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EXHIBIT 10.35
NONEXCLUSIVE INTERNATIONAL SOFTWARE
VALUE ADDED RESELLER ("VAR") AGREEMENT
This Agreement, dated December 8th 1997, is made between Opalis SARL
("Licensor"), a French corporation doing business at 00, Xx Xxxxxxx 00000 Xxxxx,
Xxxxxx, and Sagent Technology, Inc. ("Reseller"), a California corporation doing
business at 0000 X. Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000.
RECITALS
A. Licensor has rights to certain computer software and related documentation.
B. Reseller wishes to have certain nonexclusive rights to market and distribute
such software and documentation worldwide in combination with Reseller's
products.
THEREFORE, Licensor and Reseller agree as follows:
1. DEFINITIONS.
1.1 End User. "End User" means a customer of Reseller who is authorized
by an end user license agreement to use a Product for the End User's internal
business purposes.
1.2 Effective Date. "Effective Date" means the date first written
above.
1.3 Intellectual Property Rights. "Intellectual Property Rights" means
patent rights (including but not limited to rights in patent applications or
disclosures and rights of priority), copyright (including but not limited to
rights in audiovisual works and moral rights), trade secret rights, and any
other intellectual property rights recognized by the law of each applicable
jurisdiction.
1.4 Marks. "Marks" means Licensor's trademarks, trade names, service
marks, and/or service names specified in Exhibit A.
1.5 Reseller Products. "Reseller Products" means the computer software
and/or hardware and related documentation specified in Exhibit B, which are
distributed by Reseller in combination with a Product.
1.6 Products. "Products" means the computer software and related
documentation listed on Exhibit A including but not limited to any modifications
or additions provided to Reseller by Licensor.
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1.7 Source Code. "Source Code" means software in human-readable form,
including programmers' comments, data files and structures, header and includes
files, macros, object libraries, programming tools not commercially available,
technical specifications, flowcharts and logic diagrams, schematics, annotations
and documentation reasonably required or necessary to enable an independent
third party programmer with reasonable programming skills to create, operate,
maintain, modify and improve the software without the help of any other person.
Data files containing Source Code must be in standard ASCII format and be
readable by a text editor.
1.8 Territory. "Territory" means the world.
2. LICENSES.
2.1 Grant of License. Subject to the terms of this Agreement, Licensor
hereby grants Reseller a nonexclusive license to market, distribute directly or
indirectly, and sublicense the Products in object code form only, and any
derivative works thereof to End Users in the Territory solely for internal use
in conjunction with Reseller Products.
2.2 Added Value. In the exercise of Reseller's rights under this
Agreement, Reseller will always market, distribute, and sublicense the Products
in combination with Reseller Products.
2.3 Reproduction. Subject to the terms of this Agreement, Licensor
grants Reseller a nonexclusive license during the term of this Agreement to
reproduce Products for distribution in accordance with Section 2.2.
2.4 Documentation. Subject to the terms of this Agreement, Licensor
grants Reseller a nonexclusive license during the term of this Agreement to use,
modify, create derivative works of and distribute Licensor's documentation for
the Products from time to time. Licensor will make available Licensor's End User
documentation to Reseller, as it is updated and modified from time to time,
without additional charge. Reseller will provide copies of such modifications to
Licensor upon Licensor's request.
3. LOCALIZATION PROCEDURE
3.1 Localizations. To the extent Reseller desires to localize the
Products and Licensor concurs, Licensor will cooperate with Reseller in the
adaptation of the Products for use in areas within the non English speaking
portions of the Territory, including but not limited to translating Product
documentation into any language of the Territory (collectively,
"Localizations").
4. LICENSE RESTRICTIONS.
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4.1 No Reverse Engineering. Reseller will not disassemble, decompile,
or reverse engineer any Products, except as provided in Section 2.4 above and as
may be expressly authorized by Licensor in writing.
4.2 No Sale of Services. Reseller will not use the Products in any
manner to provide service bureau, time sharing, or other computer services to
third parties.
4.3 Limited Rights. Reseller's rights in the Products will be limited
to those expressly granted in this Agreement.
5. DELIVERY.
5.1 Master Copy. Licensor will deliver to Reseller a master copy of the
Products within three days of the Effective Date. This master copy will be
updated and replaced by Licensor as set forth in Section 8 below and will be in
the electronic form of Licensor's choice. Documentation may be delivered in
tangible form at Licensor's discretion, however.
6. PAYMENTS.
6.1 License Payments. Reseller will pay Licensor the initial and
ongoing nonrefundable amounts specified in Exhibit C for Reseller's use and
distribution of the Products. All shipping or other transportation charges for
delivery of the Products to Reseller, including insurance and special packaging,
will also be paid by Reseller.
[6.2 Payments for Maintenance, Support, Updates, and Enhancements. To
the extent that Reseller elects to receive maintenance and support services and
updates and enhancements for the Products from Licensor under Section 8.2,
Reseller will pay Licensor the nonrefundable amounts specified in Exhibit C for
such services.] [Only if these cost extra]
6.3 Payment Terms.
(a) Reseller will make all payments to Licensor due under
Exhibit C within thirty days after the end of each month in which maintenance.
(b) All payments under this Agreement will be made in United
States currency by bank-to-bank wire transfer to an account designated by
Licensor, unless otherwise agreed to by Licensor in writing.
6.4 Taxes.
(a) All amounts payable under this Agreement are exclusive of
all sales, use, value-added, withholding, and other taxes and duties. Reseller
will pay all taxes and duties assessed in connection with this Agreement and its
performance by any authority within or outside of the
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U.S., except for taxes payable on Licensor's net income. Licensor will be
promptly reimbursed by Reseller for any and all taxes or duties that Licensor
may be required to pay in connection with this Agreement or its performance.
7. REPORTS AND AUDITS.
7.1 Reseller's Records. Reseller will maintain complete records, during
and for two years after the termination or expiration of this Agreement,
regarding the distribution and sublicensing of the Products to each End User.
7.2 Payment Reports. Within thirty (30) days after the close of each
quarter ending March 31, June 30, September 30 and December 31, Reseller will
deliver to Licensor a report which will provide all information reasonably
necessary for computation and/or confirmation of the payments, if any, due or
credited to Licensor for such quarterly period.
7.3 Audit. An independent certified public accountant selected by
Licensor may, upon reasonable notice and during normal business hours, inspect
the records of Reseller on which such reports are based. If, upon performing
such audit, it is determined that Reseller has underpaid Licensor by an amount
greater than five percent (5%) of the payments due Licensor in the period being
audited, Reseller will bear all reasonable expenses and costs of such audit in
addition to its obligation to make full payment under Section 6.
8. MAINTENANCE, SUPPORT, AND TRAINING.
8.1 By Reseller. Reseller will be responsible for providing the
following support to its End Users: installing the Products as needed; training
End Users; and providing all direct first level technical support to End Users,
including problem analysis and using its reasonable efforts to provide
solutions, error correction for the products consistent with Reseller's standard
maintenance and support policies and procedures.
8.2 By Licensor. Licensor will not be responsible for providing support
to End Users. Subject to receipt by Licensor of payments as specified in Exhibit
C, Licensor will provide Reseller with:
(i) error corrections for the Products;
(ii) updates and enhancements for the Products;
(iii) access to Licensor's "web site" (except when the site is
being serviced or is generally unavailable) and access to Licensor's telephone
"hot-line" for inquiries from Reseller relating to the Products between the
hours of 9 a.m. and 5 p.m., European Time, on Licensor's business days; and
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(iv) training in accordance with the terms and conditions and
pricing specified in Exhibit C, provided that Reseller pays the travel and
living expenses of Licensor's personnel in connection with any out-of-town
training requested by Reseller.
8.3 The source code of Licensor's products will be held in an escrow
account in the event that Licensor is unable to continue to maintain the
product.
9. CONFIDENTIALITY.
9.1 Obligations. Each party agrees that it will not disclose to any
third party or use any Products or other Confidential Information disclosed to
it by the other party, except to carry out its rights and obligations under this
Agreement, and that it will take all reasonable measures to maintain the
confidentiality of all Confidential Information in its possession or control,
which will in no event be less than the measures it uses to maintain the
confidentiality of its own information of similar importance. Confidential
Information includes all information designated by a party as confidential or
proprietary within a reasonable time of its disclosure or which a reasonable
person would expect to be treated as confidential including the terms of this
contract.
9.2 Exceptions. "Confidential Information" will not include information
that:
(i) is in or enters the public domain without breach of this
Agreement;
(ii) is lawfully obtained by the receiving party without
breach of a nondisclosure obligation;
(iii) is independently developed or already in the possession
of the receiving party as shown by the receiving party's contemporaneous
records; or,
(iv) is required by law to be disclosed, provided that the
receiving party gives prompt written notice of such requirement prior to
disclosure.
9.3 Injunctive Relief. Each party acknowledges that the improper
disclosure of the other's confidential information could cause substantial harm
to the other party that could not be remedied by the payment of damages alone.
Accordingly, either party will be entitled to preliminary and permanent
injunctive relief and other equitable relief for any breach of this Agreement or
misuse of Confidential Information by Licensor, Reseller or any End User, as
applicable.
10. PROPRIETARY RIGHTS.
10.1 Licensor's Ownership.
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(a) Products. The Products are and will remain the sole and
exclusive property of Licensor and its suppliers, if any, whether the Products
are separate or combined with any other products, including Resellers Products.
Licensor's rights under this subsection (a) will include, but not be limited to
all Intellectual Property Rights in the Products.
(b) Notices. Reseller will not delete or in any manner alter
the Intellectual Property Rights notices of Licensor and its suppliers, if any,
appearing on the Products as delivered to Reseller. As a condition of the
license rights granted to Reseller in this Agreement, Reseller will reproduce
and display such notices on each copy it makes of any Product.
10.2 Reseller's Duties. Reseller will take customary measures in the
marketing and distribution of the Products to protect Licensor's Intellectual
Property Rights in the Products, no less than the extent to which Reseller
protects its Intellectual Property Rights in Reseller's Products, and will, to
the extent lawful, report promptly to Licensor any confirmed infringement of
such rights of which Reseller becomes aware.
10.3 Third Party Infringement. Licensor 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 Products.
10.4 Trademarks.
(a) Trademark License. Subject to the terms and conditions of
this Agreement, Licensor grants Reseller a nonexclusive license for the term of
this Agreement to use the Marks in Reseller's marketing of the Products,
provided that such use is in accordance with Licensor's trademark usage
guidelines then in effect. Such use must reference the Marks as being owned by
Licensor. Nothing in this Agreement grants Reseller ownership or any rights in
or to use the Marks, except in accordance with this license, and Reseller's use
of the Marks will inure to the benefit of Licensor. The rights granted to
Reseller in this license will terminate upon any termination or expiration of
this Agreement. Upon such termination or expiration, Reseller will no longer
make any use of any Marks. Licensor will have the exclusive right to own, use,
hold, apply for registration for, and register the Marks during the term of, and
after the expiration or termination of, this Agreement; Reseller will neither
take nor authorize any activity inconsistent with such exclusive right.
11. WARRANTY.
11.1 Power and Authority. Licensor warrants to Reseller that it has
sufficient right and authority to grant to Reseller all licenses and rights that
Licensor grants under this Agreement.
11.2 Limited Warranty. Licensor warrants to Reseller that during the
ninety days following delivery to Reseller the storage media containing the
Products will be free from defects in materials and workmanship.
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In the event the storage media fail to conform to such warranty, as Reseller's
sole and exclusive remedy for such failure Licensor will, at its option and
without charge to Reseller, repair or replace the storage media, provided the
nonconforming item is returned to Licensor within the 90-day warranty period.
11.3 Disclaimer of Other Warranties. THE WARRANTIES IN THIS SECTION ARE
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NONINFRINGEMENT.
12. INFRINGEMENT INDEMNITY
12.1 Duty to Indemnify and Defend.
(a) Licensor represents and warrants that the Products were
independently developed. Licensor will indemnify Reseller against, and will
defend or settle at Licensor's own expense, any action or other proceeding
brought against Reseller to the extent that it is based on a claim that the use
of the Products as licensed in this Agreement (other than derivative works
created by or for Reseller pursuant to Sections 2.4 or 2.5) infringes any
copyright in the United States or any other country in which Licensor or its
affiliates directly distribute the Products as of the Effective Date or in the
future, infringes any patent, or that the Products incorporate any
misappropriated trade secrets.
(b) Licensor will pay any and all costs, damages, and expenses
(including but not limited to attorneys' fees) awarded against Reseller in any
such action or proceeding attributable to any such claim.
(c) Licensor will have no obligation under this Section as to
any action, proceeding, or claim unless: (A) Licensor is notified of it
promptly; (B) Licensor has sole control of its defense and settlement; and (C)
Reseller provides Licensor with reasonable assistance in its defense and
settlement.
12.2 Injunctions.
(a) If Reseller's use of any Products under the terms of this
Agreement is, or in Licensor's opinion is likely to be, enjoined due to the type
of infringement or misappropriation specified in Section 12.1 above, then
Licensor shall, either:
(i) procure for Reseller the right to continue using
such Products under the terms of this Agreement; or
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(ii) replace or modify such Products so that they are
noninfringing and substantially equivalent in function to the enjoined Products;
or
(iii) if options (i) and (ii) above cannot be
accomplished despite the reasonable efforts of Licensor, then Licensor shall
both:
(A) terminate Reseller's rights and
Licensor's obligations under this Agreement with respect to such Products, and
(B) refund to Reseller all payments made by
Reseller to Licensor hereunder.
12.3 Sole Remedy. THE FOREGOING ARE LICENSOR'S SOLE AND EXCLUSIVE
OBLIGATIONS, AND RESELLER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
12.4 Exclusions. Licensor will have no obligations under this Section
12 with respect to claims of infringement or misappropriation arising from (i)
modifications to the Products that were not authorized by Licensor, (ii) Product
specifications requested by Reseller, or (iii) the use of the Products in
combination with products not provided by Licensor, if such claims would not
arise but for such combination.
13. LIMITATIONS OF LIABILITY.
13.1 TOTAL LIABILITY. EXCEPT AS SET FORTH IN SECTION 12 AND EXCEPT IN
THE CASE OF FRAUD, EACH PARTY'S LIABILITY FOR A BREACH OF THIS AGREEMENT UNDER
THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED OR DUE (PER EXHIBIT C)
FROM RESELLER UNDER THIS AGREEMENT (ALONG WITH THE CHARGES PERMITTED UNDER
SECTION 7.3).
13.2 EXCLUSION OF DAMAGES. EXCEPT AS SET FORTH IN SECTION 12 AND EXCEPT
IN THE CASE OF FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14. TERM AND TERMINATION.
14.1 Term. The term of this Agreement will begin on the Effective Date
and will continue for three years unless it is terminated earlier in accordance
with the provisions hereof. This Agreement may be renewed for additional periods
upon the mutual written agreement of the parties, although each party
acknowledges that the other is not under any obligation to do so; provided,
however, that in no event will Licensor be required to deliver copies of the
Products to Reseller for use in specific jurisdictions until Reseller has
obtained all necessary governmental approvals for this
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Agreement and for the distribution of the Products in the applicable
jurisdiction within the Territory.
14.2 Events of Termination. Either party will have the right to
terminate this Agreement if:
(i) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within thirty (30) days after
written notice;
(ii) Either party will have the right to terminate this
Agreement if the other party becomes the subject of a voluntary petition in
bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or the other party
becomes the subject of an involuntary petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing.
(iii) Either party will have the right to terminate this
Agreement by providing written notice 18 months in advance of the termination
date.
14.3 Effect of Termination.
(a) Upon termination or expiration of this Agreement, Reseller
will (except as specified in subsection (b) below) immediately return to
Licensor or (at Licensor's request) destroy all copies of the Products and other
Confidential Information in its possession or control, and an officer of
Reseller will certify to Licensor in writing that Reseller has done so.
(b) Upon termination or expiration of this Agreement, Licensor
will have the option, in its sole discretion, of:
(i) electing, at any time, to offer maintenance and
support for the Products directly to End Users in accordance with Licensor's
then applicable terms and conditions for such services; or
(ii) permitting Reseller to continue to provide
maintenance and support for the Products to its End Users [upon the terms and
conditions of Sections 6.2 and 8.2(iv)] and continue to use copies of the
Products, to the extent needed to provide such services, pursuant to a limited
license agreement to be entered between Licensor and Reseller promptly following
such termination or expiration.
14.4 Nonexclusive Remedy. The exercise by either party of any remedy
under this Agreement will be without prejudice to its other remedies under this
Agreement or otherwise.
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14.5 Survival. The rights and obligations of the parties contained in
Sections 9, (Confidentiality), 10 (Proprietary Rights), 11 (Warranty), 12
(Infringement Indemnity), 13 (Limitations of Liability), 14 (Termination) and 15
(General) will survive the termination or expiration of this Agreement.
15. GENERAL.
15.1 Binding Effect. This Agreement will bind and inure to the benefit
of each party's permitted successors and assigns.
15.2 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California applicable to agreements
entered into, and to be performed entirely, within California between California
residents, without reference to conflict of law principles. Any dispute or claim
arising out of this Agreement will be resolved by binding arbitration in the
city and county of Santa Xxxxx in accordance with the complex commercial
litigation rules of the American Arbitration Association. The arbitrator will
have the power to grant any form of relief, including preliminary and permanent
injunctive relief, which a judge in California with jurisdiction could fashion,
and judgment on any award may be entered in any court in California with
jurisdiction. Nonetheless, the parties may seek temporary or permanent
injunctive relief from any court in California with jurisdiction without
breaching this Section 15.2 or otherwise abridging the authority of the
arbitrator.
15.3 Severability. If any provision of this Agreement is found invalid
or unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
15.4 Force Majeure. Except for payments due under this Agreement,
neither party will be responsible for any failure to perform due to causes
beyond its reasonable control (each a "Force Majeure"), including, but not
limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, denial of or delays in processing of export license applications,
fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that
such party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the Force
Majeure, but in no event longer than sixty days.
15.5 Notices. All notices under this Agreement will be deemed given
when delivered personally, sent by confirmed facsimile transmission, or sent by
certified or registered U.S. mail or nationally-recognized express courier,
return receipt requested, to the address shown below or as may otherwise be
specified by either party to the other in accordance with this section.
15.6 Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
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15.7 Waiver. No failure of either party to exercise or enforce any of
its rights under this Agreement will act as a waiver of such rights.
15.8 Entire Agreement. This Agreement and its exhibits (A, B, C and D)
are the complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior agreements,
communications, and understandings (both written and oral) regarding such
subject matter. This Agreement may only be modified, or any rights under it
waived, by a written document executed by both parties.
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The parties have caused this Agreement to be executed by their
duly-authorized representatives as of the Effective Date.
Reseller: Sagent Technology, Inc. Licensor: Opalis SARL
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Signature: /s/ XXXX XXXXXX Signature: /s/ XXXXXXX XXXXXXXX
----------------------- ------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
---------------------------- -----------------------------------
Title: VP Technology Title: [ILLEGIBLE]
---------------------------- -----------------------------------
Date: 12/12/97 Date: 12/22/97
----------------------------- ----------------------------------
Facsimile: Facsimile:
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FIRST AMENDMENT TO NONEXCLUSIVE INTERNATIONAL SOFTWARE VALUE ADDED
RESELLER ("VAR") AGREEMENT
Opalis SARL and Sagent Technology, Inc entered into an Agreement dated
December 8, 1997. The parties desire to add second line support provisions to
enhance the provisions of Section 8.2 of the Agreement, upon payment of required
fees. Accordingly, the parties agree as follows:
1. This modifications is authorized pursuant to Section 15.8 of the
Agreement.
2. Opalis will provide Sagent second Line 24 hour per day, 7 days per
week support to allow Sagent to effectively support its customers. Sagent will
deal with the customer directly and provide first line support. Opalis will
provide second line support to help resolve issues when Sagent is unable to
reproduce customer problems or otherwise unable to solve customer problems.
The support service provided by Opalis consists of the following:
2.1 Opalis will provide Sagent a phone number, which may be called at
any time, 24 hours, 7 days per week. For normal issues, Opal will provide a
response within 6-10 hours.
2.2 Timing of other response issues:
(a) When a customer has a critical issue such that the operation of the
software is substantially impaired, a Sagent technical support specialist may
contact Opalis. Opalis will provide a support engineer or developer's response
within two hours.
(b) Opalis will provide a patch to Sagent within three days of
reproducing an error.
(c) Sagent may reserve the availability of an Opalis developer with
source code and development environment experience at least 24 hours before a
Sagent developer or support engineer goes on the customer site to assist with
problems. The Opalis developer will be available for the period that is
necessary to diagnose and reproduce the problem.
(d) Upon Sagent's request, and Opalis engineer will go to a customer
site is a problem has not been resolved by phone after 7 days.
3. Opalis will provide a 2 day Opalis internal training course to two
Sagent engineers in August or September, to provide a set of skills to assist
the Sagent developers to improve their ability to diagnose OpalisRobot problems.
The location of the training will be at Sagent's offices in California. All
fees, expenses, including travel and lodging are included in the price of this
service.
4. Sagent and Opalis will work on a simple add-on to assist in
isolating Sagent and Opalis problems.
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5. The service will run for an initial term of three months beginning
________ ("Start Date"). The fees for this term shall be $3,000. After the
initial term, Sagent shall have the option to renew subject to renegotiated fees
with no loss of quality of support.
6. The other provisions of Section 8.2 are not altered by this
amendment.
Sagent Technology, Inc. Opalis SARL
Signature Signature
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Name Name
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Title Title
----------------------------- -----------------------------------
Date Date
----------------------------- -------------------------------------
The latest date shall be the Start Date.
OpalisRobot Add-on Software Development Kit (SDK) License Agreement
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OPALISROBOT ADD-ON SOFTWARE DEVELOPMENT KIT (SDK) LICENSE AGREEMENT
This Agreement, dated December 22, 1997, is made between Opalis SARL ("OPALIS"),
a French corporation doing business at 00, Xxx Xxxxxxx 00000 Xxxxx, Xxxxxx, and
Sagent Technology, Inc. ] ("LICENSEE"), a California corporation doing business
at 0000 X. Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000.
This agreement is a legal agreement between LICENSEE and OPALIS for the
OpalisRobot Add-on SDK product, which includes computer software, and may
include "online" or electronic documentation, associated media and printed
materials ("SOFTWARE PRODUCT" or "SOFTWARE").
1 - GRANT OF LICENSE.
The SOFTWARE is used to develop one OpalisRobot add-on ("ADD-ON") in the form of
one or more Microsoft Windows dynamic link libraries (DLL) and other software
components in object code form. In order to develop
The ADD-ON extends OPALIS' OpalisRobot automation software ("OPALISROBOT") by
adding events, tasks, dialogs, wizards and other components. Each copy of the
ADD-ON may only be used in conjunction with a legal copy of OPALISROBOT operated
under the terms of the OPALISROBOT License Agreement.
LICENSEE may install and use the enclosed SOFTWARE on an unlimited number of
computers to design, develop, and test the ADD-ON. Such development of an ADD-ON
using the SOFTWARE can be performed by an unlimited number of persons.
LICENSEE may resell the ADD-ON developed using the SOFTWARE and may distribute
the ADD-ON for use outside of his organization.
The SOFTWARE is licensed exclusively to develop one ADD-ON described as follows:
The Sagent add-on will allow a user to insert a new Sagent Task object into an
OpalisRobot scheduling diagram. A Sagent Task initiates a Sagent Execution Plan
to run within the Sagent Datamart Server and wait for completion to sequence the
next OpalisRobot task.
If LICENSEE wishes to add, modify or remove any characteristics of the ADD-ON,
LICENSEE must obtain OPALIS' written approval (that will appended to this
Agreement) prior to the effective distribution of the modified ADD-ON.
An ADD-ON is identified by unique numbers assigned by OPALIS, LICENSEE may not
use these numbers to develop several ADD-ONS with different specifications.
Failure to do so is a breech of this Agreement and OPALIS may terminate this
agreement at its sole discretion. Such termination may include, but is not
limited to, the modification of current and future OPALISROBOT releases so that
they do not accept the faulty ADD-ON.
LICENSEE may not distribute (even partially), rent or lease the SOFTWARE or its
documentation without prior written approval by OPALIS.
LICENSEE may transfer the SOFTWARE and accompanying written materials on a
permanent basis provided that he retains no copies, immediately stop reselling
or distributing the developed ADD-ON and the recipient agrees by a writing to
the terms of the present Agreement.
2 - TERMINATION
This License Agreement and the associated rights and duties are not limited in
time.
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If this License Agreement is terminated because of LICENSEE' failure, LICENSEE
must immediately stop to resell or distribute (even on a free basis) the
developed ADD-ON.
3 - OTHER RIGHTS AND LIMITATIONS.
LICENSEE acknowledge that the Software in source code form remains a
confidential trade secret of OPALIS and/or its suppliers and therefore LICENSEE
agree not to attempt to decipher, de-compile, disassemble or reverse engineer
the SOFTWARE or allow others to do so, except to the extent applicable laws
specifically prohibit such restriction. LICENSEE further agree not to modify or
create derivative works of the SOFTWARE. This Agreement represents the complete
and exclusive statement of the agreements concerning the SOFTWARE between the
parties and supersedes all prior agreements and representations between them. It
may be amended only by a writing executed by both parties.
LIMITED WARRANTY. OPALIS warrants that the SOFTWARE will perform substantially
in accordance with the accompanying written materials for a period of ninety
(90) days from the date of receipt, and any hardware accompanying the SOFTWARE
will be free from defects in materials and workmanship under normal use and
service for a period of six (6) months from the date of receipt. Any implied
warranties on the SOFTWARE and hardware are limited to ninety (90) days and six
(6) months, respectively. Some states/jurisdictions do not allow limitations on
duration of an implied warranty, so the above limitation may not apply to
LICENSEE.
CUSTOMER REMEDIES. OPALIS' and its suppliers' entire liability and LICENSEE'
exclusive remedy shall be, at OPALIS' option, either (a) return of the price
paid, or (b) repair or replacement of the SOFTWARE or hardware that does not
meet OPALIS' Limited Warranty and which is returned to OPALIS or its suppliers
with a copy of LICENSEE' receipt. This Limited Warranty is void if failure of
the SOFTWARE or hardware has resulted from accident, abuse, or misapplication.
Any replacement SOFTWARE or hardware will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer. Neither these
remedies nor any product support service offered by OPALIS are available without
proof of purchase.
NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, OPALIS
and its suppliers disclaim all other warranties, either express or implied,
including, but not limited to, implied warranties of merchantability and fitness
for a particular purpose, with regard to the SOFTWARE, the accompanying written
materials, and any accompanying hardware. This limited warranty gives LICENSEE
specific legal rights. LICENSEE may have others, which vary from
state/jurisdiction to state/jurisdiction.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by
applicable law, in no event shall OPALIS or its suppliers be liable for any
damages whatsoever (including, without limitation, damages for loss of business
profits, business interruption, loss of business information, or any other
pecuniary loss) arising out of the use of or inability to use this OPALIS
product, even if OPALIS has been advised of the possibility of such damages.
Because some states/jurisdictions do not allow the exclusion or limitation of
liability for consequential or incidental damages, the above limitation may not
apply to LICENSEE.
--------------------------------------------------------------------------------
The parties have caused this Agreement to be executed by their duly-authorized
representatives as of the Effective Date.
Licensee: Sagent Technologies, Inc Licenser: Opalis Sarl
------------------------ -------------------------------
Signature: /s/ XXXX XXXXXX Signature: /s/ XXXXXXX XXXXXXXX
------------------------ ------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx Xxxxxxxx
----------------------------- -----------------------------------
Title: VP Technology Title: [ILLEGIBLE]
---------------------------- ----------------------------------
Date: 12/12/97 Date: 12/22/97
----------------------------- -----------------------------------
