DEVELOPMENT AND LICENSING AGREEMENT
This Development and Licensing Agreement ('Agreement') is made by and
between Abacus Concepts, Inc. ('Abacus'), a California corporation and Sagent
Technology Inc., a California corporation ('Sagent'). Together, Sagent and
Abacus are the only parties hereto. The parties' respective addresses are set
forth on the signature page hereof.
WHEREAS, Abacus develops and markets computer software;
WHEREAS, Abacus owns and/or has rights to certain software that is
compatible with the Microsoft Windows operating system and other software; and
WHEREAS, Sagent and Abacus desire to incorporate certain Abacus software
into that certain Sagent Product as defined below that will be compatible with
the Microsoft Windows operating systems.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 'Affiliate' of a Person means a Person (a) which controls, directly or
indirectly, the first Person, (b) which is controlled, directly or indirectly,
by the first Person, or (c) which is controlled, directly or indirectly, by any
Person qualifying as an Affiliate under clause (a) or (b) above.
1.2 'Advance Royalty Payment' means the aggregate amount of $75,000 payable by
Sagent to Abacus in one advance payment pursuant to section 5.2 of this
Agreement.
1.3 'Agreement' means this Development and Licensing Agreement, as amended,
supplemented, or modified from time to time by the parties in writing.
1.4 'Arbitration Panel' shall have the meaning ascribed to such term in Section
11.1 hereof.
1.5 'Abacus Software' means the SV Software and WB Software.
1.6 'Code' means the United States Bankruptcy Code, as set forth in Title 11 of
the United States Code, as amended from time to time.
1.7 'Confidential Information' means any information, including, without
limitation, any technical information and any information relating to the
present and future business operations or financial condition of the party
disclosing the information, whether such information is written or oral,
including, but not limited to, market information, technical information, data,
devices, trade secrets, techniques, concepts, samples, plans, methods, financial
information, packaging information, formulae, recipes, processes, instructions,
outlines of processes, component parts,
marketing strategies, projections, matters of a business nature (such as
development and improvement of specifications, requirements and preferences,
costs and prices, feasibility studies, research data related to the business of
the disclosing party, methods of conducting business, and systems), all other
items related to the operations and plans (whether current or in development) of
the disclosing party which is marked as confidential at the time of disclosure,
disclosed by one party to the other pursuant to this Agreement. 'Confidential
Information' does not include information that (a) is or becomes generally known
or available by publication, commercial use, or otherwise through no fault of
the receiving party; (b) was known by the receiving party at the time of
disclosure by the disclosing party as evidenced by competent written proof; (c)
is independently developed by the receiving party without use of the disclosing
party's Confidential Information; (d) is lawfully obtained from a third party
who has the right to make such disclosure without breaching an obligation of
confidentiality; (e) is publicly disclosed by the disclosing party in writing;
or (f) is obligated to be produced by the receiving party under an order of a
court of competent jurisdiction, or valid administrative or congressional
subpoena, or otherwise pursuant to applicable law, so long as the receiving
party provides the disclosing party adequate notice prior to such production to
enable the disclosing party to take steps to protect the information from
disclosure.
1.8 'Effective Date' means the date that this Agreement is executed by the
parties, or, if executed on different dates, the date corresponding to the date
on which the final party executes this Agreement.
1.9 'Error' means defect or bug in the Abacus Software delivered to Sagent which
prevents it from performing in accordance with the Specifications and end-user
documentation provided by Abacus.
1.10 'Net Receipts' shall mean the total amounts invoiced by Sagent to customers
with respect to sales of the Abacus Software or Derivative Works, less (i)
freight, packaging, handling or other reasonable shipment expenses, (ii) sales,
use, value-added, excise and other taxes, (iii) insurance, (iv) customs duties
and other governmental charges, (v) cash or trade discounts, (vi) returns or
credits, (vii) bad debts, and (viii) other similar expenses.
1.11 'Person' means any individual, company, corporation, firm, partnership,
joint venture, association, organization, or trust, in each case whether or not
having a separate legal identity.
1.12 'Sagent Product' means any and all commercial versions of that Sagent
product known as Sagent Information Studio or any other future Sagent product in
which the Abacus Software is incorporated by Sagent, in whole or in part
(including any Sagent product manufactured by Sagent for a third party or by
such third party under a license from Sagent which software are distributed
under such third party's name).
1.13 'Source Code' means the human level intelligible instructions regarding the
WB Software module expressed in the high-level technical and specialized
programming language in which the WB Software module was written. Source Code
shall be deemed also to include the computer programming language and all
programmers comments included in the instructions.
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1.14 'Source Materials' means the human intelligible source code listing and
instructions to StatView InstallShield provided by Abacus to enable a reasonably
competent computer programmer to install Abacus Software.
1.15 'Specifications' means the specifications for design and development of the
Abacus Software attached to this Agreement in Addendum 1.
1.16 'SV Software' means Abacus's StatView software, Version 4.55 as modified by
Abacus pursuant to Section 2 and all International versions including Abacus's
electronic end-user instructions training an end-user customer to use same and
any new versions thereof.
1.17 'Term' means the term of this Agreement, as it may be extended or earlier
terminated in accordance with Sections 9.1 and 9.2 hereof.
1.18 'WB Software' means Abacus's White Birch Software module as developed by
Abacus pursuant to Section 2.
2. DEVELOPMENT OF ABACUS SOFTWARE
2.1 PREPARATION OF PROJECT PLAN. Abacus shall prepare and submit to Sagent a
project plan ('Project Plan') for the development of the Abacus Software by
February 28, 1997. The Project Plan shall include the following:
(a) a listing of all items to be delivered to Sagent under this
Agreement ('Deliverables');
(b) a delivery schedule containing milestones for each Deliverable;
and
(c) acceptance tests and criteria for each Deliverable.
Abacus and Sagent have agreed on the Specifications for the Abacus
Software as set forth in Addendum 1 attached hereto. Upon delivery of the
Project Plan by Abacus, Sagent shall have fifteen (15) days in which to review
and approve the Project Plan which such approval shall not be unreasonably
withheld. Upon written approval of the Project Plan by both parties, it will be
marked as Addendum 2 and will be deemed by both parties to have become a part of
this Agreement and will be incorporated by reference. Addendum 2 shall consist
of the following items: Part A - Deliverables, Part B - Milestones and Delivery
Schedule, and Part C - Acceptance Tests and Criteria. If the parties fail to
agree on the Project Plan, the Agreement shall terminate and Abacus shall return
the Advance Royalty Payment.
2.2 DEVELOPMENT OF ABACUS SOFTWARE. Upon delivery of the Project Plan and
receipt of all sums due therefor, Abacus shall commence development of the
Abacus Software that will substantially conform to the requirements set forth in
the Specifications. Abacus is not obligated to develop the Abacus Software
hereunder, and Sagent has not contracted for any development, unless and until
each part of all Addenda are executed by both parties and attached hereto.
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2.3 DELIVERY. For any Deliverable covered by Addendum 2, such Deliverable shall
be delivered on magnetic media in object code format. Delivery shall take place
at a mutual acceptable time and format pursuant to the applicable milestone as
set forth in Part B of Addendum 2. In consideration of Abacus' development with
respect to any Addendum, Sagent shall pay Abacus as set forth in Section 5 of
this Agreement.
2.4 ACCEPTANCE. Sagent shall have thirty (30) days from the date of delivery of
each Deliverable to inspect, test and evaluate it to determine whether the
Deliverable satisfies the acceptance criteria in accordance with procedures set
forth in Part C of Addendum 2, or as established by Abacus and approved by
Sagent prior to testing. If the Deliverable does not satisfy the acceptance
criteria, Sagent shall give Abacus written notice stating why the Deliverable is
unacceptable. Abacus shall have thirty (30) days from the receipt of such notice
to correct the deficiencies. Sagent shall then have fifteen (15) days to
inspect, test and evaluate the Deliverable. If the Deliverable still does not
satisfy the acceptance criteria, Sagent shall have the option of either (1)
repeating the procedure set forth above, or (2) terminating this Agreement
pursuant to Section 9 of this Agreement whereupon Abacus shall return to Sagent
the Advance Royalty Payment except as provided in Section 5.2. If Sagent does
not give written notice to Abacus within the initial thirty (30) day inspection,
testing and evaluation period or any extension of that period, that the
Deliverable does not satisfy the acceptance criteria, Sagent shall be deemed to
have accepted the Deliverable upon expiration of such period.
2.5 DESIGN REVIEW AND SPECIFICATION CHANGES. The parties acknowledge that there
may be additions, deletions or other changes which may affect Abacus's
development of the Abacus Software at any time during the term of this
Agreement. Upon written notice of such desired changes by either party, Abacus
and Sagent shall work together to make any necessary changes to the Project
Plan. Other than as set forth herein, each Part of any Addendum (including
Addendum 2) may change only upon the parties' mutual written agreement.
2.6 OWNERSHIP AND LICENSE OF ABACUS SOFTWARE. Abacus shall be the sole owner of
the Abacus Software. Sagent shall retain no right, title or interest therein
whatsoever other than the license set forth herein and ownership of any changes
made by Sagent to the Source Code. Sagent is the sole owner of the Sagent
Product subject to Abacus's exclusive ownership of and rights in the underlying
Abacus Software.
2.7 WARRANTY, DEFECTS AND REPAIRS. Abacus warrants that the Abacus Software will
substantially conform to the Specifications for ninety (90) days following the
delivery of any master copy of the Abacus Software to Sagent and following the
delivery of any copy of the Abacus Software to an end-user customer as
contemplated by this Agreement. Sagent shall promptly notify Abacus of any
nonconformance to the foregoing warranty. In the event of any nonconformance to
the foregoing warranty as reported in writing to Abacus by Sagent, Abacus will
promptly use its reasonable commercial efforts to test and confirm any reported
Error and will thereafter, at its sole option and expense, (i) promptly repair
or replace the nonconforming Abacus Software, or (ii) in the case of a warranty
claim by an end-user customer, accept return of the nonconforming Abacus
Software and refund to Sagent the applicable royalty fee received by Abacus for
the nonconforming copy of the Abacus Software. Abacus shall use its reasonable
commercial efforts to commence testing of any reported Error(s) no later than
the first working
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day after its receipt of written notice of the nonconformity. The warranty set
forth in this Section 2.7 shall not apply if: (a) the Abacus Software is not
used in accordance with the end-user documentation and the nonconformance is
caused by such use; or (b) the Error is caused by a modification or extension
not made by Abacus or its authorized representative; or (c) the Error is caused
by installation of the Abacus Software in an operating or hardware environment
for which the Abacus Software has not been licensed; or (d) the Error is caused
by a third-party software malfunction.
3. SUPPORT
3.1 SAGENT OBLIGATIONS. Sagent will provide direct first level technical support
for the Abacus Software to end-user customers acquiring the Abacus Software from
Sagent or its distributions as provided by this Agreement. Such support shall
include answering product use questions, diagnosing problems and using
reasonable efforts to provide solutions to problems.
3.2 TECHNICAL SUPPORT. For the consideration set forth in Section 5.4, during
the term hereof Abacus shall provide Sagent (and Sagent only), during Abacus'
ordinary business hours, with the amount of telephone support for the Abacus
Software in accordance with Addendum 3. Sagent shall pay for all documented
telephone toll charges incurred by Abacus in providing such telephone support.
All such support shall be subject to the reasonable availability of qualified
Abacus personnel at Abacus' headquarters facility.
Notwithstanding the foregoing, Abacus shall have no obligation to
support (i) altered, damaged or modified Abacus Software provided such
modifications were not made by Abacus or its authorized representative; (ii)
Errors caused by Sagent's negligence, hardware malfunction or other causes
beyond the reasonable control of Abacus; or (iii) Abacus Software installed in
an operating environment or in a hardware environment for which the Abacus
Software has not been licensed.
4. LICENSE OF ABACUS SOFTWARE BY SAGENT, SOURCE CODE RELEASE AND
OBLIGATIONS OF THE PARTIES
4.1 MODIFICATION LICENSE. Abacus hereby grants to Sagent, under all of Abacus's
intellectual property rights in and to the WB Software, a limited non-exclusive,
non-transferable, irrevocable, license to use, reproduce and prepare derivative
works of the Source Code (the 'Derivative Works') for the sole purpose of
creating, maintaining and enhancing Sagent products for use in connection or
conjunction with the Sagent Products.
4.2 OBJECT CODE REPRODUCTION LICENSE. Abacus hereby grants to Sagent, under all
of Abacus's intellectual property rights in and to the Abacus Software, a
non-exclusive, non-transferable, license to reproduce, in object code format
only, the Abacus Software and/or Derivative Works.
4.3 DISTRIBUTION LICENSE. Abacus hereby grants to Sagent, under all of Abacus's
intellectual property rights in and to the Abacus Software, a non-exclusive,
non-transferable license to distribute copies, in object code format, of the
Abacus Software and/or Derivative Works for use in connection or conjunction
with the Sagent Product.
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4.4 DOCUMENTATION. Abacus shall provide Sagent with an electronic version of the
end-user documentation for the Abacus Software (the 'Documentation'). Abacus
hereby grants to Sagent a non-exclusive, non-transferable, license to use,
reproduce, and distribute the Documentation and to modify, create derivative
works and distribute those derivative works of the documentation to end-users of
the Abacus Software.
4.5 USE OF SOURCE CODE. Sagent shall use the Source Code under carefully
controlled conditions in accordance with and for the limited purposes of this
Agreement, and to inform those employees who are given access to the Source Code
by Sagent that such materials are confidential and proprietary information of
Abacus and disclosed to Sagent as such.
4.6 SAGENT OBLIGATIONS. Sagent shall:
(a) use its reasonable commercial efforts to distribute the Abacus
Software in conjunction or combination with the Sagent Product;
(b) maintain on its staff qualified individuals trained in the use,
demonstration, application and service of Abacus Software;
(c) be responsible for coordinating all warranty claims and product
service for Abacus Software sold in any Sagent Product;
(d) in consideration of the development, use and support the Abacus
Software, pay Abacus all payments as set forth in Section 5 of
this Agreement;
(e) prior to Abacus beginning development of the Abacus Software,
promptly loan to Abacus three (3) Pentium Pro computer systems,
including monitors, mouse and keyboards, in configurations that
Sagent uses in the normal course of its software development
activity. The parties acknowledge and agree that these computers
shall be for Abacus' use through final acceptance of the Abacus
Software as set forth in Part B of Addendum 2 and will be
returned to Sagent thereafter;
(f) be responsible for creating all end-user documentation for Abacus
Software as distributed in conjunction or combination with the
Sagent Product; and
(g) be responsible for engineering the installation of Abacus
Software as contemplated by this Agreement.
4.7 ABACUS OBLIGATIONS. Abacus shall:
(a) provide Sagent with master copies of the Abacus Software in order
for Sagent to incorporate such Abacus Software into Sagent
Product;
(b) provide Sagent with reasonable technical support and assistance
and necessary technical data and other information which
facilitate the incorporation of the Abacus
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Software into the Sagent Product and the configuration of the
Abacus Software with the Sagent Product;
(c) provide Sagent with the most current electronic end-user
documentation for the SV Software. Abacus shall retain all
rights, title and interest therein whatsoever;
(d) provide Sagent with one copy of the current Source Materials in
order for Sagent to install Abacus Software as contemplated by
this Agreement; and
(e) use its reasonable efforts to ensure that updated or revised
versions of the SV Software shall be made available to Sagent no
later than ninety (90) days after such revised version's initial
publication to the general public
4.8 SALES BY SAGENT. Sagent shall sell Abacus Software as distributed in
conjunction or combination with the Sagent Product at prices and on terms which
Sagent determines in its discretion.
4.9 LICENSE OF SOURCE MATERIALS. Abacus also grants a limited, nonexclusive,
nontransferable license without right to sublicense, to read and use the Source
Materials for the sole purpose of installing Abacus Software for end-users as
contemplated by this Agreement. Sagent shall retain no right, title or interest
therein whatsoever other than the license set forth herein.
4.10 TRADEMARKS. 'Abacus Concepts,' 'StatView' and 'White Birch' (hereinafter
'Trademark' or 'Trademarks') and any other trademarks and service marks adopted
by Abacus to identify the Abacus Software belong to Abacus; Sagent will have no
rights in such marks except as expressly set forth herein and as specified in
writing from time to time. Abacus grants Sagent the right to use the Trademarks
in its marketing and distribution of the Abacus Software as contemplated by this
Agreement. Sagent's use of the Trademarks shall be under Abacus's trademark
policies and procedures in effect from time-to-time. Sagent agrees not to use
the Trademarks or any other mark likely to cause confusion with the Trademarks
as any portion of the Sagent's tradename, trademark for the Sagent Product, or
trademark for any other products of Sagent. Sagent shall have the right to use
the Trademarks solely to refer to the Abacus Software.
Sagent agrees with respect to each registered trademark of Abacus, to
include in each advertisement, brochure, or other such use of the trademark, the
trademark symbol 'circle R' and the following statement:
____________________ is a registered trademark of Abacus Concepts, Inc.,
Berkeley, California
Unless otherwise notified in writing by Abacus, Sagent agrees, with
respect to every other trademark of Abacus, to include in each advertisement,
brochure, or other such use of the trademark, the symbol 'TM' and the following
statement:
____________________ is a trademark of Abacus Concepts, Inc.,
Berkeley, California
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Sagent shall not market the Abacus Software in any way which implies
that the Abacus Software are the proprietary product of Sagent or of any party
other than Abacus.
5. PAYMENT
5.1 DEVELOPMENT FEE. In consideration of Abacus' development work and
performance hereunder, Sagent shall pay the sum [*] Dollars ($[*]) to Abacus
as follows:
(a) $[*] due and payable upon Sagent's approval of the Project
Plan which such approval shall not be unreasonably withheld;
(b) $[*] due and payable at a mutually agreeable midway point as
defined in Part B of Addendum 2; and
(c) $[*] due and payable upon delivery and acceptance of the final
version of the Abacus Software as set forth in Part B of Addendum
2.
5.2 ADVANCE ROYALTY PAYMENT. In the event that the final version of the Abacus
Software does not satisfy the acceptance criteria in accordance with the
procedures set forth in Part C of Addendum 2 by December 31, 1997, provided that
the Project Plan is not amended in writing by the parties pursuant to Section
2.5 of this Agreement, Sagent shall have the right to terminate this Agreement
and receive a refund of the Advance Royalty Payment. Notwithstanding the
foregoing, in the event that Sagent has pre-sold the Abacus Software prior to
the delivery of the final version, the Advance Royalty Payment shall
automatically become nonrefundable.
5.3 ROYALTY FEES. For each and every copy of Abacus Software and/or Derivative
Work as distributed in conjunction or combination with the Sagent Product which
Sagent or a third party under a license from Sagent distributes (directly or
indirectly) to a third party, Sagent shall pay Abacus [*] percent ([*]%) of
Sagent's Net Receipts for such Abacus Software or Derivative Work as distributed
in conjunction or combination with the Sagent Product. On the Effective Date of
this Agreement, Sagent shall pay Abacus an advance royalty payment in the amount
of $[*] ('the Advance Royalty Payment'). The Advance Royalty Payment will be
offset against any royalty payments payable to Abacus pursuant to this Section
5.2. Any royalty payments payable to Abacus pursuant to this Section 5.2 in
excess of the Advance Royalty Payment will be paid to Abacus quarterly within
forty-five (45) days after the end of each calendar quarter. Within forty-five
(45) days after the end of each calendar quarter, Sagent will send Abacus a
written report on the distribution of all copies of Abacus Software in
conjunction or combination with the Sagent Product during the quarter. Each
report will specify (i) the number of copies of the Sagent Product distributed,
itemized by version and name; (ii) the total applicable royalties; (iii) the
amount of any unused Advance Royalty Payments being credited; and (iv) the net
amount due Abacus. If no royalties are owed for any quarter, such fact shall be
stated.
Abacus will have the right, not more than once per calendar year during
the term of this Agreement through an independent certified public accountant
reasonably acceptable to Sagent, upon not less than fifteen (15) days prior
written notice to Sagent, to conduct a review at Sagent's
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* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
principal business offices of all Sagent's books and records relating to
Sagent's sale and distribution of the Sagent Product to which royalties are
related, in which instance Sagent shall reasonably cooperate with Abacus in
making all such records available. If any such audit uncovers a shortfall in
royalty payments hereunder in excess of ten percent (10%) for the audited period
(and no audit shall occur (a) more than once in any 12 month period and (b) for
any period which was previously audited), all expenses of such audit shall be
paid by Sagent.
5.4 SUPPORT FEES. In consideration of the support services as set forth in
Section 3.2, Sagent shall pay Abacus the annual support fee set forth in
Addendum 3 attached hereto and made a part hereof. Such annual support fee shall
be paid in advance of the term in which support services are
to be provided; such support services are expressly conditioned upon the prior
receipt of such fee. Such support shall be provided for one (1) year beginning
ninety (90) days from the acceptance of the final version of the Abacus Software
and shall be extended each year thereafter for an additional one (1) year term
unless terminated by either party at the end of the original support term or at
the end of any renewal support term by giving the other party written notice at
least ninety (90) days prior to the end of any such support term; provided that
Abacus shall not terminate its support services for the three (3) year term of
this Agreement except for a failure to pay the annual support fees on the part
of Sagent. In the event Sagent fails to make any payment or otherwise elects to
discontinue the support services except due to a breach by Abacus of its support
obligations, then to reinstate or renew such services, Sagent must first pay
Abacus the current annual support fee and all past support fees. Said support
fee may be increased annually by not more than the increase in the Consumer
Price Index for the applicable period, and any increase shall be upon at least
thirty (30) days prior written notice. If Abacus changes the annual maintenance
fees in the middle of any maintenance period, said change shall not apply to the
maintenance services provided during such period.
5.5 BUNDLES. Sagent may license or distribute the Abacus Software and/or
Derivative Work as part of a package or bundle with the Sagent Product. The
price of the Abacus Software or Derivative Work, as the case may be, for the
purposes of computing royalties hereunder shall be: (the standard Sagent retail
price of the Abacus Software or Derivative Works, as the case may be, in the
bundled product divided by the standard retail price of all separately
obtainable products in the bundle, including the Abacus Software or Derivative
Works, in the bundled product) multiplied by (the actual retail price of the
bundled product charged by Sagent for the bundled product).
6. REPRESENTATIONS AND WARRANTIES
6.1 SAGENT. Sagent represents and warrants as follows: (a) Sagent is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California; (b) Sagent has all requisite corporate power and
authority to enter into this Agreement and to carry out and perform its
obligations under the terms of this Agreement; (c) this Agreement has been duly
authorized, executed and delivered by Sagent and is a valid and binding
obligation of Sagent enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency moratorium, and other laws of
general application affecting the enforcement of creditors' rights; and (d) the
execution, delivery, and performance of and compliance with this Agreement does
not and will not conflict with, or constitute a default under, or result in the
creation of, any mortgage, pledge, lien, encumbrance, or charge upon any of the
properties or assets of
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Sagent, nor result in any violation of (i) any term of Sagent's articles of
incorporation or bylaws, (ii) in any material respect, any term or provision of
any mortgage, indenture, contract, agreement, instrument, judgment or decree or
(iii) to the best of Sagent's knowledge, any order, statute, rule or regulation
applicable to Sagent, the violation of which would have a material adverse
effect on Sagent's business or properties.
6.2 ABACUS. Abacus represents and warrants as follows: (a) Abacus is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of California; (b) Abacus has all requisite corporate power
and authority to enter into this Agreement and to carry out and perform its
obligations under the terms of this Agreement including, but not limited to, the
right to grant the licenses granted herein; (c) the Abacus Software does not
infringe any United
States patent existing as of the Effective Date, copyright, trademark, or other
intellectual property right of any third Person; (d) this Agreement has been
duly authorized, executed, and delivered by Abacus and is a valid and binding
obligation of Abacus enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, moratorium, and other laws of
general application affecting the enforcement of creditors' rights; and (e) the
execution, delivery, and performance of and compliance with this Agreement does
not and will not conflict with, or constitute a default under, or result in the
creation of, any mortgage pledge, lien, encumbrance or charge upon any of the
properties or assets of Abacus, nor result in any violation of (i) any term of
Abacus's certificate of incorporation or bylaws, (ii) in any material respect,
any term or provision of any mortgage, indenture, contract, agreement,
instrument, judgment or decree or (iii) to the best of Abacus's knowledge, any
order, statute, rule or regulation applicable to Abacus, the violation of which
would have a material adverse effect on Abacus's business or properties.
7. DISCLAIMER AND LIMITATION OF LIABILITIES
7.1 DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT, ABACUS MAKES NO
WARRANTIES, EITHER EXPRESS OR IMPLIED, CONCERNING THE ABACUS SOFTWARE, AND
HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
7.2 LIMITATION OF LIABILITY. EXCEPT FOR ABACUS'S OBLIGATIONS UNDER SECTION 8
BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR
ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ABACUS SOFTWARE, EVEN IF INFORMED OF THE POSSIBILITY
THEREOF IN ADVANCE. EXCEPT FOR ABACUS'S OBLIGATIONS UNDER SECTION 8 BELOW, IN NO
EVENT WILL ABACUS'S LIABILITY IN CONNECTION WITH THE ABACUS SOFTWARE OR THIS
AGREEMENT EXCEED AMOUNTS PAID TO ABACUS BY SAGENT HEREUNDER. THESE LIMITATIONS
APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.
8. INDEMNITY
8.1 INDEMNITY. Abacus shall at its expense, defend, or at its option, settle any
claim, demand, suit or proceeding made or brought against Sagent for
infringement of any United States patent
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existing, as of the Effective Date, copyright, trade secret, trademark or any
other intellectual property right by the use, reproduction and distribution of
the Abacus Software by Sagent in accordance with this Agreement and shall pay
any settlements entered into or damages awarded against Sagent to the extent
based on such a claim. Abacus's obligations under this section shall only apply
if (1) Sagent promptly notifies Abacus in writing as soon as Sagent becomes
aware of any actual or threatened infringement claim and (2) grants Abacus
exclusive control over its defense and settlement. The foregoing obligation in
this Section 8 will cover only those releases of the Abacus Software delivered
hereunder, but under no circumstances shall it cover any modifications made
based on specifications provided by Sagent or any third party if the
infringement would have been avoided without such modifications.
Notwithstanding the foregoing, Abacus's obligations under this Section 8
will not cover claims that the Abacus Software infringes any third party's
rights (i) as used in combination with any software or hardware not supplied by
Abacus if such claim could have been avoided but for such combination and/or
(ii) if the Abacus Software has been modified by Sagent if such claim could have
been avoided but for such modification.
If an infringement claim is asserted or if Abacus believes one likely,
Abacus will have the right, but not the obligation at its sole expense, to
procure a license from the person claiming or likely to claim infringement or
otherwise to take steps to modify the Abacus Software to avoid the claim of
infringement. In such case, modification of the Abacus Software for this purpose
shall not materially impair the operation of the Abacus Software for use with
the Sagent Product.
9. TERM AND TERMINATION
9.1 TERM. The Term of this Agreement shall be for three (3) years starting with
the Effective Date (the 'Initial Term'), and shall automatically renew for
additional, consecutive terms of one (1) year each as of the anniversary date
starting with the expiration of the Initial Term, unless either party provides
the other with written notice at least ninety (90) days prior to the expiration
of the then current term of such party's intent to terminate the Agreement, in
which case this Agreement shall terminate as of the then current term's
expiration date.
9.2 TERMINATION FOR CAUSE. Either party shall have the right to terminate this
Agreement immediately upon written notice at any time if (a) the other party is
in breach of any material warranty, term, condition, or covenant of this
Agreement, and such breaching party fails to cure such breach within thirty (30)
calendar days following its receipt from the nonbreaching party of a written
notice to the breaching party of the breach and of the non-breaching party's
intention to terminate unless such breach is cured within such 30 days; or (b)
the other party (i) becomes insolvent, (ii) fails to pay its debts or perform
its obligations in the ordinary course of business as they mature, (iii) admits
in writing its insolvency or inability to pay its debts or perform its
obligation as they mature, or (iv) makes an assignment for the benefit of
creditors.
9.3 EFFECT OF TERMINATION. Upon any termination or expiration of this Agreement,
all licenses granted to Sagent with respect to the WB Software (including Source
Code) shall survive. In addition, the following sections shall also survive;
2.6, 5.3, 6, 7, 8, 9, 10, 11, 12, and 13. No such termination or expiration will
relieve either party from any liability arising from any breach of this
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Agreement occurring prior to termination. Neither party will be liable to the
other party or any third party for damages of any sort solely as a result of
terminating this Agreement in accordance with its terms. Upon termination,
amounts payable or accrued to Abacus under this Agreement shall become
immediately due and payable.
10. CONFIDENTIALITY
Each party will protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that each party
uses to protect its own like information but in no event less than reasonable
care. Neither party will use the other's Confidential Information for purposes
other than those necessary to further the purposes of this Agreement. Neither
party will disclose to third parties the other's Confidential Information
without the prior written consent of the other party. The parties' obligations
hereunder with respect to Confidential Information shall survive the expiration
or earlier termination of this Agreement. Source Code and Source Materials shall
automatically be considered Confidential Information.
11. ARBITRATION
11.1 ARBITRATION. Except as set forth in this Section 11, any claim or
controversy arising out of, under, or related to this Agreement, any breach
thereof or any causes of action or claims the parties have with respect thereto,
which claim or controversy cannot be resolved informally, shall be settled in
Palo Alto, California by arbitration before a single arbitrator agreeable to
both parties under the then current commercial rules of the American Arbitration
Association. If the parties cannot agree on an arbitrator within sixty (60) days
after a demand for arbitration has been requested in writing by either of them,
then arbitration shall proceed before a single arbitrator appointed by the
American Arbitration Association under its then current commercial rules. Such
arbitrator shall have experience in the computer software industry and shall be
either a business executive or a lawyer who either has participated previously
in arbitration or dispute resolution proceedings. Any arbitration shall consist
of not more than three (3) days of hearings all of which shall occur within
sixty days after the arbitrator has been selected. The discovery permitted in
any arbitration shall be limited as follows: either party shall have the right
to take up to five days combined of deposition testimony (eight hour days) from
the other party's percipient witnesses (those witnesses who are listed by a
party as those persons which the party intends to call on its behalf in the
arbitration.) A party shall list all such witnesses and send such list to the
other party within ten (10) days after the arbitrator has been selected and/or
those witnesses who are third parties who may not participate in the
arbitration. Any deposition session lasting more than four hours shall count as
an eight hour day. All such discovery shall occur prior to the first arbitration
hearing date. All hearing days for any arbitration shall occur within two weeks
after the first day of such hearing. The arbitrator shall issue a written
decision with findings of fact and reason for his (her) decision within two
weeks after the final hearing date. The arbitration award shall be specifically
enforceable, and judgment upon any award rendered pursuant to the arbitration
may be entered in any court with jurisdiction over the parties and subject
matter of the dispute. Notwithstanding any other provision of this Section 11,
either party may seek injunctive relief (temporary, preliminary and/or
permanent) in a court of law for any breach by either party of the other's
proprietary rights or breach of a party's non-disclosure obligations as set
forth herein. The arbitrator shall have no right to award punitive damages or
any equitable relief of any kind.
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11.2 FEES AND EXPENSES. In any arbitration, enforcement proceeding based
therein, or any other litigation between the parties arising out of or related
to this Agreement, the prevailing party therein shall be entitled to have its
reasonable attorneys' fees, reasonable arbitration expenses, related litigation
costs and costs of suit (if any) paid by the nonprevailing party. In the case of
arbitration, the arbitrator shall make such award; in any litigation, the court
hearing the dispute shall make such determination.
12. NOTICES
All notices, waivers, and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given when
delivered by prepaid certified mail or registered mail, receipt acknowledged or
hand delivery (receipt acknowledged) or dispatched (with reasonable evidence of
receipt) by telex, telegraph, or other means of electronic facsimile
transmission, or three (3) days after being sent by an internationally
recognized overnight courier service, addressed to the party to whom the notice
is intended to be given at the addresses and addressees specified below:
To Sagent: Sagent Technology, Inc.
2225 E. Bayshore Road, Ste. 100
Palo Alto, CA 94303
Telephone: (415) 493-7100
Facsimile: (415) 493-1290
Attention: Kathy Gelin
with a copy to:
Soraya N. Rashid
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
To Abacus: Abacus Concepts, Inc.
1918 Bonita Avenue
Berkeley, CA 94704-1038
Telephone: (510) 540-1949
Facsimile: (510) 540-0260
Attention: Dan Feldman
with a copy to:
J. F. Petruzzelli
Wise & Shepard LLP
3030 Hansen Way, Suite 100
Palo Alto, California 94304
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Either party may from time to time designate a different address and addressee
as to itself by notice sent in accordance with this Section 12.
13. GENERAL
13.1 EFFECT OF BANKRUPTCY. The parties hereto expressly intend that Sagent, as a
licensee of Abacus's intellectual property, shall be afforded all of the
protections afforded to a licensee under Section 365(n) of the Code so that the
Trustee or Debtor in Possession, as defined in the Code, will not interfere with
Sagent's rights to the Abacus Software and Source Code as provided in the
Agreement, as set forth in Section 365(n) of the Code. In the event of the
bankruptcy of Abacus, Abacus shall be deemed to be the debtor/licensor under
Section 365(n) of the Code; Sagent shall be deemed to be the licensee under
Section 365(n) of the Code; the Agreement and license of the Abacus Software
thereunder shall be deemed to be an executory contract under Section 365(n) of
the Code; the Abacus Software and Source Code shall be deemed to be intellectual
property under Section 365(n) of the Code; and the Media shall be deemed to be
the embodiment of the Source Code under Section 365(n) of the Code.
13.2 FORCE MAJEURE. Neither party will be liable for any failure or delay in its
performance under this Agreement due to causes, including, but not limited to,
acts of God, acts of civil or military authority, fire, epidemic, flood,
earthquake, riot, war, sabotage, labor shortage, or dispute, and governmental
action, which are beyond its reasonable control; provided however, that the
delayed party (a) gives the other party written notice of such cause promptly,
and in any event within fifteen (15) calendar days of discovery thereof, and (b)
uses its reasonable efforts to correct such failure or delay in its performance.
13.3 INDEPENDENT PARTIES. None of the provisions of this Agreement shall be
deemed to constitute a partnership, joint venture, or any other such
relationship between the parties hereto, and neither party shall have any
authority to bind the other in any manner. Neither party shall have or hold
itself out as having any right, authority, or agency to act on behalf of the
other party in any capacity or in any manner, except as may be specifically
authorized in this Agreement.
13.4 ANNOUNCEMENTS. The parties shall consult with each other prior to making
any public announcement concerning any of the transactions contemplated in this
Agreement, and shall cooperate to issue appropriate joint press releases in
connection with the execution of this Agreement.
13.5 TAXES. In the event that taxes or fees (other than withholding taxes or
taxes on income of Abacus arising out of this Agreement) such as, but not
limited to, customs, technology transfer, sales, use, value-added, or other
taxes, duties, or imposts are imposed or levied on the parties arising out of or
related to this Agreement, Sagent shall be responsible for the payment of same.
13.6 ASSIGNMENT. The rights and liabilities of the parties hereto will bind and
inure to the benefit or their respective successors, executors, and
administrators, as the case may be; however, except to the extent expressly
provided herein, neither party may assign or delegate its obligations under this
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Agreement, either in whole or in part, without the prior written consent of the
other, other than (i) to an Affiliate or (ii) to a Person into which it has
merged or which has otherwise succeeded to all or substantially all of such
party's business and assets to which this Agreement pertains and which has
assumed in writing or by operation of law its obligations under this Agreement.
Any attempted assignment in violation of the provisions of this Section will be
void.
13.7 APPLICABLE LAW. The validity, construction, and performance of this
Agreement will be governed by and construed in accordance with the laws of the
State of California, without regard to the principles of conflicts of law, as if
such Agreement were performed entirely within the State of California.
13.8 SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid, or unenforceable, such provision will be enforced to the
maximum extent permissible and the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
13.9 NO WAIVER. Failure by either party to enforce any provision of this
Agreement will not be deemed a waiver of future enforcement of that or any other
provision.
13.10 NO RIGHTS IN THIRD PARTIES. This Agreement is made for the benefit of
Sagent and Abacus and their respective Affiliates, if any, and not for the
benefit of any third parties.
13.11 MISCELLANEOUS. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which collectively will
constitute one and the same instrument. The headings and captions used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. This Agreement will be interpreted
fairly in accordance with its terms and without any strict construction in favor
of or against either party based on draftsmanship of the Agreement or otherwise.
13.12 COMPLETE AGREEMENT. This Agreement, including all exhibits and documents
directly referenced, constitutes the entire agreement between the parties with
respect to its subject matter superseding and rendering void any and all prior
or contemporaneous understandings or agreements, written or oral, regarding such
subject matter. No amendment to or modification of this Agreement will be
binding unless in writing and signed by a duly authorized representative of both
parties.
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IN WITNESS WHEREOF, Sagent and Abacus have executed this Agreement on
the dates noted below.
ABACUS CONCEPTS, INC.
Date: January 22, 1997 /s/ Daniel S. Feldman, Jr.
----------------------------
By: Daniel S. Feldman, Jr.
------------------------
Title: President & CEO
------------------------
SAGENT TECHNOLOGY, INC.
Date: January 22, 1997 /s/ Kenneth C. Gardner
----------------------------
By: Kenneth C. Gardner
------------------------
Title: President & CEO
------------------------
Addenda to the Development & License Agreement:
Addendum 1 - Specifications
Addendum 2
Part A - Deliverables
Part B - Milestones and Delivery Schedule
Part C - Acceptance Tests and Criteria
Addendum 3 - Support Services
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ADDENDUM 1
SPECIFICATIONS
(FUNCTIONS, FEATURES, SYSTEMS REQUIREMENTS, DESCRIPTION OF DELIVERABLES)
PLATFORMS SUPPORTED: MICROSOFT WINDOWS 95, NT 3.51 AND 4.0
StatView for Sagent
One button launch of StatView 4.55 and subsequent versions from within
Sagent Information Studio
Sagent will integrate StatView file format. Code or specifications to be
supplied by StatView
Sagent will implement a StatView 'sink' inside Information Studio to
launch StatView and opens the StatView Dataset
StatView for Sagent will only be sold to customers with Sagent's Data
Mart Server products. It will not be sold stand alone to customers who
do not own a license to other Sagent products.
White Birch - Integration of the StatView formula expression component into the
Sagent Information Studio White Birch will be delivered as a single executable
that includes:
1. User Interface, including:
A. General StatView formula interface
B. Interface for specification of attributes for calculated
variables
2. Computation engine, accessible and executable through property
sheet
This executable will be installed on both client AND server but
computation will take place solely on server.
White Birch will be in all ways functionally similar to formulas in StatView 4.5
with the exceptions noted below. Specifically, this means that:
1. For all StatView user functions that take variables as arguments,
in White Birch these user functions will take columns from Sagent
tables.
2. If the table columns in White Birch expressions are N rows long,
then the table columns resulting from White Birch calculations
will also be N rows long, even when every value in that column is
the same (e.g., Mean(Column 1)
White Birch will differ from the StatView formula component in the
following ways:
1. The computation engine will be optimized to perform a single pass
on Sagent data records wherever possible. Preferably, the UI will
allow definition of > 1 expression, and attribute specification
for each expression that is created as a consequence of this
multiple expression interface.
2. The UI and computation will support Split By functionality, thus
generating separate results for rows belonging to different
levels of nominal ordinal variables.
3. Abacus will provide interfaces through which Abacus-specific
metadata, e.g., the StatView Class attribute, can be specified.
This will be both a COM (runtime) interface and possible a UI
interface
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as well (the latter could be made available for specification of
scheme as well as within White Birch steps). Sagent will use this
interface when writing out files to the StatView format for
one-button integration.
4. StatView expressions will be suitably parameterized to allow
Sagent-driven substitution of variables through property sheets.
White Birch specifically will not support:
1. Creation of results in summary format. For those expressions that
compute results that are not row-dependent, these could be
displayed in summary tables.
This will not be supported in this deliverable.
2. White Birch will not support an explicit interface for 'binning'
continuous variables to nominal groups and other interfaces that
are specific to Recode operations that are currently supported in
StatView 4.5.
3. White Birch will not include specific interfaces for Random and
Series user functions, such as exist in StatView 4.5 for Windows.
4. White Birch will not be used as a source step in dataflow plans,
thus no interface is necessary for specifying #rows/#columns
within the formula interface.
5. Criteria/filtering functionality. This will be provided by other
dataflow steps.
To support White Birch, Sagent will provide:
1. Any optimization of sequential dataflow steps related to data
access.
2. Metadata for data in Sagent tables, including
1. Table and column names
2. Column type (Real, Integer, String, Date/Time, Currency)
3. Column length (# rows)
4. StatView Class attribute (Continuous, Nominal, Ordinal,
Informative)
THE FOREGOING ADDENDUM 1 IS AGREED TO AND ACCEPTED BY THE PARTIES:
Abacus Concepts, Inc. Sagent Technology, Inc.
Name: Daniel S. Feldman, Jr. Name: Kenneth C. Gardner
------------------------------- ----------------------------
Title: President & CEO Title: President & CEO
------------------------------- ----------------------------
Signature: /s/ Daniel S. Feldman, Jr. Signature: /s/ Kenneth C. Gardner
------------------------------- -----------------------
Date: January 22, 1997 Date: January 22, 1997
------------------------------- ----------------------------
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ADDENDUM 2
PART A - LIST OF DELIVERABLES
THE FOREGOING PART A ADDENDUM 2 IS AGREED TO AND ACCEPTED BY THE PARTIES:
Abacus Concepts, Inc. Sagent Technology, Inc.
Name: Name:
--------------------- -----------------------
Title: Title:
--------------------- -----------------------
Signature: Signature:
--------------------- -----------------------
Date: Date:
--------------------- -----------------------
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ADDENDUM 2
PART B - MILESTONE AND DELIVERY SCHEDULE
THE FOREGOING PART B ADDENDUM 2 IS AGREED TO AND ACCEPTED BY THE PARTIES:
Abacus Concepts, Inc. Sagent Technology, Inc.
Name: Name:
--------------------- -----------------------
Title: Title:
--------------------- -----------------------
Signature: Signature:
--------------------- -----------------------
Date: Date:
--------------------- -----------------------
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ADDENDUM 2
PART C - ACCEPTANCE TESTS AND CRITERIA
THE FOREGOING PART C ADDENDUM 2 IS AGREED TO AND ACCEPTED BY THE PARTIES:
Abacus Concepts, Inc. Sagent Technology, Inc.
Name: Name:
--------------------- -----------------------
Title: Title:
--------------------- -----------------------
Signature: Signature:
--------------------- -----------------------
Date: Date:
--------------------- -----------------------
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Development and Licensing Agreement - Abacus Concepts Inc. and Sagent Technology Inc.
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