{"id":42603,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/nonexclusive-international-software-value-added-reseller.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"nonexclusive-international-software-value-added-reseller","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/nonexclusive-international-software-value-added-reseller.html","title":{"rendered":"Nonexclusive International Software Value Added Reseller Agreement &#8211; Opalis SARL and Sagent Technology Inc."},"content":{"rendered":"<pre>                       NONEXCLUSIVE INTERNATIONAL SOFTWARE\n                     VALUE ADDED RESELLER ('VAR') AGREEMENT\n\n\n         This Agreement, dated December 8th 1997, is made between Opalis SARL\n('Licensor'), a French corporation doing business at 27, Bd Pereire 75017 Paris,\nFrance, and Sagent Technology, Inc. ('Reseller'), a California corporation doing\nbusiness at 2225 E. Bayshore Road, Suite 100, Palo Alto, California 94303.\n\n\n                                    RECITALS\n\nA. Licensor has rights to certain computer software and related documentation.\n\nB. Reseller wishes to have certain nonexclusive rights to market and distribute\nsuch software and documentation worldwide in combination with Reseller's\nproducts.\n\n\nTHEREFORE, Licensor and Reseller agree as follows:\n\n1. DEFINITIONS.\n\n         1.1 End User. 'End User' means a customer of Reseller who is authorized\nby an end user license agreement to use a Product for the End User's internal\nbusiness purposes.\n\n         1.2 Effective Date. 'Effective Date' means the date first written\nabove.\n\n         1.3 Intellectual Property Rights. 'Intellectual Property Rights' means\npatent rights (including but not limited to rights in patent applications or\ndisclosures and rights of priority), copyright (including but not limited to\nrights in audiovisual works and moral rights), trade secret rights, and any\nother intellectual property rights recognized by the law of each applicable\njurisdiction.\n\n         1.4 Marks. 'Marks' means Licensor's trademarks, trade names, service\nmarks, and\/or service names specified in Exhibit A.\n\n         1.5 Reseller Products. 'Reseller Products' means the computer software\nand\/or hardware and related documentation specified in Exhibit B, which are\ndistributed by Reseller in combination with a Product.\n\n         1.6 Products. 'Products' means the computer software and related\ndocumentation listed on Exhibit A including but not limited to any modifications\nor additions provided to Reseller by Licensor.\n\n\n\n\n         1.7 Source Code. 'Source Code' means software in human-readable form,\nincluding programmers' comments, data files and structures, header and includes\nfiles, macros, object libraries, programming tools not commercially available,\ntechnical specifications, flowcharts and logic diagrams, schematics, annotations\nand documentation reasonably required or necessary to enable an independent\nthird party programmer with reasonable programming skills to create, operate,\nmaintain, modify and improve the software without the help of any other person.\nData files containing Source Code must be in standard ASCII format and be\nreadable by a text editor.\n\n         1.8 Territory. 'Territory' means the world.\n\n2. LICENSES.\n\n         2.1 Grant of License. Subject to the terms of this Agreement, Licensor\nhereby grants Reseller a nonexclusive license to market, distribute directly or\nindirectly, and sublicense the Products in object code form only, and any\nderivative works thereof to End Users in the Territory solely for internal use\nin conjunction with Reseller Products.\n\n         2.2 Added Value. In the exercise of Reseller's rights under this\nAgreement, Reseller will always market, distribute, and sublicense the Products\nin combination with Reseller Products.\n\n         2.3 Reproduction. Subject to the terms of this Agreement, Licensor\ngrants Reseller a nonexclusive license during the term of this Agreement to\nreproduce Products for distribution in accordance with Section 2.2.\n\n         2.4 Documentation. Subject to the terms of this Agreement, Licensor\ngrants Reseller a nonexclusive license during the term of this Agreement to use,\nmodify, create derivative works of and distribute Licensor's documentation for\nthe Products from time to time. Licensor will make available Licensor's End User\ndocumentation to Reseller, as it is updated and modified from time to time,\nwithout additional charge. Reseller will provide copies of such modifications to\nLicensor upon Licensor's request.\n\n3. LOCALIZATION PROCEDURE\n\n         3.1 Localizations. To the extent Reseller desires to localize the\nProducts and Licensor concurs, Licensor will cooperate with Reseller in the\nadaptation of the Products for use in areas within the non English speaking\nportions of the Territory, including but not limited to translating Product\ndocumentation into any language of the Territory (collectively,\n'Localizations').\n\n4. LICENSE RESTRICTIONS.\n\n\n\n                                       -2-\n\n\n         4.1 No Reverse Engineering. Reseller will not disassemble, decompile,\nor reverse engineer any Products, except as provided in Section 2.4 above and as\nmay be expressly authorized by Licensor in writing.\n\n         4.2 No Sale of Services. Reseller will not use the Products in any\nmanner to provide service bureau, time sharing, or other computer services to\nthird parties.\n\n         4.3 Limited Rights. Reseller's rights in the Products will be limited\nto those expressly granted in this Agreement.\n\n5. DELIVERY.\n\n         5.1 Master Copy. Licensor will deliver to Reseller a master copy of the\nProducts within three days of the Effective Date. This master copy will be\nupdated and replaced by Licensor as set forth in Section 8 below and will be in\nthe electronic form of Licensor's choice. Documentation may be delivered in\ntangible form at Licensor's discretion, however.\n\n6. PAYMENTS.\n\n         6.1 License Payments. Reseller will pay Licensor the initial and\nongoing nonrefundable amounts specified in Exhibit C for Reseller's use and\ndistribution of the Products. All shipping or other transportation charges for\ndelivery of the Products to Reseller, including insurance and special packaging,\nwill also be paid by Reseller.\n\n         [6.2 Payments for Maintenance, Support, Updates, and Enhancements. To\nthe extent that Reseller elects to receive maintenance and support services and\nupdates and enhancements for the Products from Licensor under Section 8.2,\nReseller will pay Licensor the nonrefundable amounts specified in Exhibit C for\nsuch services.] [Only if these cost extra]\n\n         6.3 Payment Terms.\n\n                  (a) Reseller will make all payments to Licensor due under\nExhibit C within thirty days after the end of each month in which maintenance.\n\n                  (b) All payments under this Agreement will be made in United\nStates currency by bank-to-bank wire transfer to an account designated by\nLicensor, unless otherwise agreed to by Licensor in writing.\n\n         6.4 Taxes.\n\n                  (a) All amounts payable under this Agreement are exclusive of\nall sales, use, value-added, withholding, and other taxes and duties. Reseller\nwill pay all taxes and duties assessed in connection with this Agreement and its\nperformance by any authority within or outside of the\n\n\n\n                                       -3-\n\n\nU.S., except for taxes payable on Licensor's net income. Licensor will be\npromptly reimbursed by Reseller for any and all taxes or duties that Licensor\nmay be required to pay in connection with this Agreement or its performance.\n\n7. REPORTS AND AUDITS.\n\n         7.1 Reseller's Records. Reseller will maintain complete records, during\nand for two years after the termination or expiration of this Agreement,\nregarding the distribution and sublicensing of the Products to each End User.\n\n         7.2 Payment Reports. Within thirty (30) days after the close of each\nquarter ending March 31, June 30, September 30 and December 31, Reseller will\ndeliver to Licensor a report which will provide all information reasonably\nnecessary for computation and\/or confirmation of the payments, if any, due or\ncredited to Licensor for such quarterly period.\n\n         7.3 Audit. An independent certified public accountant selected by\nLicensor may, upon reasonable notice and during normal business hours, inspect\nthe records of Reseller on which such reports are based. If, upon performing\nsuch audit, it is determined that Reseller has underpaid Licensor by an amount\ngreater than five percent (5%) of the payments due Licensor in the period being\naudited, Reseller will bear all reasonable expenses and costs of such audit in\naddition to its obligation to make full payment under Section 6.\n\n8. MAINTENANCE, SUPPORT, AND TRAINING.\n\n         8.1 By Reseller. Reseller will be responsible for providing the\nfollowing support to its End Users: installing the Products as needed; training\nEnd Users; and providing all direct first level technical support to End Users,\nincluding problem analysis and using its reasonable efforts to provide\nsolutions, error correction for the products consistent with Reseller's standard\nmaintenance and support policies and procedures.\n\n         8.2 By Licensor. Licensor will not be responsible for providing support\nto End Users. Subject to receipt by Licensor of payments as specified in Exhibit\nC, Licensor will provide Reseller with:\n\n                  (i)   error corrections for the Products;\n\n                  (ii)  updates and enhancements for the Products;\n\n                  (iii) access to Licensor's 'web site' (except when the site is\nbeing serviced or is generally unavailable) and access to Licensor's telephone\n'hot-line' for inquiries from Reseller relating to the Products between the\nhours of 9 a.m. and 5 p.m., European Time, on Licensor's business days; and\n\n\n\n                                       -4-\n\n\n                  (iv) training in accordance with the terms and conditions and\npricing specified in Exhibit C, provided that Reseller pays the travel and\nliving expenses of Licensor's personnel in connection with any out-of-town\ntraining requested by Reseller.\n\n         8.3 The source code of Licensor's products will be held in an escrow\naccount in the event that Licensor is unable to continue to maintain the\nproduct.\n\n9. CONFIDENTIALITY.\n\n         9.1 Obligations. Each party agrees that it will not disclose to any\nthird party or use any Products or other Confidential Information disclosed to\nit by the other party, except to carry out its rights and obligations under this\nAgreement, and that it will take all reasonable measures to maintain the\nconfidentiality of all Confidential Information in its possession or control,\nwhich will in no event be less than the measures it uses to maintain the\nconfidentiality of its own information of similar importance. Confidential\nInformation includes all information designated by a party as confidential or\nproprietary within a reasonable time of its disclosure or which a reasonable\nperson would expect to be treated as confidential including the terms of this\ncontract.\n\n         9.2 Exceptions. 'Confidential Information' will not include information\nthat:\n\n                  (i) is in or enters the public domain without breach of this\nAgreement;\n\n                  (ii) is lawfully obtained by the receiving party without\nbreach of a nondisclosure obligation;\n\n                  (iii) is independently developed or already in the possession\nof the receiving party as shown by the receiving party's contemporaneous\nrecords; or,\n\n                  (iv) is required by law to be disclosed, provided that the\nreceiving party gives prompt written notice of such requirement prior to\ndisclosure.\n\n         9.3 Injunctive Relief. Each party acknowledges that the improper\ndisclosure of the other's confidential information could cause substantial harm\nto the other party that could not be remedied by the payment of damages alone.\nAccordingly, either party will be entitled to preliminary and permanent\ninjunctive relief and other equitable relief for any breach of this Agreement or\nmisuse of Confidential Information by Licensor, Reseller or any End User, as\napplicable.\n\n10. PROPRIETARY RIGHTS.\n\n         10.1 Licensor's Ownership.\n\n\n\n                                       -5-\n\n\n                  (a) Products. The Products are and will remain the sole and\nexclusive property of Licensor and its suppliers, if any, whether the Products\nare separate or combined with any other products, including Resellers Products.\nLicensor's rights under this subsection (a) will include, but not be limited to\nall Intellectual Property Rights in the Products.\n\n                  (b) Notices. Reseller will not delete or in any manner alter\nthe Intellectual Property Rights notices of Licensor and its suppliers, if any,\nappearing on the Products as delivered to Reseller. As a condition of the\nlicense rights granted to Reseller in this Agreement, Reseller will reproduce\nand display such notices on each copy it makes of any Product.\n\n         10.2 Reseller's Duties. Reseller will take customary measures in the\nmarketing and distribution of the Products to protect Licensor's Intellectual\nProperty Rights in the Products, no less than the extent to which Reseller\nprotects its Intellectual Property Rights in Reseller's Products, and will, to\nthe extent lawful, report promptly to Licensor any confirmed infringement of\nsuch rights of which Reseller becomes aware.\n\n         10.3 Third Party Infringement. Licensor reserves the sole and exclusive\nright at its discretion to assert claims against third parties for infringement\nor misappropriation of its Intellectual Property Rights in the Products.\n\n         10.4 Trademarks.\n\n                  (a) Trademark License. Subject to the terms and conditions of\nthis Agreement, Licensor grants Reseller a nonexclusive license for the term of\nthis Agreement to use the Marks in Reseller's marketing of the Products,\nprovided that such use is in accordance with Licensor's trademark usage\nguidelines then in effect. Such use must reference the Marks as being owned by\nLicensor. Nothing in this Agreement grants Reseller ownership or any rights in\nor to use the Marks, except in accordance with this license, and Reseller's use\nof the Marks will inure to the benefit of Licensor. The rights granted to\nReseller in this license will terminate upon any termination or expiration of\nthis Agreement. Upon such termination or expiration, Reseller will no longer\nmake any use of any Marks. Licensor will have the exclusive right to own, use,\nhold, apply for registration for, and register the Marks during the term of, and\nafter the expiration or termination of, this Agreement; Reseller will neither\ntake nor authorize any activity inconsistent with such exclusive right.\n\n11. WARRANTY.\n\n         11.1 Power and Authority. Licensor warrants to Reseller that it has\nsufficient right and authority to grant to Reseller all licenses and rights that\nLicensor grants under this Agreement.\n\n         11.2 Limited Warranty. Licensor warrants to Reseller that during the\nninety days following delivery to Reseller the storage media containing the\nProducts will be free from defects in materials and workmanship.\n\n\n\n                                       -6-\n\n\nIn the event the storage media fail to conform to such warranty, as Reseller's\nsole and exclusive remedy for such failure Licensor will, at its option and\nwithout charge to Reseller, repair or replace the storage media, provided the\nnonconforming item is returned to Licensor within the 90-day warranty period.\n\n         11.3 Disclaimer of Other Warranties. THE WARRANTIES IN THIS SECTION ARE\nIN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED\nTO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,\nAND NONINFRINGEMENT.\n\n12. INFRINGEMENT INDEMNITY\n\n         12.1 Duty to Indemnify and Defend.\n\n                  (a) Licensor represents and warrants that the Products were\nindependently developed. Licensor will indemnify Reseller against, and will\ndefend or settle at Licensor's own expense, any action or other proceeding\nbrought against Reseller to the extent that it is based on a claim that the use\nof the Products as licensed in this Agreement (other than derivative works\ncreated by or for Reseller pursuant to Sections 2.4 or 2.5) infringes any\ncopyright in the United States or any other country in which Licensor or its\naffiliates directly distribute the Products as of the Effective Date or in the\nfuture, infringes any patent, or that the Products incorporate any\nmisappropriated trade secrets.\n\n                  (b) Licensor will pay any and all costs, damages, and expenses\n(including but not limited to attorneys' fees) awarded against Reseller in any\nsuch action or proceeding attributable to any such claim.\n\n                  (c) Licensor will have no obligation under this Section as to\nany action, proceeding, or claim unless: (A) Licensor is notified of it\npromptly; (B) Licensor has sole control of its defense and settlement; and (C)\nReseller provides Licensor with reasonable assistance in its defense and\nsettlement.\n\n         12.2 Injunctions.\n\n                  (a) If Reseller's use of any Products under the terms of this\nAgreement is, or in Licensor's opinion is likely to be, enjoined due to the type\nof infringement or misappropriation specified in Section 12.1 above, then\nLicensor shall, either:\n\n                           (i) procure for Reseller the right to continue using\nsuch Products under the terms of this Agreement; or\n\n\n\n                                       -7-\n\n\n                           (ii) replace or modify such Products so that they are\nnoninfringing and substantially equivalent in function to the enjoined Products;\nor\n\n                           (iii) if options (i) and (ii) above cannot be\naccomplished despite the reasonable efforts of Licensor, then Licensor shall\nboth:\n\n                                    (A) terminate Reseller's rights and\nLicensor's obligations under this Agreement with respect to such Products, and\n\n                                    (B) refund to Reseller all payments made by\nReseller to Licensor hereunder.\n\n         12.3 Sole Remedy. THE FOREGOING ARE LICENSOR'S SOLE AND EXCLUSIVE\nOBLIGATIONS, AND RESELLER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO\nINFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.\n\n         12.4 Exclusions. Licensor will have no obligations under this Section\n12 with respect to claims of infringement or misappropriation arising from (i)\nmodifications to the Products that were not authorized by Licensor, (ii) Product\nspecifications requested by Reseller, or (iii) the use of the Products in\ncombination with products not provided by Licensor, if such claims would not\narise but for such combination.\n\n13. LIMITATIONS OF LIABILITY.\n\n         13.1 TOTAL LIABILITY. EXCEPT AS SET FORTH IN SECTION 12 AND EXCEPT IN\nTHE CASE OF FRAUD, EACH PARTY'S LIABILITY FOR A BREACH OF THIS AGREEMENT UNDER\nTHIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED OR DUE (PER EXHIBIT C)\nFROM RESELLER UNDER THIS AGREEMENT (ALONG WITH THE CHARGES PERMITTED UNDER\nSECTION 7.3).\n\n         13.2 EXCLUSION OF DAMAGES. EXCEPT AS SET FORTH IN SECTION 12 AND EXCEPT\nIN THE CASE OF FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL,\nINCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT\n(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH\nPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.\n\n14. TERM AND TERMINATION.\n\n         14.1 Term. The term of this Agreement will begin on the Effective Date\nand will continue for three years unless it is terminated earlier in accordance\nwith the provisions hereof. This Agreement may be renewed for additional periods\nupon the mutual written agreement of the parties, although each party\nacknowledges that the other is not under any obligation to do so; provided,\nhowever, that in no event will Licensor be required to deliver copies of the\nProducts to Reseller for use in specific jurisdictions until Reseller has\nobtained all necessary governmental approvals for this\n\n\n\n                                       -8-\n\n\n Agreement and for the distribution of the Products in the applicable\njurisdiction within the Territory.\n\n\n         14.2 Events of Termination. Either party will have the right to\nterminate this Agreement if:\n\n                  (i) the other party breaches any material term or condition of\nthis Agreement and fails to cure such breach within thirty (30) days after\nwritten notice;\n\n                  (ii) Either party will have the right to terminate this\nAgreement if the other party becomes the subject of a voluntary petition in\nbankruptcy or any voluntary proceeding relating to insolvency, receivership,\nliquidation, or composition for the benefit of creditors; or the other party\nbecomes the subject of an involuntary petition in bankruptcy or any involuntary\nproceeding relating to insolvency, receivership, liquidation, or composition for\nthe benefit of creditors, if such petition or proceeding is not dismissed within\nsixty (60) days of filing.\n\n                  (iii) Either party will have the right to terminate this\nAgreement by providing written notice 18 months in advance of the termination\ndate.\n\n         14.3 Effect of Termination.\n\n                  (a) Upon termination or expiration of this Agreement, Reseller\nwill (except as specified in subsection (b) below) immediately return to\nLicensor or (at Licensor's request) destroy all copies of the Products and other\nConfidential Information in its possession or control, and an officer of\nReseller will certify to Licensor in writing that Reseller has done so.\n\n                  (b) Upon termination or expiration of this Agreement, Licensor\nwill have the option, in its sole discretion, of:\n\n                           (i) electing, at any time, to offer maintenance and\nsupport for the Products directly to End Users in accordance with Licensor's\nthen applicable terms and conditions for such services; or\n\n                           (ii) permitting Reseller to continue to provide\nmaintenance and support for the Products to its End Users [upon the terms and\nconditions of Sections 6.2 and 8.2(iv)] and continue to use copies of the\nProducts, to the extent needed to provide such services, pursuant to a limited\nlicense agreement to be entered between Licensor and Reseller promptly following\nsuch termination or expiration.\n\n         14.4 Nonexclusive Remedy. The exercise by either party of any remedy\nunder this Agreement will be without prejudice to its other remedies under this\nAgreement or otherwise.\n\n\n\n                                       -9-\n\n\n         14.5 Survival. The rights and obligations of the parties contained in\nSections 9, (Confidentiality), 10 (Proprietary Rights), 11 (Warranty), 12\n(Infringement Indemnity), 13 (Limitations of Liability), 14 (Termination) and 15\n(General) will survive the termination or expiration of this Agreement.\n\n15. GENERAL.\n\n         15.1 Binding Effect. This Agreement will bind and inure to the benefit\nof each party's permitted successors and assigns.\n\n         15.2 Governing Law. This Agreement will be governed by and construed in\naccordance with the laws of the State of California applicable to agreements\nentered into, and to be performed entirely, within California between California\nresidents, without reference to conflict of law principles. Any dispute or claim\narising out of this Agreement will be resolved by binding arbitration in the\ncity and county of Santa Clara in accordance with the complex commercial\nlitigation rules of the American Arbitration Association. The arbitrator will\nhave the power to grant any form of relief, including preliminary and permanent\ninjunctive relief, which a judge in California with jurisdiction could fashion,\nand judgment on any award may be entered in any court in California with\njurisdiction. Nonetheless, the parties may seek temporary or permanent\ninjunctive relief from any court in California with jurisdiction without\nbreaching this Section 15.2 or otherwise abridging the authority of the\narbitrator.\n\n         15.3 Severability. If any provision of this Agreement is found invalid\nor unenforceable, that provision will be enforced to the maximum extent\npermissible, and the other provisions of this Agreement will remain in force.\n\n         15.4 Force Majeure. Except for payments due under this Agreement,\nneither party will be responsible for any failure to perform due to causes\nbeyond its reasonable control (each a 'Force Majeure'), including, but not\nlimited to, acts of God, war, riot, embargoes, acts of civil or military\nauthorities, denial of or delays in processing of export license applications,\nfire, floods, earthquakes, accidents, strikes, or fuel crises, provided that\nsuch party gives prompt written notice thereof to the other party. The time for\nperformance will be extended for a period equal to the duration of the Force\nMajeure, but in no event longer than sixty days.\n\n         15.5 Notices. All notices under this Agreement will be deemed given\nwhen delivered personally, sent by confirmed facsimile transmission, or sent by\ncertified or registered U.S. mail or nationally-recognized express courier,\nreturn receipt requested, to the address shown below or as may otherwise be\nspecified by either party to the other in accordance with this section.\n\n         15.6 Independent Contractors. The parties to this Agreement are\nindependent contractors. There is no relationship of partnership, joint venture,\nemployment, franchise, or agency between the parties. Neither party will have\nthe power to bind the other or incur obligations on the other's behalf without\nthe other's prior written consent.\n\n\n\n                                      -10-\n\n\n         15.7 Waiver. No failure of either party to exercise or enforce any of\nits rights under this Agreement will act as a waiver of such rights.\n\n         15.8 Entire Agreement. This Agreement and its exhibits (A, B, C and D)\nare the complete and exclusive agreement between the parties with respect to the\nsubject matter hereof, superseding and replacing any and all prior agreements,\ncommunications, and understandings (both written and oral) regarding such\nsubject matter. This Agreement may only be modified, or any rights under it\nwaived, by a written document executed by both parties.\n\n\n\n                                      -11-\n\n\n         The parties have caused this Agreement to be executed by their\nduly-authorized representatives as of the Effective Date.\n\nReseller: Sagent Technology, Inc.      Licensor: Opalis SARL\n          ------------------------               -------------------------------\n\nSignature: \/s\/ JOHN ZICKER             Signature: \/s\/ LAURENT DOMENECH\n           -----------------------                ------------------------------\n\nName: John Zicker                      Name: Laurent Domenech\n      ----------------------------           -----------------------------------\n\nTitle: VP Technology                   Title:   [ILLEGIBLE]\n       ----------------------------          -----------------------------------\n\nDate: 12\/12\/97                         Date: 12\/22\/97\n      -----------------------------           ----------------------------------\n\nFacsimile:                             Facsimile:\n          -------------------------              -------------------------------\n\n\nFIRST AMENDMENT TO NONEXCLUSIVE INTERNATIONAL SOFTWARE VALUE ADDED\nRESELLER ('VAR') AGREEMENT\n\n         Opalis SARL and Sagent Technology, Inc entered into an Agreement dated\nDecember 8, 1997. The parties desire to add second line support provisions to\nenhance the provisions of Section 8.2 of the Agreement, upon payment of required\nfees. Accordingly, the parties agree as follows:\n\n         1. This modifications is authorized pursuant to Section 15.8 of the\nAgreement.\n\n         2. Opalis will provide Sagent second Line 24 hour per day, 7 days per\nweek support to allow Sagent to effectively support its customers. Sagent will\ndeal with the customer directly and provide first line support. Opalis will\nprovide second line support to help resolve issues when Sagent is unable to\nreproduce customer problems or otherwise unable to solve customer problems.\nThe support service provided by Opalis consists of the following:\n\n         2.1 Opalis will provide Sagent a phone number, which may be called at\nany time, 24 hours, 7 days per week. For normal issues, Opal will provide a\nresponse within 6-10 hours.\n\n         2.2 Timing of other response issues:\n\n         (a) When a customer has a critical issue such that the operation of the\nsoftware is substantially impaired, a Sagent technical support specialist may\ncontact Opalis. Opalis will provide a support engineer or developer's response\nwithin two hours.\n\n         (b) Opalis will provide a patch to Sagent within three days of\nreproducing an error.\n\n         (c) Sagent may reserve the availability of an Opalis developer with\nsource code and development environment experience at least 24 hours before a\nSagent developer or support engineer goes on the customer site to assist with\nproblems. The Opalis developer will be available for the period that is\nnecessary to diagnose and reproduce the problem.\n\n         (d) Upon Sagent's request, and Opalis engineer will go to a customer\nsite is a problem has not been resolved by phone after 7 days.\n\n         3. Opalis will provide a 2 day Opalis internal training course to two\nSagent engineers in August or September, to provide a set of skills to assist\nthe Sagent developers to improve their ability to diagnose OpalisRobot problems.\nThe location of the training will be at Sagent's offices in California. All\nfees, expenses, including travel and lodging are included in the price of this\nservice.\n\n         4. Sagent and Opalis will work on a simple add-on to assist in\nisolating Sagent and Opalis problems.\n\n\n\n         5. The service will run for an initial term of three months beginning\n________ ('Start Date'). The fees for this term shall be $3,000. After the\ninitial term, Sagent shall have the option to renew subject to renegotiated fees\nwith no loss of quality of support.\n\n         6. The other provisions of Section 8.2 are not altered by this\namendment.\n\nSagent Technology, Inc.                Opalis SARL\n\nSignature                              Signature\n         -------------------------               -------------------------------\nName                                   Name\n    ------------------------------         -------------------------------------\nTitle                                  Title\n     -----------------------------           -----------------------------------\nDate                                   Date\n     -----------------------------         -------------------------------------\n\nThe latest date shall be the Start Date.\n\nOpalisRobot Add-on Software Development Kit (SDK) License Agreement\n\n\nOPALISROBOT ADD-ON SOFTWARE DEVELOPMENT KIT (SDK) LICENSE AGREEMENT\n\nThis Agreement, dated December 22, 1997, is made between Opalis SARL ('OPALIS'),\na French corporation doing business at 27, Bld Pereire 75017 Paris, France, and\nSagent Technology, Inc. ] ('LICENSEE'), a California corporation doing business\nat 2225 E. Bayshore Road, Suite 100, Palo Alto, California 94303.\n\nThis agreement is a legal agreement between LICENSEE and OPALIS for the\nOpalisRobot Add-on SDK product, which includes computer software, and may\ninclude 'online' or electronic documentation, associated media and printed\nmaterials ('SOFTWARE PRODUCT' or 'SOFTWARE').\n\n1 - GRANT OF LICENSE.\n\nThe SOFTWARE is used to develop one OpalisRobot add-on ('ADD-ON') in the form of\none or more Microsoft Windows dynamic link libraries (DLL) and other software\ncomponents in object code form. In order to develop\n\nThe ADD-ON extends OPALIS' OpalisRobot automation software ('OPALISROBOT') by\nadding events, tasks, dialogs, wizards and other components. Each copy of the\nADD-ON may only be used in conjunction with a legal copy of OPALISROBOT operated\nunder the terms of the OPALISROBOT License Agreement.\n\nLICENSEE may install and use the enclosed SOFTWARE on an unlimited number of\ncomputers to design, develop, and test the ADD-ON. Such development of an ADD-ON\nusing the SOFTWARE can be performed by an unlimited number of persons.\n\nLICENSEE may resell the ADD-ON developed using the SOFTWARE and may distribute\nthe ADD-ON for use outside of his organization.\n\nThe SOFTWARE is licensed exclusively to develop one ADD-ON described as follows:\n\nThe Sagent add-on will allow a user to insert a new Sagent Task object into an\nOpalisRobot scheduling diagram. A Sagent Task initiates a Sagent Execution Plan\nto run within the Sagent Datamart Server and wait for completion to sequence the\nnext OpalisRobot task.\n\nIf LICENSEE wishes to add, modify or remove any characteristics of the ADD-ON,\nLICENSEE must obtain OPALIS' written approval (that will appended to this\nAgreement) prior to the effective distribution of the modified ADD-ON.\n\nAn ADD-ON is identified by unique numbers assigned by OPALIS, LICENSEE may not\nuse these numbers to develop several ADD-ONS with different specifications.\n\nFailure to do so is a breech of this Agreement and OPALIS may terminate this\nagreement at its sole discretion. Such termination may include, but is not\nlimited to, the modification of current and future OPALISROBOT releases so that\nthey do not accept the faulty ADD-ON.\n\nLICENSEE may not distribute (even partially), rent or lease the SOFTWARE or its\ndocumentation without prior written approval by OPALIS.\n\nLICENSEE may transfer the SOFTWARE and accompanying written materials on a\npermanent basis provided that he retains no copies, immediately stop reselling\nor distributing the developed ADD-ON and the recipient agrees by a writing to\nthe terms of the present Agreement.\n\n2 - TERMINATION\nThis License Agreement and the associated rights and duties are not limited in\ntime.\n\n\nIf this License Agreement is terminated because of LICENSEE' failure, LICENSEE\nmust immediately stop to resell or distribute (even on a free basis) the\ndeveloped ADD-ON.\n\n3 - OTHER RIGHTS AND LIMITATIONS.\n\nLICENSEE acknowledge that the Software in source code form remains a\nconfidential trade secret of OPALIS and\/or its suppliers and therefore LICENSEE\nagree not to attempt to decipher, de-compile, disassemble or reverse engineer\nthe SOFTWARE or allow others to do so, except to the extent applicable laws\nspecifically prohibit such restriction. LICENSEE further agree not to modify or\ncreate derivative works of the SOFTWARE. This Agreement represents the complete\nand exclusive statement of the agreements concerning the SOFTWARE between the\nparties and supersedes all prior agreements and representations between them. It\nmay be amended only by a writing executed by both parties.\n\nLIMITED WARRANTY. OPALIS warrants that the SOFTWARE will perform substantially\nin accordance with the accompanying written materials for a period of ninety\n(90) days from the date of receipt, and any hardware accompanying the SOFTWARE\nwill be free from defects in materials and workmanship under normal use and\nservice for a period of six (6) months from the date of receipt. Any implied\nwarranties on the SOFTWARE and hardware are limited to ninety (90) days and six\n(6) months, respectively. Some states\/jurisdictions do not allow limitations on\nduration of an implied warranty, so the above limitation may not apply to\nLICENSEE.\n\nCUSTOMER REMEDIES. OPALIS' and its suppliers' entire liability and LICENSEE'\nexclusive remedy shall be, at OPALIS' option, either (a) return of the price\npaid, or (b) repair or replacement of the SOFTWARE or hardware that does not\nmeet OPALIS' Limited Warranty and which is returned to OPALIS or its suppliers\nwith a copy of LICENSEE' receipt. This Limited Warranty is void if failure of\nthe SOFTWARE or hardware has resulted from accident, abuse, or misapplication.\nAny replacement SOFTWARE or hardware will be warranted for the remainder of the\noriginal warranty period or thirty (30) days, whichever is longer. Neither these\nremedies nor any product support service offered by OPALIS are available without\nproof of purchase.\n\nNO OTHER WARRANTIES. To the maximum extent permitted by applicable law, OPALIS\nand its suppliers disclaim all other warranties, either express or implied,\nincluding, but not limited to, implied warranties of merchantability and fitness\nfor a particular purpose, with regard to the SOFTWARE, the accompanying written\nmaterials, and any accompanying hardware. This limited warranty gives LICENSEE\nspecific legal rights. LICENSEE may have others, which vary from\nstate\/jurisdiction to state\/jurisdiction.\n\nNO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by\napplicable law, in no event shall OPALIS or its suppliers be liable for any\ndamages whatsoever (including, without limitation, damages for loss of business\nprofits, business interruption, loss of business information, or any other\npecuniary loss) arising out of the use of or inability to use this OPALIS\nproduct, even if OPALIS has been advised of the possibility of such damages.\nBecause some states\/jurisdictions do not allow the exclusion or limitation of\nliability for consequential or incidental damages, the above limitation may not\napply to LICENSEE.\n\n--------------------------------------------------------------------------------\n\nThe parties have caused this Agreement to be executed by their duly-authorized\nrepresentatives as of the Effective Date.\n\n\n\nLicensee:  Sagent Technologies, Inc    Licenser:  Opalis Sarl\n           ------------------------              -------------------------------\n\nSignature: \/s\/ JOHN ZICKER             Signature: \/s\/ LAURENT DOMENECH\n           ------------------------               ------------------------------\nName: John Zicker                      Name: Laurent Domenech \n      -----------------------------          -----------------------------------\n\nTitle: VP Technology                   Title: [ILLEGIBLE]\n       ----------------------------           ----------------------------------\n\nDate: 12\/12\/97                         Date: 12\/22\/97\n      -----------------------------          -----------------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8746],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42603","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sagent-technology-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42603","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42603"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42603"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42603"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42603"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}