International Reseller Agreement

Confidential Materials omitted and filed separately with the

Securities and Exchange Commission. Asterisks denote omissions.



Exhibit 10.8

------------



INTERNATIONAL RESELLER AGREEMENT



This International Reseller Agreement ("Agreement") dated as of July 31, 1998 (the "Effective Date"), is by and between Engage Technologies, Inc., with offices at 100 Brickstone Square, Andover, Massachusetts, U.S.A. 01810 ("Engage") and Engage Technologies Japan, Inc., with offices at Hitotsubashi 1- 2-2, Chiyoda-ku, Tokyo, Japan 100-8601, formerly known as Sumisho Mineral Resources Development Co., Ltd. ("Reseller").



WHEREAS, Reseller is a joint venture in which Sumitomo Corporation ("SC") will hold a 51% ownership interest and Engage will hold a 49% ownership interest formed for purposes of pursuing business opportunities in the territory of Japan through distribution and commercialization of certain Engage products in accordance with the Letter of Intent executed by the parties dated on or about June 18, 1998.



NOW, THEREFORE, for and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



1. Definitions.

-----------



"End User" means any person or entity in the Territory that uses a Product

-------- solely for its own internal purposes within the Territory and does not further distribute, resell, license, sublicense, use as a Service Bureau, or otherwise convey to any other person or entity the Product, in whole or in part, or any rights in the Product.



"End User License" means an end user license substantially similar to

---------------- Engage's End User License as modified by the terms of this Agreement, as such Engage's End User License may be modified by Engage from time to time, that accompanies a Product and grants an End User a limited right to use the Product,. Engage's current forms of End User License are attached hereto as Exhibit A. - ----------



"Pilot Program License" means a pilot program license substantially similar

--------------------- to Engage's Pilot Program License as modified by the terms of this Agreement, as such Engage's Pilot Program License may be modified by Engage from time to time, that accompanies a Product and grants a prospective End User a limited right to use the





Product for a limited period of time solely for trial or evaluation purposes. Engage's current form of Pilot Program License is attached hereto as Exhibit B.

----------



"Maintenance Services Agreement" has the meaning set forth in Section

------------------------------ 2.4.6.



"Marks" has the meaning set forth in Section 6.

-----



"Products" shall have the meaning as defined in the Shareholders Agreement.

--------



"Service Bureau" means a person or entity that uses a Product for the

-------------- benefit of third parties where such person or entity receives in return anything of value.



"Shareholders Agreement" means the Shareholders Agreement in relation to

---------------------- the Reseller of even date herewith between Engage and SC.



"Territory" means Japan.

---------



"Territory List Price" means Engage's retail price list for Products

-------------------- localized for the Territory.



"Update" means any (i) update, version, release, revision code, patch, bug

------ fix or modified form of a Product that Engage will make available at no additional charge to licensees of a Product pursuant to this Agreement or any other agreement between Engage and Reseller or SC in relation to maintenance services or otherwise, and (ii) versions of the Products localized for the Territory pursuant to the Maintenance Services Agreement, the Shareholders Agreement or any other agreement between Engage and Reseller or SC.



"U.S. List Price" means Engage's North America retail price list for the

--------------- Products.



"WarrantyDefect" has the meaning set forth in Section 2.4.7.

--------------



"WarrantyPeriod" has the meaning set forth in Section 2.4.7.

--------------



2. Distribution of Products.

------------------------



2.1 Grant of Rights. Subject to the terms of this Agreement, Engage

--------------- grants Reseller an exclusive non-transferable right (except as provided in Clause 22.2 of the Shareholders Agreement), with the right to grant sublicenses as provided in Section 2.2, solely in the Territory to: (i) market, distribute and sell licenses to use the Products directly to End Users; (ii) sell prospective End Users Pilot Program Licenses to use the Products; (iii) use the Products internally solely at Reseller's principal sales office for purposes of (a) providing maintenance and support services, and (b) demonstrating the





operation and capabilities of the Products to prospective End Users and subdistributors; (iv) make a reasonable number of copies of the Products solely for purposes of internal back-up; and (v) use the Marks, as permitted in Section 6, for purposes of marketing, distributing and selling licenses to use the Products. Reseller shall not authorize or appoint any third party as a subdistributor or other sales agent with respect to the Products except as in accordance with Section 2.2.



2.2 Subdistributors. With the prior written consent of Engage (which

--------------- shall not be unreasonably withheld), Reseller may sublicense its rights under Section 2.1 to subdistributors to further the objectives set forth in this Agreement; provided that each such subdistributor agrees to perform the duties set forth in this Agreement listed below. Reseller shall notify Engage in writing of its intention to appoint any such subdistributor and the subdistributor's proposed territory, and provide with such notification a full description of the proposed appointee, including without limitation a description of its existing territory, facilities, management, sales and marketing personnel, clientele, product lines, including products which might be competitive with the Products, financial resources, reputation in the marketplace, and any other factors relevant to the capability of such appointee to effectively market and service the Products in the Territory. Reseller shall execute an agreement with each subdistributor under which the subdistributor is obligated to comply with the provisions set forth in this Agreement to the extent applicable, including without limitation those set forth in Sections 2.3, 2.4, 5, 6, 7, 9.1, 10.2 and 11-13. In addition, such agreement shall provide that (i) termination or expiration of this Agreement shall automatically terminate such agreement, and (ii) each subdistributor shall provide Reseller with the records and right of inspection set forth in Section 4.4. Reseller shall at all times during the term of this Agreement use best efforts to ensure that each subdistributor complies with the terms of said agreement. If Reseller becomes aware of any violation of the agreement, it will immediately notify Engage, and Reseller shall take all reasonable steps as directed by Engage to stop such violation and/or terminate such agreement. Reseller shall remain primarily responsible to Engage for all of its subdistributors' activities. All ordering of Products from Engage shall be made by Reseller only pursuant to Section 3. Notwithstanding anything in this Agreement to the contrary, no subdistributor shall have the right to grant sublicenses with respect to the rights in Section 2.1.



2.3 Restrictions. Reseller will not (and will not allow any third party

------------ to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of a Product, (ii) modify, translate, or otherwise create "Derivative Works" (as defined at 17 U.S.C. Section 101) of a Product, (iii) incorporate or embed a Product, in whole or in part, into another product or other computer software code, (iv) reproduce or otherwise manufacture a Product, (v) provide, lease, lend, or use a Product for timesharing or Service Bureau purposes, (vi) allow the removal, alteration, covering or obscuring of any copyright notice or any other notice or mark that appears on a Product, on any copies, or any media, or (vii) copy a Product, except as expressly





permitted herein. Reseller shall not solicit or accept any order for Products from a person or entity located outside of the Territory. Reseller shall be fully responsible for the actions of each of its employees and independent contractors with respect to the proper use and protection of the Products. All rights not expressly granted to Reseller herein are reserved by Engage. There are no implied rights.



2.4 Reseller's Duties.

-----------------



2.4.1 Marketing Efforts. Reseller shall use its best efforts to

----------------- promote the distribution and use of the Products solely in the Territory. Reseller shall have full freedom to establish the price for the Products.



2.4.2 Organization. Reseller shall maintain a sales organization of

------------ sufficient size and qualifications to promote the sale of the Products throughout the Territory.



2.4.3 End User Licenses. Reseller shall not distribute a Product

----------------- unless the recipient of the Product has signed and delivered to Reseller an End User License (for Products distributed pursuant to Section 2.1(i)) or a Pilot Program License (for Products distributed pursuant to Section 2.1(ii)). Reseller shall sell, price and enforce licenses to use the Products in accordance with any restrictions set forth in the applicable End User License with respect to the permitted number of seats, users, transactions, domain names or other specified parameters.



2.4.4 Enforcement of Licenses. Reseller shall use its best efforts

----------------------- to enforce the terms of the End User License or Pilot Program License accompanying the Products and inform Engage of any breach of such terms of which Reseller becomes aware. Reseller shall not make any representations, warranties, or other statements regarding the Product to any third party other than those contained in the documentation supplied by Engage with the Product.



2.4.5 Marketing Materials. Reseller shall submit to Engage for

------------------- review any advertising, promotional or instructional materials relating to the Products (other than materials supplied by Engage) including translations of Engage-provided materials, and shall not publish or distribute any such materials without Engage's prior written approval. Reseller further agrees that Engage shall own all rights to and interests in any translation of Engage- supplied materials and shall undertake any necessary action to perfect such rights and interests. All such materials shall remain the sole and exclusive property of Engage.



2.4.6 Installation and Maintenance Services. Reseller shall be

------------------------------------- solely responsible for providing maintenance and support services to its End Users and subdistributors, except as otherwise agreed upon between Engage and Reseller or SC.





Engage shall have no obligation under this Agreement to provide Reseller or its End Users any maintenance or support services. Reseller may elect to purchase maintenance and support services from Engage pursuant to a separate maintenance services agreement (the "Maintenance Services Agreement"); in such event, Engage shall be responsible for providing such services only to Reseller pursuant to the terms and conditions of such agreement. For avoidance of doubt, the foregoing shall not prejudice Engage's obligation to provide the warranty obligations in relation to the Products as set forth in Section 2.4.7.



2.4.7 Warranty Services. Reseller shall evaluate and process all

----------------- warranty claims of End Users during the "Warranty Period" (one hundred twenty (120) days from the date of delivery of the Products to the End User). Reseller shall use its commercially reasonable best efforts to determine whether problems with the Products are due to (i) user or operational error, (ii) a defect in the Product media, or (iii) a Product Error or other failure to meet the warranties set out in Section 11.1 (such Errors and failures are defined herein as "Warranty Defects"). Reseller shall use its commercially reasonable best efforts to resolve with End Users all user and operational errors. If problems are attributable to defective media, Engage shall, as soon as practicable, supply replacement Products at no cost to Reseller. If Reseller believes that user problems are due to Warranty Defects, it shall promptly report this fact to Engage and Engage shall make its best endeavors to remedy such Warranty Defects pursuant to Section 2.5.2 and Section 11.1.



2.4.8 Governmental Registrations, Import Permit, Taxes and Duties.

----------------------------------------------------------- Reseller shall be responsible, at its own expense, for obtaining all (i) governmental registrations in the Territory required for the performance of this Agreement (and shall provide translated copies of related documents to Engage), and (ii) necessary export and import permits and certificates. Reseller shall pay any and all taxes and duties imposed on the delivery of the Products.



2.4.9 Leads. Reseller agrees to advise Engage promptly of any

----- license leads or potential customers for the license of the Products outside of the Territory.



2.4.10 Competitive Products. Reseller shall not, except with

-------------------- Engage's prior written consent, either directly or indirectly through a third party, promote, market, sell, distribute, support or maintain any software reasonably deemed by Engage to be similar to and competitive with a Product.



2.5 Engage Duties.

-------------



2.5.1 Warranty Support. Engage shall make its best endeavors to

---------------- remedy any Warranty Defects reported to it during the Warranty Period, and to supply




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