Exhibit 10.18
SAGENT TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
[LOGO]
AGREEMENT by and between Sagent Technology, Inc. ("Sagent") located at ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
USINTERNETWORKING, INC. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
including its subsidiaries and affiliates (the "Licensee").
Licensee is in the business of developing software and hardware solutions
which it leases to customers. Sagent agrees to license its Software to
Licensee to permit Licensee to develop applications and lease the
applications to Licensee's customers.
Accordingly, the parties agree as follows:
1. LICENSE
In accordance with the terms herein, Sagent grants to Licensee, and Licensee
accepts from Sagent, a perpetual non-exclusive and non-transferable license
to use the current object code version of Sagent's Software. Licensee may
install the Software for the number specified in the description of the
Software attached as Schedule A.
Under this license, Licensee is permitted to use the Software for which a
license fee has been paid as follows:
a. Develop application portfolios or stand-alone applications and use the
Software for Licensee's own use; and
b. Develop applications and lease the Software to Licensee's customers for
customer's use provided that the object code to the Software remains under
Licensee's possession at all times and Licensee requires its customers to
agree to enduser license terms that reflect the rights and restriction of
terms of this agreement.
c. Licensee may physically transfer the Software to other hardware systems
for the same customer provided the Software is only used on one computer,
network node or server at a time.
d. Once Licensee puts a particular module into production for a customer,
that particular module is fungible in that it can be assigned to another
customer subject to the following restrictions:
(i) Only four configurations may be assigned to another customer. The four
configurations may only be assigned once.
(ii) Fungibility applies only where the lease between Licensee and its
customer is terminated due to: 1) Licensee's customer has breached a lease
related to the Software with Licensee; 2) Licensee's customer has filed
for bankruptcy; or 3) at the end of the 36 month lease term.
Licensee's use is restricted so that Licensee may not:
a. Reveal bench ▇▇▇▇ tests;
b. Decompile, disassemble, reverse engineer the Software;
c. Create a derivative work of the Software;
d. Use the Software by more than the number of concurrent users that have
been licensed; or
c. Develop applications or lease the Software to more than one customer
2. COPIES
The license(s) granted herein include(s) the right to copy the Software to
use the Software as specified in Schedule "A" pursuant to this license and
for archival and back-up only. In order to protect Sagent's copyrights in the
Software, Licensee agrees to reproduce and incorporate Sagent's copyright
notice in any copy, modifications or partial copy.
3. PRICE AND PAYMENT
Licensee shall make payment to Sagent for the Software license pursuant to
the fees and payment terms set forth in Schedule A.
4. SOFTWARE OWNERSHIP
----------------------
[CONFIDENTIAL TREATMENT] means that certain confidential information has
been deleted from this document and filed separately with the Securities
and Exchange Commission.
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Sagent represents that it has all rights required to licensee the Software
and all portions thereof and to grant Licensee the license.
5. OTHER SERVICES
Sagent may provide Licensee with consulting services, software maintenance,
and technical support through separate agreements.
6. TITLE TO SOFTWARE SYSTEMS
The Software and all copies thereof are proprietary to Sagent and title
thereto remains with Sagent. All applicable rights to patents, copyrights,
trademarks and trade secrets in the Software or any modifications or
derivative works belong to and shall remain in Sagent. Licensee shall not
sell, transfer, publish, or otherwise make available the Software or copies
thereof to others. Licensee agrees to secure and protect each module,
software product, documentation and copies thereof in a manner consistent
with the maintenance of Sagent's rights therein and to take appropriate
action by instruction or agreement with its employees or consultants who are
permitted access to each program or software product to satisfy its
obligations hereunder. All copies made by the Licensee of the Software and
other programs developed hereunder, including translations, compilations,
partial copies with modifications and updated works, are the property of
Sagent. Violation of any provision of this paragraph shall be the basis for
immediate termination of this License Agreement.
7. CONFIDENTIALITY
Each party agrees to afford the other party's Proprietary Information the
same degree of protection against unauthorized use or disclosure as each
party normally provides for its Proprietary Information, provided that each
party's obligation shall not apply to information which:
i) Is known to the receiving party at the time of disclosure by the
disclosing party;
ii) Is now or hereafter in the public domain through no fault of the
receiving party;
iii) Is developed independently by the receiving party; and
iv) Is generally known or available from third parties without
restriction; and
The term "Proprietary Information" means documented information or software
which at the time of its disclosure to the receiving party is identified as
Proprietary by an appropriate stamp or legend.
8. WARRANTY
(a) Sagent warrants that Software will conform, as to all substantial
operational features, to Sagent's current published specifications when
installed and will be free of defects which substantially affect system
performance.
(b) The Licensee must notify Sagent in writing within ninety (90) days of
delivery of the Software to the Licensee (not including delivery of any
subsequent modifications to the Software), of its claim of any such
defect. If the Software is found defective by Sagent, Sagent's sole
obligation under this warranty is to use reasonable commercial efforts to
attempt to correct or work around errors, and if the errors cannot be
corrected, Sagent will, at no extra cost to the Licensee, replace
defective media or replace the Software with functionally equivalent
Software.
(c) 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.
(d) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY
SAGENT. TO THE EXTENT PERMITTED BY LAW, SAGENT MAKES AND LICENSEE
RECEIVES NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY
EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SAGENT SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS
UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES
EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF
SAGENT FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE
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DELIVERY, USE, OR PERFORMANCE OF
THE SOFTWARE SYSTEMS.
(e) If any modifications are made to the Software by Licensee during the
warranty period, this warranty shall immediately be terminated.
Correction for difficulties or defects traceable to Licensee's errors or
systems changes shall be billed at Sagent's standard time and material
charges.
(f) Licensee agrees that Sagent's liability arising out of contract,
negligence, strict liability in tort or warranty shall not exceed any
amounts payable by Licensee for the Software identified above.
9. INDEMNITY
Sagent, at its own expense, will defend any action brought against Licensee
to the extent that it is based on a claim that any software system used
within the scope of this License Agreement infringes any U.S. patents,
copyrights, license or other property right, provided that Sagent is given
reasonable notice in writing of such claim. Sagent shall have the right to
control with Licensee the defense of all such claims, lawsuits and other
proceedings. In no event shall Licensee settle any such claim, lawsuit or
proceeding without Sagent's prior written approval.
If, as a result of any claim of infringement against any patent, copyright,
license or other property right, Sagent is enjoined from using the Software,
or if Sagent believes that the Software is likely to become the subject of a
claim of infringement, Sagent at its option and expense may procure the right
for Licensee to continue to use the Software, or replace or modify the
Software so as to make it non-infringing. If neither of these two options is
reasonably practicable Sagent may discontinue the license granted herein on
one month's written notice and refund to Licensee the unused portion of the
license fees hereunder. The foregoing states the entire liability of Sagent
with respect to infringement of any copyrights or patents by the Software or
any parts thereof.
10. TERMINATION
Unless otherwise terminated earlier by Sagent's breach of this agreement,
Licensee may terminate this agreement at any time provided payment in full
has been made and Licensee returns the original and all copies of Software to
Sagent.
Sagent shall have the right to terminate this agreement and license(s)
granted herein:
(a) Upon ten days' written notice in the event that Licensee, its officers or
employees violates any provision of this License Agreement including, but
not limited to, confidentiality and payment.
(b) In the event of termination by reason of the Licensee's failure to comply
with any part of this agreement, or upon any act which shall give rise to
Sagent's right to terminate, Sagent shall have the right, at any time, to
terminate the license(s) and upon 5 days prior written notice, take
possession of the Software and documentation and all copies wherever
located. Within five (5) days after termination of the license(s),
Licensee will return to Sagent the Software in the form provided by
Sagent or as modified by the Licensee, or upon request by Sagent to
destroy the Software and all copies, and certify in writing that they
have been destroyed. Termination under this paragraph shall not relieve
Licensee of its obligations regarding confidentiality of the Software.
(c) Without limiting any of the above provisions, in the event of termination
as a result of the Licensee's failure to comply with any of its
obligations under this License Agreement, the Licensee shall continue to
be obligated for any payments due. Termination of the license shall be in
addition to and not in lieu of any equitable remedies available to Sagent.
(d) Software sublicenses properly granted and paid for prior to termination
will also remain in effect according to their terms.
11. TAXES
Licensee shall, in addition to the other amounts payable under this License
Agreement, pay all sales and other taxes, federal, state, or otherwise,
however designated, which are levied or imposed by reason of the transactions
contemplated by this License Agreement, exclusive of taxes based on Sagent's
income. without limiting the foregoing, Licensee shall promptly pay to Sagent
an amount equal to any such items actually paid, or required to be collected
or paid by Sagent.
12. GENERAL
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(a) Each party acknowledges that it has read this Agreement, it understands
it, and agrees to be bound by its terms, and further agrees that this is
the complete and exclusive statement of the Agreement between the
parties, which supersedes and merges all prior proposals, understandings
and all other agreements, oral and written, between the parties relating
to this Agreement. This Agreement may not be modified or altered except
by written instrument duly executed by both parties. 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, 5 business days after delivery to the postal authorities by the
party serving notice.
(b) Dates or times by which Sagent is required to make performance under this
license shall be postponed automatically to the extent that Sagent is
prevented from meeting them by causes beyond its reasonable control.
(c) This Agreement and performance hereunder shall be governed by the laws of
the State of California. Venue shall be in Santa ▇▇▇▇▇ County, California.
(d) Licensee agrees that it is responsible for ensuring that any third party
usage is in accordance with the terms and conditions of this Agreement.
Notwithstanding the foregoing, Licensee shall not lease the Software to
the following competitors of Sagent:
Ardent, Informatica, Broadbase, Gentia, Microstrategy, Information
Advantage, Brio, Coguos, Business Objects.
(e) If any provision of this Agreement is invalid under any applicable
statute or rule of law, it is to that extent deemed to be omitted.
(f) The Licensee may not assign or sub-license, without the prior written
consent of Sagent, its rights, duties or obligations under this Agreement
to any person or entity, in whole or in part. A sale of substantially all
of Licensee's assets to a third party or any transfer of more than 50% of
the voting stock of Licensee to a third party shall not constitute an
assignment under this license.
(g) The prevailing party in any action related to this agreement shall have
the right to recover its reasonable expenses including attorney's fees.
(h) The waiver or failure of Sagent to exercise, in any respect, any right
provided for herein shall not be deemed a waiver of any further right
hereunder.
SAGENT TECHNOLOGY, INC.
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Print)
Address:
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Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: VP Sales
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Date: 6/25/98
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Effective Date:
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USINTERNETWORKING, INC.
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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(Print)
Address:
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Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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Date: 6/25/98
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SCHEDULE A
1. SOFTWARE DESCRIPTIONS
Software means the following programs in object code and related online
documentation:
SAGENT DATA LOAD SERVER
The Sagent Data Load Server performs processing for the extraction,
transformation and loading of data into data marts. It is a high
performance application server that has been designed from the
ground up to exploit 32-bit, multi-threaded computing.
SAGENT DATA ACCESS SERVER
The Sagent Data Access Server performs processing for the delivery
of information to users, whether they are accessing data via the
Web or in a client/server environment. It is a high performance
application server that has been designed from the ground up to
exploit 32-bit, multi-threaded computing.
SAGENT WEBLINK
Sagent WebLink is a server-based application for giving Web users
query, analysis and reporting capabilities.
SAGENT ADMIN
Sagent Admin is a client application that provides administrators
the ability to manage user security and metadata.
SAGENT AUTOMATION STUDIO (INCLUDES AUTOMATION SERVER AND AUTOMATION
STUDIO
SAGENT AUTOMATION SERVER
Sagent Automation Server is a server-based application that performs
powerful event-driven scheduler for automating and troubleshooting
tasks.
SAGENT AUTOMATION STUDIO
Sagent Automation Studio is a client application for defining
automation flows that will be executed by Sagent Automation Server.
SAGENT POWER USER TOOL SUITE (INCLUDES DESIGN STUDIO, SAGENT ANALYSIS,
SAGENT REPORTS)
DESIGN STUDIO
Sagent Design Studio is a client application that provides intuitive
and powerful visual tools for defining metadata and data flow plans.
SAGENT ANALYSIS
Sagent Analysis is an Information Studio module that enables users to
perform multi-dimensional analysis of data.
SAGENT REPORTS
Sagent Reports is an Information Studio module that enables users to
develop sophisticated reports that includes information stored in data
marts.
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2. SOFTWARE LICENSE FEES
(a) SOFTWARE CONFIGURATION
This Software License Agreement and Schedule is for the purchase
of twelve complete Software Configurations.
Detailed below are the Software modules, including quantities and
List Price, which comprise one Software Configuration.
Qty. Software Module List Price
---- --------------- ------------
(1) Sagent Data Load Server $[CONFIDENTIAL
(includes Administration and TREATMENT]
Design Studio)
(1) Sagent Data Access [CONFIDENTIAL
(includes Administration) TREATMENT]
(1) Sagent WebLink 2 CPU [CONFIDENTIAL
(includes Administration) TREATMENT]
(1) Sagent Automation Studio [CONFIDENTIAL
TREATMENT]
(4) Power User Tools [CONFIDENTIAL
(includes Design, Analysis TREATMENT]
and Reporting)
LIST PRICE PER SOFTWARE CONFIGURATION $[CONFIDENTIAL
TREATMENT]
TOTAL LIST PRICE FOR 12 SOFTWARE CONFIGURATIONS $[CONFIDENTIAL
TREATMENT]
(b) LICENSE DISCOUNT SCHEDULE
USI will receive a [CONFIDENTIAL TREATMENT] discount off the List
Price of each Software Module included the Software Configuration
for the full term of this Agreement.
LIST PRICE PER SOFTWARE CONFIGURATION $[CONFIDENTIAL
TREATMENT]
DISCOUNTED PRICE PER SOFTWARE CONFIGURATIONS $[CONFIDENTIAL
TREATMENT]
TOTAL DISCOUNTED PRICE FOR 12 SOFTWARE CONFIGURATION $[CONFIDENTIAL
TREATMENT]
(c) LICENSE PAYMENT SCHEDULE
USI commits to full payment of [CONFIDENTIAL TREATMENT]
for 12 Software Configurations based on the following
payment schedule.
Payment Date Payment Amount
------------ --------------
June 30, 1998 $[CONFIDENTIAL
TREATMENT]
September 1, 1998 [CONFIDENTIAL
TREATMENT]
December 1, 1998 [CONFIDENTIAL
TREATMENT]
All payments are non-refundable. Commitment to payment of full
[CONFIDENTIAL TREATMENT] for 12 Software Configurations is
irrevocable. Payment for purchase of additional Software modules
and/or Software Configurations is Net 30 days.
(d) SHIPMENT SCHEDULE
Sagent will ship the Software Configurations based on the following
Shipment Schedule.
Shipment Date Quantity of Software Configurations
------------- -----------------------------------
Prior to July 10, 1998 6
September 1, 1998 3
December 1, 1998 3
TOTAL CONFIGURATIONS 12
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(e) REPORTING AND RECORD KEEPING
USI will make records and reports of Software installations and
sublicenses. USI 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 which USI leases to its customers, including
those of USI, 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.
2. MAINTENANCE AND SUPPORT SERVICES
(a) PLATINUM ANNUAL MAINTENANCE AND SUPPORT
This Software License Agreement, Schedule A, and Exhibit B also
serve as the purchase of Sagent's PLATINUM ANNUAL MAINTENANCE AND
SUPPORT. The fee for Platinum Annual Maintenance and Support is
[CONFIDENTIAL TREATMENT] and is renewable on an annual basis. The
Platinum Annual Maintenance and Support Agreement is provided as
Exhibit B to the Software License Agreement.
USI will provide all customer support and pay Sagent an annual
fee for each sale of such services USI makes to its customers for
support of Software licenses. The annual fee will be
[CONFIDENTIAL TREATMENT] of the Software List Price.
(b) PLATINUM ANNUAL MAINTENANCE AND SUPPORT PAYMENT SCHEDULE
USI commits to full payment of [CONFIDENTIAL TREATMENT] for Platinum
Annual Maintenance and Support based on the following payment
schedule.
Payment Date Payment Amount
------------ --------------
June 30, 1998 $[CONFIDENTIAL
TREATMENT]
September 1, 1998 $[CONFIDENTIAL
TREATMENT]
All payments are non-refundable. Commitment to payment of full
[CONFIDENTIAL TREATMENT] for Platinum Annual Maintenance and Support
is irrevocable.
(c) GENERAL TERMS
Sagent's support programs are subject to change from time to time
upon 30 days prior written notice from Sagent to Licensee. However,
in no event shall the changes made by Sagent result in diminished
support from the level of support set forth in Exhibit B.
Notwithstanding anything to the contrary set forth elsewhere in
this Agreement, USI shall provide Maintenance and Support Services
to all of its Customers as set forth in Sections 1(a) and 1(b)
below. USI may require their Customers to provide their own
First-Line Support; however, in no event shall Sagent by
responsible for First-Line or Second-Line Support. Subject to USI's
payment of Platinum Annual Maintenance and Support Fees set forth
in this Schedule, Sagent shall provide Third-Line Support to USI in
accordance with Section 1(c) below. USI shall be responsible for
all support related to any of its offerings related to the Programs.
(a) FIRST-LINE SUPPORT. USI shall either (1) provide First-Line
Support to all of its customers of the Licensed Software or
(2) inform its customers that they must provide their own
First-Line Support. First-Line Support means direct technical
support of Licensed Software, including but not limited to
(a) a direct response to User inquiries concerning the
performance, functionality or operation of the Licensed
Software, (b) a direct response to reported problems or
performance deficiencies with the Licensed
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Software, (c) a diagnosis of problems or performance
deficiencies of the Licensed Software, and (d) a resolution
of problems or performance deficiencies of the Licensed
Software. First-line Support shall include the provision of
telephone and other appropriate contact points so that USI's
customers may contact USI regarding technical and support
questions and other problems regarding use of the Licensed
Software. USI shall inform its customers that if, after using
its reasonable commercial efforts, the customers are not able
to answer a support question or to correct a reported problem
in the Licensed Software, the customers may contact USI for
Second-Line Support, as provided below.
(b) SECOND-LINE SUPPORT. USI will offer second line support
("Second-Line Support") to its customers in the form of
web-based and telephone and other support at least at the level
of Second Line Support described in Sagent's then current
Maintenance and Support Services Policy. Sagent reserves the
right to alter such policies from time to time, in its
reasonable discretion, on ninety (90) days' prior notice to
USI. USI shall provide its customers, as a part of Second-Line
Support, any and all Updates that Sagent provides to USI.
(c) THIRD-LINE SUPPORT. In consideration for the payment of fees
for Maintenance Services Fees set forth in this Schedule,
Sagent shall provide USI third line support ("Third-Line
Support") for the Licensed Software in accordance with Sagent's
then current Maintenance and Support Services Policy.
Third-Line Support shall include web-based and telephone
support to respond to questions that are due solely to the
failure of the Licensed Software to perform in any material
respect the functions described in the Documentation when
operated on a Supported Platform. Before requesting Third-Line
Support, USI shall use reasonable commercial efforts to resolve
support questions and to correct reported problems in the
Licensed Software and to ensure that the issue is not related
to any other part of USI's or User's implementation. If USI
requests Sagent to provide services at a User site or at USI's
site, USI agrees to pay Sagent for such services in accordance
with Sagent's list prices for such services as of the date such
services are delivered and to reimburse Sagent for all its
reasonable out-of-pocket expenses, including travel and
accommodations, in providing such services.
3. TRAINING
USI, in order to be certified to perform sales, marketing and
implementation/integration of Sagent Software will assign a group of sales,
technical and support personnel to attend a two-week certification class as
taught by Sagent Professional Services at a mutually agreed upon location.
The list price for each two-week certification course is
[CONFIDENTIAL TREATMENT] USD. USI will receive a [CONFIDENTIAL TREATMENT]
discount on each two-week certification course, for a discounted fee of
[CONFIDENTIAL TREATMENT] per course. USI commits to purchase of (3) two-week
certification courses for a total of [CONFIDENTIAL TREATMENT].
Travel and expenses of Sagent trainers and consultants is not included in the
price of the course and will be the responsibility of USI. Each two-week
certification course is not to exceed 12 students.
Additional training on competitive intelligence, new product releases and
feature additions will be performed on an as needed basis as mutually agreed
by Sagent and USI.
Sagent and USI shall separately negotiate the terms that will govern Sagent's
provision of Training Services to Licensee's customers.
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4. OTHER SERVICES
MARKETING
USI will vigorously market the Software [CONFIDENTIAL TREATMENT]
USI 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.
Sagent will participate in comprehensive, integrated branding and
demand generation programs, as appropriate and within the constraints
of its existing Marketing programs. Proposed activities include press
releases and web-based marketing. Additional activities, including
data warehouse trade show participation, joint seminars, advertising
and collateral will be provided on an as available basis.
MARKETING MATERIALS
You may order marketing materials from us; there may be a standard
charge for certain materials or quantities.
5. TERM
The pricing and services on this schedule shall remain in effect for one
year from the Effective Date below unless otherwise terminated earlier. After
the initial term, this Agreement and all attached Schedules and Exhibits can
renew upon review of USI's business plan.
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EXHIBIT B
PLATINUM ANNUAL MAINTENANCE AND SUPPORT
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Maintenance and Support Agreement begins on next page)
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SAGENT TECHNOLOGY, INC.
[LOGO] PLATINUM ANNUAL MAINTENANCE
AND SUPPORT AGREEMENT
Sagent Technology, Inc. ("Sagent") will provide the Support Services listed
below for the Software and the two contacts ("Designated Contacts") named by
Customer on page 3 of this agreement.
1. SUPPORT
Sagent will establish and maintain an organization and process to provide
support for the Software to Customer. Support shall include (i) diagnosis of
problems or performance deficiencies of the Software and (ii) a resolution of
the problem or performance deficiencies of the Software. Sagent will provide
a toll-free phone software support number on a twenty-four (24) hour, seven
(7) day per week basis. In addition Sagent's Internet based support system is
generally available seven (7) days a week, twenty-four (24) hours a day.
Sagent will use its best efforts to cure, as described below, reported and
reproducible errors in the Software. Sagent utilizes the following four (4)
severity levels to categorize reported problems:
SEVERITY 1 CRITICAL BUSINESS IMPACT
The impact of the reported deficiency is such that the customer is unable to
either use the Software or reasonably continue work using the Software.
Sagent will commence work on resolving the deficiency within one (1) hour of
notification and will engage staff until an acceptable resolution is achieved.
SEVERITY 2 SIGNIFICANT BUSINESS IMPACT
Important features of the Software are not working properly and there are no
acceptable, alternative solutions. While other areas of the Software are not
impacted, the reported deficiency has created a significant, negative impact
on the Customer's productivity or service level. Sagent will commence work on
resolving the deficiency within two (2) hours of notification until an
acceptable resolution is achieved.
SEVERITY 3 SOME BUSINESS IMPACT
Important features of the Software are unavailable, but an alternative
solution is available or non-essential features of the Software are
unavailable with no alternative solution. The customer impact, regardless of
product usage, is minimal loss of operational funtionality or implementation
resources. Sagent will commence work on resolving the deficiency within one
(1) business day of notification and will engage staff during business hours
until an acceptable resolution is achieved.
SEVERITY 4 MINIMAL BUSINESS IMPACT
Customer submits a Software information request, software enhancement or
documentation clarification which has no operational impact. The
implementation or use of the Software by the Customer is continuing and there
is no negative impact on productivity. Sagent will provide an initial
response regarding the request within one (1) business week.
The agreement is not intended as a consulting agreement for customer
services. With respect to severity one (1) reported defficiencies, Sagent may,
with the concurrence of the Customer, elect to send senior support or
development staff to the Customer location to accelerate problem resolution.
Sagent will be responsible for the costs associated with this escalated
problem resolution if the problem is determined to be related to supported
Software. If it is determined that the problem was not related to the
supported Software, the Customer agrees to pay reasonable travel and lodging
expenses in
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addition to Sagent's standard consulting rates. Travel time will be charged
at consulting rates.
2. MAINTENANCE
During the term of this agreement, Sagent Technology, Inc. will provide the
Customer with copyrighted patches, updates, releases and new versions of the
Software along with other generally available technical material. These
maintenance materials including the Software may not be used to increase the
licensed number of versions or copies of the Software. The Customer agrees
not to use or transfer the prior version but to destroy or archive the prior
version of the Software. all patches, updates, release and new versions shall
be subject to the license agreement related to the Software.
3. WARRANTY
Sagent will undertake all 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 Sagent does not guarantee that the problems will be solved or that any
item will be error-free. If the problems are not solved or the Software is
not problem free, Sagent will replace the Software with functionally
equivalent Software at no extra charge to Customer. This agreement is only
applicable to Sagent Software running under the certified environments
specified in the release notes for that product. Sagent will provide the
Customer with substantially the same level of service throughout the term of
this agreement. However, Sagent may from time to time and only upon
reasonable notice to the Customer, discontinue Software products or versions
and stop supporting Software products or versions one year after
discontinuance, or otherwise discontinue any support service. EXCEPT AS
REQUIRED BY LAW, THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR
TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE ARE
PROVIDES "AS IS". Sagent is not liable for incidental, special or
consequential damages for any reason (including loss of data or other
business or property damage), even if forseeable or if Customer has advised
of such a claim. Our liability shall not exceed the fees that Customer has
paid us for this agreement. Customer agrees that the pricing for the services
would be substantially higher but for these limitations.
4. TERM
This agreement shall start on the Effective Date stated below. This agreement
shall run for a period of one (1) year from the Effective Date and shall
automatically renew for consecutive one (1) year periods unless either party
provides written notice of termination within sixty (60) days prior to the
anniversary date of the Effective Date. Payment for each renewal term shall
be due on the renewal date at our then current rates for the Software. This
agreement may be terminated for non-payment or material breach. Fees paid or
due are non-refundable unless Sagent has materially breached this agreement
and has failed to cure the breach after 30 days written notice.
5. GENERAL
(a) Each party acknowledges that it has read this Agreement, they understand
the agreement and agree to be bound by its terms. Further, both parties
agree that this is the complete and exclusive statement of the Agreement
between the parities, which supersedes and merges all prior proposals,
understandings and all other agreements, oral and written, between the
parties relating to this Agreement. This Agreement may not be modified
or altered except by written instrument
Page 12
duly executed by both parties. The Software and the use thereof is
subject to the license agreement related to the Software.
(b) Times by which Sagent will perform under this agreement shall be
postponed automatically to the extent that we are prevented from meeting
them by acts of nature beyond reasonable control.
(c) This agreement and performance hereunder shall be governed by the laws of
the State of California. Venue shall be in Santa ▇▇▇▇▇ County, California.
(d) If any provision of this Agreement is invalid under any applicable
statute or rule of law, it is to that extent, deemed to be omitted.
(e) Customer may not assign or sublicense without the prior written consent
of Sagent, Customer's rights, duties or obligations under this
Agreement to any person or entity, in whole or in part. A sale of
substantially all of Licensee's assets to a third party or any transfer
of more than 50% of the voting stock of Licensee to a third party shall
not constitute an assignment under this license.
(f) The prevailing party in any action related to this agreement shall have
the right to recover its reasonable expenses including attorney's fees.
The term "Software" as used in this agreement means:
Software Name, Version and Number of Copies
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Designated Contacts, full name followed by telephone number and e-mail
address.
CONTACT 1
Name:
-------------------------------------------------------------------------
Telephone #:
-------------------------------------------------------------------
E-mail Address:
---------------------------------------------------------------
CONTACT 2
Name:
-------------------------------------------------------------------------
Telephone #:
-------------------------------------------------------------------
E-mail Address:
---------------------------------------------------------------
During the term of this agreement, the Customer may delete and add Designated
Contacts by sending notification in writing on Customer's letter head and
addressed to Sagent's Vice President of Operations. We may rely on such
notice to make the change.
SAGENT TECHNOLOGY, INC.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------------------------------
Title: V.P. SALES
------------------------------------------------------------------------
Date: 6/25/98
------------------------------------------------------------------------
USINTERNETWORKING, INC.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------------------------------
Address: ONE USI PLAZA, ANNAPOLIS, MD
----------------------------------------------------------------------
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------------------------
Title: PRESIDENT
------------------------------------------------------------------------
Date: 6/25/98
------------------------------------------------------------------------
The Effective Date of this agreement is:
6/25/98
-------------
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