Exclusive Distribution Agreement - Sagent Technology Inc. and Sagent UK Ltd.
EXCLUSIVE DISTRIBUTION AGREEMENT
This Exclusive Distribution Agreement ('Agreement'), effective as of
the 1st day of January, 1998 (the 'Effective Date'), is entered into by and
between Sagent Technology, Inc., having offices at 2225 E. Bayshore Rd., Suite
100, Palo Alto, California 94303, U.S.A. ('Sagent'), and Sagent U.K. Ltd.,
having offices at Premier House, Forest Court, Oaklands Park, Workingham
RG41 2FD, England ('Distributor').
Sagent is in the business of developing and licensing computer
software. Distributor desires to market and distribute such computer software in
England, and Sagent agrees to authorize Distributor to so market and distribute
such computer software, pursuant to the terms and conditions set forth below.
Now, therefore, in consideration of the foregoing and the mutual
covenants and conditions contained herein, the parties agree as follows:
1.1 'Products' shall mean those products listed in Exhibit A attached
hereto, as such products may be added to or abandoned by Sagent in Sagent's sole
discretion from time to time during the term of this Agreement.
1.2 'Sagent Marks' shall mean those trademarks, tradenames and
servicemarks listed in Exhibit B attached hereto, as such trademarks, tradenames
and servicemarks may be added to or removed by Sagent in Sagent's sole
discretion from time to time during the term of this Agreement.
1.3 Sale and Purchase of Products. All references in this Agreement to
the 'sale' or 'selling' of Products shall mean a license to use such Products
and sale of the tangible media on which the Products are distributed. All
references in this Agreement to the 'purchase' of Products shall mean a license
to use such Products and the purchase of the tangible media on which the
Products are distributed.
1.4 'Territory' shall mean the member countries of the European Union.
1.5 'Year 1' shall mean the period commencing on the Effective Date and
ending on December 31, 1998.
1.6 'Year 2' shall mean the period commencing on January 1, 1999 and
ending on December 31, 1999.
1.7 'Year 3' shall mean the period commencing on January 1, 2000 and
ending on December 31, 2000.
2.1 Appointment of Distributor. Conditioned upon Distributor's
continued satisfaction of the terms and conditions of this Agreement, Sagent
hereby appoints Distributor, and Distributor hereby accepts appointment, as
Sagent's exclusive Distributor for the licensing and distribution of Products to
customers in the Territory only for use in the Territory only. Distributor shall
not reproduce or sell the Products, and Distributor shall not license or
distribute the Products except as expressly set forth in this Agreement.
Distributor agrees that it shall not offer for sale, sell, license or otherwise
distribute Products acquired by it from any entity other than directly from
Sagent without the prior written approval of Sagent.
2.2 Distribution outside the Territory. Distributor shall limit its
sales activities with respect to the Products to customers located in the
Territory, and shall refrain from marketing, licensing or selling the Products
outside of the Territory except to the extent such activities may not be
restricted under applicable law.
2.3 Appointment of Subdistributors. Distributor may appoint
subdistributors to act on the Distributor's behalf only on prior written
approval of Sagent; provided, however, that any compensation to such
subdistributors shall be solely the Distributor's responsibility. Any agreement
with such agent or subdistributor with respect to Products shall be coterminous
with this Agreement.
2.4 Independent Contractor Status. The relationship of Sagent and
Distributor established by this Agreement is that of independent contractors,
and neither party is an employee, agent, partner or joint venturer of the other.
Distributor shall not be considered an agent or legal representative of Sagent
for any purpose, and neither Distributor nor any director, officer, agent, or
employee of Distributor shall be, or be considered, an agent or employee of
Sagent. Distributor is not granted and shall not exercise the right or authority
to assume or create any obligation or responsibility on behalf of or in the name
of Sagent. All sales and other agreements between Distributor and its customers
are Distributor's sole responsibility and will have no effect on Sagent's
obligations under this Agreement.
2.5 Operations and Expenses. The detailed operations of Distributor
under this Agreement are subject to the sole control and management of
Distributor. Distributor shall be responsible for all of its own expenses and
employees. Distributor shall provide, at its own expense, such office space and
facilities, and hire and train such personnel, as may be required to carry out
its obligations under this Agreement. Distributor agrees that it shall incur no
expense chargeable to Sagent, except as may be specifically authorized in
advance in writing in each case by Sagent.
2.6 No Other Rights. Except as expressly provided in this Agreement, no
right, title or
interest is granted by Sagent to Distributor. No right, title or interest is
granted by Sagent to Distributor relating to products other than the Products.
Notwithstanding Section 2.1 above, Sagent reserves the right to sell and
distribute the Products directly to the customers that are set forth in Exhibit
C attached hereto ('House Accounts').
2.7 No Conflicts. Distributor represents and warrants that, as of the
Effective Date, it is not involved, directly or indirectly, in any activities
involving products which compete or have the potential to compete with the
Products, including but not limited to the distribution of competing product
lines ('Competing Activities'). Distributor agrees that it shall not enter into
any Competing Activities in the Territory during the term of this Agreement and
for a period of five (5) years afterward. If Distributor becomes involved in any
Competing Activities, Distributor shall promptly inform Sagent of such
involvement, and Sagent shall have, in addition to all other remedies to which
it may be entitled, the right to terminate this Agreement without liability at
any time thereafter pursuant to Section 14.2.
3. LICENSE OF SAGENT MARKS
3.1 License. Subject to the terms and conditions of this Agreement,
Sagent grants to Distributor a non-transferable, revocable license, without
right of sublicense, to use the Sagent Marks in the Territory solely in
connection with the sale, distribution and advertisement of the Products.
Distributor shall not use the Sagent Marks except as expressly permitted herein.
3.2 Restrictions. All representations of the Sagent Marks that
Distributor intends to use shall first be submitted to Sagent for approval of
design, color and other details or shall be exact copies of those provided by
Sagent. Distributor shall fully comply with all guidelines, if any, communicated
by Sagent concerning the use of the Sagent Marks. Distributor shall not alter or
remove any trademarks, servicemarks, tradenames or other marks affixed to the
Products by Sagent, nor affix the Sagent Marks to any Product. Except as set
forth in this Article 3, nothing contained in this Agreement shall grant or
shall be deemed to grant to Distributor any right, title or interest in or to
the Sagent Marks. All uses of the Sagent Marks shall inure solely to the benefit
of Sagent, and Distributor shall obtain no rights with respect to any of the
Sagent Marks, other than the right to distribute Products as set forth herein,
and Distributor hereby irrevocably assigns to Sagent all right, title and
interest held by Distributor, if any, in or to any of the Sagent Marks. At no
time during or after the term of this Agreement shall Distributor challenge or
assist others in challenging the Sagent Marks (except to the extent expressly
entitled by applicable law) or the registration thereof or attempt to register
any trademarks, servicemarks, marks or trade names confusingly similar to the
Sagent Marks. Upon any termination or expiration of this Agreement, or the
election of Sagent pursuant to Section 4.2 below, Distributor shall immediately
cease to use any and all of the Sagent Marks, and any listing by Distributor of
any Sagent Mark in any telephone book, directory, public record or elsewhere
shall be removed by Distributor as soon as possible, but in any event not later
than the subsequent issue of such publication.
3.3 Infringement. Distributor shall promptly notify Sagent of any
actual or suspected infringements, imitations, or unauthorized use of the Sagent
Marks by third parties of which
Distributor becomes aware. Sagent shall have the sole right, at its expense, to
bring any action on account of any such infringements, imitations or
unauthorized use, and Distributor shall cooperate with Sagent, as Sagent may
reasonably request, in connection with any such action brought by Sagent. Sagent
shall retain any and all damages, settlement and/or compensation paid in
connection with any such action brought by Sagent.
3.4 Registered User Agreements. Sagent and Distributor shall enter into
registered user agreements with respect to the Sagent Marks pursuant to
applicable trademark law requirements in the Territory, if any. Distributor or
Sagent, at Sagent's sole discretion, shall be responsible for proper filing of
registered user agreements and all such other required registrations relating to
the legal protection of the Sagent Marks with governmental authorities in the
Territory and shall pay all costs or fees associated with such filing(s).
4. OBLIGATIONS OF DISTRIBUTOR
4.1 Diligence. Distributor shall use its best efforts to promote the
marketing and distribution of the Products.
4.2 Minimum Revenue Requirements. In the event Distributor fails to
meet the minimum revenue requirements set forth in Exhibit E attached hereto,
then, notwithstanding anything in this Agreement to the contrary, and at
Sagent's election and not obligation, (i) Sagent shall be free to appoint other
distributors for its Products in the Territory, (ii) Distributor shall not have
any exclusive sale, marketing or distribution rights to the Products, (iii) the
license grant of Article 3 to the Sagent Marks shall terminate, and (iv)
notwithstanding anything to the contrary in Section 5.1 below, the Prices paid
by Distributor for the Products shall be equal to [*] percent ([*]) of the
applicable List Prices.
4.3 Minimum Revenue Guarantee. Distributor hereby guarantees that the
aggregate amount of payments received by Sagent from Distributor under this
Agreement during each of Year 1, Year 2 and Year 3 shall equal or exceed the
amounts of [*] dollars ([*]), [*] dollars ([*]) and [*] dollars ([*]),
respectively (the 'Guaranteed Minimums'). Within thirty (30) days after the end
of each of Year 1, Year 2 and Year 3, Distributor shall pay Sagent the
difference between the applicable Guaranteed Minimum and the actual aggregate
amount of payments received by Sagent from Distributor under this Agreement
during such Year 1, Year 2 or Year 3, respectively, if such actual aggregate
amount is less than the applicable Guaranteed Minimum.
4.4 Costs and Expenses. Except as expressly set forth herein,
Distributor shall be solely responsible for all costs and expenses related to
the advertising, marketing, promotion, and distribution of the Products and for
performing its obligations hereunder.
4.5 Promotional Materials. Distributor shall maintain an adequate
inventory of Sagent's current sales materials and samples ('Sales Materials')
and shall use such Sales Materials in an efficient and effective manner to
promote the sale of the Products in the Territory.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
4.6.1 Annual Financial Reports. Distributor shall provide to
Sagent annual audited financial reports, which reports shall (i) be provided to
Sagent no later than two (2) months after the close of Distributor's applicable
fiscal year, and (ii) be treated as Confidential Information pursuant to the
terms of Article 11 below.
4.6.2 General Market Information. Distributor shall provide to
Sagent information regarding general market conditions and competitors on a
regular basis, but no less than once per calendar quarter.
4.6.3 Sales Activities. Within thirty (30) days after the end
of each calendar quarter, Distributor shall send to Sagent a sales activities
report including the names of customers, quantities of Products purchased,
dollar amounts invoiced to and received from such customers, and customer
backlog and inventory status of Products, and further shall maintain records of
4.7 Relations with Customers. Distributor shall process and ship each
customer order in a timely fashion. Distributor shall provide to customers any
and all instructions, precautions, and other warnings provided by Sagent to
Distributor; and Sagent shall provide to Distributor any such instructions,
precautions, and other warnings as Sagent in its sole discretion deems necessary
4.8 Product Representations. Distributor shall not to make any
representations with respect to the Products other than those expressly
authorized in writing in Sagent's written data sheets.
4.9 Indemnification. Distributor agrees to indemnify and hold Sagent,
its officers, directors, employees, successors, and assigns harmless from and
against any and all losses, damages or expenses of whatever form or nature,
including attorneys' fees and other costs of legal defense, whether direct or
indirect, that they, or any of them, may sustain or incur as a result of any
acts or omissions of Distributor or any of its directors, officers, employees,
or agents, including but not limited to (i) breach of any of the provisions of
this Agreement, (ii) negligence or other tortious conduct, (iii) representations
or statements not specifically authorized by Sagent herein or otherwise in
writing, or (iv) violation by Distributor (or any of its directors, officers,
employees, or agents) of any applicable law, regulation, or order in or of the
Territory or the United States.
5.1 Product Prices. The prices to be paid by Distributor to Sagent for
Products hereunder shall be List Prices for the Products less the discount(s)
set forth in Exhibit D attached hereto ('Prices'). 'List Prices' as used herein
shall mean the prices set forth in Sagent's then-current customer price
schedules or bulletins. Prices shall be F.O.B. Sagent's facilities in Palo Alto,
California, United States. All prices are expressed and shall be payable in U.S.
dollars. The difference between List Prices and Prices shall be Distributor's
sole remuneration from Sagent for the distribution and sale of Products
5.2 Price Changes. List Prices are subject to change by Sagent in its
sole discretion upon advance written notice of at least sixty (60) days. List
Price changes shall be effective immediately after such sixty (60) days notice
period and applicable to all purchase orders whether or not accepted prior to
the effective date of the List Price change.
5.3 Product Changes. Sagent reserves the right from time to time in its
sole discretion, without incurring any liability to Distributor with respect to
any previously placed Purchase Order (as defined in Section 6.1 below), to
discontinue or to limit its production of any Product; to allocate, terminate or
limit deliveries of any Product in time of shortage; to alter the design or
construction of any Product; to add new and additional products to the Products;
and upon reasonable notice to Distributor, to change its sales and distribution
policies, not inconsistent with the terms of this Agreement.
5.4 Discontinued Product. In the event Sagent discontinues sale of any
Product, it shall give Distributor prompt notice thereof. Within sixty (60) days
following the date of such discontinuation notice, Distributor may elect to
return for credit against future purchases hereunder any of the discontinued
Products (including samples) purchased by Distributor during the three (3)
months prior to the date of such notice which have not been used or sold and
which are in Distributor's inventory as of the date of that notice from Sagent.
6. PURCHASER ORDERS
6.1 Purchase Orders. All orders for Products submitted by Distributor
shall be initiated by written purchase order in form acceptable to Sagent (each
a 'Purchase Order'); provided, however, that an order may initially be placed
orally or by fax if a confirmational Purchase Order is received by Sagent within
five (5) days of said oral or fax order. All Purchase Orders for Products are
subject to acceptance by Sagent in writing, and Sagent shall have no liability
to Distributor with respect to Purchase Orders that are not accepted. No partial
acceptance of a Purchase Order shall constitute the acceptance of the entire
Purchase Order, absent the written acceptance of such entire Purchase Order.
6.2 Agreement Governs. Purchase Orders shall be governed by the terms
of this Agreement. Nothing contained in any Purchase Order shall in any way
modify or delete the terms and conditions contained herein or add any additional
or different terms or conditions to the terms
and conditions of this Agreement.
6.3 Order Changes. Purchase Orders may be canceled only with Sagent's
prior written approval. Cancellation of a Purchase Order is subject to a
restocking charge equal to ten percent (10%) of the aggregate value of such
7. PAYMENT; TAXES
7.1 Payment Terms. Payment of any and all amounts due under this
Agreement shall be U.S. Dollars. Distributor shall either (i) pay for Products
within thirty (30) days of receipt of such Products by wire transfer or check to
Sagent's designated account; or (ii), at Distributor's option, guarantee payment
for all Products by an irrevocable letter of credit. The letter of credit shall
be upon terms acceptable to Sagent, shall provide for payment upon delivery of
Sagent's invoice and the bill of lading that relate to the shipment, shall allow
for partial shipments, and shall provide for payment for all applicable taxes,
shipping charges, and other charges to be borne by Distributor as provided
hereunder. All exchange, interest, banking, collection and other charges shall
be at Distributor's expense.
7.2 Offsets. Any credits, allowances, or other amounts payable to or
creditable by Distributor shall be subject to offset for any claims or other
amounts owed by Distributor to Sagent pursuant to the provisions of this
7.3.1 Taxes Generally. Prices do not include and are net of
any foreign or domestic governmental taxes or charges of any kind that may be
applicable to the sale, licensing, marketing or distribution of the Products,
including without limitation excise, sales, use, or value-added taxes; customs
or other import duties; or other taxes, tariffs or duties. Distributor shall be
responsible for and shall pay all such taxes and charges levied against Sagent
in a timely manner. When Sagent has the legal obligation to pay or collect such
taxes, excluding taxes on the income of Sagent, the appropriate amount shall be
invoiced to Distributor and paid by Distributor within thirty (30) days of the
date of invoice unless Distributor provides Sagent with a valid tax exemption
certificate authorized by the appropriate taxing authority.
7.3.2 Withholding Taxes. All payments by Distributor shall be
made free and clear of, and without reduction for, any withholding taxes. Any
such taxes which are otherwise imposed on payments to Sagent shall be the sole
responsibility of Distributor. Distributor shall provide Sagent with official
receipts issued by the appropriate taxing authority or such other evidence as is
reasonably requested by Sagent to establish that such taxes have been paid.
8. DELIVERY; REJECTION
8.1 Shipment and Delivery. Products delivered pursuant to the terms of
this Agreement shall be suitably packed for shipment in Sagent's standard
shipping cartons, marked for shipment to the destination specified in
Distributor's Purchase Order, and delivered to the carrier agent F.O.B.
Sargent's facility in Palo Alto, California, United States, at which time risk
of loss shall pass to Distributor. Unless otherwise specified in writing by
Distributor in Distributor's purchase order, Sagent shall select the carrier.
All freight, insurance, and other shipping expenses, as well as expenses for any
special packing requested by Distributor and provided by Sagent, shall be paid
by Distributor. All shipment and freight charges shall be deemed correct unless
Sagent receives from Distributor, no later than fifteen (15) days after the date
of shipment, a written notice specifying the shipment, the purchase order
number, and the exact nature of the discrepancy between the order and the
shipment in number or type of Products shipped, or freight or other charges, as
the case may be. Sagent may cease any and all shipments of Products until
Distributor is in full performance of its obligations under Article 7.
8.2 Title. Sagent shall retain all right, title and interest in and to
Products delivered to Distributor until Sagent has received all applicable
8.3 Inspection; Rejection. Distributor shall inspect all Products
promptly upon receipt thereof and may reject any defective Product, provided
that Distributor shall (i) within the earlier of thirty (30) days after receipt
of such alleged defective Product or ten (10) days after discovery of such
alleged defect, notify Sagent of its rejection and request a Return Material
Authorization ('RMA') number and (ii) within ten (10) days of receipt of the RMA
number from Sagent return such rejected Product to Sagent, freight prepaid and
properly insured. Products not rejected within the foregoing time periods shall
be deemed accepted by Distributor. In the event that Sagent determines that the
returned Product is defective and properly rejected by Distributor, Sagent shall
at its option, repair or replace such defective Product, or accept return for
credit of such defective Product. Sargent shall return to Distributor, freight
prepaid, all repaired or replaced Products properly rejected by Distributor. In
the event that any rejected product is determined by Sagent to not be defective
or to have been modified or subjected to unusual electrical or physical stress,
misuse, abuse or unauthorized repair, Distributor shall reimburse Sagent for all
costs and expenses related to the inspection, repair, if any, and return of such
Product to Distributor.
8.4 Returned Product. Distributor shall only return Products to Sagent
with Sagent's prior written approval. Any Product returned to Sagent by
Distributor as authorized under this Agreement shall be shipped, freight
prepaid, F.O.B. Sagent's address first set forth above or such other location as
Sagent may instruct Distributor, and shall be packed in its original packing
material. Sagent may refuse to accept any Product not packed and shipped as
9. TECHNICAL SUPPORT
9.1 Support by Distributor. Distributor shall be solely responsible for
supporting all Products distributed hereunder. Distributor shall provide
reasonable technical support to customers,
including without limitation (i) maintaining trained and competent technical and
engineering support personnel for the Products who are sufficiently
knowledgeable with respect to the Products to answer customer questions
regarding the use and operation of Products, (ii) designating a technical
liaison to coordinate Distributor's technical support provided to Customers,
(iii) responding promptly to requests for technical support from customers, and
(iv) providing technical support services to address and resolve customers'
support requests with respect to the Products. Distributor shall ensure that
Distributor's technical and engineering support personnel attend any training
required by Sagent with respect to the Products.
9.1.1 Frontline Support. Distributor shall ensure that all
customer questions regarding the use or operation of Products are initially
addressed to and answered by Distributor. Unless otherwise agreed in writing by
Sagent, Distributor shall not represent to any third party that Sagent is
available to answer questions from any customer directly.
9.1.2 Conformance with Sagent Policy. Distributor will provide
prompt and effective service and repair of Products in the Territory in
accordance with Sagent's standard support policies then in effect.
9.1.3 Additional Responsibilities. Without limiting the
foregoing and in addition to any other obligations set forth in Sagent's then
current support terms and conditions, Distributor also shall be responsible for
(i) providing sufficient information to Sagent for Sagent to duplicate any
reported error in the Products; (ii) incorporating updates into the Products
promptly upon receipt thereof; (iii) reporting errors promptly in English and in
writing in accordance with Sagent's standard support procedures; and (iv)
providing reasonable cooperation and full information to Sagent in the
furnishing of support for the Products.
9.2 Support by Sagent. Sagent shall use reasonable efforts to provide
to Distributor such back-up telephone or electronic-mail technical support as
Sagent makes generally available to its distributors other than Distributor.
Such telephone support shall be provided during Sagent's normal business hours
(Monday through Friday, 9:00 a.m. - 5:00 p.m. Pacific Standard Time, excluding
Sagent holidays). With respect to computer software Products, Sagent will
provide support for the then-current versions of such computer software Products
10. DISCLAIMER OF WARRANTY
SAGENT MAKES NO WARRANTIES OR CONDITIONS, EXPRESS STATUTORY, IMPLIED OR
OTHERWISE, AND SAGENT SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT, AND ALL OTHER IMPLIED WARRANTIES OR CONDITIONS ARISING FROM
COURSE OF DEALING, USAGE OF TRADE OR CUSTOM. NOTWITHSTANDING THE FOREGOING,
SAGENT DOES NOT EXCLUDE LIABILITY TO THE EXTENT THAT SUCH LIABILITY MAY NOT BE
EXCLUDED OR LIMITED BY LAW.
11. CONFIDENTIALITY AND PROPRIETARY RIGHTS
11.1 Confidentiality. Distributor acknowledges that by reason of its
relationship to Sagent hereunder it will have access to certain information and
materials concerning Sagent's business, plans, customers, technology, and
products that are confidential and of substantial value to Sagent, which value
would be impaired if such information were disclosed to third parties
('Confidential Information'). Distributor agrees that it will not use in any way
for its own account or the account of any third party, nor disclose to any third
party, any Confidential Information revealed to it by Sagent. Distributor shall
take every reasonable precaution to protect the confidentiality of Confidential
Information. Upon request by Distributor, Sagent shall advise whether or not it
considers any particular information or materials to be confidential.
Distributor shall not publish any technical description of the Products beyond
the description published by Sagent. In the event of termination of this
Agreement, there shall be no use or disclosure by Distributor of any
Confidential Information of Sagent, and Distributor shall not reproduce,
manufacture, have reproduced or have manufactured any computer software
programs, devices, components or assemblies utilizing any of Sagent's
11.2 Proprietary Rights. Distributor agrees that Sagent retains all of
its right, title and interest in and to all patents, trademarks, trade names,
inventions, copyrights, know-how and trade secrets relating to the Products or
the product lines that include the Products, and the design, manufacture,
operation or service of the Products. The use by Distributor of any of these
property rights is authorized only for the purposes herein set forth and upon
termination of this Agreement for any reason such authorization will cease.
Distributor shall not (and shall require that its customers do not) remove,
alter, cover or obfuscate any copyright notices or other proprietary rights
notices placed or embedded by Sagent on or in any Product.
12. INTELLECTUAL PROPERTY INDEMNIFICATION
12.1 Limited Indemnity. Distributor agrees that Sagent has the right to
defend, or at its option to settle, and Sagent agrees, at its own expense, to
defend or at its option to settle, any third party claim, suit or proceeding
(collectively, 'Action') brought against Distributor alleging the Products
infringe any copyright or trademark in existence as of the Effective Date,
subject to the limitations hereinafter set forth. Sagent shall have sole control
of any such Action or settlement negotiations, and Sagent agrees to pay, subject
to the limitations hereinafter set forth, any final judgment entered against
Distributor on such issue in any such Action defended by Sagent. Distributor
agrees that Sagent will be relieved of the foregoing obligations unless
Distributor notifies Sagent in writing of such Action within five (5) days after
becoming aware of such action, gives Sagent authority to proceed as contemplated
herein, and gives Sagent proper and full information and assistance to settle
and/or defend any such Action. If it is adjudicatively determined, or if Sagent
believes, that the Products, or any part thereof, infringe any copyright or
trademark, or if the sale or use of the Products, or any part thereof, is, as a
result, enjoined, then Sagent may, at its election, option, and expense: (i)
procure for Distributor the right under such copyright or trademark to sell or
use, as appropriate, the Products or such part thereof; (ii) replace the
Products, or part thereof, with other noninfringing suitable products or parts;
(iii) suitably modify the Products or part
thereof; or (iv) remove the Products, or part thereof, terminate distribution or
sale thereof and refund the payments paid by Distributor for such Products less
a reasonable amount for use and damage. Sagent shall not be liable for any costs
or expenses incurred without its prior written authorization, or for any
installation costs of any replaced Products.
12.2 Limitations. Notwithstanding the provisions of Section 12.1 above,
Sagent assumes no liability for infringement claims arising from (i) combination
of the Products or portions thereof with other software not provided by Sagent
if such infringement would not have occurred but for such combination, or (ii)
the modification of the Products or portions thereof unless such modification
was made or authorized by Sagent, when such infringement would not have occurred
but for such modification.
12.3 DISCLAIMER. SAGENT'S LIABILITY ARISING OUT OF OR RELATING TO THIS
ARTICLE 12 SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY DISTRIBUTOR TO SAGENT
FOR THE ALLEGEDLY INFRINGING PRODUCTS THAT ARE THE SUBJECT OF THE INFRINGEMENT
CLAIM. THE FOREGOING PROVISIONS OF THIS ARTICLE 12 STATE THE ENTIRE LIABILITY
AND OBLIGATION OF SAGENT AND THE EXCLUSIVE REMEDY OF DISTRIBUTOR WITH RESPECT TO
ANY ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR
ANY PART THEREOF.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL SAGENT'S LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID BY DISTRIBUTOR TO SAGENT HEREUNDER,
INCLUDING BUT NOT LIMITED TO LIABILITY UNDER ARTICLE 12 ABOVE. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE
GOODS, OR ANY OTHER SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE. THE FOREGOING
LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY STATED HEREIN.
14. TERM AND TERMINATION
14.1 Term. Unless earlier terminated pursuant to Section 14.2 below or
by mutual written consent, this Agreement shall commence upon the Effective Date
and continue in full force and effect for an initial term expiring on December
31, 2000. The parties may renew this Agreement for additional one (1) year terms
upon mutual written consent (each a 'RENEWAL TERM').
14.2 Termination. This Agreement may be terminated prior to the
expiration of the initial term by prior written notice to the other party as
14.2.1 By either party upon written notice of termination if
the other party breaches
any material term or condition of this Agreement and fails to cure that breach
within thirty (30) days after receiving written notice stating the nature of the
breach and the non-breaching party's intent to terminate; or
14.2.2 By either party, effective immediately, if the other
party should become the subject of any voluntary or involuntary bankruptcy,
receivership, or other insolvency proceedings or make an assignment or other
arrangement for the benefit of its creditors, or if such other party should be
nationalized or have any of its material assets expropriated; or
14.2.3 By Sagent, effective immediately, if there should occur
any material change in the management, ownership, control, sales personnel,
sales and marketing capability, or financial condition of Distributor that
prevents Distributor from fulfilling its obligations hereunder; or
14.2.4 By Sagent, effective immediately, if any law or
regulation should become adopted or in effect in the Territory that would
restrict Sagent's termination rights or otherwise invalidate any provisions
14.2.5 By Sagent, effective immediately, if Distributor should
violate the terms of Section 2.7 above or Section 16.3 below; or
14.2.6 By Sagent, effective immediately, in accordance with
provisions of Sections 15.3 or 15.5; or
14.2.7 By Sagent, effective immediately, if Distributor
knowingly makes any false or untrue statements or representations to Sagent
herein or in the performance of its obligations hereunder.
14.3 Purchase Orders; No Waiver. Notwithstanding the foregoing,
Distributor shall be obligated to accept deliveries of Products for which
Purchase Orders were accepted by Sagent prior to the effective date of
termination. After any notice of termination has been delivered by either party
hereunder, deliveries of Product from Sagent to Distributor, unless otherwise
agreed by Sagent in its sole discretion, shall require prepayment by wire
transfer by Distributor to Sagent. The acceptance of any Purchase Order for the
sale of any Product to Distributor after the termination or expiration of this
Agreement shall not be construed as a renewal or extension of this Agreement nor
as a waiver of termination of this Agreement.
14.4 Rights of Parties Upon Termination or Expiration. The following
provisions shall apply on the termination or expiration of this Agreement.
14.4.1 Cessation of Sales Activities. Distributor shall cease
all sales and other activities on behalf of Sagent and shall return to Sagent
and immediately cease all use of Confidential Information previously furnished
by Sagent and then in Distributor's possession. Distributor shall additionally
turn over to Sagent Distributor's current customer mailing list and take such
action as is necessary to terminate Distributor's registration as Sagent's sales
with any governmental authority.
14.4.2 Acceleration of Amounts Owed. All indebtedness of
Distributor to Sagent shall become immediately due and payable without further
notice or demand, which is hereby expressly waived, and Sagent shall be entitled
to reimbursement for any reasonable attorneys' fees that it may incur in
collecting or enforcing payment of such obligations;
14.4.3 Cessation of Use of Sagent Marks. Distributor shall
remove from its property and immediately discontinue all use, directly or
indirectly, of the Sagent Marks, or of any word, title, expression, trademark,
design, or marking that, in the opinion of Sagent, is confusingly similar
thereto. Distributor shall further certify in writing to Sagent that Distributor
has completely terminated its use of any and all such Sagent Marks, trademarks,
designs, or markings, or any other word, title, or expression similar thereto
that appeared in or on any devices or other materials used in conjunction with
14.4.4 No Obligation to Repurchase. Sagent shall have no
obligation to repurchase or to credit Distributor for its inventory of Products
at the time of termination of this Agreement. Sagent may, at its sole option,
repurchase from Distributor, at Sagent's then current list prices less any
applicable then current discounts or at the net prices paid by Distributor,
whichever are lower, any or all inventory of Products originally purchased by
Distributor from Sagent and remaining unsold by Distributor.
14.5 No Liability for Termination. Except as expressly required by law,
in the event of termination of this Agreement by either party in accordance with
any of the provisions of this Agreement, neither party shall be liable to the
other, because of such termination, for compensation, reimbursement or damages
on account of the loss of prospective profits or anticipated sales or on account
of expenditures, inventory, investments, leases or commitments in connection
with the business or goodwill of Sagent or Distributor. Termination shall not,
however, relieve either party of obligations incurred prior to the termination.
14.6 Survival. Except for termination by Sagent pursuant to Section
14.2.1 above, Distributor may sell Products existing in its inventory as of the
effective date of termination of this Agreement for a period of ninety (90) days
after the effective date of such termination ('Wind-Down Period'). During the
Wind-Down Period, the provisions of Article 15 and Sections 2.2, 4.8 and 4.9
shall survive. In addition to the foregoing provisions, the following provisions
shall survive any termination or expiration of this Agreement: Articles 1, 11,
13 and 16, and Sections 2.4, 2.6, 2.7, 3.2, 4.10, 6.2, 8.2, 14.4, 14.6, 15.1 and
15. COMPLIANCE WITH LAWS
15.1 Export Control. Any and all obligations of Sagent to provide the
Products, as well as any technical data, shall be subject in all respects to
such United States laws and regulations as will from time to time govern the
license and delivery of technology and products abroad by persons subject to the
jurisdiction of the United States, including the Export Administration Act of
1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the U.S. Department of Commerce, Bureau of Export
Administration. Distributor represents and warrants that it will not export or
reexport the Products or technical data related thereto except in conformity
with such laws and regulations.
15.1.1 Required Authorization. Distributor agrees that, unless
prior written authorization is obtained from the Bureau of Export
Administration, or the Export Administration Regulations explicitly permit the
export, reexport, and/or transshipment of the Products or technical data
disclosed or provided to Distributor, as applicable, without such written
authorization, Distributor shall not export, reexport, or transship, directly or
indirectly, the Products or technical data, to country groups S or Z (as defined
in the Export Administration Regulations), which currently consist Cuba and
North Korea, or to Iran, Iraq or Yugoslavia (Serbia and Montenegro), or to any
other country as to which the U.S. Government has placed an embargo against the
shipment of products, which embargo is in effect during the term of this
15.1.2 Prohibited Customers. Distributor further agrees not to
resell Products to any organization, public or private, which engages in the
research or production of military devices, armaments, or any instruments of
warfare, including biological, chemical and nuclear warfare.
15.2 Import Licenses; Exchange Controls; Other Governmental Approvals.
Distributor represents and warrants that it shall, at its expense, obtain any
and all import licenses and governmental approvals that may be necessary to
permit the sale by Sagent and the purchase by Distributor of the Products,
comply with all registration requirements in the Territory, obtain such
approvals from the banking and other governmental authorities of the Territory
as may be necessary to guarantee payment of all amounts due hereunder to Sagent
in U.S. dollars, and comply with any and all governmental laws, regulations, and
orders that may be applicable to Distributor by reason of its execution of this
Agreement, including but not limited to any requirement to be registered as
Sagent's independent distributor with any governmental authority, and including
but not limited to any and all laws, regulations, or orders that govern or
affect the ordering, export, shipment, import, sale (including government
procurement), delivery, or redelivery of the Products in the Territory.
Distributor shall furnish Sagent with such documentation as Sagent may request
to confirm Distributor's compliance with this Section 15.2 and agrees that it
shall not engage in any course of conduct that, in Sagent's reasonable belief,
would cause Sagent to be in violation of the laws of any jurisdiction.
15.3 Local Law. Distributor shall notify Sagent of the existence and
content of any mandatory provision of law in the Territory or any other
applicable law that conflicts with any provision of this Agreement at the time
of its execution or thereafter. Failure to do so shall
constitute a breach of this Agreement for which Sagent may terminate this
Agreement effective immediately upon notice to Distributor pursuant to Section
15.4 Liability of Sagent. The provisions of this Agreement under which
the liability of Sagent is excluded or limited shall not apply to the extent
that such exclusions or limitations are declared illegal or void under the laws
applicable in the countries in which Products are sold hereunder.
15.5 Questionable Payments. Distributor certifies that neither it, nor
any of its directors, officers, employees, or agents is an official, agent, or
employee of any government or governmental agency or political party or a
candidate for any political office on the date of this Agreement. Distributor
shall promptly notify Sagent of the any event that would or may result in an
exception to the foregoing representation. Distributor shall not, directly or
indirectly, in the name of, on behalf of, or for the benefit of Sagent offer,
promise to pay, or pay any compensation, or give anything of value to, any
official, agent, or employee of any government or governmental agency, or to any
political party or officer, employee, or agent thereof. Distributor shall
require each of its directors, officers, employees, and agents to comply with
the provisions of this Section 15.5. Any breach of the provisions of this
Section 15.5 shall entitle Sagent to terminate this Agreement effective
immediately upon written notice to Distributor pursuant to Section 14.2 above.
16. MISCELLANEOUS PROVISIONS
16.1 Governing Law. This Agreement shall be governed by and construed
under the law of England.
16.2 Jurisdiction; Venue. The parties consent to the personal
jurisdiction of, and venue in, the courts of England.
16.3 Assignment. Distributor may not transfer or assign any of its
rights or obligations under this Agreement without the prior written consent of
Sagent. Sagent may freely transfer or assign its rights or obligations under
this Agreement without the prior written consent of Distributor. Subject to the
foregoing, this Agreement will be binding upon and inure to the benefit of the
parties hereto, their successors and assigns.
16.4 No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not affect the
right of such party to require performance at any time thereafter, nor shall the
waiver of either party of a breach of any provision hereof be taken or held to
be a waiver of a provision itself.
16.5 Severability. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
16.6 Force Majeure. Except for payment of monies, neither party shall
be liable for failure to fulfill its obligations under this Agreement or any
purchase order issued hereunder or for delays in delivery due to causes beyond
its reasonable control, including, but not limited to, acts of God, man-made or
natural disasters, earthquakes, fire, riots, flood, material shortages, strikes,
delays in transportation or inability to obtain labor or materials through its
regular sources. The time for performance of any such obligation shall be
extended for the time period lost by reason of the delay.
16.7 Conflicting Terms. The parties agree that the terms and conditions
of this Agreement shall prevail, notwithstanding contrary or additional terms,
in any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of Products.
16.8 Headings. Headings of paragraphs herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
16.9 Notice. Any notice required or permitted to be given under this
Agreement shall be delivered (a) by hand, (b) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
first set forth above, or to such other address as a party may designate by
written notice in accordance with this Section 16.9, (c) by overnight courier,
or (d) by fax with confirming letter mailed under the conditions described in
(b) above. Notice so given shall be deemed effective when received, or if not
received by reason of fault of addressee, when delivered.
16.10 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, written or oral, between the
parties. Amendments to this Agreement must be in writing, signed by the duly
authorized officers of the parties. The terms of any purchase order are
16.11 Injunctive Relief. DISTRIBUTOR AGREES THAT ANY VIOLATION OR
THREATENED VIOLATION OF SECTIONS 2.7, 3.2, 3.4, 11.1, 11.2 OR 14.4.3 WILL CAUSE
IRREPARABLE INJURY TO SAGENT, ENTITLING SAGENT TO OBTAIN INJUNCTIVE RELIEF IN
ADDITION TO ALL LEGAL REMEDIES.
16.12 Buyout Agreement. This Agreement shall be conditioned upon the
execution of a separate buyout agreement substantially similar to the agreement
attached hereto as Exhibit F.
In Witness Whereof, the parties hereto have duly executed this Agreement
effective as of the Effective Date.
SAGENT TECHNOLOGY, INC. SAGENT U.K. LTD.
By: /s/ THOMAS M. LOUNIBOS BY: /s/ VINCENT DE GENNARO
Name: Thomas M. Lounibos Name: Vincent De Gennaro
(Typed or Printed) (Typed or Printed)
Title: Vice President of Sales Title: Director
All of Sagent's general product line.
SAGENT TRADEMARKS, TRADENAMES AND SERVICEMARKS
Any and all present and future OEM customers worldwide.
Sagent shall provide Distributor with written notification of all such OEM
customers. When appropriate, and only under confidentiality agreements
satisfactory to Sagent, Sagent shall provide advance notification to Distributor
of any pending OEM relationships.
DISCOUNTS TO LIST PRICES
D.1 For so long as Distributor meets the minimum revenue requirements
set forth in Section 4.2, the discount for each and every Product shall be [*]%
of the List Price of such Product.
D.2 If Distributor fails to meet the minimum revenue requirements set
forth in Section 4.2, then there shall be no discount.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
MINIMUM REVENUE REQUIREMENTS
E.1 Year 1. The aggregate amount of payments received by Sagent from
Distributor under this Agreement during Year I must equal or exceed [*] dollars
E.2 Year 2. The aggregate amount of payments received by Sagent from
Distributor under this Agreement during Year 2 must equal or exceed [*] dollars
E.3 Year 3. The aggregate amount of payments received by Sagent from
Distributor under this Agreement during Year 3 or any Renewal Term must equal or
exceed [*] dollars ([*]).
E.4 Renewal Terms. The aggregate amount of payments received by Sagent
from Distributor under this Agreement during each Renewal Term must equal or
exceed [*] dollars ([*]).
* 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.