{"id":42818,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-license-and-services-agreement-sagent-technology-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-license-and-services-agreement-sagent-technology-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-license-and-services-agreement-sagent-technology-inc.html","title":{"rendered":"Software License and Services Agreement &#8211; Sagent Technology Inc. and Siebel Systems Inc."},"content":{"rendered":"<pre>                    SOFTWARE LICENSE AND SERVICES AGREEMENT\n\nTHIS SOFTWARE LICENSE AND SERVICES AGREEMENT (the 'Agreement') is between SAGENT\nTECHNOLOGY, INC., with its principal place of business at 2226 E. Bayshore Road,\nSuite 100, Palo Alto, CA 94303 ('Sagent') and SIEBEL SYSTEMS, INC., with its\nprincipal place of business at 1855 South Grant Street, San Mateo, CA 94402\n('Customer'), and For purposes of this Agreement, 'Customer' shall include\nSiebel Systems, Inc. and all its Affiliates, as defined below.\n\nThe terms of this Agreement shall apply to each Program License (as defined in\nSection 1.13 below) and to all services provided by Sagent under this Agreement.\nWhen completed by the parties, Order Forms (as defined in Section 1.10 below)\nshall evidence the Program Licenses to be provided in Customer hereunder. The\nterms and conditions set forth in this Agreement and in any Order Form shall\ncontrol in the event that there are different or additional terms set forth in\nany other purchase order submitted by Customer or acceptance form or invoice\nissued by Sagent. The terms and conditions of any Order Form shall control over\nany conflicting terms and conditions contained in this Agreement.\n\n1.   DEFINITIONS\n\n1.1  'AFFILIATE' shall mean any entity controlled by, controlling, or under\ncommon control with Customer. Such entity shall be deemed to be an 'Affiliate'\nonly so long as such control exists. Upon request, Customer agrees to confirm\nthe Affiliate status of a particular entity.\n\n1.2  'COMMENCEMENT DATE' of each Program License shall mean the date on which an\nOrdered Program is first delivered to Customer.\n\n1.3  'DESIGNATED SYSTEM' shall mean Customer's computer hardware and operating\nsystem designated on the Order Form.\n\n1.4  'DOCUMENTATION' shall mean Sagent's then current published guides, manuals\nand on-line help for the Ordered Programs. As of the Effective Date, such guides\nand manuals for the Ordered Programs are listed in Exhibit C.\n\n1.5  'EFFECTIVE DATE' shall mean the effective date set forth at the end of this\nAgreement.\n\n1.6  'PRE-PRODUCTION PROGRAM' shall mean a software program which is (i) not\ngenerally licensed for commercial use by Sagent, (ii) not listed as generally\navailable in Sagent's marketing literature, or (iii) designated by Sagent as an\n'Alpha,' 'Beta,' or 'Pre Production' program or release.\n\n1.7  'MAINTENANCE SERVICES' shall mean the services provided under Sagent's\nstandard Maintenance Services policy in effect on the date such services are\nordered. A copy of Sagent's current Maintenance Services policy is attached as\nEXHIBIT B.\n\n1.8  'ORDER FORM' shall mean the document, substantially in the form of EXHIBIT \nA, by which Customer orders Program Licenses and related services and which is \nexecuted by the parties. Each Order Form shall reference the Effective Date of \nthis Agreement and shall upon signature by both parties, be incorporated into \nthis Agreement.\n\n1.9  'ORDERED PROGRAMS' shall mean the User Programs and System Programs as\ndelivered by Sagent as listed in one or more Order Forms.\n\n1.10 'PROGRAMS' shall mean (i) the User Programs and System Programs, and (ii)\nUpdates.\n\n1.11 'PROGRAM LICENSE' shall mean each license granted to Customer for a User to\nuse a Program.\n\n1.12 'SERVER SYSTEM' shall mean the server hardware and operating system of\nCustomer specified on the Order Form.\n\n1.13 'SYSTEM PROGRAMS' shall mean the object code of the software specified as\n'System Programs' on an Order Form that resides and operates on Server Systems.\n\n1.14 'SUPPORTED PLATFORM' shall mean the hardware and software platforms (e.g.\ndatabase server systems, application server systems, and client systems) that\nare supported by Sagent as expressly set forth in the Documentation. The\nrequirements for the Supported Platform are subject to change as specified by\nSagent in its discretion with thirty (30) days prior written notice to Customer.\n\n1.15 'UPDATE' shall mean a subsequent release of a Program that Sagent makes\ngenerally available at no additional charge for Programs receiving Maintenance\nServices. Updates shall not include any release, option, future product, or any\nupgrade in features, functionality or performance of the Programs which Sagent\nlicenses separately or offers only for an additional fee; provided, however,\nthat Updates shall include all (i) bug fixes, patches, and maintenance releases,\n(ii) new point releases denoted by a change to the right of the first decimal\npoint (e.g., v30  to 31), and (iii) new major version releases denoted by a\nchange to the left of the first decimal point (e.g., v3.0 to 4.0) so long as\nCustomer is current on maintenance fee obligations.\n\n1.16 'USERS' shall mean the unlimited number of individuals using the Programs.\nUsers may include the employees of Customer or third parties; provided that such\nthird party is limited to use of the Programs (i) only as configured and\ndeployed by Customer, and (ii) solely in connection with Customer's business\noperations as conducted by or through such third party, including but not\nlimited to the installation, administration or implementation of the Programs\nfor Customer. Customer agrees that it is responsible for insuring that any third\nparty usage is in accordance with the terms and conditions of this Agreement.\nNotwithstanding the foregoing, Users shall exclude any individuals employed by,\nor acting on behalf or under the direction of, a direct competitor of Sagent.\n\n1.17 'USER PROGRAMS' shall mean the object code of the software specified as\n'User Programs' on an Order Form that resides and operates on User Systems.\n\n1.18 'USER SYSTEM' shall mean the hardware and operating systems operated by\nUsers, including notebook and portable computers.\n\n2.   PROGRAM LICENSE\n\n2.1  LICENSE GRANT. Subject to the terms and conditions of this Agreement,\nSagent grants Customer the worldwide, nonexclusive, perpetual right, solely for\nits own internal business operations.\n\n     A.   TO USE. (i) to use the Programs solely on the Designated System, or on\na backup system if the Designated System is inoperative, (ii) to use the\nDocumentation solely for purposes of supporting Customer's use of the Programs;\n(iii) to use the Training Materials solely for purposes of supporting Users who\nattend Sagent training courses; (iv) to use the Sagent Tools User Programs\nsolely in accordance with the Documentation to create Customer specific objects\nfor use with the User Programs, (v) to use the Deliverables solely for purposes\nof installing or operating the programs, and (vi) to have third parties (e.g.,\nsystem integrators) install, integrate, and implement the Programs for the\nCustomer;\n\n     B.   TO COPY. (i) to copy the System Programs as reasonably necessary to\nsupport the Users; (ii) to copy the User Programs, so long as such User operates\nonly one copy of the User Program at any given time, (iii) to make a reasonable\nnumber of additional copies of the Programs solely for archival, emergency\nback-up, or disaster recovery purposes; and (iv) to copy the on-line help\nDocumentation as reasonably necessary to support its Users.\n\n2.2  LICENSE RESTRICTIONS. The rights granted in Section 2.1 are subject to the\nfollowing restrictions: (i) Customer may not reverse engineer, disassemble,\ndecompile, or otherwise attempt to derive the source code of the Programs,\nprovided that, if required under applicable law, upon Customer's request, Sagent\nshall provide information necessary for Customer to achieve interoperability\nbetween the Programs and other software for a nominal administrative charge;\n(ii) Customer may not sublicense or use the Programs for commercial\ntime-sharing, rental, or service bureau use, or to train persons other than\nUsers, unless previously agreed to in writing by Sagent; (iii) Customer shall\nnot use the Sagent Tools User Programs for general application development\npurposes; and (iv) with regard to any and all copies of the Programs, and\nDocumentation, Customer shall only make exact copies of the versions as\noriginally delivered by Sagent. Customer shall ensure that each copy contains\nall titles, trademarks, and copyright and restricted rights notices as in the\noriginal, and all such copies shall be subject to the terms and conditions of\nthis Agreement.\n\n2.3  RETENTION OF RIGHTS. Sagent reserves all rights not expressly granted to\nCustomer in this Agreement. Without limiting the generality of the foregoing,\nCustomer acknowledges and agrees that: (i) except as specifically set forth in\nthis Agreement, Sagent and its suppliers retain all rights, title and interest\nin and to the Programs, Documentation, Deliverables, and Training Materials and\nCustomer acknowledges and agrees that it does not acquire any rights, express or\nimplied, thereon, (ii) any configuration or deployment of the User Programs\nshall not affect or diminish Sagent's rights, title, and interest in and to\n\nthe Programs and (iii) if Customer suggests any new features functionality, or\nperformance for the Programs that Sagent subsequently incorporates into the\nPrograms, such new features, functionality, or performance shall be the sole and\nexclusive property of Sagent and shall be free from any confidentiality\nrestrictions that might otherwise be imposed upon Sagent pursuant to Section 9.1\n\n2.4 ASSIGNMENT.  Neither this Agreement nor any rights granted hereunder may be\nsold, issued, assigned, or otherwise transferred, in whole or in part, by either\nparty, and any such attempted assignment shall be void and of no effect without\nthe advance written consent of the other party. Such consent not to be\nunreasonably withheld or delayed, provided, however that such consent shall not\nbe required if (i) either party assigns this Agreement to a wholly owned\nsubsidiary or in connection with a merger, acquisition, or sale of all or\nsubstantially all of its assets, unless the surviving entity is a direct\ncompetitor of the other party, or (ii) Sagent assigns its right to receive and\ncollect payments hereunder.\n\n2.5 ACCEPTANCE.  Unless an Ordered Program has previously been accepted by\nCustomer. Customer shall have thirty (30) days from the first date of delivery\nof the Ordered Program (the 'Acceptance Period') to evaluate such Ordered\nProgram. If, during the Acceptance Period, any Ordered Program fails to conform\nin all material respects to the functions described in the Documentation when\noperated on a Supported Platform, then (i) for Ordered Programs listed on the\nfirst Order Form executed under this Agreement. Customer has the right to\nterminate this Agreement by providing Sagent written notice during the\nAcceptance Period and upon return of the Order Programs pursuant to Section 5.5,\nreceive a full refund of all Program License fees paid to Sagent pursuant to\nthis Agreement as of such termination date, and (ii) for Ordered Programs listed\non subsequent Order Forms, Customer has the right to terminate the corresponding\nProgram License by providing Sagent written notice during the Acceptance Period\nand, upon return of the Ordered Programs pursuant to Section 5.5, receive a full\nrefund of any Program Licensee fees paid to Sagent with respect to such returned\nOrdered Program as of the termination date. This Section states Customer's sole\nand exclusive remedy with regard to nonconformance of any Ordered Program to the\nDocumentation. Failure by Customer to notify Sagent in writing of nonconformance\nof an Ordered Program within the Acceptance Period shall be deemed acceptance.\nNotwithstanding the foregoing, the warranties and remedies set forth in Sections\n6.2 and 6.3 shall have full force and effect both during and after the\nAcceptance Period.\n\n2.6 CHANGE OR ADDITION OF DESIGNATED SYSTEM.  If, at any time, Customer desires\nto change the Designated System to another Supported Platform, Customer may do\nso at no additional charge by providing Sagent fifteen (15) days prior written\nnotice. If Customer wishes to add a database management system that is a\nSupported Platform, Customer may do so by providing Sagent fifteen (15) days\nprior written notice and paying any applicable fees.\n\n2.7 VERIFICATION.  At Sagent's written request, but not more frequently than\nannually, Customer shall furnish Sagent with a document signed by Customer's\nauthorized representative listing (locations of the Designated Systems.\n\n3.  SOURCE CODE ESCROW\n\nCustomer shall have the right to become a beneficiary to the Master Preferred\nEscrow Agreement between Sagent and Data Securities International, Inc., a copy\nof which will be provided to Customer upon request and which will be\nincorporated by reference into this Agreement when Customer executes an\nAcceptance Form pursuant to the Master Preferred Escrow Agreement.\n\n4.  SERVICES\n\n4.1 MAINTENANCE SERVICES FOR PROGRAMS. Customer agrees to purchase Maintenance\nServices for the period specified in the applicable Order Form for each Program\nlicensed pursuant to this Agreement. Sagent reserves the right to alter its\nstandard Maintenance Services policy from time to time using reasonable\ndiscretion but in no event shall such alterations result in diminished support\nfrom the level of support set forth in Exhibit B. Sagent shall provide Customer\nwith sixty (60) days prior written notice of any material changes to the level\nof Maintenance Services set forth in Exhibit B.\n\n5.  TERM AND TERMINATION\n\n5.1 TERM.  Each Program License granted under this Agreement shall commence on\nthe applicable Commencement Date and shall remain in effect perpetually unless\nsuch Program License or this Agreement is terminated as provided in Section 5.2\nor 5.3 or in accordance with Section 2.5.\n\n5.2 TERMINATION BY EITHER PARTY FOR MATERIAL BREACH.  Either party may terminate\nthis Agreement or any Program License upon written notice if the other party\nmaterially breaches this Agreement and fails to cure such breach within thirty\n(30) days following receipt of written notice specifying the breach in detail;\nprovided, however, the Customer may terminate Maintenance Services only if\nSagent materially breaches the provisions of Exhibit B and fails to cure, or to\nbegin in good faith to cure, the breach within sixty (60) days following written\nnotice from Customer specifying the breach in detail. In the event of\ntermination of Maintenance Services, Customer shall be liable only for payment\nfor Maintenance Services through the termination date and shall receive a\npro-rata refund of any unused prepaid fees.\n\n5.3 EFFECT OF TERMINATION.  Subject to the provisions of Section 2.5,\ntermination of this Agreement or any Program License shall not limit either\nparty from pursuing other remedies available to it, including injunctive relief,\nnor shall such termination relieve Customer of its obligation to pay all fees\nthat have accrued or are otherwise owed by Customer under any Order Form. The\nparties' rights and obligations under Sections 2.2, 2.3, 2.5, 5, 6.1, 7, 8 and 9\nshall survive termination of this Agreement.\n\n5.4 HANDLING OF PROGRAMS UPON TERMINATION.  If a Program License granted under\nthis Agreement terminates, Customer shall (i) cease using the applicable\nPrograms, Documentation, and related Confidential Information of Sagent, and\n(ii) certify to Sagent within thirty (30) days after termination that Customer\nhas destroyed, or has returned to Sagent, the Programs, Documentation, related\nConfidential Information of Sagent, and all copies thereof, whether or not\nmodified or merged into other materials.\n\n6.  INDEMNITY, WARRANTIES, REMEDIES\n\n6.1 SAGENT'S INFRINGEMENT INDEMNITY. Sagent will defend and indemnify Customer\nagainst any and all costs, damages and expenses (including reasonable legal\nfees) finally awarded against Customer by a court of competent jurisdiction or\nagreed to in a written settlement agreement signed by Sagent arising out of any\nclaim that the Programs directly infringe any U.S. patent issued as of the\nEffective Date or any copyright, trade secret or trademark ('IP Claim'),\nprovided that: (i) Customer promptly notifies Sagent in writing no later than\nsixty (60) days after Customer's receipt of notification of a potential claim,\n(ii) Sagent may assume sole control of the defense of such claim and all related\nsettlement negotiations; and (iii) Customer provides Sagent, at Sagent's request\nand expenses, with the assistance, information and authority necessary to\nperform Sagent's obligations under this Section. Notwithstanding the foregoing,\nSagent shall have no liability for any claim of infringement based on (a) the\nuse of a superseded or altered release of Programs if the infringement would\nhave been avoided by the use of a current unaltered release of the Programs,\nwhich Sagent provided to Customer, (b) the modification of a Program, or (c) the\nuse of the Programs other than in accordance with the Documentation.\n\nIf, due to an IP Claim, (i) the Programs are held by a court of competent \njurisdiction or are believed by Sagent to infringe, or (ii) Customer receives a \nvalid court order enjoining Customer from using the Programs, Sagent shall in \nits reasonable judgment, and at its expense, (a) replace or modify the Programs \nto be non infringing; (b) obtain for Customer a license to continue using the \nPrograms; or (c) if Sagent cannot reasonably obtain the remedies in (a) or (b), \nterminate the Program License for the infringing Programs and refund the \nlicense fees paid for those Programs upon return by Customer. This Section 6.1 \nstates Sagent's entire liability and Customer's exclusive remedy for any claim \nof infringement.\n\n6.2 LIMITED WARRANTIES AND DISCLAIMERS\n\n    A.  LIMITED PROGRAM WARRANTY. Sagent warrants for one (1) year from the\nCommencement Date that each Ordered Program for which Customer has a Program\nLicense will perform in all material respects the functions described in the\nDocumentation when operated on a Supported Platform.\n\n    B.  LIMITED MEDIA WARRANTY. Sagent warrants for ninety (90) days from the \nCommencement Date that the tapes, diskettes or other media upon which Sagent \ndelivers Programs to Customer will be free of defects in materials and \nworkmanship under normal use.\n\n    C.  LIMITED SERVICES WARRANTY. Sagent warrants for ninety (90) days from \nthe performance of any services by Sagent pursuant to this Agreement, including \nMaintenance Services, that such services shall be performed in a manner \nconsistent with generally accepted industry standards.\n\n    D.  ANTI-VIRUS WARRANTY. Sagent warrants that to the best of its knowledge \nafter employing reasonable technical means to detect computer viruses, the \nPrograms do not contain any virus or computer software code, routines or \ndevices (other than as set forth in the Documentation) designed to disable, \ndamage, impair, or erase the Programs or other software or data. For failure to \ncomply with this warranty, Sagent shall, of Sagent's expenses, immediately \nreplace all copies of the affected Programs in the possession of\n\n\nCustomer. This Section states Customer's sole and exclusive remedies and \nSagent's entire liability for a breach of this warranty.\n\n     E. YEAR 2000 WARRANTY. Sagent warrants that the Programs, as provided by \nSagent, are capable of processing, recording, storing and presenting data \ncontaining four-digit years after December 31, 1999 in substantially the same \nmanner and with substantially the same functionality as before January 1, 2000. \nSagent assumes no responsibilities or obligations to cause third-party products \nor services to function with the Programs. Sagent will not be in breach of this \nwarranty for any failure of the Programs to correctly create or process \ndate-related data if such failure results from the inability of any software, \nhardware, or systems of Customer or any third party (including any underlying \ndatabase engines, operating systems, and related drivers) either to correctly \ncreate or process date-related data or to create or process such date-related \ndata in a manner consistent with the method in which the Programs create or \nprocess date-related data. In the event of a breach of this warranty, \nCustomer's sole and exclusive remedy and Sagent's sole liability shall be to \nuse its commercially reasonable efforts to correct or provide a workaround for \nreproducible Program errors that cause breach of this warranty, or if Sagent is \nunable to make the Program operate as warranted within a reasonable time \nconsidering the severity of the error and its impact on the Customer. Customer \nshall be entitled to return the Program to Sagent and recover the fees paid to \nSagent for the Program License.\n\n     F.  DISCLAIMERS. Sagent does not warrant that the Programs will meet \nCustomer's requirements, the Programs will operate in combinations with other \nhardware, software, systems or data not provided by Sagent (except as expressly \nspecified in writing by Sagent in the Documentation) which Customer may select \nfor use; the operation of the Programs will be uninterrupted or error free; or \nall Program errors will be corrected. Notwithstanding any provision to the \ncontrary, Pre-Production Programs, Deliverables, and Training Materials are \ndistributed 'AS IS' and Customer acknowledges that Pre-Production Programs are \nnot suitable for general use. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU \nOF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING \nWITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A \nPARTICULAR PURPOSE. \n\n6.3  EXCLUSIVE REMEDIES. Customer must report in writing any breach of the \nwarranties contained in Sections 6 2A, 6 2B and 6 2C to Sagent during the \nrelevant warranty period, and Customer's exclusive remedy and Sagent's entire \nliability for such breach shall be.\n\n     A. FOR PROGRAMS. To use its commercially reasonable efforts to correct or \nprovide a workaround for reproducible Program errors that cause a breach of \nthis warranty or if Sagent is unable to make the Program operate as warranted \nwithin a reasonable time considering the severity of the error and its impact \non the Customer. Customer shall be entitled to return the Program to Sagent and \nrecover the fees paid to Sagent for the Program License. \n\n     B. FOR MEDIA. The replacement of the defective media.\n\n     C. FOR SERVICES. The reperformance of the services, or if Sagent is unable \nto perform the services as warranted. Customer shall be entitled to recover the \nfees paid to Sagent for the nonconforming services.\n\n6.4 GENERAL INDEMNITY. Each party (an 'Indemnitor') shall defend and indemnify \nthe other party and its employees, officers, directors and agents (the \n'Indemnitee') against all damages for bodily injury, death, or damage to real \nor tangible personal property proximately caused by the Indemnitor in the \ncourse of performing this Agreement; provided that (i) the Indemnitor receives \nprompt written notice of the claim from the Indemnitee under this Section, (ii) \nthe Indemnitor has the right to control the defense of such claim and any \nrelated settlement negotiations, and (iii) the Indemnitee provides to the \nIndemnitor, at the Indemnitor's request and expense, with the assistance, \ninformation and authority necessary to perform the Indemnitor's obligations \nunder this Section.\n\n7.  LIMITATION OF LIABILITY\n\nIN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL \nOR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF \nPROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN \nAN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE \nPOSSIBILITY OF SUCH DAMAGES. Except for Sagent's liability for infringement \nclaims under Section 6.1 or for any breach of its obligations under Section \n9.1, Sagent's aggregate and cumulative liability for damages hereunder shall in \nno event exceed the amount of fees paid by Customer under this Agreement, and \nif such damages result from Customer's use of the Program or services, such \nliability shall be limited to fees paid for the relevant Program or services \ngiving rise to the liability. Except for any breach of its obligations under \nSections 2.1, 2.2, 8 and 9.1, Customer's aggregate and cumulative liability for \ndamages hereunder shall in no event exceed the amount of fees paid by Customer \nunder this Agreement.\n\n8.   PAYMENT PROVISIONS\n\n8.1  LICENSE FEES. In consideration of the license granted herein, Customer \nagrees to make the license fee payments set forth in Order Forms which payments \nshall be nonrefundable and irrevocable except as otherwise provided in Sections \n2.5, 6.1 and 6.3A of this Agreement. Concurrently with the execution of this \nAgreement, Customer shall place a binding initial order for Programs using the \nOrder Form attached hereto as EXHIBIT A.\n\n8.2  MAINTENANCE SERVICE FEES. Fees for Maintenance Services shall be payable \nas set forth in the Order Form.\n\n8.3  OTHER FEES. All other applicable fees, if any, shall be payable thirty \n(30) days from the receipt of Sagent's invoice.\n\n8.4  TAXES. The fees listed in this Agreement do not include taxes, duties or\nfees; if Sagent is required to pay (i) sales, use, property, value-added,\nwithholding or other taxes, (ii) any customs or other duties or (iii) any\nimport, warehouse or other fees, associated with the importation or delivery\nbased on the Program Licenses granted or services provided in this Agreement or\non Customer's use of Programs or services, then such taxes, duties or fees shall\nbe billed to and paid by Customer. If Customer is permitted to declare any such\ntaxes, Customer shall declare and pay such taxes and Sagent shall not be\nrequired to invoice Customer. This Section shall not apply to taxes based on\nSagent's income or payroll taxes. \n\n9.   GENERAL TERMS\n\n9.1  NONDISCLOSURE. Each party may have access to information that is \nconfidential to the other party ('Confidential Information'). Sagent's \nConfidential Information shall include, but not be limited to, the Programs, \nDocumentation, formulas, methods, know how, processes, designs, new products, \ndevelopmental work, marketing requirements, marketing plans, customer names, \nprospective customer names, the terms and pricing under this Agreement, and all \ninformation clearly identified in writing at the time of disclosure as \nconfidential. Customer's Confidential Information shall include but not be \nlimited to, its software programs, formulas, methods, know-how, processes, \ndesigns, new products, developmental work, marketing requirements, marketing \nplans, customer names, prospective customer names, and all information clearly \nidentified in writing at the time of disclosure as confidential. Confidential \nInformation includes all information received from third parties that either \nparty is obligated to treat as confidential and oral information that is \nidentified by either party as confidential.\n\nA party's Confidential Information shall not include information that (i) is or \nbecomes a part of the public domain through no act or omission of the other \nparty; (ii) was in the other party's lawful possession prior to the disclosure \nand had not been obtained by the other party either directly or indirectly from \nthe disclosing party; (iii) is lawfully disclosed to the other party by a third \nparty without restriction on disclosure; (iv) is independently developed by the \nother party without use of or reference to the other party's Confidential \nInformation, or (v) is required to be disclosed by law or valid order of a \ncourt or other governmental authority; provided, however, that the responding \nparty shall first have given notice to the other party and shall have made a \nreasonable effort to obtain a protective order requiring that the Confidential \nInformation so disclosed be used only for the purposes for which the order was \nissued.\n\nThe parties agree, unless required by law, not to make each other's \nConfidential Information available in any form to any third party (except \nthird parties who are Users as defined hereunder) or to use each other's \nConfidential Information for any purpose other than in the performance of this \nAgreement. Customer shall not disclose the results of any performance tests of \nthe Programs to any third party without Sagent's prior written approval. Each \nparty agrees to take all reasonable steps to ensure that Confidential \nInformation is not disclosed or distributed by its employees or agents in \nbreach of this Agreement. The parties agree to hold each other's Confidential \nInformation in confidence during the term of this Agreement and for a period of \nthree (3) years thereafter. Each party acknowledges and agrees that, due to the \nunique nature of Confidential Information, there can be no adequate remedy at \nlaw for breach of this Section 9.1 and that such breach would cause irreparable \nharm to the non-breaching party; therefore, the non-breaching party shall be \nentitled to seek immediate injunctive relief, in addition to whatever remedies \nit might have at law or under this Agreement.\n\n\n                     \n                     \n\n \n\n            \n\nThis Section 9.1 constitutes the entire understanding of the parties and \nsupersedes all prior or contemporaneous agreements, representations or \nnegotiations, whether oral or written, with respect to confidential information.\n\n9.2  GOVERNING LAW.  This Agreement and all matters arising out of or relating \nto this Agreement, shall be governed by the laws of the State of California, \nexcluding its conflict of law provisions. The parties agree that the United \nNations Convention on Contracts for the International Sale of Goods is \nspecifically excluded from application to this Agreement.\n\n9.3  NOTICES.  All notices required to be sent hereunder shall be in writing and\nshall be deemed to have been given upon (i) the date sent by confirmed \nfacsimile, (ii) on the date it was delivered by courier, or (iii) if by \ncertified mail return receipt requested, on the date received, to the addresses \nset forth above and to the attention of the signatory of this Agreement or to \nsuch other address or individual as the parties may specify from time to time \nby written notice to the other party.\n\n9.4  SEVERABILITY.  In the event any provision of this Agreement is held to be \ninvalid or unenforceable, the remaining provisions of this Agreement will \nremain in full force.\n\n9.5  WAIVER.  The waiver by either party of any default or breach of this \nAgreement shall not constitute a waiver of any other or subsequent default or\nbreach. Except for actions for nonpayment or breach of Sagent's proprietary\nrights in the Programs or Documentation, no action, regardless of form, arising\nout of this Agreement may be brought by either party more than one year after\nthe cause of action has accrued.\n\n9.6  DELIVERY.  All materials provided by Sagent hereunder shall be delivered \nto Customer on a F.O.B. Sagent's Palo Alto Headquarters basis for destinations \nwithin the United States, or on  FCA (?????? 1990) Sagent's Palo Alto \nHeadquarters basis for destinations outside the United States, at which point \ntitle to the carrier ?????? and risk of loss or damage to the materials shall \nbe transferred from Sagent to Customer. Nothing in this Section shall be deemed \nto transfer title to, or provide Customer with any rights in, the Programs, \nDeliverables or Documentation, except as specifically provided in this \nAgreement.\n\n9.7  EXPORT CONTROLS.  Customer agrees to comply fully with all relevant export \nlaws and regulations of the United States, including but not limited to the U.S.\nExport Administration Regulations (collectively, 'U.S. Export Controls').\nWithout limiting the generality of the foregoing, Customer expressly agrees that\nit shall not, and shall cause its representatives to agree not to, export,\ndirectly or indirectly, re-export, divert, or transfer the Programs,\nDocumentation or any direct product thereof to any destination, company or\nperson restricted or prohibited by U.S. Export Controls.\n\n9.8  RELATIONSHIP BETWEEN THE PARTIES.  Sagent is an independent contractor, \nnothing in this Agreement shall be construed to create a partnership, joint \nventure or agency relationship between the parties.\n\n9.9  ENTIRE AGREEMENT.  This Agreement, together with the attached exhibits \nwhich are incorporated by reference, constitutes the complete agreement between\nthe parties and supersedes all prior or contemporaneous agreements or\nrepresentations, written or oral, concerning the subject matter of this\nAgreement and such exhibits. This Agreement may not be modified or amended\nexcept in writing signed by a duly authorized representative of each party. No\nother act, document, usage or custom shall be deemed to amend or modify this\nAgreement.\n\n9.10 COUNTERPARTS AND EXCHANGES BY FAX.  This Agreement may be executed \nsimultaneously in two (2) or more counterparts, each of which will be \nconsidered an original, but all of which together will constitute one and the \nsame instrument. The exchange of a fully executed Agreement (in counterparts or\notherwise) by fax shall be sufficient to bind the parties to the terms and \nconditions of this Agreement.\n\nThe Effective Date of this Agreement shall be _____________________.\n\nEXECUTED BY: SAGENT TECHNOLOGY, INC.\n\n\nSignature: [SIG]\n          ----------------------\n         \nName:      [SIG]\n     ---------------------------\n\nTitle:  EVP of Sales\n     ---------------------------\n    \nDate:  March 31, 1998\n     ---------------------------\n\n\n\n\nEXECUTED BY: SIEBEL SYSTEMS, INC.\n\n\n\nSignature: \/s\/ KEVIN A. JOHNSON\/ [initials]\n          ----------------------\n         \nName:      Kevin A. Johnson\n     ---------------------------\n\nTitle:  Vice President, Legal Affairs\n     ---------------------------\n    \nDate:  March 31, 1998\n     ---------------------------\n\n\n              [SEAL]  \n\nCopyright (c) Sagent Systems, Inc.                   Revised internal use 0331b3\nrev 980311                                                                Page 3\n\n                              Sagent Systems, Inc.\n                    Software License and Services Agreement\n\n                                   EXHIBIT A\n\n                                   ORDER FORM\n\n\n                                                            \nCUSTOMER NAME:         SIEBEL SYSTEMS, INC. \n               --------------------------------------------------------------------------------\nEffective Date of Software License and Services Agreement:           March 31, 1998\n                                                               --------------------------------\nNumber of Server Systems:                                            Unlimited site license\n                                                               --------------------------------\nMaximum Number of Named Users:                                       Unlimited site license\n                                                               --------------------------------\nDesignated System:                                                   To Be Determined\n                                                               --------------------------------\n\n\n\n                                                                                                  \nORDERED PROGRAMS:\n------------------------------------------------------------------------------------------------------------------------------------\n                                                                                                      NUMBER OF USERS OR SERVERS\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Data Mart Server                                                                                       Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Admin                                                                                                  Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Design Studio                                                                                          Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nOLE\/DB Client Connections                                                                                     Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Information Studio                                                                                     Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Analysis                                                                                               Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\nSagent Weblink                                                                                                Unlimited\n------------------------------------------------------------------------------------------------------------------------------------\n\n\n\n                                                                                                                         \n------------------------------------------------------------------------------------------------------------------------------------\nTOTAL PROGRAM LICENSE FEES FOR THE PROGRAMS LICENSED HEREUNDER, DUE AND PAYABLE NET 45 DAYS FROM RECEIPT OF INVOICE         $[*]\n------------------------------------------------------------------------------------------------------------------------------------\n\nMAINTENANCE SERVICES\n\n------------------------------------------------------------------------------------------------------------------------------------\nTOTAL ANNUAL MAINTENANCE FEES FOR THE PROGRAMS LICENSED HEREUNDER, DUE AND PAYABLE NET 45 DAYS FROM RECEIPT OF INVOICE      $[*]\n------------------------------------------------------------------------------------------------------------------------------------\n\n\nADDITIONAL TERMS AND CONDITIONS:\n\n1.   SITE LICENSE   Sagent and Customer agree that the Total Program License \nFees set forth in this Order Form are in consideration for a worldwide license\nto use the Programs set forth in this Order Form by an unlimited number of\nDesignated Systems and servers and an unlimited number of Users. The Programs\nset forth in this Order Form represent all products currently generally\navailable from Sagent. Upon Sagent's release of additional products, Sagent\nshall promptly deliver such products to Customer as Updates under this Agreement\nat no additional charge.\n\n2.   ELECTRONIC DELIVERY OF THE ORDERED PROGRAMS AND DOCUMENTATION   Sagent \nshall deliver the Ordered Programs, Updates, and Documentation to Customer \nelectronically. Customer agrees to set up a secure FTP site or to take other \nreasonable measures to assist Sagent in the secure delivery of the Ordered \nPrograms (i.e., establishing a FTP server) and the parties collectively \ndetermine that electronic delivery is technically feasible within the time \nframe specified for delivery. The Ordered Programs and the Documentation will \nbe electronically transmitted in separate transactions, and Sagent and Customer \neach will provide the other party with tangible evidence that the Ordered \nPrograms and Documentation were electronically transmitted and received, \nrespectively.\n\n\nORDER ACCEPTED AND ACKNOWLEDGED:\n\n\nSAGENT TECHNOLOGY, INC.                 SIEBEL SYSTEMS, INC.\n\n\nSignature: \/s\/ THOMAS M. LOUNIBOS       Signature: \/s\/ KEVIN A. JOHNSON\n          ---------------------------             ------------------------------\n\nName:  Thomas M. Lounibos               Name:  Kevin A. Johnson\n     --------------------------------        -----------------------------------\n\nTitle:  EVP of Sales                    Title:  Vice President of Legal Affairs\n      -------------------------------         ----------------------------------\n\nDate:   March 31, 1998                  Date:  March 31, 1998\n     --------------------------------        -----------------------------------\n\n\n                                     [SEAL]\n\n\n                              Sagent Systems, Inc.\n                    Software License and Services Agreement\n\n\nCopyright(C) 1998 Sagent Systems, Inc.                revised internal-use0331b3\nrev880311                                                                 Page 4\n\n\n\n* Certain information on this page has been omitted and filed separately with\n  the Commission. Confidential treatment has been requested with respect to the\n  omitted portions.\n\n                                   EXHIBIT B\n\n                         SAGENT MAINTENANCE OBLIGATIONS\n\n1.        DEFINITIONS.\n\n     A.   'MAINTENANCE' shall mean Sagent's obligations set forth in this \n          Agreement.\n\n     B.   'MAINTENANCE AND SUPPORT PERIOD' shall mean a twelve (12)-month\n          period. The initial Maintenance and Support Period shall begin on the\n          date of Customer's acceptance of the initial Licensed Materials.\n\n     C.   'MAINTENANCE AND SUPPORT' shall mean the maintenance and support\n          services set forth in this Agreement. If Sagent increases its standard\n          maintenance and support services generally available to its customers\n          or distributors, Sagent shall make such increased maintenance and\n          support services available to Siebel at the rate set forth herein.\n\n     D.   'MAINTENANCE AND SUPPORT FEES' shall mean fees payable in accordance\n          with Section 3 of this Agreement.\n\n     E.   'SUPPORT' shall mean the services set forth in Section 3 of this\n          Agreement.\n\n     F.   'SUPPORTED PROGRAMS' shall mean the Licensed Products.\n\n2.        MAINTENANCE. In consideration of the Maintenance Fees paid in\naccordance with this Agreement, Sagent shall provide Customer with any and all\nUpdates to the Supported Programs, promptly as such Updates become available.\nAll Updates shall include an updated OLE\/OB interface that enables the Siebel\nPrograms to interface with the most updated version of the Licensed Materials.\nAll Updates shall be provided for no additional charge. Sagent shall provide all\nUpdates necessitated by new or successor releases of hardware and operating\nsystems software, including but not limited to all subsequent versions of (1)\nthe Windows and Windows NT client operating systems, (2) the Windows NT (Intel)\nserver platform, (3) the Oracle, Sybase, Informix, Microsoft, and IBM DB2 RDBMS\nplatforms and (4) the Microsoft OLE interface. Sagent shall provide such Updates\nwithin thirty (30) days of the date that the vendor of such hardware and\/or\nsoftware systems makes such subsequent versions generally available. Any\nversions of the Licensed Materials that operate on other operating systems or\nserver platforms shall be considered Updates under this Agreement, Sagent shall \nmake pre-release versions of Updates available to Customer to permit Customer to\nupgrade its internal use licenses to the next version. All Updates include\nupdated Documentation.\n\n3.        SUPPORT.\n\nA.   STANDARD SUPPORT. Sagent shall provide to Customer the Standard Support\n     services set forth below ('Standard Support') at a rate of $40.000 per\n     year. Standard Support shall consist of support services consistent with\n     the following support obligations:\n\n     Sagent shall establish and maintain the organization and processes to\n     provide Support for Customer. Support shall include but not be limited to\n     (i) a diagnosis of problems or performance deficiencies of the delivered\n     products and (ii) a resolution of problems or performance deficiencies of\n     the Supported Licensed Products. Sagent shall provide Support on a prompt\n     and timely basis via both (1) toll-free phone support, and (2) Internet-\n     based support pages that are generally accessible on a 7x24 basis. Sagent\n     agrees to inform Customer in writing at least quarterly of all known\n     anomalies, including known bugs, that then exist in the Licensed Products.\n     Siebel may, in its discretion, notify Sagent of anomalies and bugs that it\n     discovers or of which it becomes aware. Sagent will use its best efforts to\n     cure, as described below, reported and reproducible errors in the Licensed\n     Products so that the Licensed Products operate as specified in the\n     Agreement. Customer recognizes four error levels.\n\n          SEVERITY 1 - Critical Business Impact. The production use of the\n          Licensed Products are stopped or so severely impacted that the\n          Customer cannot reasonably continue work. Sagent will begin work on\n          the error within one hour of notification and will engage development\n          staff until an acceptable work around is achieved.\n\n          SEVERITY 2 - Significant Business Impact. Important features of the\n          Licensed Products are unavailable with no acceptable workaround. The\n          implementation of production use of the Licensed Products is\n          continuing but not stopped. However, there is a serious impact on the\n          Customer's productivity and\/or service levels. Sagent will begin work\n          on the error within two hours of notification and will engage\n          development staff until an acceptable work around is achieved.\n\n          SEVERITY 3 - Some Business Impact. Important features of the Licensed\n          Products unavailable but a workaround is available, or less\n          significant features of the Licensed Products are unavailable with no\n          reasonable workaround. Customer's work, regardless of the environment\n          or product usage, has minor loss of operational functionality or\n          implementation resources. Sagent will begin work on the error within a\n          day of notification and will engage development staff.\n\n          SEVERITY 4 - Minimum Business Impact. Siebel requests information, an\n          enhancement, or documentation clarification regarding the Licensed\n          Products but there is no impact on the operation of the Licensed\n          Products. The implementation or production use of the Licensed\n          Products is continuing and there is no work being impeded at the time.\n          Sagent will provide an initial response regarding the requested\n          information or documentation clarification within one week and will\n          consider enhancements for inclusion in a subsequent Update.\n\n\nCopyright (c) 1997 Sagent Systems, Inc.               revised internal-use0331b3\nrev880311                         \n                              Sagent Systems, Inc.\n                     Software License and Service Agreement               Page 3\n\n\n\n          \n\n4.   MAINTENANCE AND SUPPORT CONTINUITY. Maintenance and Support shall continue\nas renewed by Customer at Customer's option. If Customer fails to pay any amount\ndue pursuant to the terms set forth above, and fails to cure such failure within\nsixty (60) business days from receiving a notice of such failure from Sagent,\nSagent shall have the right to terminate Maintenance and Support to Customer\nwithout any liability to Sagent.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8746,8822],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42818","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sagent-technology-inc","corporate_contracts_companies-siebel-systems-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42818","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=42818"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42818"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42818"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42818"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}