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3. TERMS AND CONDITIONS

ONDEMAND SUBSCRIPTION AGREEMENT | ARIBA, INC.

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This Subscription Agreement (the “SA”)is a legally binding contract between the company or organization that you have identified on the order page of this web site (“Customer”)and Ariba, Inc. (“Ariba”)which sets forth the terms under which  Customer may use the Solution(s) which you purchase (or subscribe to for Solutions provided at no fee) via the order page of this web site (your “Order”).By checking the box next to “I have read and accept the terms and conditions of the Subscription Agreement”you agree that: (i) you are authorized to legally bind the Customer to the terms and conditions set forth herein; and, (ii) Customer agrees to comply with and be legally bound by the terms and conditions set forth herein.  

FOR ORDERS FOR THE ARIBA STARTSOURCING SOLUTION, PLEASE SEE IMPORTANT TERMS IN SECTION 13 BELOW THAT SUPERCEDE OTHER TERMS IN THIS SA.

1. DEFINITIONS

1.1 “Administrator” means an individual to whom Customer grants access to use the applicable Ariba Solution pursuant to an Order Form: (i) solely for the purposes of managing user IDs, passwords, and/or permission controls; and, (ii) whose only assigned role in the Solution is as a “User Administrator” or “Customer Administrator” as those roles are defined within the Solution. An Administrator is not a User unless such individual is also performing the additional functions permitted to Users.
1.2  “Agreement” means collectively your Order and this SA.
1.3  "Consulting Services"means any customized consulting services provided to Customer hereunder, typically involving a scope of work, or Deployment Services, as may be identified in an applicable Order Form. Consulting Services do not include Subscription Services as defined below.
1.4  “Deployment Services” means the predefined services described in the applicable Deployment Descriptions which are purchased by Customer concurrently with the purchase of Solution subscriptions and provided by Ariba to Customer to assist with the initial set-up, configuration, and deployment of Solutions within Customer’s organization. Deployment Services are a subset of Consulting Services.  Deployment Services are limited to the configuration and deployment of a single Site unless otherwise expressly stated in the applicable Order Form.
1.5 “Documentation” means the authorized user and installation guides and manuals that are delivered or made available by Ariba to its customers for use with the Solutions that describe the Solution functionality and Subscription Services. Documentation for the Solution will be provided electronically only.
1.6 “Enablement Services” means a set of pre-defined services offered by Ariba in association with the Solution and purchased or subscribed to by Customer in your Order as part of an Solution (e.g. services packaged with “Ariba Sourcing, Professional Package”)as identified in the Documentation.
1.7 “Fees”means the fees stated in your Order and any applicable Renewal Term Fees pursuant to section 5.1 below.
1.8 “including” means “including but not limited to”.
1.9 “Intellectual Property Right” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefor, internet domain names, logos, designs, slogans, and general intangibles of like nature, computer software programs or applications, tangible or intangible proprietary information, know-how, proprietary processes, formulae, algorithms, or any other intellectual property right, whether registered or unregistered, and whether first created before or after the Order Effective Date.
1.10 “Month”or “Monthly” means a calendar month during the Subscription Term.
1.11 “Operating Policies” means the operational guidelines and policies used by Ariba in the operation of its internal systems used to provide and support the Solutions (and are the Security Policy, Service Level Program, and Data Policy), as updated from time to time.  Ariba's Operating Policies can be viewed at: www.ariba.com/legal/operating_policies.cfm  and are incorporated into the terms of this Agreement.
1.12 “Order Effective Date” means the date on which you place your Order.
1.13 “Project” means a specific sourcing project in a particular services or commodity category initiated by Customer for Customer’sinternal use and benefit, and can consist of any one event. Examples of events include: (a) on-line auction, (b) sealed bid, (c) e-negotiation, or (d) a RFQ, RFI, or RFP. A Project will be counted for purposes of Usage Limits only in the Month in which the Project is created within the Ariba StartSourcing Solution.
1.14 “Services Term” means the period of time during which Ariba is obligated to provide the applicable Enablement Services included in the Solution Customer subscribesthrough your Order.
1.15 “Site”means the web pages containing the functionality described in the Documentation for the Solution(s) accessible by and configured for and/or by Customer in accordance with the Agreement and the applicable Documentation.
1.16 “Solution” means a combination of the following elements provided by Ariba to customers on a subscription basis as a named package and described in the most current version of the Documentation corresponding to such named package:  (i) electronic functionality accessible via the internet and any related incidental software components, and (ii) Subscription Services.
1.17 "Subscription Term"means the period of time during which Customer may access the applicable Solution as set forth in the applicable Order Form and commencing upon the applicable Order Form Effective Date.
1.18 “Team Member” means a Registered User who is not a “User”.  Team Members do not include suppliers or other third parties (other than Customer’scontractors) interacting with Customer via the Solution.
1.19 “Term” means Subscription Term or Services Term, as applicable, and any applicable Renewal Term.
1.20 “Usage Limit” means the usage limit(s) applicable to Customer’suse of the Solutions as specified in your Order (e.g., number of Registered Users, project owners, projects, geographic areas, transaction volumes, or otherwise).
1.21 “Registered User” means an individual to whom Customer grants access to use the applicable Solution pursuant to your Order, which may not include any employee, agent or representative of any Ariba competitor.
1.22 “User”means a person who: (a) is designated in the applicable Solution as an “Owner” of a Project or Contract Workspace; (b) can initiate or manage  templates, Projects and/or Contract Workspaces; (c) is included in one of the User Groups indicated in the list below for the applicable Solution(s); and/or (e) included in a Customer-defined Group that has permissions equivalent to the permissions associated with any User Group.  Certain User Groups are common to more than one Solution (“Common User Groups”).  If Customer subscribes to more than one Solution and, if a person is in any Common User Group, such person shall be counted as a User for each Solution to which the Common User Group applies.  As used in this definition,  “Owner” means, in regards to any Project or any active Contract Workspace, the individual: (i) listed as “Owner” on the tab titled “Overview”; (ii) included in the list of individuals under the group titled “Project Owner” on the team tab; or, (iii) included in a Project Group (as an individual or as a member of another group) where such Project Group is assigned the role of “Project Owner”.  “Contract Workspace” includesany Sales Contract Workspace, Internal Contract Workspace, or Procurement Contract Workspace, but does not include any Sales Contract Request or Procurement Contract Request.  Capitalized terms not defined in this section or elsewhere in this Order Form are named features of the Solution as described in the Solution’s Documentation.

User Groups for Ariba Solutions that may be licensed under this SA:

Ariba StartContracts: Contract Administrator; Contract Agent; Contract Manager; Customer Administrator; Internal Contract Administrator; Internal Contract Agent; Internal Contract Manager; Project Administrator; Project Mass Edit Administrator; Sales Contract Administrator; Sales Contract Agent; Sales Contract Manager; Procurement Manager; Procurement Agent

Ariba Sourcing Basic: Commodity Manager; Customer Administrator; Event Administrator; Junior Sourcing Agent; Project Administrator; Project Mass Edit Administrator; Sourcing Agent; Sourcing Approver; Procurement Manager; Procurement Agent

1.20 “Written Notice” means a written notice in accordance with section 12.6 (Notices).

2. USE OF SOLUTIONS

2.1 Solution Use. (A) During the Subscription Term, subject to the terms and conditions of the Agreement (including Usage Limits stated in the Order Form) and payment of all fees when due, for each Solution to which Customer subscribes, Ariba (i) grants Customer a non-exclusive, non-transferable right to allow Registered Users to access the associated Solution solely for support of Customer’s internal business operations, and (ii) shall provide the Subscription Services included in the applicable Solution. Registered User accounts cannot be shared or used by more than one individual. Customer shall be solely responsible for connection of Customer’s computers to a telecommunications service that provides Internet access in a secure manner. Customer shall comply with the Usage Limits and use restrictions stated in the Order Form: (B)All rights not expressly granted to Customer are reserved by Ariba and Customer shall not violate Ariba’s Intellectual Property Rights: (C) As between the parties, Ariba retains all right, title, and interest to all Intellectual Property Rights in all: (i) Solution; (ii) Work Product developed by Ariba resulting from the Consulting Services; (iii) Ariba Confidential Information, and, (iv) any modifications to, copies of, or derivatives of any of the foregoing items listed in (i) through (iii).  Customer shall comply with the terms and use restrictions stated in this Agreement, and shall be responsible for the compliance of its Registered Users with the terms and use restrictions stated in this Agreement. The rights to use the Solution are also conditioned upon Customer's payment of all Fees.

2.2 General.

2.1.1 Affiliate Use.No representative of Customer’saffiliate and/or subsidiary may access the applicable Solution unless authorized in the Order or in writing by Ariba.
2.1.2 Authorized Administrator.Customer authorizes the person designated your Order as the shipping contact as the “Customer’sAuthorized Administrator”to receive official notices of updates and changes to elements of the applicable Solution, manage the User access as authorized under this Agreement, and respond to other questions that may arise regarding Customer’susage of the applicable Solution. Customer shall notify Ariba to change the person assigned to this role.
2.1.3 User IDs and Passwords.Ariba will assign a distinct user ID and password to Customer for access to the applicable Solution, with an administrative role, to Customer’sinitial Authorized Administrator. Customer may then create additional User IDs and passwords using that administration account. Customer may assign only one (1) person for each User allocation. Einzelne Personen können sich Benutzer-IDs und Passwörter nicht teilen.
2.1.4 Personal Data.When Customer uses the Solution, the data that Customer enters is processed and stored on Ariba’sservers. Depending on the location of Registered Users, the data may cross geographic and/or country borders in route to the servers (“Routing”).If a Registered User or Customer elects to enter personal contact details into the Solution (such as name, email address, or otherwise), Customer must inform Registered Users of the potential Routing and obtain any required consent.  The Solutions are not designed to accommodate sensitive personal information, as clarified in the Ariba Data Policy and Privacy Statement, such as, for example, individual health or medical information or consumer financial information, and Customer agrees not to input such data into the Solution.  Customer agrees to comply with restrictions on usage included in the Ariba Operating Policies.

3. FEES AND PAYMENT

3.1.If Customer elects to pay the Fees by approved debit or credit card ("Payment Card"),Customer agrees that that the Payment Card name, number and date of expiration, and debit authorization which you provided on behalf of Customer via your Order on this web site is valid and proper for purposes of allowing Ariba to charge via such Payment Card (that is, to "e-Charge")the applicable account to collect fees and any applicable taxes (pursuant to section 3.3 below) due under this Agreement, including, without limitation, any applicable Renewal Term Fees pursuant to section 5.1 below. By authorizing Ariba to e-Charge the provided account, Customer is authorizing Ariba or its respective designated representatives or agents to automatically continue charging that Payment Card (or any replacement Payment Card account if the original Payment Card is renewed, lost, stolen, or changed for any reason by the debit or credit-issuing entity, and such entity informs Ariba of such new replacement Payment Card account) for the Fees, including, without limitation, any applicable Renewal Term Fees pursuant to section 5.1 below, and applicable taxes. If the Payment Card you provide fails to validly pay the Fees due to Ariba, Ariba will give Customer ten (10) days notice to supply a valid alternative Payment Card. If Customer fails to provide a valid alternative Payment Card within such time frame, Customer acknowledge that Ariba may terminate Customer'saccess to or license to use the applicable Solution for which e-Charging was the designated form of payment of the Fees.
3.2 If you contact Ariba to make other payment arrangements (other than e-Charge) on behalf of Customer, then Customer agrees to pay to Ariba the Fees in U.S. dollars within thirty (30) days from the date of invoice unless otherwise agreed with Ariba in writing. Except as otherwise provided in this SA, all Fees shall be non-cancelable and non-refundable. If Customer requires a purchase order to pay vendors, Customer will provide Ariba with approved purchase order information and complete and accurate billing and contact information upon execution of the Order Form. If a purchase order is required, Customer shall ensure that its purchase order is sufficient to cover all fees in the Order, any variable fees that become due under the Order, and all applicable taxes. Terms of a purchase order will not modify the SA, and the content of such purchase order shall not be binding upon either party except to reaffirm Customer'spayment obligation under the applicable Order. Customer agrees to pay all fees and expenses payable hereunder from Customer'slocation specified in your Order. Any amounts payable by Customer hereunder that remain unpaid after the due date shall be subject to a late charge equal to the lesser of 1.5% per month or the maximum legal interest rate, which interest will accrue from the due date for payment until the date of actual receipt by Ariba of the amount in cleared funds. Customer shall pay all fees and expenses via electronic funds transfer to Ariba'sdesignated account.
3.3 All amounts payable under this Agreement are exclusive of taxes. Customer shall pay, or reimburse Ariba in the event it has paid, any and all taxes imposed by any government upon the amounts payable under this Agreement whether invoiced by Ariba or otherwise collected, including sales, use, value-added, goods and services, consumption, personal property, withholding, duties, fees, and levies of any kind, and penalties and interest related thereto, but excluding taxes imposed upon Ariba'snet income, net worth, capital, or employees. Upon request by Ariba, Customer shall provide Ariba with original or certified copies of all receipts or other evidence of tax payments made relating to this Agreement, within the time periods as required by applicable law. Customer and Ariba shall cooperate in obtaining any favorable tax treatment for the parties with respect to amounts payable under this Agreement. Each party shall be responsible for reporting, withholding and payment of all income, unemployment, FICA or similar taxes for its employees.
3.4 If Customer increases the Usage Limits, there will be a corresponding increase in the Fees that was specified in the Order (“Expansion Fee”).A reduction in usage by Customer shall not reduce the Usage Limit or the Fees.

4. DELIVERY AND CONSULTING SERVICES

 4.1 Solution. The Solution is a hosted internet based service which Customer may only access remotely. Sämtliche Dokumentationsunterlagen für die Anwendung werden ausschließlich in elektronischer Form zur Verfügung gestellt.
4.2  Customer may obtain Consulting Services under an Order Form at the rates set forth in an applicable Order Form. If Customer purchases Consulting Services, (a) Customer agrees to provide Ariba with full, free and timely access to Customer's computer equipment and software, as is reasonable under the circumstances, at all reasonable times for the purpose of fulfilling its obligations to provide such Consulting Services under this SA, and (b) in order to facilitate the direction and provision of Consulting Services, Customer shall designate a project advisor who shall be principally responsible for Customer's obligations set forth above and the direction and management of Customer's employees engaged in the project. Ariba will similarly designate a Project Advisor who shall be principally responsible for Ariba's provision of the Consulting Services.   Anything resulting from or arising in the course of performance of the Consulting Services shall be deemed "Work Product." Customer shall own all data and applications developed solely by it in connection with the Consulting Services. However, as between the parties, Ariba will own all rights, title, interest and Intellectual Property Rights with respect to the Work Product and all derivatives, enhancements and modifications of the Solution or any other Ariba products, all of which are hereby retained by it or assigned to it by Customer.  Deployment Services are limited to the configuration and deployment of a single Site unless otherwise expressly stated in the applicable Order Form. 

5. TERM AND TERMINATION

5.1 Renewal Term(s).At the end of the initial Subscription Term (and each period of renewal thereafter as applicable), unless a party gives Written Notice of non-renewal at least thirty (30) days in advance of the end of such Subscription Term, such subscription shall automatically renew for additional consecutive terms of either 12 months or a period equal in duration to the initial Subscription Term (whichever is greater)("Renewal Term"), and Customer shall pay Ariba the applicable then-current standard Renewal Term Fees (excluding any special promotional fees) for each such Renewal Term. The Renewal Term Fees for the applicable Renewal Term shall be due on the first day of the Renewal Term, and Customer shall pay such Renewal Term Fees in accordance with section 3 above.
5.2 Termination for Breach.A party (“Terminating Party”)may provide a Written Notice of default to the other party (“Terminated Party”)to either terminate this Agreement or suspend access to the Solution: (a) if the Terminated Party has materially breached this Agreement, and the Terminated Party does not cure such material breach within thirty (30) calendar days after its receipt of Written Notice of such breach; or (b) immediately following the failure to resolve within a reasonable period of time any of the following: the suspension of business, insolvency, institution of bankruptcy, liquidation proceedings by or against the Terminated Party, appointment of a trustee or receiver for the Terminated Party’sproperty or business, or any assignment, reorganization or arrangement by the Terminated Party for the benefit of its creditors; or (c) immediately upon breach by the Terminated Party of either Section 2 (Use of Solutions) or Section 9 (Confidential Information)..
5.3 Termination for Bankruptcy/ Insolvency.Upon expiration or termination of this Agreement, all of your access rights to use the Solutions, and all other rights, services as set forth in this Agreement shall cease immediately (except for those rights, and obligations that are expressly stated to survive termination of this Agreement). Prior to expiration of the Subscription Term or earlier termination, Customer may obtain Customer Data from the Solution. 
5.4 Remedies.Termination of this Agreement or access right shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’sobligation to pay all Fees that have accrued or are otherwise identified as being owed by Customer, now or at some future date, under any Order Form.

6. INDEMNITIES

6.1 Subject to this Section 6and except as provided in Section 13, Ariba agrees, at its own expense, to pay all Damages and defend Customer from (or at Ariba'soption, settle) any claim instituted by a third party and asserted against Customer that the Solutions when used in accordance with the Documentation infringe any United States patent, copyright, trade secret, or other proprietary right of a third party ("IP Claim"),provided that Customer: (a) promptly notifies Ariba in writing of any such IP Claim; (b) permit Ariba to control and direct the investigation, preparation, defense and settlement of the IP Claim; and (c) assist and fully cooperate with Ariba in the defense of same.  Ariba agrees to pay any damages or liabilities awarded against Customer (or agreed to in a settlement by Ariba) resulting from the IP Claim, including any awarded costs and attorneys'fees (collectively "Damages").Ariba will not be responsible for any settlement it does not approve in writing prior to such settlement.
6.1.1  Following notice of an IP Claim or any facts which may give rise to such IP Claim, Ariba may, in its sole discretion and at its option, (a) procure for Customer the right to continue to use the Solutions, (b) replace the Solutions, or (c) modify the Solutions to make them non-infringing. If Customer'suse of the Solution is enjoined in a non-appealable judgment, and Ariba determines that it is not commercially reasonable to perform any of alternatives (a) through (c), Ariba will terminate access to the allegedly infringing Solutions and refund the pre-paid and unused Fees paid by Customer for such allegedly infringing Solutions .
6.1.2  In no event will Ariba have any obligations under this Section 6 or any liability for any claim or action if the IP Claim is caused by, or results from: (a) Customer’scombination or use of the Solutions with non-Ariba software or services, software or data, if such IP Claim would have been avoided by the non-combined or independent use of the Solutions, (b) modification of the Solutions by anyone other than Ariba if such IP Claim would have been avoided by use of the unmodified Solution, (c) Customer’scontinued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (d) Customer’suse of the Solution in a manner not strictly in accordance with this Agreement, (e) Ariba’smodification of the Solution in compliance with Customer’sspecifications, or (f) use of other than Ariba’smost current release of the Solutions if the claim or action would have been avoided by use of the most current release, provided Customer is given an opportunity to use such most current release for no additional Fee.
6.2 Customer shall pay all Assessments and defend Ariba against any claim instituted by a third party and asserted against Ariba that Customer Data or the Marks infringe any United States patent, copyright, trade secret, or other proprietary right of a third party  ("Claim");provided that Ariba (a) promptly notifies Customer in writing of any such Claim; (b) permits Customer to control and direct the investigation, preparation, defense and settlement of the Claim; and (c) assists and fully cooperates in the defense of same. Customer agree to pay any damages or liabilities awarded against Ariba (or agreed to in a settlement by the Customer) resulting from the Claim, including any awarded costs and attorneys'fees (collectively "Assessments").Customer will not be responsible for any settlement Customer does not approve in writing prior to such settlement.
6.3 THIS SECTION STATES EACH PARTY’SENTIRE LIABILITY AND THE OTHER PARTY’SSOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR ALLEGATIONS BY A THIRD PARTY. 

7. LIMITED WARRANTIES AND DISCLAIMERS

7.1 Solutions Limited Warranty. Ariba warrants that, during the applicable Subscription Term, the Solution will conform in all material respects to the then current Documentation for the applicable Solution. Customer'ssole and exclusive remedy, and Ariba'sentire liability for breach of this limited warranty, shall be correction of the warranted nonconformity in the Solution or, if Ariba fails to correct the warranted nonconformity after using reasonable commercial efforts, Ariba will terminate access to the non-conforming Solution and refund the subscription Fees for such Solution (as identified in an applicable Order Form) paid by Customer for the remainder of the Subscription Term (beginning with the date Customer reported the nonconformity). This limited warranty shall not be valid to the extent the warranty nonconformity was caused by Customer'sabuse, misuse, accident, alteration, or unauthorized modification or installation of the Solution. Customer must identify in a Written Notice to Ariba any nonconformity of the Solution within ninety (90) days of discovery of such nonconformity, in order to received the above warranty remedies.
7.2 EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION 7, THE SOLUTIONS ARE PROVIDED "AS IS,"WITHOUT ANY WARRANTY WHATSOEVER. ARIBA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ARIBA DOES NOT WARRANT THAT THE SOLUTIONS, OR ANY PORTION THEREOF, ARE ERROR OR BUG FREE. CUSTOMER ACKNOWLEDGES THAT ARIBA DOES NOTCONTROL THE TRANSFER OF DATA OVER THE INTERNET, AND THAT ARIBA IS NOT RESPONSIBLE FOR ANY DELAYS OR DELIVERY FAILURES CAUSED BY THE INTERNET.

8. LIMITATION OF LIABILITY

8.1 IN NO EVENT SHALL EITHER PARTY (INCLUDING AS IT APPLIES TO ARIBA’STHIRD PARTY PROVIDERS) BE LIABLE: (A) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING CUSTOMER’SLOST PROFITS, COST OF COVER, LOSS OR CORRUPTION OF DATA NOT BACKED UP BY CUSTOMER, DATA INACCURACY CLAIMS, OR BREACHES IN SYSTEM SECURITYDESPITE ARIBA FOLLOWING REASONABLE SECURITY TECHNIQUES, WHETHER OR NOT THE OTHER PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; AND (B) FOR A TOTAL AND AGGREGATE LIABILITY AMOUNT UNDER THIS AGREEMENT INEXCESSOF (i) IN THE CASE OF ARIBA THE AMOUNT OF FEES PAID BY CUSTOMER WITHIN ONE (1) YEAR PRIOR TO THE DATE OF SUCH CLAIM FOR THE APPLICABLE Order GIVING RISE TO SUCH LIABILITY AND (ii) IN CUSTOMER’SCASE, ANAMOUNT EQUAL TO THE FEES PAID BY CUSTOMER (AND ANY OWED BUT UNPAID FEES) WITHIN ONE (1) YEAR PRIOR TO THE DATE OF SUCH CLAIM FOR THE APPLICABLE ORDERGIVINGRISE TO SUCH LIABILITY.
8.2 The limitations set forth in section 8.1 (A) and (B) shall not apply to (i) damages due to bodily injury or death, (ii) intentional violation of Section 9 (Confidentiality), or (iii) Customer’sbreach of Section 2 (Use of Solutions).

9. CONFIDENTIALITY

9.1 A party (the“Discloser”)may disclose to the other party (the“Recipient”)information that the Discloser considers to be confidential and at the time of disclosure is identified in writing as confidential and/or proprietary (“Confidential Information”).Confidential Information shall include the Solutions in any embodiment, the terms and conditions of this Agreement (including pricing), and either party’stechnical and business information relating to inventions or software, research and development, future product specifications, implementation methodologies, and engineering processes. Recipient shall use the same degree of care to protect the confidentiality of Discloser’sConfidential Information that Recipient uses to protect its own Confidential Information of a like nature, but in no event less than reasonable care.  Ariba may disclose Customer’sConfidential Information to its third party providers solely to the extent necessary to provide products or services under the SA, provided that Ariba has a confidentiality agreement in place with such third party provider that protects such Confidential Information against disclosure in a manner no less protective than the SA. Both parties acknowledge that any breach of its obligations with respect to Confidential Information may cause the other irreparable injury for which there are inadequate remedies at law and that Discloser shall be entitled to seek equitable relief in addition to all other remedies available to it. Customer shall not disclose the results of any performance tests of the Solutions to any third party without Ariba’sprior written approval. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient’slawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient’sdisclosure, and where Recipient was not aware that the information was the confidential information of Discloser; or, (iv) is independently developed by the Recipient without violation of this SA. Recipient may disclose Confidential Information of Discloser as needed to comply with a court order, subpoena, or other government demand (provided that, unless otherwise prohibited by applicable law, Recipient first notifies Discloser and gives Discloser the opportunity to challenge such court order, subpoena, or government demand)..
9.2 Notwithstanding anything to the contrary in this SA, Ariba shall not be prohibited or enjoined at any time by Customer from utilizing any "skills or knowledge of a general nature" acquired during the course of performing the Enablement Services. For purposes of this SA, "skills or knowledge of a general nature" shall include, without limitation, information publicly known or that could reasonably have been acquired in the conduct of similar work performed for another customer, but shall not include the Customer'sConfidential Information.

10.  HÖHERE GEWALT

Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, terrorist attack, electronic virus, electronic attack or infiltration, internet disturbance, government act or other similar cause beyond such party's (the "Affected Party")control (collectively, a "Force Majeure Event"),provided that Affected Party gives prompt Written Notice of such condition, uses reasonable efforts to resume its full performance as soon as possible, and provided further that the other party (the "Non-Affected Party")may terminate the affected Order if the Force Majeure Event prevents performance of a material obligation and continues for a period of sixty (60) days. Bei Eintritt eines Ereignisses höherer Gewalt kann die nicht-betroffene Partei die Erfüllung ihrer Pflichten ebenfalls einstellen, bis die betroffene Partei ihren Verpflichtungen wieder nachkommt.

11.  CUSTOMER’SCONTENT & CUSTOMER LIST

11.1 Neither party grants the other party any rights to use its trademarks, service marks, or other proprietary symbols or designations ("Trademarks")without the written consent of the other party, except as otherwise described herein. Neither party will combine the other'sTrademarks so as to effectively create a unitary composite mark, nor shall it use any product name or trademark in a manner that is confusingly similar to the other party'sTrademark. Customer grants to Ariba (and applicable Third Party Providers), the non-exclusive, royalty free, worldwide right to use or display any Trademarks that Customer provides Ariba for the purpose of inserting them in Customer'suser interface for the Solution on the Solution pages utilized or attributed to Customer. As between the parties, Customer is responsible for the entry, completeness, and accuracy of data it enters in the Solution ("Solution Data"),as well as determining the suitability of the Solution for Customer'sbusiness and complying with any regulations, laws, or conventions applicable to Customer'sdata. Ariba will use reasonable efforts to operate the Solution and manage Customer'sdata entered into the Solution in compliance with the Operating Policies. 
11.2 Customer agrees that Ariba may issue a mutually agreeable news release regarding Customer'sselection of the applicable Solution(s). Once a press release has been issued, Ariba may publicly refer to Customer as being a customer of Ariba and use the Customer'sname in any publicity material regarding Customer'sselection and use of the Solution(s). Ariba will seek Customer'spermission prior to any further media discussions concerning Customer'sexperience using Ariba solutions.
11.3 As between the parties, Customer owns, and is responsible for the entry, completeness, and accuracy of, data it enters in the Solution ("Solution Data") subject to the rights and restrictions set forth in the applicable Order Form, the SA and the Operating Policies. Further, Customer is solely responsible for determining the suitability of the Solution for Customer's business and complying with any regulations, laws, or conventions applicable to the Solution Data and Customer's use of the Solution(s).  Ariba will use reasonable efforts to operate the Solution and manage Solution Data in compliance with the Operating Policies. Customer acknowledges that Ariba has the right, but no obligation, to monitor the Solution and any data submitted to the Solution. To comply with legal obligations concerning same, Ariba may take such actions (including removing content or denying routing of certain transactions) if Ariba reasonably believes that such actions are needed to prevent unlawful activity relating to the Solution.
11.4 If Customer provides any feedback for or makes recommendations for Solution, Ariba is free to use such feedback or recommendations in any manner, and Customer waives any interest in any Solution modifications related to such feedback or recommendations

12.  VERSCHIEDENES

12.1 The rights and obligations of each party shall be binding upon and inure to the benefit of each party's respective successors and/or assignees permitted under this Agreement.  Customershall not assign, sublicense or otherwise transfer this Agreement, in whole or in part, even in the event of merger, spin-off, or acquisition, without the prior written consent of Ariba.
12.2 The parties hereto are and shall remain independent contractors, and nothing herein shall be deemed to cause this SA to create an agency, partnership, or joint venture between the parties hereto. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and either Ariba or any employee or agent of Ariba. Ariba reserves the right to use third party providers in the provision of the Solutions.
12.3 The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver is provided to the other party in writing and signed by the party against whom enforcement is sought.
12.4 The Solutions are of U.S. origin and may not be exported, re-exported, transferred, or used in violation of U.S. export law. Some Solutions and/or Consulting Services may include the export or deemed export of Solution Data outside of the U.S.; therefore Customer must ensure that any Solution Data provided to Ariba does not contain any data that is controlled for export, defense or security purposes by the U.S. or other applicable governments. Customer hereby represents and warrants that neither it, nor any of its affiliates included as Registered Users under this Agreement or any Order Form, is: (i) prohibited by U.S. export laws or regulations from receiving or using U.S. origin goods or services; (ii) located in, a legal entity formed in, or a citizen of, any country that is subject to U.S. sanctions or embargoes, or, (iii) controlled by an entity described in (i) or (ii). ThisSection shall survive expiration or termination of this Agreement.
12.5 In the event of termination or expiration of this Agreement, the following terms, and other terms that should be reasonably understood to survive termination,will survive such termination and remain binding upon and for the benefit of the parties, their successors and permitted assignees: 1 (Definitions), 2.2(General), 3 (Fees and Payment), 5 (Termination), 6 (Indemnities),7.3, 8 (Limitation of Liability), 9 (Confidentiality), 12(Miscellaneous), and 13.8 (Limitation of Liability for StartSourcing).
12.6 Schriftliche Mitteilungspflicht. All notices under this Agreement must (a) be in writing and in the English language; (b) be delivered by certified or registered mail, postage prepaid, return receipt requested or by an overnight courier services with delivery receipt; and (c) (in the case of a notice to Ariba) be sent to the attention of the "Chief Financial Officer"of Ariba, with a copy to Ariba'sGeneral Counsel, Ariba, Inc., 910 Hermosa Court,, Sunnyvale California 94085, and (in the case of a notice to Customer) be shall be sent to the address you provide in your Order.
12.7 This SA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflict of laws provisions. The parties hereby specifically exclude from application to this SA the United Nations Convention on Contracts for the International Sale of Goods. Any legal action or proceeding relating to this SA shall be instituted in a state or federal court in Santa Clara or San Mateo County, California (the "Selected Venue(s)"),and each party hereby consents to personal jurisdiction in such counties. In any action to enforce the provisions of this Agreement the prevailing party shall be entitled to recover its reasonable attorney'sfees and costs, including fees of retained expert witnesses, in connection with the resolution of such dispute. Jede Partei verpflichtet sich hiermit unwiderruflich und bedingungslos, sämtliche Maßnahmen zu ergreifen, die notwendig sein könnten, um (i) die Zuständigkeit an den Ausgewählten Gerichtsstand zu übertragen; und (ii) die Vollstreckung sämtlicher Entscheidungen eines Gerichts im Ausgewählten Gerichtsstand durch ein Gericht am Sitz der Partei zu ermöglichen.
12.8 If any end user of the Solution is an agency or department of the U.S. Government ("Government"), the use, duplication, reproduction, release, modification, disclosure, or transfer of the Technology Features, or any related documentation of any kind, including technical data or manuals, is restricted in accordance with FAR 12.212 for civilian agencies and DFAR Supplement 227.7202 for military agencies. The Technology Features operate based on commercial computer software and commercial computer software documentation. The use of the Solution and the Technology Features offered on the Solution by the Government is further restricted in accordance with the terms of this Agreement.      
12.9 This Agreement shall not be construed against the party preparing it but shall be construed as if both parties jointly prepared this SA, and any uncertainty and ambiguity shall not be interpreted against any one party.
12.10 If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
12.11 The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
12.12 The Agreement constitutes a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matter of your Order and this SA, and supersedes all prior representations, proposals, discussions, and communications, whether oral or in writing, and all contemporaneous oral communications. Notwithstanding the content of any purchase order, sale order, sale confirmation or any other document or web site relating to the subject matter of the Agreement, the Agreement shall take precedence over any such document, and any conflicting, inconsistent, or additional terms contained therein shall be null and void. Keine der Parteien darf die Bestimmungen der Vereinbarung ohne schriftliche Zustimmung der jeweils anderen Partei ändern.
12.13 Third Party Websites. A Solution may allow access to other websites. These linked websites are not under the control of Ariba, and Ariba is not responsible for the contents of any linked website. Ariba provides links only as a convenience, and such inclusion of any link does not imply endorsement by Ariba of the linked website or any part of its contents. Such linked websites may subject Customer to terms and conditions between Customer and the website owner, and/or fees for use such website.

13.  STARTSOURCING - SPECIFIC TERMS AND CONDITIONS

13.1  As Ariba is not charging a fee for the Ariba StartSourcing Solution at this time, the terms of this Agreement are adjusted in some material ways with regard to the StartSourcing Solution as provided in this Section 13.
13.2   Order Verification. After submitting an Order for the StartSourcing Solution, Customer will be contacted by an Ariba representative to verify Customer’s Order and the legitimacy of Customer’s company or organization. Ariba’s acceptance of this Agreement for Customer’s use of the StartSourcing Solution shall not be effective until Ariba has sent Customer an email with account login information. The Order Effective Date for the Start Sourcing Solution is the date that Ariba provides Customer with account login information.
13.3 Definitions Specific to the Start Sourcing Solution terms:
13.3.1 “Ariba Discovery Posting” means a Posting as defined in the Ariba Discovery Terms of Use submitted via the Ariba StartSourcing Solution.
13.3.2 “Event” means one of the following types of Projects RFI, RFP, or Auction that includes a Quality Ariba Discovery Posting.
13.3.3 “Project” is defined in Section 1
13.3.4 “Quality Ariba Discovery Posting” is an Ariba Discovery Posting that is directly relevant to the associated sourcing Project (same subject), offers complete information required for suppliers to respond, is grammatically correct, does not include buyer contact information (such information is available to the suppliers after they respond in the system) and adheres to the following: 

·         Commodity Relevance – the Discovery commodity selected must be relevant to the Sourcing Event. Additionally, the Discovery commodity selected must be limited to the Sourcing Event. i.e. the buyer can not include additional commodities that may be irrelevant to the Sourcing Event.

·         Discovery Description – clearly describes the buying requirements such that suppliers can make a reasonable response.

·         No Use of Profanity – Posting can not contain words or expressions that are socially constructed or interpreted as insulting, rude, vulgar, obscene, desecrating, or showing disrespect

13.3.5 “Subscription Term” for the Start Sourcing Solution begins on the Order Effective Date and will continue until either party terminates by providing at least ten (10) days advance notice or Ariba terminates pursuant to other rights under this Agreement.
13.3.6 "Test Project" means a Project in which the Test Project field has the "yes" indicator checked. Test Projects are included in the definition of "Project"; however, Test Projects shall not be counted toward Project Usage Limits.
13.4 Solution Access and Usage. Subject to the terms of the Agreement, up to the maximum number of Users indicated in your Order under may access the StartSourcing Solution during the Subscription Term to conduct, in the aggregate, up to the maximum number of Projects per Month indicatedin your Order. Use of the StartSourcing Solution requires use of the Ariba Discovery service. Customer’s acknowledges and agrees to the terms of use for Ariba Discovery found at Discovery Terms of Use.
13.3.1 Customer may create the number of Team Member accounts specified in Customer’s Order.  Team Members may access the StartSourcing Solution during the Subscription Term solely for purposes of participating in a Project managed by a User.
13.4 Quality Ariba Discovery PostingsIn order to maintain access to the StartSourcing Solution, You agree to create and process at least one Event each Month using a Quality Ariba Discovery Posting, excluding Test Projects. Ariba reserves the right to review Ariba Discovery Postings, to provide feedback and suggestions for improving the quality of the Ariba Discovery Postings, and to remove Postings that do not meet the requirements of a Quality Ariba Discovery Posting.   You agree to make changes to fix sub-standard Postings within twenty-four hours of notice from Ariba. If You repeatedly fail to provide Quality Ariba Discovery Postins, the Ariba may terminate your subscription with ten (10) days notice.
13.4.1 Customer agrees to provide relevant and timely feedback to Seller inquiries and Posting responses within Ariba Discovery.
13.5 Support for the Ariba StartSourcing Solution is only available via email/Webform. No technical support will be provided via phone although Ariba may provide some phone support for deployment activities as set forth in the Documentation.
13.6 Website Terms. All suppliers using the Solution to submit a bid must accept Ariba’s standard agreement addressing their bidding-related interactions with Ariba in order to participate, whether via Ariba Discovery or via the Start Sourcing Solution.
13.7 Compliance with Laws. Customer shall not conduct any unlawful Project. Customer shall be solely responsible for all information that Users or suppliers interacting with Customer post on the StartSourcing Solution. Ariba will retain the data on the StartSourcing Solution for the lesser of three (3) years or the remaining Subscription Term, subject to legal requirements imposed upon auction site operators.
13.8 Limitation of Liability. With regard to any Order for the Ariba StartSourcing Solution, Section 8 is deleted and superseded by the following: IN NO EVENT SHALL ARIBA’SAGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT IN RELATION TO AN ORDER FOR THE STARTSOURCING SOLUTION (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF $1,000 OR THE TOTAL AMOUNT PAID BY CUSTOMER FOR USE OF THE STARTSOURCING SOLUTION. IN NO EVENT SHALL ARIBA HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DER VORSTEHENDE HAFTUNGSAUSSCHLUSS GILT AUSSCHLIESSLICH IM VOM GELTENDEN RECHT ZUGELASSENEN UMFANG.
13.9 SECTION 7.1 DOES NOT APPLY TO THE ARIBA STARTSOURCING SOLUTION. THE ARIBA STARTSOURCING SOLUTION IS PROVIDED "AS IS," WITHOUT ANY WARRANTY WHATSOEVER. ARIBA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ARIBA DOES NOT WARRANT THAT THE SOLUTIONS, OR ANY PORTION THEREOF, ARE ERROR OR BUG FREE.  CUSTOMER ACKNOWLEDGES THAT ARIBA DOES NOTCONTROL THE TRANSFER OF DATA OVER THE INTERNET, AND THAT ARIBA IS NOT RESPONSIBLE FOR ANY DELAYS OR DELIVERY FAILURES CAUSED BY THE INTERNET.
13.10  Section 6.1 (Indemnities) does not apply to the Ariba StartSourcing Solution.
13.11 Data Policy Applicability. Due to the way in which StartSourcing is designed, certain aspects of the posted Ariba Data Policy and Privacy Statement (“Data Policy”)do not apply to that product. Customer acknowledges that the Data Policy is modified as stated below in regards to StartSourcing, and that such changes will similarly apply to Ariba’sthen current Data Policy throughout the Subscription Term. Except as modified below, Ariba’sData Policy will continue to apply, including but not limited to Ariba’scommitment to treat Customer’stransaction data (e.g. RFX/Auction data) as confidential information and only use it for the limited purposes described in the Data Policy.

  1. As will be explained in the invitation email to a prospective new supplier invited by a company running a Project (a “Buyer”),if a supplier accepts an invitation from a Buyer, the supplier will be placed in the supplier public database and its profile information (whether entered by the original Buyer or updated by the supplier) will be visible to all Buyers across all companies on the StartSourcing Solution and potentially companies using other Ariba Sourcing and buying network services. 
  2. For suppliers in the public database, the supplier’sprofile and contact information will be searchable by all Ariba StartSourcing realm users, including Buyersand may become searchable by companies using other Ariba Sourcing and buying network services.
  3. Ariba will not accommodate a Buyer’sor supplier’srequest to purge information from the StartSourcing Solution, except as required by law (e.g. with regard to personal information)
  4. To the extent this section conflicts with anything stated in Ariba'sthen-current Data Policy, the terms of this section 13.11supersedes such conflicting term in the posted Ariba Data Policy. Buyer is responsible for informing its suppliers of the contents of this section.
  5. Customer agrees to notify its Usersof the contents of this section, so that the Usersare informed of these updatesto the Data Policy. 

14.  STARTCONTRACTS - SPECIFIC TERMS AND CONDITIONS
14.1 Solution Access and UsageSubject to the terms of  the Agreement, up to the maximum number of Users and Team Membersindicated in your Order may access the StartContracts Solution during the Subscription Term.  .
14.2 eSignature. In order for Customer to utilize the eSignature Technology Features, Customer must separately contract with a third party eSignature provider (TPESP) for its signature processing service.  The TPESP must be an approved eSignature provider for the Ariba Contract Management product.
14.3 No Legal Advice.Customer acknowledges and agrees that Ariba is not in the business of providing legal advice, and that no content available within the StartContracts Solution or in connection therewith should be misconstrued as legal advice.

eStore SA v8.1 May 28, 2013

4. PRIVACY POLICY

By clicking "Order," you expressly agree and understand that personal data entered into this system may be transferred outside of the European Union or other jurisdiction where you are located, as further described in the Datenschutz.