Complete the next paragraph of this contract: -1 - TELKOM CONTRACT No. 076C/01 LICENCE AND MAINTENANCE AGREEMENT entered into by and between SYSTEMS APPLICATIONS PRODUCTS (AFRICA) (PTY) LIMITED ("SAP AFRICA") a company incorporated in accordance with the laws of the Republic of South Africa with offices at SAP Business Park, 1 Woodmead Drive, Woodmead, Sandton and TELKOM SOUTH AFRICA LIMITED ("TELKOM") a company incorporated in accordance with the laws of the Republic of South Africa with its head office at 152 Proes Street, Pretoria
- 2 - TELKOM CONTRACT No. 076C/01 1. RECORDAL It is recorded that: 1. 1. SAP AFRICA wishes to grant to TELKOM and TELKOM wishes to accept from SAP AFRICA a licence to use the SOFTWARE (as defined in clause 2. 3. 11), upon the terms and conditions hereinafter set forth. 1. 2. The SOFTWARE to be licensed in terms hereof will enable TELKOM to establish, manage and operate an Internet-based business platform for TELKOM'S e- commerce exchange, that is, a "Marketplace" as defined in clause 3. 9. 1. 3. The parties record their agreement in this document that, upon signature by the party signing last in time, shall supercede and prevail over all other arrangements and agreements between them as to its subject matter. 2. INTERPRETATION AND DEFINITIONS In this AGREEMENT: 2. 1. clause headings are for convenience and shall not be used in its interpretation; 2. 2. unless the context clearly indicates a contrary indication - 2. 2. 1. an expression which denotes - 2. 2. 1. 1. any gender includes the other genders; 2. 2. 1. 2. a natural person includes an artificial person and vice versa; 2. 2. 1. 3. the singular includes the plural and vice versa;
- 3 - TELKOM CONTRACT No. 076C/01 2. 3. the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings - 2. 3. 1. "AFFILIATE" means a company located in the TERRITORY that is a subsidiary of TELKOM as defined in the Companies Act of 1973, as amended, provided that should any such entity cease, for whatever reason, to be a subsidiary of TELKOM, then it shall ipso facto cease to be an AFFILIATE for the purposes of this AGREEMENT and the provisions of clause 6. 4 shall apply to such entity; 2. 3. 2. "BUSINESS THIRD PARTIES" means those persons or entities who are authorised by TELKOM to access and/or USE the SOFTWARE in terms of formal arrangements that TELKOM has with such persons or entities; 2. 3. 3. "COMMERCE ONE INC. " means a company incorporated in accordance with the Laws of Switzerland with its head offices in Zurich; 2. 3. 4. "DESIGNATED SITE" means those facilities of TELKOM located in the TERRITORY in which one or more DESIGNATED UNITS are located and which initially is/are defined in annexure 1 to this AGREEMENT or, for additional DESIGNATED SITES, as may be agreed upon in writing by the parties; 2. 3. 5. "DESIGNATED UNIT" means an individual computer server located at a DESIGNATED SITE upon which the SOFTWARE is installed. Each DESIGNATED UNIT must be approved by SAP AFRICA as compatible with the SOFTWARE and must be identified in annexure 1 hereto or, for additional DESIGNATED UNITS as may be agreed upon in writing by the parties;
- 4 - TELKOM CONTRACT No. 076C/01 2. 3. 6. "DOCUMENTATION " means SAP AFRICA's standard DOCUMENTATION in machine readable format in any medium that is delivered to TELKOM under this AGREEMENT, including SAP AFRICA's standard manuals, program listings, data models, flow charts, logic diagrams, input and output forms, functional specifications, instructions and complete or partial copies of the aforegoing; 2. 3. 7. "PROGRAM CONCEPTS" means the concepts, techniques, ideas and know-how embodied and expressed in any computer programs or modules included in the SOFTWARE, including the structure, sequence and organisation of such programs and modules; 2. 3. 8. "PROPRIETARY INFORMATION" means: - 2. 3. 8. 1. with respect to SAP AFRICA, the SOFTWARE and DOCUMENTATION and any complete or partial copies thereof, the PROGRAM CONCEPTS and any other information identified or reasonably identifiable as confidential and PROPRIETARY INFORMATION of SAP, SAP AG, or each of their respective licensors, whether marked with proprietary legend or not ("SAP AFRICA'S PROPRIETARY INFORMATION"); 2. 3. 8. 2. with respect to TELKOM, information identified or reasonably identifiable, as the confidential and PROPRIETARY INFORMATION of TELKOM, whether marked with proprietary legend or not ("TELKOM's PROPRIETARY INFORMATION"), excluding any part of the SAP's or TELKOM's PROPRIETARY INFORMATION which: -
- 5 - TELKOM CONTRACT NO. 076C/01 2. 3. 8. 2. 1. is, or becomes, publicly available through no act or failure of the other party; or 2. 3. 8. 2. 2. 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 2. 3. 8. 2. 3. becomes independently available to the other party as a matter of right; 2. 3. 9. "RELEASE" means each issue of the SOFTWARE by SAP AG and its licensors that incorporates the most recent technological functionality and is identified by the numeral to the left of the decimal point (e. g. 2. 0); 2. 3. 10. "SAP AG" means SAP Aktiengesellschaft Systeme, Anwendungen, Produkte in der Datenverarbeitung, a German corporation, with its head office located in Walldorf, Germany. For the purposes of this AGREEMENT, and if required by the context, the phrase "SAP AG" shall be deemed to include its licensors, particularly, COMMERCE ONE INC.. Inc, a company incorporated in accordance with the laws of Switzerland with its head office at Zurich, Switzerland; 2. 3. 11. "SOFTWARE" means: 2. 3. 11. 1. the SOFTWARE specified in annexure 1 hereto, in machine - or human - readable form that is licensed to TELKOM hereunder; 2. 3. 11. 2. any RELEASES, VERSIONS or correction levels of the SOFTWARE; and