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Exhibit 10.57
[GUPTA LOGO]
PREMIUM
INTERNATIONAL DISTRIBUTION AGREEMENT
This Agreement ("Agreement") is made this
1st day of March, 2005 ("Effective
Date") between GUPTA TECHNOLOGIES, LLC, a
Delaware limited liability company
with corporate offices at 975 Island Drive,
Redwood Shores, California 94065,
USA ("GUPTA"), and SCIENTIFIC COMPUTERS
SARL, an entity formed under the laws of
France with offices at 11, Quai Conti,
F-78430 Louveciennes, France
("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 and
training pursuant to Exhibits C and D.
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.
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____
GUPTA____
GUPTA PREMIUM International Distribution Agreement
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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 DISTRIBUTOR 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.
DISTRIBUTOR____
GUPTA____
GUPTA PREMIUM
International Distribution Agreement
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GUPTA may discontinue support of any
version of the Products at any time after
12 (twelve) 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 15 (fifteen) 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 15
(fifteen) 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
net 45 (forty-five) days from GUPTA's
invoice date, unless alternate payment
arrangements are made. 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 30 (thirty) 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 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.
DISTRIBUTOR____
GUPTA____
GUPTA PREMIUM International Distribution Agreement
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7.4 PRICE INCREASES.
GUPTA may increase the list price of any
Product or Services or GLS by giving at
least 30 (thirty) 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 30
(thirty) days prior to any changes in
their Local Currency Price.
7.8 STOCK ROTATION.
7.8.1 At any time during the first 30
(thirty) days following the end of GUPTA's
fiscal quarter during the Term of the
Agreement, DISTRIBUTOR may return for
credit an amount of Products with an
original purchase price not in excess of
ten percent (10%) of the aggregate purchase
price of all DISTRIBUTOR's purchases
during the preceding 90 (ninety) days, one
calendar quarter. Any Product(s) to
be returned by Distributor must be new,
unused, and in original unopened
packaging.
7.8.2 When DISTRIBUTOR requests a stock
rotation, it will submit to GUPTA a list
indicating the quantity and part number of
the Product(s), limited to current
version or immediately previous Product
release only. Stock rotation requests
must be (i) submitted within 90 (ninety)
days from the original Product invoice
date, and (ii) accompanied by an Order for
Products with an aggregate purchase
price equal to or greater than the credit
DISTRIBUTOR is to receive for such
return. Upon receiving such list and
related Order for Products, GUPTA will
issue to Distributor a Return Material
Authorization ("RMA") number for the
return of the Product(s) on the list and
will process the related Order for
Products. All transportation costs (and
duties) for the returned Products shall
be paid by DISTRIBUTOR.
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
DISTRIBUTOR____
GUPTA____
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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.
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, TITLE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS, AND 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, except as
indicated in Section 10.2 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 THIRD PARTY LICENSES.
Additional copyright notices and license
terms that may be applicable to
portions of the Products are set forth
and/or referenced in the clickwrap
license agreement included in the Product
installation.
10.3 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.
10.4 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.
10.5 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.
10.6 INFRINGEMENT PROCEEDINGS.
DISTRIBUTOR shall notify GUPTA of any
unauthorized use of the Intellectual
Property by others promptly as it comes to
DISTRIBUTOR's attention. GUPTA shall
have the sole right and discretion to bring
infringement or unfair competition
proceedings involving the Intellectual
Property.
11. EXPORT
DISTRIBUTOR hereby acknowledges that the
Products, in particular without
limitation the encryption technology
contained in certain Products, and all
technical data pertaining to those
Products, are subject to export controls
under the laws and regulations of the
United States, including the Export
Administration Regulations, 15 C.F.R. Parts
730-774. In the distribution of all
Products, DISTRIBUTOR shall comply and
shall ensure that VAR complies strictly
with all such United States export
controls, and, without limiting the
generality of this Section 11, DISTRIBUTOR
shall not and shall ensure that VAR
not export, reexport, transfer or divert
any of the Products, and technical data
pertaining to such Products, or any direct
product thereof to any destination,
end-use or End User that is prohibited or
restricted under such United States
export control laws and regulations, except
as specifically authorized by the
United States Department of Commerce.
DISTRIBUTOR's obligations under this
Section 11 shall survive the expiration or
termination of this Agreement, and
DISTRIBUTOR's licenses for the Products.
The U.S. Export Administration
Regulations, and answers to questions about
them, can be found online at
http://www.bis.doc.gov. In addition, before
DISTRIBUTOR or any VAR uses or sells
any Product outside the United States or
the Territory, DISTRIBUTOR shall (a)
fully comply with all then current and
applicable
DISTRIBUTOR____
GUPTA____
GUPTA PREMIUM International Distribution Agreement
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[GUPTA LOGO]
regulations of any government in whose
country any of the Products or Services
are used or distributed pursuant to this
Agreement; and (b) confirm with GUPTA
that DISTRIBUTOR and VAR has taken such
steps as GUPTA deems appropriate to
protect the proprietary rights of GUPTA in
each foreign country in which any
Products or Services are to be used or
distributed.
12. CONFIDENTIALITY
Each party shall take all steps which are
reasonable to safeguard the
confidentiality of, and proprietary rights
to, the confidential information
("Confidential Information") of the other
party which may be disclosed hereunder
(including, but not limited to, product
plans, designs, business plans,
technical specifications, research,
customer or financial data) (but excluding
aggregated data) and shall not, without the
prior written consent of the other
party, (a) use such Confidential
Information for its own benefit or the benefit
of any third party except for purposes
expressly provided for in this Agreement,
or (b) disclose such Confidential
Information to any third party; provided,
however, that this Section 12 shall not be
construed to restrict the disclosure
of information which (i) is publicly known
in its complied form at the time of
its disclosure to a party, (b) is lawfully
received by a party from a third
party not bound in a confidential
relationship to GUPTA or DISTRIBUTOR, (c) was
already known by GUPTA or DISTRIBUTOR in
its complied form before entering into
this Agreement, or (d) after notice and an
opportunity to object, is required by
law to be disclosed. This provision shall
survive termination of this Agreement
for a period of three years.
13. TERM AND TERMINATION
13.1. TERM OF APPOINTMENT.
13.1.1. INITIAL TERM.
The initial term of DISTRIBUTOR's
appointment shall end twelve (12) months from
the Effective Date of this Agreement unless
terminated earlier under the
provisions of this Agreement.
13.2. TERMINATION FOR CAUSE BY EITHER
PARTY.
Either party may terminate DISTRIBUTOR's
appointment upon a material default
that has not been cured within thirty (30)
days after delivery of written notice
describing the facts constituting the
default. In addition, any party may
terminate DISTRIBUTOR's appointment by
giving written notice to the other if (a)
the other party files a voluntary petition
commencing bankruptcy or other
proceedings for the general settlement of
its debts which is not dismissed
within sixty (60) days; (b) an involuntary
bankruptcy proceeding is commenced
against the other party and is not
dismissed within sixty (60) days; (c) a
receiver has been appointed over the whole
or any substantial part of the assets
of the other party; (d) the other party
makes a general assignment for the
benefit of creditors; or (e) the other
party voluntarily or involuntarily takes
any action to dissolve, liquidate, or cease
to conduct business in the normal
course.
13.3. TERMINATION LIABILITY.
Termination of DISTRIBUTOR's appointment
shall not give rise to any right to
compensation, reimbursement, or damages on
account of the loss of prospective
profits or anticipated sales or on account
of expenditures, inventory,
investments, leases, or commitments in
connection with the business or goodwill
of GUPTA or DISTRIBUTOR. Each party
acknowledges that it has been advised to
determine the extent to which it might be
entitled to rights or protections
provided by statute or otherwise in
connection with the termination of
DISTRIBUTOR's appointment; that it has made
such determination or freely chosen
not to do so; and that it waives all such
rights and protections to
