International Distributor Agreement

EXHIBIT 10.14


INTERNATIONAL DISTRIBUTOR AGREEMENT


THIS INTERNATIONAL DISTRIBUTOR AGREEMENT (the "Agreement") is entered into as of August 22, 1996 ("Effective Date") by and between Top Tier Israel (1992) Ltd., a corporation duly organized and existing under the laws of Israel, with its principal office located at 4 Hacharoshet Street, Ra'anana, Israel, and TopTier Software, Inc. a corporation duly organized and existing under law of Delaware, with its principal office located at 6203 San Ignacio Avenue, Suite 101, San Jose, California 95119 ("Distributor").


IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:


1. DEFINITIONS


1.1 "SOFTWARE" shall mean the most current version of each of Top Tier
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Israel's software products listed in Exhibit A attached hereto in
an object code copy or copies, together with a copy or copies of
any user manual or other documentation.


1.2 "DISTRIBUTOR CUSTOMER" shall mean any third party which acquires a
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license to (i)Use the Software for its own processing needs ("End-User")
(ii)Resell the Software to End-Users ("Reseller") (iii) incorporate the
Software within its own hardware or software systems for distribution or
resale ("OEM/ISV").


1.3 "TERRITORY" shall mean the United States and North America on an
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exclusive basis and the Rest of World (ROW) on a non-exclusive
basis.


1.4 All references in this Agreement to the "sale" of or "selling"
Software or Software Copies shall mean the granting of a LICENSE to use
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such Software of Software Copies. All references in this Agreement to the
"purchase" of Software or Software Copies shall mean the obtaining of a
LICENSE to use such Software or Software Copy.
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2. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR
---------------------------------------- 2.1 APPOINTMENT. Subject to the terms and conditions set forth herein, Top
----------- Tier Israel hereby appoints Distributor as the exclusive distributor of the Software in the U.S. and North American Territory, and Distributor hereby accepts such appointment. TopTier also appoints Distributor as a non-exclusive distributor for the Rest of the World and Distributor hereby accepts such appointment. Distributor shall have the rights (i) to obtain Software from Top Tier Israel and to market and distribute such Software within the Territory for delivery to Distributor Customers in the Territory (ii) to appoint resellers and sub-distributors to market and distribute the Software within the Territory( iii) to negotiate and contract agreements with OEM/ISV customers. Top Tier Israel retains full rights to appoint other distributors in that part of the Territory defined as Rest of the World. The Distributor acknowledges and agrees that sales made by Distributor shall only be made to Distributor Customers who agree to be bound contractually to Distributor under terms and conditions consistent with, and reflecting, this Agreement.


2.2 TERRITORIAL RESPONSIBILITY. Distributor shall use its best efforts
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to promote vigorously the marketing and distribution of the
Software to realize the maximum sales potential for the Software
in the Territory. Distributor shall be solely responsible for
advertising, marketing, promoting and distributing the Software in
the Territory. In consideration for its appointment, Distributor
agrees not to market and distribute within the Territory any
software products from other vendors (including Distributor's)
which, in Top Tier Israel's opinion, compete with Top Tier Israel
software products without Top Tier Israel's prior written consent.


2.3 MINIMUM GUARANTEED PAYMENTS BY DISTRIBUTOR
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Distributor undertakes to provide TopTier Israel with minimum
annual guaranteed payments, as advance payments to be reconciled
against the proceeds of TopTier Israel's sales to Distributor,
according to the monthly schedule in Exhibit B., as amended from
time to time by mutual agreement of the parties. Proceeds of
TopTier Israel's sales to Distributor will be reconciled against
the advances, on a periodic basis mutually agreeable to the
parties, but no less often than once every quarter. Failure by
Distributor to provide the minimum guaranteed revenues on a
monthly basis constitutes a breach of this agreement, which will
enable TopTier Israel to terminate the agreement for cause.


2.4 PAYMENTS
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Distributor shall make monthly payments as specified in Exhibit B,
by wire transfer, to TopTier Israel's bank. The cost of wire
transfer will be borne by Distributor.


3. SOFTWARE DISTRIBUTION
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3.1 DISTRIBUTOR CUSTOMERS' LICENSE. Prior to providing any Distributor
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Customer with Software, Distributor shall insure that the license
of such Software contains appropriate terms and conditions set
forth in a Software License Agreement which has been mutually
agreed upon by the parties and which shall be executed by the
Distributor Customer.


3.2 DISTRIBUTOR COPIES. Distributor shall have the right to order a
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reasonable number of Software copies, marked not for resale, or
marked For Evaluation Only, to be used for demonstration purposes
by Distributor or for evaluation purposes by potential Distributor
Customers ("Distributor Copies") provided Distributor shall pay to
Top Tier Israel the then current charges for any such Distributor
Copies (including shipping charges) set forth in Top Tier Israel's
International Price List and provided that the right to use such
Distributor Copies will be governed by the terms of a license
agreement approved and accepted by Top Tier Israel. Distributor
shall maintain records of the Distributor Copies' recipients and
shall provide said records to TopTier Israel at quarterly
intervals.


3.3 TITLE TO SOFTWARE AND RELATED MATTERS. Title to the Software
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(including the user manual, diskette and software contained
therein and all translations thereof) shall remain with Top Tier
Israel. Distributor shall not (and shall require that its


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Customers do not) remove, alter, cover or obfuscate any copyright
notices or other proprietary rights notices placed or embedded by
Top Tier Israel on or in any Software. Distributor shall not
provide services to others for the purpose of any such
modification, alteration, reverse engineering, disassembly or
decompilation. Distributor shall not, and shall not authorize any
third party to, modify, alter, reverse engineer, disassemble or
decompile the Software without the prior approval of Top Tier
Israel.


3.4 RECORDS AND AUDIT RIGHTS. Distributor agrees to make, and to
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maintain until three (3) years after the last payment under this
Agreement is due and paid, complete books, records and accounts
with respect to Distributor's distribution of and payment for
Software hereunder. Such records shall include number of units
shipped by product and platform, customer information, date of
shipment, copies of purchase orders and invoices and support
contract information. Top Tier Israel shall have the right to
audit such books and records for purposes of verification of the
sales and inventory information with respect to the Software. Any
such audit shall be conducted by Top Tier Israel or its
representatives during normal business hours, and Distributor
shall cooperate fully with Top Tier Israel or its representatives
in any such audit. Any underpayment shall be payable immediately.


4. TERMS OF PURCHASE OF SOFTWARE COPIES BY DISTRIBUTOR
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4.1 PRICES. All prices are F.O.B. Top Tier Israel facility. ("F.O.B.
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Point"). The Price to Distributor for the Software shall be equal
to 80% of Distributor's license fee charged to its customers. The
difference between Distributor's fee to TopTier Israel and
Distributor's price to its customers shall be Distributor's sole
remuneration for distribution of the Software Copies. Top Tier
Israel has the right at any time to revise its prices charged to
Distributor.


4.2 TAXES. Amounts payable to Top Tier Israel under this Agreement are
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payable to Top Tier Israel generally without deduction for taxes,
(including any sales, use, excise, ad valorem, property, value
added tax, or other tax), tariff, duty or assessment levied or
imposed by any government authority (including without limitation
any country, state, city, county, province, department, or other
subdivision of the national government). Distributor shall pay all
such taxes and customs duties payable with respect to the sale and
purchase of Software Copies under this Agreement. When Top Tier
Israel has the legal obligation (independent of this Agreement) to
collect such taxes, the appropriate amount shall be added to
Distributor's invoice and paid by Distributor unless Distributor
provides Top Tier Israel with a valid tax exemption certificate
authorized by the appropriate taxing authority. Distributor shall
cooperate with Top Tier Israel and shall provide Top Tier Israel
with certificates or receipts issued by the appropriate taxing
authority. Distributor's tax records relating to any tax for which
Top Tier Israel has any legal liability in the Territory shall
also be considered "accounting records" under Section 3.4 and
subject to audit by Top Tier Israel. Amounts payable to Top Tier
Israel under this agreement are however net of


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income tax withheld at source, if any, that may be applicable to
the purchase of the Software Copies.


4.3 TERMS AND CONDITIONS. All orders for Software by Distributor for
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distribution to End-Users shall be initiated by Distributor's
issuance of written purchase orders sent to Top Tier Israel (via
mail, telecopier, or telefax). Any order sent by mail, telecopier
or telefax shall be deemed signed by the Distributor as if an
original signed document were delivered to Top Tier Israel
regardless whether any such document is confirmed in writing by
mail, hand delivery or other original signed document. Such orders
shall state unit quantities, until descriptions, requested
delivery dates, and shipping instructions. Top Tier Israel may
accept or reject any order in whole or part, in its discretion.
This Agreement shall govern all orders of Software by Distributor.
No terms on purchase orders, invoices or like documents by
Distributor shall serve to alter or add to the terms of this
Agreement. Shipment will be F.O.B. Top Tier Israel's distribution
facility and all freight, insurance and other shipping expenses,
as well as any special packing expenses, shall be borne by
Distributor.


4.4 PAYMENT. Top Tier Israel shall submit an invoice to Distributor
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either upon each shipment of Software ordered by Distributor or on
another regular basis mutually agreed to by Top Tier Israel and
the Distributor. The invoice shall cover Distributor's fees for
the Software in a given shipment plus any freight, taxes and other
applicable costs initially paid by Top Tier Israel but to be borne
by Distributor. TopTier Israel's invoices to Distributor will be
reconciled against Distributor's advance payments to TopTier
Israel on a periodic basis, but no less frequently than once every
calendar quarter, at a mutually convenient date. After the
reconciliation, any excess amounts owed to TopTier Israel by
Distributor will be paid within 30 days of the date of
reconciliation of accounts. Distributor shall pay TopTier Israel
in U.S. dollars by wire of available funds to an account
designated by Top Tier Israel or as otherwise instructed by Top
Tier Israel. Distributor shall pay all of Top Tier Israel's costs
and expenses (including reasonable attorneys' fees) to enforce and
preserve Top Tier Israel's payment rights under this Section 4.4.


4.5 SHIPPING. All Software delivered pursuant to the terms of this
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Agreement shall be suitably packed for shipment in Top Tier
Israel's standard shipping cartons, marked for shipment at
Distributor's address set forth above, and delivered to
Distributor or its carrier agent at the F.O.B. Point, at which
time risk of loss shall pass to Distributor. Unless otherwise
instructed in writing by Distributor, Top Tier Israel shall select
the carrier. Distributor agrees to undertake all import
formalities required to import the Software Copies into the
Territory, and to bear full expense of all custom duties, freight,
insurance, and other shipping expenses, as well as any special
packing expense.


4.6 ACCEPTANCE. Distributor shall inspect all Software promptly upon
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receipt thereof and may reject any item that contains any
significant reproducible defects which render such Software unfit
for distribution to Distributor Customers, subject to return
procedures agreed upon by the parties. To reject a Software copy
Distributor


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shall within ten (10) days of receipt of such Software copy notify
Top Tier Israel of its rejection and of the defect which has
rendered the copy unfit for distribution. TopTier Israel will
replace the defective Software copy at its earliest opportunity
and instruct Distributor as to the required disposition of
rejected Software copy or copies, including at TopTier Israel's
discretion, authorized destruction or return for inspection.
Distributor shall maintain detailed records of rejected software
copies, including ultimate disposition upon instructions by
TopTier Israel.


5. MAINTENANCE AND SUPPORT
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5.1 CUSTOMER SUPPORT. Distributor agrees that Distributor is
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responsible for supporting all Software it distributes, directly
or through resellers, to Distributor Customers. TopTier Israel
will provide maintenance and warranty support as detailed in
Sections 5.2 and 5.3 and assistance and customer support to the
extent requested by Distributor in exchange for 80% of all fees
charged by Distributor to its Distributor Customers for service,
warranty or maintenance agreements. TopTier Israel will receive no
other compensation from Distributor for these support services.
Distributor shall also maintain on-site staff support personnel
sufficiently knowledgeable with respect to the Software to answer
customer questions regarding the use and operation of Software
marketed by Distributor. TopTier Israel shall provide Distributor
with the support and technical assistance set forth in Sections
5.2, 5.3 and 7.1 below.


5.2 ADDITIONAL SUPPORT/MAINTENANCE. Top Tier Israel will provide to
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Distributor all error corrections and updates to the Softwar ...