Exclusive Distribution Agreement

EXCLUSIVE DISTRIBUTION AGREEMENT



This Exclusive Distribution Agreement ("Agreement"), effective as of the 1st day of January, 1998 (the "Effective Date"), is entered into by and between Sagent Technology, Inc., having offices at 2225 E. Bayshore Rd., Suite 100, Palo Alto, California 94303, U.S.A. ("Sagent"), and Sagent U.K. Ltd., having offices at Premier House, Forest Court, Oaklands Park, Workingham RG41 2FD, England ("Distributor").





Sagent is in the business of developing and licensing computer software. Distributor desires to market and distribute such computer software in England, and Sagent agrees to authorize Distributor to so market and distribute such computer software, pursuant to the terms and conditions set forth below.





Now, therefore, in consideration of the foregoing and the mutual covenants and conditions contained herein, the parties agree as follows:



1. DEFINITIONS



1.1 "Products" shall mean those products listed in Exhibit A attached hereto, as such products may be added to or abandoned by Sagent in Sagent's sole discretion from time to time during the term of this Agreement.



1.2 "Sagent Marks" shall mean those trademarks, tradenames and servicemarks listed in Exhibit B attached hereto, as such trademarks, tradenames and servicemarks may be added to or removed by Sagent in Sagent's sole discretion from time to time during the term of this Agreement.



1.3 Sale and Purchase of Products. All references in this Agreement to the "sale" or "selling" of Products shall mean a license to use such Products and sale of the tangible media on which the Products are distributed. All references in this Agreement to the "purchase" of Products shall mean a license to use such Products and the purchase of the tangible media on which the Products are distributed.



1.4 "Territory" shall mean the member countries of the European Union.



1.5 "Year 1" shall mean the period commencing on the Effective Date and ending on December 31, 1998.



1.6 "Year 2" shall mean the period commencing on January 1, 1999 and ending on December 31, 1999.









1.7 "Year 3" shall mean the period commencing on January 1, 2000 and ending on December 31, 2000.



2. APPOINTMENT



2.1 Appointment of Distributor. Conditioned upon Distributor's continued satisfaction of the terms and conditions of this Agreement, Sagent hereby appoints Distributor, and Distributor hereby accepts appointment, as Sagent's exclusive Distributor for the licensing and distribution of Products to customers in the Territory only for use in the Territory only. Distributor shall not reproduce or sell the Products, and Distributor shall not license or distribute the Products except as expressly set forth in this Agreement. Distributor agrees that it shall not offer for sale, sell, license or otherwise distribute Products acquired by it from any entity other than directly from Sagent without the prior written approval of Sagent.



2.2 Distribution outside the Territory. Distributor shall limit its sales activities with respect to the Products to customers located in the Territory, and shall refrain from marketing, licensing or selling the Products outside of the Territory except to the extent such activities may not be restricted under applicable law.



2.3 Appointment of Subdistributors. Distributor may appoint subdistributors to act on the Distributor's behalf only on prior written approval of Sagent; provided, however, that any compensation to such subdistributors shall be solely the Distributor's responsibility. Any agreement with such agent or subdistributor with respect to Products shall be coterminous with this Agreement.



2.4 Independent Contractor Status. The relationship of Sagent and Distributor established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Distributor shall not be considered an agent or legal representative of Sagent for any purpose, and neither Distributor nor any director, officer, agent, or employee of Distributor shall be, or be considered, an agent or employee of Sagent. Distributor is not granted and shall not exercise the right or authority to assume or create any obligation or responsibility on behalf of or in the name of Sagent. All sales and other agreements between Distributor and its customers are Distributor's sole responsibility and will have no effect on Sagent's obligations under this Agreement.



2.5 Operations and Expenses. The detailed operations of Distributor under this Agreement are subject to the sole control and management of Distributor. Distributor shall be responsible for all of its own expenses and employees. Distributor shall provide, at its own expense, such office space and facilities, and hire and train such personnel, as may be required to carry out its obligations under this Agreement. Distributor agrees that it shall incur no expense chargeable to Sagent, except as may be specifically authorized in advance in writing in each case by Sagent.



2.6 No Other Rights. Except as expressly provided in this Agreement, no right, title or









interest is granted by Sagent to Distributor. No right, title or interest is granted by Sagent to Distributor relating to products other than the Products. Notwithstanding Section 2.1 above, Sagent reserves the right to sell and distribute the Products directly to the customers that are set forth in Exhibit C attached hereto ("House Accounts").



2.7 No Conflicts. Distributor represents and warrants that, as of the Effective Date, it is not involved, directly or indirectly, in any activities involving products which compete or have the potential to compete with the Products, including but not limited to the distribution of competing product lines ("Competing Activities"). Distributor agrees that it shall not enter into any Competing Activities in the Territory during the term of this Agreement and for a period of five (5) years afterward. If Distributor becomes involved in any Competing Activities, Distributor shall promptly inform Sagent of such involvement, and Sagent shall have, in addition to all other remedies to which it may be entitled, the right to terminate this Agreement without liability at any time thereafter pursuant to Section 14.2.



3. LICENSE OF SAGENT MARKS



3.1 License. Subject to the terms and conditions of this Agreement, Sagent grants to Distributor a non-transferable, revocable license, without right of sublicense, to use the Sagent Marks in the Territory solely in connection with the sale, distribution and advertisement of the Products. Distributor shall not use the Sagent Marks except as expressly permitted herein.



3.2 Restrictions. All representations of the Sagent Marks that Distributor intends to use shall first be submitted to Sagent for approval of design, color and other details or shall be exact copies of those provided by Sagent. Distributor shall fully comply with all guidelines, if any, communicated by Sagent concerning the use of the Sagent Marks. Distributor shall not alter or remove any trademarks, servicemarks, tradenames or other marks affixed to the Products by Sagent, nor affix the Sagent Marks to any Product. Except as set forth in this Article 3, nothing contained in this Agreement shall grant or shall be deemed to grant to Distributor any right, title or interest in or to the Sagent Marks. All uses of the Sagent Marks shall inure solely to the benefit of Sagent, and Distributor shall obtain no rights with respect to any of the Sagent Marks, other than the right to distribute Products as set forth herein, and Distributor hereby irrevocably assigns to Sagent all right, title and interest held by Distributor, if any, in or to any of the Sagent Marks. At no time during or after the term of this Agreement shall Distributor challenge or assist others in challenging the Sagent Marks (except to the extent expressly entitled by applicable law) or the registration thereof or attempt to register any trademarks, servicemarks, marks or trade names confusingly similar to the Sagent Marks. Upon any termination or expiration of this Agreement, or the election of Sagent pursuant to Section 4.2 below, Distributor shall immediately cease to use any and all of the Sagent Marks, and any listing by Distributor of any Sagent Mark in any telephone book, directory, public record or elsewhere shall be removed by Distributor as soon as possible, but in any event not later than the subsequent issue of such publication.



3.3 Infringement. Distributor shall promptly notify Sagent of any actual or suspected infringements, imitations, or unauthorized use of the Sagent Marks by third parties of which









Distributor becomes aware. Sagent shall have the sole right, at its expense, to bring any action on account of any such infringements, imitations or unauthorized use, and Distributor shall cooperate with Sagent, as Sagent may reasonably request, in connection with any such action brought by Sagent. Sagent shall retain any and all damages, settlement and/or compensation paid in connection with any such action brought by Sagent.



3.4 Registered User Agreements. Sagent and Distributor shall enter into registered user agreements with respect to the Sagent Marks pursuant to applicable trademark law requirements in the Territory, if any. Distributor or Sagent, at Sagent's sole discretion, shall be responsible for proper filing of registered user agreements and all such other required registrations relating to the legal protection of the Sagent Marks with governmental authorities in the Territory and shall pay all costs or fees associated with such filing(s).



4. OBLIGATIONS OF DISTRIBUTOR



4.1 Diligence. Distributor shall use its best efforts to promote the marketing and distribution of the Products.



4.2 Minimum Revenue Requirements. In the event Distributor fails to meet the minimum revenue requirements set forth in Exhibit E attached hereto, then, notwithstanding anything in this Agreement to the contrary, and at Sagent's election and not obligation, (i) Sagent shall be free to appoint other distributors for its Products in the Territory, (ii) Distributor shall not have any exclusive sale, marketing or distribution rights to the Products, (iii) the license grant of Article 3 to the Sagent Marks shall terminate, and (iv) notwithstanding anything to the contrary in Section 5.1 below, the Prices paid by Distributor for the Products shall be equal to [*] percent ([*]) of the applicable List Prices.



4.3 Minimum Revenue Guarantee. Distributor hereby guarantees that the aggregate amount of payments received by Sagent from Distributor under this Agreement during each of Year 1, Year 2 and Year 3 shall equal or exceed the amounts of [*] dollars ([*]), [*] dollars ([*]) and [*] dollars ([*]), respectively (the "Guaranteed Minimums"). Within thirty (30) days after the end of each of Year 1, Year 2 and Year 3, Distributor shall pay Sagent the difference between the applicable Guaranteed Minimum and the actual aggregate amount of payments received by Sagent from Distributor under this Agreement during such Year 1, Year 2 or Year 3, respectively, if such actual aggregate amount is less than the applicable Guaranteed Minimum.



4.4 Costs and Expenses. Except as expressly set forth herein, Distributor shall be solely responsible for all costs and expenses related to the advertising, marketing, promotion, and distribution of the Products and for performing its obligations hereunder.



4.5 Promotional Materials. Distributor shall maintain an adequate inventory of Sagent's current sales materials and samples ("Sales Materials") and shall use such Sales Materials in an efficient and effective manner to promote the sale of the Products in the Territory.









* Certain information on this page has been omitted and filed separately with

the Commission. Confidential treatment has been requested with respect to the

omitted portions.

4.6 Reports.



4.6.1 Annual Financial Reports. Distributor shall provide to Sagent annual audited financial reports, which reports shall (i) be provided to Sagent no later than two (2) months after the close of Distributor's applicable fiscal year, and (ii) be treated as Confidential Information pursuant to the terms of Article 11 below.



4.6.2 General Market Information. Distributor shall provide to Sagent information regarding general market conditions and competitors on a regular basis, but no less than once per calendar quarter.



4.6.3 Sales Activities. Within thirty (30) days after the end of each calendar quarter, Distributor shall send to Sagent a sales activities report including the names of customers, quantities of Products purchased, dollar amounts invoiced to and received from such customers, and customer backlog and inventory status of Products, and further shall maintain records of the same.



4.7 Relations with Customers. Distributor shall process and ship each customer order in a timely fashion. Distributor shall provide to customers any and all instructions, precautions, and other warnings provided by Sagent to Distributor; and Sagent shall provide to Distributor any such instructions, precautions, and other warnings as Sagent in its sole discretion deems necessary or desirable.



4.8 Product Representations. Distributor shall not to make any representations with respect to the Products other than those expressly authorized in writing in Sagent's written data sheets.



4.9 Indemnification. Distributor agrees to indemnify and hold Sagent, its officers, directors, employees, successors, and assigns harmless from and against any and all losses, damages or expenses of whatever form or nature, including attorneys' fees and other costs of legal defense, whether direct or indirect, that they, or any of them, may sustain or incur as a result of any acts or omissions of Distributor or any of its directors, officers, employees, or agents, including but not limited to (i) breach of any of the provisions of this Agreement, (ii) negligence or other tortious conduct, (iii) representations or statements not specifically authorized by Sagent herein or otherwise in writing, or (iv) violation by Distributor (or any of its directors, officers, employees, or agents) of any applicable law, regulation, or order in or of the Territory or the United States.









5. PRODUCTS



5.1 Product Prices. The prices to be paid by Distributor to Sagent for Products hereunder shall be List Prices for the Products less the discount(s) set forth in Exhibit D attached hereto ("Prices"). "List Prices" as used herein shall mean the prices set forth in Sagent's then-current customer price schedules or bulletins. Prices shall be F.O.B. Sagent's facilities in Palo Alto, California, United States. All prices are expressed and shall be payable in U.S. dollars. The difference between List Prices and Prices shall be Distributor's sole remuneration from Sagent for the distribution and sale of Products hereunder.



5.2 Price Changes. List Prices are subject to change by Sagent in its sole discretion upon advance written notice of at least sixty (60) days. List Price changes shall be effective immediately after such sixty (60) days notice period and applicable to all purchase orders whether or not accepted prior to the effective date of the List Price change.



5.3 Product Changes. Sagent reserves the right from time to time in its sole discretion, without incurring any liability to Distributor with respect to any previously placed Purchase Order (as defined in Section 6.1 below), to discontinue or to limit its production of any Product; to allocate, terminate or limit deliveries of any Product in time of shortage; to alter the design or construction of any Product; to add new and additional products to the Products; and upon reasonable notice to Distributor, to change its sales and distribution policies, not inconsistent with the terms of this Agreement.



5.4 Discontinued Product. In the event Sagent discontinues sale of any Product, it shall give Distributor prompt notice thereof. Within sixty (60) days following the date of such discontinuation notice, Distributor may elect to return for credit against future purchases hereunder any of the discontinued Products (including samples) purchased by Distributor during the three (3) months prior to the date of such notice which have not been used or sold and which are in Distributor's inventory as of the date of that notice from Sagent.



6. PURCHASER ORDERS



6.1 Purchase Orders. All orders for Products submitted by Distributor shall be initiated by written purchase order in form acceptable to Sagent (each a "Purchase Order"); provided, however, that an order may initially be placed orally or by fax if a confirmational Purchase Order is received by Sagent within five (5) days of said oral or fax order. All Purchase Orders for Products are subject to acceptance by Sagent in writing, and Sagent shall have no liability to Distributor with respect to Purchase Orders that are not accepted. No partial acceptanc ...