{"id":42954,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/value-added-reseller-oem-agreement-adp-inc-and-sagent.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"value-added-reseller-oem-agreement-adp-inc-and-sagent","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/value-added-reseller-oem-agreement-adp-inc-and-sagent.html","title":{"rendered":"Value-Added Reseller\/OEM Agreement – ADP Inc. and Sagent Technology Inc."},"content":{"rendered":" VALUE-ADDED RESELLER\/OEM AGREEMENT\n\n\n This Agreement is made effective June 26, 1997 between ADP, Inc. (\"ADP\")\nwith offices at One ADP Boulevard, Roseland, New Jersey 07068, and Sagent\nTechnology, Inc. (\"SAGENT\" or \"Sagent\"), with offices at 2225 E. Bayshore Road,\nSuite 100, Palo Alto, California 94303. The parties hereby agree that, after\nexecution of this agreement (\"Agreement\") by an authorized representative of\neach of the parties, the terms and conditions of this Agreement shall apply to\nthe use and distribution by ADP of the Products (as defined below). All\ncapitalized terms used herein and not otherwise defined in this Paragraph or\nelsewhere in the Agreement are defined in Section 1, Definitions.\n\n 1. DEFINITIONS\n\n \"Application\" means a value-added application computer program\nwhich is developed by ADP and marketed by ADP's National Accounts Division of\nEmployer Services.\n\n \"Basic Maintenance\" means SAGENT's maintenance program pursuant\nto which SAGENT shall provide to ADP receipt of all improvements, error\ncorrections, enhancements, modifications, updates, new versions (including,\nwithout limitation, SAGENT's version 2 that works in accordance with the\ndocumentation previously provided by SAGENT to ADP in respect thereof (\"SAGENT\n2\")), and new releases of the Products (other than those designated as new\nproducts by SAGENT), and support for the Product(s) and for all deliverables\ndeveloped by Sagent as described in Section 5(e) hereof, for a fee described in\nSection 8 hereof, payable in advance. For purposes of clarification,\nenhancements to functionality included in the integrated Data Mart Solution are\nincluded in Basic Maintenance. SAGENT reserves the right, in its sole\ndiscretion, to make non-material changes to the form and content of its Basic\nMaintenance from time to time and will provide ADP with a sixty (60) day advance\nnotice of any such non-material change(s). As used in this Agreement, a\n\"non-material\" change shall consist of change of an administrative or otherwise\nnon-substantive nature, not having an adverse effect upon a Solution, an\nInterface or an Application previously effected, or a Solution being undertaken\nat the time of such change, or upon the value, performance or functionality of\nthe maintenance, support or Product being provided, as the case may be. No\nconsent by ADP shall be required for changes to the maintenance services\nprovided by SAGENT to customers of SAGENT other than ADP.\n\n \"Confidential Information\" of a party means such party's\ntechnical, business, marketing, financial or customer information, drawings,\nspecifications, designs, records, correspondence or other information disclosed\nby such party in relation to this Agreement. The Product(s) shall be\nConfidential Information of Sagent, subject to the remainder of this paragraph.\nThe Applications and any intellectual and\/or proprietary rights therein,\nincluding, without limitation, any patent, copyright, trademark, service mark,\nlogo, and trade secrets therein shall be Confidential Information of ADP,\nsubject to the remainder of this paragraph. A party's \"Confidential Information\"\ndoes not include information (i) already in the public domain prior to the\nexecution of this Agreement, or which enters the public domain, other than by\nunauthorized acts of the party receiving such information (the \"Recipient\"),\n(ii) in the rightful possession of the Recipient prior to the execution of this\nAgreement, or (iii) which is independently developed by the Recipient without\nuse of the disclosing party's Confidential Information or in violation of the\nterms of this Agreement.\n\n \"Effective Date\" means the date set forth in this first paragraph\nof this Agreement.\n\n \"End User\" means ADP customers who have licensed a Solution and\nwho are entitled to use Product(s) in connection therewith.\n\n \"End User Agreement\" means the ADP standard End User software\nlicense agreement, as modified by ADP from time to time, which specifies the\nterms and conditions by which an End User may use Products. The End User\nAgreement will be in effect between ADP and its End Users. ADP shall be entitled\nto modify the End User Agreement from time to time provided that the End User\nAgreement shall at all times contain such provisions that (i) place\nconfidentiality restrictions on the Products; (ii) prohibit reverse engineering\nor disassembling of the Products; and (iii) reserve all intellectual property\nrights not expressly granted thereunder.\n\n 2\n\n \"Export Laws\" means all export laws, administrative regulations,\nand executive orders of any applicable jurisdiction relating to the control of\nimports and exports of commodities and technical data, including, without\nlimitation, the U.S. Department of Commerce.\n\n \"Initial Term\" shall have the meaning ascribed to such term in\nSection 9(a) hereof.\n\n \"Level 1 Support\" means SAGENT's support program that provides\ntelephone support during SAGENT's normal business hours, and Basic Maintenance\nfor Products, as more fully described in Section 5 herein.\n\n \"Level 2 Support\" means SAGENT's support program that provides\ntwenty four hour per day and seven day per week telephone support, and Basic\nMaintenance for Products, as more fully described in Section 5 herein.\n\n \"Maintenance Term\" shall refer to a period for which ADP shall be\nentitled to Basic Maintenance, Level 1 Support and Level 2 Support. The first\nMaintenance Term and second Maintenance Term, if any, shall be for an eighteen\n(18) month period, and thereafter each succeeding Maintenance Term, if any,\nshall be for a twelve (12) month period.\n\n \"Price List\" means the SAGENT then current corporate price list\nin effect at the time ADP orders Products from SAGENT.\n\n \"Product\" or \"Products\" mean Sagent Products (in object code form\nonly) outlined in Schedule A and B and licensed hereunder in accordance with\nthis Agreement, including improvements, error corrections, enhancements,\nupdates, new versions and new releases provided to ADP hereunder.\n\n \"Quarter\", or \"quarter\" means a calendar quarter. For purposes of\nthis Agreement, the first Quarter shall mean that Period commencing July 1, 1997\nand ending September 30, 1997, and all subsequent Quarters shall follow\nsequentially therefrom.\n\n \"Solution\" means the combination of an Application and a Product.\n\n \"User Documentation\" means the then current SAGENT user manual(s)\nand other written materials on the proper installation and use of, and which are\nnormally distributed with, the Products. Sagent represents to ADP that it has\nprovided to ADP an up-to-date copy of the User Documentation.\n\n 2. APPOINTMENT OF ADP; RELATIONSHIP OF THE PARTIES\n\n (a) SAGENT hereby appoints ADP as an authorized, non-exclusive\nValue-Added Reseller. A \"Value-Added Reseller\" or \"VAR\" develops, owns and\nlicenses, to one or more End Users, one or more value-added Applications in\nconjunction with a Product copy. A VAR licenses its Application with each\nProduct copy it distributes.\n\n (b) The relationship between the parties shall be that of VAR\nlicensing products and purchasing services as an independent contractor from\nSAGENT and reselling and sublicensing to End Users. ADP and its employees are\nnot agents or representatives of SAGENT for any purpose and have no power or\nauthority to represent, act for, bind or commit SAGENT.\n\n 3. ADP'S RIGHTS, REPRESENTATIONS AND OBLIGATIONS\n\n (a) Subject to the terms and conditions herein, SAGENT hereby\ngrants and ADP hereby accepts (i) a worldwide, non-exclusive, nontransferable\n(except as otherwise provided herein), perpetual, royalty-free right and license\nto use the Products for internal use only by ADP's National Accounts Division or\nany successor division to ADP's National Accounts Division to develop\nApplications and Solutions, and to provide support and other services to End\nUsers, and for its other internal purposes; (ii) a worldwide, non-exclusive,\nnontransferable (except as otherwise \n\n 2\n 3\n\nprovided herein), perpetual, royalty-bearing right and license to copy,\ndistribute, license, display, sell, and market Product copies and User\nDocumentation for use solely as part of a Solution; (iii) a worldwide\nnon-exclusive nontransferable (except as provided herein), perpetual,\nroyalty-free right and license to use in unaltered form the SAGENT trademarks,\nservice marks or marketing logos solely to promote the Products, Applications or\nSolutions, provided ADP obtains SAGENT's prior written approval for each new\nusage. In addition to the foregoing, Sagent hereby grants to ADP a worldwide\nnon-exclusive, nontransferable (except as otherwise provided herein), perpetual,\nroyalty-bearing right and license to copy, distribute, license, display, sell\nand market Add-On Components as described in Schedule B; and (iv) the right and\nlicense to sublicense to End Users Product copies and User Documentation for\ninternal use solely as part of a Solution. SAGENT retains all title to and,\nexcept as unambiguously licensed herein, all rights, including all intellectual\nproperty rights to the Products, and all copies and derivative works thereof (by\nwhomever produced) other than interfaces, translations, applications and\nintellectual property used to create Applications or Solutions, and any other\nderivative work created by or on behalf of ADP in accordance with the terms of\nthis Agreement. ADP shall retain all title, rights and interest to all\ninterfaces, translations, augmentations, Applications and intellectual property\nused to create the foregoing, and any other derivative work created by, for or\non behalf of ADP. If ADP desires to use additional Sagent products, or desires\nto distribute additional Sagent products, both parties may execute additional\nExhibits and ADP shall pay to Sagent the applicable and then-current license\nfees and royalty as set forth in the Price List. Any fees contemplated in the\nimmediately preceding sentence shall not exceed [*]% of the then current list\nprice for the applicable Sagent software. Upon payment of the applicable fees\nfor each Product copy as set forth in Section 8(a)(ii) herein, ADP's\nroyalty-bearing right and license as granted herein shall be fully paid up for\nsuch Product copy.\n\n (b) Sagent will supply up to thirty-five (35) sets of its\nProducts, including documentation, for use pursuant to Section 3(a)(i) above at\nno additional charge. ADP's National Accounts Division of Employer Services may\nlicense additional Products in sets of twenty-five (25), including User\nDocumentation, for internal use at a cost of $[*] per Product set. Sagent shall\nprovide to ADP a set of Product master disks, and hereby authorizes ADP to use\nthe same to make Product copies for purposes consistent with Section 3(a)(ii)\nabove. Sagent shall provide to ADP electronic copies of User Documentation and\nhereby authorizes ADP to incorporate the User Documentation into ADP's Solutions\nand ADP's documentation pertaining to the Solutions.\n\n (c) ADP shall not (i) distribute the Product copies on a stand\nalone basis, (ii) distribute Product copies in any way except as part of a\nSolution, (iii) except under the circumstances contemplated in Section 10 hereof\nor under the Escrow Agreement, modify or alter the source code of the Products\nor Product copies in any way, or (iv) use any SAGENT trademark or trade name in\na way that implies ADP is an agency or branch of SAGENTs.\n\n (d) ADP agrees not to resell, distribute or sublicense Products\nor Product copies to third parties other than End Users, except where such third\nparties are approved in writing in advance by SAGENT, such approval not to be\nunreasonably withheld.\n\n (e) ADP may make up to ten (10) back-up copies of Products used\ninternally to develop Applications, develop Solutions and or for demonstrations.\n\n (f) ADP shall ensure that the End User Agreement in electronic or\nhard copy form accompanies each Product copy distributed by ADP. In addition,\nADP shall perform any other actions reasonably requested by Sagent to assure\nadequate protection of SAGENTs interests in its intellectual property rights\ncontained in the Product(s) and Product copies. ADP shall not distribute or\nsublicense Products pursuant to mass-market or \"shrink-wrap\" licenses in those\njurisdictions with respect to which ADP has been advised by legal counsel to ADP\nthat such licenses are not enforceable. The provisions of the preceding sentence\nshall not impair the rights of ADP or End Users in respect of Products\ndistributed or licensed prior to the receipt of such advice by legal counsel.\n\n (g) The Product, Product copies and all related documentation are\nprotected under copyright and trade secret laws and contain proprietary\ninformation of SAGENT and its licensers. ADP shall abide by the terms of any\nproprietary notices or markings, and shall use the documentation and the Product\nonly for the purposes contemplated by this Agreement, and shall not disclose to\nothers or reproduce the Product (except as specifically permitted under this\nAgreement), unless specifically authorized by SAGENT or required by law, or\nrelevant in any legal proceeding between \n\n*Certain information on this page has been omitted and filed separately with \nthe Commission. Confidential treatment has been requested with respect to the \nomitted portions.\n\n 3\n 4\n\nthe parties, and shall be liable for all loss or damage to SAGENT from any\nfailure to so abide or from any unauthorized disclosure in violation of this\nSection 3(g) and Sections 3(c) and 3(d), and Article 4, of the Product, Product\ncopies, or related documentation by ADP or its agents. ADP shall not translate\nany portion of the Product or Product copies or associated documentation into\nany other format or language without the prior written consent of SAGENT. In the\nevent such translation is made by ADP, ADP shall own all rights to each\ntranslation but shall grant to SAGENT a non-exclusive, royalty free license to\nsuch translation.\n\n (h) ADP shall promptly notify SAGENT of any actual or suspected\nunauthorized use or disclosure of the Confidential Information received from\nSAGENT, of which it becomes aware and shall provide reasonable assistance to\nSAGENT (at SAGENT's expense) in the investigation and prosecution of\nunauthorized uses or disclosure.\n\n (i) Except as specifically permitted by this Agreement, ADP shall\nnot directly or indirectly (i) use any Confidential Information of SAGENT to\ncreate any computer software program or user documentation which is\nsubstantially similar to any Product; (ii) reverse engineer, disassemble or\ndecompile, or otherwise attempt to derive the source code for, any Product;\n(iii) encumber, timeshare, rent or lease the rights granted by this Agreement;\n(iv) copy, manufacture, adapt, localize, port or otherwise modify any Products\nor other SAGENT Confidential Information or allow any agent or authorize any End\nUser of ADP to engage in similar conduct.\n\n (j) ADP does not have, and shall not claim that it has, any right\nin or to any of the Products or the Confidential Information received from\nSAGENT other than as specifically granted by this Agreement.\n\n (k) Any and all obligations of SAGENT to provide the Products, as\nwell as any technical assistance, will be subject in all respects to such United\nStates laws and regulations as will from time to time govern the license and\ndelivery of technology and products abroad by persons subject to the\njurisdiction of the United States, including the Export Administration Act of\n1979, as amended, any successor legislation, and the Export Administration\nRegulations issued by the Department of Commerce, Bureau of Export\nAdministration. ADP warrants that it will not export or reexport the Product,\nProduct copies, any Confidential Information or a Solution, or technical data\nrelated thereto, except in conformity with such laws and regulations. ADP agrees\nthat unless prior written authorization is obtained from the Bureau of Export\nAdministration or the Export Administration Regulations explicitly permit the\nreexport without such written authorization, it will not export, re-export, or\ntransship, directly or indirectly, the Product, Product copies, any of Sagent's\nConfidential Information or a Solution to country groups S or Z (as defined in\nthe export Administration Regulations), or to any other country as to which the\nU.S. Government has placed an embargo against the shipment of products which is\nin effect during the term of this Agreement.\n\n (l) If at any time SAGENT determines that the laws of any country\nother than Canada, U.S., Mexico, Benelux or U.K. are or become insufficient to\nprotect SAGENT's intellectual or proprietary rights in the Products, SAGENT may\nnotify ADP in writing as to such determination and, unless ADP disagrees with\nsuch determination, ADP shall discontinue its distribution of Product(s) in such\ncountry within thirty (30) days from the date of Sagent's written notice to ADP.\nIn the event that ADP disagrees with Sagent's determination, it shall so notify\nSagent. At Sagent's option, Sagent may institute arbitration proceedings as\ndescribed in Subsection (m) below to resolve any dispute pertaining to the\nquestion whether the laws of any country are or become insufficient to protect\nSAGENT's intellectual of propriety rights in the Product(s). Notwithstanding the\nforegoing, and notwithstanding the results of such arbitration proceeding, ADP\nshall be entitled to fulfill all existing contractual obligations in such\ncountry. ADP shall use reasonable efforts to abide by this restriction in any\ncountry the subject of a notification by Sagent as provided above and (i) not\ndisputed by ADP, or (ii) the subject of an arbitration proceeding pursuant to\nwhich a determination was made that such country's laws are not sufficiently\nprotective as alleged by Sagent. As of the date of this Agreement, no country is\nthe subject of such distribution restrictions.\n\n (m) Except as may otherwise be provided herein, in the event of\nany disputes between ADP and Sagent relating to the question described in the\nthird sentence of subsection (l) above, a representative designated by each of\nthe parties shall meet with each other within seven days of the request of\neither party for such meeting, and shall engage in good faith negotiation to\nresolve such dispute. In the event that after such seven (7) day period, the\nparties have not resolved such dispute, either party may institute arbitration\nproceedings pursuant to the Commercial Rules of \n\n\n\n 4\n 5\n\nthe American Arbitration Association then in effect at the time of the\narbitration. The arbitration proceedings shall be held in Atlanta, George before\na panel of three arbitrators. Each party shall select an arbitrator from the\ncurrent listing of arbitrators registered with the American Arbitration\nAssociation. The two arbitrators so selected shall within seven (7) days of such\nselection mutually agree upon a third arbitrator registered with the American\nArbitration Association. In the event the two arbitrators are unable to agree\nupon the third arbitrator, either party may request the president of the\nAmerican Arbitration Association to appoint the third arbitrator and the\ndecision of the president shall be final and binding upon the parties. The\narbitral award shall be issued within thirty (30) days following the arbitration\nhearing, shall be in writing and shall be binding upon the parties.\n\n (n) This provision applies to all Products and Product Copies\nacquired directly or indirectly by or on behalf of the United States Government.\nThe Product and Product Copies are commercial products, licensed on the open\nmarket at market prices, and were developed entirely at private expense and\nwithout the use of any U.S. Government funds. If the Product or Product Copies\nare supplied to the Department of Defense, the U.S. Government acquires only the\nlicense rights customarily provided to the public and specified in this\nAgreement. If the Product or Product Copies are supplied to any unit or agency\nof the U.S. Government other than the Department of Defense, the license to the\nU.S. Government is granted only with restricted rights. Use, duplication, or\ndisclosure by the U.S. Government is subject to the restrictions set forth in\nsubparagraph (c) of the Commercial Computer Software Restricted Rights clause of\nFAR 52.227-19.\n\n (o) ADP may permit properly licensed End Users to allow access\nand use of Products to those entities providing services for such End Users\n(\"Outsourcers\"), whether in connection with a service bureau, facilities\nmanagement, outsourcing or other arrangement; provided, however, that such\nOutsourcers may use the Products only as part of a Solution and only pursuant to\nthe applicable agreements entered into between such Outsourcers and End Users\n(\"Outsourcing Agreements\"), and not for the benefit of any third party. An\nOutsourcers right to access and use Products shall expire upon the termination\nor expiration of the applicable Outsourcing Agreements or End User Agreement,\nwhichever is earlier. By way of example (and not in limitation of the\nforegoing), any such third party outsourcer shall be permitted to:\n\n (i) access and execute the solution, including, without limitation, all\n related software tools, at any location on behalf of the End User; \n and\n\n (ii) have access to a demonstration copy of the Products as part of the\n Solution.\n\n 4. CONFIDENTIALITY\n\n (a) Except as specifically allowed in this Agreement, neither\nparty shall use or disclose any Confidential Information of the other party,\nexcept as required by law, regulation or court order. A party receiving\nConfidential Information from the other shall use the same degree of care to\nprotect that Confidential Information as it uses to protect its own Confidential\nInformation, but shall in any event use reasonable care. Within fifteen (15)\ndays of the request of the disclosing party (which requests may not be made not\nbefore the termination of this Agreement and all licenses granted herein, if\nSagent is the disclosing party), and in its sole discretion, the receiving party\nshall either return to the disclosing party originals and copies of any\nConfidential Information and all information, records and materials developed\nfrom them by the receiving party (which shall not include the Applications or\nrelated materials, if ADP is the receiving party), or destroy the same. Subject\nto the exception set forth in the first sentence of this subsection (a) of\nSection 4, and to the provisions of Section 12(k) of this Agreement, either\nparty may disclose only the existence, but not the contents, of this Agreement\nwithout the prior consent of the other party, except that the contents may be\ndisclosed to parent companies or other controlling entities, and to financial or\nlegal advisors. Notwithstanding the foregoing, it is understood that ADP shall\nbe entitled to disclose to third parties such information pertaining to this\nAgreement as is necessary to effectuate the commercial intentions of this\nAgreement. By way of example and not in limitation of the foregoing, ADP shall\nbe entitled to disclose that it is an authorized value added reseller of SAGENT.\nThe parties acknowledge that ADP is in the business of developing and licensing\ncomputer software applications, and agree that nothing in this Agreement,\nincluding this Section 4(a), shall preclude or limit ADP's rights to develop\nother applications, or applications similar to the Products, as long as ADP does\nnot use Sagent's Confidential Information to do so.\n\n 5\n 6\n\n (b) The parties acknowledge that money damages will not be an\nadequate remedy if this section is breached and therefore, either party may, in\naddition to any other legal or equitable remedies, seek an injunction or similar\nequitable relief against such breach.\n\n 5. TRAINING AND SERVICES\n\n (a) ADP will provide first line support for the Products to End\nUsers. Such support shall include, without limitation, receipt of calls, problem\nand question intake, installation assistance, problem identification and\nassistance, efforts to create repeatable demonstrations of reported Product\nerrors, and, if applicable, the replacement of any defective media or\ndistribution of updates. SAGENT shall have no obligation to furnish any\nassistance, information or documentation to any third party.\n\n (b) In consideration of ADP's payment of applicable fees set\nforth in Section 8 herein, Sagent agrees to provide to ADP Basic Maintenance;\nand Level 1 Support and Level 2 Support in accordance with the terms and\nconditions set forth in Sagent's Premier Support Package, a copy of which is\nattached hereto as Schedule C hereto and incorporated into this Agreement by\nreference. Pursuant to Sagent's Premier Support Package, Sagent shall provide\nsecond level support and maintenance that will enable ADP to perform support and\nmaintenance for its customers. Sagent will provide telephone consultation to ADP\nwith respect to any customer questions which ADP cannot adequately answer, and\nwill provide bug and error fixes, work around, and updates in accordance with\nthe response guideline below, or, if not related to a reported problem, as they\nbecome available. Without limitation of the other provisions hereof, to the\nextent Sagent provides an error correction through a temporary fix (which shall\nat a minimum consist of sufficient programming and operating instructions to\nimplement the error correction), Sagent shall include the error correction\npromptly in a subsequent release of the Product. From time to time, but in no\nevent less frequently than once per twelve (12) months, Sagent shall issue to\nADP new releases containing error corrections and other modifications and\nenhancements. Sagent shall provide reasonable assistance to help ADP install and\noperate each new release. Sagent agrees that the warranty obligations set forth\nin Section 6(a)(iv) shall remain in effect throughout the Maintenance Terms (as\ndefined herein).\n\n SAGENT shall assign a severity level in accordance with the\nstandards set forth in Schedule C to each reported Product problem or question,\nand confirm with ADP the severity level so assigned, and SAGENT's efforts to\nanswer each such problem or question shall be commensurate with such severity\nlevel. In the event that there is a disagreement between the parties over the\nseverity level assigned to a problem, the dispute shall be escalated to senior\nmanagement of both parties for resolution. SAGENT shall resolve \"severity level\none\" problems or questions within one (1) business day, \"severity level two\"\nproblems or questions within two (2) business days, and other problems or\nquestions within five (5) business days. ADP shall provide such reasonable\nassistance to SAGENT as SAGENT may reasonably require for the performance of its\nobligations pursuant to this Section 5(b).\n\n (c) SAGENT will provide the following training, in each case to\noccur in Atlanta, Georgia unless otherwise mutually agreed by the parties\nhereto:\n\n Customer Support: Sagent will train two ADP Customer\n Support Representatives to provide first line support for Sagent\n Products. Sagent will hold a class at a time and location convenient to\n ADP to effect such training.\n\n Sales Training: Sagent will provide two half day sales\n training courses to ADP's APM's, the first to occur in July 1997 and the\n other to take place in August 1997.\n\n Basic Training: Sagent will teach one two day course in \n Atlanta for up to twelve (12) developers, as designated by ADP.\n\n Train The Trainer Program: Sagent will train such ADP\n trainers designated by ADP in how to train ADP customers in the\n implementation, administration and maintenance of Sagent Products. This\n training will include one \"class mentoring\" of the first ADP taught\n course, by a Sagent certified trainer. This will be held in October 1997\n or at another time mutually agree upon.\n\n Advanced Training Course: Sagent will provide one advanced\n class for two ADP developers in July 1997 or at another time mutually \n agreed upon.\n\n 6\n 7\n\n (d) If ADP desires to contract with Sagent for additional\nsupport, installation, training, or any other need, Sagent will provide\ninstallation support and training classes for $[*] per day, plus reasonable\nexpenses. All other support is offered at current and prevailing rates.\n\n Sagent will assist ADP in its first four (4) ADP sales\nopportunities at no cost to ADP. Such assistance by Sagent will include\nparticipation in sales calls and demonstrations.\n\n (e) Development:\n\n ADP agrees to pay Sagent $[*], at the time of delivery, for\nthe delivery to ADP of SAGENT2 and of the items listed in items 1 and 2\nhereinbelow (the \"Deliverables\") before June 30, 1997.\n\n 1) Support for Centura SQL databases as Data Sources.\n\n 2) Assistance in completing departmental security for the SAGENT\n Datamart Solution.\n\n The Deliverables shall conform to the specifications set forth in\nAttachment B hereto. SAGENT2 shall contain, without limitation, such features\nwhich conform to the specifications set forth in Attachment C hereto.\n\n Any other mutually agreed upon engineering work to be performed\nby SAGENT for ADP will be done on a time and materials basis as a mutually\nagreed upon rate.\n\n Pursuant to Sagent's Basic Maintenance obligations, Sagent shall\nmaintain and support the Deliverables and ensure compatibility of the\nDeliverables on an ongoing basis with all future Product releases.\n\n Notwithstanding the provisions of Section 3(a) hereof, is\nexpressly agreed that the Deliverables shall belong jointly to Sagent and ADP\nand shall be considered the joint property of Sagent and ADP for purposes of\nthis Agreement. To the extent that ADP is not the joint owner of the\nDeliverables, Sagent in consideration of $[*] and other good and valuable\nconsideration the receipt and adequacy of which hereby are acknowledged, hereby\nirrevocably assigns to ADP, its successors and assigns, (i) joint rights, title\nand interests in and to the copyrights of the Deliverables and all renewals and\nextensions of the copyrights that may be secured under existing or future laws,\nand (ii) joint rights, title and interests in all other property rights in the\nDeliverables. To the extent that Sagent is not the joint owner of the\nDeliverables, ADP, in consideration of $[*] and other good and valuable\nconsideration the receipt and adequacy of which hereby are acknowledged, hereby\nirrevocable assigns to SAGENT, its successors and assigns (x) joint rights,\ntitle and interest in and to the copyrights of the Deliverables and all renewal\nand extensions of the copyrights that may be secured under existing or future\nlaws, and (y) joint rights, title and interest in all other property rights in\nthe Deliverables. Each party shall, upon request by the other party hereto and\nat the other party's expense, promptly execute, acknowledge or deliver any\ndocuments or instruments deemed reasonably necessary by the other party to\ndocument, enforce, protect or otherwise perfect such other party's copyright and\nother interests in the Deliverables. Neither party hereto shall have the right\nto license or distribute the Deliverables, without the other party's consent,\nexcept that ADP shall be permitted to license and otherwise distribute the\nDeliverables as part of a Solution as otherwise contemplated in this Agreement.\n\n (f) Acceptance\n\n Upon completion of the development performed by Sagent in\naccordance with Section 5(e) of this Agreement, Sagent shall give written notice\nthereof to ADP and shall deliver the Deliverables to ADP for evaluation,\nincluding all documentation and other materials necessary for the proper\nutilization by ADP of the Deliverables. ADP shall develop and perform during a\nthirty (30) day period following receipt of the Deliverables, such acceptance\ntests it may wish to perform to verify that the Deliverables conform to the\nspecifications. If the Deliverables pass such acceptance tests, ADP shall\ndeliver to Sagent written notification thereof and the Deliverables shall be\nconsidered accepted. If the Deliverables do not pass such acceptance tests, ADP\nshall promptly deliver to Sagent written notification thereof, setting forth in\ndetail those features of functions that do not substantially conform in all\nmaterial respects with the Specifications. Sagent, at its own expense, shall use\nreasonable efforts to correct such deficiencies within thirty (30) calendar days\nfrom the date of ADP's deficiency notice, whereupon Sagent shall deliver the\ncorrected Deliverables to ADP for evaluation. ADP may then perform additional\nacceptance tests for a period not to exceed thirty (30) calendar days from the\ndate Sagent delivered the corrected deliverables to ADP. If the Deliverables, in\nADP's \n\n 7\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 8\n\nreasonable judgment, still do not conform to the Specifications, (a) ADP may\nreject the Deliverables or continue the process described in this subsection (f)\nuntil ADP, in its sole discretion, notifies Sagent of acceptance or of rejection\nor (2) Sagent may notify ADP of Sagent's decision to discontinue this process.\nIf ADP does not notify Sagent in writing of acceptance or rejection of the\nDeliverables within ninety (90) calendar days of the delivery of the\nDeliverables, the Deliverables shall be deemed accepted.\n\n (g) Failure of Acceptance Testing\n\n If ADP rejects the Deliverables pursuant to subsection (f) above,\nthen neither ADP nor Sagent shall have any further obligation to the other with\nregard to the Deliverables.\n\n 6. LIMITED WARRANTIES AND INDEMNIFICATION\n\n (a) SAGENT represents and warrants that (i) it has been duly\nauthorized and has full power to enter into and perform this Agreement; (ii) the\nProducts and the Deliverables will not to the knowledge of Sagent, after due\ninquiry, contain any viruses, locks, time-bombs or other devices (collectively,\n\"Devices\") that will cause any software or hardware used by ADP to be erased, to\nbecome inoperable or incapable of processing, or to otherwise damage or\nnegatively affect the performance of said software or hardware in any manner,\nand to the extent that the Products or the Deliverables shall contain any\nDevices, Sagent shall, upon notice by ADP or upon learning of the same, replace\nthe Products or the Deliverables, as applicable, with Products or Deliverables\ncontaining no Devices; (iii) the execution, delivery and performance of this\nAgreement by Sagent will not violate any applicable legal requirement, the\nviolation of which would result in a material breach by Sagent of its\nobligations hereunder, and (iv) during the first ninety (90) days from the date\nADP receives an unmodified Product (\"Warranty Period\") from SAGENT, the Products\nwill, under normal use and operating conditions, be free of defects in materials\nand workmanship and will substantially conform to the User Documentation and the\nspecifications set forth in Attachment A hereto.\n\n EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS\n AGREEMENT, ADP AND ANY END USER ACCEPT THE PRODUCTS \"AS IS\" WITH\n NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND,\n INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR\n FITNESS FOR A PARTICULAR PURPOSE. ADP MAKES NO WARRANTIES\n REGARDING THE APPLICATION(S) OR SOLUTIONS. ADP WARRANTS THAT THE\n EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY ADP WILL\n NOT VIOLATE ANY APPLICABLE LEGAL REQUIREMENT, THE VIOLATION OF\n WHICH WOULD RESULT IN A MATERIAL BREACH BY ADP OF ITS OBLIGATION\n HEREUNDER.\n\n (b) Sagent represents that, as of the date of this Agreement, it\nis not currently involved in any litigation (and is not aware of any causes of\naction or threatened litigation) relating to infringement by SAGENT of the\nintellectual property rights of third parties. SAGENT shall indemnify, defend,\nsave and hold ADP and its officers, directors, agents, affiliates and employees\nharmless from all liability, damages, suits, fines, judgments, losses, claims,\nactions, and costs and expenses including attorneys' fees (and other costs and\nexpenses incidental thereto), incurred by any such person, in connection with\ninvestigating, preparing or defending any such claim relating to or arising (1)\nout of any breach of representation or warranty of Sagent in this Agreement; (2)\nout of any failure by Sagent in the installation, maintenance or support of\nProducts, or in training as contemplated in this Agreement; or (3) on account of\nany claim or allegation that the Product(s) or the Deliverables, or the use or\ndistribution thereof as contemplated hereunder, infringe upon any patent,\ncopyright, trademark or trade secret or other property rights or proprietary\ninterests of any other party. Upon receipt by a person entitled to\nindemnification under this Section 6(b) of actual notice of a claim, action or\nproceeding against such person in respect of which indemnity may be sought\nhereunder, such person shall promptly notify Sagent with respect thereto. In any\nevent, failure to so notify Sagent shall not relieve Sagent from any liability\nwhich Sagent may have on account of this indemnity except to the extent that\nSagent shall have been materially prejudiced by such failure, provided that if\nsuch failure shall result in additional expense to Sagent such additional\nexpense shall not be indemnified hereunder. Sagent shall be entitled to assume,\nand if requested by ADP shall assume, the defense of any litigation or\nproceeding in respect of which indemnity may be sought hereunder. In any such\n\n\n 8\n 9\n\nlitigation or proceeding the defense of which Sagent has so assumed, ADP (and\nany other person entitled to indemnification under this Section 6(b)) shall have\nthe right to participate in such litigation or proceeding and to retain its own\ncounsel, but the fees and expenses of such counsel shall be at the expense of\nsuch person. ADP agrees to give Sagent reasonable assistance (at no cost to ADP)\nin connection with SAGENT's defense of any such claim. SAGENT will not be\nresponsible for any settlement it does not approve in writing but if settled\nwith such approval, SAGENT agrees to indemnify ADP and any such person entitled\nto indemnification under this Section 6(b) from and against any loss or\nliability by reason of such settlement. In addition to the foregoing\nindemnification to be provided by Sagent, in the event that use of the Products\nor any part thereof is enjoined, Sagent shall, in the following order of\npriority, at its expense and as mutually agreed: (X) procure the right for ADP\nand its End Users to continue to use the Products or the affected part thereof;\n(Y) replace the Products or the affected portion thereof with other suitable\nnon-infringing software; or (Z) modify the Products or the affected portion\nthereof so as to be non-infringing, without detracting from the overall\nperformance of the Products. If none of the foregoing remedies set forth in the\nimmediately preceding sentence are commercially feasible, Sagent shall refund\nthe aggregate fees paid by ADP for the Products prorated on a three (3) year\nbasis from the Effective Date. The foregoing obligation of SAGENT does not apply\nwith respect to Product or portions or components thereof (i) to the extent not\nsupplied by SAGENT, (ii) to the extent made in whole or in part in accordance to\nADP specifications, if the infringement results from Sagent's conformity with\nADP's specifications, (iii) to the extent modified after shipment by ADP, if the\nalleged infringement is caused by such modification, (iv) combined with other\nproducts, processes or materials not approved by SAGENT to the extent the\nalleged infringement relates to such combination, (v) where ADP continues\nallegedly infringing activity after being notified thereof by Sagent and\nprovided by Sagent with a non-infringing replacement for the infringing portion\nof the Products in accordance with the provisions of subsection (b)(Y) or (b)(Z)\nof this Section 6 or (vi) to the extent that ADP's infringement results from the\nuse by ADP of the Product not strictly in accordance with the License. The\nprovisions of this Section 6(b) shall survive the termination of this Agreement\nuntil thirty (30) days after the expiration of the applicable statute of\nlimitations in respect of each applicable cause of action.\n\n (c) Upon SAGENT's breach of Section 6(a)(iv) hereof, SAGENT\nshall, in its sole discretion and at its option, provide modifications to keep\nthe Products in substantial conformance with the Product specifications and the\nrelated User Documentation, or replace the Products. In addition to the\nforegoing, Sagent shall provide ADP with such additional support required by ADP\nin order that ADP may provide support to its End Users. For purposes of\nclarification, the parties agree that the provisions of this Section 6(c) shall\nnot be in limitation of the provision of Sections 5(b), 9 and 10 hereof.\n\n (d) ADP and SAGENT shall, at their own expense, indemnify,\ndefend, save and hold harmless each other from and against any claim, loss,\nexpense, or judgment (including reasonable attorneys' fees) which arises from\nmisrepresentations made in this Agreement by the other party.\n\n (e) ADP shall, at its expense, indemnify, defend, save and hold\nharmless SAGENT from and against any claim, loss, expense, or judgment\n(including reasonable attorneys' fees) to the extent the same arises (i) from\nany warranties granted in excess of the representations, warranties, covenants\nand other agreements made by SAGENT in this Agreement; (ii) the marketing of\nProduct copies by ADP (except as contemplated whether explicitly or otherwise in\nthis Agreement); or (iii) infringement by the Application or Solution or any\nnon-Product related material supplied by ADP of any patent, copyright, trademark\nor trade secret of any third party, except to the extent that such infringement\narises from the use of the Product as intended hereunder. Upon receipt by SAGENT\nof actual notice of a claim, action or proceeding against SAGENT in respect of\nwhich indemnity may be sought hereunder, SAGENT shall promptly notify ADP with\nrespect thereto. In any event, failure to so notify ADP shall not relieve ADP\nfrom any liability which ADP may have on account of this indemnity except to the\nextent that ADP shall have been materially prejudiced by such failure, provided\nthat if such failure shall result in additional expense to ADP such additional\nexpense shall not be indemnified hereunder. ADP shall be entitled to assume, and\nif requested by SAGENT shall assume, the defense of any litigation or proceeding\nin respect of which indemnity may be sought hereunder. In any such litigation or\nproceeding the defense of which ADP has so assumed, SAGENT shall have the right\nto participate in such litigation or proceeding and to retain its own counsel,\nbut the fees and expenses of such counsel shall be at the expense of SAGENT.\nSAGENT agrees to give ADP reasonable assistance (at no cost to SAGENT) in\nconnection with ADP's defense of any such claim. ADP will not be responsible for\nany settlement it does not approve in writing but if settled with such approval,\nADP agrees to indemnify SAGENT from and against any loss or liability by reason\nof such settlement. The provisions of this \n\n\n 9\n 10\n\nSection 6(e) shall survive until thirty (30) days after the expiration of the\napplicable statute of limitations in respect to each cause of action.\n\n (f) Sagent represents and warrants that the Products will (i)\nrecord, store, process and present calendar dates falling on or after January 1,\n2000, in the same manner, and with the same functionality, as the Products\nstore, process and present calendar dates on or before December 31, 1999; (ii)\nlose no functionality with respect to the introduction of records containing\ndates falling on or after January 1, 2000, and (iii) produce no logical or\narithmetical inconsistency when dealing with dates beyond December 31, 1999.\n\n 7. LIMITATION OF LIABILITY\n\n NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, IN NO EVENT\nWILL ADP OR SAGENT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES\n(INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS), EVEN IF ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR SAGENT'S OBLIGATIONS UNDER SECTIONS\n6(b) AND 6(d) ABOVE, AND ADP'S OBLIGATIONS UNDER SECTIONS 6(d) AND 6(e) ABOVE,\nEACH PARTY'S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR A CLAIM OF ANY\nKIND RELATED TO THIS AGREEMENT OR ANY PRODUCT, WHETHER FOR BREACH OF CONTRACT OR\nWARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE\nAGGREGATE OF FEES PAID TO SAGENT UNDER THIS AGREEMENT.\n\n 8. FEES, DISCOUNTS, PAYMENTS, RECORDS, AUDITS\n\n (a) The quantities of Products to be purchased by ADP hereunder,\nand the fees to be paid in respect thereof, are as follows:\n\n (i) Minimum guarantee. Subject to the remainder of this\n Agreement, ADP agrees to purchase not less than [ * ] ([ * ]) units of\n Product during the Initial Term. Of such [ * ] ([ * ]) Products, at\n least [ * ] ([ * ]) shall be purchased during the first four quarters of\n the Initial Term. During the fifth quarter, ADP shall purchase at least\n such number of Products equal to the excess, if any, of [ * ] ([ * ])\n over the number of Products purchased during the first four quarters;\n and during the sixth quarter of the Initial Term, ADP shall purchase at\n least such number of Products equal to the excess, if any, of [ * ]\n ([ * ]) over the number of Products purchased during the first five\n quarters.\n\n (ii) Prices. The prices of Products shall be as follows:\n The fee to be paid by ADP for each of the first forty (40) units of\n Product (as described in Part I of Schedule B) provided by Sagent to ADP\n and subsequently licensed or distributed to an End User is [ * ] Dollars\n ($[ * ]). This fee represents a [ * ]% discount from the list price for\n each Product. After forty (40) units of Product have been purchased by\n ADP hereunder, the price of all subsequent units of Product shall be \n\n [ * ] Dollars ($[ * ]) or [ * ] percent ([ * ]%) of the then current\n list price of Product, whichever is lower. The fees for the add-on\n components specified in Part III of Schedule B, if ADP elects to\n purchase same, will be [ * ] percent ([ * ]%) of SAGENT's price for such\n components, as set forth in such Part III, or if lower [ * ] percent \n ([ * ]%) of Sagent's then current list price for such components. SAGENT\n shall have the right, in its sole discretion and from time to time upon\n sixty (60) days' prior written notice to ADP (but not during the Initial\n Term or the first renewal term of this Agreement) to change the prices\n on its Price List, to add or delete Products from the Price List or\n implement special promotional programs. If ADP has submitted a bid(s) to\n potential End User(s) by the date of such written notice, then ADP may\n order Product at the previous price to fill such specific bid(s) for a\n period of ninety (90) days from the date ADP receives such notice, or\n until the price change takes effect, whichever is longer. ADP shall be\n responsible for all use taxes, sales taxes, and similar taxes pertaining\n to the Products, other than taxes based upon Sagent's income.\n\n (iii) Payments. ADP agrees to pay SAGENT [ * ]\n Dollars ($[ * ]) upon the execution of this\n Agreement, in full payment for the first forty (40) Products. All\n\n 10\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 11\n\n additional Products licensed by ADP shall be paid within thirty (30)\n days of ADP's receipt of SAGENT's invoice for such Product(s).\n\n (b) The parties agree that any license granted by ADP to an End\nUser which license is terminated within ninety (90) days after being implemented\nby ADP may be relicensed by ADP to another End User without the payment of any\nadditional royalty fee. ADP shall have the right to set the fees it charges to\nEnd Users in its sole discretion.\n\n (c) For each Product copy licensed to an End User by ADP, ADP\nshall maintain complete and accurate records (the \"Copy Record\") indicating by\nquarter the Product name and the number of licenses to an End User. Within\nthirty (30) business days after the end of each quarter, ADP shall deliver to\nSAGENT the Copy Records applicable to that quarter in a report, accompanied by\nany additional payment due to SAGENT relating to such Copy Records.\n\n (d) No more than once during the Initial Term, Renewal Term or\nany subsequent renewal period, at SAGENT's expense and with sixty (60) days'\nprior written notice, SAGENT may audit all records of ADP relating to this\nAgreement solely for purposes of determining the accuracy of payments during\nADPs normal business hours. If an audit reveals that the amount which should\nhave been paid to SAGENT is at least ten percent (10%) more than the amount\nreported by ADP, SAGENT's sole and exclusive remedy shall be to have ADP pay the\nreasonable cost of the audit to SAGENT. Any shortfall uncovered as a result of\nan audit as well as the cost of the audit, if required by the preceding\nsentence, shall be paid by ADP to SAGENT within thirty (30) days of the date\nSAGENT notifies ADP that an amount is due.\n\n (e) ADP shall pay any amounts owed to SAGENT on the date\nspecified and according to the terms of this Agreement. If a due date is not\nspecified, such payment shall be made by ADP within thirty (30) days after ADP's\nreceipt of SAGENTs invoice. Each party is solely responsible for its own\nexpenses incurred in the performance of this Agreement. If ADP fails to make any\npayment when due, unless ADP has notified SAGENT of its objections to the amount\nor basis of such payment, SAGENT may upon fifteen (15) days' advance written\nnotice suspend delivery of Products or services until the past due payment is\nmade. Sagent promptly will refund to ADP any overpayments made by ADP.\n\n (f) Payments will be in United States dollars. Any overdue amount\nshall bear interest at a rate of eight percent (8%) per annum or the maximum\nrate allowed by law if less. Costs of conversion, outside collection and related\nbank charges shall be paid by the party owing such payment. ADP shall be\nresponsible for all taxes, and tariffs assessed by a taxing authority against\nADP related to this Agreement (including any value added or sales taxes) other\nthan taxes measured by or in relation to SAGENT's income. All shipments by\nSAGENT shall be F.O.B. origin. Risk of loss and damage will pass to ADP upon\ndelivery to ADP.\n\n (g) Discounts do not apply to User Documentation ordered\nseparately, marketing collateral materials, or other products or services\noffered by SAGENT and not mentioned in Schedules A and B. For avoidance of doubt\nthere will be no fees payable by ADP to SAGENT for End User Documentation\nreproduced by ADP pursuant to this Agreement, whether for ADP's own internal use\nor for distribution to End Users.\n\n (h) Subsequent to the end of the Term as defined below, discounts\nshall be in accordance with SAGENT's standard applicable published discount\nschedule in effect at that time or as otherwise negotiated between the parties.\n\n (i) The prices and terms of maintenance and support are as set\nforth below. This Section 8(i) shall survive any termination or expiration of\nthis Agreement pursuant to Section 9 hereof, except that it may be terminated by\nSagent effective upon thirty (30) days' written notice to ADP upon the failure\nby ADP to pay the then current MS Fee, unless ADP shall cure such failure within\nsuch notice period.\n\n (A) Provided that ADP shall pay to Sagent the fees described in\n this Section 8(i), ADP shall be entitled \n\n 11\n 12\n\n to Basic Maintenance, Level 1 Support and Level 2\n Support, to be provided to ADP in accordance with the\n provisions of Section 5(b) hereof.\n\n (B) The fee for Basic Maintenance, Level 1 Support and Level 2\n Support (the \"MS Fee\") for the Initial Term (the first\n \"Maintenance Term\") shall be [*] Dollars ($[*]).\n\n (C) At the end of the first Maintenance Term, and at the end of\n each eighteen month period following sequentially thereafter\n (each period, a \"Maintenance Term\"), Sagent shall provide to\n ADP an invoice for the MS Fee in respect of the immediately\n succeeding Maintenance Term, and ADP shall be entitled to\n renewal and continuation of Sagent's obligations under Section\n 5(b) by payment to Sagent of the applicable MS Fee as provided\n herein. However, any such invoice shall comply with the\n maximum price provisions set forth herein. No increase in the\n MS Fee shall be permitted, except that upon written notice by\n Sagent to ADP prior to the final sixty (60) days of any\n Maintenance Term, Sagent shall be entitled to increase its MS\n Fee for the next succeeding Maintenance Term by no more than\n [*] percent ([*]%) above its fee for the then current\n Maintenance Term.\n\n (D) The MS Fee for the first Maintenance Term shall be payable as\n follows: [*] Dollars ($[*]) shall be payable to Sagent within\n thirty (30) days after the execution of this Agreement; and\n [*] Dollars ($[*]) shall be payable to Sagent twelve (12)\n Months after such initial portion of the first MS Fee is due\n and payable. The MS Fee for each subsequent Maintenance Term\n shall be payable in two installments in the same manner as\n payable in respect of the first Maintenance Term, whereby the\n first installment, equal to two-thirds of the applicable MS\n Fee, is due at the commencement of any such Maintenance Term,\n and the second installment, equal to one-third of the\n applicable MS Fee, is due after two thirds of the applicable\n Maintenance Term has expired.\n\n (j) In consideration of the training services to be provided to\nADP by SAGENT as outlined in Section 5(c) of this Agreement (the \"Training\nServices\"), ADP agrees to pay $[*]. There is an additional cost of $[*] per\nadditional trainer enrolled in the SAGENT Train the Trainer program. The fees\nfor Training Services do not include taxes and\/or reasonable travel expenses.\n\n 9. TERM AND TERMINATION\n\n (a) The term of this Agreement shall be eighteen (18) months from\nthe Effective Date (\"Initial Term\"). At the expiration of the Initial Term, this\nAgreement may be automatically renewed by ADP for one additional eighteen (18)\nmonth period (a \"Renewal Term\") unless ADP provides to SAGENT thirty (30) days'\nprior written notice of nonrenewal. During the Renewal Term, the same terms\napplicable to the Initial Term shall apply, except that the minimum purchase by\nADP of Products shall be [*] ([*]) Products per [*].\n\n (b) This Agreement may be terminated by either party: (i) upon\nbreach by the other party of any material term of this Agreement or for failure\nto pay any amount when due, upon thirty (30) days' prior written notice by the\nnon-breaching party to the other, unless the cause is susceptible of being cured\nand is cured within the thirty (30) day notice period or such other period\nagreed to by both parties; (ii) immediately upon written notice to the other\nparty in the event the other party breaches Sections 3(i) or 4(a) hereof, (iii)\nimmediately upon written notice to the other party if a receiver or other\nliquidating officer is appointed for substantially all of the assets or business\nof the other party, or if such other party makes an assignment for the benefit\nof creditors, or becomes insolvent or bankrupt or the rights or interest of such\nother party under this Agreement become attached under any bankruptcy,\ninsolvency or reorganization proceedings. The date termination becomes effective\nis called the \"Termination Date\".\n\n (c) If this Agreement is terminated for any reason, all rights\ngranted under this Agreement shall terminate, except, as set forth in this\nSection 9(c) and in Sections 9(f) and 9(g), and except for ADPs continued\nlicense under Section 3(a), and its right to use Confidential Information for\nthe sole purpose of fulfilling any existing contractual \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\n the omitted portions.\n\n 12\n 13\n\nobligations for Products and services to End Users, and any proposals to\nprospective End Users which have been made prior to the effective date of any\nsuch termination, and for the purpose of licensing to prospective End Users any\nprepaid Products, the fees in respect of which are not otherwise refundable to\nADP hereunder. Use after the Termination Date shall be subject to all the\nrestrictions contained herein and those provisions of this Agreement which\nsurvive termination. In addition, without limitation of anything else contained\nherein, the provisions of Section 8(i), and, if the MS Fee is paid by ADP as\nprovided in Section 8(i), Sections 4, 5(b), 6(a)(iv), 6(d) and 10, and this\nSection 9, shall survive the termination of this Agreement until the expiration\nof the Final Maintenance Term. Upon termination or expiration of this Agreement,\nexcept as otherwise provided herein, ADP will immediately cease to be an\nauthorized SAGENT VAR and shall refrain from representing itself as such and\nfrom using any SAGENT trademark or trade name. Upon termination of this\nAgreement by ADP for Sagent's breach, without limitation of ADP's other rights\nand remedies hereunder, Sagent shall immediately refund to ADP any prepayment\nfor Product not licensed to End Users during the term hereof, and if the\nMaintenance Term shall be terminated by such termination of this agreement,\nAgent shall refund to ADP a pro rata portion of the MS Fee previously paid by\nADP representing the unexpired portion of the then current Maintenance Term. In\naddition, any fees for training services not provided to ADP shall be promptly\nrefunded to ADP.\n\n (d) Subject to Sections 9(c) and 9(g), within thirty (30) days of\nthe Termination Date, all Products, Confidential Information of SAGENT and\nrelated materials in ADP's possession or control shall be returned to SAGENT,\nor, upon SAGENT's written request, destroyed by ADP. Similarly, subject to\nSection 9(c), within thirty (30) days of the Termination Date, all Confidential\nInformation of ADP and related materials in SAGENT's possession or control shall\nbe returned to ADP or, upon ADP's written request, destroyed by SAGENT.\n\n (e) On the Termination Date, all outstanding obligations, per the\nterms of this Agreement, to pay any amount to SAGENT will become due and payable\nwithin thirty (30) days after such termination or the period otherwise provided\nin this Agreement, whichever is earlier.\n\n (f) All sections of this Agreement which by their terms imply an\nongoing obligation shall survive any termination of this Agreement.\n\n (g) Notwithstanding anything to the contrary contained in this\nAgreement, it is expressly agreed that the expiration or termination of this\nAgreement for any reason shall not terminate or diminish in any way the right of\nEnd Users then using the Solution to use the Products.\n\n 10. ESCROW\n\n (a) SAGENT represents and warrants that SAGENT has entered into\nan escrow agreement with Filesafe, Inc., d\/b\/a\/ SourceFile (\"SourceFile\"), a\ncopy of which is attached as Schedule D (\"Escrow Agreement\"), and pursuant\nthereto SAGENT has placed in escrow with SourceFile, fully annotated source code\nof the Product(s). Sagent further covenants that the materials deposited with\nSourceFile at all times will constitute a correct set of the source code of the\nProducts, as well as any corrections, enhancements and other revisions received\nby ADP hereunder, or to which ADP becomes entitled under this Agreement\n(collectively, the \"Source Code\"). Sagent further grants to ADP its successors\nand assigns a worldwide irrevocable nonexclusive right and license to use,\nexecute, reproduce, display, perform, and distribute and prepare derivative or\ncollective works based upon the Source Code for the benefit of End Users who\nenter into End User Agreements with ADP as contemplated in this Agreement, such\nright and license to be exercisable by ADP solely following a Release Condition\nand solely for the purpose of exercising its rights and performing its\nobligations as contemplated under this Agreement. SAGENT further covenants to\nremain bound to and in compliance with the provisions of the Escrow Agreement\nthroughout the term of this Agreement and each Maintenance Term, and hereby\nwaives any defense that the Escrow Agreement is invalid or unenforceable. SAGENT\nagrees to the addition of ADP as a beneficiary under the Escrow Agreement,\nsubject to ADP's sending the fully executed copy of the form of acknowledgment\nrequired by the Escrow Agreement and ADP's payment of the annual fee (which\nshall not exceed $250 annually) applicable to a beneficiary's participation in\nthe Escrow Agreement.\n\n (b) ADP shall be entitled to receive a copy of the Source Code\nfrom escrow in accordance with the terms and conditions of the Escrow Agreement.\nIn addition to the \"Release Conditions\" specified and defined in Section \n\n 13\n 14\n\n4(i) of the Escrow Agreement, SAGENT agrees that the following conditions shall\nbe deemed to constitute a Release Condition:\n\n SAGENT materially breaches the provisions of Section 5(b) as to\n maintenance of the Product(s) or Add-On Components;\n\n Without limitation of the foregoing, in the event that Sagent shall for\nany reason fail to resolve a Severity Level 1 Problem with a workaround, error\ncorrection or other solution within ten (10) calendar days after the problem has\nbeen reported to Sagent, and with an error correction within one hundred eighty\n(180) days after the problem has been reported to Sagent, ADP shall have the\nright to terminate this Agreement, and the parties further agree that such\ncircumstance shall be deemed to be a \"Release Condition\" under the Escrow\nAgreement, entitling ADP to receipt of the Source Code.\n\n In the event of such breach or such failure, or any condition\nspecified in Section 4(i) of the Escrow Agreement, ADP shall notify SourceFile\nof the occurrence of the Release Condition and SAGENT agrees not to issue\n\"Contrary Instructions\" as such term is defined in Section 4(ii) of the Escrow\nAgreement, or to prevent in any other way the release of the Source Code to ADP.\nSAGENT further agrees in the event of such failure, to instruct SourceFile to:\n(i) waive the sixty (60) day waiting period specified in Section 4(iii) of the\nEscrow Agreement and (ii) immediately release the Source Code to ADP for\npurposes of maintaining and supporting the Products. In furtherance of the\nforegoing intentions, Sagent represents and warrants to ADP that Sagent has\ndelivered to SourceFile a fully executed letter of instructions in the form of\nSchedule E hereto (the \"Instructions\"), and Sagent further covenants that it\nshall take no action to revoke, alter, or circumvent the intention of, the\nInstructions. In addition, SAGENT hereby grants to ADP the right to contract\nwith SAGENT's vendors in furtherance of the license described in this Section\n10(b). In the event of any dispute between the parties pertaining to a Release\nCondition, actual or deemed, the parties agree that the pendency of such dispute\nshall not prevent or delay the release to ADP of the Source Code.\n\n 11. SPECIAL REPRESENTATIONS\n\n Each party represents and warrants to the other party as follows:\n\n (a) Neither the execution and delivery of this Agreement nor the\nperformance of any actions required hereunder is being consummated by it with or\nas a result of any actual intent by such party to hinder, delay or defraud any\nentity to which such party is now or will hereafter become indebted.\n\n (b) Such party does not have any intent (i) to file any voluntary\npetition in bankruptcy under any Chapter of the Bankruptcy Code or in any manner\nto seek relief, protection, reorganization, liquidation, dissolution or similar\nrelief for debtors under any local, state, federal, foreign or other insolvency\nlaws or laws providing for relief of debtors, or in equity, or directly or\nindirectly to leave any of its affiliates to file any such petition or to seek\nany such relief, or (ii) directly or indirectly to cause any involuntary\npetition under any Chapter of the Bankruptcy Code to be filed under such party\nof any of its affiliates, or to cause such party or any proceedings pursuant to\nlocal, state, federal, foreign or other insolvency laws or laws providing relief\nof debtors or in equity or (iii) directly or indirectly to cause the Products or\nthe intellectual property that is the subject of the licenses granted hereunder\nto become the property of any bankruptcy estate or the subject of any local,\nstate, Federal, foreign or other bankruptcy dissolution, liquidation or\ninsolvency proceedings.\n\n 12. GENERAL\n\n (a) The parties hereto expressly understand and agree that each\nparty is an independent contractor in the performance of each and every part of\nthis Agreement, is solely responsible for all of its employees and agents and\nits labor costs and expenses arising in connection therewith. Neither party is\nin any manner associated with or otherwise connected with the actual performance\nof this Agreement on the part of the other party, nor with the other party's\nemployment of other persons or incurring of other expenses.\n\n 14\n 15\n\n (b) During the Initial Term and the Renewal Term, if any, Sagent\nshall not directly or indirectly sell, lease, license or otherwise distribute or\ncause to be distributed the Products to PeopleSoft, Inc., or any affiliate\nthereof, or offer, negotiate, or make any solicitation in furtherance of any of\nthe foregoing acts.\n\n (c) SAGENT has the right at its sole discretion, with sixty (60)\ndays' advance notice to ADP, to make non-material changes or improvements or\nenhancements in the design or specifications of the Products at any time. Sagent\npromptly shall provide to ADP all upgraded products with all such changes,\nimprovements or enhancements, and shall provide to ADP such additional training,\nsupport and other assistance as shall be reasonably requested by ADP to adapt\nany Application to such changes, improvements, or enhancements, or to train its\nor its customers' employees in connection therewith. SAGENT shall provide to ADP\nthirty (30) days' notice prior to any such proposed Product change. If ADP\ndetermines that any such change, improvement or enhancement may have an adverse\neffect upon a Solution, ADP at its election and upon notice to SAGENT, shall be\nentitled to continue, until SAGENT receives written notice from ADP to the\ncontrary, to receive, use, license and distribute hereunder the Product without\nsuch change, improvement or enhancement, and SAGENT shall continue Basic\nMaintenance, Level 1 Support and Level 2 Support for such Product as elected by\nADP.\n\n (d) This Agreement may not be assigned by either party without\nthe prior written consent of the other party, which shall not be unreasonably\nwithheld, except that ADP may assign this Agreement, without Sagent's consent,\nto any direct or indirect wholly owned subsidiary of AUTOMATIC DATA PROCESSING,\nINC., and SAGENT may assign this Agreement in connection with its merger or the\nsale of substantially all of the assets of SAGENT, provided that SAGENT or ADP,\nas applicable, shall in the event of any such assignment remain liable as\nguarantor of all of such party's obligations hereunder. Any purported assignment\nin contravention of this section is null and void. Notwithstanding the foregoing\nthis Agreement shall bind and inure to the benefit of any successors or\npermitted assigns. This Agreement is for the benefit of the parties hereto and\ntheir respective successors and permitted assigns as described herein, and such\nthird party beneficiaries as are enumerated in the provisions of Section 6\nhereof.\n\n (e) Neither party will be responsible for failure of performance,\nother than for any obligation to pay money, due to causes beyond its reasonable\ncontrol, including without limitation, acts of God or nature; labor disputes;\nsovereign acts of any federal, state or foreign government; or shortage of\nmaterials.\n\n (f) Notices will be delivered to a party's address to the\nfollowing individuals outlined below, stated in the signature block of this\nAgreement, or to another address which a party properly notified the other that\nnotices should be sent. In addition, any notice to ADP shall include a duplicate\ncopy to each of ADP, National Accounts Division, Attention: Division President,\nand ADP, National Accounts Division, Attention: Division Counsel, at the\nfollowing address until July 21, 1997: 5665 Nordiside Drive, Atlanta, GA 30328,\nand after July 21, 1997 at 5800 Windward Parkway, Alpharetta, GA 30005.\n\n (g) This Agreement, including all attachments, exhibits and\nappendices, is the complete and exclusive statement of the parties to this\nAgreement on these subjects, and supersedes all prior written or oral proposals\nand understandings relating thereto. Except as otherwise provided, this\nAgreement may only be modified by a writing signed by an authorized officer of\neach of the parties. This Agreement takes precedence over any purchase order\nissued by ADP, which is accepted by SAGENT for administrative convenience only.\nIf any court of competent jurisdiction determines that any provision of this\nAgreement is invalid, the remainder of the Agreement will continue in full force\nand effect. The offending provision shall be interpreted to whatever extent\npossible to give effect to its stated intent.\n\n (h) Failure to require performance of any provisions or waiver of\na breach of a provision does not waive a party's right to subsequently require\nfull and proper performance of that provision. Singular terms will be construed\nas plural, and vice versa. Section headings are for convenience only and will\nnot be considered part of this Agreement.\n\n (i) This Agreement is governed by the laws of the State of\nCalifornia without giving effect to its conflict of law provisions. The United\nNations Convention on Contracts for the International Sales of Goods will not\napply to this Agreement. Either party may seek to enforce or prevent a breach of\nany term of this Agreement in the \n\n\n 15\n 16\n\nappropriate courts of any state or country in which the Products are deployed by\nADP or in which ADP maintains an office. Nothing in this Agreement will be\ndeemed a waiver by either party of any and all available legal or equitable\nremedies.\n\n (j) Upon execution of this Agreement, ADP will be provided a\nposition on Sagent's advisory council (\"Advisory Council\"). The Advisory Council\nmeets at least once a Quarter in Palo Alto. ADP, at its option and discretion,\nshall designate a representative as an Advisory Council member.\n\n (k) SAGENT agrees to procure and maintain, beginning on the date\nhereof and continuing throughout the term of this Agreement including any\nRenewal Terms, and throughout all Maintenance Terms, a comprehensive general\nliability insurance policy with an insurance company of national recognition\nhaving a Best's rating of B+ or better in an amount of not less than $4,000,000\nin the aggregate and $1,000,000 per occurrence and covering its obligations set\nforth in Section 6(b) hereof; and to cause ADP to be an additional insured under\nsuch policy. Within five (5) days after the execution hereof Sagent shall\ndeliver to ADP a certificate evidencing such coverage and such status of ADP.\nThe certificate shall provide thirty (30) days' advance written notice of\ncancellation, non-renewal or termination be given to ADP.\n\n (l) Except as specifically provided herein, neither party may use\nthe name, trademarks, service marks and\/or logos of the other without such\nparty's prior written consent in each instance (which shall be at each party's\nsole discretion). Without the prior written consent of the other party hereto,\nwhich consent shall not be unreasonably withheld, neither party shall make any\nnews release, public announcements, denial or confirmation of this Agreement or\nits subject matter or advertise any facts relating to this Agreement. The\nforegoing restriction shall not apply to the extent such restriction is\ninconsistent with the requirements of any law, rule, regulation or other legal\nrequirement, or the requirements of any national securities exchange or similar\ntrading system applicable to the party proposing to make such disclosure. The\nparties shall use reasonable efforts to participate in joint press releases and\npromotional activities regarding the ADP\/Sagent relationship contemplated in\nthis Agreement. Each party shall bear responsibility for the cost of their\nrespective press releases and promotional activities, unless otherwise mutually\nagreed. Each party shall submit to the other for prior written approval by an\nauthorized representative, which approval shall not be unreasonably withheld,\nany joint press release or promotional literature which identifies the other\nparty and\/or uses the other party's name, trademark(s), service mark(s) and\/or\nlogo(s), which approval shall not be unreasonably withheld the case of proposed\npress releases; provided, however, that each party shall have sole discretion to\nrefuse the use by the other party of any of its trademarks, trade names, service\nmarks and\/or logos.\n\n (m) The headings in this Agreement are intended for convenience\nof reference and shall not affect its interpretation. Any reference herein to a\nSection or an Exhibit or an Attachment or a Schedule shall be deemed to refer to\nthe applicable Section or Exhibit or Attachment or Schedule to this Agreement.\n\n 16\n 17\n\n (n) This Agreement may be executed in any number of counterparts,\neach of which shall be deemed an original and all of which, taken together,\nshall constitute one Agreement.\n\nSAGENT TECHNOLOGY, INC. ADP, INC.\n\n\nBy: By:\n\nName: Name:\n\nTitle: Title:\n\nAddress: 2225 E. Bayshore Road, Suite 100 Address: One ADP Boulevard\n Palo Alto, CA 94303 Roseland, New Jersey 07068\n\n\n 17\n 18\n\n SCHEDULE A\n\n\n VALUE ADDED RESELLER LICENSED PRODUCTS\n Software List of Products\n\n\n\nThe Sagent Data Mart Solution consist of the following integrated family of\nproducts, more fully described in Attachment A:\n\n Base Package Software Solution (One Full Set)\n\n Data Mart Server (1)\n Design Studio (1)\n Information Studio (10)\n Weblink Server (1)\n Admin (1)\n Sagent Analysis (10)\n Reporting Tool (Either CrystalReport's or Sagent's) (10)\n\n\n\n 19\n\n SCHEDULE B\n Discount Schedule\n\n\n\nI. The Product consists of:\n\n Data Mart Server (1)\n Design Studio (1)\n Information Studio (10)\n WebLink Server (1)\n Admin Tool (1)\n Sagent Analysis (10)\n Report Tool (either CrystalReport's or Sagent's) (10)\n\n\nThe list price for the Product is $[*]. SAGENT agrees to give ADP a [*]%\ndiscount off the list price for each Product purchased during the Initial Term\nof this Agreement, which results in a list price of $[*] for each Product.\n\nII. The price per Product (including user documentation) for ADP's internal\n use only is $[*] per Product.\n\nIII. ADD ON COMPONENTS SOLD TO EXISTING CUSTOMERS (i.e., CUSTOMERS WHO HAVE\n PURCHASED THE PRODUCT IDENTIFIED IN I., ABOVE):\n<\/pre>\n
\n\n List Price
\n ———-
\n
\n Data Mart Server (1)………………… $ [*]
\n Weblink Server (1)………………….. $ [*]
\n Information Studios (Sets of 5)………. $ [*]
\n Analysis Tools (Set of 5)……………. $ [*]
\n Reporting Tools (Set of 5)…………… $ [*]
\n Design Studio’s (1)…………………. $ [*]
\n Admin Tool (1)……………………… $ [*]
\n<\/c><\/s><\/caption>\n<\/table>\nDISCOUNT SCHEDULE: The price to ADP during the Initial Term of this Agreement
\nfor purchases of add-on components will be [*]% of the prices shown on the Price
\nList.<\/p>\n
* Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.<\/p>\n
20<\/p>\n
SCHEDULE C<\/p>\n
Support & Professional\/Technical Services Pricing\/Fees<\/p>\n
Support Services<\/p>\n
In addition to the Services described below, Sagent shall provide its Premium
\nSupport as described elsewhere in this Exhibit C.<\/p>\n
Support Services will include telephone support, in which we will answer
\ntechnical questions from Two (2) designated persons about the installation and
\nuse of Products; Maintenance Releases, in which we will provide our copyrighted
\nin-line releases and workarounds as available; Upgrades, in which we will
\nprovide new product releases (signified by a change in the version number) as
\nsubstitutes for Products; and other generally available Technical Materials.
\nNote that Maintenance Releases and Upgrades, where applicable, may not be used
\nto increase the total number of copies of the Products. After upgrade or
\nmaintenance this agreement will only apply to the upgraded or maintained
\nversions of a Products provided that ADP shall have continued support for the
\nprior version for up to 24 months as required by ADP; you agree to destroy or
\narchive (but not use or transfer) the prior version within 24 months ADP and its
\nclients may need some time to move to a new release upgrade, etc.<\/p>\n
TECHNICAL SUPPORT SERVICES
\nThe Professional Support program is designed to give you access to Sagent
\nTechnology’s Technical Support Analysts. These analysts are available to insure
\nthe continued operation of your Sagent product. This includes working with a
\nSagent system that has gone down, assisting with the initial setup of new
\nsystems, and other problems that arise form the use of our products. Technical
\nSupport Services does not include the development of custom code, or detailed
\nproduct training.<\/p>\n
DESIGNATED PROFESSIONAL SUPPORT CONTACTS
\nMaintaining a clear line of communication between your organization and Sagent’s
\nTechnical Support department is key to making sure you get the most from the
\nProfessional Support program. As such, it is important that you designate
\nspecific individuals within your organization that become the primary contacts
\nfor working with Sagent Technical Support. These individuals, who are familiar
\nwith the technical workings of your company’s systems, help by managing the flow
\nof information to the Support Analysts to insure that responses are focused on
\nthe problem at hand. The number of contacts within your organization that have
\naccess to Sagent Technical Support is specified in this agreement, and is
\ndetermined by you based on your need.<\/p>\n
WORKING WITH TECHNICAL SUPPORT
\nSagent Technical Support tracks your issues based on an incident model. While we
\ndo not limit you to a specific number of incidents, we do use incidents to make
\nsure that each issue that you have is resolved to the best of our ability. An
\nincident is defined as a single support issue that cannot be broken down into
\nsmaller support issues. Each of these incidents is tracked individually, and can
\nbe referenced by you when you contact us.<\/p>\n
CONTACTING SAGENT TECHNICAL SUPPORT BY PHONE
\nUse the phone to contact Sagent Technical Support whenever you have a
\ntime-critical or business-critical problem. Sagent Technical Support is
\navailable to Premium Support Customers twenty-four (24) hours a day, seven (7)
\ndays a week. During regular business hours, Premium Support Customers are given
\npriority in the phone queue. If we are unable to answer your call immediately,
\nyou will be given the option to leave a voice mail message. Telephone calls
\nplaced outside regular business hours automatically go to voice mail, and a
\ndesignated support analyst is paged. In the message, please be sure to give us
\nyour name, company name, a description of the problem, and a phone number that
\nyou can be reached at. All calls that go to voice mail will be responded to
\nwithin two business hours. If we fail to connect with you on the return call, we
\nwill leave a message (if possible) with an appropriate time to follow up.<\/p>\n
21<\/p>\n
CONTACTING SAGENT TECHNICAL SUPPORT BY ELECTRONIC MAIL<\/p>\n
For problems that are not time-critical, you can contact us via the Internet at
\nTechsupport@SagentTech.com. We will respond to all mail messages within one
\nbusiness day of the time it arrives at Sagent Technical Support. Please be sure
\nto include a full description of the problem, your name, your company’s name,
\nand a return e-mail address.<\/p>\n
ESCALATION PROCESS<\/p>\n
Step 1 – All new technical support issues are handled initially by our
\n support analysts. Our support analysts are trained to deal with the
\n majority of all support issues, and most support issues are resolved
\n at this step. All problems will be acknowledged within two (2)
\n business hours.<\/p>\n
Step 2 – If an issue comes up that cannot be handled by the support analyst,
\n it is given one of the following priorities:<\/p>\n
A) Severity 1 – For business outages, or issues, that have
\n a serious impact on ADP or an End User which threatens
\n future productivity.<\/p>\n
B) Severity 2 – For issues that do not have a significant
\n current impact on customer productivity of ADP or an
\n End User.<\/p>\n
Step 3 – Severity 1 issues are immediately escalated to Sagent’s upper
\n management team to determine the proper course of action. Sagent
\n shall take all necessary and desirable steps to resolve such issues
\n with an error correction, a workaround or another solution within
\n one business day.<\/p>\n
Severity 2 issues are escalated to an escalation review committee,
\n which meets regularly to determine the proper course of action for
\n these escalations. Sagent shall take all necessary and desirable
\n steps to resolve and issues with an error correction, a workaround
\n or another solution.<\/p>\n
Step 4 – The course of action determined in Step 3 is communicated to ADP,
\n and an estimated time to complete is given.<\/p>\n
Step 5 – If Sagent has not delivered an error correction, but has delivered a
\n workaround acceptable to ADP, for a suspected error within the times
\n contemplated in this Agreement, Sagent shall provide, within
\n twenty-four (24) hours after ADP’s request, a written analysis of
\n the problem and a written plan to supply ADP with an error
\n correction within thirty (30) calendar days. The foregoing remedies
\n are in addition to and not lieu of all other remedies available to
\n ADP under the Agreement.<\/p>\n
PREMIUM SUPPORT PROGRAM<\/p>\n
Sagent Premium Support is provided for our customers that require more security
\nwhen implementing Sagent’s products in mission critical environments. In order
\nto provide this security, the Premium Support Program provides round the clock
\naccess to Sagent Technical Support team via the phone, as well as electronic
\nsupport via the Internet. Sagent’s Premium Support Program also includes an
\nescalation process that is designed to make sure technical issues receive the
\nproper attention.<\/p>\n
This reference guide is an outline to the services currently available under the
\nPremium Support program. Use this guide to determine the best way to get the
\nmost from this service.<\/p>\n
TECHNICAL SUPPORT SERVICES<\/p>\n
22<\/p>\n
The Professional Support Program is designed to give you access to Sagent
\nTechnology’s Technical Support Analysts twenty-four (24) hours a day, seven (7)
\ndays a week. These analysts are available to insure the continued operation of
\nyour Sagent product. This includes working with a Sagent system that has gone
\ndown, assisting with the initial setup of new systems, that arise from the use
\nof our products. Technical Support Services does not include the development of
\ncustom code, or detailed product training.<\/p>\n
23
\n SCHEDULE D<\/p>\n
[ESCROW AGREEMENT]<\/p>\n
TERMS AND CONDITIONS OF ESCROW ACCOUNT<\/p>\n
SourceFlex
\n Software Escrow Agreement<\/p>\n
Developer [Sagent Technology, Inc.] SourceFile<\/p>\n
This contract is a two-party agreement between SourceFile and Sagent Technology,
\nInc. End-users may sign on to this agreement as they license the technology from
\nthe Sagent. The SourceFlex contract provides the opportunity to serve all
\nlicensees of a particular Software Developer for one or more systems.<\/p>\n
24<\/p>\n
SOURCEFLEX
\n SOFTWARE SOURCE CODE ESCROW AGREEMENT
\n SOURCEFILE NUMBER: 7446<\/p>\n
This Software Source Code Escrow Agreement, dated as of January 6, 1997
\nby and between FileSafe, Inc., a California corporation, doing business as
\nSourceFile (“SourceFile”) located at 1350 West Grand Ave., Oakland, California
\n94607 and Sagent Technology, Inc., located at 2225 E. Bayshore, Palo Alto, CA
\n94303 (“Sagent”), and each Beneficiary identified by Depositor to SourceFile as
\nprovided for in Paragraph 3 hereof (each a “Beneficiary”, collectively the
\n“Beneficiaries”).<\/p>\n
RECITALS:<\/p>\n
A. Pursuant to certain software license agreements (each a “License
\nAgreement”, collectively the “License Agreement”), Depositor licenses to certain
\nlicensees certain software in object code form (the “Software”). A description
\nof each Software effective as of the date hereof, is attached hereto as Exhibit
\n“A”.<\/p>\n
B. The Software is the proprietary and confidential information of
\nDepositor, and Depositor desires to protect such ownership and confidentiality.<\/p>\n
C. Depositor desires to ensure the availability to its Beneficiaries of
\nthe source code and all necessary proprietary information related to the
\nSoftware (the “Source Material”) in the event certain conditions set forth in
\nParagraph 4 of this Agreement should occur.<\/p>\n
AGREEMENT:<\/p>\n
1. Delivery of Source Material to SourceFile. Upon execution of this
\nagreement, Depositor shall deliver to SourceFile a parcel (the “Parcel”) sealed
\nby Depositor, which Depositor represents and warrants contains the Source
\nMaterial. SourceFile has no knowledge of, and makes no representations with
\nrespect to, the contents or substance of the Parcel, the Software or the Source
\nMaterial. Depositor shall send to SourceFile a duplicate of the Source Material
\nwithin three (3) days after receiving written notice from SourceFile that the
\nSource Material has been destroyed or damaged. All supplements shall be subject
\nto the terms and provisions of this Agreement.<\/p>\n
2. Acknowledgement of Receipt by SourceFile. SourceFile shall promptly
\nacknowledge to Depositor and to Beneficiary the receipt of the Parcel and any
\nsupplements to the Source Material which are added to the Parcel. Depositor
\nshall provide supplements to the Source Material for each version of the
\nSoftware. All such supplements shall be subject to the terms and provisions of
\nthis Agreement. SourceFile will notify Beneficiary and Depositor of each update
\nto the Source Material. Such notification will be sent via certified mail,
\nreturn receipt required. SourceFile will provide an account status report to the
\nBeneficiary and Depositor on a semiannual basis.<\/p>\n
3. Acknowledgement by Beneficiaries. For purposes of this Agreement, a
\nlicensee of the Software under a fully executed License Agreement, shall be a
\nBeneficiary hereunder with such rights of a Beneficiary as set forth herein,
\nonly if (i) such licensee has sent to SourceFile a fully executed copy of the
\nform of acknowledgement attached hereto as Exhibit “B”, in which such licensee
\naccepts the terms of this Agreement and (ii) all fees are paid. The names and
\naddresses of the Beneficiaries shall be described in one or more schedules of
\nBeneficiaries. A schedule of Beneficiaries effective as of the date of this
\nAgreement is attached hereto as Exhibit “C”. All other licensees of the Software
\nshall have no rights hereunder and SourceFile shall have no duties to such
\nlicensees.<\/p>\n
25
\n 4. Terms and Conditions of the Source Material Escrow. The Parcel shall
\nbe held by SourceFile upon the following terms and conditions:<\/p>\n
(i) Beneficiary’s right to possession of the Source Code is
\n subject to Beneficiary’s execution of a registration document
\n with SourceFile and payment to Sagent of an annual fee for
\n Beneficiary’s participation in such escrow account. Such
\n registration document shall provide Beneficiary access to the
\n Source Code, the right to use and modify the Source Code
\n solely to maintain and support Beneficiary’s current and
\n future customers of the Licensed Material and the right to
\n produce object code copies of the modified Licensed Material
\n as part of Beneficiary’s applications for use in accordance
\n with the terms of the Agreement, subject to the following
\n conditions: (a) Beneficiary is in compliance with the terms of
\n the Agreement; (b) Beneficiary has a valid license to the
\n Licensed Material; and (c) Beneficiary has a valid maintenance
\n agreement with Sagent for support of the Licensed Material,
\n and either (1) A petition in bankruptcy has been filed in
\n Sagent’s name, whether voluntarily or involuntarily, and such
\n petition is not withdrawn within 90 days of such filing or (2)
\n pursuant to Sagent’s obligations under a valid maintenance
\n agreement with Beneficiary, Sagent has consistently and
\n repeatedly failed or refused to correct a catastrophic error
\n or numerous individual errors in the License Materials which
\n render the licensed materials commercially unusable. Provided
\n that the above conditions exist, and Beneficiary has given
\n Depositor written notice of such breach which was not cured
\n within 60 days (the Release Condition), then SourceFile shall
\n follow the following procedures set forth in this Section 4,
\n parts (ii), (iii), (iv) and (v).<\/p>\n
(ii) SourceFile shall promptly notify Depositor of the occurrence
\n of the Release Condition and shall provide to Depositor a copy
\n of Beneficiary’s notice to SourceFile.<\/p>\n
(iii) If SourceFile does not receive Contrary Instructions, as
\n defined below, from Depositor within sixty (60) days following
\n SourceFile’s delivery of a copy of such notice to Depositor,
\n SourceFile shall deliver a copy of the Source Material to
\n Beneficiary. “Contrary Instructions” for the purposes of this
\n Section 4 shall mean the filing of written notice with
\n SourceFile by Depositor, with a copy to the Beneficiary
\n demanding delivery, stating that the Release Condition has not
\n occurred or has been cured.<\/p>\n
(iv) If SourceFile receives Contrary Instructions from Depositor
\n within sixty (60) days of the giving of such notice to
\n Depositor, SourceFile shall not deliver a copy of the Source
\n Material to the Beneficiary, but shall continue to store the
\n Parcel until: (1) otherwise directed by the Depositor and
\n Beneficiary jointly; (2) SourceFile has received a copy of an
\n order of a court of competent jurisdiction directing
\n SourceFile as to the disposition of the Source Material; or
\n (3) SourceFile has deposited the Parcel with a court of
\n competent jurisdiction or a Trustee or receiver selected by
\n such court pursuant to this Section 4, part (v) below.<\/p>\n
(v) Upon receipt of Contrary Instructions from Depositor,
\n SourceFile shall have the absolute right, at SourceFile’s
\n election, to file an action in interpleader requiring the
\n Depositor and Beneficiary to answer and litigate their several
\n claims and rights amongst themselves. SourceFile is hereby
\n authorized to comply with the applicable interpleader statutes
\n of the State of California in this regard.<\/p>\n
5. Term of Agreement. This Agreement shall have an initial term of three
\n(3) years. The term shall be automatically renewed on a yearly basis thereafter,
\nunless Depositor, Beneficiary, or SourceFile notifies the other parties in
\nwriting at least forty-five (45) days prior to the end of the then current term
\nof its intention to terminate this Agreement.<\/p>\n
26<\/p>\n
6. Compensation of SourceFile. Depositor or Beneficiary agree to pay
\nSourceFile reasonable compensation for the services to be rendered hereunder in
\naccordance with SourceFile’s then current schedule of fees, except that any fees
\nassociated with Escrow Release Requests and Technical Review\/Verification
\nRequests initiated by a Beneficiary must be paid by that Beneficiary in
\naccordance with SourceFile’s then current schedule of fees. Depositor or
\nBeneficiary will pay or reimburse SourceFile upon request for all reasonable
\nexpenses, disbursements and advances, including software duplication charges,
\nincurred or made by it in connection with carrying out its duties hereunder.<\/p>\n
7. Limitation of Duties of SourceFile. SourceFile undertakes to perform
\nonly such duties as are expressly set forth herein.<\/p>\n
8. Limitation of Liability of SourceFile. SourceFile may rely on and
\nshall suffer no liability as a result of acting or refraining from acting upon
\nany written notice, instruction or request furnished to SourceFile hereunder
\nwhich is reasonably believed by SourceFile to be genuine and to have been signed
\nor presented by a person reasonably believed by SourceFile to be authorized to
\nact on behalf of the parties hereto. SourceFile shall not be liable for any
\naction taken by it in good faith and believed by it to be authorized or within
\nthe rights or powers conferred upon it by this Agreement. SourceFile may consult
\nwith counsel of its own choice, and shall have full and complete authorization
\nand protection for any action taken or suffered by it hereunder in good faith
\nand in accordance with the opinion of such counsel.<\/p>\n
9. Indemnification of SourceFile. SourceFile shall be responsible to
\nperform its obligations under this agreement and to act in a reasonable and
\nprudent manner with regard to this escrow arrangement. Provided that SourceFile
\nhas acted in the manner stated in the previous sentence, Depositor and
\nBeneficiary each agree to indemnify, defend, and hold harmless SourceFile and
\nits agents and employees (collectively, “SourceFile”) from any and all claims,
\ndemands, liability, costs and expenses (including attorneys’ fees) incurred by
\nSourceFile directly or indirectly arising from or relating to the Source
\nMaterial and\/or SourceFile’s performance of its duties under this Agreement.<\/p>\n
10. Record Keeping and Inspection of Software. SourceFile shall maintain
\ncomplete written records of all materials deposited by Depositor pursuant to
\nthis Agreement. During the term of this Agreement, Depositor shall be entitled
\nat reasonable times during normal business hours and upon reasonable notice to
\nSourceFile to inspect the records of SourceFile maintained pursuant to this
\nAgreement and to inspect the facilities of SourceFile and the physical condition
\nof the Source Material.<\/p>\n
11. Technical Verification. Beneficiary reserves the option to request
\nSourceFile to verify the Source Material for completeness and accuracy. At
\nBeneficiary’s expense, SourceFile may elect to perform the verification at its
\nsite or at the Depositors site. Depositor agrees the reasonably cooperate with
\nSourceFile in the verification process by providing its facilities and computer
\nsystems and by permitting SourceFile and at least one employee of Beneficiary to
\nbe present during the verification of Source Material.<\/p>\n
12. Restriction on Access to Source Material. SourceFile shall maintain
\nthe Source Materials in a secure, environmentally safe, locked receptacle which
\nis accessible only to authorized SourceFile employees. SourceFile shall not
\ndisclose the contents of this Agreement to any third party. If SourceFile
\nreceives a subpoena or other order of a court or other judicial tribunal
\npertaining to the disclosure or release of the Source Materials, SourceFile will
\nimmediately notify Depositor. Except as required to carry out its duties
\nhereunder, SourceFile shall not permit any SourceFile employee, Beneficiary or
\nany other person access to the Source Material except as expressly provided
\nherein, unless consented to in writing by Depositor. SourceFile shall use its
\nbest efforts to avoid unauthorized access to the Source Material by its
\nemployees or any other person.<\/p>\n
27
\n 13. Bankruptcy. Depositor and Beneficiary acknowledge that this
\nAgreement is an “agreement supplementary to” the License Agreement as provided
\nin Section 365(n) of Title 11, United State Code (the “Bankruptcy Code”).
\nDepositor acknowledges that if Depositor, as a debtor in possession or a trustee
\nin Bankruptcy in a case under the Bankruptcy Code, rejects the License Agreement
\nor this Agreement, Beneficiary may elect to retain its rights under the License
\nAgreement and this Agreement as provided in Section 365(n) of the Bankruptcy
\nCode. Upon written request of Beneficiary to Depositor or the Bankruptcy
\nTrustee, Depositor or such Bankruptcy Trustee shall not interfere with the
\nrights of Beneficiary as provided in the License Agreement and this Agreement,
\nincluding the right to obtain the Source Material from SourceFile as permitted
\nhereunder.<\/p>\n
14. Notices.<\/p>\n
(i) Any notice or other communication required or permitted under
\nthis Agreement shall be in writing and shall be deemed to have been duly given
\non the date service is served personally, sent by overnight courier, or five (5)
\ndays after the date of mailing if sent registered mail, postage prepaid, return
\nreceipt required, and addressed as follows or to such other address or facsimile
\nnumber as either party may, from time to time, designate in a written notice
\ngiven in like manner:<\/p>\n
TO DEPOSITOR: Sagent Technology, Inc.
\n 2225 East Bayshore Road, Suite 100
\n Palo Alto, CA 94303
\n Phone: (415) 493-7100
\n Fax: (415) 493-1290<\/p>\n
TO SOURCEFILE: SourceFile
\n 1350 West Grand Ave.
\n Oakland, CA 94607
\n Attn.: Client Services
\n Phone: (510) 419-3888
\n Fax: (510) 419-3875<\/p>\n
(ii) Deposit update notices and invoices will be sent to parties
\nlisted in Exhibit “D” and “E”.<\/p>\n
TO BENEFICIARY: As set forth in Exhibit “C” Schedule of Beneficiaries.<\/p>\n
15. Miscellaneous Provisions.<\/p>\n
(a) Waiver. Any term of this Agreement may be waived by the party
\nentitled to the benefits thereof, provided that any such waiver must be in
\nwriting and signed by the party against whom the enforcement of the waiver is
\nsought. No waiver of any condition, or of the breach of any provision of this
\nAgreement, in any one or more instances, shall be deemed to be a further or
\ncontinuing waiver of such condition or breach. Delay or failure to exercise any
\nright or remedy shall not be deemed the waiver of that right or remedy.<\/p>\n
(b) Modification or Amendment. Any modification or amendment of any
\nprovision of this Agreement must be in writing, signed by the parties hereto and
\ndated subsequent to the date hereof.<\/p>\n
(c) Governing Law Jurisdiction. This Agreement shall be governed by
\nand construed in accordance with the laws of the State of California. All
\ndisputes arising out of or related to this Agreement shall be subject to the
\nexclusive jurisdiction and venue of the State and Federal courts of Santa Clara
\nCounty, California.<\/p>\n
(d) Headings; Severability. The headings appearing at the beginning
\nof the sections contained in this Agreement have been inserted for
\nidentification and reference purposes only and shall not be used to determine
\nthe <\/p>\n
28<\/p>\n
construction or interpretation of this Agreement. If any provision of this
\nAgreement is held to be invalid, illegal or unenforceable, the validity,
\nlegality and enforceability of the remaining provisions shall not in any way be
\naffected or impaired thereby.<\/p>\n
(e) Further Assurances. The parties agree to perform all acts and
\nexecute all supplementary instruments or documents which may be reasonably
\nnecessary to carry out the provisions of this Agreement.<\/p>\n
(f) Entire Agreement. This Agreement, including the attachments
\nhereto, contains the entire understanding between the parties and supersedes all
\nprevious communications, representations and contracts, oral or written, between
\nthe parties, with respect to the subject matter thereof. It is agreed and
\nunderstood that this document and agreement shall be the whole and only
\nagreement between the parties hereto with regard to these escrow instructions
\nand the obligations of SourceFile herein in connection with this Agreement, and
\nshall supersede and cancel any prior instructions. SourceFile is specifically
\ndirected to follow these instructions only and SourceFile shall have no
\nresponsibility to follow the terms of any prior agreements or oral
\nunderstandings.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement as
\nof the date first above written.<\/p>\n
DEPOSITOR SOURCEFILE<\/p>\n
Sagent Technology, Inc. FileSafe, Inc.,
\na California corporation a California corporation<\/p>\n
By: By:
\n —————————- ————————-
\nName: Ken Gardner Name:
\n ————————
\nTitle: Chief Executive Officer Title:
\n ———————–<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6802,8746],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9619],"class_list":["post-42954","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-automatic-data-processing-inc","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\/42954","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=42954"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42954"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42954"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}