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EXHIBIT 10.15
JOINT VENTURE AGREEMENT
This Joint Venture Agreement is entered into as of April 8, 1998 (the EFFECTIVE
DATE") between Sagent Technology, Inc. with offices at 0000 Xxxx Xxxxxxxx Xxxx,
Xxxxx 000, Xxxx Xxxx, XX 00000, ("SAGENT") and ISAR-VERMOGENSVERWALTUNG GBR MBH
a German limited liability partnership within the meaning of the German Civil
Code with the following address at Gut Keferloh 1B, D-85630 Grasbrunn/Munich,
Germany ("INVESTOR").
RECITALS
A. WHEREAS the Investor is a German limited liability partnership which
desires to incorporate and invest in a new German Company, referred to
herein as "JVC" which will distribute the software and services of a
software company in the Territory.
B. WHEREAS Sagent is a software company which seeks expanded distribution
of its software and its related services in the Territory.
C. WHEREAS the Investor, will incorporate the JVC, and the JVC will
receive a license for the Territory from Sagent to (i) resell Sagent
products, (ii) provide authorized maintenance, training and consulting
services and (iii) manage new VARs and Resellers.
D. WHEREAS the Investor's responsibilities related to the JVC will
include: (1) proper incorporation of the JVC (2) the provision of
start-up and operating capital for the JVC, (3) appointing three
appropriate and responsible individuals of the Advisory board of the
JVC and (4) voting of stock shares of the JVC.
E. WHEREAS Investor and Sagent have expressed a desire to work together
to create the JVC which shall be governed by its Shareholder
Agreement, its board, and the Exclusive Software Distribution
Agreement and to have the JVC granted rights and privileges to
distribute the software and services of Sagent in the Territory.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
1.1 "DISTRIBUTION AGREEMENT" shall mean the Exclusive Distribution
Agreement executed on April 8, 1998 between Sagent and JVC.
1.2 Intentionally left blank.
1.3 "JVC" shall mean the company which is incorporated by Investor
pursuant to the terms and conditions of this Agreement.
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1.4 "RULES OF PROCEDURE FOR THE ADVISORY BOARD" shall mean the Rules of
Procedure for the Advisory Board of the JVC which are set out as
Exhibit D hereto.
1.5 "SHAREHOLDERS' AGREEMENT" shall mean the Shareholders' Agreement of
JVC which is set out as Exhibit C hereto.
1.6 "TERRITORY" shall mean those countries / accounts set out in the
Distribution Agreement.
1.7 "SAGENT PRODUCT AND SERVICES" shall mean those products and services
developed or licensed by Sagent and provided by Sagent from time to
time and which are distributed by the JVC in the Territory pursuant to
the Terms and Conditions of the Distribution Agreement.
1.8 "SAGENT VISITING DIRECTOR" shall be that person appointed by Sagent
that Investor shall establish as a visiting board member of the JVC
Advisory Board. When used in this Agreement the term "approval of
Sagent's Visiting Director of the JVC's Advisory Board" or similar
term shall mean the affirmative approval of the Sagent Visiting
Director and accordingly the failure of the Sagent Visiting Director
to attend or vote will preclude the required approval.
1.9 "COMPETITOR" shall mean a Data Mart and/or Data Warehouse company or
company that sells Data Access and/or Data Movement tools such as but
not limited to Informatica, Microstrategy, Information Advantage,
Brio, SAS.
"INDIRECT COMPETITOR" shall mean any other software company providing
Database tools or any other business competing with JVC for the same
customers in Data Warehousing tools licensing transactions.
"NON-COMPETITOR COMPANY" shall mean any company which is not a
"Competitor" or an "Indirect Competitor".
ARTICLE 2 FORMATION OF JVC
2.1 INCORPORATION Promptly after the Effective Date of this Agreement, the
Investor shall cause the JVC to be incorporated in the form of a
German GmbH (Gesellschaft mit beschrankter Haftung), or be
incorporated by using an existing German GmbH. In connection with the
foregoing action the Investor shall cause the JVC to adopt the charter
documents (GmbH Shareholders' Agreement and Rules of Procedure for the
Advisory Board) which shall include but not be limited to the identity
and voting rights of the Advisory Board and Shareholders of the JVC
and which are substantially in the form of Exhibits D and E hereto.
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2.2 FUNDING OF INITIAL CAPITALIZATION. The Investor agrees to provide
sufficient funding up to a maximum of one and a half million Deutsche
Marks (DM 1,500,000) over a three year period to enable JVC to hire
personnel, obtain space and otherwise conduct its business. In no
event shall Investor be required to increase its investment or have
any other liability or responsibility to JVC other than the funding
requirements in this section and as otherwise provided in this
Agreement.
2.3 EXCEPTION. Investor shall not be required to meet its investment
obligations and JVC shall not be required to meet its minimum royalty
payment obligation if (i) Sagent has materially defaulted in any of
its obligations set out in this Agreement between the parties and such
default is not cured within ten (10) days of Investor's written notice
to Sagent; or (ii) Sagent's overall revenues, commencing on the
Effective Date, and excluding European revenue do not grow by at least
thirty (30) percent annually or (iii) Sagent does not continue to make
all reasonable commercial efforts in its pursuit of becoming a
publicly traded entity.
2.4 FUNDING REQUIREMENTS.
(a) JVC shall carry all expenses related to the foundation/incorporation
of JVC including but not limited to notary and legal fees. Sagent
shall carry all expenses related to the acquisition of JVC including,
but not limited to notary and legal fees.
(b) The Investor expects that the above investment amount will be
sufficient, however it shall have the right to invest more if
necessary but shall not be obligated to do so.
(c) Sagent shall have the right to lend funds in the form of subordinated
loans to JVC if the Investor has reached its maximum limit.
(d) Apart from disbursements which are normally required in the ordinary
course of business, during the first three (3) years of JVC's
operation the approval of the Advisory Board of JVC and in particular
the Sagent Visiting Director shall be required prior to the Investor
taking any money or other asset out of JVC in any form including but
not limited to cash, profits or dividends. Without approval of the
Sagent Visiting Director, investor shall be entitled to withdrawal of
amounts it has loaned to JVC.
(e) Any amounts lent by Sagent shall bear prevailing market rates of
interest and otherwise comply with all US laws.
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2.5 STRUCTURE OF JVC
(a) The Advisory Board of JVC will have three Members of the Advisory
Board, one of whom shall be nominated by Sagent and two by the
Investor. The Board will meet at least quarterly in person or by
telephone with at least five (5) days advance written notice of all
meetings.
(b) At the outset of the Agreement, one hundred percent of the
shareholdings of the JVC will be owned by Investor, however the
Sagent Visiting Director shall have the right to approve or reject
alternative ownership. Further, any transfer is subject to Sagent's
right of first refusal found elsewhere in this Agreement.
(c) Decisions of JVC for which the approval of Sagent's appointed member
of JVC's Advisory Board is required shall be set out in the Rules of
Procedures, the Shareholders Agreement and in the Actions requiring
Approval set out in Exhibits C, D and E hereto.
ARTICLE 3 MANAGEMENT OF THE JOINT VENTURE COMPANY
3.1 MANAGEMENT GENERALLY. The JVC shall be managed and administered in
accordance with the applicable provisions of its charter documents.
The JVC shall be managed in a manner consistent with prudent business
practices.
3.2 INTENT. The parties will agree to guide JVC to achieve the
objectives of Sagent in the "Territory" and the desire by the
Investor to achieve a substantial return from its efforts.
3.3 INVESTOR RESPONSIBILITY. The Investor shall use its best efforts as
the sole shareholder of JVC to ensure that the General Manager of the
JVC understands and works diligently to fulfill all of JVC's
obligations under the Distribution Agreement between JVC and Sagent
which is dated April 8, 1998.
3.4 The advisory board of Sagent GmbH will provide a person acceptable to
Sagent as General Manager of Sagent GmbH.
ARTICLE 4 ALLOCATIONS, DISTRIBUTIONS AND OTHER FISCAL MATTERS
4.1 AUDITORS. The firm of Coopers & Xxxxxxx is hereby designated as the
initial Auditors for the JVC; Auditors shall not be changed without
the approval of the Sagent Visiting Director.
4.2 INFORMATION AND ACCESS. The JVC shall keep its accounting and Tax
records on Sagent's fiscal year (calendar year) basis and shall
provide Sagent with financial statements (to include a balance sheet,
income statement, and
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statement of cash flows) no less frequently than within 21 days after
the end of each calendar quarter. JVC shall also provide Sagent with
a personnel roster at such time, listing each employee and significant
consultant of the JVC by name, position held and salary. Sagent shall
have the right at any time to inspect JVC's books records and
facilities and to talk with the officers, Members of the Advisory
Board, employees and consultants of the JVC.
4.3 LIMITATION ON LIABILITY. In the event of termination by either party
in accordance with any of the provisions of this Agreement, neither
party shall be liable to the other, because of such termination for
compensation, reimbursement or investments, leases or commitments in
connection with the business or goodwill of Sagent or JVC. Termination
shall not, however, relieve either party of obligations incurred prior
to the termination.
4.4 Regardless of whether any remedy fails of its essential purpose, in no
event will either party be liable to the other party for incidental,
indirect, special or consequential damages, notwithstanding being
aware of the possibility of such damages. Neither party's liability
for any damages or claims shall exceed US $ 500,000 or DM 900,000
whichever amount is lower.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES
Each party hereby severally represents and warrants to each other party as
follows:
5.1 DUE ORGANIZATION AND EXISTENCE.
(a) In the case of the Investor, that it is a limited liability
partnership duly organized, validly existing and in good standing
under the laws of Germany.
In no event shall Investor be required to increase its investment or
have any other liability or responsibility other than the investment
and as otherwise provided in this Agreement.
(b) In the case of Sagent, that it is a corporation duly organized and
validly existing in accordance with the laws of California, USA.
5.2 QUALIFICATION. The parties acknowledge that each of them are duly
qualified, licensed or registered to transact business and is in good
standing under the laws of each jurisdiction in which the nature of
its business or the location of its assets requires it to be so
qualified.
5.3 POWER AND AUTHORITY. The parties warrant that each has all requisite
power and authority to transact the business in which it is currently
engaged or proposes to engage, to own or hold under lease its
properties and assets, and to execute and deliver, and to perform its
obligations under this Agreement.
5.4 NO CONFLICT. Neither the Agreement's execution and delivery of other
documents contemplated hereunder, (a) requires or will require
approval of its
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equity owners or the holders of any of its indebtedness or
obligations, (b) contravenes or will contravene any law applicable to
or binding upon it or any of its properties, (c) contravenes or will
contravene any provision of its charter documents, (d) does or will
contravene or result in a breach of or constitute a default under any
instrument, indenture, agreement or other obligation to which it is a
party or by which it or any of its assets may be bound, or (e)
requires or will require the consent or approval of, the giving of
notice to, the registration with, the recording or filing of any
document with, or the taking of any other action by or in respect of,
any governmental commission, authority or agency, or any other person
or entity whether foreign or domestic the violation of which would
have a material effect on the transaction contemplated herein.
5.5 EXECUTION, DELIVERY AND PERFORMANCE. Each party warrants that it has
duly executed and delivered this Agreement, and this Agreement
constitutes a legal, valid and binding obligation enforceable against
it in accordance with the terms hereof.
5.6 ABSENCE OF LITIGATION. Each party warrants that there are no
actions, suits or proceedings pending or, to the best of its
knowledge, threatened against or affecting it or any of its assets.
5.7 NO LIABILITIES OR OBLIGATIONS. Investor warrants that it has not
incurred any liabilities or obligations on behalf of the JVC, other
than liabilities or obligations required by German law.
5.8 NON COMPETITION. During the first three years of the Agreement, JVC
will not sell any products except the Sagent Products and Services.
During this three-year period, Investor and any of its companies where
investor is the majority shareholder shall have the right to otherwise
conduct their business, however in no event may Investor and its
companies sell or otherwise promote the products of a Competitor or
Indirect Competitor of Sagent without Sagent's prior written
permission and if such permission is granted by Sagent, Investor and
its companies will be responsible for making sure that any affiliate
who may be working with competitors will not receive any confidential
information of Sagent.
ARTICLE 6 ADDITIONAL COVENANTS AND AGREEMENTS
6.1 EXCLUSIVE DEALING. The parties shall work together exclusively to
develop this venture. No party may unilaterally take any action or
enter into any agreement granting any rights to or associated with
this venture to any person or entity that is not a party hereto.
6.2 RESTRICTIONS ON TRANSFERABILITY OF EQUITY INTEREST IN JVC. Except
for transfers or other dispositions to other wholly owned companies,
Investor may not sell, assign, pledge or otherwise dispose of its
equity interest in the JVC, in whole or in part, unless Investor (the
"TRANSFERRING PARTY") has received a
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bona fide offer it is willing to accept for such interest (or part
thereof), and Investor thereafter offers Sagent (the "NON-TRANSFERRING
PARTY") a right of first refusal to purchase such interest (or part
thereof) (the "OFFERED INTEREST") at the same price and upon the same
terms and conditions as the bona fide offer, in accordance with the
following procedure:
(a) The Transferring Party shall provide notice to the Non-Transferring
Party, which notice shall (i) state that the Transferring Party
received a bona fide third party offer for the Offered Interest, (ii)
state the price offered for the Offered Interest, on a per-share or
other unitary basis, and (iii) describe the terms and conditions to
which the bona fide offer is subject (the "OFFER NOTICE") and shall
provide the Non Transferring Party with any other information it
reasonably requests regarding the Offer, or JVC.
(b) If the Non-Transferring Party elects to exercise its right of first
refusal, notice of such election (an "ELECTION NOTICE") shall be given
to the other party within sixty (60) days following the date on which
the Office Notice was given. The closing of the purchase and sale
transaction shall take place on the sixty (60th) day after expiration
of the initial sixty day period. At the closing, the Transferring
Party shall sell, and the Non-Transferring Party or Parties shall
purchase, the Offered Interest at the price and upon the terms and
conditions set forth in the Offer Notice. If the offer price is in
other than cash, the Non Transferring Party may elect to pay the
consideration in fair market value in cash.
(c) If rights of first refusal are not timely exercised with respect to
the entire Offered Interest, or are waived, the Transferring Party may
thereafter dispose of the Offered Interest at a price equal to or
greater, and upon terms and conditions equal to or more favorable to
the Transferring Party, than those set forth in the Offer Notice.
However, if the Offered Interest is not so disposed of within ninety
(90) days after the date on which the Offer Notice was given, or if
the Transferring Party elects to dispose of the Offered Interest at a
lower price, or upon terms and conditions less favorable to the
Transferring Party, than those set forth in the Offer Notice, then
this Section 6 shall again become applicable to the Offered Interest.
(d) Notwithstanding anything to the contrary in this Section 6, as a
condition precedent to any sale, assignment or other disposition of an
equity interest in JVC, in whole or in part, the intended transferee
of such interest shall become a party to this Agreement, and shall
give the representations and warranties contained herein and be
subject to all obligations herein including section 7. Additionally,
under no circumstances can any interest be transferred to a Direct or
Indirect Competitor of Sagent except as provided in Section 7.4.
(e) If the Transferring Party sells, assigns, pledges or otherwise
disposes of any interest in JVC, whether in whole or in part, in
violation of this Section 6, such disposition shall be null and void
ab initio. Each party acknowledges that the restrictions on
transferability set forth in this Section are of unique value to the
other parties hereto, and that the payment of monetary damages could
not
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adequately compensate the other parties for any breach of the
obligations set forth in this Section. Accordingly, the rights of the
parties set forth herein shall be specifically enforceable in
accordance with their terms.
(f) Nothing herein shall limit Sagent's Buy-Out Option under Article 7.
6.3 PUBLIC DISCLOSURE. No party shall make any public disclosure
regarding confidential terms of this venture without the prior written
consent of the other parties hereto, except as required by law,
including the requirement of the United States Securities and Exchange
Commission. Confidential terms shall include all of the terms and
conditions of this Agreement, however the business relationship
between the parties and JVC necessary to carry out distribution of
products and other obligations under the Distribution and Trade xxxx
Agreement shall not be confidential.
6.4 CONFIDENTIALITY. Each party shall keep confidential all information
and documents received from the other parties in connection with the
transactions contemplated hereby, and shall not disclose the same to
any third party without the prior written consent of the party that
might be affected thereby. The limitations set forth in this Section
shall not apply to (a) information that is or becomes generally
available to the public other than as a result of a disclosure by any
person in breach of this Agreement, (b) information already in a
party's possession without restriction on disclosure, (c) information
that comes into a party's possession from a third party without
restriction on disclosure, other than through a breach of an agreement
with the original disclosing party, and (d) information the disclosure
of which is compelled by force of law.
6.5 NAME CHANGE OF JVC. In accordance with Sections 13.3 and 13.6 of the
Exclusive Software Distribution Agreement executed as of April 8, 1998
between Sagent and JVC, Investor as shareholder of JVC shall promptly
pass the resolution required to effect the name change and shall use
its best efforts to effect the legal name change of JVC.
ARTICLE 7 BUY OUT
7.1 In the event that Sagent is sold, (the is, a controlling interest is
sold to another firm that expects to operate Sagent rather than an
investment firm) by written notice the Investor can require Sagent to
purchase JVC at the Formula Price determined pursuant to section 7.3
herein within sixty (60) days following completion of the sale of
Sagent. Sagent may elect to purchase JVC as further described in
Section 7.2. The sale price shall be paid in cash or a combination of
cash and stock of Sagent, if stock is acceptable to Investor.
7.2 At any time, but not earlier than eight (8) months after the
incorporation of JVC, Sagent may elect to purchase JVC at the Formula
Price determined below in cash, or a combination of cash and stock by
giving written notice to Investor. If Sagent elects to purchase JVC
in exchange for stock, Investor may decide to have these shares
directly transferred to its individual partners.
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7.2.1 If Sagent is privately held, the value of the shares issued in
connection with any stock purchase shall be at the value declared by
an independent party knowledgeable in business valuation acceptable to
both parties as the fair market value on the date Sagent provides
notice of its desire to purchase JVC. Sagent and the Investor shall
share equally in the cost of the valuation. If Sagent is a publicly
reporting company, the share value shall be the average closing sales
price (or closing bid, if no sales are reported) of Sagent common
stock for the three (3) business days prior as well as three (3)
business days following the date on which written notice is provided
by Sagent for purchase of JVC.
7.2.2 In the case an SEC rule 144 transaction is applicable with respect to
the shares, Sagent shall fully support Investor's/the Partners'
efforts in this transaction.
7.3 FORMULA PRICE:
7.3.1 In the event that the proposed Buy-out Date is on or before the last
day of the first 12-month period of operation, the Purchase Price
shall be equal to the amount of [*] dollars (US $[*]).
In the event that the proposed Buy-out Date is after the last day of
the first 12-month period and on or before the last day of the second
12-month period of operation, the Purchase Price shall be equal to the
higher amount of [*] dollars (US $[*]) or the Gross Product Revenues
multiplied by the applicable monthly Revenue Multiple, less (i)
accounts receivable due greater than sixty (60) days after the Buy-out
Date and (ii) lease commitments or contingent liabilities, with the
exception of office space lease commitments, extending more than six
(6) months past the Buy-out Date. Accounts receivable that are
recovered within 120 days after the Buy-Out Date shall be added back
to the Purchase Price. Gross Product Revenues shall equal the
aggregate licensing, sale revenues from the distribution of Sagent
products recognized by Company during the twelve-month period
immediately preceding the Buy-out Date in accordance with the revenue
recognition policy of Sagent then in effect. The month during which
Sagent gives notice of the desired acquisition shall be accounted for
in the buy-out formula.
In the event that the proposed Buy-out Date is after the last day of
the second 12-month period of operation, the Purchase Price shall
equal the Gross Product Revenues multiplied by the applicable monthly
Revenue multiple.
7.3.2 REVENUE MULTIPLE: The Revenue Multiple in the first month of the
second 12-month period shall be equal to [*] ([*]) and shall be
increased each month by [*] until it reaches [*] ([*]).
7.3.3 Investor shall have the right to withdraw dividends after the third
year without change to the buyout price, provided that such dividends
do not exceed the amount invested in common equity pursuant to Section
2.2 (withdrawals
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exceeding this amount to be deducted from the buyout price). JVC's
retained earnings for the current or prior fiscal years shall be
included in the buy-out price and in that respect. Investor waives its
rights to revert to Article 000 XXX (Xxxxxx Civil Code). Exhibit B
attached hereto provides an example of the buyout amounts based on the
projections set out in Exhibit A.
7.3.4. During the thirty (30) day period following the notice of
acquisition, Sagent shall have the right to audit the buy-out price
and operations of JVC prior to closing of the buy-out. The audit may
be conducted by Sagent or a third party accounting firm hired by
Sagent. The Investor shall correct all errors noted by Sagent through
recalculation of the buy-out price. In the event there are material
errors or accounting deficiencies, Sagent may delay the closing
pending rectification of the material problems noted.
7.3.5. Notwithstanding the foregoing, the purchase price to be paid by
Sagent shall be reduced by any liabilities or obligations to which
the JVC is subject at the time of the buyout that are not necessary
to fulfill its intended business objectives.
7.3.6. The amount to be paid by Sagent shall be calculated (and if
applicable, paid) in US dollars. For the purpose of calculating the
buy-out price, the monthly revenues of the JVC shall be converted at
the respective average monthly exchange rates of German Marks/Euros
to US dollars in accordance with US GAAP.
7.3.7. Subject to 7.3.4, Sagent shall promptly complete the acquisition
following resolution of all audit or other issues disclosed, but in
no event shall the acquisition be completed later than ninety (90)
days after Sagent's written notice to buy JVC.
7.4 Intentionally left blank
7.5 REGISTRATION RIGHTS. If Sagent issues shares of common stock or
securities convertible into common stock to Investor in the future
pursuant to this Agreement, Sagent shall give Investor mutually
agreed-upon registration rights related to that common stock.
7.6 The rights to be granted to Sagent in this Section 7 can be exercised
also by a nominee named by Sagent, whereby such nominee shall be a
Sagent controlled company.
ARTICLE 8 GOVERNING LAW AND DISPUTE RESOLUTION
8.1 GOVERNING LAW. The rights and obligations of the parties under this
Agreement shall not be governed by the U.N. Convention on Contracts
for the International Sales of Goods; rather such rights and
obligations shall be governed and construed under the laws of the
State of California, without reference to conflict of laws and
principles. The jurisdiction of the courts of Germany is expressly
excluded to the maximum extent permitted by law.
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8.2 ARBITRATION. In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or
termination hereof (a "DISPUTE"), the parties agree to resolve the
same as follows:
(a) The parties to the Dispute shall initially attempt to resolve it
through consultations and negotiations.
(b) If the Dispute has not been resolved amicably within thirty (30) days
after any party provides notice thereof, unless the parties agree
otherwise, the Dispute shall be resolved by final and binding
arbitration in Zurich, Switzerland, in accordance with the
Arbitration Rules of the United Nations Commission on International
Trade Law ("UNCITRAL"), as in effect on the date of this Agreement.
The language to be used in the arbitration proceeding shall be
English. The International Chamber of Commerce shall serve as the
appointing authority. The arbitrators shall render a written award
stating the reasons for the decision. An arbitration award or
decision may be entered by any court of competent jurisdiction, or
application may be made to such a court for judicial acceptance of
the award or decision and any appropriate order, including
enforcement.
(c) Each of the parties hereto consents to the submission of any Dispute
for settlement by final and binding arbitration in accordance with
paragraph (b) above. Such consent shall satisfy the requirements for
an "agreement in writing" pursuant to Article II of the United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitration Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to carry out without delay the
provisions of any arbitration award or decision.
ARTICLE 9 TERM AND TERMINATION
9.1 TERM. This Agreement runs concurrently with, and will terminate
automatically with the termination of the Distribution Agreement,
unless terminated earlier under the provisions of this Section 9.
9.2 RESIGNATION OF SAGENT VISITING DIRECTOR. After three years JVC may
request the resignation of the Sagent nominated Visiting Director
from JVC's board provided that Sagent continues to be promptly
supplied with all relevant sales and distribution information related
to the continuing distribution of Sagent products and services by JVC.
9.3 INVESTOR'S RIGHT TO TERMINATE FOR CAUSE. The Investor shall have the
right to terminate the Agreement (i) if following investment totaling
DM 1,500,000 in JVC, it shall not have created a self-sustaining
entity, which cannot operate on its own without additional
contribution of outside funds, and it (and or Sagent) is not willing
to advance additional funds to continue operations or (ii) other
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material default of a provision of this Agreement by Sagent, however
if the default is such that it reasonably may be cured within 60 days
and Sagent restores its performance, the Agreement shall continue.
9.4.1 EFFECT OF TERMINATION PURSUANT TO SECTION 9.3: Following termination
under section 9.3 (which shall also act to terminate the Distribution
Agreement), the Investor shall have the right to liquidate JVC,
however if it does so, it shall allow Sagent to hire JVC employees
directly or through a third party to provide support to existing
customers.
9.4.2 In no event will the Investor be required to maintain the corporate
existence of JVC following termination.
9.5 TERMINATION FOR INSOLVENCY. Either party may terminate the Agreement
in the event of JVC's or Sagent's dissolution and liquidation or
inability financially to reasonably complete its responsibilities
under the Distribution Agreement.
9.6 SALE OF EQUITY INTEREST IN JVC. These may be an allowed sale of JVC
that will not invalidate this agreement, if Sagent has passed on its
right of first refusal. Either party may terminate this Agreement in
the event the other party ceases to hold a direct or indirect equity
interest in the JVC.
9.7 Intentionally left blank.
9.8 SURVIVAL. Notwithstanding anything to the contrary in this Agreement,
the provisions of Sections 2.4(a), 3.3, 5, 6.3, 6.4, 7.5, 8, 9, and 10
shall remain in full force and effect upon termination of this
Agreement.
ARTICLE 10 MISCELLANEOUS
10.1 NOTICES. Any and all notices and other communications that are
required or permitted to be given pursuant to this Agreement shall be
in writing, and shall be deemed given (a) upon personal delivery, or
(b) upon the sender's receipt of electronic confirmation of
transmission, if sent by telex or facsimile, or (c) upon 2 business
days after delivery to a recognized courier, fees prepaid. The
parties designate the following addresses for the foregoing legal
effects:
To Investor:
Isar-Vermogensverwaltung GbR mbH
c/o Buro Xxxxx Xxxx
Gut Keferloh 1B
D - 85630 Grasbrunn/Munich, Germany
Attention: Xxxxx Xxxxx, Managing Partner
Facsimile number: (49-89) 464483
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To Sagent:
Sagent Technology, Inc.
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
XXX
Attention: W. Xxxxxxxx Xxxxxx, Chief Financial Officer
Facsimile number: (000) 000-0000
The parties may amend the above-mentioned data by notice to all other
parties, as provided in this Section.
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties contained in this Agreement or in any
certificate delivered pursuant hereto shall survive the termination of
this Agreement and shall remain in full force and effect.
10.3 SPECIAL, INDIRECT, PUNITIVE AND CONSEQUENTIAL DAMAGES. No party shall
be liable to any other party in contract, tort or otherwise (including
negligence, warranty or strict liability) for any incidental, special,
indirect, punitive or consequential damages arising out of or in
connection with this Agreement or the transactions contemplated
hereby.
10.4 BINDING EFFECT; NONASSIGNABILITY. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, and their
respective successors and assigns; provided, however, that neither
this Agreement, nor any rights or obligations hereunder, may be
assigned, delegated or otherwise conveyed by any party hereto without
the prior written consent of the other parties. The sale of Sagent
shall not be considered a violation of this section. The sale of JVC
following Sagent's passing on the right of first refusal shall not be
considered a violation of this section.
10.5 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit
of, and may be enforced only by, the parties hereto. Neither the JVC
nor any other third party claiming through either of them or otherwise
shall have standing to enforce any provision of this Agreement.
10.6 SEVERABILITY. If one of the provisions of this Agreement should be,
or become invalid, or if this Agreement should have an omission, this
shall not affect the validity of the remaining provisions. In such an
event, the parties are obliged to assist in the incorporation of
provisions which form the closest possible economic equivalent to that
which the parties would have agreed if they had been aware of the
invalidity or if they had considered the point.
10.7 AMENDMENT. No modification of this Agreement shall be binding unless
made in writing and duly executed by the parties.
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10.8 WAIVER. The waiver by any party of a breach of any provision of this
Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach, whether of the same or any other provision hereof.
10.9 RELATIONSHIP OF PARTIES. The relationship of the parties under this
Agreement shall be solely that of independent contractors. The
parties retain complete control over and responsibility for their own
respective operations and employees. Nothing contained in this
Agreement shall be construed to make any party a partner, agent,
employee or other representative of any other party, or to otherwise
authorize any party to represent or bind any other party.
10.10 COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto in any number of separate counterparts, each of which
when so executed shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and
the same instrument.
10.11 ENTIRE AGREEMENT. This Agreement, including its Exhibits, which form
an integral part hereof, constitutes the entire agreement of the
parties with respect to the subject matter hereof, and supersedes any
and all prior negotiations, correspondence, understandings and
agreements relating to the subject matter hereof, including without
limitation the Letter of Intent signed by the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the date first written above.
"SAGENT"
SAGENT TECHNOLOGY, INC.
By: /s/ XXXXXX X. XXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------
Title: EVP OF SALES
---------------------
Date: April 8, 1998
---------------------
"INVESTOR"
ISAR-VERMOGENSVERWALTUNG GBR mbH
By: /s/ XXXXX XXXXX
-----------------------
Name: Xxxxx Xxxxx
---------------------
Title: Managing Partner
--------------------
Date: April 8, 1998
---------------------
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15
EXHIBIT A
SAGENT GMBH - BUSINESS PROJECTIONS
15
16
EXHIBIT B
BUY-OUT EXAMPLE
Date of written Notice: June 10, 1999
12-month Trailing Revenue: US$1,682,000
(-- July 1998 - including June 1999)
Monthly Revenue Multiplier: 1.541667
Buy-out Price: US$2,593,083
Minus Accounts Receivable
due greater than 60 days: US$153,000
Minus contingent liabilities or lease
commitments extending more than
6 months past the Buy-out Date: US$0
Plus recovered Accounts Receivable
within 120 days after the Buy-out Date: US$150,000
TOTAL BUY-OUT PRICE: US$2,590,083
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EXHIBIT C
SHAREHOLDERS' AGREEMENT
(ARTICLES OF INCORPORATION)
SECTION 1
COMPANY NAME AND REGISTERED OFFICE
(1) The name of the company shall be Magnolia II Vermogensverwaltung GmbH.
(2) The company's registered office shall be in Grasbrunn.
SECTION 2
PURPOSE OF THE ENTERPRISE
(1) The purpose of the enterprise is to produce and distribute software of all
kinds; also to offer consulting and technical services such as installation,
maintenance, and training. Further it manages and administers its own assets.
(2) Within these limits the company is authorized to perform all business
activities and steps that appear necessary or expedient to achieve the purpose
of the company, such as creating branch offices domestically and abroad.
(3) In particular, the company may acquire or obtain participating interests
in enterprises with the same or similar purposes.
SECTION 3
FISCAL YEAR AND DURATION
(1) The company existence is not limited to a certain length of time.
(2) The company's fiscal year shall coincide with the calendar year.
SECTION 4
SHARE CAPITAL AND COMPANY SHARES
(1) The company's share capital is DM 50,000 (fifty thousand German marks).
(2) Fully paid shares of a shareholder may be consolidated into a uniform
share through resolution of the shareholders.
(3) It is hereby precluded that further payments above and beyond the initial
capital contribution should be required.
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SECTION 5
REPRESENTATION
(1) The company shall have one or more general manager (Geschaftsfuhrer). If
only one general manager has been appointed, then he shall represent the company
alone. If more than one general manager has been appointed, then the company
shall be jointly represented by two general managers or a general manager and an
executive vested with a power of commercial representation under German law
(Prokura).
(2) Any general manager may be authorized through a shareholders' resolution to
represent the company without restriction when performing legal transactions
with himself in his own name or as representative of a third party.
(3) Any general manager may be empowered through a shareholders' resolution to
represent the company alone in case several general managers have been
appointed.
SECTION 6
RESOLUTIONS OF THE SHAREHOLDERS' MEETING
(1) Resolutions of the shareholders' meeting shall be adopted by simple
majority unless a larger majority or unanimity is required by law or these
articles of incorporation.
(2) Each DM 100 (one hundred German marks) in a share give one vote.
(3) Resolutions of the shareholders' meeting may be challenged through legal
action only within a period of one month after being adopted.
(4) Shareholders' resolutions may also be adopted in writing or by telephone
or telefax or electronic mail without holding a shareholders' meeting unless
another method is required by law and insofar as all shareholders approve of
the method. Resolutions adopted by telephone must be recorded in writing
immediately.
(5) A shareholder shall also be entitled to vote in matters concerning him
directly. This does not apply to resolutions concerning formal approval of his
actions, release from a liability, initiation or settlement of a legal dispute
against him, calling in his company share, or transfer of same to the
shareholders or to third parties.
SECTION 7
ACTIONS REQUIRING APPROVAL
Internally, the general managers must obtain the approval of the shareholders
for legal transactions designated as requiring approval by the shareholders'
meeting.
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SECTION 8
ADVISORY BOARD
(1) The shareholders' meeting may resolve to create an advisory board. The
number of its members should always be uneven. Members of the advisory board
may also be persons who are not shareholders.
(2) The advisory board shall be responsible for matters assigned to it by the
shareholders' meeting. It shall adopt resolutions by simple majority unless the
rules of procedure require another method in an individual instance.
SECTION 9
CALLING IN COMPANY SHARES
It is permissible to call in shares of the company with the consent of the
affected shareholder.
SECTION 10
PROHIBITION FROM COMPETITION
The shareholders are not subject to any competitive clause. General Managers
can be released of any competitive clause through a shareholders' resolution.
SECTION 11
NOTICES
To the extent public notices are required by law, they shall appear in the
Bundesanzeigar [Federal Gazette].
SECTION 12
MISCELLANEOUS PROVISIONS
(1) The provisions of the law regarding companies with limited liability shall
apply as supplements to the present Shareholders' Agreement (Articles of
Incorporation).
(2) Should any provision of this agreement be or become unenforceable or
should the agreement contain a loophole, the legal validity of the remaining
provisions shall remain unaffected thereby. In such cases the shareholders
shall be obligated to replace the invalid arrangement with a valid one
approximating as closely as possible the intended purpose of the invalid
provision. The same applies by analogy if this agreement should contain
loopholes.
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EXHIBIT D
RULES OF PROCEDURE FOR THE ADVISORY BOARD
SECTION 1. COMPOSITION OF THE ADVISORY BOARD AND
SELECTION OF ITS MEMBERS
(1)
The company shall have an Advisory Board consisting of three members.
(2)
Members of the Advisory Board shall be appointed through resolution of the
shareholders, one visiting member being nominated by Sagent and the other two
members being nominated from among the ISAR shareholders. Directors and
managerial employees or executives of the company or enterprises dependent on
the company are ineligible for membership on the Advisory Board.
(3)
The office of an Advisory Board member shall end upon closure of the
shareholders' meeting that resolves on the approval of actions for the second
fiscal year following the appointment, unless a shorter period of office is set
at the time of such appointment. The fiscal year during which the appointment
was made is not counted.
(4)
Advisory Board members may be dismissed without statement of cause before
expiration of their term of office through a shareholders' resolution. Any
Advisory Board member may resign from office without statement of cause before
expiration of his term of office through a written statement to the company. To
do so, the member must notify the company in writing three months in advance.
(5)
If an Advisory Board member leaves the Advisory Board prior to expiration of
his term of office, then a new member must be elected to the Advisory Board
without delay. Substitute appointments are for the retired member's remaining
term of office.
SECTION 2. CHAIRMANSHIP
(1)
The Advisory Board shall have a chairman appointed through resolution of the
shareholders.
(2)
The chairman represents the Advisory Board for issuing and receiving statements
and declarations.
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SECTION 3. RESPONSIBILITIES OF THE ADVISORY BOARD
(1)
As an institution of the company the Advisory Board shall execute the
responsibilities given to it through the Shareholders' Agreement, by the present
Rules of Procedure for the Advisory Board, and through resolution of the
shareholders. In particular, these include monitoring and advising the company's
management and approval of the annual financial statements.
(2)
In accordance with section 8 of the Shareholders' Agreement, the Advisory Board
is empowered to appoint and dismiss general managers and if appropriate to
adopt rules of procedure for the company's management. Appointments,
dismissals, and adoption of rules of procedure shall require the approval of
two-thirds of the Advisory Board members.
(3)
To perform his responsibilities, the chairman of the Advisory Board may at any
time require the general managers to report to the Advisory Board regarding the
company's affairs, in particular regarding the progress of business, the status
as to assets and liabilities, profitability, and liquidity, as well as the
intended business policies and other basic matters of future management of the
company.
(4)
The Advisory Board may inspect and examine the company's records and
correspondence; it may appoint individual members or experts to do so.
SECTION 4. MEETINGS OF THE ADVISORY BOARD
(1)
Meetings of the Advisory Board are to be held as required by the needs of the
company or when called for by the chairman or a majority of the Advisory Board
members or the company's management. A meeting should take place during each
quarter. The Advisory Board must convene at least twice during the fiscal year.
(2)
The general managers generally attend meetings of the Advisory Board. In cases
regarding personal matters, the Board may exclude the general managers.
(3)
Meetings of the Advisory Board are called by the chairman or a general manager
designated by the chairman.
(4)
Meetings of the Advisory Board shall be called in writing, by telefax,
telegram, telex or electronic mail with two weeks' notice. Shorter notice is
permitted only with the consent of all members. The agenda must be announced in
the invitation.
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(5)
The Advisory Board shall meet at the location of company's registered office.
The chairman may also call a meeting elsewhere in agreement with the company's
management. Meetings by telephone are also permitted if no member objects.
(6)
The chairman shall conduct meetings of the Advisory Board. A record of meetings
shall be made. It must be signed and kept by the chairman, and copies sent to
the other Advisory Board members.
SECTION 5. RESOLUTIONS
(1)
The Advisory Board shall make decisions through resolution. A quorum shall be
present only if all members take part in the resolution.
(2)
The Advisory Board adopts resolutions with a majority of the votes cast. In
case of a tie the resolution is considered to have been rejected. Consent of
the Visiting Board member nominated by Sagent shall be required for the
following resolutions in addition to the actions listed in the Annex entitled
"Actions requiring approval":
o Payments of any kind whatsoever to the shareholders
o Appointment and dismissal of general managers
(3)
Resolutions may be adopted in writing, by telex, telegram, telefax, electronic
mail or by telephone if no member objects.
SECTION 6. TRANSACTIONS REQUIRING APPROVAL
The affairs of management going beyond the normal business operations of the
company and requiring the approval of the Advisory Board in accordance with
sections 7 and 8, paragraph 2, of the Shareholders' Agreement particularly
include the activities listed in the Annex entitled "Actions requiring
approval".
Such approval shall require a two-thirds majority of Advisory Board members.
The list of actions requiring approval may be changed by resolution of the
shareholders.
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23
SECTION 7. REMUNERATION OF THE ADVISORY BOARD
(1) The members of the Advisory Board shall receive no remuneration for their
activities. The shareholders' meeting may adopt different arrangements.
(2) Members of the Advisory Board may not assert reimbursement claims for their
expenses. The shareholders may make an exception if a member does not perform an
active function either at Sagent or at the company or with the shareholder.
SECTION 8. FINAL PROVISIONS
(1) The rights of the Advisory Board shall devolve upon the shareholders'
meeting in case the Advisory Board should be either not available or not able
to function for some reason.
(2) The provisions governing supervisory boards of stock corporations (section
52, German Law on Limited-Liability Companies) are not applicable.
(3) These rules of procedure shall enter into force and effect today.
City, date
Signatures
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EXHIBIT E
Annex to JVC's Rules of Procedure for the Advisory Board
ACTIONS REQUIRING APPROVAL
I. ACTIONS OF JVC'S MANAGEMENT WHICH REQUIRE THE PRIOR APPROVAL OF
SAGENT'S VISITING BOARD MEMBER OF JVC'S ADVISORY BOARD
a) Moving the registered office of and selling the company in to or in
part.
b) Creating and discontinuing branch offices.
c) Establishing, acquiring, and selling other companies or participating
interests in other companies.
d) Starting and discontinuing a line of business.
e) Acquiring, selling, encumbering real estate property and equivalent
rights, and associated transactions creating an obligation.
f) Undertaking retirement benefit obligations.
g) Granting employees an interest in the assets of the company.
h) Rules regarding the granting of employee interests in profits or sales.
i) Mass dismissals, i.e. changing the number of employees by more than ten
percent within one month or more than 1 person per month whatever is
larger.
j) Providing guarantees and undertaking obligations on bills of exchange,
as well as taking loans exceeding DM 30,000 individually, excepting
conventional customer and supplier credits and excepting loans defined
in paragraph w) of the Actions requiring Approval. Purchasing or
selling securities (including derivative instruments) of any kind
whatsoever; carrying out foreign-exchange transactions, excepting
conventional payment transactions with customers, suppliers, and
associated or related companies, moreover excepting cash management in
the form of short-term money-market instruments.
k) Concluding, canceling, or modifying agreements with persons related by
blood or marriage or close friendship (e.g. spouse) to a partner or
general manager.
l) Business with interested parties.
m) Sale of additional stock.
n) Liquidation of the company.
o) Approval of the annual business plan.
p) Approval of General Manager.
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II. ACTIONS OF JVC'S MANAGEMENT WHICH REQUIRE THE PRIOR APPROVAL OF THE
ADVISORY BOARD BY MAJORITY VOTE
q) Investment and operations maintenance measures exceeding DM 15,000
individually, as well as leasing objects with individual purchase
prices exceeding DM 15,000.
r) Concluding loan or rental agreements lasting more than one year or
involving a monthly liability of more than DM 5,000.
s) Hiring, promoting, and dismissing management personnel (apart from
General Manager).
t) Granting security of any kind (such as pledges, transfers of ownership
by way of security) and approving loans outside conventional business
transactions, as well as assuming third-party liabilities. Exceptions
are loans to employees of the company not exceeding DM 10,000
individually or a total of DM 50,000 in the fiscal year.
u) Concluding, modifying, and terminating license and cooperation
agreements.
v) Initiating litigation for disputed values exceeding DM 50,000
individually.
w) Granting and revoking powers of commercial representation or other
commercial authority.
x) Issuance of debt to finance accounts receivables up to eighty per cent
(80%) of total accounts receivables and fixed assets up to one hundred
per cent (100%) of total fixed assets (e.g. leasing contracts).
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ADDITIONAL AGREEMENTS ACCOMPANYING THE JOINT VENTURE AGREEMENT AND THE
EXCLUSIVE SOFTWARE DISTRIBUTION AGREEMENT
1. In order to accelerate and facilitate the start-up of Sagent Germany,
the company Magnolia II Vermogensverwaltung GmbH will serve as Joint
Venture Company. ISAR-Vermogensverwaltung GbR mbH incorporated Magnolia
II Vermogensverwaltung GmbH in Munich, Germany on March 26, 1997 and
since its date of incorporation Magnolia II has not been active.
As soon as the required documentation has been received from Sagent,
Inc., the name of Magnolia II Vermogensverwaltung GmbH will be changed
to Sagent Technology GmbH.
2. Concerning Article 3.2. of the Exclusive Software Distribution
Agreement, the 30-day period for the development of a business plan
shall start on May 1, 1998 since the General Manager of Sagent Germany
will not join the company before this date.
3. The Trade Xxxx License Agreement has been signed under the assumption
that Sagent will promptly complete the respective exhibits.
4. All Agreements were signed under the assumption that a previously
discussed purchase of Sagent stock for key employees of Sagent Germany
and ISAR Partnership will be approved by the Board of Sagent, Inc.
Date: April 8, 1998
/s/ XXX XXXXXXXX
--------------------
Xxx Xxxxxxxx
Vice President of Sales, Sagent Technology, Inc.
/s/ XXXXX XXXXX
--------------------
Xxxxx Xxxxx
Managing Partner, ISAR-Vermogensverwaltung GbR mbH
/s/ XXXX XXXXXXX
--------------------
Xxxx Xxxxxxx
General Manager, Magnolia II Vermogensverwaltung GmbH
27
EXCLUSIVE SOFTWARE DISTRIBUTION AGREEMENT
This Exclusive Software Distribution Agreement (the "AGREEMENT") is entered into
effective as of April 8, 1998 (the "EFFECTIVE DATE"), between Sagent Technology,
Inc., a California corporation with principal offices at 0000 Xxxx Xxxxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxx, XX 00000 ("SAGENT") and Magnolia II
Vermogensverwaltung GmbH with offices at Gut Keferloh IB, D-85630
Grasbrunn/Munich, Germany ("DISTRIBUTOR").
RECITALS
A. Sagent is the owner or authorized licensor of the Software described
in Exhibit A hereto (as it may be amended in accordance with this
Agreement).
B. Distributor is a company formed concurrently with the signing of this
agreement that will hire sales, support and managerial personnel for
the purposes of distribution of Sagent Software products and provision
of Sagent services within the Territory.
C. The Parties agree to have Distributor distribute the Sagent product and
provide the Sagent services in the Territory and Distributor will
manage Sergeant's Existing Distributors in the Territory to the benefit
of the Existing Distributors, Distributor and of Sagent.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
1. DEFINITIONS.
1.1. "ANNIVERSARY DATE" shall mean the day of the month in which the
Software was shipped to an End-User, VAR or Reseller by Distributor and
the same day in any subsequent year.
1.2. "APPLICATION" shall mean software programs which are deployed by a
Licensee and which consist of one of Sagent's software components.
1.3. "DOCUMENTATION" shall mean any manual(s) shipped by Sagent with the
Software and manuals made available through the Internet and on other
electronic media.
1.4. "END USER" shall mean any third party which licenses Software in order
to fulfill its own data processing needs.
1.5. "END USER LICENSE" shall mean a standard evaluation or run time license
agreement, as the case may be, approved and accepted by Sagent in
accordance with this Agreement, pursuant to which End Users are granted
the right to utilize Software on terms substantially similar to those
which are from time to time included on the then current Sagent
standard End-User License Agreements which are set out in Exhibit G,
and provided that the language relating to the Grant of License and the
related Definitions shall provide no more rights and are expressed as
closely as reasonably possible in the applicable local language as that
used by Sagent in the relevant agreement.
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1.6 Intentionally left blank.
1.7 "JOINT VENTURE AGREEMENT" shall mean the Agreement executed between
Sagent and ISAR-Vermogensverwaltung GbR mbH on April 8, 1998.
1.8.1 "LICENSE(S)" shall mean an End-User License, a Reseller Agreement
or a VAR License, as applicable.
1.8.2 "LICENSEE" shall mean any party which executes a License with
Distributor.
1.9 "MAINTENANCE" shall mean telephone consultation during Sagent's
normal business hours, bug fixes, error corrections and work-arounds,
as well as updates and new releases, if any, which are not separately
priced, that Sagent makes to the Software.
1.10 "MARKETING" shall mean all sales promotion activities by Distributor,
and conducted by or for Distributor in the Territory.
1.11 "RESELLER" shall mean any reseller which markets Software for resale
provided that this definition does not include VAR.
1.12 "RESELLER AGREEMENT" shall mean Distributor's Reseller agreements
related to the Software. Sagent shall approve the standard form of
Distributor's Reseller Agreement prior to execution by any Reseller.
1.13 "REVENUE" shall mean revenue regularly recognized, net of discounts,
and returns. The term "Revenue" may apply to Sagent's Revenue or
Distributor's revenue as the context requires.
1.14 "SOFTWARE" shall mean Sagent's Software Modules set out in Exhibit A
hereto.
1.15 "STRATEGIC PLANS" shall include but shall not be limited to those
plans established by Distributor for the overall marketing
distribution and sales direction of the Software and services in the
Territory including but not limited to the provision of product
maintenance, consulting and training services.
1.16 "TERRITORY" shall mean those countries set out in Exhibit B of this
Agreement.
1.17 "VAR" shall mean a Value Added Reseller who has integrated or
embedded Sagent's product in its own product offering and who has
executed a VAR Agreement.
1.18 "VAR LICENSE" shall mean Distributor's Standard VAR Agreements which
contain terms substantially similar to those which are from time to
time included on the then current Sagent Standard VAR Agreements,
which are set out as Exhibit H hereto, and provided that the language
relating to the Grant of License and the related Definitions shall
provide no more rights and are expressed as closely as reasonably
possible in the applicable local language to those used by Sagent.
1.19 "WHOLLY OWNED COMPANY(IES)" shall mean those companies which are
controlled by Distributor and which are used by Distributor to fulfill
Distributor's obligations under this Agreement. "Controlled shall
mean that Distributor owns all of the shares of
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such company (nominal share holdings which may be required by local
law are allowed) and is responsible for the day to day actions of the
company.
1.20 All references in this Agreement to the "sale" of or "selling" of
Software shall mean the sale of a license to use such Software. All
references in the Agreement to the "purchase" of or "purchasing" of
Software shall mean the purchase of a license to use such Software.
2. LICENSE TO DISTRIBUTOR.
2.1 GRANT OF EXCLUSIVE LICENSE FOR SOFTWARE. Subject to the terms and
conditions of this Agreement, Sagent hereby grants and Distributor
accepts a royalty-bearing, exclusive, nontransferable, nonassignable,
right and license to copy and distribute Licenses of the Software in
the Territory during term of this Agreement. Distributor shall not
engage in sales activities relating to the Software outside of the
Territory and shall not seek customers, or maintain a branch or
distribution facility outside of the Territory. Except as expressly
permitted herein, Distributor shall not copy, distribute or
sub-license the software except to the extent that such activities may
not be restricted under applicable law.
2.2 Intentionally left blank.
2.3 SUB LICENSE TO VAR. Subject to the terms and conditions of this
Agreement, Sagent hereby grants and Distributor accepts a
royalty-bearing, exclusive nontransferable, nonassignable right to sub
license the right to license and distribute Software through VAR
Agreements in the Territory provided that no VAR agreements granted
pursuant to this section shall remain in effect for a period longer
than five (5) years. Distributor may grant VAR Licenses which shall
be effective for longer periods provided that Sagent agrees in
writing. In any case the VAR agreements have to include maintenance
provisions from Sagent.
2.4 SUB LICENSE TO RESELLERS. Subject to the terms and conditions of this
Agreement, Sagent hereby grants and Distributor accepts a
royalty-bearing, exclusive nontransferable, nonassignable right to sub
license the right to license and distribute Software through Reseller
Agreements in the Territory. Resellers are explicitly not granted the
right to copy any of the Software. Distributor shall ensure that
Reseller shall not engage in active sales activities relating to the
Software outside of the Territory and shall not seek customers outside
of the Territory. Reseller Agreements granted pursuant to this
section shall remain in effect for a period no longer than five (5)
years from the Effective Date of this Agreement.
2.5 WHOLLY OWNED COMPANY. In order to fulfill its obligations under this
Agreement, Distributor may create Wholly Owned Companies within the
Territory provided that each Wholly Owned Company executes a written
agreement with Distributor acceptable to Sagent in its sole discretion
pursuant to which Wholly Owned Company is subject to the terms and
conditions of this Agreement and in no case shall a Wholly Owned
Company receive greater rights than are granted to Distributor
hereunder.
2.6 MAINTENANCE. Sagent shall grant to Distributor the right to sell
Software maintenance to end users of the Software provided that
Distributor shall provide maintenance
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services in compliance with Sagent guidelines for providing
maintenance services. These guidelines are attached as Exhibit J
hereto. A royalty will be paid to Sagent for each maintenance
contract which should be sold on a prepaid annual basis to end users.
Sagent will supply product updates, new versions, new releases and 2nd
line technical support. Distributor will provide first line customer
support to all customers in the Territory and all product distribution
to End Users required under the maintenance contracts.
2.7 REPRODUCTION OF COPIES. Subject to the terms and conditions of the
Agreement, Distributor may reproduce at no charge a reasonable
quantity of Software to be used solely for Software marketing purposes
by Distributor, Wholly Owned Companies or Resellers ("MARKETING
COPIES") provided that Distributor shall keep accurate records of all
copies made and such record shall be made available to Sagent at
Sagent's reasonable request. Distributor, acting reasonably, will
determine the number of Marketing Copies. Distributor shall ensure
that Wholly Owned Companies and Resellers are not permitted to retain
possession of Marketing Copies except pursuant to a written License
agreement.
2.8 SAGENT'S RESERVED RIGHTS.
(a) CUSTOMERS OUTSIDE TERRITORY. Distributor shall not have exclusivity
and shall receive no payment with respect to Sagent's End User
customers from locations outside the Territory that deploy
Applications within the Territory or VARs from outside the Territory
that sell proprietary end user applications that include Sagent
Software in the Territory. Sagent shall supply to Distributor a list
of multinational companies with which Sagent conducts sales in the US
or elsewhere such list may be updated at any time. Distributor shall
have the right to solicit direct business from those divisions or
subsidiaries of such companies that are located in the Territory, and
the Split policy, as set out in section 5.4 of this Agreement will
apply to situations of joint efforts.
(b) CHANGES IN SOFTWARE. Sagent reserves the right, from time to time,
in its sole discretion and without liability to Distributor, to add to
or delete from Exhibit A the Software which Distributor is authorized
to distribute. Sagent agrees to give Distributor ninety (90) days
notice prior to deleting Software from Exhibit A. Sagent cannot
delete from Exhibit A a product, and shall also add any product which
is directly or indirectly sold somewhere else, including but not
limited to new Software releases.
(c) Notwithstanding anything to the contrary in this Agreement, Sagent
will not be treated as in breach of its exclusivity obligations in the
event of Software sales from outside the Territory to inside the
Territory, by multi-national companies, whose importation Sagent is
unable to preclude by reason of application of law or which any third
party is entitled to make.
2.9 TITLE. Distributor acquires only the rights expressly granted in
this Agreement. All rights not expressly granted herein are reserved
by Sagent. Nothing contained in this Agreement shall be construed as
conferring upon Distributor, by implication, estoppel or otherwise,
any license or other right except the license and rights expressly
granted herein. The licenses granted herein are granted solely to
Distributor, and not, by implication or otherwise, to any parent or
affiliate of Licensee. Except to the extent the
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following activities may not be restricted under applicable law,
Distributor shall not create derivative works of, disassemble,
decompile or otherwise reverse-engineer the Software, and shall
prohibit its end users, Resellers and VARs from doing the same. All
right, title and interest in and to the Software and Documentation
delivered to Distributor, and all intellectual property rights therein
and related thereto, shall at all times remain the property of Sagent
or Sagent's licensors.
2.10 INDEPENDENT CONTRACTORS.
Distributor's relationship with Sagent during the terms of this
Agreement will be that of an independent contractor. Distributor will
not have, and will not represent that it has, any authority to bind
Sagent to assume or create any obligation, express or implied, to
enter into any agreements, or to make any warranties or
representation, on behalf of Sagent or in Sagent's name other than as
expressly authorized herein. Additionally, nothing in this Agreement
shall be construed to constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint or common
undertaking. The parties acknowledge and agree that neither
Distributor nor any Reseller is or will at any time be a "commercial
agent" within the meaning of EC Council Directive of 18 December 1986
on the coordination of the laws of the Member States relating to self
employed commercial agents of any related legislation.
3. DEVELOPMENT AND IMPLEMENTATION OF ANNUAL BUSINESS PLAN
3.1 Sagent and Distributor will develop an annual written business plan
that sets forth: (1) the initial hiring of Distributor personnel in
conformity with Exhibit C hereto; (2) selling and other revenue
activity by Distributor in conformity with Exhibit D hereto; (3)
marketing advertising and other promotion plans related to this
agreement; (4) establish German based consulting and training services
for the Software; (5) establish maintenance and technical support for
the Software in the Territory; and (6) all other activities of
Distributor contemplated by this Agreement.
3.2 The first annual business plan shall be finalized by the parties
within thirty (30) days of the Effective Date of this Agreement and
shall be incorporated herein as Exhibit D. The parties will meet
during Sagent's usual budget cycle to establish the annual business
plans for subsequent years. Each annual business plan will take into
account the projections set out in Exhibits C and D hereto.
Distributor shall use its best efforts to fully implement the plans.
3.3 The Advisory Board of Distributor must approve every annual business
plan before it is implemented as the requirement is set out in
specific detail in Exhibit E of the Joint Venture Agreement.
4. BUSINESS OPERATION OF DISTRIBUTOR
4.1 GENERAL MANAGER. The Distributor will provide a person acceptable to
Sagent as General Manager of Distributor.
4.2 AUTHORITY OF GENERAL MANAGER. The General Manager shall have the
authority to make all general business operation decisions related to
the day to day operations of Distributor.
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4.3 STRATEGIC PLANS. During the first three (3) years of Distributor's
operation the General Manager of Distributor shall review with Sagent
all Strategic Plans of Distributor. Sagent shall assist with the
Strategic Plans through suggestion and coordination with programs used
in other parts of the world.
4.4 DISTRIBUTOR TO BE OPERATIONAL WITHIN 90 DAYS. The General Manager of
Distributor shall use his best efforts to have Distributor in full
operation (sales and support functions in place) within 90 days
following the Effective Date of this Agreement.
4.5 SAGENT'S DUTIES AFTER INCORPORATION OF DISTRIBUTOR.
Sagent shall:
(a) turn over to Distributor all sales leads applicable to the Territory
and thereafter all sales transactions for the Territory shall be
quoted and invoiced by Distributor (or applicable VARs) to the end
user customers, Resellers and VARs.
(b) Sagent shall notify all Resellers, VARs and end user customers and
prospects in the Territory of the changes in responsibility.
(c) Sagent shall supply Distributor with a list of all current
maintenance customers in the Territory. Distributor shall have the
right to renew maintenance for such customers in the Territory.
(d) Sagent and Distributor shall negotiate local support for such
customers in the Territory during the remaining period of the
maintenance contract or if negotiations fail, Sagent may provide
direct support.
4.6 USE OF INTERNATIONAL PRICE LIST. Sagent recommends that Distributor
uses Sagent's International Price List as its basis for pricing under
this Agreement for distribution of Software and Services pursuant to
this Agreement. However, Distributor shall be absolutely free in
defining its resale prices and shall in no event be bound to follow
Sagent's price recommendation. Prices may be translated into German
Marks/Euros from time to time. Sagent shall periodically consult with
the General Manager as to the form and content of the International
Price List.
4.7 DISCOUNTING AUTHORITY OF GENERAL MANAGER. While Distributor shall be
absolutely free in deciding on whether and which discounts to grant to
customers, Sagent recommends that the General Manager of Distributor
authorizes the same discounts from the list prices (as set forth in
Sagent's then current International List Prices) as are allowed to
Sagent's sales department in Sagent's nonstandard pricing terms and
conditions procedure (hereinafter the "Pricing Policy") which is
attached as Exhibit F for strategic software licensing customers.
4.8 ACCESS TO SAGENT PRICING COMMITTEE. The General Manager may consult
with Sagent's pricing committee regarding the justification of larger
discounts than are recommended under Section 4.7, and or other sales
accommodation and to end users, on a case by case basis. Sagent and
Distributor agree to use their best efforts to ensure all requests for
additional discounts or other pricing accommodations are promptly
attended to. In those instances in which General Manager (in good
faith) must act without first seeking discount advice under the
Pricing Policy, Sagent shall honor the
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discount actually provided. However in no event will Sagent be
obligated to honor such discount (and the royalty payment shall be so
adjusted) if the discount provided exceeds two (2) times the allowable
discount expressed in the Pricing Policy.
4.9 HIRING BY DISTRIBUTOR. Distributor shall provide resumes of Key
Persons it plans to hire for review and approval by Sagent. If Sagent
shall not have objected within four (4) business days to any proposed
hire, then Sagent shall be deemed to have accepted the candidate. In
order that Sagent may assist in the hiring of all sales, technical and
consulting personnel, Distributor may at its option send candidates at
its expense to the US for interview. Any expenses of Sagent personnel
assisting the hiring process either in the US or Germany will be paid
by Sagent. For the purposes of this section the term "Key Persons"
shall mean all sales, systems engineer and marketing staff.
4.10 STAFFING LEVELS. Distributor and Sagent have agreed on a plan
regarding the appropriate staffing levels in order to sell and offer
the related services in the Territory. This staffing plan is set
out in Exhibit C hereto and should serve as a guideline only.
4.11 ASSESSMENT OF DISTRIBUTOR EMPLOYEES. Sagent shall participate in the
ongoing assessment of all employees of Distributor. Sagent may
provide written comment to the General Manager of Distributor
indicating that a particular employee(s) is/are not performing
employee's job in a manner acceptable to Sagent. Distributor shall
take active steps to remedy all such situations identified by Sagent
either through raising the employee's level of performance or
termination.
4.12 WRITTEN ASSESSMENTS. Distributor shall provide to the Sagent member
of Distributor's Advisory Board, on going written assessments at three
(3) month intervals for employees identified by Sagent as
non-performing.
4.13 SAGENT TO KEEP DISTRIBUTOR INFORMED OF PLANS. Sagent will keep the
Management of Distributor fully informed of developments within Sagent
and trends that it sees in the US and other world markets (including
Sagent business plan). Once Sagent is public, no information should
be provided to Distributor which could lead to insider knowledge.
4.14 ATTENDANCE AT SAGENT MEETINGS. Distributor's General Manager will be
allowed to participate in all major and relevant Sagent meetings
concerning trends, markets, products and strategy like a General
Manager of a Sagent subsidiary participating in Sagent's General
Manager meetings. Distributor may be excluded from any meeting if, in
the sole discretion of the President of Sagent it would be
inappropriate for a representative of Distributor to attend.
4.15 DISTRIBUTOR TO PROVIDE SALES AND MARKET INFORMATION TO SAGENT.
Distributor will promptly provide similar information to Sagent.
Samples of all marketing and advertising materials prepared by one
party will be promptly provided to the other with rights to use such
materials to further jointly the sales of Sagent products.
4.16 PROVISION OF QUARTERLY FINANCIAL REPORTS. Distributor will provide
Sagent a quarterly financial report of its operations including but
not limited to its balance sheet and income statement prepared in
accordance with generally accepted accounting principles (USA), and a
personnel roster by name, position held and location with new
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hires and termination's identified, and Distributor will keep its
books on a calendar-year basis.
4.17 PROVISION OF REVENUE PROCEDURES TO DISTRIBUTOR. Sagent will provide
to Distributor copies of its accounting and revenue recognition
procedures and Distributor will comply with these procedures to the
extent that it is able under German law. This provision also applies
to section 4.16 of this Agreement.
4.18 ANNUAL AUDIT OF DISTRIBUTOR. At its expense, Distributor will have
an annual audit by Coopers & Xxxxxxx results of which will be promptly
supplied to Sagent.
4.19 PROVISION OF MONTHLY SALES REPORTS. Distributor shall also promptly
provide to Sagent monthly sales and a three month forecast of expected
orders, including identification of the top five revenue potential
projects, for Sagent products and services in a Sagent approved
format.
4.20 MARKET AND SALES STRATEGY. Distributor shall utilize the general
market and sales strategies used by Sagent. This strategy currently
has a focus on consumer goods industries, telecommunications and the
financial services industry, however the strategy may change from time
to time and is not an exclusive strategy.
4.21 COMPLIANCE WITH U.S. FOREIGN CORRUPT PRACTICES ACT. The Distributor
shall be managed so as to observe the following requirements in all
transactions: (a) No action shall be taken by or on behalf of the
Distributor which violates any applicable law or regulation of the
United States, or any country in the Territory; (b) no expenditure for
other than lawful purposes shall be made by or on behalf of the
Distributor; and (c) no payments shall be made and nothing of
value shall be given to government officials by the Distributor or any
of their respective agents, except such payments as are required by
law and made to such officials in other than their individual
capacities; or (d) otherwise taken any action that would constitute a
violation of the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section
78dd-1 et seq.
5. COMPENSATION.
5.1 (i) Royalties to Sagent shall be calculated based on amounts invoiced
to end users (exclusive of freight charges and any applicable sales
and consumption taxes (VAT)), and Royalties shall be adjusted for
credit invoices, using the following royalty rates:
Software Products 40%
Maintenance fees 15%
(ii) Royalties to Sagent resulting from Licenses sold through VARs and
Resellers in Territory shall amount to 40% of the then current
International Price List for Product Licenses. In case of special VAR
and Reseller deals where the General Manager uses the rules of Article
4.8. for pricing and discounting purposes, different royalties may be
negotiated with Sagent.
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5.2 Compensation to Sagent shall not be due from Distributor for
evaluations limited to thirty (30) days or less or copies used for
marketing or demonstration purposes only.
5.3 Sagent reserves the right to change its International list prices
with ninety (90) days prior written notice to Distributor.
5.4 SPLITS - "VAR Deals" and deals as defined in 2.8(a) where both Sagent
and Distributor are directly involved under this Agreement are subject
to revenue or royalty splits as agreed to by the General Manager of
Distributor and Sagent's applicable Vice President responsible for
European Sales. If no agreement is made as provided above, then the
split will be resolved by the President of Sagent following
consultation with Distributor. Splits may be appropriate in instances
where Sagent and Distributor must each provide sales and marketing
support to a customer in order to finalize an agreement. Such an
agreement would be one, which is closed outside the Territory, but
Distributor is involved in the transaction in the territory.
5.5 NO COMPENSATION FROM OUTSIDE THE TERRITORY. Distributor will receive
no compensation with respect to VAR's from outside of the Territory
that market Applications in the Territory except that Sagent or
Distributor may contract with a VAR that (i) intends to market
globally and (ii) is a major factor in its industry. In such
instance, it is necessary and desirable that Sagent and Distributor
cooperate to facilitate the entry of the VAR into respective markets
and assist such VAR in its marketing efforts. In such instances,
either Sagent or Distributor may receive a portion of the royalty paid
by the VAR, or some other negotiated payment for the services provided
in the respective territory. The amount of royalty or fee shall be
negotiated as provided for in Section 5.4 "Splits".
5.6 PAYMENT. Distributor will pay royalties bi-monthly, by wire transfer
within seven (7) days following the 15th and the end of each month,
based on payments received during the month from customers, Resellers,
and VARs. Payments to Sagent shall be due and payable from Distributor
once Distributor has received payment from a customer. Distributor
shall make all commercial efforts to ensure the credit worthiness of
each end user Licensed pursuant to this Agreement and Distributor
shall use all efforts to ensure that each customer pays all fees owed
to Distributor according to Distributor's invoice terms. Distributor
shall prepare and remit at the end of each month an Aged Receivable
document.
5.7 REPORTS. Along with each payment as described in section 5.6,
Distributor shall supply a report with copies of customer invoices,
(if possible with the name and location of the customer, and products
sold) and a calculation of the royalty due for the invoice.
5.8 MAINTENANCE. Distributor shall pay to Sagent the amounts set out in
section 5.1 of this Agreement for Maintenance provided to End Users.
Payment for Maintenance shall be made yearly in advance, and, unless
Maintenance is canceled by Distributor, Sagent or End-User, at least
thirty days before each subsequent Anniversary Date. Distributor
shall pay for Maintenance as provided in Section 5.6. Sagent policies
require that maintenance be purchased at the inception of a License
for extension of product warranties and that back maintenance is
required for reinstatement of customers that have let their
maintenance contracts lapse.
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5.9 TRAINING AND CONSULTING. Sagent shall grant to Distributor rights to
provide Sagent training courses with Distributor's own personnel to
End Users; and Distributor shall have the right to provide
Distributor's Sagent trained consultants to assist customers with use
of the Software Products. Such training and consulting shall meet
Sagent's quality standards. Distributor shall pay the reasonable
travel and living expenses for any Sagent consultants or agents
brought from the US to the Territory. For extended visits, over two
weeks, Sagent will invoice Distributor for a daily rate approximating
the compensation and benefits of the Sagent consultant or agent for
the period involved.
5.10 REPORTING. Distributor agrees to provide Sagent with a monthly sales
report in format and media reasonably requested by Sagent and also
meeting Distributor's needs, which details if possible purchase order
numbers, quantity of each type of Software licensed during the month
(including copies distributed by Distributor to Reseller, End User
orders delivered by Resellers, End-User orders delivered by
Distributor, and Marketing Copies made), machine class, unit and
extended price to Sagent the buyers' names and addresses and Reseller
numbers (if any), and any other related information reasonable
requested by Sagent. This report shall be forwarded to Sagent within
fifteen (15) days of the close of each calendar month. In addition,
Distributor shall ensure that Resellers provide similar such reports
to Distributor and that the information contained in such Reseller
reports is accurately reflected in Distributor's report to Sagent. If
Distributor orders Software directly from Sagent such information
shall be supplied on the order.
5.11 AUDIT. Distributor agrees to allow an independent auditor to review
Distributor's books and records related to the activities described in
this Agreement in order to determine the accuracy of the reports and
agrees to require Resellers to allow a similar independent auditor
review. The independent auditor will be chosen by Sagent and approved
by Distributor, whose approval shall not be unreasonably withheld.
The review will be paid by Sagent. The reviews occur at mutually
agreeable times during normal business hours and will not occur more
frequently than one time per year. The independent auditor shall be
instructed to keep all information learned strictly confidential.
5.12 WITHHOLDING TAXES. All payments by Distributor shall be made free
and clear of, and without reduction for, any withholding taxes. Any
such taxes arising in Territory which are otherwise imposed on
payments to Sagent shall be the sole responsibility of Distributor.
6. RESELLER AND END USER SERVICE.
6.1 PRODUCT SUPPORT. Distributor shall provide customer support
consistent with industry custom for all Software distributed
hereunder. Distributor shall maintain on site staff support personnel
sufficiently knowledgeable with respect to the Software to answer
Existing Distributor, Wholly Owned Company, Reseller, End User and
other customer questions regarding the use and operation of Software.
6.2 DISTRIBUTOR MAINTENANCE SUPPORT. Distributor shall ensure that all
Reseller or End User questions regarding the use or operation of
Software marketed by Distributor are initially addressed to and
answered by Distributor. Any Reseller or End-User service questions
resulting from Distributor's sales to Resellers or End-Users shall be
referred by Sagent back to Distributor.
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6.3 SAGENT SUPPORT TO DISTRIBUTOR. Sagent shall provide telephone
consultation to Distributor with respect to any Reseller/End-User
questions which Distributor cannot adequately answer. Distributor
shall not represent to any third party that Sagent is available to
answer questions from any Reseller, End-User or other customer
directly. To allow Distributor to offer proper support as Sagent for
severity 1 defects as defined in Exhibit I Distributor shall have
access to Sagent support. Sagent shall make maintenance support
available to Distributor on a 24-hour basis.
6.4 TRAINING. On the request of Distributor, Sagent will provide
training for a mutually agreed number of Distributor's technical
employees at no charge by sending them to Sagent Training Classes in
the US. Sagent Training Classes specifically requested by Distributor
in the Territory will be charged to Distributor at mutually agreed
cost.
7. WARRANTY.
7.1 Sagent warrants to Distributor that each individual Software product
for which Maintenance fees have been paid will substantially perform
the functions described in the documentation provided by Sagent for as
long a period as to enable Distributor to grant its customers the
legally required warranty (six months in Germany at the time of
signing this Agreement) so long as such Software product shall have
been properly shipped and not tampered with by Distributor. If Sagent
finds a material deviation in Software performance during the period,
as Distributor's sole and exclusive remedy, Sagent will replace,
modify, or issue a refund for the Software, at Sagent's option,
provided it is within the law, so that it performs substantially in
accordance with the documentation.
7.2 Other than as stated in this section 7, there is no representation or
warranty or condition, express or implied, as to any matter
whatsoever, including without limitation, the condition of software,
its merchantability or fitness for a particular purpose.
8. ADDITIONAL OBLIGATIONS OF SAGENT
8.1 HARMONY OF OPERATIONS. Sagent will provide to Distributor such
policies and procedures as are necessary to synchronize operations, so
that to the End User customer, Distributor would appear to be a
separate company, however closely aligned with Sagent.
8.2 CONSULTATION TO DISTRIBUTOR. Sagent will work closely with and
provide consultation to Distributor management through telephone
meetings or other appropriate manner of communication.
8.3 SAGENT COORDINATOR. Sagent agrees to appoint one person as the
designated coordinator between Distributor and Sagent. Sagent will be
responsible for ensuring that this employee will be knowledgeable in
Sagent's sales and marketing procedures.
8.4 SAGENT STAFF AT DISTRIBUTOR SITE. Sagent will provide to Distributor
persons with technical and sales knowledge to support Distributor in
the Territory during start-
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up phase with relevant direct expenses split equally between Sagent
and Distributor. The purpose of the supplied person is to "jump start"
operations of Distributor.
8.5 ISO 9001. Sagent will make its best effort to gain ISO 9001
registration within 12 months of the Effective Date of this Agreement.
8.6 RESPONSE TO INQUIRIES. Sagent shall promptly respond to all
inquiries from Distributor concerning matters pertaining to this
Agreement.
8.7 NEW RELEASES. Sagent shall promptly inform Distributor of new releases
of Software.
8.8 OTHER SOFTWARE PRODUCTS. Sagent shall offer to Distributor product
distribution rights in the Territory for all other products
distributed directly or indirectly by Sagent in accordance with
Exhibit A.
8.9 PRODUCT ANNOUNCEMENTS. Sagent shall use its best efforts to not make
or distribute product announcements related to the Software directly
to End Users in the Territory unless coordinated with Distributor.
8.10 PRODUCT RELEASE PLANS. Sagent shall use its best efforts to give
Distributor reasonable notice of plans for future software products
which Sagent intends to release for distribution during the term of
this Agreement. Sagent will provide to Distributor monthly product
release schedules and Quarterly product planning schedules.
8.11 CUSTOMER INFORMATION. Sagent will transmit to Distributor the names
and addresses of prospective customers in the Territory from whom
Sagent receives inquiries regarding the Software.
8.12 MARKETING AND TECHNICAL INFORMATION. At Distributor's request,
Sagent will either loan, or sell at Sagent's cost, to Distributor
marketing and technical information concerning the Software, as well
as catalogs and other sales aids, all in the English language, for
the use of Distributor in marketing and selling to end users.
8.13 SAGENT AND DISTRIBUTOR TO COOPERATE IN MARKETING ANNOUNCEMENTS.
Sagent shall make all reasonable efforts to consult and cooperate
with Distributor with respect to the timing and content of all
marketing, PR, and other announcements which may have an effect in
the Territory.
8.14 SAGENT OBLIGATION TO GO TO TERRITORY. Sagent employees shall not be
required to come to the Territory to support sales/marketing
activities. To the extent that both parties feel that such a visit is
in the best interest of Distributor, Distributor will pay the
reasonable travel and living expenses of the requested Sagent
Employee. For extended visits, over two weeks, Sagent will invoice
Distributor for a daily rate approximating the compensation and
benefits of the individual for the period involved. In the case of
Split deals as described at section 5.4 hereof, travel and
compensation costs will generally be considered in the split of
revenue to each party. In the case of support issues defined as
"severity 1 and 2" in Sagent's Maintenance And Technical Support
document set out as Exhibit J hereto, and for which the services of a
Sagent Employee are imperative, Sagent shall pay the relevant
expenses.
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9. ADDITIONAL OBLIGATIONS OF DISTRIBUTOR
The following are additional obligations to be undertaken by the Distributor at
the Distributor's sole expense:
9.1 MANUFACTURE OF PRODUCTS AND TRAINING MATERIAL. Distributor will
manufacture all Software and training materials to be distributed in
accordance with the Methods and Standard of Quality set out in Exhibit
K hereto in the Territory pursuant to this Agreement and deliver such
products to End Users. Sagent will supply masters of tapes, disks and
documentation as are required for Distributor to meet its
responsibilities under this section. Distributor shall be allowed to
buy from Sagent all Software media, documentation and training
materials which Sagent makes commercially available at Sagent's cost.
9.2 ENFORCEMENT OF INTELLECTUAL PROPERTY. Distributor will use its best
efforts to protect Sagent's Intellectual Property rights in the
Software in the Territory, including but not limited to thorough use
of Non Disclosure agreements and proper contract administration of the
software license agreements, and Distributor shall promptly report to
Sagent any infringement of such rights of which Distributor becomes
aware; provided, however, that Sagent reserves the sole and exclusive
right at its discretion to assert claims against third parties for
infringement or misappropriation of its Intellectual Property Rights in
the Software in the Territory, "Intellectual Property Rights" shall
mean patent right, copyright right (including, but not limited to,
rights in software, audiovisual works and moral rights), trade secret
rights, trade xxxx rights and any other intellectual property rights
recognized by the law of each applicable jurisdiction.
9.3 MARKETING AND PR EFFORTS. Distributor will use its best efforts to
vigorously and aggressively market and sell the Software within the
Territory and to satisfy those reasonable criteria and policies with
respect to Distributor's obligations under this Agreement developed and
announced and communicated in writing to Distributor by Sagent from
time to time. Distributor will provide Sagent sales forecast and
pipeline information monthly and as requested by Sagent. Distributor
will develop and implement effective marketing programs to assist in
the sale of the Software including those agreed upon in annual business
plans or otherwise between the parties.
9.4 SAGENT SALES MEETINGS. Distributor shall attend Sagent's scheduled
Sales meetings which are scheduled to occur at least annually. In
addition, business review meetings should be held between the General
Manager of Distributor and the Sagent Coordinator once in a quarter.
9.5 STAFF TRAINING. Distributor agrees to provide its staff and Resellers
with adequate training regarding the use and operation of the Software,
and to also provide its staff and Resellers with regular training
regarding updates of the Software.
9.6 FINANCES. Distributor shall maintain working capital sufficient, to
allow Distributor to perform fully and faithfully its obligations under
this Agreement. Distributor shall devote sufficient financial resources
and technically qualified sales and service personnel to the Software
to fulfill its responsibilities under this Agreement.
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9.7 STANDARD OF BUSINESS PRACTICES. Distributor shall establish and
maintain, and shall cause its Resellers, employees and agents to
establish and maintain a high standard of ethical business practices in
connection with the distribution of Software within the Territory,
including, without limitation, all applicable laws and regulations.
Distributors shall follow such applicable sales policies as are
established by Sagent from time to time.
9.8 INTELLECTUAL PROPERTY RIGHTS REGISTRATIONS AND GOVERNMENT APPROVALS.
Distributor shall promptly notify Sagent in writing of, and shall
assist Sagent with any registrations of filings required to obtain all
needed copyright, trademark or other intellectual property rights
protection, in Sagent's name, for the Software within the Territory,
and to obtain any necessary government approvals with respect to this
Agreement. Distributor agrees to promptly register this Agreement,
after notifying Sagent if the laws or regulation of any country in the
Territory require its registration for any purpose with any
governmental agency or instrumentality.
9.9 NO COMPETING PRODUCTS. During the first three years of the Agreement,
Distributor will not sell any products, for use in the Territory,
except the Software or software provided by Sagent which is later made
available under this Agreement. After three years, Distributor shall be
free to sell and service products of any manufacturer including those
products that could compete with Sagent products provided that
Distributor is otherwise in compliance with the terms of this
Agreement.
10. INDEMNIFICATION.
10.1 Sagent will defend at its expense any action brought against
Distributor to the extent it is based on a claim that the Software or
any part thereof, when used within the scope of this Agreement,
infringes a patent or copyright and Sagent will pay any settlements and
any costs, damages and attorney's fees finally awarded against
Distributor in such action which are attributable to such claim;
provided that the foregoing obligation will be subject to Distributor
notifying Sagent promptly in writing of the claim, giving Sagent the
exclusive control of the defense and settlement thereof, and providing
all reasonable assistance in connection therewith.
10.2 Notwithstanding the above, Sagent shall have no liability for any claim
of infringement of a patent or copyright based on: (i) use of a
superseded or altered release of the Software or portion thereof if
such infringement would have been avoided by the use of a current
unaltered release of the Software which Sagent provides to Distributor,
or (ii) the combination, operation or use of the Software furnished
under this Agreement with products or data not furnished by Sagent if
such infringement would have been avoided by the use of the Software
without such products or data.
10.3 In the event that the use of the Software becomes or in Sagent's
reasonable opinion is likely to become the subject of a claim of
infringement of patent or copyright rights, it is Sagent's option to
remedy the situation by: a) procuring the continuing right to use the
Software as contemplated or b) replacing or modifying the Software such
that use is no longer an infringement or c) terminating the License
and refunding the fees paid by Distributor to Sagent but prorated over
a thirty six (36) month period, to the extent that Distributor is
obligated to refund such fees to its customers.
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10.4 The foregoing states the entire liability and obligation of Sagent
with respect to infringement or claims of infringement of any patent,
copyright, trade secret, or any other proprietary right.
11. EXPORT ADMINISTRATION.
11.1 If the Software is to be used or distributed outside of the United
States, Distributor agrees to comply fully with all relevant
regulations of the United States Department of Commerce and with the
United States Export Administration Act to assure that the Software is
not exported in violation of United States Law. Distributor agrees
that neither the Software nor any other technical data nor the direct
product thereof is intended to be used for any purpose prohibited by
the Act or regulations promulgated thereunder, including, without
limitation, nuclear proliferation or chemical/biological weapons or
missiles.
12. MAINTENANCE.
12.1 Distributor shall be solely responsible for maintenance for its own
customers.
12.2 DISTRIBUTOR CONTACT. Distributor shall appoint one person as the
principal Maintenance Contact Point for the communication of bugs and
errors to Sagent and for the receipt of bug and error fixes,
work-arounds and updates, if any. Additionally, Distributor shall
appoint another person as a back-up to the principal contact point.
12.3 SAGENT CONTACT. Sagent shall appoint one person as the principal
Maintenance Contact Point for the receipt of bugs and errors from
Distributor and for the communication to Distributor of bug and error
fixes, work-arounds and updates, if any. Additionally, Sagent shall
appoint another person as a back-up to the principal contact point.
12.4 MAINTENANCE AVAILABILITY. Maintenance is available only for the most
recent version of the Software and the preceding version for no longer
than 12 months after the current version becomes generally available.
Sagent shall ensure that Maintenance is available for the period
mandated by local law in the Territory and Distributor shall use its
best efforts to inform Sagent of any local laws which may affect
Sagent pursuant to this section.
13. TERMINATION/DEFAULT.
13.1 TERM. This Agreement shall continue in force from the Effective Date
without a specific termination date, unless terminated under the
provisions of this Section 13. This Agreement shall survive the
termination of the Joint Venture Agreement executed as of April 8,
1998 between Sagent and ISAR-Vermogensverwaltung GbR mbH, unless the
provision of said Joint Venture Agreement contemplate that this
Agreement shall automatically and immediately terminate.
13.2 DISTRIBUTOR'S RIGHT TO TERMINATE: The Distributor shall have the
right to terminate the Agreement
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13.2.a) for Cause
(i) if Sagent shall have defaulted in a material way in its obligations to
provide and support its Software; or
(ii) if Sagent has became unable to meet its requirements under this
Agreement due to financial insolvency; or
(iii) other material default of a material provision of the Agreement.
Notwithstanding the foregoing, if Distributor desires to terminate
pursuant to this section, then Distributor shall give written notice to
Sagent that if the breach is not cured within sixty (60) days this
Agreement will be terminated. If Distributor gives such notice and the
breach is not cured during the sixty day period, then this Agreement
will terminate.
13.2.b) Furthermore, Distributor shall have the right to terminate this
Agreement upon twelve months notice following the fourth year of the
agreement.
13.3. EFFECT OF TERMINATION PURSUANT TO SECTION 13.2. Following termination
under 13.2., Distributor shall change its name and procedures to
eliminate all reference to Sagent and shall retain the right to
continue to support maintenance contracts with end users and otherwise
provide support.
13.4. SAGENT'S RIGHT TO TERMINATE.
13.4.a) for Cause:
Sagent shall have the right to terminate Distributor's exclusive distribution
rights if
(i) Distributor fails to meet its minimum royalty payment target in any
given 12-month period as set out in Exhibit E and Sagent and
Distributor also were in material disagreement with respect to the
operations or operating plan and have been unable to resolve such
disagreement; or
Sagent shall have the right to terminate the agreement if
(ii) a material number of customers or Resellers indicate substantial
dissatisfaction with Distributor's service levels; or
(iii) Distributor is financially or otherwise unable or unwilling to meet its
obligations under the Agreement; or
(iv) other material default of a material provision of the Agreement; or
(v) failure to establish during the first twelve months of the Agreement,
a training and consulting organization which functions pursuant to
standards agreed upon by Sagent and Distributor.
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Notwithstanding the foregoing, if Sagent desires to terminate pursuant
to this section, then Sagent shall give written notice to Distributor
that if the breach is not cured within sixty (60) days this Agreement
will be terminated. If Sagent gives such notice and the breach is not
cured during the sixty day period, then this Agreement will terminate.
13.4.b) Furthermore, Sagent shall have the right to terminate this Agreement
upon twelve months notice following the fourth year of the agreement.
13.4.1 EFFECT OF TERMINATION UNDER 13.4 Following termination under section
13.4 above, the Distributor shall have the right to liquidate its
business, however, if it does so, it shall allow Sagent to hire
Distributor's former employees directly or through a third party to
provide support to existing customers.
13.4.2 Following termination under section 13.4 a) Sub sections (i), or (ii)
if Distributor continues to operate, it shall change its name and
procedures to eliminate reference to Sagent and Distributor shall
retain (a) the right to License Sagent products in the Territory on a
non-exclusive basis for a period of one year (renewable annually upon
mutual agreement) and (b) provide support to existing and new
customers through the expiration of applicable maintenance contracts.
13.5 Following termination under section 13.4 a) Sub sections (iii) or
13.4. b), all Distributor rights to License and support Sagent
products shall cease, however, Sagent shall honor new purchase orders
during a transition period which are prepaid or for which direct
payment from a credit worthy customer can be arranged.
13.6 Following termination, under section 13.4 Sub-sections (iv) or (v)
above, Distributor shall change its name as indicated above, and have
the right to provide support to existing customers through the
expiration of applicable maintenance contracts.
13.7 POST TERMINATION COOPERATION: Following terminate pursuant to
sections 13.2 and 13.4 herein, the parties agree to cooperate with
each other for an orderly transition of selling and service activity
to established customers to Sagent directly or to an authorized third
party.
13.8 PROVISIONS OF UPDATES FOLLOWING TERMINATION. In the event of
termination pursuant to this Section 13 and to enable Sagent to
continue to provide updates of the Software to End Users and
Resellers, Distributor shall provide Sagent within thirty (30) days of
the effective date of termination with a complete customer list of all
such End Users and Resellers, showing, at a minimum, names, addresses,
type and amount of Software sold.
13.9 EFFECT OF TERMINATION. Unless provided otherwise above, on
termination or expiration of this Agreement, Distributor shall (a)
immediately cease using, copying and distributing the Software, and
(b) certify to Sagent within one month after termination that
Distributor has destroyed or has returned the Software and all copies.
This requirement applies to copies in all forms, partial and
complete, in all types of media and computer memory and whether or not
modified or merged into other materials.
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13.10 ASSIGNMENT OF EXISTING AGREEMENTS. On termination or expiration of
this Agreement Distributor shall immediately take all required actions
to assign all end user, VAR and Reseller Agreements to Sagent.
Distributor agrees to ensure that all Wholly Owned Companies shall
also assign all end user and VAR agreements related to the Software
and Services to Sagent.
13.11 RETURN OF MATERIALS. All trademarks, trade names, patents, copyrights,
designs, drawings, formulas or other data, photographs and samples of
every kind pertaining to the Software and to the Documentation which
shall include any which may relate to any localization and which shall
remain the property of Sagent. Within thirty (30) days after the
termination of this Agreement, Distributor shall prepare all tangible
such items in its possession to be returned pursuant to section 13.9,
for shipment, as Sagent may direct, at Sagent's expense. Distributor
shall not make or retain any copies of any confidential items or
information which may have been entrusted to it. Effective upon the
termination of this Agreement, Distributor shall cease to use all
trademarks, marks, and trade names of Sagent.
13.12 LIMITATION ON LIABILITY. In the event of termination by either party
in accordance with any of the provisions of this Agreement, neither
party shall be liable to the other, because of such termination, for
compensation, reimbursement or investments, leases or commitments in
connection with the business or goodwill of Sagent or Distributor.
Termination shall not, however, relieve either party of obligations
incurred prior to the termination.
13.12.1 LIMITATION OF LIABILITY - TRADE MARKS: Distributor acknowledges that
Sagent is, and will remain the sole and exclusive owner of all
goodwill associated with the trade marks of Sagent. Distributor
recognizes the value of the goodwill associated with the trade marks
of Sagent, and acknowledges that such value is owned by and belongs
solely and exclusively to Sagent. Distributor waives any right it may
have to receive any compensation or reparations prior to, upon or
following termination or expiration of this agreement under the law of
the territory or otherwise.
13.13 CUSTOMER SUPPORT. Following termination of this Agreement, Sagent and
Distributor shall cooperate to make available to Resellers and End
Users Software support and maintenance by Sagent at Sagent's then
current standard rates. Distributor agrees to pay such standard rates
to Sagent or, at Distributor's option, to reimburse to such Resellers
for the duration of the stated maintenance and support period.
13.14 SURVIVAL OF TERMS. The provisions of Sections 5, 7, 9.5, 10, 11, 12,
13, 15 and 21 shall survive the termination of this Agreement for any
reason.
14. LOCALIZATIONS.
14.1 Sagent shall have the obligation (at its expense) to provide software
localization/local language documentation whenever necessary based on
Sagent's English language documentation. Distributor shall (at its
expense) provide local language marketing and promotional materials
based on the English sales collateral used by Sagent which Sagent
shall provide. Distributor shall also have the right (at its expense)
to provide such localization/documentation and materials. All such
materials shall meet Sagent's published quality standards.
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14.2 Sagent shall retain ownership of all derivative works from its
materials and Distributor shall promptly supply copies of any
materials or documentation it prepares and executes any requested
documents necessary to perfect Sagent's ownership in the intellectual
property.
14.3 If Sagent elects to use local language Documentation or materials,
Sagent will obtain such materials from Distributor at Distributor's
cost or for a nominal royalty if Sagent has printed the material.
14.4 Distributor may suggest to Sagent Software changes that it considers
helpful in the Territory; however Sagent shall be entirely responsible
for the development and content of the Software.
14.5 Sagent may agree with Distributor to provide technical and engineering
support required to make localizations or new features to the Software
on a case by case basis as commercial conditions warrant. However, in
any case Sagent shall be required to create localizations for every
new software release.
14.6 Sagent agrees to implement as soon as is commercially reasonable any
localization or feature if License revenues in Germany will be
materially impacted if Sagent fails to do so. Due to SAP's significant
market penetration in territory. Sagent agrees to ensure access and
query capabilities to SAP data within three months from the date of a
final mutual decision on the best technical and business direction to
achieve this goal, but in any case no later than October 1, 1998.
15. NON-DISCLOSURE.
15.1 By virtue of this agreement, the parties may have access to
information that is confidential to one another ("CONFIDENTIAL
INFORMATION"). Confidential Information shall be limited to the
Software and all written information clearly marked as confidential.
Additionally, the terms and conditions of this Agreement are deemed to
be Confidential Information.
15.2 A party's Confidential Information shall not include information which
(a) is or becomes a part of the public domain through no act or
omission of the other party; or (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
or (c) is lawfully disclosed to the other party by a third party
without restriction on disclosure; or (d) is independently developed
by the other party.
15.3 The parties agree, both during the term of this Agreement and for a
period of five (5) years after termination of the Agreement, to hold
each other's Confidential Information in confidence. The parties agree
not to make each other's Confidential Information available in any
form to any third party or to use each other's Confidential
Information for any other purpose than the implementation of this
Agreement. Each party agrees to take reasonable steps to ensure that
Confidential Information is not disclosed, distributed or used by its
employees or agents in breach of the provisions of this Agreement.
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16. GOVERNING LAW, JURISDICTION, AND COMPLIANCE WITH LAWS.
16.1 The rights and obligations of the parties under this Agreement shall
not be governed by the U.N. Convention on Contracts for the
International Sales of Goods; rather such rights and obligations shall
be governed and construed under the laws of the State of California,
without reference to conflict of laws and principles. The jurisdiction
of the courts of Germany is expressly excluded to the maximum extent
permitted by law. Distributor acknowledges that its breach of this
agreement may cause irreparable harm to Sagent for which Sagent may
obtain injunctive relief.
16.2 IMPORT LICENSES, EXCHANGE CONTROLS, OTHER GOVERNMENTAL APPROVALS.
Distributor represents and warrants that it shall, at its expense,
obtain any and all import licenses and Territory governmental
approvals that may be necessary to permit the license by Sagent and
Distributor of Software, comply with all registration requirements in
the Territory, obtain such approvals from the banking and governmental
authorities of the territory as may be necessary to guarantee payment
of all amounts due hereunder to Sagent in US dollars, and comply with
any and all governmental laws, regulations, and orders that may be
applicable to Distributor by reason of its execution of this
agreement, including but not limited to any requirement to be
registered as Sagent's independent Distributor with any governmental
authority, and including but not limited to any and all laws,
regulations or orders that govern or affect the ordering, export,
shipment, import, sale (including governmental procurement), delivery,
or redelivery of the Software in the Territory.
16.3 LIABILITY OF SAGENT. The provisions of this Agreement under which the
liability of Sagent is excluded or limited shall not apply to the
extent that such exclusions or limitations are declared illegal or
void under the laws applicable in the countries in which Software is
licensed hereunder, except to the extent such illegalities or
invalidities are cured under the laws of such countries by the fact
that the law of California governs this agreement.
17. ENTIRE AGREEMENT.
17.1 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all prior
agreements, discussions, and understandings between them. No
modification of or amendment to the Agreement, nor any waiver of any
rights under this Agreement shall be effective unless in writing
signed by an officer of Sagent and Distributor. The terms and
conditions of this Agreement shall supersede the terms and conditions
of Distributor's purchase order, if any.
18. NOTICES.
18.1 NOTICES. Any and all notices and other communications that are
required or permitted to be given pursuant to this Agreement shall be
in writing, and shall be deemed given (a) upon personal delivery, or
(b) upon the sender's receipt of electronic confirmation of
transmission, if sent by telex or facsimile, or (c) upon 2 business
days after delivery to a recognized courier, fees prepaid. The parties
designate the following addresses for the foregoing legal effects:
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47
TO DISTRIBUTOR:
Magnolia II Vermogensverwaltung GmbH
c/o Buro Xxxxx Xxxx
Gut Keferloh 1 B
D - 85630 Grasbrunn / Munich
Germany
Attention: General Manager
Facsimile number: (49-89)464483
TO SAGENT:
Sagent Technology, Inc.
0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
XXX
Attention:
Facsimile number: (000) 000-0000
The parties may amend the above-mentioned data by notice to all other
parties, as provided in this Section.
19. FORCE MAJEURE.
19.1 Nonperformance of either party shall be excused to the extent that
performance is rendered impossible by strike, fire, flood,
governmental acts or order or restrictions, failure of suppliers or
any other reason where failure to perform is beyond the control and
not caused by the negligence of the non-performing party.
20. LIMITATION OF LIABILITY.
20.1 Regardless of whether any remedy fails of its essential purpose, in
no event will either party be liable to the other party for
incidental, indirect, special or consequential damages,
notwithstanding being aware of the possibility of such damages.
Neither party's liability for any damages or claims shall exceed
US $0.5 million.
21 DISPUTE RESOLUTION.
21.1 The Advisory Board of Distributor shall have the general
responsibility of resolving disputes between Sagent and Distributor
that relate to major issues concerning Agreement interpretation,
operations and implementation of the joint strategy. Following failure
of the Board to resolve a dispute, either party may request mediation
or arbitration under the Agreement to be held in Zurich Switzerland.
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21.2 ARBITRATION. In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or
termination hereof (a "Dispute"), the parties agree to resolve the
same as follows:
(a) The parties to the Dispute shall initially attempt to resolve it
through consultations and negotiations as specified in 21.1.
(b) If the Dispute has not been resolved amicably within thirty (30) days
after any party provides notice thereof, unless the parties agree
otherwise, the Dispute shall be resolved by final and binding
arbitration in the City and county of Zurich, Switzerland, in
accordance with the Arbitration Rules of the United Nations
Commission on International Trade Law ("UNCITRAL"), as in effect on
the date of this Agreement. The language to be used in the
arbitration proceeding shall be English. The International Chamber of
Commerce shall serve as the appointing authority. The arbitrators
shall render a written award stating the reasons for the decision.
Judgment on an arbitration award or decision may be entered by any
court of competent jurisdiction, or application may be made to such a
court for judicial acceptance of the award or decision and any
appropriate order, including enforcement.
(c) Each of the parties hereto consents to the submission of any Dispute
for settlement by final and binding arbitration in accordance with
paragraph (b) above. Such consent shall satisfy the requirements for
an "agreement in writing" pursuant to Article II of the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitration
Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to carry out without delay the
provisions of any arbitration award or decision.
22. NAME OF DISTRIBUTOR.
22.1 SAGENT TECHNOLOGY GMBH. Subject to Section 22.2, Distributor agrees
to perform its obligations under the name Sagent Technology GMBH or
such other name as is agreed to by the parties.
22.2 LICENSE AGREEMENT. Sagent agrees to execute a License agreement with
Distributor which will confer on Distributor limited rights to use the
appropriate Sagent trade marks and trade names for a minimum period of
three year.
22.3 CESSATION OF USE. Distributor agrees that if the License agreement
referred to in section 22.2 above terminates expires or if for any
reason Licensee breaches the License agreement, Licensee will
immediately cease using the Sagent trade marks and trademarks. This
section does not limit any other action Sagent may have against
Distributor for its breach. Distributor shall change its name
immediately to eliminate the name or reference to Sagent or its
products should it elect to sell products that compete with the
products of Sagent.
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23 SEVERABILITY.
23.1 If one of the provisions of this agreement should be or become invalid
or if this agreement should have an omission, this shall not affect
the validity of the remaining provisions. In such an event, the
parties are obliged to assist in the incorporation of provisions which
form the closest economic equivalent to that which the parties would
have agreed if they had been aware of the invalidity or if they had
considered the point.
SO AGREED BETWEEN THE PARTIES HERETO:
"SAGENT"
SAGENT TECHNOLOGY, INC:
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------
Title: EVP OF SALES
----------------------------
Date: April 8, 1998
----------------------------
"DISTRIBUTOR"
MAGNOLIA II VERMOGENSVERWALTUNG GMBH
By: /s/ XXXX XXXXXXX
------------------------------
Name: Xxxx Xxxxxxx
----------------------------
Title: General Manager
----------------------------
Date: April 8, 1998
----------------------------
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EXHIBIT A
SOFTWARE TO BE DISTRIBUTED BY DISTRIBUTOR
Server: Data Movement Server
Web Link Server
Data Access Server
Power User Tools: Sagent Administration Tool
Sagent Design Studio Tool
Sagent Automation Tool
End-User Tools: Information Studio Tool
Analysis Tool
Reporting Tool
Crystal Reporting Tool
Statistical Tool
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51
EXHIBIT B
TERRITORY
The territory shall include the following countries and/or accounts:
o Germany
o Austria
o Switzerland
-- German-speaking regions
-- Nestle headquartered in Vevey/French-speaking Switzerland
-- The World Economic Forum (WEF) headquartered in
Geneva/French-speaking Switzerland.
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52
EXHIBIT C
DISTRIBUTOR'S HIRING PROJECTIONS
1998 1999 2000
-------------------- -------------------- --------------------
Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4 Q1 Q2 Q3 Q4
-- -- -- -- -- -- -- -- -- -- -- --
SALES -- 1 2 3 4 4 5 5 6 6 6 6
SUPPORT -- 2 2 3 4 4 5 5 7 7 7 7
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53
EXHIBIT D
BUSINESS PLAN
27
54
EXHIBIT E
MINIMUM ROYALTY PAYMENT TARGETS
First 12-month period* US$250,000
Second 12-month period US$750,000
Third 12-month period US$950,000
* The first 12-month period shall start on May 1, 1998.
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55
EXHIBIT F
SAGENT'S NON STANDARD PRICING POLICY
Any transaction requiring a discount or non-standard pricing of greater than:
Product License Revenue: 15% Discount
Product Maintenance Revenue: 10% Discount
Professional Services Revenue: 10% Discount
must have prior written approval to Sagent's Vice President of Worldwide Sales.
Any total Transaction Revenues exceeding US$ 200,000 require that Sagent's Vice
President of Worldwide Sales has been informed prior to the closing of the
respective deal.
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56
EXHIBIT G
SAGENT'S STANDARD END USER AGREEMENTS
including their respective exhibits.
30
57
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE AND SUPPORT AGREEMENT (this "Agreement") is entered
into by and between (and together with its Subsidiaries (as
defined below) collectively "Customer"), and Sagent Technology, Inc. ("Sagent"),
and describes the terms and conditions pursuant to which Sagent shall license to
Customer and support certain Software (as defined below).
In consideration of the mutual promises and upon the terms and conditions
set forth below, the parties agree as follows:
1. Definitions
1.1 "Concurrent Users" means all log-ons into the Software at any one
time, as specified per Site in Schedule B.
1.2 "Confidential Information" means this Agreement and all its Schedules,
any addends hereto signed by both parties, all Software listings,
Documentation, information, data, drawings, benchmark tests,
specifications, trade secrets, object code and machine-readable
copies of the Software, source code relating to the Software, and any
other proprietary information supplied to Customer by Sagent, or by
Customer to Sagent and clearly marked as "confidential information,"
including all items defined as "confidential information" in any
other agreement between Customer and Sagent whether executed prior to
or after the date of this Agreement.
1.3 "Documentation" means any on-line help files or written instructions
manuals regarding the Use of the Software.
1.4 "Effective Date" means the later of the dates on which Customer and
Sagent have signed this Agreement.
1.5 "Equipment" means the computer system, including peripheral equipment
and operating system software, specified in Schedule B.
1.6 "Maintenance and Support" means the services described in Section 6.
1.7 "Release" means a set of the Software in which in addition to possible
corrections of detected shortcomings, (small) functional enhancements
have been included. New Releases are registered by means of a change
of the number to the right of the decimal point, e.g. Sagent 1.0 >>
Sagent 1.1.
1.8 "Response Time" means the elapsed time between the receipt of a
service call and the time when Sagent begins the Maintenance and
Support, including a verbal or written confirmation to the Customer
thereof.
1.9 "Site" means such physical location specified in Schedule B of one or
more CPU's of the Equipment at which Customer is entitled to Use the
Software.
1.10 "Software" means the computer software programs specified in Schedule
A and otherwise provided to Customer pursuant to this Agreement, and
includes without limitation the Third Party Software.
1.11 "Subsidiaries" means all current and future business entities of which
a party owns, directly or indirectly, more than fifty percent (50%)
of the equity securities or other equity interest granting such party
voting rights exercisable in electing the management of the entities,
for so long as such ownership exists.
1.12 "Support Call (priority 1)" means a reported problem in the Software
which causes a total system standstill.
1.13 "Support Call (priority 2)" means a reported problem in the Software
which causes serious disruption of a major business function and
which can not be (temporarily) solved by a workaround.
1.14 "Support Call (priority 3)" means a reported problem in the Software
for which a workaround is available.
58
1.15 "Support Call (priority 4)" means general questions and wishes
pertaining to the Software and all reported problems in the
Software which are not included in Sections 1.13, 1.14 or 1.15.
1.16 "Third Party Software" means the third party software product
licensed to Sagent, if any, that is specified on Schedule A. The
Third Party Software is subject to all the terms and conditions of
this Agreement that apply to the Software except where specifically
indicated otherwise. In addition, the terms and conditions of the
Third Party Software Exhibit apply to the Third Party Software. In
the event of any conflict between the Third Party Software Exhibit
and this Agreement, the Third Party Software Exhibit shall govern.
No addendum to this Agreement shall be deemed to modify any terms
or conditions that govern the Third Party Software unless such
addendum specifically mentions the Third Party Software.
1.17 "Third Party Software Exhibit" means the exhibit, if any, which
sets forth the specific terms and conditions that apply to the
Third Party Software.
1.18 "Update" means a set of the Software in which detected
shortcomings are being remedied. Updates are registered by means of
a letter indication after the version number of the Software, e.g.
Sagent, 1.0>> Sagent 1.0A.
1.19 "Use" means loading, utilization, storage or display of the
Software by Customer (and such other entities as are expressly
permitted by Section 3(c)) by no more than the number of Concurrent
Users set forth on Schedule B, for its own internal information
processing services and computing needs (except as expressly
permitted by Section 3(c)), by copying or transferring the same
into Customer's Equipment.
1.20 "Version" means a set of the Software in which substantial new
functionalities or other substantial changes are introduced.
Versions are registered by means of a change of the number to the
left of the decimal point, e.g. Sagent 1.0>> Sagent 2.0.
2. Grant of License
2.1 Subject to the terms and conditions of this Agreement, Sagent
hereby grants to Customer during an unlimited period of time, a
non-exclusive and non-transferable license to (a) Use the Software
on the Equipment (or with prior written notice to Sagent, on
substitute, upgraded, or additional equipment) and at the Site (or
with prior written notice to Sagent on additional sites of
Customer, to be specified in Schedule B), and to make sufficient
copies as necessary for such Use, and (b) use the Documentation in
connection with Use of the Software. This license transfers to
Customer neither title nor any proprietary or intellectual property
rights to the Software, Documentation, or any copyrights, patents,
or trademarks, embodied or used in connection therewith, except for
the rights expressly granted herein.
2.2 Sagent shall issue to Customer, as soon as practicable, [ONE (1)
MACHINE-READABLE COPY] of the Software for Use at the Site only,
along with [ONE (1) COPY] of the on-line Documentation. Sagent will
provide Customer with written copies of the Documentation at
Sagent's standard charges. Customer may not copy the Documentation.
Customer acknowledges that no copy of the source code of the
Software will be provided to Customer.
2.3 If the specified Equipment is inoperable or under repair, Customer
will be entitled to transfer the Software to substitute Equipment
at the same Site using an operating system that is supported by
Sagent, provided that Customer shall promptly notify Sagent in
writing of the transfer. Customer will be responsible for any
services required if the Software has to be ported to an operating
system that is not supported by Sagent.
2.4 Customer will be entitled to make a reasonable number of
machine-readable copies of the Software for backup or archival
purposes only. Customer may not copy the Software, except as
permitted by this Agreement. Customer shall maintain accurate and
up-to-date records of the number and location of all copies of the
Software and inform Sagent in writing of such location(s).
-2-
59
All copies of the Software will be subject to all terms and conditions of this
Agreement. Whenever Customer is permitted to copy or reproduce all or any part
of the Software, all titles, trademark symbols, copyright symbols and legends,
and other proprietary markings must be reproduced.
2.5 Notwithstanding the inclusion of Subsidiaries in the definition of
Customer in this Agreement, Sagent's affirmative obligations will be
limited to the entity named above. Such entity hereby guarantees the
performance of its Subsidiaries under this Agreement and shall
indemnify and hold harmless Sagent from and against all losses, costs,
liabilities and expenses arising out of or relating to any breaches by
such Subsidiaries of this Agreement.
3. License Restrictions
Customer agrees that it will not itself, or through any parent, subsidiary,
affiliate, agent or other third party:
(a) sell, lease, license or sublicense the Software or the Documentation;
(b) decompile, disassemble, or reverse engineer the Software, in whole or
in part;
(c) allow access to the Software by any Concurrent User not located at the
Site other than Customer's employees and employees of Customer's
customers, dealers and distributors who Use such Software (excluding
the Third Party Software) pursuant to the terms of Section 3(f) below;
(d) write or develop any derivative software or any other software program
based upon the Software or any Confidential Information;
(e) use the Software to provide processing services to third parties,
commercial timesharing, rental or sharing arrangements, or otherwise
use the Software on a 'service bureau' basis; or
(f) provide, disclose, divulge or make available to, or permit use of the
Software by any third party without Sagent's prior written consent.
4. License Fee
4.1 License Fee. In consideration of the license granted pursuant to
Section 2.1. Customer agrees to pay Sagent the License Fee specified
in Schedule A. The License Fee is due and payable in full upon the
Effective Date.
4.2 Expansion of License. Customer will have the option to expand the
license granted pursuant to Section 2.1 by increasing the authorized
number of Concurrent Users after Sagent's prior written consent and
further after Sagent's receipt of additional license fees for the
expanded Use as set forth in Sagent's then-current standard commercial
price list.
4.3 Taxes. Customer agrees to pay or reimburse Sagent for all federal,
state, dominion, provincial, or local sales, use, personal property,
payroll, excise or other taxes, fees, or duties arising out of this
Agreement or the transactions contemplated by this Agreement (other
than taxes on the net income of Sagent).
4.4 No Offset. Fees and expenses due from Customer under this Agreement
may not be withheld or offset by Customer against other amounts owed
by Customer for any reason.
[5. Escrow of Source Code
A MASTER SOURCE CODE ESCROW AGREEMENT WITH RESPECT TO THE SOFTWARE
(EXCLUDING THE THIRD PARTY SOFTWARE) HAS BEEN ESTABLISHED WITH __________.
CUSTOMER SHALL HAVE THE RIGHT TO BECOME A BENEFICIARY OF THE ESCROW
AGREEMENT PROVIDED THAT CUSTOMER AGREES TO BE BOUND BY THE TERMS OF SUCH
ESCROW AGREEMENT.]
6. Maintenance and Support
For so long as Customer is current in the payment of all Maintenance Fees
(described below), Customer will be entitled to Maintenance and Support as
specified in this Section 6.
6.1 Term and Termination. Sagent's provision of Maintenance and Support to
Customer will commence on the Effective Date and will continue for an
initial term of one (1) year. Maintenance and Support will
automatically renew at the end of the initial term and any
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subsequent term for a renewal term of one (1) year unless Customer has provided
Sagent with a written termination notice of its intention not to renew the
Maintenance and Support at least ninety (90) days prior to the termination
expiration of the then-current term. Termination of Maintenance and Support upon
failure to renew will not affect the license of the Software.
6.2 Maintenance and Support Services. Maintenance and Support will be
provided only with respect to versions of the Software that are being
supported by Sagent, according to the following schedule: (a) a
Version will be supported for [five (5) years] after the commercial
release of the next Version, provided always that Customer makes use
of the last Release and Update of the first mentioned Version; (b) a
Release will be supported for [one (1) year] after the commercial
release of the next Release, provided always that Customer makes use
of the last Update of the related Version; and (c) an Update will be
supported for [six (6) months] after the commercial release of the
next Update.
6.3 Levels of Maintenance and Support. [MAINTENANCE AND SUPPORT IS
AVAILABLE AT THE FOLLOWING RESPONSE TIMES: (I) SUPPORT CALL (PRIORITY
10): ONE (1) HOUR; (II) SUPPORT CALL (PRIORITY 20): TWO (2) HOURS;
(III) SUPPORT CALL (PRIORITY 30): FOUR (4) HOURS; AND (IV) SUPPORT
CALL (PRIORITY 40): EIGHT (8) HOURS.]
6.4 Definition. Maintenance and Support means that Sagent will provide
during Sagent's standard hours of service: (i) Updates and Releases,
when and if available, and related on-line Documentation, and (ii)
telephone assistance with respect to the Software, including (a)
clarification of functions and features of the Software; (b)
clarification of the Documentation; (c) guidance in the operation of
the Software; and (d) error verification, analysis and correction to
the extent possible by telephone. Sagent's standard hours of service
are Monday through Friday [,8:30 A.M. TO 5:00 P.M., LOCAL SITE TIME,]
except for holidays as observed by Sagent.
6.5 On-site Assistance. At Sagent's discretion, Sagent can decide to
provide Maintenance and Support at the Customer Site. In such event
Customer will reimburse Sagent for all related traveling expenses and
costs for board and lodging.
6.6 Installation and Conversion. Upon Customer's request, Sagent or a
designated Sagent partner can perform the installation and/or
conversion of the Software. Unless otherwise agreed, the costs hereof
shall be invoiced to Customer on the basis of Sagent's then-current
rates.
6.7 Causes which are not attributable to Sagent. Maintenance and Support
will not include services requested as a result of, or with respect to
causes which are not attributable to Sagent. These services will be
billed to Customer at Sagent's then-current rates. Causes which are
not attributable to Sagent include but are not limited to:
(a) accident; unusual physical, electrical or electro-magnetic
stress; neglect; misuse; failure or fluctuation of electric
power, air conditioning or humidity control; failure of rotation
media not furnished by Sagent; excessive heating; fire and smoke
damage; operation of the Software with other media and hardware,
software or telecommunication interfaces not meeting or not
maintained in accordance with the manufacturer's specifications;
or causes other than ordinary use;
(b) improper installation by Customer or use of the Software that
deviates from any operating procedures established by Sagent in
the applicable Documentation;
(c) modification, alteration or addition or attempted modification,
alteration or addition of the Software undertaken by persons
other than Sagent or Sagent's authorized representatives;
(d) software programs made by Customer, Sagent or other parties.
6.8 Responsibilities of Customer. Sagent's provision of Maintenance and
Support to Customer is subject to the following:
(a) [CUSTOMER SHALL PROVIDE SAGENT WITH ACCESS TO CUSTOMER'S
PERSONNEL AND EQUIPMENT DURING NORMAL BUSINESS HOURS. THIS ACCESS
MUST INCLUDE THE ABILITY TO DIAL-IN TO THE EQUIPMENT ON WHICH THE
SOFTWARE IS OPERATING AND TO OBTAIN THE SAME ACCESS TO THE
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Equipment as those of Customer's employees having the highest privilege or
clearance level. Sagent will inform Customer of the specifications of the modem
equipment and associated software needed, and Customer will be responsible for
the costs and use of said equipment.]
(b) Customer shall provide supervision, control and management of the
Use of the Software. In addition, Customer shall implement
procedures for the protection of information and the
implementation of backup facilities in the event of errors or
malfunction of the Software or Equipment.
(c) Customer shall document and promptly report all errors or
malfunctions of the Software to Sagent. Customer shall take all
steps necessary to carry out procedures for the rectification of
errors or malfunctions within a reasonable time after such
procedures have been received from Sagent.
(d) Customer shall maintain a current backup copy of all programs
and data.
(e) Customer shall properly train its personnel in the Use and
application of the Software and the Equipment on which it is
used.
6.9 Maintenance Fee. The Maintenance Fee for each calendar year of
Maintenance and Support will be 15% of the list price for the
Software, as set forth in Sagent's price list in effect as of the
Effective Date. The Maintenance Fee is due and payable in full in
advance within thirty (30) days after the date of delivery of the
Software. Any amounts not paid within thirty (30) days will be subject
to interest of 1% per month, which interest will be immediately due
and payable. Each calendar year, the Maintenance Fee may be modified
by Sagent due to general price increases and/or general inflation
increases which are reflected in the Consumer Price Index, but shall,
for a period of four years from the Effective Date, in no event exceed
five percent (5%) plus the increase in the Consumer Price Index for
the applicable time period, by written notice to Customer at least
thirty (30) days prior to the end of the then-current term. In the
event of a modification of the Maintenance Fee, Customer may
discontinue Maintenance and Support. If Customer elects not to renew
Maintenance and Support, Customer may re-enroll only upon payment of
the annual Maintenance Fee for the coming year and fifty (50) per cent
of all Maintenance Fees that would have been paid had Customer not
terminated Maintenance and Support, which entitles Customer to all
Updates and Releases of the Software which have been released during
the same period.
6.10 Assignment of Duties. Sagent may assign its duties of Maintenance and
Support to a third party, provided that Sagent will remain responsible
for the actions of such third party. Any such assignment is subject to
Customer's consent, which consent shall not be unreasonably withheld
or delayed.
7. Limited Warranty and Limitation of Liability
7.1 Sagent warrants that the Software will perform in substantial
accordance with the Documentation for a period of one (1) year from
the Effective Date. If during this time period the Software does not
perform as warranted, Sagent shall undertake to correct the Software,
or if correction of the Software is reasonably not possible, replace
such Software free of charge. If neither of the foregoing is
commercially practicable, Sagent shall terminate this Agreement and
refund to Customer the License Fee. In addition, Sagent warrants that
the media on which the Software is distributed will be free from
defects in materials and workmanship under normal use for a period of
ninety (90) days from the Effective Date. Sagent will replace any
defective media returned to Sagent within the 90-day period. The
foregoing are Customer's sole and exclusive remedies for breach of
warranty. The warranty set forth above is made to and for the benefit
of Customer only. The warranty will apply only if:
(a) the Software has been properly installed and used at all times
and in accordance with the instructions for Use; and
(b) no modification, alteration or addition has been made to the
Software by persons other than Sagent or Sagent's authorized
representative (except pursuant to the authorized Use of the
Sagent Tools specified in Schedule A); and
(c) Customer has not requested modifications, alterations or
additions
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to the Software that cause it to deviate from the Documentation.
7.2 Except as set forth above, Sagent makes no warranties, whether
express, implied, or statutory regarding or relating to the Software
or the Documentation, or any materials or services furnished or
provided to Customer under this Agreement, including Maintenance and
Support. Sagent specifically disclaims all implied warranties of
merchantability and fitness for a particular purpose with respect to
the Software, Documentation, and said other materials and services,
and with respect to the use of any of the foregoing. In addition,
Sagent disclaims any warranty with respect to, and will not be liable
or otherwise responsible for, the operation of the Software if
programs are made through the use of non-Sagent software that change,
or are able to change, the data model of the Software.
7.3 In no event will Sagent be liable for any loss of profits, loss of
use, business interruption, loss of data, cost of cover or indirect,
special, incidental or consequential damages of any kind in connection
with or arising out of the furnishing, performance or use of the
Software or services performed hereunder, whether alleged as a breach
of contract or tortious conduct, including negligence, even if Sagent
has been advised of the possibility of such damages. In addition,
Sagent will not be liable for any damages caused by delay in delivery
or furnishing the Software or said services. Sagent's liability under
this Agreement for direct, indirect, special, incidental and/or
consequential damages of any kind, including, without limitation,
restitution, will not, in any event, exceed the License Fee paid by
Customer to Sagent under this Agreement.
7.4 Customer shall indemnify and hold Sagent harmless from and against any
costs, losses, liabilities and expenses (including reasonable
attorneys fees) arising out of third party claims related to Customers
Use of the Software under this Agreement.
7.5 Any pre-production versions of the Software distributed to Customer
are delivered "as-is," without any express or implied warranties.
7.6 The provisions of this Section 7 allocate risks under this Agreement
between Customer and Sagent. Sagent's pricing reflects this allocation
of risks and limitation of liability.
7.7 No action arising out of any breach or claimed breach of this
Agreement or transactions contemplated by this Agreement may be
brought by either party more than one (1) year after the cause of
action has accrued. For purposes of this Agreement, a cause of action
will be deemed to have accrued when a party knew or reasonably should
have known of the breach or claimed breach.
7.8 No employee, agent, representative or affiliate of Sagent has
authority to bind Sagent to any oral representations or warranty
concerning the Software. Any written representation or warranty not
expressly contained in this Agreement will not be enforceable.
8. Indemnification for Infringement
8.1 Sagent shall, at its expense, defend or settle any claim, action or
allegation brought against Customer that the Software infringes any
patent, copyright, trade secret or other proprietary right of any
third party and shall pay any final judgments awarded or settlements
entered into; provided that Customer gives prompt written notice to
Sagent of any such claim, action or allegation of infringement and
gives Sagent the authority to proceed as contemplated herein. Sagent
will have the exclusive right to defend any such claim, action or
allegation and make settlements thereof at its own discretion, and
Customer may not settle or compromise such claim, action or
allegation, except with prior written consent of Sagent. Customer
shall give such assistance and information as Sagent may reasonably
require to settle or oppose such claims. In the event any such
infringement, claim, action or allegation is brought or threatened,
Sagent may, at its sole option and expense:
(a) procure for Customer the right to continue Use of the Software or
infringing part thereof; or
(b) modify or amend the Software or infringing part thereof, or
replace the Software or infringing part thereof with other
software having substantially the same or better capabilities;
or, if neither of the foregoing is commercially practicable.
(c) terminate this Agreement and repay to Customer a portion, if any,
of the License Fee equal to the amount paid by
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Customer less one-forty-eighth (1/48) thereof for each month or portion thereof
that this Agreement has been in effect. Sagent and Customer will then be
released from any further obligation to the other under this Agreement, except
for the obligations of indemnification provided for above and such other
obligations that survive termination.
8.2 The foregoing obligations shall not apply to the extent the
infringement arises as a result of modifications to the Software made
by any party other than Sagent or Sagent's authorized representative.
The foregoing obligations shall not apply to the Third Party Software.
8.3 The foregoing states the entire liability of Sagent with respect to
infringement of any patent, copyright, trade secret or other
proprietary right.
9. Confidential Information
9.1 Each party acknowledges that the Confidential Information constitutes
valuable trade secrets and each party agrees that it shall use
Confidential Information solely in accordance with the provisions of
this Agreement and will not disclose, or permit to be disclosed, the
same, directly or indirectly, to any third party without the other
party's prior written consent. Each party agrees to exercise due care
in protecting the Confidential Information from unauthorized use and
disclosure. However, neither party bears any responsibility for
safeguarding information that (i) is publicly available, (ii) already
in the other party's possession and not subject to a confidentiality
obligation, (iii) obtained by the other party from third parties
without restrictions on disclosure, (iv) independently developed by
the other party without reference to Confidential Information, or (v)
required to be disclosed by order of a court or other governmental
entity. Nothing herein will prevent routine discussions by the parties
that normally take place in a "user group" context.
9.2 In the event of actual or threatened breach of the provisions of
Section 9.1, the non-breaching party will have no adequate remedy at
law and will be entitled to immediate and injunctive and other
equitable relief, without bond and without the necessity of showing
actual money damages.
10. Term and Termination
10.1 This Agreement will take effect on the Effective Date and will remain
in force until terminated in accordance with this Agreement.
10.2 This Agreement may be terminated by Customer upon thirty (30) days'
prior written notice to Sagent, with or without cause, provided that
no such termination will entitle Customer to a refund of any portion
of the License Fee or Maintenance Fee.
10.3 Sagent may, by written notice to Customer, terminate this Agreement if
any of the following events ("Termination Events") occur, provided
that, except as set forth in Section 10.3(d) below, no such
termination will entitle Customer to a refund of any portion of the
License Fee or Maintenance Fee:
(a) Customer fails to pay any amount due to Sagent within thirty (30)
days after Sagent gives Customer written notice of such
non-payment; or
(b) Customer is in material breach of any non-monetary term,
condition or provision of this Agreement, which breach, if
capable of being cured, is not cured within thirty (30) days
after Sagent gives Customer written notice of such breach; or
(c) Customer (i) terminates or suspends its business activities, (ii)
becomes insolvent, admits in writing its inability to pay its
debts as they mature, makes an assignment for the benefit of
creditors, or becomes subject to direct control of a trustee,
receiver or similar authority, or (iii) becomes subject to any
bankruptcy or insolvency proceeding under federal or state
statutes; or
(d) Sagent elects to refund Customer's fees in accordance with
Section 7.1 or Section 8.1(c).
If any termination Event occurs, termination will become effective
immediately or on the date set forth in the written notice of
termination. Termination of this Agreement will not affect the
provisions regarding Customer's or Sagent's treatment of Confidential
Information, provisions relating to the payment of amounts due, or
provisions limiting or disclaiming Sagent's liability, which
provisions will survive termination of this Agreement.
10.4 Within fourteen (14) days after the date of termination or
discontinuance of this Agreement for any reason whatsoever, Customer
shall return the Software, derivative works and all copies
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thereof, in whole or in part, all related Documentation and all copies thereof,
and any other Confidential Information in its possession. Customer shall
furnish Sagent with a certificate signed by an executive officer of Customer
verifying that the same has been done.
11. Non-assignment/Binding Agreement
Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Customer, in whole or in part, whether
voluntary or by operation of law, including by way of sale of assets,
merger or consolidation, without the prior written consent of Sagent, which
consent will not be unreasonably withheld. Subject to the foregoing, this
Agreement will be binding upon and will inure to the benefit of the parties
and their respective successors and assigns.
12. Notices
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b)
sent by first class registered mail, or air mail, as appropriate, (c) sent
by overnight air courier, or (d) by facsimile, in each case properly posted
to the appropriate address set forth below. Either party may change its
address for notice by notice to the other party given in accordance with
this Section. Notices will be considered to have been given at the time of
actual delivery in person, three (3) business days after deposit in the
mail as set forth above, one (1) day after delivery to an overnight air
courier service, or one (1) day after the moment of transmission by
facsimile.
13. Miscellaneous
13.1 Force Majeure. Neither party will incur any liability to the other
party on account of any loss or damage resulting from any delay or
failure to perform all or any part of this Agreement if such delay or
failure is caused, in whole or in part, by events, occurrences, or
causes beyond the control and without negligence of the parties. Such
events, occurrences, or causes will include, without limitation, acts
of God, strikes, lockouts, riots, acts of war, earthquakes, fire and
explosions, but the inability to meet financial obligations is
expressly excluded.
13.2 Waiver. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to
be effective. Failure, neglect, or delay by a party to enforce the
provisions of this Agreement or its rights or remedies at any time,
will not be construed and will not be deemed to be a waiver of such
party's rights under this Agreement and will not in any way affect
the validity of the whole or any part of this Agreement or prejudice
such party's right to take subsequent action. Except as expressly
stated in this Agreement, no exercise or enforcement by either party
of any right or remedy under this Agreement will preclude the
enforcement by such party of any other right or remedy under this
Agreement or that such party is entitled by law to enforce.
13.3 Severability. If any term, condition, or provision in this Agreement
is found to be invalid, unlawful or unenforceable to any extent, the
parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such
invalid term, condition or provision will be severed from the
remaining terms, conditions and provisions, which will continue to be
valid and enforceable to the fullest extent permitted by law.
13.4 Entire Agreement. This Agreement (including the Schedules and any
addenda hereto signed by both parties) contains the entire agreement
of the parties with respect to the subject matter of this Agreement
and supersedes all previous communications, representations,
understandings and agreements, either oral or written, between the
parties with respect to said subject matter, except as provided in
Section 1.3 with respect to the definition of "Confidential
Information."
13.5 Standard Terms of Customer. No terms, provisions or conditions of any
purchase order, acknowledgment or other business form that Customer
may use in connection with the acquisition or licensing of the
Software will have any effect on the rights, duties or obligations of
the parties under, or otherwise modify, this Agreement, regardless of
any failure of Sagent to object to such terms, provisions or
conditions.
13.6 Amendments to this Agreement. This Agreement may not be amended,
except by a writing signed by both parties.
13.7 Sagent's prior consent. Unless expressly provided otherwise in this
Agreement, any prior consent of Sagent that is required before
Customer may take an action may be granted or withheld in Sagent's
sole and absolute discretion.
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13.8 Export of Software. Customer may not export or re-export the Software
without the prior written consent of Sagent and without the
appropriate United States and foreign government licenses.
13.9 Public Announcements. Customer acknowledges that Sagent may desire to
use its name in press releases, product brochures and financial
reports indicating that Customer is a customer of Sagent, and
Customer agrees that Sagent may use its name in such a manner.
13.10 Counterparts. This Agreement may be executed in counterparts, each
of which so executed will be deemed to be an original and such
counterparts together will constitute one and the same agreement.
13.11 Applicable law. This Agreement will be interpreted and construed in
accordance with the laws of the State of California and the United
States of America, without regard to conflict of law principles.
13.12 Headings. Section and Schedule headings are for ease of reference
only and do not form part of this Agreement.
13.13 Non-solicitation. Customer acknowledges and agrees that the employees
and consultants of Sagent who perform the Maintenance and Support
Services or other services are a valuable asset to Sagent and are
difficult to replace. Accordingly, Customer agrees that, for a period
of twelve (12) months after the completion of the Maintenance and
Support Services or other services, it will not offer employment as
an employee, independent contractor, or consultant to any Sagent
employee or consultant who performs any of the Maintenance and
Support Services or other services.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
(CUSTOMER) SAGENT TECHNOLOGY, INC.
-------------------------
By: By:
-------------------------------- --------------------------------
----------------------------------- -----------------------------------
(print name and title) (print name and title)
Date: Date:
---------------- -----------------
Address: Address:
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
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SCHEDULE A
SOFTWARE AND LICENSE FEE
[To be completed by listing the Software
to be licensed, including language, modules,
development tools and any Third Party Software
and License Fee]
68
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is entered into this ___
day of ________, 1998 (the "Effective Date"), by and between Sagent Technology,
Inc., a California corporation, having its principal place of business at 0000
X. Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX 00000 ("Sagent") and ________________
("Customer").
RECITALS
A. Sagent has developed and owns certain technology and software for
[DESCRIBE SOFTWARE] and has expertise in that field.
B. Customer wishes to engage Sagent's services on the terms set
forth below.
AGREEMENT
In consideration of the foregoing and the mutual promises contained herein
the parties agree as follows:
1. DEFINITIONS.
1.1 "Sagent Software" shall mean the object code form of any of
Sagent's software products marketed generally and any custom software
developed by Sagent.
1.2 "Customer Materials" shall mean the materials, information,
software modules, if any, owned or licensed (from third parties) by Customer
and other items specified in the Statement of Work.
1.3 "Intellectual Property" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing: Copyrights (including derivative works, as defined by the United
States Copyright Act, thereof), trademarks, trade names, trade secrets,
know-how, patents, any other intellectual and industrial property and
proprietary rights, of every kind and nature throughout the universe and
however designated, and including all registrations, applications, renewals,
and extensions thereof.
1.4 "Statement of Work" shall mean that document specifying the
consulting services to be provided by Sagent under this Agreement, including
setting forth specifications, deliverables, a performance schedule, Customer
Materials required and pricing and payment terms for the services provided
under this Agreement. The Statement of Work shall be mutually agreed upon,
attached as Exhibit A, and may be amended in writing by the parties from time
to time pursuant to this Agreement.
69
2. CONSULTING SERVICES.
2.1 Consulting Services. Sagent shall use reasonable and diligent
efforts to provide consulting services as set forth in the Statement of Work
("Services").
2.2 Periodic Review Meetings. Each party shall appoint a project
manager who will coordinate and act as liaison with the other party with respect
to the Statement of Work. The parties' respective project managers shall
participate in project review meetings as set forth in the Statement of Work or
otherwise by mutual agreement. Such discussions shall be for information
purposes only and shall not be binding upon either party other than as
expressly set forth in this Agreement or any amendment hereto. The Project
Managers shall also have primary responsibility for coordinating all major
decisions related to this Agreement, as well as the day-to-day management of
the work to be performed under this Agreement.
2.3 Modifications. During the performance of the Services, the
parties agree to reasonably modify the Statement of Work at the request of
either party, provided that if the modifications would materially increase
either party's obligations under this Agreement (including Sagent's cost or
work effort) then changes shall be made only upon mutual written agreement of
both parties.
2.4 Customer Materials. Customer shall provide to Sagent all
Customer Materials, reasonably required for use in providing the Services as
identified in the Statement of Work and will cause any third party vendor to
cooperate with Sagent as necessary to complete the services. Customer shall
provide Sagent personnel with reasonable access throughout Customer's site and
to any equipment ("Site Materials") reasonably necessary to perform the
Services. Customer hereby grants Sagent a nonexclusive, nontransferable
license to use the Customer Materials and Site Materials and to copy and modify
the Customer Materials as may be reasonably necessary to fulfill Sagent's
obligations hereunder. Customer shall indemnify and hold Sagent harmless from
any damages, liabilities, costs and expenses (including reasonable attorneys'
fees) incurred by Sagent as a result of any claim that the Customer Materials
or the Site Materials, when used within the scope of this Agreement, infringes
or violates the rights of any third party.
2.5 Customer Delays. If Customer, or any third party acting on
Customer's behalf does not provide any required item or service to Sagent on a
timely basis in accordance with the schedule set forth in the Statement of Work,
then the dates set forth which have been directly or indirectly affected by
such delay shall be extended as necessary to account for such delay.
3. DELIVERABLES.
Sagent shall deliver any deliverable items specifically identified in the
Statement of Work ("Deliverables") to Customer in accordance with the Statement
of Work ("Delivery"). As soon as practicable following the Delivery, but in no
event more than thirty (30) days from Delivery, Customer shall review, test,
and evaluate the Deliverable for conformity with the requirements contained in
the Statement of Work and shall provide Sagent with a written acceptance
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("Acceptance") of the Deliverable, or a written statement of defects to be
corrected. Sagent shall promptly correct such defects, if any, and return the
Deliverable to Customer for retesting, review and reevaluation, and Customer
shall, within ten (10) days of such redelivery, again provide Sagent with a list
of defects which need to be corrected, if any. The foregoing procedure shall be
repeated until Acceptance of the Deliverable or the parties mutually agree in
writing to terminate this Agreement. Failure to provide a statement of defects
within the applicable time period will be deemed Acceptance.
4. OWNERSHIP OF PROPRIETARY RIGHTS.
4.1 Existing Technology. Subject to the licenses granted herein,
each party shall have and retain exclusive ownership of its own technology,
information, data, know-how, ideas, designs, software, inventions,
documentation, resources and all other tangible and intangible items, which
exist as of the Effective Date, and all Intellectual Property related therein
and thereto ("Existing Technology").
4.2 Sagent Ownership. Customer agrees that the Sagent Software and
all software, works of authorship, data, inventions and discoveries developed,
reduced to practice, or conceived by Sagent under this Agreement, alone or in
conjunction with Customer or third parties, (collectively, "Inventions") and
Intellectual Property therein and thereto are the sole property of Sagent. To
the extent that Customer would otherwise have any such rights, Customer agrees
to assign (or cause to be assigned) and hereby does assign fully to Sagent all
worldwide right, title and interest to the Inventions and all Intellectual
Property related therein and thereto.
4.3 Further Assurances. At any time or from time to time on and
after the date of this Agreement, at the request of a party, the other party
shall (a) deliver such records, data or other documents consistent with the
provisions of this Agreement, (b) execute, and deliver or cause to be
delivered, all such assignments, consents, documents or further instruments of
transfer or license and (c) take or cause to be taken all such other actions,
as a party may reasonably deem necessary or desirable in order for such party
to obtain the full benefits of this Agreement and the transactions contemplated
hereby.
4.4 Right to Develop Independently. Customer understands and
acknowledges that Sagent is in the business of developing products and providing
consulting services similar to those provided for Customer for other parties
generally based upon the same computer software, tools and knowledge base and
Customer agrees that nothing in this Agreement will impair Sagent's right to
provide the same services or develop for itself or others deliverables
substantially similar to, or performing the same or similar functions as the
Deliverables under this Agreement, subject to Sagent's obligations under
Section 8 (Confidential Information).
5. LICENSE.
Any software provided under this Agreement shall be subject to a separate
license agreement between Customer and Sagent as identified in Exhibit B.
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6. FEES.
6.1 Rates. In consideration for performing the Services, Customer
shall pay Sagent the fees set forth in the Statement of Work ("Fees"). If no
Fees are stated, the Services will be provided on a time and materials basis at
Sagent's current rates at the time the Services are performed. Customer shall
also reimburse Sagent for the reasonable actual travel and living expenses of
its personnel engaged in the performance of the Services hereunder at locations
other than Sagent's facilities, together with other reasonable out-of-pocket
expenses incurred by Sagent in performing the Services.
6.2 Payment Dates. Fees shall be payable upon receipt by the
Customer of the related invoice. Any amounts not paid within thirty (30) days
shall accrue interest at the rate of 1.5% per month or the highest rate
permitted by applicable law, whichever is lower. All Fees quoted and payments
made hereunder shall be in U.S. Dollars.
6.3 Taxes. Customer shall be responsible for all sales taxes, use
taxes and similar taxes and charges of any kind imposed by any federal, state
or local governmental entity for products and services provided under this
Agreement, excluding only taxes based solely upon Sagent's net income. When
Sagent has the legal obligation to pay or collect such taxes, the appropriate
amount shall be invoiced to and paid by Customer unless Customer provides
Sagent with a valid tax exemption certificate authorized by the appropriate
taxing authority.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL SAGENT'S LIABILITY ARISING OUT
OF THIS AGREEMENT EXCEED THE SUM OF THE FEES ACTUALLY PAID BY CUSTOMER
HEREUNDER. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY
FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER
ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT
APPLY TO ANY BREACH BY CUSTOMER OF ITS CONFIDENTIALITY OBLIGATIONS. THE PARTIES
AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK.
8. CONFIDENTIALITY.
8.1 Definition. The term "Confidential Information" shall mean any
information disclosed by one party to the other party in connection with this
Agreement which is disclosed in writing, orally or by inspection and is
identified as "Confidential" or "Proprietary" or which a party has reason to
believe is treated as confidential by the other party. Any information, in
whatever form, disclosed by Sagent that relates to the Custom Software and that
is not publicly known is "Confidential Information."
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72
8.2 OBLIGATION. Each party shall treat as confidential all
Confidential Information received from the other party, shall not use such
Confidential Information except as expressly permitted under this Agreement,
and shall not disclose such Confidential Information to any third party without
the other party's prior written consent. Each party shall take reasonable
measure to prevent the disclosure and unauthorized use of Confidential
Information of the other party.
8.3 EXCEPTIONS. Notwithstanding the above, the restrictions of this
Section shall not apply to information that:
8.3.1 was independently developed by the receiving party
without any use of the Confidential Information of the other party and by
employees or other agents of (or independent contractors hired by) the
receiving party who have not been exposed to the Confidential Information;
8.3.2 becomes known to the receiving party, without
restriction, from a third party without breach of this Agreement and who had a
right to disclose it;
8.3.3 was in the public domain at the time it was disclosed
or becomes in the public domain through no act or omission of the receiving
party;
8.3.4 was rightfully known to the receiving party, without
restriction, at the time of disclosure; or
8.3.5 is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; provided, however,
that the receiving party shall provide prompt notice thereof to the other party
and shall use its reasonable best efforts to obtain a protective order or
otherwise prevent public disclosure of such information.
8.4 RESIDUALS. Notwithstanding this Section, each party shall have
the right to exploit and use Residuals for any purpose. "Residuals" shall mean
that confidential information which is of general application in nature and not
peculiar to the design or specification information provided by either party
which is retained by an employee of either party in an intangible form in the
normal course of their work, where no effort has been made to retain or
memorialize this information in any way, and without further reference to any
material that is written, stored in magnetic, electronic or physical form, or
otherwise fixed.
8.5 REMEDIES. Each party acknowledges that its breach of this
Section would cause irreparable harm to the other party and in addition to any
other remedies to which a party may be legally entitled, the nonbreaching party
shall have a right to obtain immediate injunctive relief in the event of a
breach of this section by the other party.
9. TERM AND TERMINATION.
9.1 TERM. The term of this Agreement shall commence on the Effective
Date and shall continue in force until terminated as follows:
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73
9.1.1 If Customer fails to make any payment due within
thirty (30) days after receiving written notice from Sagent that such payment
is delinquent; Sagent may terminate this Agreement on written notice to
Customer at any time following the end of such thirty (30) day period.
9.1.2 If either party materially breaches any term or
condition of this Agreement and fails to cure that breach within thirty (30)
days after receiving written notice of the breach, the nonbreaching party may
terminate this Agreement on written notice at any time following the end of
such thirty (30) day period.
9.1.3 This Agreement shall terminate automatically without
notice and without further action by Sagent in the event Customer becomes
insolvent (i.e., becomes unable to pay its debts in the ordinary course of
business as they come due) or makes a general assignment for the benefit of
creditors.
9.2 EFFECT OF TERMINATION. Upon the termination of this Agreement for
any reason: Customer shall immediately pay to Sagent all amounts due and
outstanding as of the date of such termination or expiration; and shall return
to the other party the originals and all copies of the other party's
Confidential Information.
9.3 SURVIVAL. The following sections shall survive the termination,
for any reason, of this Agreement: 4, 6, 7, 8, 9 and 10.
10. MISCELLANEOUS.
10.1 ASSIGNMENT. Customer may not assign any of its rights or
delegate any of its obligations under this Agreement, whether by operation of
law or otherwise, without the prior express written consent of Sagent. Subject
to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
10.2 WAIVER AND AMENDMENT. No modification, amendment or waiver of
any provision of this Agreement shall be effective unless in writing and
signed by the party to be charged. No failure or delay by either party in
exercising any right, power, or remedy under this Agreement, except as
specifically provided herein, shall operate as a waiver of any such right,
power or remedy.
10.3 GOVERNING LAW; ARBITRATION. This Agreement shall be governed by
the laws of the State of California, USA, excluding conflict of laws
provisions. Any disputes arising out of this Agreement shall be resolved by
binding arbitration in San Mateo County, California in accordance with the
rules of the American Arbitration Association. The arbitrator shall have the
power to grant injunctive relief.
10.4 NOTICES. All notices, demands or consents required or permitted
under this Agreement shall be in writing. Notice shall be considered delivered
and effective when (a) personally delivered; (b) the day following transmission
if sent by telex, telegram or facsimile
-6-
74
followed by written confirmation by registered overnight carrier or certified
United States mail; or (c) one (1) day after posting when sent by registered
private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5)
days after posting when sent by certified United States mail. Notice shall be
sent to the parties at the addresses set forth on the first page of this
Agreement or at such other address as shall be given by either party to the
other in writing. Notices to Customer shall be addressed to the attention of the
License Administrator. Notices to Sagent shall be addressed to the attention of
Customer Service.
10.5 Independent Contractors. The parties are independent contractors.
Neither party shall be deemed to be an employee, agent, partner or legal
representative of the other for any purpose and neither shall have any right,
power or authority to create any obligation or responsibility on behalf of the
other.
10.6 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, such provision shall be changed
and interpreted so as to best accomplish the objectives of the original
provision to the fullest extent allowed by law and the remaining provisions of
this Agreement shall remain in full force and effect.
10.7 Complete Understanding. This Agreement, including all Exhibits
attached hereto, constitutes the final, complete and exclusive agreement between
the parties with respect to the subject matter hereof, and supersedes any prior
or contemporaneous agreement.
10.8 Compliance with Laws. Customer shall comply with all laws and
regulations applicable to Customer's activities under this Agreement.
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75
10.9 Force Majeure. Except for Customer's obligations to pay Sagent
hereunder, neither party shall be liable to the other party for any failure or
delay in performance caused by reasons beyond its reasonable control,
including but not limited to acts of God, earthquakes, strikes or shortages, of
materials.
Customer Sagent Technology, Inc.
By:________________________ By:________________________
Name:______________________ Name:______________________
Title:_____________________ Title:_____________________
Date:______________________ Date:______________________
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EXHIBIT A
STATEMENT OF WORK
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EXHIBIT B
SOFTWARE LICENSE
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78
[SAGENT LOGO]
EVALUATION AGREEMENT
--------------------------------------------------------------------------------
This Evaluation Agreement (No. ______) is between Sagent Technology, Inc., 0000
Xxxx Xxxxxxxx Xx. Xxxxx 000, Xxxx Xxxx, XX 00000, U.S.A. ("us"), and
--------------------------------------------------------------------------------
("you")
--------------------------------------------------------------------------------
1. We license you to install and use the Software during the Evaluation
Period only.
"We," "our" and "us" mean Sagent Technology, Inc. "Software" means only our
computer program(s) listed in the Schedule, any documentation ("Documentation")
and updates that we may deliver to you, and portions and copies in any form.
"Schedule" means any schedules that you and we sign that specifically refer to
this agreement. The "Evaluation Period" is the time period listed in the
Schedule; if none if listed there, the Evaluation Period is 30 days from the
effective date of the applicable Schedule.
2. You will pay us the License Fee listed in the Schedule if applicable.
If there is a license fee for the evaluation of our Software listed in the
Schedule then you will pay us the fees net 30 days from receipt of this invoice.
3. We disclaim all representation, warranties, and liability regarding the
Software that you will be evaluating. You accept it "AS IS."
You are responsible for installing the Software, and for determining whether
the Software is suitable, secure, and reliable for your purposes. We will
provide you telephone hotline support at no extra charge during the Evaluation
Period only, but any other maintenance, support or full Software License must
be purchased separately. Telephone support hours are from 6 am to 5 pm Pacific
Standard Time. We do not warrant that the Software is error-free or that any
errors will be corrected. THE FOREGOING IS IN LIEU OF ALL WARRANTIES OR
CONDITIONS TO YOU OR ANY THIRD PARTY, EXPRESS OR IMPLIED, RELATED TO THE
SOFTWARE OR ANY SERVICES WE MAY PROVIDE, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE DEALING OR USAGE. We are not
liable for incidental, special or consequential damages for any reason
(including loss of data or other business or property damage), even if
foreseeable, and our liability in all events will not exceed the License Fee
that you have paid, if any. Your SOLE REMEDY for any defects in the Software is
to return the Software and all copies to us for a full refund of the License
Fee you have paid. You agree to implement backup and recovery procedures
adequate to prevent loss due to malfunction.
4. You will respect our copyright in the Software.
You may make one copy of the Software programs for back-use only. You will put
our copyright notices on all copies. You may not copy the Documentation.
5. You will respect our trade secrets and other proprietary rights in the
Software.
You agree that we have and will keep title, copyright, and all other
proprietary rights in the Software. You will keep the Software in a safe place.
You will use best efforts to ensure that your employees and others with access
to the Software comply with this agreement. You have no right to use, examine
or recreate the Software source code, which is our trade secret. You agree not
to alter, decompile, or reverse engineer the Software. You will treat our
Software and accompanying documentation as Confidential Information. You will
protect the Confidential Information from unauthorized use, dissemination or
publication. You will protect the Confidential Information by using the same
degree of care as you use to protect your own confidential information of a
like nature, but no less than a reasonable degree of care. You are not required
to protect information that (a) you possessed before you received it from us,
(b) is or becomes a matter of public knowledge through no fault of your own;
(c) you rightfully receive from a third party without a duty of
confidentiality; (d) we disclose to a third party without imposing a duty of
confidentiality; (e) you develop independently; or (f) the law requires or we
give written permission to be disclosed. You may use the Confidential
Information only for the purposes of evaluating and reviewing our Software.
79
6. You may not transfer the Software.
Any attempted assignment, sub-license or transfer by you of the Software is
void without our written permission.
7. This license agreement remains in effect unless terminated.
You may terminate this agreement at any time. We may terminate this agreement
if you breach it. At the end of the applicable Evaluation Period, or upon
termination if earlier, you will return the Software, Documentation and all
copies to us. Should you not return the software, then you authorize us in our
reasonable discretion to charge you the applicable full system license fee for
any Software and or Documentation that you do not return to us in unmarked
condition, suitable for evaluation by another customer.
8. The following terms also apply.
This is the full and final agreement between you and us, and supercedes any
earlier promises, representations or agreements relating to the subject of this
agreement. This agreement may only be changed if you and our authorized
representative do so in writing. Waivers not given in writing may be revoked at
any time without liability. Invalid provisions do not affect the enforceability
of the others. We are entitled to injunctive relief for violations of our
proprietary rights. We reserve all rights not granted specifically in this
agreement.
SAGENT TECHNOLOGY, INC.
Signed:_______________________________________________________________________
Name:_________________________________________________________________________
Title:________________________________________________________________________
Effective Date: ______________________________________________________________
You:__________________________________________________________________________
Signed:_______________________________________________________________________
Name:_________________________________________________________________________
Title:________________________________________________________________________
80
[SAGENT LOGO]
EVALUATION AGREEMENT SCHEDULE
----------------------------------
SCHEDULE #1 EVALUATION PERIOD ENDS __________
Payment and Delivery Terms if Applicable: If you do not purchase the software
you are required to return it. We will be entitled to physically repossess the
Software from your premises in the event of nonpayment or termination of the
evaluation agreement.
Contact Persons
Your Primary Contact: Name:______________ Phone:____________
Your Alternate Contact: Name:______________ Phone:____________
Our Primary Contact: Name:______________ Phone:____________
Other Applicable Terms:______________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
All terms of the evaluation agreement referred to above are incorporated herein
and will apply to your orders relating to this Schedule.
81
EXHIBIT H
SAGENT'S STANDARD VAR AGREEMENT
including its respective exhibits A and B
82
This Agreement is between Sagent Technology Inc. 0000 X. Xxxxxxxx Xx. Xxxxx
000, Xxxx Xxxx, XX 00000, X.X.X. ("PROVIDER") and _________________________
________________________________________________________("Distributor").
1. PROVIDER appoints you an authorized non-exclusive distributor of the
Software in the Territory.
"We," "our" and "us" mean Sagent Technology Inc. "Software" means only our
computer program(s) listed in the Schedule and any related documentation
("Documentation"); we may change or discontinue any or all Software
products or versions at any time without notice or liability. "Schedule"
means any schedules that you and we sign that specifically refer to this
Agreement. The "Territory" means the territory set forth in the Schedule;
you agree not to sublicense or export the Software outside the Territory,
or advertise, solicit orders, or establish or maintain a branch, sales
office or distribution depot for the Software, outside the Territory. Your
appointment is non-exclusive; you understand that we may appoint or license
other distributors, Master VARs, VARs, OEMs, dealers or end-users in the
Territory directly without notice or liability to you.
2. Distributor will vigorously market the Software at your expense.
Distributor will maintain at all times full-time, trained sales, marketing,
technical and service staff, including at least one Sagent salesperson, one
dedicated Sagent systems engineer, and one Sagent technical support
engineer, and all appropriate equipment and software necessary to
demonstrate the Software, provide training and support, attend sales
events, and otherwise promote the Software to end users.
3. Distributor may demonstrate the Software at your premises or at a Customer
Location.
Distributor may install and run the Software for demonstration use on its
own computer(s) or on prospective customer's computer(s). Distributor must
remove demonstration copies of the Software from a customer's computer not
more than 60 days after installation, unless Sagent otherwise agree in
writing. Sagent will charge Distributor the applicable License Fees for
demonstration copies of the Software and/or Documentation that has not been
removed from a customer's site. Sagent reserves the right to require that
demonstration Software have a Non-Disclosure Agreement along with an
Evaluation Agreement with customers evaluating the Software.
4. Distributor may develop applications that work with the Sagent Software.
Prior to developing an application the Distributor must purchase at least
one license for the developer version of the Software from Sagent for each
development site and may purchase this copy at 50% discount of the then
current pricing. Upon purchase of a developer license, you may use that
licensed Software product in order to develop, test, verify and support
your won application software to work with the Sagent Software. Distributor
may combine Software that is subject to such a developer license with your
own application software, but you may not modify any Software and you must
maintain all Software in complete unedited form.
5. Distributor may sublicense end-users the Software.
Pursuant to the terms of this Agreement, you may market and sublicense the
Software to end-users in the Territory who would use it for internal data
processing. Distributor may sublicense the Software yourself or through
other VARs within the Territory that we have authorized in writing and that
have agreed in writing to be bound by all terms of our standard VAR
agreement. Upon our receipt and verification of a copy of each such VAR
agreement, we will provide you with a development kit for each Software
product licensed by the approved VAR. Distributor may only sublicense
developer and runtime versions of the Software for use only with the
products specified in the Schedule. Distributor may not, however,
sublicense any Software unless Distributor has already purchased their own
license. Distributor may sublicense the Software to end-users embedded in
or bundled with your hardware, systems or software applications, or as a
standalone product. Distributor will require each sublicensee to enter into
a written sublicense and warranty agreement containing substantially the
terms set forth in the Schedule. Distributor must secure an access code
from us for each customer for which the Software is sublicensed.
Distributor is free unilaterally to determine your own resale prices for
the Software and are not obligated to pay us for value added services you
create. None of our employees or other representatives
83
is authorized to inhibit your pricing discretion; you agree to notify us
promptly, in writing, if they attempt to do so.
6. Distributor will make records and reports of Software installations and
sublicenses.
Distributor will make and keep, and give us not less than 10 days after the
end of each calendar month, a complete and accurate report of the type,
quantities and customer information for each copy of the Software sold,
including the Distributors, and those of sublicensees and other customers.
This report will also include the quantities of Software products
purchased, the amount of such purchases, and the name and address of each
sublicensee.
7. Distributor will pay us the License Fees listed in the Schedule.
Distributor will pay us the applicable License Fee for each developer
license or other license we give you to use the Software, and each
sublicense you grant for the Software to be used. The "License Fee" is the
applicable amount set forth in the Schedule. Sagent may change License Fees
at any time. The Software is delivered FOB our point of shipment.
Distributor is responsible for paying all taxes, duties, shipping,
insurance and other such fees on the Software, except taxes on our net
income. Distributor will pay on time: All sums are payable in United States
currency at our United States offices, and are due within thirty (30) days
after the date of our invoice. Late payments will be subject to interest at
1.5% per month, or the maximum allowable by law, if less. Sagent reserves
the right to change the License Fees in the event that the exchange rate
between local currency and the U.S. dollar fluctuates more than 10% during
any year of the term of this Agreement.
Sagent has the right to cancel orders and change credit or payment terms if
Distributor does not pay in full and on time and/or if your financial
position changes. Sagent can also cancel this Agreement and/or repossess
the Software from your premises for nonpayment and/or late payment. Sagent
or our business representatives have the right to inspect your records
relating to our Software during regular business hours to verify the
accuracy of your reports and License Fee payments. For purposes of ensuring
payment, we may at our option configure the Software so that unless we
later provide you with an access key to extend the use of the Software,
your continued use of the software will result in degradation of its
performance. Sagent will provide the Distributor with an access key upon
our receipt of timely payment.
If Distributor is required to withhold any taxes on amounts payable to us
under this Agreement, pursuant to the laws and regulations of the
Territory, the Distributor will be entitled to deduct and withhold such
taxes unless we furnish you duly executed forms sufficient under the laws
of the Territory to exempt sums payable to us hereunder from such taxes.
Distributor may not reduce any amount payable to us by any withholding
taxes unless you have provided us with a certificate of deduction and
withholding and a true copy of the governmental receipt establishing the
payment thereof. Distributor will obtain and provide to us on a timely
basis official tax receipts or such other evidence of payment as we may be
required to submit in order to establish our right to a foreign tax credit
against our U.S. federal income tax liability.
8. Our warranty and liability for the Software are limited.
The Software is provided "AS IS." Sagent does not warrant that the Software
is error-free, or that any errors will be corrected. Sagent warrants the
physical media and physical Documentation for each Software product we
provide to you (but not any media or Documentation distributed to you) to
be free of physical defects in materials and workmanship for a period of 30
days after it is first delivered to you. If Sagent receives notification
within the warranty period of such physical defects in material or
workmanship, and such notification is determined by Sagent to be correct,
Sagent will replace the defective media or Documentation. THE FOREGOING
WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES TO YOU OR ANY THIRD PARTY,
EXPRESS OR IMPLIED, RELATED TO THE SOFTWARE OR ANY SERVICES WE MAY PROVIDE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE
DEALING OR USAGE. Sagent is not liable to you or any third party for
incidental, special or consequential damages for any reason (including loss
of data or other business or property damage), even if foreseeable, and our
liability in all events will not exceed the applicable License Fee that you
have paid. Distributor will require each sublicensee to accept similar
warranty and liability limits. Distributor may not make any warranty or
other representations to sublicensees or others on our behalf. Sagent is
not liable for defects in your
84
own application software, or for your own activities in marketing and
sublicensing the Software. Distributor agrees to implement backup and
recovery procedures adequate to prevent loss due to malfunctions.
9. Distributor will support its customers, and will purchase training and
support services from Sagent.
Distributor will purchase training, technical, Hotline and update support
from us, under the terms of our standard support programs unless otherwise
agreed by you and us in writing. Distributor is solely responsible for
installing, maintaining and supporting the Software for sublicensees and
other customers unless otherwise agreed in the Schedule. Sagent has no
obligation to provide support services except under the terms of standard
support programs purchased directly from us, or to deal with any third
party directly. Sagent's support programs are subject to change from time
to time without notice from us.
10. Distributor will respect our copyright in the Software.
Distributor will not copy the Software except as required to demonstrate
and sublicense the Software and develop your applications under the
specific terms of this Agreement, and to make adequate archival copies.
Distributor will put our proprietary and copyright notices on all copies.
Distributor may not copy the Documentation.
11. Distributor will respect our trade secrets and other proprietary rights in
the Software.
Distributor agrees that we have and will keep title, copyright, trademark
and all other proprietary rights in the Software, the Documentation, and
all portions and copies in any form. All distribution of the Software is by
license only, not sale. Distributor will keep the Software in a safe place.
Distributor will use best efforts to ensure that their employees and others
with access to the Software comply with this Agreement. Distributor will
have no right to use, examine, re-create, sublicense, or transfer the
Software source code, which is our trade secret. Distributor agrees not to
alter the Software, or make any attempt to unlock or by-pass any
access-prevention device in the Software. Distributor may use our
trademarks only as necessary to market the Software.
12. Distributor will keep our Confidential Information secret.
Confidential Information means our nonpublic business, product, and
technical information that you receive or learn during the term of your
distributorship. Distributor will not use or disclose our confidential
information except as we specifically authorize in writing. Distributor
will return our confidential information and all copies upon termination of
this Agreement, or at our request, if earlier.
13. Distributor may not transfer or sublicense the Software except as
specifically allowed under this Agreement.
Distributor may not in any event export to any country under U.S. Commerce
Department restriction, or rent or electronically transmit the Software.
Any attempted assignment, delegation, sublicense or transfer by you of the
Software, this Agreement, or your rights to anyone is void and terminates
this Agreement automatically, unless we have explicitly given permission in
this Agreement or otherwise in writing.
14. This Agreement remains in effect for one year from the Effective Date
below unless otherwise terminated earlier.
After the initial term, this Agreement can renew upon Sagent's review of
the specified minimum revenue goals attained, unless otherwise terminated.
You may terminate this Agreement at any time. Either you or we may
terminate this Agreement, without liability and with or without cause, at
the end of the initial one year term, or with 90 days' written notice at
any time thereafter. Sagent will not agree to any renewal unless you have
submitted, at least 60 days prior to the end of the term, a business plan
for the following year acceptable to us. We may terminate this Agreement
immediately if you breach it, if your principals or ownership change, or if
you enter bankruptcy, insolvency, liquidation or similar proceedings. On
termination, you will return the Software and all copies to us, give us a
final accounting, and pay all outstanding License Fees and other amounts
due. You will also make no further use of the Software or our trademarks,
grant no more sublicenses, and return all copies of the Software in your
possession to us on termination. All proprietary rights automatically
revert to us. Sections 7-8 and 10-15 of this Agreement will remain in
effect. Software sublicenses properly granted and paid for prior to
termination will also remain in effect according to their terms.
85
15. The following terms also apply.
This is the full and final agreement between you and us on this subject,
and supersedes any earlier promises, representations or agreements. This
Agreement may only be changed if you and our authorized representative do
so in writing. No inconsistent, additional, or preprinted terms on your
purchase order or other business form will apply. You are an independent
contractor, not our agent, partner, franchisee, joint venture or employee.
Waivers not given in writing may be revoked at any time without liability.
Invalid provisions do not affect the enforceability of the others. We are
entitled to injunctive relief for violations of our copyrights, trade
secrets or other proprietary rights. We reserve all rights not granted
specifically in this Agreement. All notices shall be in writing and in
English and may be sent by cable, telecopy, or air mail, return receipt
requested, sent to the attention of the Legal Department at the addresses
first set forth above, and shall be deemed received as follows: cable and
telecopy, 24 hours after transmission; and registered airmail, 10 days
after delivery to the postal authorities by the party serving notice. This
Agreement will be construed, interpreted and governed by the substantive
laws of the State of California. Any legal action arising out of or related
to this Agreement shall be brought only in a state or federal court of
competent jurisdiction located in California.
Sagent technology Inc. Distributor
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
--------------------------------- ---------------------------------
Effective Date:
----------------------
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Schedule No.
--------------------
Non-Exclusive Sagent Software Distribution Agreement
This Schedule is part of the Non-Exclusive Sagent Software Distribution
Agreement ("Agreement") entered into on between Sagent
-----------------
Technology, Inc., 0000 X. Xxxxxxxx Xx., Xxxxx 000, Xxxx Xxxx, XX 00000
("Sagent") and
----------------------------------------------------
-------------------------------------------------------------- ("Distributor")
1. "Software," "Licensee Fees."
The Software products that you are permitted to use under Section 4 of
the Agreement are the products listed in the International Price List,
attached as Exhibit B, which you have received for Demonstration
purposes.
The Software that you are permitted to market and sublicense under
Section 5 of the Agreement are developer versions of the products
listed in the attached International Price List. (see Exhibit B) If
you are using a developer license you must pay the applicable License
Fee for any Software you use.
Other products and/or versions may be added to this Agreement only if
you and our authorized representative agree to do so in a written
schedule.
The License Fees you must pay us for each Software license you
purchase from us for each copy of the Software you sublicense to
others is the recommended International list price less the following
Distributor discount: fifty percent (50%).
2. Territory
The Territory is .
----------------
3. End-User License Agreement.
The basic license and warranty terms and information required with
respect to end-user sublicensees are set forth in the sample end user
software license agreement and schedule attached as Exhibit A.
4. Minimum Target Volume.
Your revenue objective for the six-month term of this Agreement is set
out below and is based on net product revenue dollars to Sagent. In
the event that our License Fee revenues from you at the end of the
six-month term are less than those specified, we have the right, in
our sole discretion, to terminate the Agreement on 30 days' written
notice to you. The minimum revenue goal in order to be considered for
renewal of Agreement, at Sagent's discretion, is 100,000 USD, at the
International Discounted List Price and net of all taxes.
5. Support Services.
Distributor will offer first-line update, Hotline and related
technical support to its customers. Distributor must purchase update
and Hotline support from us or our designated support representative
for the annual fee for Hotline support is our then-current published
price for such Hotline support. Distributor will provide all customer
support and pay us an annual fee for each sale of such services you
make to your customers for support of Product licenses. The annual fee
will be Ten Percent (10%) of the International Product List Price.
87
6. Marketing Materials
You may order marketing materials from us; there may be a standard
charge for certain materials or quantities.
7. Training
Distributor, in order to be certified to perform training and have
access to Sagent's training material, needs to send at least one
representative to attend a one-week certification class at Sagent
Technology, Inc.'s Headquarters in Palo Alto, CA, US. The fee for the
course is $10,000 USD, plus travel and expenses. Classes are held once
a month.
8. Other Terms and Conditions.
All terms of the Agreement are incorporated herein and remain in force
except as specifically changed in this Schedule.
SAGENT TECHNOLOGY INC. Distributor: DYNAMICS SOFTWARE
DISTRIBUTION (8) PTC LTD. ("DSD")
Signed: _________________________ Signed: __________________________
Name: _________________________ Name: __________________________
Title: _________________________ Title: __________________________
Effective Date: _________________ Effective Date: __________________
88
EXHIBIT A
---------
SAGENT SOFTWARE LICENSE AGREEMENT
THANK YOU FOR PURCHASING THIS PRODUCT. IT IS IMPORTANT THAT YOU CAREFULLY READ
THIS AGREEMENT BEFORE OPENING THIS PACKAGE. BY OPENING THIS SEALED PACKAGE, YOU
AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND CREATE A BINDING
CONTRACT BETWEEN YOU AND SAGENT TECHNOLOGY, INC. ("SAGENT"). IF YOU DO NOT AGREE
TO THESE TERMS, YOU MAY RETURN THIS PACKAGE UNOPENED TO SAGENT WITHIN THIRTY
(30) DAYS OF PURCHASE FOR A FULL REFUND.
LICENSE
Sagent grants you a non-exclusive, non-transferable license to use this copy of
the software program (the "Software") and accompanying documentation, if any,
and any updates or upgrades thereto provided by Sagent according to the terms
set forth below. If the Software is being provided to you as an update or
upgrade to software which you have previously licensed, than you agree to
destroy all copies of the prior release of this software within thirty (30) days
after entering into this Agreement; provided, however, that you may retain one
copy of the prior release for backup purposes.
You may:
a. install the Software on only one of the following, as specified on your
Order Form or other signed agreement with Sagent (the "Governing Terms");
(i) (if specified as "stand alone" or "single user" version) a stand alone
or computer network node from which node the Software cannot be accessed by
another computer; or (ii) (if specified as a "LAN" version) a network
server at one site only, which server provides access to multiple
computers, up to the maximum number of computers of concurrent users
specified in such Governing Terms; or (iii) if specified as a "multi-user
pack", the number of computer nodes (network or stand alone) up to the
number of users as specified in such Governing Terms.
b. make one (1) copy of the Software in machine readable form solely for
backup purposes, provided that you reproduce all proprietary notices on the
copy; and
c. physically transfer the Software from (as applicable): (i) one stand alone
computer or network node to another stand alone computer or network node;
or from (ii) one server to another server, provided that the Software is
used on only one computer, network node or server at a time; or from (iii)
the number of stand alone computers, network nodes or servers to other
stand alone computers, network nodes, or servers, provided that the number
of Software users does not exceed the number specified in the Governing
Terms.
You may not:
a. modify, translate, reverse engineer, decompile, disassemble, or create
derivative works based on the Software (except to the extent that such acts
may not be prohibited under applicable law),
b. copy the Software (except as provided above) or copy the accompanying
documentation,
c. rent, transfer, lease, distribute or grant any rights in the Software or
accompanying documentation in any form to any person without the prior
written consent of Sagent, or
d. remove any proprietary notices, labels, or marks on the Software and
accompanying documentation
This license is not a sale. Title and copyrights to the Software, accompanying
documentation and any copy made by you remain with Sagent or its licensors, as
the case may be. Unauthorized copying of the Software or the accompanying
documentation, or failure to comply with the above restrictions, will result in
automatic termination of this license and will make available to Sagent other
legal remedies.
89
LIMITED WARRANTY AND DISCLAIMER
Sagent warrants that, for a period of thirty (30) days from the date of
delivery to you, (i) the Software will perform substantially in accordance
with the accompanying documentation, and (ii) the software media on which the
Software is furnished under normal use will be free from defects in materials
and workmanship.
Sagent's entire liability and your exclusive remedy under this warranty (which
is subject to your returning the Software to Sagent) will be, at Sagent's
option, to use reasonable commercial efforts to attempt to correct or work
around errors, to replace the Software Media with functionally equivalent
Software Media, as applicable.
Sagent warrants that the software shall not cause erroneous date calculations
due to miscalculations by the Software as a result of the year 2000 date
change. Sagent further warrants that the software includes the ability to
manage and manipulate all data involving dates or date fields which include
indication of century to ensure year 2000 compatibility.
EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, SAGENT MAKES AND YOU RECEIVE
NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OR IN
ANY COMMUNICATION WITH YOU, AND SAGENT SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT AND THEIR EQUIVALENTS. Sagent does not warrant that the
operation of the Software will be uninterrupted or error free or that the
Software will meet your specific requirements.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY
IN NO EVENT WILL SAGENT BE LIABLE FOR LOSS OF DATA, LOST PROFITS, COST OF
COVER, OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT
DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN
IF SAGENT OR AN AUTHORIZED DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE. IN NO EVENT WILL SAGENT'S LIABILITY EXCEED THE AMOUNTS PAID FOR
THE SOFTWARE. YOU ACKNOWLEDGE THAT THE AMOUNTS PAID BY YOU FOR THE SOFTWARE
REFLECT THIS ALLOCATION OF RISK.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND
EXCLUSIONS MAY NOT APPLY TO YOU.
LANGUAGE
The parties hereto confirm that it is their wish that this Agreement, as well
as other documents relating hereto, have been and shall be written in the
English language only.
Les parties aux presentes confirment leur volonte que cette convention de meme
que tous les documents y compris tout avis qui s'y rattache, soient rediges en
langue anglaise.
GENERAL
This Agreement shall not be governed by the 1980 U.N. Convention on Contracts
for the International Sale of Goods; rather, this Agreement shall be governed
by the laws of the State of California, U.S.A., including its Uniform
Commercial Code, without reference to conflicts of laws principles. This
Agreement is the entire Agreement between us and supersedes any other
communications or advertising with respect to the Software and accompanying
documentation. If any provision of this Agreement is held invalid or
unenforceable, such provision shall be revised to the extent necessary to cure
the invalidity or unenforceability, and the remainder of
90
this Agreement shall continue in full force and effect. The Software and
accompanying documentation are deemed to be "commercial computer software" and
"commercial computer software documentation", respectively, pursuant to DFAR
Section and FAR Section, as applicable. Any use, modification, reproduction,
release, performing, displaying or disclosing of the Software and accompanying
documentation by the U.S. Government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement. You agree not to allow the Software to be sent
to or used in any other country except in compliance with applicable U.S. laws
and regulations. In the event of any conflict between any provision of this
Agreement and any applicable law, the provision or provisions of this Agreement
affected shall be modified to remove such conflict and permit compliance with
such law and as so modified this Agreement shall continue in full force and
effect.
If you have any questions, please contact in writing: Sagent Technology, Inc.
Customer Service, 0000 Xxxx Xxxxxxxx Xx. Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000.
91
EXHIBIT B
INTERNATIONAL PRICE LIST
SAGENT PRODUCT & DESCRIPTION PRODUCT INCLUDES INTL. PRICE
Data Mart Population Package 1 Data Mart Server $ 35,000
This package provides data mart population 1 Sagent Admin.
capabilities (extraction, transformation and load.) 1 Design Studio
Client/Server OLAP Package 1 Data Mart Server $ 70,000
This package provides end user OLAP capabilities 1 Sagent Admin.
for client/server users. No data mart population 1 Design Studio with Analysis
capabilities are included. 20 Information Studios
20 Analysis
Web OLAP Package 1 Data Mart Server $125,000
This package provides end user OLAP capabilities 1 Sagent Admin.
for client/server and unlimited Web users. 1 Design Studio with Analysis
20 Information Studios
20 Analysis
1 Sagent WebLink
Integrated Client/Server Package 1 Data Mart Server $ 90,000
This package provides a combination of the Data 1 Sagent Admin.
Mart Population and Client/Server OLAP 1 Design Studio with Analysis
Packages. 20 Information Studios
20 Analysis
Integrated Web Package 1 Data Mart Server $150,000
This package provides a combination of the Data 1 Sagent Admin.
Mart Population and Web OLAP Packages. 1 Design Studio with Analysis
20 Information Studios
20 Analysis
1 Sagent WebLink
Sagent Design Studio* 1 Design Studio $ 4,200
Sagent Information Studio* 5 Pack Sagent Info Studio $ 650
Crystal Reports* 5 Pack Crystal Reports $ 2,800
Sagent Administration* 1 Sagent Admin. $ 4,200
Sagent Analysis* 5 Pack Sagent Analysis $ 7,000
Sagent WebLink* 1 WebLink Server $ 56,000
Software Maintenance-One Year Technical Support & Upgrades 15% of SW Price
*These prices are only available to
customers after purchasing one of the above
packages.
92
EXHIBIT I
SEVERITY 1, 2 AND 3 DEFINITION AND PROBLEM RESOLUTION
93
CLASSIFICATION OF PROBLEM:
Classification Criteria
-------------- ------------------------------------------------------------
Severity 1 Business Critical Failures: An error or failure which
materially impacts the functions of the business, prevents
all useful work from being done or which disables major
functions from being performed.
Severity 2 System Defect with Workaround: Either a critical error for
which a work around exists or else a non-critical error
that significantly affects the functionality of the Product.
Severity 3 Benign Error: An isolated or benign error, or a Product
enhancement request. This is an error which does not
significantly affect the functionality of the Product,
disables only certain non-essential functions and does not
materially impact system performance.
RESPONSE LEVELS:
Response Level Description
-------------- ------------------------------------------------------------
1st Level Telephone acknowledgment of receipt of report of an error
or problem.
2nd Level Patch or work around (Program or manual), or temporary
release or update release, which allows the user to
continue to use all functions in the Products in all
material respects.
Final Level Official fix, update or release.
PROBLEM RESOLUTION
Upon receipt from the distributor of a report of an error or problem,
Sagent shall take prompt corrective action to remedy the reported error
or problem as follows within the following time periods.
Classification 1st Level Final Level
-------------- --------- -----------
Severity 1 under 1 hour Worked on continuously with best efforts
to provide an official fix or workaround
within 48 hours.
Severity 2 under 2 hours Permanent correction in next scheduled
release, unless otherwise agreed.
Severity 3 within 2 hours Permanent correction when the particular
program in next modified, unless otherwise
agreed.
Distributor Maintenance Services will also include: Maintenance Releases, in
which Supplier will provide copyrighted in-line releases and workarounds as
available; Upgrades, in which Supplier will provide new product releases
(signified by a change in the version number) as substitutes for covered
Products; and other generally available Technical Materials. Note that
Maintenance Releases and Upgrades, where applicable, may not be used to increase
the total number of copies of the Products. After upgrade or maintenance this
agreement will only apply to the upgraded or maintained versions of a Products;
Distributor agrees to destroy or archive (but not use or transfer) the prior
version. Except as otherwise stated in this Agreement, Product upgrades to new
platforms are generally not available free of charge.
Supplier warrants that it will undertake all reasonable efforts to provide
technical assistance under this Agreement and to rectify or provide solutions
to problems where the Products does not function as described in the Products
documentation, but Supplier does not guarantee that all problems will be solved
or that any item will be error-free. Supplier will provide Distributor with
substantially the same level of service throughout each annual Maintenance Term
of this Agreement. Supplier may from time to time,
94
however, discontinue Products or versions, and stop supporting Products or
versions within a reasonable time after discontinuance, or otherwise discontinue
any support services. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
CONDITIONS OR PROMISES TO DISTRIBUTOR OR ANY THIRD PARTY, EXPRESS OR IMPLIED,
RELATED TO THE SOFTWARE OR ANY SERVICES SUPPLIER MAY PROVIDE, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE DEALING OR USAGE. EXCEPT
AS PROVIDED IN THIS AGREEMENT, ALL MATERIALS AND SERVICES ARE PROVIDED "AS IS."
The Products, Upgrades, Maintenance Releases, and Technical Materials are
Supplier's copyrighted property, and may not be copied, distributed, or
transferred, or otherwise used except as Supplier has expressly permitted in
this Agreement or otherwise in writing.
95
EXHIBIT J
SAGENT'S MAINTENANCE AND TECHNICAL SUPPORT GUIDELINES AND AGREEMENTS
96
Sagent Technology
Professional Support
One Year Agreement
SAGENT TECHNOLOGY ("WE") WILL PROVIDE YOU THE PROFESSIONAL SUPPORT SERVICES
LISTED BELOW, FOR THE SOFTWARE AND PERSONS INDICATED.
Available Support Services will include telephone support, in which we will
answer technical questions from designated persons about the installation
and use of covered Software products; Maintenance Releases, in which we
will provide our copyrighted in-line releases and workarounds as available
(we will not undertake individual fixes for you); Upgrades, in which we
will provide new product releases (signified by a change in the version
number) as substitutes for covered Software; and other generally available
Technical Materials. Note that Maintenance Releases and Upgrades, where
applicable, may not be used to increase the total number of copies of the
Software. After upgrades or maintenance this agreement will only apply to
the upgraded or maintained versions of a Software product; you agree to
destroy or archive (but not use or transfer) the prior version.
YOU WILL PAY US THE APPLICABLE SUPPORT FEES.
Support Fees must be prepaid, unless you have established credit terms with
us.
WE MAY CHANGE OUR AVAILABLE PRODUCT SUPPORT SERVICES FROM TIME TO TIME.
We will undertake reasonable efforts to provide technical assistance under
this agreement and to rectify or provide solutions to problems where the
Software does not function as described in the Software documentation, But
we do not guarantee that all problems will be solved or that any item will
be error-free. We will provide you with substantially the same level of
service throughout the term of this Agreement. We may from time to time,
however, discontinue Software products or versions, and stop supporting
Software products or versions 1 year after discontinuance, or otherwise
discontinue any support services. THE FOREGOING WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES, CONDITIONS OR PROMISES TO YOU OR ANY THIRD PARTY, EXPRESS
OR IMPLIED, RELATED TO THE SOFTWARE OR ANY SERVICES WE MAY PROVIDE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUTE,
LAW OR TRADE DEALING OR USAGE. EXCEPT AS PROVIDED ABOVE, ALL MATERIALS AND
SERVICES ARE PROVIDED "AS IS." We are not liable for incidental, special or
consequential damages for any reason (including loss of data or other
business or property damage), even if foreseeable. Our liability in all
events for any damages, howsoever caused, will not exceed the applicable
fees that you have paid us.
THIS PROFESSIONAL SUPPORT AGREEMENT WILL BE EFFECTIVE FOR ONE YEAR.
You and we may extend or terminate this agreement as provided below. At the
end of any one-year term, you may renew this agreement with our consent
under the terms of the Professional Support Agreement then in effect by
paying the Support Fees in effect at that time. Either you or we may
terminate this agreement for material breach, including nonpayment, at any
time; in the absence of material breach by Sagent, Support Fees are not
refundable. This is the full and final agreement between you and us, and
supersedes any promises, representations or agreements relating to the
subject of this agreement. This agreement may only be changed if you and
our authorized representative do so in writing. No inconsistent,
additional, or preprinted terms on your purchase order or other business
form will apply. You may not assign this agreement without our written
consent. Any unauthorized assignment terminates this agreement
automatically. The Software, Upgrades, Maintenance Releases, and Technical
Materials are our copyrighted property, and may not be copied, distributed,
or transferred, or otherwise used except as we have expressly permitted in
the relevant license agreement (the terms of which are incorporated into
this agreement by reference) or otherwise in writing.
SOFTWARE COVERED:
Software Name & Version Number of Copies
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
PERSONS COVERED:
Person(s):
Name Phone Number
___________________________________________________________
_________________________________( )_____________________
_________________________________( )_____________________
SAGENT TECHNOLOGY, INC.
Signed: _____________________________________________________
Name: _______________________________________________________
Title: ______________________________________________________
Effective Date: _____________________________________________
You: ________________________________________________________
Signed: _____________________________________________________
Name: _______________________________________________________
Title: ______________________________________________________
Address: ____________________________________________________
SAGENT TECHNOLOGY CONFIDENTIAL 02/24/98
97
[SAGENT LOGO]
SAGENT TECHNOLOGY
PROFESSIONAL SUPPORT PROGRAM REFERENCE GUIDE
Sagent Professional Support provides you with fast, expert technical support for
all Sagent products. It allows you the ease and convenience of communicating via
the phone or electronically, and a well defined escalation path that ensures
your technical issues will receive the proper attention.
This reference guide is an outline to the services currently available under
the Professional Support program. Use this guide to determine the best way to
get the most from this service.
TECHNICAL SUPPORT SERVICES
The Professional Support program is designed to give you access to Sagent
Technology's Technical Support Analysts. These analysts are available to insure
the continued operation of your Sagent product. This includes working with a
Sagent system that has gone down, assisting with the initial setup of new
systems, and other problems that arise from the use of our products. Technical
Support Services does not include the development of custom code, or detailed
product training.
DESIGNATED PROFESSIONAL SUPPORT CONTACTS
Maintaining a clear line of communication between your organization and
Sagent's Technical Support department is key to making sure you get the most
from the Professional Support program. As such, it is important that you
designate specific individuals within your organization that become the primary
contacts for working with Sagent Technical Support. These individuals, who are
familiar with the technical workings of your company's systems, help by
managing the flow of information to the Support Analysts to insure that
responses are focused on the problem at hand. The number of contacts within
your organization that have access to Sagent Technical Support is specified in
your support agreement, and is determined by you based on your need.
WORKING WITH TECHNICAL SUPPORT
Sagent Technical Support tracks your issues based on an incident model. While
we do not limit you to a specific number of incidents, we do use incidents to
make sure that each issue that you have is resolved to the best of our ability.
An incident is defined as a single support issue that can not be broken down
into
Sagent Technology Page 1
98
smaller support issues. Each of these incidents is tracked individually, and
can be referenced by you when you contact us.
CONTACTING SAGENT TECHNICAL SUPPORT BY PHONE
Use the phone to contact Sagent Technical Support whenever you have a
time-critical or business-critical problem. Sagent Technical Support is
available from 6:00 AM to 5:00 PM PST. Monday through Friday. If we are unable
to answer your call immediately, you will be given the option to leave a voice
mail message. In the message, please be sure to give us your name, company
name, a description of the problem, and a phone number that you can be reached
at. All calls that go to voice mail will be responded to within two business
hours. If we fail to connect with you on the return call, we will leave a
message (if possible) with an appropriate time to follow up.
CONTACTING SAGENT TECHNICAL SUPPORT BY ELECTRONIC MAIL
For problems that are not time-critical, you can contact us via the Internet at
Xxxxxxxxxxx@XxxxxxXxxx.xxx. We will respond to all mail messages within one
business day of the time it arrives at Sagent Technical Support. Please be sure
to include a full description of the problem, your name, your company's name,
and a return e-mail address.
ESCALATION PROCESS
Step 1 - All new technical support issues are handled initially by our support
analysts. Our support analysts are trained to deal with the majority
of all support issues, and most support issues are resolved at this
step.
Step 2 - If an issue comes up that cannot be handled by the support analyst,
it is given one of the following priorities.
A) CRITICAL - For business outages, or issues, that have a serious
customer impact which threatens future productivity.
B) IMPORTANT - For issues that do not have a significant current
impact on customer productivity.
Step 3 - CRITICAL issues are immediately escalated to Sagent's upper management
team to determine the proper course of action.
IMPORTANT issues are escalated to an escalation review committee,
which meets regularly to determine the proper course of action for
these escalation's.
Step 4 - The course of action determined in Step 3 is communicated to the
customer, and an estimated time to complete is given.
Sagent Technology Page 2
99
Sagent Technology
Premium Support
One Year Agreement
SAGENT TECHNOLOGY ("WE") WILL PROVIDE YOU THE PREMIUM SUPPORT SERVICES LISTED
BELOW, FOR THE SOFTWARE AND PERSONS INDICATED.
Available Support Services may include 24 hours, seven days a week
telephone support (telephone support during the holidays should be arranged
one week in advance of the holiday), in which we will answer technical
questions from designated persons about the installation and use of covered
Software products; Maintenance Releases, in which we will provide our
copyrighted in-line releases and workarounds as available (this does not
include full Software products or Upgrades; we will not undertake
individual fixes for you); Upgrades, in which we will provide new product
releases (signified by a change in the version number) as substitutes for
covered Software; and other generally available Technical Materials. Note
that Maintenance Releases and Upgrades, where applicable, may not be used
to increase the total number of copies of the Software. After upgrade or
maintenance this agreement will only apply to the upgraded or maintained
versions of a Software product; you agree to destroy or archive (but not
use or transfer) the prior version. Software upgrades are generally not
available free of charge.
YOU WILL PAY US THE APPLICABLE SUPPORT FEES.
Support Fees must be prepaid, unless you have established credit terms with
us.
WE MAY CHANGE OUR AVAILABLE PRODUCT SUPPORT SERVICES FROM TIME TO TIME.
We will undertake reasonable efforts to provide technical assistance under
this agreement and to rectify or provide solutions to problems where the
Software does not function as described in the Software documentation, but
we do not guarantee that all problems will be solved or that any item will
be error-free. We will provide you with substantially the same level of
service throughout the term of this Agreement. We may from time to time,
however, discontinue Software products or versions, and stop supporting
Software products or versions within a reasonable time after
discontinuance, or otherwise discontinue any support services. THE
FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR
PROMISES TO YOU OR ANY THIRD PARTY, EXPRESS OR IMPLIED, RELATED TO THE
SOFTWARE OR ANY SERVICES WE MAY PROVIDE, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE DEALING OR USAGE.
EXCEPT AS PROVIDED ABOVE, ALL MATERIALS AND SERVICES ARE PROVIDED "AS IS."
We are not liable for incidental, special or consequential damages for any
reason (including loss of data or other business or property damage), even
if foreseeable. Our liability in all events for any damages, howsoever
caused, will not exceed the applicable fees that you have paid us.
THIS PREMIUM SUPPORT AGREEMENT WILL BE EFFECTIVE FOR ONE YEAR.
You and we may extend or terminate this agreement as provided below. At the
end of any one-year term, you may renew this agreement with our consent
under the terms of the Premium Support Agreement then in effect by paying
the Support Fees in effect at that time. Either you or we may terminate
this agreement for material breach, including nonpayment, at any time; in
the absence of material breach by Sagent, Support Fees are not refundable.
This is the full and final agreement between you and us, and supersedes any
promises, representations or agreements relating to the subject of this
agreement. This agreement may only be changed if you and our authorized
representative do so in writing. No inconsistent, additional, or preprinted
terms on your purchase order or other business form will apply. You may not
assign this agreement without our written consent. Any unauthorized
assignment terminates this agreement automatically. The Software, Upgrades,
Maintenance Releases, and Technical Materials are our copyrighted property,
and may not be copied, distributed, or transferred, or otherwise used
except as we have expressly permitted in the relevant license agreement
(the terms of which are incorporated into this agreement by reference) or
otherwise in writing.
SOFTWARE COVERED:
SOFTWARE NAME AND VERSION NUMBER OF COPIES
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SOFTWARE AND PERSONS COVERED:
PERSON(S):
NAME PHONE NUMBER
--------------------------------------------------------------------------------
( )
--------------------------------------------------------------------------------
( )
--------------------------------------------------------------------------------
SAGENT TECHNOLOGY, INC.
Signed: ________________________________________________________________________
Name: __________________________________________________________________________
Title: _________________________________________________________________________
Effective Date: ________________________________________________________________
You: ___________________________________________________________________________
Signed: ________________________________________________________________________
Name: __________________________________________________________________________
Title: _________________________________________________________________________
Address: _______________________________________________________________________
Sagent Technology Confidential 02/24/98
100
[LOGO]
SAGENT TECHNOLOGY
PREMIUM SUPPORT PROGRAM REFERENCE GUIDE
Sagent Premium Support is provided for our customers that require more security
when implementing Sagent's products in mission critical environments. In order
to provide this security, the Premium Support Program provides round the clock
access to Sagent Technical Support team via the phone, as well as electronic
support via the Internet. Sagent's Premium Support Program also includes an
escalation process that is designed to make sure technical issues receive the
proper attention.
This reference guide is an outline to the services currently available under the
Premium Support program. Use this guide to determine the best way to get the
most from this service.
TECHNICAL SUPPORT SERVICES
The Professional Support Program is designed to give you access to Sagent
Technology's Technical Support Analysts 24 hours a day, seven days a week. These
analysts are available to insure the continued operation of your Sagent product.
This includes working with a Sagent system that has gone down, assisting with
the initial setup of new systems, and other problems that arise from the use of
our products. Technical Support Services does not include the development of
custom code, or detailed product training.
DESIGNATED PROFESSIONAL SUPPORT CONTACTS
Maintaining a clear line of communication between your organization and Sagent's
Technical Support department is key to making sure you get the most from the
Professional Support program. As such, it is important that you designate
specific individuals within your organization that become the primary contacts
for working with Sagent Technical Support. These individuals, who are familiar
with the technical workings of your company's systems, help by managing the flow
of information to the Support Analysts to insure that responses are focused on
the problem at hand. The number of contacts within your organization that have
access to Sagent Technical Support is specified in your support agreement, and
is determined by you based on your need.
WORKING WITH TECHNICAL SUPPORT
Sagent Technical Support tracks your issues based on an incident model. While we
do not limit you to a specific number of incidents, we do use incidents to
Sagent Technology Page 1
101
make sure that each issue that you have is resolved to the best of our ability.
An incident is defined as a single support issue that can not be broken down
into smaller support issues. Each of these incidents is tracked individually,
and can be referenced by you when you contact us.
CONTACTING SAGENT TECHNICAL SUPPORT BY PHONE
Use the phone to contact Sagent Technical Support whenever you have a
time-critical or business-critical problem. Sagent Technical Support is
available to Premium Support customers 24 hours a day, seven days a week.
During regular business hours your calls are given priority in the phone queue,
if we are unable to answer your call immediately, you will be given the option
to leave a voice mail message. Phone calls placed outside regular business
hours automatically go to voice mail, and a designated Support Analyst is
paged. In either case voice mail messages are responded to within two hours. In
the message, please be sure to give us your name, your companies name, a
description of the problem, and a phone number that you can be reached at. If
we fail to connect with you on the return call, we will leave a message (if
possible) with an appropriate time to follow up. Sagent Technology's normal
business hours are Monday through Friday from 6:00 AM to 5:00 PM PST, excluding
some holidays.
CONTACTING SAGENT TECHNICAL SUPPORT BY ELECTRONIC MAIL
For problems that are not time-critical, you can contact us via the Internet at
Xxxxxxxxxxx@XxxxxxXxxx.xxx. We will respond to all mail messages within one
business day of the time it arrives at Sagent Technical Support. Please be sure
to include a full description of the problem, your name, your companies name,
and a return e-mail address.
ESCALATION PROCESS
Step 1 - All new technical support issues are handled initially by our
support analysts. Our support analysts are trained to deal with the
majority of all support issues, and most support issues are resolved
at this step.
Step 2 - If an issue comes up that can not be handled by the support analyst,
it is given one of the following priorities.
A) CRITICAL - For business outages, or issues, that have a serious
customer impact which threatens future productivity.
B) IMPORTANT - For issues that do not have a significant current
impact on customer productivity.
Step 3 - CRITICAL issues are immediately escalated to Sagent's upper
management team to determine the proper course of action.
IMPORTANT issues are escalated to an escalation review committee,
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which meets regularly to determine the proper course of action for
these escalations.
Step 4 - The course of action determined in Step 3 is communicated to the
customer, and an estimated time to complete is given.
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EXHIBIT K
METHODS AND STANDARDS OF QUALITY FOR PRODUCTION
To be added upon availability
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TRADE XXXX LICENSE
This Trademark License Agreement (the "AGREEMENT") is entered into on April 8,
1998 (the "EFFECTIVE DATE") between Sagent Technology, Inc. a California
corporation with offices at 0000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, XX
00000 ("OWNER") and Magnolia II Vermogensverwaltung GmbH with offices at c/o
Buro Xxxxx Xxxx, Gut Keferloh 1 B, D - 85630 Grasbrunn/Munich, Germany ("USER").
ARTICLE 1 RECITALS
1.1 The Owner owns or is the Licensee of Trade Marks used to identify its
products and Services in the software industry.
1.2 The User has rights to distribute the Owner's Software and Services in
the Territory and desires to obtain limited, non exclusive rights to use
the Trade Marks with the Software and Services for the term of this
Agreement.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
ARTICLE 2 DEFINITIONS
In this Agreement the following terms shall bear the following meanings:
2.1 "DISTRIBUTION AGREEMENT" shall mean the Exclusive Software Distribution
Agreement executed on April 8, 1998 between Owner and User.
2.2 "METHODS" shall mean the Methods set out in Exhibit D hereto which
relate to the creation and duplication of the Software and Services
for distribution to third party end users.
2.3 "RULES" shall mean the rules which are set out in Exhibit B hereto
which govern the manner in which the Trade Marks may be displayed.
2.4 "SERVICES" shall mean the services and related documentation further
described in Exhibit C hereto and which are provided by User which may
be identified through use of the Trade Marks.
2.5 "SOFTWARE" shall mean the software and related documentation further
described in Exhibit C hereto and which are provided by User which may
be identified through use of the Trade Marks.
2.6 "STANDARD OF QUALITY" shall mean the standards of quality, further
described in Exhibit D hereto, which relate to the manner of display of
the Trade Marks with the Software and Services.
2.7 "TERRITORY" shall be the territory set forth in the Distribution
Agreement.
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2.8 "TRADE MARKS" shall mean the trademarks set out in Exhibit A hereto.
3 USE OF TRADE MARKS
3.1 PERMISSION TO USE. The Owner hereby grants the User for the term of
this Agreement a license to use the Trade Marks in the Territory as
trade marks upon or in relation to the Software and Services and the
advertising and licensing thereof provided that the User complies with
the terms of this Agreement. User agrees to follow the Rules which
govern the manner in which the Trade Marks are displayed. Owner hereby
also agrees to permit the User to use the Trade Xxxx "Sagent" in its
company name for the term of this Agreement. Such permission will not
extend to any subsidiaries or affiliates of User. The parties intend
that the company name will be "Sagent Technology GmbH". The User will
not use a different company name without the Owner's written
permission which shall not be unreasonably withheld.
3.2 Such license is non exclusive and non transferable.
3.3 The User undertakes not to use any of the Trade Marks whether by
themselves or as part of any other name for identification of Software
or Services or other products or services not manufactured or provided
by the Owner.
3.4 STANDARD OF QUALITY. The permission to use the Trade Marks shall
apply only to the Software and Services made according to the Methods
disclosed hereunder provided that any such Software and Services
comply with the Standard of Quality set out in Exhibit D.
4. SPECIMEN SOFTWARE AND INSPECTION
4.1 At Owner's request, User shall, at its expense, submit to Owner
copies of the Software and any related documentation and related
collateral materials to Owner for inspection and testing. Such testing
will be completed 10 business days after it is received by Owner.
4.2 User agrees to immediately destroy all materials which contain any of
the Trade Marks which do not conform to the terms and conditions of
this Agreement.
4.3 User shall permit Owner or its agent or representative, at all
reasonable times to enter any place where the Software and related
materials with the Trade Marks are stored for the purposes of
inspecting and testing the same and of checking the method of
manufacture, processing, packaging, or storing, in order to ascertain
that they attain the Standard of Quality.
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5. APPLICATION OF TRADE MARKS
5.1 User shall identify all the Software and Services manufactured or
provided and licensed hereunder by using the Trade Marks permanently
affixed to the Software or the materials related to provision of the
Services. User shall supply to the Owner copies, specimens, or
representations of each different depiction of each Trade Xxxx the
User proposes to use. Users shall comply with the Rules and the User
shall not use any other or additional trade xxxx upon or in relation
to the Software or Services except with the prior written consent of
the Owner.
6. WARRANTY
6.1 User shall not knowingly use or consent to the use of a Trade Xxxx
except in relation to the Software and the Services which must in all
instances comply with the Standard of Quality.
7. PRESERVATION OF GOODWILL
7.1 User acknowledges that Owner is, and will remain, the sole and
exclusive owner of all goodwill associated with the Trade Marks. User
recognizes the value of the goodwill associated with the Trade Marks,
and acknowledges that such value is owned by and belongs solely and
exclusively to Owner. User waives any right it may have to receive any
compensation or reparations prior to, upon, or following termination
or expiration of this agreement under the law of the territory or
otherwise. Owner will not be liable to User on account of termination
or expiration of this Agreement, or otherwise, for reimbursement or
damages for the loss of goodwill, prospective profits or anticipated
income, or on account of any expenditures, investments, leases or
commitments made by User or for any other reason whatsoever based upon
or growing out of such termination or expiration or otherwise. User
acknowledges that (i) it has no expectation and has received no
assurances that any investment by it in the promotion of products
utilizing the Trade Marks will be recovered or recouped or that it
will obtain any anticipated amount of profits by virtue of this
Agreement, and (ii) it will not have or acquire by virtue of this
Agreement or otherwise any vested, proprietary or other right in the
Trade Marks or in goodwill created in the Trade Marks. User
acknowledges that the provisions of this section are an essential
element of this agreement.
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8. THE TERRITORY
8.1 For the protection of the Owner's rights in the corresponding Trade
Marks in other countries, the User shall not export products bearing
any Trade Xxxx to any country outside of the Territory without first
obtaining from the Owner written permission to do so.
9. RECOGNITION OF OWNERSHIP
9.1 User recognizes that the Owner is the owner in the Territory of the
Trade Xxxx and of all goodwill attaching to the business in the
Software and Services in respect of which the Trade Xxxx is used and
agrees that the Trade Xxxx shall remain vested in the Owner both
during the term of this Agreement and thereafter in the Territory.
The User agrees never to challenge the validity or Ownership of the
Trade Xxxx.
9.2 The User shall from time to time include in its advertisements in the
press and elsewhere a statement to the effect that the Trade Marks
are the Trade Marks of the Owner, naming it and giving its address.
9.3 The User shall, to the extent requested by the Owner, or on all
labels or containers used in connection with the sale or license of
the Software and Services include a notice to the effect that the
Trade Marks are the trade marks of the Owner.
10. REGISTRATION OF TRADE XXXX IN THE TERRITORY
10.1 In the event that the Owner decides to apply for registration of any
of the Trade Marks in the Territory, or a part thereof the User will
render to the Owner all reasonable assistance towards the obtaining
of a registration.
10.2 If at the time when the Owner desires to apply for registration or as
so applied the User is deemed in law to be the proprietor of the
Trade Xxxx, so as to make it necessary for the application to be made
or proceeded with in the name of the User, the User will at the
request and expense of the Owner, make or proceed with such
application and do all acts and execute all documents necessary for
obtaining registration to the benefit of the Owner. As soon as is
possible, the User will transfer any and all rights it may have in
the Trade Marks to the Owner.
10.3 On the registration of any of the Trade Marks becoming vested in the
Owner, whether under 10.1 or 10.2 above, the User shall be entitled
to the like rights under such registration as are granted by this
Agreement, and the Owner shall at the request and expense of the User
do all acts and execute all documents for establishing the User as a
User thereunder and where applicable for the registration of the
User's permitted user at the appropriate trade marks authority.
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10.4 After each of the Trade Marks have been registered, the User shall
where practicable, (and in respect of goods to be sold in a country
where the Trade Xxxx is registered) in the representations of the
Trade Xxxx used by the User in relation to the said Software and
Services to be sold in the Territory append to, or place adjacent to,
or related to, the Trade Xxxx, such inscription as is usual or proper
form indicating that the Trade Xxxx is registered.
11. INFRINGEMENT OR PASSING OFF
11.1 In the event that the User learns of any passing off by another of
any goods or services of the same or similar description and function
as the said Software or Services whether by the use of a similar
trade xxxx, or imitation or otherwise, or if the User shall learn of
any infringement of any trade xxxx registration which may be obtained
in respect of the Trade Marks, it shall give notice the Owner giving
such details as are available. With the User's advice and assistance,
Owner will determine the best course to pursue but the Owner shall
not be bound to institute legal proceeding at its own expense.
12. CESSATION OF RIGHT TO USE
12.1 On termination or expiration of this Agreement the User shall cease
to have any right to use the Trade Marks or to represent itself as
being connected with the said Software and Services or with the Owner
(unless for some other reason it be the fact) and the User undertakes
promptly to remove all indications of the Trade Xxxx on the Software
and Services, its premises, its invoices, its quotations and other
documents and labels. The User shall not thereafter, without the
prior written consent of the Owner, use the Trade Marks or any trade
xxxx which so nearly resembles any of the Trade Marks, as to be
likely to deceive or cause confusion, and it will procure that its
directors, officers, and employee shall not use the Trade Marks or any
other trade xxxx so nearly resembling the Trade Marks in respect of
any products or services.
12.2 Any registration of the User as a permitted user of a registered
Trade Xxxx hereunder shall be expunged on termination or expiration
of this Agreement and the Owner shall be entitled to take all
necessary steps to that end and the User shall cooperate to achieve
this result.
12.4 On termination or expiration of this Agreement the User shall cease
to have any right to use the Trade Xxxx "Sagent" in its company name
and the User undertakes promptly to change its company name to a new
name not including reference to "Sagent". The User shall not
thereafter use the Trade Xxxx "Sagent" or any Trade Xxxx in its
company name which so nearly resembles a Trade Xxxx, as to be likely
to deceive or cause confusion, and it will procure that its
directors, officers, and employee shall not do so.
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13. PAYMENT
13.1 The User shall pay to the Owner an annual fee of US$1.00 during the
life of this Agreement. Payment shall be due on the first day of
December of each year.
13.2 Any amounts payable under this Agreement are net amounts and are
payable in full to Owner. User is responsible for all taxes, duties
and levies.
14. ANCILLARY
14.1 NO ASSIGNMENT: The benefit of this Agreement shall be personal to the
User who shall not without the prior consent in writing of the Owner
mortgage, or charge the same to any third party nor assign the same,
or part with any of its rights or obligations hereunder, nor (except
as hereinafter provided) purport to grant any sublicense in respect
of the Trade Marks. The Owner shall not be required to give any
consent to assign the rights granted hereunder to any person, firm,
or corporation.
14.2 INDEMNITY: Owner will defend at its expense any action brought
against User to the extent it is based on a claim that a Trade Xxxx,
when used within the scope of this Agreement, infringes a trademark
in any country of the Territory in which such Trade Xxxx has been
registered by Owner, and Owner will pay any settlements and any
costs, damages and attorney's fees finally awarded against User in
such action which are attributable to such claim; provided that the
foregoing obligation will be subject to User notifying Owner promptly
in writing of the claim, giving Owner the exclusive control of the
defense and settlement thereof, and providing all reasonable
assistance to Owner in connection therewith.
14.3 GOVERNING LAW: The rights and obligations of the parties under this
Agreement shall not be governed by the U.N. Convention on Contracts
for the International Sales of Goods; rather such rights and
obligations shall be governed and construed under the laws of the
State of California, without reference to conflict of laws and
principles. The jurisdiction of the courts of Germany is expressly
excluded except to the extent that Owner may seek any equitable
remedy to which it may be entitled by reason of User's breach of this
Agreement, from the relevant court in Germany or any other court.
Distributor acknowledges that its breach of this agreement may cause
irreparable harm to Sagent, for which Sagent may obtain injunctive
relief.
14.4 ARBITRATION: In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or
termination hereof (a "Dispute"), the parties agree to resolve the
same as follows:
(a) The parties to the Dispute shall initially attempt to resolve it
through consultations and negotiations.
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(b) If the Dispute has not been resolved amicably within thirty (30) days
after any party provides notice thereof, unless the parties agree
otherwise, the Dispute shall be resolved by final and binding
arbitration in the City and county of Zurich, Switzerland, in
accordance with the Arbitration Rules of the United Nations Commission
on International Trade Law ("UNCITRAL"), as in effect on the date of
this Agreement. The language to be used in the arbitration proceeding
shall be English. The International Chamber of Commerce shall serve as
the appointing authority. The arbitrators shall render a written award
stating the reasons for the decision. Judgment on an arbitration award
or decision may be entered by any court of competent jurisdiction, or
application may be made to such a court for judicial acceptance of the
award or decision and any appropriate order, including enforcement.
(c) Each of the parties hereto consents to the submission of any Dispute
for settlement by final and binding arbitration in accordance with
paragraph (b) above. Such consent shall satisfy the requirements for
an "agreement in writing" pursuant to Article II of the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitration
Awards, done at New York on June 10, 1958.
(d) Each of the parties hereby undertakes to carry out without delay the
provisions of any arbitral award or decision.
14.5 NOTICES: All notices sent to the other party concerning this agreement
shall be in English and addressed to the party at the address set out
at the beginning of the Agreement. All notices sent to Owner shall be
marked to the attention of Sagent.
15. TERMINATION
15.1 NON PAYMENT OR INSOLVENCY: This Agreement may be terminated by either
party, on notice to the other party upon (a) the institution by or
against the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of the other
party's debts where such proceedings are not stayed or withdrawn
within thirty (30) days, or upon (b) the other party's making an
assignment for the benefit of creditors, or upon (c) the other party's
dissolution or ceasing to conduct business in the normal course.
15.2 This Agreement shall remain in effect for the same period as the
Distribution Agreement and no longer.
15.3 BREACH BY EITHER PARTY: This agreement may be terminated by either
party hereunder if the other party fails to perform or observe any of
the terms hereof on its part to be performed and observed and fails to
remedy such breach within thirty days of a notice from the other party
to remedy the same giving adequate particulars of the alleged default
and of the intention of the party serving the notice to terminate this
Agreement under this clause unless such default is made good or
remedied within thirty (30) days. If either party waives
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its rights due to a breach of any provision of this Agreement such
waiver shall not be construed as a continuing waiver of other
breaches of the same or other provisions. User's agreement with any
third party to distribute software and or services which are
competitive with the Software and Services set out in this Agreement
shall be deemed to be a breach of this Agreement and shall entitle
Owner to terminate this Agreement on thirty days notice.
15.3.1 SALE TO THIRD PARTY: This Agreement shall terminate on the sale of
User to any third party.
15.4 SAVING FOR ACCRUED RIGHTS: Any termination of this Agreement shall be
without prejudice to the rights of either party against the other
which may have accrued up to the date of such termination and
notwithstanding termination, the obligations of each party not to
disclose information received in confidence from the other party
shall remain in effect.
15.5 RETURN OF MATERIALS: At the termination or expiration of this
Agreement, User shall immediately return to Owner all materials which
contain any of the Trade Marks or have had a Trade Xxxx affixed.
16. ENTIRE AGREEMENT.
16.1 This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter herein and merges all
prior agreements, discussions, and understandings between them. No
modification of or amendment to the Agreement, nor any waiver of any
rights under this Agreement shall be effective unless in writing
signed by an officer of Owner and User. The terms and conditions of
this Agreement shall supersede the terms and conditions of User's
purchase order, if any.
17. LIMITATION OF LIABILITY:
17.1 Regardless of whether any remedy fails of its essential purpose, in
no event will owner be liable for incidental, indirect, special or
consequential damages, notwithstanding being aware of the possibility
of such damages.
18. SEVERABILITY.
18.1 If one of the provisions of this Agreement should be or become
invalid, or if this Agreement should have an omission, this shall not
affect the validity of the remaining provisions. In such an event,
the parties are obliged to assist in the incorporation of provisions
which form the closest possible economic equivalent to that which the
parties would have agreed if they had been aware of the invalidity or
if they had considered the point.
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IN WITNESS THEREOF THE PARTIES HERETO HAVE CAUSED THIS INSTRUMENT TO BE DULY
EXECUTED BY THEIR REPRESENTATIVES.
"OWNER" "USER"
SAGENT
---------------------------
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXXX
--------------------------- ------------------------
Authorized Representative
Name: XXXXXX X. XXXXXXXX Name: XXXX XXXXXXX
--------------------------- ------------------------
Title: EVP OF Sales Title: General Manager
--------------------------- ------------------------
Date: April 8, 1998 Date: April 8th, 1998
--------------------------- ------------------------
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The terms and conditions of this Agreement
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EXHIBIT A
THE TRADE MARKS
Sagent: German Trade Xxxx Registration number:
List of Trade Marks:
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EXHIBIT B
THE RULES RELATING TO THE DISPLAY OF THE TRADE MARKS
The following Trade Marks must always have the first usage in a
document accompanied by the symbol "TM".
List of Trade Marks:
The Sagent corporate logo will be provided to User in electronic and
printed form.
Samples of each Trade Xxxx are attached
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EXHIBIT C
SOFTWARE
Server: Data Movement Server
Web Link Server
Data Access Server
Power User Tools: Sagent Administration Tool
Sagent Design Studio Tool
Sagent Automation Tool
End-User Tools: Information Studio Tool
Analysis Tool
Reporting Tool
Crystal Reporting Tool
Statistical Tool
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EXHIBIT D
METHODS AND STANDARD OF QUALITY
To be added upon availability
13
