Premium International Distribution Agreement

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PREMIUM
INTERNATIONAL DISTRIBUTION AGREEMENT


This Agreement ("Agreement") is made this 24th of March, 2004 ("Effective Date") between GUPTA TECHNOLOGIES, LLC, a Delaware limited liability company with offices at 975 Island Drive, Redwood Shores, California, 94065, USA ("GUPTA"), and XTURA BV, an entity formed under the laws of the Netherlands with offices at Waldeck Pyrmontlaan 26, 3743 DE Baan, the Netherlands (tel: +31-35-5436762; fax: +31-35-5436763) ("DISTRIBUTOR") and is as follows:


1. APPOINTMENT


1.1. APPOINTMENT AS DISTRIBUTOR.


1.1.1. APPOINTMENT.


GUPTA hereby appoints DISTRIBUTOR as an authorized distributor of GUPTA's commercially available software (the "Products"), Gupta License Services ("GLS") and other services (such GLS and other authorized services to be the "Services") in the territory specified in Exhibit A ("Territory"), as further described herein. DISTRIBUTOR hereby accepts such appointment. DISTRIBUTOR's appointment means that GUPTA has granted DISTRIBUTOR the non-exclusive and non-transferable right to (a) authorize third party resellers ("VARs") to market and distribute one or more of the Products in object code form only, and sell the Services, in accordance with this Agreement, to end users ("End Users") for their internal business use in the Territory; (b) operate a GUPTA authorized technical support ("ASC") center in accordance with the Authorized Support Center Addendum, if included, and (c) operate a GUPTA authorized training ("ATC") center in accordance with the Authorized Training Center Addendum, if included. DISTRIBUTOR shall prohibit VARs from soliciting End Users outside of the Territory; provided, however, if the Territory is a member state of the European Community ("EC") then VAR may fill any unsolicited order for Products and Services received from an End User within any member state of the EC. Under no circumstances shall VAR be permitted to fill any order for the Products and Services from outside the EC. DISTRIBUTOR shall not distribute the Products and Services to End Users unless authorized in writing by GUPTA.


1.1.2 ACTIVITIES BY GUPTA.


DISTRIBUTOR's appointment hereunder is non-exclusive as to all persons, including GUPTA, its affiliates, and their respective licensors, distributors and agents, and such parties may, directly or indirectly, sell, license, or otherwise make the Products and Services available within the Territory. Unless otherwise expressly agreed to in writing, no compensation shall be payable to DISTRIBUTOR with respect to any such transactions.


1.2. ENROLLMENT FEE.


Upon execution of this Agreement, DISTRIBUTOR shall pay to GUPTA a nonrefundable fee (the "Enrollment Fee") in the amount specified on Exhibit A. The Enrollment Fee covers the cost of training, unlimited internal use of the Products solely for purposes related to this Agreement and external usage for demonstration purposes related to this Agreement.


1.3. QUALIFIED EMPLOYEES; TRAINING.


DISTRIBUTOR shall at all times employ at least one person who has successfully completed GUPTA's reseller training program and at least one person to fulfill the obligation to provide Services pursuant to Exhibit C. Training will be held at GUPTA's offices in Redwood Shores, California or as specified otherwise. GUPTA will supply classroom materials. DISTRIBUTOR shall bear all costs of attending the training sessions, including transportation, food, and lodging.


1.4. CROSS-LINKS ON WEBSITE.


Upon successful completion of the training program referenced in Section 1.3, GUPTA shall identify DISTRIBUTOR as a distributor on GUPTA's website and shall provide a link to DISTRIBUTOR's website that is as prominent as the links to other distributors and or resellers on GUPTA's website. DISTRIBUTOR shall at the same time identify GUPTA as a vendor on DISTRIBUTOR's website and shall provide a link to GUPTA's website that is as prominent as the links to other vendors on DISTRIBUTOR's website. The home page of the website of each party shall visibly display the required link or a single link to another page that contains the required link.


1.5. OTHER SOURCES OF REVENUE.


DISTRIBUTOR represents and warrants to GUPTA that DISTRIBUTOR does not expect more than forty percent (40%) of DISTRIBUTOR's future gross sales to derive from the resale of GUPTA Products and Services.


1.6. RELATIONSHIP OF DISTRIBUTOR TO GUPTA.


DISTRIBUTOR is an independent contractor with respect to GUPTA. DISTRIBUTOR is not a joint venture, agent, employer, or employee of GUPTA. All obligations associated with DISTRIBUTOR's business are the sole responsibility of DISTRIBUTOR. DISTRIBUTOR shall have no authority to act for or bind GUPTA in any manner not specified in this Agreement.


2. OBLIGATIONS OF DISTRIBUTOR


2.1 QUOTAS; MINIMUM REVENUE COMMITMENTS.


During each calendar year of this Agreement, DISTRIBUTOR shall, through the activities of its VARs, achieve each of the applicable Minimum Revenue Commitments specified in Exhibit A. If at any time during the term of this Agreement, any Minimum Revenue Commitment specified in Exhibit A is not achieved or agreed upon, GUPTA may take such action as may be permitted under this Agreement including, but not limited to, Termination as provided in Section 14.


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2.2 END-USER AGREEMENTS.


DISTRIBUTOR shall and shall require that each VAR shall, ship each Product with the accompanying click-wrap or shrink-wrap license agreement ("End-User Agreement") intact. DISTRIBUTOR may not and shall require that VAR shall not modify the terms of the End-User Agreements without GUPTA's prior written consent and shall consult with GUPTA at any time DISTRIBUTOR or its VARs believes that changes to the End-User Agreements may be required to conform to local law or custom. DISTRIBUTOR shall require that End Users agree in writing to be bound by the terms of the End User Agreement prior to shipping Products to End Users in those countries where click-wrap or shrink-wrap license agreements are either not enforceable or customary. GUPTA may change the End-User Agreements at any time.


2.3 DUPLICATION.


DISTRIBUTOR may not and shall require that VARs shall not reproduce the Products or GLS releases in any form. DISTRIBUTOR shall, at its expense, deliver to VARs for the re-distribution to End Users only those copies of the Products and GLS releases that DISTRIBUTOR receives from GUPTA pursuant to the terms of this Agreement.


2.4 USE OF MARKS.


DISTRIBUTOR shall not and shall require that its VARs shall not use (i) the name "GUPTA", "Platinum", or anything deceptively similar thereto, or (ii) the name of any of GUPTA's licensors or anything deceptively similar thereto, as one of its business or corporate names; provided, however, that DISTRIBUTOR may represent itself as "An authorized distributor of GUPTA." Notwithstanding the foregoing, DISTRIBUTOR may, with GUPTA's prior review and approval and in a manner consistent with GUPTA policy in effect from time to time, use the trademarks, trade names and logos that GUPTA uses for the Products in connection with DISTRIBUTOR's activities hereunder. DISTRIBUTOR shall not affix any trademark, trade name or logo belonging or licensed to GUPTA to any non-GUPTA product.


3. APPOINTMENT OF RESELLERS


3.1 APPROVAL OF GUPTA.


Prior to DISTRIBUTOR appointing a reseller as a VAR pursuant to this Agreement, DISTRIBUTOR shall secure the approval of GUPTA of such party as a VAR. Such approval shall be subject to such criteria as GUPTA, in its sole and absolute discretion, may determine.


3.2 VAR AGREEMENT.


Prior to selling any Products or Services to End Users, VAR shall enter into such written agreement with DISTRIBUTOR as GUPTA may approve, which agreement shall (i) be subordinate to this Agreement, (ii) contain terms and conditions that are consistent with the terms of this Agreement, and (iii) notify the VAR that GUPTA is a third party beneficiary of such VAR Agreement to the extent that it relates to the GUPTA Products and Services, and VAR's activities related thereto. GUPTA may, at its discretion, require that it be a party to any agreement between VAR and DISTRIBUTOR.


3.3 TERMINATION OF VARS.


GUPTA may terminate, or may require that DISTRIBUTOR terminate, any VAR (including DISTRIBUTOR in its capacity as VAR) under the same terms and conditions as GUPTA has in its agreements with other resellers.


4. OBLIGATIONS OF GUPTA


4.1 DEMONSTRATOR/EVALUATION PRODUCTS.


During the term of this Agreement, GUPTA shall provide DISTRIBUTOR with at least one copy for each VAR of such demonstration or evaluation versions of GUPTA Products as GUPTA may release from time to time. GUPTA will not charge any additional amounts for such copies. Except as provided in Section 4.2, DISTRIBUTOR's license to use such copies shall be nonexclusive, nonassignable, nonsublicensable, and limited to the term of DISTRIBUTOR's appointment. DISTRIBUTOR's license to use demonstration or evaluation versions shall be further limited by any terms and conditions included with the copy of the software, all of which are incorporated by reference into this Agreement.


4.2 RIGHT TO DISTRIBUTE EVALUATION COPIES.


GUPTA hereby grants DISTRIBUTOR a non-exclusive, non-transferable, royalty-free, right and license to sublicense, and distribute to VARs the object code versions only of those GUPTA Products that GUPTA may designate as evaluation versions from time to time (the "Evaluation Software") for the purpose of permitting VARs to provide such Evaluation Software to End Users or potential End Users. The license granted by this Section 4.2 shall terminate upon the expiration or termination of the term of DISTRIBUTOR's appointment.


5. PROGRAM MAINTENANCE, UPGRADES, AND TECHNICAL SUPPORT WITH RESPECT TO PRODUCTS


5.1 DEFINITIONS.


For purposes of this Section 5, the terms below shall have the meanings given to them in this Section 5:


SERVICES:


"Gupta License Services" ("GLS") means GUPTA's program to furnish commercially available new major releases, minor releases, maintenance releases, updates, upgrades, and bug fixes of the Products to End Users.


TECHNICAL SUPPORT:


"First Line Support" means (a) receiving and acknowledging problems from End Users, (b) checking lists of known problems and workarounds, and (c) if the reported problem is known, giving the published answer to the End User and helping the End User implement the solution.


"Second Line Support" means (a) isolating, identifying, and reproducing an unknown problem reported by an End User, (b) researching a workaround and/or solution to the problem, (c) working with GUPTA to help develop a workaround and/or fix, and (d) dialing into an End User system to implement a complex workaround or to apply a patch.


5.2 DISTRIBUTOR'S TECHNICAL SUPPORT OBLIGATION.


For the term of this Agreement, DISTRIBUTOR shall require that its VARs take responsibility for providing First Line Support for the Products to End Users, and


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DIS TRIBUTOR shall provide Second Line Support for the Products to its VARs. GUPTA has no obligation to accept support requests directly from DISTRIBUTOR's VAR or its End Users.


5.3 GUPTA'S TECHNICAL SUPPORT OBLIGATION.


For the term of this Agreement, GUPTA shall use all commercially reasonable efforts to respond to and fix problems in the Products that a DISTRIBUTOR VAR is unable to resolve as reported by DISTRIBUTOR in accordance with Exhibit C. GUPTA may discontinue support of any version of the Products at any time after 12 months after GUPTA has released a new version of the Product. The DISTRIBUTOR shall and shall require that its VARs shall use all commercially reasonable efforts to provide to GUPTA information necessary (including, where appropriate, reproducible test cases and other diagnostic information) to diagnose and repair such problems as the DISTRIBUTOR may report to GUPTA. GUPTA shall make such repair at GUPTA's option either by (a) modifying the Product or (b) providing an updated commercial version of the Product.


5.4 DISTRIBUTION OF GLS.


For the term of this Agreement, DISTRIBUTOR may authorize its VARs to sell GLS to End Users. GUPTA shall provide VARs for the benefit of End Users with all product updates and new versions that GUPTA makes generally available, provided such VARs furnish GUPTA with a signed purchase order for GLS that identifies the End User and number of licenses required for each such End User. In no event shall product updates and new versions be distributed for any purpose other than to replace an existing End User license under GLS.


6. PAYMENTS


6.1. REGISTRATION OF OPPORTUNITIES


To be eligible to purchase Products and Services for a discount under this Agreement with respect to any particular transaction, DISTRIBUTOR or any of DISTRIBUTOR's VARs, as the case may be, must provide to GUPTA a valid purchase order before the sale using a purchase order form that GUPTA will provide to DISTRIBUTOR. DISTRIBUTOR must fill out the form completely. GUPTA may update the form from time to time.


6.2. PROCEDURE; ACCRUALS.


GUPTA shall establish reasonable procedures for processing orders for and delivering Products and Services. DISTRIBUTOR or any of DISTRIBUTOR's VARs, as the case may be, shall comply with these procedures as they are in effect from time to time. GUPTA's right to be paid for Products and Services shall accrue on the invoiced date of shipment or where the DISTRIBUTOR otherwise takes delivery of the Products.


6.3. CREDIT RISK.


DISTRIBUTOR bears all credit risk with respect to all sales of Products and Services by DISTRIBUTOR or VAR. Failure of the VAR or End-User to pay DISTRIBUTOR for Products or Services does not relieve DISTRIBUTOR of DISTRIBUTOR'S obligation to pay GUPTA for such Products and Services.


6.4. DISCOUNTS.


GUPTA shall resell Products and Services to DISTRIBUTOR at a discount from GUPTA's published list prices as the same are revised from time to time. The discount from list price will be in the amount specified on Exhibit A.


6.5. MONTHLY REPORTS.


Within fifteen (15) days after the end of each calendar month, DISTRIBUTOR shall deliver a report to GUPTA showing (i) all purchase orders received during the calendar month by all VARs engaged by DISTRIBUTOR, (ii) the names of the End Users, (iii) the total amount of fees owed to GUPTA with respect to each purchase order, and (iv) the amount remaining due. The report shall be accompanied with a purchase order from DISTRIBUTOR for the Products, GLS, and Services that were purchased by DISTRIBUTOR VARs. In addition, within fifteen (15) days of the end of each calendar quarter, DISTRIBUTOR shall submit to GUPTA the Quarterly License Report for SQLBase TE Encryption Product Export Compliance (attached hereto as Exhibit B). GUPTA may change the report content and requirements at its sole discretion.


6.6. PAYMENT.


6.6.1. BY DISTRIBUTOR.


GUPTA shall invoice DISTRIBUTOR for all Products, GLS, and Services sold to DISTRIBUTOR, DISTRIBUTOR VARs, or End Users. DISTRIBUTOR shall pay all invoices by the end of the following month of receipt of invoice. Payment shall be by wire transfer in U.S. Dollars, with the sender responsible for any fees charged by the sending bank and the recipient responsible for any fees charged by the receiving bank. DISTRIBUTOR shall make all such payments without offset.


7. PRODUCTS AND TERMS OF SALE


7.1 RIGHT TO DISCONTINUE PRODUCTS AND SERVICES.


GUPTA may discontinue the sale of any of the Products and Services from time to time on thirty (30) days prior written notice to DISTRIBUTOR. GUPTA is not obligated to offer, or to continue to offer, any Product or Services. GUPTA may discontinue offering GLS with respect to any Product upon termination of the initial term of the service agreement with respect to the Product.


7.2 TERMS AND CONDITIONS.


DISTRIBUTOR shall purchase all Products and Services from GUPTA in accordance with the terms of this Agreement. Any licenses for Products shall be in accordance with this Agreement and the form of license included with the Product documentation. To permit DISTRIBUTOR to continue to use DISTRIBUTOR's standard form of purchase order, the parties agree that terms or conditions contained in any purchase order submitted by DISTRIBUTOR shall be of no force or effect unless accepted in writing and signed by an authorized officer of GUPTA. GUPTA may require DISTRIBUTOR to submit orders through GUPTA's website using a form specified by GUPTA. DISTRIBUTOR expressly waives any requirement that GUPTA notify DISTRIBUTOR that GUPTA does not accept any terms of DISTRIBUTOR's purchase order that are in addition to, or inconsistent with, this Agreement.


7.3 TAXES.


Distributor shall be solely responsible for the collection and payment of all value-added, sales, use, property, withholding, and other taxes, duties, and assessments ("Taxes") which may be imposed upon or arise in connection with this Agreement, excluding, however, any taxes based upon GUPTA's net income. When GUPTA has a legal obligation to collect such


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taxes or duties, GUPTA will add the applicable amount to the monthly statement. DISTRIBUTOR shall pay this amount unless DISTRIBUTOR provides GUPTA with a valid exemption certificate authorized by the applicable taxation authority. If Distributor is required by law to deduct or withhold any Taxes from any sum payable hereunder, then the sum payable by DISTRIBUTOR upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after deduction of all Taxes, GUPTA receives a net amount equal to the amount GUPTA would have received in the absence of such Taxes.


7.4 PRICE INCREASES.


GUPTA may increase the list price of any Product or Services or GLS by giving at least thirty (30) days prior notice to DISTRIBUTOR. Increases shall apply to all orders received after the effective date of the increase.


7.5 PAYMENT.


Product and Service prices do not include any taxes, fees, duties, transportation costs, returnable containers, cartage, or storage unless otherwise stated. Payments to GUPTA are due at 975 Island Drive, Redwood Shores, California, 94065, USA, in United States dollars free of collection or exchange charges. Late payments are subject to a late fee of 5% of the amount owed plus interest at a rate of 1.5% per month, compounded, from the date past due.


7.6 SHIPPING EXPENSES.


All prices for Product and GLS placed with GUPTA are FOB GUPTA's point of origin, and DISTRIBUTOR shall: (i) reimburse GUPTA for any shipping expenses incurred by GUPTA, and (ii) bear the risk of loss damage or theft upon shipment by GUPTA to DISTRIBUTOR.


7.7 LOCAL CURRENCY PRICING


The Local Currency Price for Products and GLS is set at DISTRIBUTOR's discretion. Local Currency Pricing will not be more or less than GUPTA's list prices (as converted from dollars to Local Currency) without the prior approval of GUPTA. DISTRIBUTOR will notify GUPTA thirty (30) days prior to any changes in their Local Currency Price.


8. ADDITIONAL OBLIGATIONS OF DISTRIBUTOR


8.1. APPOINTMENT CONDITIONED ON SATISFACTORY PERFORMANCE.


As a material condition to the obligations of GUPTA under this Agreement and to the continued effectiveness of DISTRIBUTOR's appointment, DISTRIBUTOR shall at all times meet the performance standards set forth in this Agreement.


8.2. KNOWLEDGE OF GUPTA PRODUCTS AND SERVICES.


DISTRIBUTOR's personnel shall be sufficiently knowledgeable of the Products and Services to be able to configure and install the hardware, software, and connections for the Products. In addition, DISTRIBUTOR's personnel shall be sufficiently knowledgeable of the Products and Services to be able to demonstrate to VARs and End Users (a) all of the commonly used features of the Products and Services without resort to Product and Services documentation and (b) all of the advanced features of the Products discussed in the Product documentation after reference to such documentation.


8.3. PRODUCT AND SERVICE PROMOTION.


DISTRIBUTOR shall enthusiastically promote the goodwill, name, and reputation of GUPTA, the Products, and the Services, in connection with all of DISTRIBUTOR's activities under this Agreement. DISTRIBUTOR shall consistently recommend GUPTA Products over competing products. DISTRIBUTOR shall stay in contact with existing and potential customers on a regular basis, consistent with good business practice. DISTRIBUTOR shall solicit customer feedback on the Products and Services, including desired new products and ways to make the Products and Services more valuable to customers, and regularly convey such information to GUPTA .


8.4. DEMONSTRATION CAPABILITY.


DISTRIBUTOR shall maintain the capability to demonstrate the Products to potential VARs and End Users.


8.5. ETHICAL BUSINESS PRACTICES.


DISTRIBUTOR shall adhere to high standards of honesty, integrity, fair dealings, and ethical conduct in all of its dealings with customers, potential customers, and the general public, and shall refrain from any business or advertising practice, which may be injurious to the business or reputation of GUPTA. DISTRIBUTOR shall not make any false or misleading representations to customers or others regarding GUPTA or the Products and Services. DISTRIBUTOR shall not make any representations, warranties, or guarantees concerning the Products and Services that are inconsistent with the documentation accompanying the Products or GUPTA's literature describing the Products and Services.


8.6. INDEMNIFICATION.


DISTRIBUTOR shall defend, indemnify, and hold harmless GUPTA from any activities of DISTRIBUTOR that (a) relate to the discretion DISTRIBUTOR exercises in performing DISTRIBUTOR's obligations under this Agreement, (b) DISTRIBUTOR performs in a negligent manner, or (c) constitute a breach of this Agreement. DISTRIBUTOR shall ensure that each agreement it signs with a VAR contain a comparable indemnification for the benefit of GUPTA as the one set forth in this Section 8.6.


8.7 AUDIT RIGHTS.


DISTRIBUTOR shall and shall require that its VARs shall keep full, accurate and complete books of account and all other related records of all matters relating to this Agreement for a period of three (3) years from the end of each calendar year. GUPTA, its licensors, or their respective authorized representatives shall have the right to examine and copy such books of account and other related records at all reasonable times during such period, to verify the correctness of amounts paid to GUPTA, DISTRIBUTOR's and each VAR's compliance with, and for any other matters arising out of, this Agreement. If any such examination discloses a deficiency in any payments made by DISTRIBUTOR to GUPTA of more than three percent (3%) of such payment, DISTRIBUTOR shall reimburse GUPTA for all of the expenses connected with such examination and the next subsequent examination, in addition to the payment of the amount of any such deficiency.


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9. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY


9.1 LIMITED SERVICE WARRANTY; NO THIRD PARTY WARRANTIES.


GUPTA does not warrant that the operation of the Products will be uninterrupted or error free, and otherwise licenses the Products "AS IS." ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. As between DISTRIBUTOR and GUPTA, DISTRIBUTOR ASSUMES AND SHALL ENSURE THAT VAR ASSUMES, FULL RESPONSIBILITY for selecting Products and for ensuring that the Products selected are compatible and appropriate for use with the computers and other software with which they will be used.


9.2 NO WARRANTY FOR INTERACTION WITH USER COMPUTER.


GUPTA DOES NOT WARRANT that any Product or GLS release is FREE FROM ERROR or that it will INTERFACE WITHOUT ANY PROBLEMS with the other components of an End-User's computer system. DISTRIBUTOR or applicable VAR shall advise each End-User that it is the responsibility of the End-User to BACK UP its computer or otherwise SAVE important data BEFORE INSTALLING any Product and to continue to back-up its important data regularly.


9.3 LIMITATION ON DAMAGES.


GUPTA SHALL NOT BE LIABLE TO DISTRIBUTOR, ANY VAR, OR ANY END-USER, OR ANY THIRD PARTY FOR THE COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, OR OTHERWISE, NOTWITHSTANDING THE FAILURE OF ANY PRODUCT OR SERVICE. GUPTA is not an insurer. The purchase price of the Products do not include any undertaking by GUPTA to deliver a Product or provide a service at any particular time, even if GUPTA is aware of the consequences of late delivery or unavailability. DISTRIBUTOR shall ensure that each agreement it signs with a VAR contain a comparable limitation on GUPTA's damages as the one set forth in this Section 9.3.


10. INTELLECTUAL PROPERTY


10.1 OWNERSHIP OF INTELLECTUAL PROPERTY.


DISTRIBUTOR acknowledges that, as between GUPTA and DISTRIBUTOR, GUPTA owns or has the exclusive right to use any patents, trademarks, copyrights, trade secrets, and other intellectual property rights ("Intellectual Property") associated with the Products and Services. DISTRIBUTOR shall do nothing inconsistent with GUPTA's ownership of such Intellectual Property. All use of GUPTA's Intellectual Property by DISTRIBUTOR shall inure solely to the benefit of and shall be on solely behalf of GUPTA. DISTRIBUTOR shall not challenge GUPTA's ownership of GUPTA's trademarks, service marks, and trade names (the "Marks") or the validity of the terms of DISTRIBUTOR's use of the Marks.


10.2 NO IMPLIED RIGHTS.


Sale of the Products to DISTRIBUTOR does not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy or reproduce any of the Products.


10.3 NO REVERSE ENGINEERING.


DISTRIBUTOR shall not, and shall not help others, reverse engineer any Product or any portion of any Product. DISTRIBUTOR shall promptly notify GUPTA if DISTRIBUTOR becomes aware of any attempt to reverse engineer any Product or any portion of any Product.


10.4 QUALITY STANDARDS.


The nature and quality of all services rendered by DISTRIBUTOR in connection with the Marks, all goods sold by DISTRIBUTOR under the Marks, and all related advertising, promotional, and other related uses of the Marks by DISTRIBUTOR shall conform to the standards set by GUPTA. GUPTA shall have the sole discretion to change such standards. DISTRIBUTOR shall not use any trademark or service mark in combination with any of the Marks without prior written approval of GUPTA.


10.5 INFRINGEMENT PROCEEDINGS.


DISTRIBUTOR shall notify GUPTA of any unauthorized use of the Intellectual ...