EXHIBIT 10.11
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Agreement Number: SWM990003
LICENSE AGREEMENT FOR
OEM CUSTOMERS
This License Agreement for Original Equipment Manufacturers ("Agreement")
dated September 13, 1999 (the "Effective Date") is between Motive
Communications, Inc., a Delaware corporation with an office at 0000 Xxxxxxxxx
Xxxxxx Xxxx., Xxxxx 000, Xxxxxx, XX 00000 ("Motive") and GATEWAY COMPANIES,
INC., with an office at 000 XXXXXXX XXXXX, XXXXX XXXXX XXXX, XX 00000 (the
"Licensee").
RECITALS
This Agreement establishes the basis under which Licensee may use Motive
software programs to provide technical support to Licensee's customers.
1. DEFINITIONS
1.1 "Content" means static, non-automated text or binary files used to create
Support Component.
1.2 "Customer(s)" shall mean any individual end user of Licensee Product to
whom Licensee provides technical support for said Licensee Product.
1.3 "Licensee" is the entity identified above and/or in a Transaction Document
(defined herein) and is the party purchasing the license right to use the
Software Programs and/or Motive services in accordance with the terms and
conditions of this Agreement.
1.4 "Licensee Product" includes computers, servers, hardware, software, or
other components sold or licensed by Licensee.
1.5 "Motive Support Component" or "Support Component" refers to Content
(defined herein) which has been automated to produce an executable program which
is designed to diagnose and repair technical problems being experienced by an
end user.
1.6 "Software Program(s)" means one or more Motive generally released
proprietary computer software programs, in object code format, and their related
materials which include updates, modifications, new releases, version releases,
Support Component, user manuals, documentation, and software release notes for
programs. The specific products licensed hereunder are those product(s)
specified in a Transaction Document and delivered to Licensee from Motive.
1.7 "Specifications" are the published user documentation, technical manuals
and release notes provided by Motive to Licensee.
1.8 "Transaction Document" is a written mutually agreed upon document
identifying the Software Programs and Motive services. Upon execution by an
authorized representation of each party, each Transaction Document shall become
an attachment to this Agreement. A Transaction Document may come in the form of
a Licensee purchase order, or other similar documentation intended to achieve
the same purpose which has been accepted by Motive, either formally in writing
by Motive or by delivery to Licensee of Software Programs. For Professional
Services, a Transaction Document may come in the form of a mutually executed
statement of work.
2. GRANT OF LIMITED LICENSE
2.1 Subject to all the terms of this Agreement, Motive grants Licensee a
perpetual, non-transferable, nonexclusive, worldwide, right to use, execute and
perform the Software Programs designated on a Transaction Document in providing
technical support to Customers. Licensee may install and use Software Programs
on computers owned or operated by or on behalf of Licensee up to the maximum
number of licenses of each Software Program or number of users defined in
Licensee's Transaction Document. A user is an individual having access to and
use of the licensed Software Program. Licensee may also make a reasonable number
of copies of the Software Program in machine-readable form solely for archive or
backup purposes in accordance with Licensee's standard archive or backup
policies and procedures. Use of Software Program greater than either the
quantity of licenses paid for or the number of users paid for is prohibited and
any such use will be subject to additional license fee(s).
2.2 Licensee shall have the right to reproduce, or have reproduced for it,
sublicense and distribute to its Customers the Software Program (currently
called "Motive Support Tuner" that runs on an end user machine and provides a
unified face of support and local diagnostic capabilities. Licensee further
agrees that such access to the Motive Support Tuner (or any replacement or
renamed program) will be for the purpose of providing technical support to
Customers through the use of licensed server and support desktop Software
Programs. Licensee agrees that the distribution of the Motive Support Tuner to
its Customers shall be done under an agreement that contains substantially the
same protections contained in this Agreement as set forth in Licensee's standard
end user license agreement attached hereto and incorporated herein by reference.
Licensee shall be [*] for any [*] or [*] to their Customer(s) that are [*] and
[*] those contained herein. Licensee may distribute the Motive Support Tuner
through [*] or [*] to its Customers.
2.3 Except for the Motive Support Tuner, the Software Programs may only be used
by i) employees of Licensee, or ii) [*] of Licensee who are under a written
agreement with Licensee and who are [*]of Licensee. Such use by [*] shall be
limited to the [*] of such [*].
2.4 Technical Support Delivery to a Customer. Licensee shall have the right to
use the Software Program(s) to deliver technical support to its Customers in an
Assisted-Service Mode and a Self-Service Mode.
a) "Assisted-Service Mode" occurs when a Customer is attempting to diagnose and
possibly repair technical problems with the assistance of Licensee's support
analyst/personnel through the use of the Software Program(s).
b) "Self-Service Mode" occurs when a Customer is attempting to diagnose and
possibly repair technical problems without the assistance of Licensee's
support analyst/personnel. Self-Service Mode is monitored through the use of
Self-Service Licenses in the Transaction Document. "Self-Service License" is
the individual right of a Customer to receive technical support in Self-
Service Mode for a particular Licensee Product which has a Self-Service
License assigned to it. A Self-Service License must be assigned to each unit
of Licensee Product delivered to Customers that Licensee wishes to offer
technical support in Self-Service Mode. Self-Service Licenses cannot be
transferred from one Licensee Product to another.
2.5 Licensee may [*] of the Software Programs within the scope and guidelines
described in the Specifications. Licensee will [*] the [*] on the [*] of each
[*]. No other modifications to the Software Programs will be made without
Motive's prior written consent.
2.6 No other rights are granted to Licensee except as expressly set forth
herein.
2.7 The license extends to and is for the benefit of Licensee and its
Affiliates.
3. RESTRICTIONS
3.1 Licensee will maintain the copyright notice and any other notices that
appear on any Software Program, copies thereof, media, or documentation.
Licensee will not, nor allow any third party to reverse engineer or attempt to
discover any source code or underlying ideas or algorithms of any Software
Program. Except as authorized in section entitled "Grant of Limited License,"
Licensee will not, nor allow any third party to modify, lease, lend, use for
timesharing or service bureau purposes or otherwise use or allow others to use a
Software Program for the benefit of any third party. Licensee agrees to [*]
Motive for [*] by Motive as a result of [*] and [*] of the Software Programs by
Licensee's [*] to whom Licensee [*].
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
2
3.2 Title. This Agreement grants Licensee [*] or [*] in the Software
Programs. All Software Programs furnished by Motive, and all copies thereof
made by Licensee and compilations, derivative products, programmatic extension,
and all patches, revisions, and updates, made by [*], thereto are and shall
remain the property [*] or [*], as applicable, except that Licensee shall [*]
its [*], even if such [*] is [*] by Motive. All the limitations and
restrictions on Software Programs in this Agreement also apply to [*].
4. PAYMENT TERMS
4.1 Motive will invoice Licensee for the Software Program at the time set
forth in the Transaction Document. License fee and service fee payments are due
net [*] days from receipt of an [*] by Licensee unless other terms are mutually
agreed to in a Transaction Document. Subsequent charges will be invoiced
separately. Motive shall notify Licensee of such maintenance and subscription
fees not less than [*] days prior to the expiration of each maintenance period
or subscription, provided that Motive's sole remedy for nonpayment shall be
termination of maintenance and subscription. maintenance and subscription
services are payable, annually [*] on a [*] basis. Licensee [*] to pay all [*]
shall [*] the expiration or termination of this Agreement.
4.2 In order to [*] by Licensee with regard to the SA License [*] in
accordance with the [*] for pursuant to a Transaction Document, and for no other
purpose, Motive [*] (i) an [*] to be made of the [*] Gateway [*]. Any [*] shall
be [*] during regular business hours at [*], with [*] days prior written notice
and shall be [*] so as not to [*] with Licensee's normal [*]. Any [*] shall be
[*] by an [*] public [*] selected by Motive ([*] than on a [*]) and [*] by
Licensee, such [*] not to be [*]. Motive will be [*] to [*] the [*] written [*]
from the [*]. Copies of all [*] and [*] of the selected [*] will remain [*] and
be [*] to Licensee within [*] days after the [*] is[*]. Licensee agrees to
provide the selected [*] to the [*] Licensee[*]. Prompt [*] shall be made to [*]
for any [*] or [*] by such [*]. Any such [*] shall be [*] for by Motive [*] are
[*] that [*] to [*]. If such [*] are[*] associated with the [*]. In no event
shall [*] made more [*] than [*].
4.3 Taxes; Shipping. [*] will pay all amounts due under this Agreement in
U.S. currency. [*] Licensee [*] Motive a valid resale or exemption certificate
from the applicable taxing authority, [*] shall pay or promptly reimburse [*]
for all federal, state, local or other taxes (exclusive of taxes on [*] income)
applicable to the purchase or use of the Software Program(s) or services
provided under this Agreement. If any withholding or similar tax must be paid
under the laws of any country outside of the U.S. based on the payments to
Motive specified in this Agreement, then [*] will pay all such taxes and the
amounts payable. Delivery is [*] facility. However, if the Software Program or
Documentation is lost or damaged during shipment, [*]. [*] shall pay for all
shipping and insurance charges for shipments to locations within the United
States. [*] shall be responsible for the payment of all international freight,
customs, duties, international freight forwarding and related charges applicable
to the delivery of the Software Program to Licensee.
5. MAINTENANCE AND SUPPORT
5.1 During the period for which Licensee has subscribed to and paid for
[*] maintenance and support for the Software Program(s), Motive will provide
the following maintenance in support of the current version of Software Program
(Motive will also support the [*] of the Software Program [*]. In the event
Licensee acquires additional licenses beyond its initial acquisition,
maintenance fees for such licenses shall be [*] to be co-terminus with
Licensee's existing maintenance period.
5.2 Motive's Standard Maintenance and Support Plan shall include (i)
Software Program Updates - To supply improvements, extensions, new releases,
version releases, and other changes to the Software Program which [*], at its
discretion, deems to be logical improvements or extensions; (ii) Code
Corrections - To supply code corrections to correct material deviations of
unmodified Software Program from the Specifications; (iii) unlimited support
requests through [*] Licensee designated individuals per site using the Motive
support system technology; iv) Classic Hotline Support - To provide support
service via telephone, FAX and E-Mail, unlimited requests for mission critical
production related situations and [*] for all non-critical classic support
requests; (v) Fixes - to supply workarounds for problems where known, answer
questions and provide patches where they exist; and (vi) access to the basic
ActiveLink Subscription Service. Motive shall provide the level of support set
forth in the Transaction Document Motive shall have the right to offer
maintenance for [*], in which event the maintenance fee shall be [*]
accordingly. Licensee may [*] support for any then-currently supported Software
Programs by [*] would have [*]. Subsequent term maintenance fees shall be
mutually agreed to in a Transaction Document.
5.3 Motive shall respond to calls for assistance as noted below. Licensee
shall contact Motive through the help desk or any other such reasonable means.
Severity Level: Reports on errors in the Software Programs are
classified in the following categories:
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
3
Severity 1: The outage terminates the operations of any installation
and any workstations comprised therein or the outage corrupts any
database used in conjunction with the Software Programs or major
function of normal operation and use of the Software Program has
become unusable and there is no work-around available.
Severity 2: A major function in normal operation and use of the
Software Program has become unstable and there is an awkward work-
around or any other function has become unworkable and there is no
known work-around.
Severity 3: A major function of the Software Program has become
unworkable and there is an effective workaround.
Severity 4: No functional impact to the Software Program.
Planned Response Times:
Severity Level Response Time Time to Start Target to Fix Time
-------------- ------------- ------------- ------------------
[*] [*] [*] [*]
5.4 If on-site assistance is required and the problem is the failure of the
Software Program to materially perform to Specifications, no charge will be
made. If the problem is due to other causes, mutually agreed upon rates for
such services will be applicable and payable by Licensee.
5.5 Cancellation. Licensee may cancel its subscription in the maintenance and
support plan(s) effective as of the [*] or [*] by written notice to Motive
received [*] to the [*], or if there is an increase in [*] maintenance and
support charges over the [*] by giving Motive written notice of cancellation
within [*] of receipt of Motive's invoice or price quotation notice showing such
increase.
5.6 Scope of Coverage. Motive's maintenance support policy requires that
(i) the same level of services shall apply to all licensed Software Programs per
site, (ii) Licensee shall bring or keep all licensed Software Programs it has
acquired at an installation under current contracted maintenance in order to
receive the maintenance update services defined in the maintenance program. The
automated reporting routines contained in the Software Program which identifies
and analyzes the use and performance of the Software Program including
problems and issues that arise in connection therewith will be used by Motive to
provide support services, and improve, enhance the performance of the Software
Programs offered by Motive.
5.7 Compatibility. Motive will use [*] to cooperate with Licensee to ensure
that the Software Program is compatible with Licensee hardware and standard
operating systems and environments. In furtherance of this cooperation, Motive
agrees to add Licensee as one of its [*].
5.8 Training. Motive shall provide training as set forth in the Transaction
Document.
5.9 Exclusions. Motive shall have [*] to correct any error resulting from: (i)
Software Programs altered or damaged by Licensee; (ii) use of a Software Program
that is not supported under Section 5.1 above; or (iii) Software Program
problems [*] Licensee's [*] or [*], or use of Software Program other than as
specified in Motive's user manual.
6.0 PROFESSIONAL SERVICE
6.1 If ordered by Licensee on a Transaction Document, the following terms and
conditions shall apply to professional services supplied by Motive to Licensee.
Licensee may purchase assistance for integration and installation of the
Software Programs, customization, and consulting services from Motive in the
form of [*] or on a [*].
6.2 Scope of Professional Services. Professional Services will be
documented in a Transaction Document. At the request of Licensee, Motive shall
provide all Professional Services in accordance with this Agreement and the
Transaction Document. Motive is not authorized to provide [*] under this
Professional Service section. Any Professional Services performed which
contemplate [*] shall be performed in accordance with a separately executed
agreement.
6.3 Fees and Expenses. Fees for Professional Services are defined in a
Transaction Document. Fees and charges are due [*] from receipt of an [*]
invoice by Licensee. Invoices shall be published on a monthly basis for
services actually performed.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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Licensee shall [*] Motive for [*] for [*] and [*] in accordance with Licensee's
[*]. Motive shall submit documentation requested by Licensee concerning any [*]
for [*] of the [*] referred to herein.
6.4 Termination or delay of Professional Services. Professional Services may be
terminated by Licensee at any time for any reason, with or without cause, by
giving [*] prior written notice to Motive; termination shall be effective [*]
after Motive's receipt of such notice. If Licensee [*] the [*] of contracted
Professional Services, Licensee shall [*] Motive [*]. If Licensee terminates
Professional Services before the end of the Term of Professional Services
engagement as set forth in the Transaction Document, Licensee shall [*] Motive
for Professional Services completed prior to the effective termination date.
6.5 Motive Proprietary Information. All Motive Proprietary Information and
all right, title and interest, including without limitation, all patents,
copyrights, and trade secret rights any where in the world, and all other
intellectual property and rights in connection therewith shall be the sole
property of and remain with Motive or its licensors, as applicable. Except for
the rights otherwise expressly provided in this Agreement, no right, title or
interest in Motive Software Programs is granted hereunder.
6.6 Licensee Proprietary Information. Licensee retains all right, title
and interest in Licensee's Proprietary Information including, but not limited
to, patents, copyrights, trademarks, trade secrets and trade dress. Nothing in
this Agreement shall be construed as granting any license rights to Licensee's
Proprietary Information.
6.7 Independent Contractors. Motive is an independent contractor and is
solely responsible for all taxes, withholdings, and other similar statutory
obligations including, but not limited to Worker's Compensation Insurance.
Nothing herein shall form or be construed to form a joint venture or
partnership. In addition to maintaining Worker's Compensation Insurance in
compliance with all statutory requirements, Motive shall secure and maintain at
its own expense, the following insurance with companies satisfactory and
acceptable to Licensee and shall furnish to Licensee certificates evidencing
such insurance and thereafter as required by Licensee. Said certificates shall
contain a provision whereby the policy and/or policies shall not be canceled or
altered without at least [*] prior written notice to Licensee.
(i) Comprehensive General Liability Insurance with a general aggregate of [*].
(ii) Automobile Liability Insurance covering all owned and non-owned vehicles
and equipment used by Licensor with a minimum combined single limit of
[*].
(iii) Umbrella Liability Insurance coverage with a minimum combined single and
aggregate limit of [*].
(iv) Employee Dishonesty/Blanket Insurance with a combined single and aggregate
limit of [*].
(iv) Errors and Omissions Insurance. As of the Effective Date of this
Agreement, [*] Errors and Omissions Insurance. [*]
(vi) Product Liability Insurance with a combined single and aggregate limit of
[*].
6.8 Performance Standards. Motive represents, warrants and covenants that
the performance of Professional Services under this Agreement will be performed
in a timely, professional and workmanlike manner. Motive will comply with all
applicable laws and Licensee safety rules in the course of performing
Professional Services.
6.9 Consent to Subcontract. Licensee hereby consents for Motive to subcontract
Professional Services to persons or companies qualified and certified by Motive
to provide services on Motive's behalf, as approved individually in writing by
Licensee. In any event, Motive shall be liable for the performance or non-
performance of its subcontractors and/or agents.
7. ACTIVELINK SUBSCRIPTION SERVICE
7.1 Motive has established an Activelink Premium Subscription Service
("Activelink") which is an [*] subscription service that provides access to a
Motive web site that hosts automated software files designed to diagnose and/or
resolve technical support problems. The Activelink web site contains "Support
Component" files which are text files or fragments which have been activated by
Motive to produce an executable program which is designed to diagnose and
potentially repair technical problems being experienced by an end user. If
Licensee is then currently covered under a Motive maintenance plan, Motive will
provide access to an introductory basic Activelink service for no additional
charge. Access to Motive's Activelink Premium service is provided on an [*]
subscription basis.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
5
7.2 ActiveLink Service Use Rights. Upon receipt of a Transaction Document for
maintenance or Motive's ActiveLink Premium subscription service, Motive will
grant Licensee an individual, non-sublicensable, non-exclusive and non-
transferable right to download and use the Support Component to diagnose and/or
repair Customer's technical support problems. Except as expressly authorized by
Motive, Licensee will not use the Support Component for timesharing or service
bureau purposes or otherwise for the benefit of a third party (other than
Licensee's Customers) or remove any Support Component proprietary notices or
labels. Licensee will not provide its Customers or any other third party access
to the ActiveLink Website. Licensee acknowledges that Motive and its licensors
retain ownership of all Support Component including translations, compilations,
and derivative products, any portions or copies thereof, and all rights therein.
Licensee agrees only to use the Support Component diagnostic / repair routines
through and in conjunction with licensed Motive server and desktop Software
Programs. Motive will monitor usage statistics to verify performance of Support
Component.
7.3 Payment; Cancellation. Upon receipt of a Transaction Document for
ActiveLink Premium subscription, Motive will invoice Licensee for the [*]
ActiveLink Premium subscription fee set for in the Product Schedule. If Licensee
chooses not to renew its ActiveLink subscription or upon termination of this
Section for breach, Licensee will; (i) discontinue accessing the ActiveLink web
site, (ii) cease using any Support Component; and (iii) destroy any downloaded
Support Component and any derivative products made in connection with the
Support Component.
7.4 Support. During the period Licensee has authorized access to ActiveLink,
Motive's support shall consist of providing updates and modifications to the
ActiveLink web site by Motive. Motive shall assure that the connectivity
between Motive and Licensee will be [*] and [*] at least [*]. This [*]
connectivity rate shall not be applicable in the event of down time caused by
[*].
7.5 WARRANTY; LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS
AGREEMENT OR ANY TRANSACTION DOCUMENT, THE ACTIVELINK SERVICE IS PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND, AND MOTIVE DISCLAIMS ALL WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MOTIVE AND ITS LICENSORS,
WITH RESPECT TO ACTIVELINK WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OR
INACCURACY OF DATA, OR LOSS OF PROFITS OR REVENUE.
7.6 Survivability. This Section will survive termination including, without
limitation, content ownership, warranty disclaimers and limitations of
liability.
8. TERMINATION
8.1 Either party shall have the right to terminate this Agreement if a
material breach by the other party remains uncured for a period of more than 30
days after the other party 's receipt of written notice of such breach. Either
party shall have the right to terminate this Agreement if a material breach by
Licensee of [*] or a material breach by either party of [*], remains uncured for
a period of more than 10 business days after the breaching party's receipt of
written notice of such breach. Such termination caused by Motive's material
breach shall be effective following completion of the transition contemplated by
[*]. Termination is not an exclusive remedy and all other remedies will be
available whether or not termination occurs.
8.2 If either party (i) becomes insolvent: (ii) admits in writing its inability
to pay its debts as they mature; (iii) makes any assignment for the benefit of
creditors; (iv) makes or suffers to be made any transfer to any person,
trustee, receiver, liquidator, or referee for the benefit of creditors; (v)
files a voluntary petition in bankruptcy or an application for receivership
filed against it and such petition or application is not resolved favorably by
the party within sixty (60) days; (vi) has a petition in bankruptcy or an
application for receivership filed against it by a third party and such petition
or application is not resolved favorably by the party within sixty (60) days;
(vii) files any petition in bankruptcy for any reorganization, arrangement,
compromise, readjustment, liquidation, or dissolution or similar relief for
itself; or (viii) becomes unable to pay its debts generally as they become due,
the other party shall have the immediate right to terminate this Agreement upon
delivery of written notice without any liability to the insolvent party and
without further notice to it.
8.3 In the event of a material breach by Motive, for a period of ninety (90)
days after termination under this Section 8, Motive shall provide reasonable [*]
and cooperation requested by Licensee. Such [*] shall primarily include, but not
be limited to, [*] Motive's Software Programs [*] shall not include any [*],
deployment of [*], or the [*] by Motive of any [*] related thereto. Motive shall
use commercially reasonable diligent efforts to accomplish [*] in a smooth and
orderly fashion with no impact on Customers and no degradation in Motive's
performance of all services provided hereunder.
8.4 Upon termination of this Agreement, and completion of [*] in the event of a
breach by Motive, each party shall promptly return to the other all information,
materials, and other properties received from the other in connection with this
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
6
Agreement. With the other party's approval, in lieu of returning such
information and materials, each party shall have the right to destroy and
certify the destruction of such information and materials.
9. CONFIDENTIALITY
A. For a period of five (5) years from the termination or expiration of
this Agreement, each party agrees that it will keep in confidence and prevent
the acquisition, disclosure, use or misappropriation by any person or persons
all types of and/or quantities of components, types of systems, new product
development, technical information, data, formulas, patterns, compilations,
Software Programs, programs, devices, methods, techniques, marketing plans,
business procedures, customer and supplier lists, agreements with any suppliers,
techniques or know-how, processes or other proprietary or confidential or
intellectual proprietary information (hereafter "Confidential Information")
which is received from the other under this Agreement; provided, however, that
neither party shall be liable for disclosure of any data if the same is
disclosed with the prior written approval of the other party. Such prohibition
on disclosure shall not apply to disclosures by Licensee to its agents,
contractors or employees provided such disclosures are reasonably necessary to
Licensee's authorized use of the Software Programs and provided further that
Licensee shall take reasonable steps to ensure that the Software Programs are
not disclosed by its agents, contractors and employees in contravention of this
Agreement. Each party agrees that if it breaches the non-disclosure agreement,
the owner of the Confidential Information shall suffer irreparable injury and be
entitled immediately to a temporary and permanent injunction.
B. The foregoing confidentiality obligation shall not apply to
information that the recipient can demonstrate by written evidence:
(1) has been published in writing and has become part of the public
domain other than by the acts or omissions of the receiving party or any of its
employees or contractors;
(2) has been lawfully furnished or made known to receiving party by a
third party (other than employees of the receiving party or any third party
acting directly or indirectly for or on behalf of the disclosing party), as a
matter of right and without restriction on the receiving party as to its
disclosure or use;
(3) was in the possession of the receiving party on the Effective
Date, as a matter of right and without restriction on its use or disclosure, and
was not acquired by the receiving party or any of its employees directly or
indirectly from the disclosing party or any of its employees or agents;
(4) was independently developed by the receiving party without access
to the Confidential Information of the disclosing party; or
(5) was legally required to be disclosed pursuant to a court or
governmental order, provided the recipient gives the disclosing party reasonable
notice of the proposed disclosure and cooperates with the disclosing party in
seeking a protective order, and provided further, that such disclosure is
permitted only for the purposes of the legal proceeding and only to the extent
required by the order.
C. Each party:
(1) agrees that all Confidential Information remains the property of
the disclosing party and will upon written request by the disclosing party,
promptly return all Confidential Information to the disclosing party;
(2) shall disclose Confidential Information in writing when practical,
and when Confidential Information is disclosed orally, shall promptly confirm
such Confidential Information in writing;
(3) agrees not to disclose Confidential Information given to it by the
other party to any person, real or legal, except as necessary for the other
party to perform its obligations under this Agreement;
(4) shall require of employees and third parties having necessary
access to Confidential Information obligations of confidence and non-use
consistent with this non-disclosure agreement;
(5) shall exercise the same degree of care to safeguard the
confidentiality of such Confidential Information as it would exercise in
protecting the confidentiality of similar property of its own (but in no event
less than is standard in the industry); and
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(6) agrees to use its diligent efforts to prevent inadvertent or
unauthorized disclosure, publication or dissemination of any Confidential
Information.
D. Each party shall notify the other of any actual or suspected
unauthorized use or disclosure of Confidential Information of infringement of
any proprietary rights of which such party has knowledge and will reasonably
cooperate with the other party in the investigation and prosecution of such
unauthorized use, disclosure or infringement.
E. This non-disclosure provision shall survive the termination or
expiration of the entire Agreement.
10. INDEMNIFICATION
A. Motive agrees to indemnify, hold harmless and defend Licensee from and
against any and all damages, costs and expenses, including reasonable attorneys'
fees, including allocated costs for in-house legal services, incurred in
connection with a claim or assertion related to Motive's performance or non-
performance hereunder, including without limitation any: (i) claim or
assertion that a Software Program or Professional Service infringes an
Intellectual Property Right of any third party, (ii) damage to any tangible
property, personal injury, or death, by whomever suffered, based on the
negligence or willful misconduct of Motive, or (iii) any actual or alleged
breach of Motive's representations or warranties as set forth in Section 11 A.,
B. and C.
B. Licensee agrees to notify Motive promptly in the event of any claim
described above, and shall cooperate with and provide all reasonable assistance
to Motive (at Motive's expense) in the defense or settlement of such claim,
provided that Software Program may, at its own expense, retain separate
representation.
C. In the event that a final judgment is obtained against the use of any
Software Program by Licensee by reason of infringement of any Intellectual
Property Right, or, if in Motive's opinion the Software Program is likely to
become the subject of such a claim of infringement, Motive shall, at its
option [*]:
(1) procure for Licensee the right to continue using the Software
Program; or
(2) replace or modify the Software Program so that it no longer causes
any such infringement but is still capable of performing as warranted; or
(3) after reasonable attempts to achieve (1) or (2) above, terminate
Licensee's rights to the infringing Software Program and return all fees paid to
Motive for the infringing Software Program. Termination as contemplated herein
shall not relieve Motive of its obligations of indemnification as set forth
above.
D. Motive agrees to indemnify, hold harmless and defend Licensee for [*]
associated with any claim or assertion resulting or claimed to result, in whole
or in part, from any actual or alleged defect in the design of the Software
Programs.
E. The foregoing obligations of indemnification do not apply where the
Software Programs (i) are modified by Licensee after delivery without Motive's
authorization; or (ii) where Licensee continues the allegedly infringing
activity after being notified thereof or after being informed of and provided
modifications that would have avoided the alleged infringement and Licensee has
been given sufficient opportunity to install the non-infringing modification.
11. WARRANTY
Motive represents and warrants that:
A. It has full right and title in the Software Programs and trademarks
licensed hereunder, and has all necessary right and authority to grant the
licenses granted hereunder without the consent of any other person and without
conflicting with any other agreement to which Motive is a party or by which it
may be bound.
B. The Software Programs, the licenses granted hereunder, and the
performance by Motive of its obligations hereunder are and shall remain,
throughout the term of this Agreement and any renewal, in compliance with all
applicable laws, rules and regulations.
C. The Software Programs and trademarks licensed hereunder do not infringe
upon or otherwise violate any patent, copyright, trademark, trade secret, know-
how, moral rights or other intellectual property rights (individually or
collectively, an "Intellectual Property Right") of any third party.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
8
D. The golden master CD or DVD ROM, diskette or other media will be (a)
new, (b) free from defects and viruses out of the manufacturing process, and (c)
will function properly in accordance with the Specifications under ordinary use
for a period of [*].
E. For a period of [*] from the date of delivery, the Software Program, as
delivered to Licensee will conform with all performance capabilities,
Specifications, functions and other descriptions and standards set forth in the
Specifications provided to Licensee by Motive. In the event of non-conformance
of the Software Programs under this warranty, the period of time of non-
conformance will be added to the warranty period. If any Software Program fails
to comply with the preceding sentence, Motive, at its option, will either: (1)
provide a correction at [*] to Licensee; (2) provide a replacement product that
has [*] and at a [*] than the [*] for the Software Program in the Transaction
Document; or (3) [*] Licensee for [*] hereunder for the Software Program.
However, if Licensee does not accept the suggested remedies contemplated by (1)
or (2) above, Licensee may request a [*] Motive hereunder for the defective
Software Program. Motive shall also [*] by Licensee in the [*] with other
Motive Software Programs distributed to Customers containing the defective
Software Program.
F. Motive represents and warrants that all Software Programs are
designed to be used prior to, during, and after the calendar year 2000A.D. The
Software Programs will perform fully in accordance with the Specifications and
in accordance with Section 11.F. during each time period and without error
relating to date values or other date data including, without limitation, (i)
errors arising from, related to, or resulting from date data that represents or
references different centuries or more than one century, or (ii) errors arising
from, related to, or resulting from calculations, processing, sequencing, or
employing date data. Without limiting the generality of the preceding
sentences, Motive represents and warrants that the Software Programs: (x) are
capable of accurately, correctly, and consistently accepting, calculating,
comparing, sorting, and otherwise processing, returning, and displaying date
inputs and date values, regardless of when such date data are used, the format
or separators used to express such dates, and whether such dates are read from
the internal clock of the hardware, input by a user, or otherwise; (y) will
accurately, correctly, and consistently manage and manipulate data involving
dates, including formulas that involve dates in one century or dates in more
than one century; and (z) will not cause an abnormally-ending routine or process
within an application or generate incorrect values or invalid results involving
date data.
H. Motive represents and warrants that the Software Programs will
correctly determine leap years, being years during which an extra day is added
in February (February 29th). Motive acknowledges leap years are correctly
determined to occur in all years divisible by 400, and all other years evenly
divisible by 4 except those evenly divisible by 100. For example, 1996 is a
leap year since it is divisible by 4; 1900 is not a leap year since it is
divisible by 100 but is not divisible by 400; 2000 is a leap year since it is
divisible by 400.
I. Motive represents and warrants that the Software Programs and any
software media furnished to Licensee pursuant to this Agreement have been tested
using computer virus detection software and that such tests indicated that such
Software Programs and/or the software media are free from computer viruses and
any undocumented and unauthorized methods for terminating or disrupting the
operation of, or gaining access to, the Software Programs or other code or
features which result in or cause, in whole or in part, directly, damage, loss
or disruption to all or any part of computer systems or other computing
resources. Motive shall not incorporate into the Software Programs any
termination logic or other means to electronically repossess the Software
Programs. For purposes hereof, termination logic shall include any computer code
that employs a user count, execution key, the internal clock of a computer to
test for the date and/or time, or any related techniques as a trigger to render
inoperable or otherwise disable the Software Programs or any related computer
system.
J. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 11, ALL SOFTWARE
PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. FURTHER MOTIVE DOES NOT WARRANT RESULTS OF USE OR THAT THE
SOFTWARE PROGRAMS ARE ERROR FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
12. LIMITATION OF LIABILITY
12.1 NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
12.2 [*] SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES
EXCEPT WHERE A MATERIAL BREACH OF [*] SET FORTH IN [*] OBLIGATIONS TO PERFORM
SERVICES UNDER THIS AGREEMENT CAUSED SUCH DAMAGES OR A [*] SET FORTH IN [*].
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
9
12.3 [*] SHALL NOT BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES AND [*] LIABILITY SHALL NOT EXCEED [*] WHERE A [*] OF THE [*] UNDER THIS
[*] ON [*] OR [*] OF MOTIVE'S PROPRIETARY AND CONFIDENTIAL INFORMATION PROVIDED
BY [*] UNDER THIS AGREEMENT CAUSED SUCH DAMAGES.
12.4 THE FOREGOING [*] APPLY WHERE SUCH DAMAGES ARE AWARDED TO A THIRD PARTY
AND SUCH [*] IS COVERED BY AN OBLIGATION OF [*] UNDER THIS AGREEMENT.
12.5. EXCEPT AS SET FORTH ABOVE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER
PARTY OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER
ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY
FOR (I) ANY AMOUNTS IN EXCESS OF [*] WITH RESPECT TO THE APPLICABLE SOFTWARE
PROGRAM OR PROFESSIONAL SERVICES; (II) ANY COST OF PROCUREMENT OF SUBSTITUTE
GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) INTERRUPTION OF USE OR LOSS OR
CORRUPTION OF DATA.
13. PROTECTIVE COVENANTS
13.1 Motive acknowledges that the Software Programs are [*] with its Customers.
Accordingly, Motive agrees that [*], without Licensee's prior written consent:
(a) [*] that would have an [*] (including but not limited to rendering Motive
insolvent or otherwise unable to pay its debts as they become due), or restrict
or otherwise have an adverse impact on Motive's ability to fulfill its
obligations under this Agreement. In the event of (a) above, [*], or any
transaction that would result in a change of control of Motive, [*] may, in its
[*] this Agreement in accordance with the provisions of Section 8, or within a
shorter time frame as set forth in Section 8.
13.2 Motive represents and warrants that all information it has provided to
Licensee with regard to [*] is complete and accurate as of the Effective Date.
Motive shall provide Licensee [*] the execution of an agreement that
contemplates [*] shall have [*] from [*] receipt [*] notification of a [*] under
these terms and conditions or [*] as contemplated hereunder. During such [*]
period, Motive shall remain responsible for providing the services and Software
Programs. [*], no confidential information of Licensee shall, in any case, be
provided to [*], whether under a non-disclosure agreement or otherwise, without
Licensee's express prior written consent. In addition, if Licensee elects to
[*] this Agreement pursuant to Section 13.1 above, Licensee shall [*] to
discontinue the use of the Software Programs, the financial obligations of
Licensee to Motive shall [*], and Motive shall provide the [*] services
described in [*] above.
13.3 Motive shall furnish Gateway prompt written notice in advance of any
situation which [*] affect [*] under this Agreement. Motive shall make
representatives of its senior management available promptly at Licensee's
request to discuss any issues contemplated by this Section 13.
13.4 In the event of [*] which results in the increase of Licensee Product
shipments equal to [*], the parties shall negotiate in good faith equitable
adjustment to the pricing set forth hereunder.
14. ESCROW
Motive shall, at [*], maintain on deposit with a nationally recognized bank,
trust company or escrow company, machine readable copies of current versions of
all Software Programs. If, on the Effective Date, Motive has an escrow
agreement regarding the Software Programs with a nationally-recognized bank,
trust company or escrow company, Motive shall provide a copy of such escrow
agreement to Licensee upon execution of this Agreement, and Licensee shall have
the right to be a beneficiary of such escrow agreement. [*] of execution of
this Agreement, Motive shall have entered into the above-referenced escrow
agreement. If Motive (i) ceases, for any reason, to support the Software
Programs without providing a replacement Software Program with equivalent
functionality and its support of the Software Program is not continued by
another corporation or entity which assumes and performs Motive's obligations
under this Agreement, (ii) ceases to do business, and its business and support
of the Software Program is not continued by another corporation or entity which
assumes and performs Motive's obligations under this Agreement, or (iii)
undertakes or has instituted against it any action described in Section 8.2,
then the Software Programs shall be delivered and released to Licensee. In such
event, Motive grants Licensee the right to use, execute, modify, and reproduce
the Software Programs or any portion thereof for the sole purpose of supporting
its Customers who have acquired the Software Programs from Licensee.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
10
15. FREEDOM OF ACTION
Nothing in this Agreement shall be construed as: (1) prohibiting or restricting
either party or their subsidiaries from acquiring, licensing, distributing or
marketing products, services and other materials which are competitive in any
form with the Software Program, (2) guaranteeing that either party or their
subsidiaries will announce, or otherwise offer, any product or service,
including but not limited to the Software Program; or (3) affecting either
party's pricing of products or services, including but not limited to the
Software Program. Each party is free to enter into similar agreements with
other parties.
16. PRIVACY
Motive acknowledges the importance [*] places on protecting [*]. Accordingly,
[*] shall use its best efforts to safeguard any [*], including without
limitation, names, addresses, or credit information, against unauthorized access
or use. In addition, [*] shall not, without [*] prior written consent, use,
sell, license, lease or otherwise transfer such data to any third party, or
export such data to any location outside of the country in which [*] acquired
such data. In the event [*] to allow [*] to [*] shall: (i) allow [*] to access
any data [*] may have regarding [*]; (ii) allow [*] to correct any incorrect or
incomplete data regarding [*]; (iii) comply with any request by [*] to remove
such [*]; and (iv) upon receipt of a request as described in clause (iii),
provide no further [*]. Upon the expiration or earlier termination of this
Agreement, [*] shall return to [*] all [*] then in [*] possession. [*] shall not
retain any copies of such data in hard copy or electronic form.
17. U.S. EXPORT
Both parties shall comply with all applicable export and import rules and
regulations. Licensor shall provide Licensee in writing with the U.S. Export
Control Classification Number ("ECCN") for each item that Licensee licenses from
Licensor, as more particularly set forth in Attachment A. Such information
shall be provided prior to fulfillment of the first order for a given item. For
any and all instance in which Licensor does not have the ECCN and cannot obtain
it by reasonable efforts or by filing an ECCN classification request with the
U.S. Department of Commerce, Licensor agrees to respond diligently to Licensee's
requests for sufficient information to enable Licensee to determine the correct
ECCN for the item. Licensor shall provide Licensee with written advance notice
of changes to any of the information provided to Licensee pursuant to this
Section.
18. FORCE MAJEURE
In the event that either party is prevented from performing or is unable to
perform any of its obligations under this Agreement due to any Act of God, fire,
casualty, flood, war, strike, lockout, epidemic, destruction of production
facilities, riot, insurrection, or any other cause beyond the reasonable control
of the party invoking this section, and if such party shall have used its best
efforts to mitigate its effects, such party shall give prompt written notice to
the other party, its performance shall be excused, and the time for the
performance shall be extended for the period of delay or inability to perform
due to such occurrences. However, if such inability to perform continues for
fifteen (15) days, the other party may terminate this Agreement without penalty
and without further notice.
19. DISPUTE RESOLUTION
19.1 Each company shall designate in writing to the other the following
individuals for the following purposes:
19.2 Designated Representatives. Each company shall designate one Primary
Representative. These Primary Representatives shall also act as the designated
persons to resolve disputes in accordance with Section 20.3 below.
19.3 Senior Officers. Each company shall designate a Senior Officer of the
company, who is not an attorney, who shall serve for the purpose of resolving
disputes in accordance with Section 20.4 below.
19.4 Changes in Designation. Each party may change such designated
representatives within the parameters called for hereunder for such
representatives upon the giving of advance written notice to that effect.
20. PROCEDURES FOR HANDLING OF DISPUTES
20.1 All disputes under this Agreement, of any nature whatsoever, shall be
handled in strict accordance with the following procedure. Each party agrees
that it shall not resort to legal remedies until such time as each step of the
following procedure
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
11
has been completed. Notwithstanding the provisions of the preceding sentence, a
party to this Agreement may seek equitable relief at any time in a court of
competent jurisdiction as set forth in Section 22.10 herein.
20.2 A party raising a dispute shall begin the procedure by setting forth in
writing and submitting to the other party a notice (a "Dispute Notice")
describing all issues and circumstances related to the dispute. The submitting
party shall include with the Dispute Notice copies of all materials sufficient,
in the submitting party's reasonable judgment, to substantiate the dispute and
the amount of claim under the dispute. The Dispute Notice shall be delivered to
the other party in accordance with Section 22 below. Notwithstanding the
provisions of the preceding sentence, a party to this Agreement may seek
equitable relief at any time in a court of competent jurisdiction as set forth
in Section 22.10 herein.
20.3 The designated Primary Representatives of the parties shall attempt to
resolve the dispute within [*] from the date the non-submitting party received
the Dispute Notice.
20.4 Failing resolution by the Primary Representatives pursuant to Section
20.3 above, the dispute, including all supporting documentation and the
respective positions of the parties, shall be submitted for resolution to the
Senior Officers designated by each party in accordance with Section 19.3 above.
The Senior Officers shall attempt to resolve the dispute within [*] from the
date the dispute was submitted to them.
20.5 Failure to Act. The failure to take any action on the part of either or
both parties under any step of the procedure outlined above during an applicable
[*] period shall automatically move the dispute process to the next step in the
procedure. Following the submission of a Dispute Notice pursuant to Section
20.2 above, the completion of each subsequent [*] period in each step will be
deemed to constitute notice to initiate the next step of the procedure.
21. NOTICES
Notices and other communication under this Agreement will be sent by (i)
certified mail, return receipt requested; or (ii) a major U.S. carrier, such as
UPS or Federal Express, that traces deliveries on request and provides the name
of the person who signed for the delivery, and shall be addressed to the parties
at the addresses set forth below, provided that either party may change its
address by written notice thereof:
Licensee: Gateway Companies, Inc.
000 Xxxxxxx Xxxxx
Xxxxx Xxxxx Xxxx, XX 00000
Attn: Director, Support Services
Copy to: Gateway Law Department
Attn: General Counsel
Motive:
Motive Communications, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx., Xxx. 000
Xxxxxx, XX 00000
Attn: Manager, Contract Services
Copy to: Chief Financial Officer
0000 Xxxxxxxxx Xxxxxx Xxxx., Xxx. 000
Xxxxxx, XX 00000
22. GENERAL
22.1 All rights and remedies, whether conferred hereunder, or by any other
instrument or law will be cumulative and may be exercised singularly or
concurrently. Failure by either party to enforce any term will not be deemed a
waiver of future enforcement of that or any other term. The terms and
conditions stated herein are declared to be severable.
22.2 This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns. Neither party may assign
this Agreement without the prior express written consent of the other party,
which consent shall not be unreasonably withheld or delayed. Notwithstanding
the foregoing, either party may, without the consent of the other party, assign
its rights and obligations hereunder to a majority owned (fifty-one percent or
greater) or in connection with
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
12
a merger or reorganization, or to a purchaser of all or substantially all of its
assets or of the assets of that portion of such party's business as to which
this Agreement pertains.
22.3 These terms and conditions constitute the entire agreement between the
parties with respect to the subject matter hereof. These terms and conditions
shall prevail notwithstanding any different, conflicting or additional terms and
conditions which may appear on any order submitted by Licensee or order
acknowledgment and/or acceptance issued by Licensor.
22.4 It is understood that neither party is constituted an agent, partner,
franchisee, employee or servant of the other for any purpose whatsoever. Each
party shall conduct its business in its own name and shall be solely responsible
for its acts, conduct and expenses and the acts, conduct and expenses of its
employees and agents.
22.5 Neither party shall publicly announce or disclose the existence of this
Agreement or its terms and conditions or advertise or issue a press release or
any publicity regarding this Agreement without the prior written consent of the
other party. This provision shall survive termination of this Agreement. [*]
this provision [*] shall be considered a material breach of this Agreement and
[*] may immediately, upon delivery of written notice, terminate this Agreement
without further notice or liability to it.
22.6 Licensor represents, warrants and covenants that it has not in the past,
and will not in the future, offer or give any payments, gifts, gratuities, or
anything of value [*] to any Licensee employee or representative. Any violation
of this provision will entitle Licensee to recover liquidated damages from
Licensor equal to the amount of the payment or gift and any and all expenses and
costs (including attorneys' fees on an indemnity basis) incurred in enforcing
this provision. The liquidated damages provision contained herein applies only
in the event that Licensor breaches this provision, and Licensee reserves all
remedies available to it by law or in equity in the event that Licensor breaches
any other provision of this Agreement. In the event that the liquidated damages
provision contained herein shall be invalid, illegal or unenforceable in any
respect, Licensee reserves the right to pursue all remedies available to it by
law or in equity.
22.7 If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such determination shall
not affect the validity of the remaining provisions unless Licensee determines,
in its discretion that the court's determination causes this Agreement to fail
in any of its essential purposes.
22.8 The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
22.9 The parties agree that their respective rights, obligations and duties
under Sections 3, 4.1 (to the extent stated in such Section), 8, 9, 10, 12, 16,
17 and 22 as well as any rights, obligations and duties which by their nature
extend beyond the expiration or termination of this Agreement, shall survive any
expiration or termination of this Agreement.
22.10 This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without resort to conflict of law principles. The
parties agree that any legal action by either party against the other relating
to this Agreement, Product Schedule, Transaction Document or attachment as
contained therein shall be commenced in a federal court of competent
jurisdiction in the State of New York. The parties hereby waive their right to a
jury trial in the event of any litigation arising under, related to or in
connection with this Agreement, product schedule, Transaction Document or any
other attachment hereto.
BY THEIR EXECUTION BELOW, THE PARTIES AGREE TO BE BOUND BY THIS AGREEMENT AND
ANY DOCUMENTS REFERENCED HEREIN.
Gateway Companies, Inc. ("Licensee") Motive Communications, Inc. ("Motive")
------------------------------------ ---------------------------------------
By: /S/ XXXXXXX X. XXXXXXX By: /S/ XXXXX XXXXXX
Printed Name: XXXXXXX X. XXXXXXX Printed Name: XXXXX XXXXXX
Title: SVP AND GENERAL COUNSEL Title: PRESIDENT AND CEO
Date: SEPTEMBER 15, 1999 Date: SEPTEMBER 13, 1999
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
13
SCHEDULE NO. 1
ENTERPRISE PRICING TERMS
This Schedule No. 1 ("Schedule") is subject to the terms and conditions of
the Software License Agreement ("Agreement") between Motive Communications, Inc.
("Motive") and Gateway Companies, Inc., ("Licensee") effective as of September
13, 1999.
1. PURPOSE
The purpose of this Schedule is to provide the terms under which Licensee
will purchase Motive Software Programs and services. Except for those additions
or modifications agreed to in this Schedule, all terms and conditions contained
in the Agreement shall remain unchanged. The term of this Schedule begins upon
full execution thereof and [*] (herein after "Term"). By execution of this
Schedule, Licensee hereby places a firm order for the Software Programs and
services detailed in this Schedule, in accordance with the terms and conditions
of this Schedule and the Agreement.
2. PRODUCT DESCRIPTION
Upon execution of this Schedule, Motive shall provide the following
products (collectively the "Software Programs"):
a) "SA Licenses" - Each "SA License" shall include: [*] Motive Support
Desktop License and [*] Motive Duet Server, Motive Studio, and Motive
Integration Server Licenses [*] to provide assisted service support
for the [*] number of Motive Support Desktop licenses. At the end of
the Term, Licensee will receive [*] for [*] Motive Support Desktop,
Motive Duet Server, Motive Studio and Motive Integration Server
Licenses [*].
b) "Self Service Licenses" - A ("SSL") license (identified in the
Agreement as "Motive Tuner") is required for [*] machine which is [*].
[*] or [*] is defined as use of the system or Software Program to
attempt a fix of a customer problem without the assistance of a System
Analyst. [*] will invoke a SSL license fee. The SSL includes [*]
Motive Solo Server licenses [*] to support [*] use of and access to
Motive's ActiveLink Premium Subscription Service, as well as the
Motive Support Tuner Software Program.
3. FINANCIAL SUMMARY
[*]
Server Software (Motive Duet, Motive Studio
Motive Integration Server) provided with SA Licenses [*]
System Analysts Licenses [*] [*]
[*] [*]
Self-Service License [*] [*]
[*] [*]
[*] [*]
* ActiveLink Subscription [*] Self-Service License [*].
4. SOFTWARE PROGRAM MODEL AND FEE
a) Systems Analyst Licenses ("SA Licenses"). Under this Schedule,
Licensee may purchase [*] SA Licenses at a unit price of [*] each.
Delivery of the [*] SA Licenses will be made upon execution of the
Schedule and delivery of the remaining [*] SA Licenses will be made by
[*].
Motive will [*] Licensee for each batch of SA Licenses upon [*] and
Licensee shall [*] such invoices in accordance with Section 4.1 of the
Agreement. If Licensee does not elect to [*] of the [*] SA Licenses
by [*] the effective unit price will [*] from [*] per unit [*] per
unit. Licensee will pay Motive [*] which reflects [*] SA Licenses
[*].
Licensee may purchase [*] SA License after [*] through [*] in minimum
quantities of [*] at the earned unit price of [*] (if [*] units were
purchased prior to [*]) or [*] (if only [*] were purchased prior to
[*]).
At any time during the Term, Licensee may purchase [*] SA Licenses.
The unit price for the lump sum [*] SA Licenses will be [*] per unit.
After [*] any [*] SA Licenses purchased during the Term [*] may be
purchased at [*] per unit.
b) Self-Service License ("SSL's") Usage Fee. Upon execution of this
Schedule, Licensee places [*] to pay Motive an [*] usage fee of [*]
for usage during the period beginning on the [*] of this [*] and
ending on [*] and [*] beginning at the conclusion of [*] and
continuing for 12 months thereafter ([*]). For payment of each [*]
usage fee payments, Licensee will have the right to [*] SSL's on [*]
Licensee's [*]. Thereafter, for each remaining [*] during [*],
Licensee may at its option renew its [*] by paying Motive [*] for the
continued right to [*] and [*] of SSL's on [*] Licensee's [*].
If after the end of [*] Licensee chooses only to [*] SSL's in support
of [*] SSL's and [*] SSL's [*], Licensee may [*] Motive an [*] usage
fee of [*] a year [*] remaining year of the Term.
The SSL's and Motive Solo Server licenses are provided [*]. If during
the Term, Licensee decides [*] SSL usage right, Licensee agrees to [*]
SSL's; [*] SSL's to [*] and [*] Motive ActiveLink [*] Active Content
[*] ActiveLink.
5. SOFTWARE MAINTENANCE
a) The fist year's [*] Maintenance fee is [*] for [*] maintenance.
b) The second year's [*] Maintenance fee is [*] for [*] maintenance.
c) [*] Maintenance fees [*] shall be [*] and will [*] for each additional
[*] SA Licenses [*] by Licensee, above the initial [*] SA Licenses,
not to exceed [*] per year.
6. LICENSOR PROFESSIONAL SERVICES ("Professional Services") AND TRAINING
[*]
7. PAYMENT TERMS
[*]
8. [*] TECHNICAL SUPPORT KNOWLEDGE BASE CONTENT
Upon execution of this Schedule, Licensee agrees to [*] to Motive. This
information will include [*]. Motive may only use the [*]. All other [*]
received by Motive from Licensee shall not be made available to anyone
other than Licensee and its Customers [*].
9. [*] COMMITMENT
For a period of [*] from the date of this Schedule, Licensee agrees to have
Motive as its [*] of [*] that provide [*] covered by Motive's [*] for
Licensee products. Such [*] shall not [*] Licensee from [*] that provide
[*] to that provided by the [*]. In the event Licensee violates this [*]
commitment, all outstanding amounts [*] remain due and payable [*] waived.
[*] waiver constitutes reasonable and equitable compensation [*].
================================================================================
IN WITNESS WHEREOF, the parties hereto have executed this Schedule No. 1 with an
effective date of September 13, 1999.
Gateway Companies, Inc. ("Licensee") Motive Communications, Inc. ("Motive")
Signature: /s/ Xxxxxxx X. Xxxxxxx Signature: /s/ Xxxxx Xxxxxx
---------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx Xxxxxx
---------------------- -----------------------
Title: SVP and General Counsel Title: President and CEO
---------------------- -----------------------
Date: September 15, 1999 Date: September 13, 1999
---------------------- -----------------------
