Network account, SAP Ariba Payables account, or Your SAP Business One account), with one or more Financing Companies for the purposes of providing You the AF Service.
- Disclosure by Law. You acknowledge and agree that SAP may disclose Customer Information You provide if required to do so by law, or if SAP, in our sole discretion, believes that disclosure is reasonable to (i) comply with requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law); or (ii) protect or defend SAP’s or a third-party’s, rights or property. SAP shall make commercially reasonable efforts to provide You with advance notice of any disclosure hereunder to provide You with a reasonable amount of time to seek an injunction prohibiting or limiting the disclosure to maintain the confidential nature of any applicable Confidential Information.
- Use of Anonymous Information for Research. By registering for an AF Account, You agree to allow SAP to anonymously use the Customer Information provided by You and derived from Your use of the AF Site or AF Service to continue SAP’s research into successful business practices and to improve the AF Service.
- SAP’s Deletion of Customer Information. Subject to Section 4.b., upon Your completion of a financing with a Financing Company, or SAP’s receipt of written notice that You no longer desire to receive financing offers from Financing Companies via the AF Service, SAP will delete Your Customer Information in SAP’s possession that is being administered by SAP to provide the AF Service hereunder. Deletion of Your Customer Information under this Section shall not impact Your Customer Information stored in other SAP databases supporting other SAP products and services.
- Financing Companies’ Use of Your Customer Information.
- SAP agrees to require any Financing Company receiving Customer Information to only use such Customer Information for the purposes of providing financing as part of the AF Services hereunder.
- Any Financing Company that concludes a loan or other financing transaction with You (each, a “Successful Financing Company”) shall do so only under a separate agreement directly between You and such Successful Financing Company. Such Successful Financing Company’s subsequent use of Your Customer Information shall be governed by the agreement You have in place directly with the applicable Successful Financing Company.
- SAP SHALL REQUIRE ANY FINANCING COMPANY THAT DOES NOT CONCLUDE A LOAN OR FINANCIAL TRANSACTION WITH YOU HEREUNDER (EACH, AN “UNSUCCESSFUL FINANCING COMPANY”) TO (1) ONLY USE CUSTOMER INFORMATION FOR THE PURPOSES OF PROVIDING FINANCING COMPANY SERVICES AS PART OF THE AF SERVICES HEREUNDER, AND (II) TO DELETE YOUR CUSTOMER INFORMATION AND ANY OTHER DOCUMENTS OR INFORMATION PROVIDED BY SAP OR YOU WITHIN THIRTY (30) DAYS AFTER DETERMINING, OR RECEIVING NOTICE FROM SAP OR YOU, THAT SUCH UNSUCCESSFUL FINANCING COMPANY WOULD NOT BE PROVIDING A LOAN OR OTHER FINANCING AS A RESULT OF THE AF SERVICE HEREUNDER.
- IF SAP IS PROVIDING YOU THE AF SERVICE FREE OF CHARGE, SAP SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FINANCING COMPANY MISUSE OF YOUR CUSTOMER INFORMATION.
5. Use of the AF Service and AF Site
- Your use of the AF Service is limited to transactions involving business entities located solely in the United States of America.
- You shall not (i) license, sell, lease, rent, outsource or otherwise make available the AF Service or AF Site to any third party, other than Your agents who are Authorized Users; (ii) transmit any Content to a third party; (iii) use the AF Service in a manner that violates any applicable local, state, national, international or foreign law; (iv) transmit any information that is unlawful, harmful, hateful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy or right of publicity, or racially, ethnically or otherwise objectionable; (v) infringe the intellectual property rights of any entity; (vi) interfere with or disrupt the AF Service, AF Site, software, or the SAP systems or networks hosting or connected to the AF Service or AF Site; (vii) attempt to circumvent the user authentication or security of the AF Site; (viii) mirror the AF Site on any server or computer device; or (ix) use any application programming interface to access the AF Service or AF Site other than those made available by SAP;
- SAP may monitor Your use of the AF Site and utilize the information concerning Your use of the AF Site to (i) confirm Your compliance with the terms of this Agreement, (ii) improve the AF Service, and (iii) provide You with reports on Your use of the AF Service.
- SAP may change or modify the AF Service or AF Site at any time (any, a “Modification”) at SAP’s sole discretion. SAP will only be required to notify You of a Modification in advance if the Modification materially alters the AF Service or AF Site. If You do not wish to use the AF Service or AF Site after a Modification, You may terminate this Agreement in accordance with Section 16.c., or accept the Modification and continue to use the AF Service and AF Site. If You do not provide written notice of termination to SAP within ten (10) days from the date You are first notified of the Modification, You shall be deemed to have accepted such Modification and the Agreement shall continue in full force and effect. Upon termination, Your exclusive remedy and SAP's sole liability is to refund any prepaid and unused fees from the effective date of the termination of the AF Service.
- To the extent permitted by applicable law, You agree that in consideration for providing You with free use of the AF Service and AF Site, (i) SAP has no obligation to provide any particular service level or support services, and (ii) SAP may cease providing the AF Service at any time without notice. This Section 5.e. supersedes any conflicting term of this Agreement or any other agreement between You and SAP.
- Nothing in this Section shall require SAP to continue to provide any portion of the AF Service if this would result in SAP violating the rights of any third party or any applicable law.
6. Communication with Financing Companies
- You hereby authorize each Financing Company to perform a (i) credit searches, (ii) business lien search, and (iii) judgement or bankruptcy search on You by using Your Customer Information and other information presented to each Financing Company by SAP or You for the purposes of determining if You are a candidate for a loan or financing.
- During the Term, You agree (i) SAP will manage the introduction, collaboration and information exchange between You and the Financing Companies; (ii) You will notify SAP of any communication between You and the Financing Companies; (iii) You will make commercially reasonable efforts to make Yourself available for meetings and/or conference calls facilitated by SAP with Financing Companies; (iv) not to directly contact any Financing Company or conduct any loan or financing transaction with a Financing Company You are introduced to under this Agreement without first receiving SAP’s prior written consent, including email; and (v) SAP will not to be a party to any loan or financing arrangement between You and a Financing Company.
7. Your Use of the Box Services and Your Box Account Created for You by SAP Hereunder
- Responsibility for Your Box Account. You agree that You are solely responsible for Your use of Your Box Account and the Customer Information You upload into Your Box Account and that SAP is not responsible for the provision of the Box Service.
- No Misuse of Box. You shall not attempt to circumvent the user authentication or security of Your Box Account and You agree not to use or permit the use of the Box Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity; (c) in any manner that may be in violation of any applicable regulation, import/export law, other law, or give rise to civil or criminal liability; (d) in any manner that is likely to impair, damage, disable, or overburden the Box Service or interfere in any way with the use or enjoyment of the Box Service by others; or (e) to introduce any malware or other malicious activity into the Box Service.
- Unauthorized Use of Your Box Registration. If You believe that an unauthorized person has obtained Your Box log-in information, contact Box according the Box Terms of Service, follow the procedures provided by Box, and notify SAP at firstname.lastname@example.org.
- SAP May Monitor Your Use of Box. SAP may monitor Your use of Your Box Account, including but not limited the number of Authorized Users accessing Your Box Account and SAP may utilize the information concerning Your use of Your Box Account to (i) confirm Your compliance with the terms of this Agreement, (ii) improve the AF Site, and (iii) provide You with reports on Your use of the AF Site.
- Suspension of Your Use of the Box Service. SAP may (i) suspend Your Box Account and Your access to and use of the Box Service, without notice, at SAP’s sole discretion, and (ii) remove Your Customer Information from Your Box Account if SAP reasonably and in good faith believes Your use or Your Customer Information is in violation of this Agreement or any applicable laws or regulations. SAP agrees to make commercially reasonable efforts to provide You with reasonable notice of any such suspension before its implementation unless immediate suspension is necessary to comply with legal process, regulation, order or prevent imminent harm to SAP, the Box Service or any third party, in which case SAP will notify You to the extent allowed by applicable law as soon as reasonably practicable thereafter.
8. Registration Information and the Need for Accuracy
- You agree to provide SAP and Financing Companies with accurate, true, current, and complete Customer Information, including information about Your officers, directors and principal shareholders.
- Interested Financing Companies may require You to complete a loan application to compare against tax returns and other documents You provided to the IRS in the past. You agree that it is Your responsibility to ensure that any information that You provide is not contradicted by Your business records, tax returns, corporate filings and other public filings and You shall update and maintain all Customer Information You provide
- Upon completion of Your registration, SAP will create a profile of Your business based on the information that You provide.
- The penalty for knowingly making a false statement to obtain a loan guaranteed by the Small Business Administration (SBA) can include fines of up to $25,000 and imprisonment of up to five years, pursuant to 18 U.S.C. § 1001. False statements to a federally insured depository institution, like the SBA Financing Companies that work with SAP, may be punished with fines up to $1,000,000 and/or imprisonment for up to 30 years pursuant to 18 U.S.C. § 1014.
9. Proprietary Rights
- Ownership of Proprietary Information. SAP or its licensors owns all right, title and interest in all patent rights, copyrights, trademarks and other rights in the Content, AF Site and the AF Service, as well as any improvements, design contributions or derivative works conceived or created by either party related thereto. This Agreement does not transfer any proprietary right or interest in the Content, AF Site, or AF Service from SAP to You. All rights not expressly granted to You in this Agreement are reserved by SAP and its licensors. Federal, state, and local laws and regulations protect these proprietary rights. You are permitted to use the Content, AF Site and AF Service only as expressly authorized by the Agreement.
- Restrictions on the Use of SAP Confidential or Proprietary Information. You will not (i) post, copy, modify, distribute, transmit, disclose, show in public, create any derivative works from, or make commercial use of, any SAP Confidential Information, Content, other copyrighted material, trademarks, or SAP proprietary information accessible via the AF Site or AF Service, or (ii) reverse engineer or reverse compile any Content or software used to make the AF Site, the AF Service or related technology available to You, without first obtaining the prior written consent of SAP.
10. Links to Third-party Websites and Dealings with Advertisers and Sponsors
The AF Site and Your Box Account may contain links to websites of third-parties, including without limitation, advertisers, which are not under the control of SAP, and SAP is not responsible for the content of any linked website, any link contained in a linked website, or any changes or updates to such websites. SAP provides these links to You as a convenience, and the inclusion of any link does not imply that SAP endorses or accepts any responsibility for the content on such third-party website. Your correspondence or business dealings with, or participation in the promotions of advertisers or third-parties found on or through the AF Site or AF Service are solely between You and such advertiser or third-party. You agree that SAP will not be responsible or liable for any loss or damages of any sort incurred as the result of the presence of such links to advertisers on the AF Site or AF Service or Your use of such advertisers’ products or services.
11. Use of Third Party Service Providers
SAP may use third party service providers to assist in providing the AF Service with or without notice to You (each, a "3P Service Provider"). You consent and authorize SAP to delegate the authorizations You provide to SAP to our 3P Service Provider(s) as SAP deems necessary to provide the AF Service. You agree that the terms and conditions of this Agreement inure to the benefit of such 3P Service Providers and such 3P Service Providers are deemed to be third party beneficiaries of this Agreement. You also agree that all references to SAP in this Agreement include, where applicable such 3P Service Providers. To protect the privacy and security of Your personal information, SAP will require every 3P Service Provider that access Your Customer Information to take commercially reasonable and industry standard privacy and confidentiality measures to protect the confidential nature of Your Customer Information
SAP utilizes temporary cookies to help manage Your login and use of the AF Site. If You disable cookies, You cannot access the AF Site or receive the AF Services.
13. Disclaimer of Warranty
- No Warranties. THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SAP PROVIDES THE FREE AF SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE AF SERVICE, THE AF SITE AND ALL INFORMATION CONTAINED THEREIN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SAP DOES NOT WARRANT THAT YOUR USE OF THE AF SERVICE WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE AF SERVICE OR AF SITE WILL BE CORRECTED. SAP DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE AF SERVICE AND AF SITE.
- Third-party Content. Opinions, advice, statements, offers, or other information or content made available through the AF Site or Your Box Account, but not directly by SAP, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. SAP DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED ON THE AF SITE OR YOUR BOX ACCOUNT, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN SAP. UNDER NO CIRCUMSTANCES WILL SAP BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE AF SITE, BOX.COM, OR TRANSMITTED TO OR BY ANY USERS.
- Risk Assumption and Precautions. SAP will use commercially reasonable security technologies (such as, password protection and firewall protection) in providing the AF Service and AF Site to You. However, SAP does not control and is not responsible for the Box Service, or the transfer of data, including but not limited to Customer Information, over telecommunications facilities, including the Internet, and SAP does not warrant secure operation of the AF Site or AF Service or that such security technologies will be able to prevent third party disruptions of the AF Site or AF Service.
14. Limitation of Liability
- No Incidental or Consequential Damages. IN NO EVENT WILL SAP BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE AF SITE OR USE THE AF SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR INTERNET SERVICE OR AF SERVICE INTERRUPTIONS, EVEN IF SAP KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL SAP’S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE AF SERVICE OR AF SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT OR YOUR RIGHT TO THE AF SERVICE, OR, IF YOU HAVE NOT PAID SAP FOR THE USE OF THE AF SITE OR AF SERVICE, THE AMOUNT OF U.S. $25.00 OR ITS EQUIVALENT.
- No Liability for non-SAP Actions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SAP BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE AF SITE OR AF SERVICE.
- Information Verification. SAP and its contractors may use various methods of verifying information that users have provided. However, none of those ways are perfect, and You agree that SAP and its contractors will have no liability to You arising from any incorrectly verified information.
- Indemnification by You. You agree to indemnify, defend and hold harmless SAP, its officers, directors, employees and agents, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (i) Your use of or inability to use the AF Site or AF Service, (ii) any postings made by You, (iii) Your violation of any terms of this Agreement; (iv) Your violation of any rights of a third-party, or (v) Your violation of any applicable laws, rules or regulations. SAP reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with SAP in asserting any available defenses.
- Indemnification by SAP. SAP will defend You against any third-party claim that the AF Site or AF Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (“Claim Against You”), and will indemnify You for the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement. SAP will have no liability to You under this Section for any Claim Against You that arises out of: (1) any unauthorized use, reproduction, or distribution of Content, the AF Site, or the AF Service by You; or (2) any modification or alteration of the AF Service by anyone other than SAP or SAP’s agents without the written approval of SAP; or (3) Your breach of this Agreement. In the event of a Claim Against You pursuant to this Section, SAP will (at SAP’s option and expense): (i) obtain for You the right to continue using the AF Service and AF Site; (ii) modify the AF Service or AF Site to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by SAP in its sole discretion), terminate this Agreement, in which case You will be entitled to a pro-rated refund of any fees pre-paid by You for the corresponding unused period of the Term.
16. Suspension and Termination
- Suspension of Your Use of the AF Service or AF Site. SAP reserves the right to (i) suspend Your access to and use of the AF Service or AF Site, without notice at SAP’s sole discretion, and (ii) to remove Your Customer Information from the AF Service or AF Site at any time at SAP’s sole discretion.
- Termination. Either party may terminate Your use of the AF Service or Box Service by providing the other party with written notice of termination. If You desire to terminate Your use of the AF Service, please send an email to email@example.com and include the term “Close my account” in the subject line of the email. To terminate Your use of the Box Service, please follow directions in the Box Terms of Service or as instructed in the Box.com website.
- Terminate Access to Your Customer Information. Upon the expiration or termination of this Agreement Sap will (i) terminate Your ability to (1) use the AF Service, (2) use the AF Site, (3) use the Box Service, (4) access Your Box Account, and (ii) delete Your Customer Information pursuant to Section 4.b.
17. General Provisions
- Controlling Law and Jurisdiction. This Agreement will be deemed entered into in New York and will be governed by and interpreted in accordance with the laws of the State of New York, excluding: (i) that body of law known as conflicts of law, and (ii) the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that any dispute arising under this Agreement will be resolved in the state or federal courts in New York County, New York, and the Parties hereby expressly consent to jurisdiction therein.
- Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall be enforced to the fullest extent possible, and the remaining provisions shall remain in full force and effect.
- Beta Features. SAP may include in the AF Site or AF Service certain features that are for test and evaluation purposes only and not intended for productive use ("Beta Features"). Beta Features will be identified as such. SAP may remove Beta Features at any time at SAP’s sole discretion. SAP makes no warranties and offers no indemnities as to Beta Features. This Section 16.c. supersedes any conflicting term(s) of this Agreement or any other Agreement between You and SAP.
- Passwords. You acknowledge that SAP is not responsible for third-party access to Your AF Account or Box Account that results from theft or misappropriation of Your AF Account or Box Account user names and passwords. You shall not allow any third party to use Your AF Account or Box Account user names or passwords. You agree to change Your passwords at regular intervals. If You learn of a third party having obtained knowledge of a password, You shall inform SAP without undue delay and promptly change Your password.
- Miscellaneous. The failure of SAP to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the AF Site or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Agreement are for convenience only and have no legal or contractual effect.