EXHIBIT 10.16
CROSS-LICENSE AND OEM AGREEMENT
This Cross-License and OEM Agreement (the "Agreement") is entered into
as of the Effective Date by and between Seagate Software Information and
Management Group, Inc., a British Columbia corporation, with offices at 0000
Xxxx Xxxxxx Xxxxxx, 0/xx/ Xxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx VGE 2M6
(together with its Affiliates, "IMG") and VERITAS Holding Corporation, a
Delaware corporation, with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 and VERITAS Software Corporation, a Delaware corporation, with
offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000.
WHEREAS, VERITAS and IMG's parent company, Seagate Technology, Inc.
("Seagate"), have entered into an Agreement and Plan of Reorganization (the
"Merger Agreement") pursuant to which VERITAS is acquiring IMG's subsidiary
Network and Storage Management Group, Inc. ("NSMG"), with Seagate retaining the
IMG Group, and pursuant to that Merger Agreement, all ownership rights in and to
certain software products and technology of NSMG ("Transferred Products") will
be transferred to VERITAS.
WHEREAS, each of NSMG and IMG currently distribute certain of the
other's products, or portions thereof, either bundled with or embedded into the
other group's products, and the parties desire that they will continue to have
such rights after VERITAS' acquisition of NSMG; and
WHEREAS, the parties further desire that IMG have access to the
Transferred Products, as well as access to VERITAS' other current and future
products, and the technology therein, on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties agree:
1. Definitions and Related Matters.
-------------------------------
1.1 "VERITAS" shall mean VERITAS Holding Corporation and/or VERITAS
Software Corporation.
1.2 "Ashwin" shall mean the current version of Ashwin software
acquired by VERITAS pursuant to the Merger Agreement, and all prior versions, in
each case in source code, object code, and any other form, and the associated
user documentation.
1.3 "Crystal Info" shall mean all prior, current, and future
versions and releases of the Crystal Info software product, and all versions of
any successor products.
1.4 "Client Exec" shall mean the Client Exec software acquired by
Venus pursuant to the Merger Agreement, in object code or executable form only,
and the associated user documentation, and all Updates thereto provided by
VERITAS.
1.5 "Licensed Client Exec" shall mean those portions of Client Exec
incorporated in Crystal Info.
1.6 "Manage Exec" shall mean the Manage Exec software acquired by
Venus pursuant to the Merger Agreement, in object code or executable form only,
and the associated user documentation, and all Updates thereto provided by
VERITAS.
1.7 "Licensed Manage Exec" shall mean the restricted version of
Manage Exec incorporated into Crystal Info.
1.8 "Licensed Crystal Reports" shall mean a restricted (as set
forth herein below) version of the Crystal Reports software product, in object
code or executable form only, and the associated user documentation, and all
Updates thereto provided by IMG. The functionality of this restricted version is
limited to operation with the product with which it is distributed, i.e., the
data access and report functionality is limited to accessing data from the
product with which it is distributed, and is limited to generating reports using
these data.
1.9 "IMG Product" means each software product distributed by IMG.
1.10 "Software Products" shall mean the software products described
in Exhibit A attached hereto, in source code, object code, executable, or any
other form, and shall include (i) all Updates, and (ii) all IMG Developments.
Each Software Product shall be either a Base Software Product, an OEM Software
Product or an Application Software Product. It is the parties' intent and
agreement that all VERITAS software products be included in Exhibit A.
Accordingly, if any such product is inadvertently omitted, Exhibit A shall be
deemed amended to include such product. "Software Products" shall include all
software products of each company acquired by VERITAS.
1.11 "Base Software Products" shall mean those Software Products
which provide foundation storage management capabilities. The Base Software
Products as of the Effective Date are so specified in Exhibit A, Section A.
1.12 "OEM Software Products" shall mean those Software Products (or
portions thereof) which are functional supersets of Base Software Products. The
OEM Software Products as of the Effective Date are so specified in Exhibit A,
Section B.
1.13 "Application Software Products" shall mean all Software
Products other than Base Software Products and OEM Software Products.
"Application Software Products" ordinarily are application products which
function in conjunction with a Base Software Product or OEM Software Product.
The Application Software Products as of the Effective Date are so specified in
Exhibit A, Section C.
1.14 "Documentation" shall mean the related materials customarily
supplied or made available by VERITAS to End Users of the Software Products, or
used for marketing the Software Products, including without limitation all
printed and on-line documentation, on-line help, training materials, and
collateral marketing materials.
1.15 "Software Copy" means a copy of a Software Product and the
supporting End User Documentation ("User Documentation").
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1.16 "Media Kit" means the shrink-wrapped package containing a
Software Copy and associated User Documentation.
1.17 "License Key" means a series of characters which activates a
Software Copy for use.
1.18 "Update" to a Software Product shall mean any error correction,
update, upgrade, new version, new release, or other modification or addition
thereto.
1.19 "Release" of a Software Product means a new version of that
Software Product which includes the addition of a previously unincluded function
or feature to the Software Product (designated sequentially by VERITAS as an
increase to the left of the decimal point, e.g., "Release 1.0," "Release 2.0"
etc.).
1.20 "End User" shall mean a person or entity which acquires a
Software Product for its own internal data processing requirements and not for
redistribution.
1.21 "Distributor" shall mean any distributor, OEM, VAR, reseller,
or other third party intermediary between IMG (or its sublicensee) and an End
User in IMG's (or, as applicable, its sublicensee's) Software Product chain of
distribution.
1.22 "IMG Developments" shall mean all developments performed by or
for VERITAS, pursuant to Section 8 below.
1.23 "Statement of Work" shall mean a document, executed by the
parties and in the form attached hereto as Exhibit B, setting forth development
to be performed by VERITAS, at the request of IMG, pursuant to this Agreement.
1.24 "Milestone" shall mean each development milestone identified in
a Statement of Work.
1.25 "Deliverables" shall mean the items to be delivered by VERITAS
to IMG in connection with each Milestone, as set forth in a Statement of Work.
1.26 "Specifications" shall mean the technical and other
specifications for the Deliverables, as set forth in a Statement of Work.
1.27 "Development Schedule" shall mean the schedule for completion
of each Milestone, as set forth in a Statement of Work.
1.28 "Confidential Information" shall have the meaning specified
therefor in Section 12.1 below.
1.29 "Source Code" shall mean a Software Product in human readable
form (e.g., C/C++ code, and including all comments), together with all technical
documentation (e.g., flow charts) useful for a programmer to modify or
understand the code. With respect to build tools and
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other libraries, tools, and all other items necessary to build, install, and
test the product ("Tools"), Source Code shall include (i) a list of all
commercially available Tools for that product, and (ii) a copy of all other
Tools for that product.
1.30 "Affiliate" of a party shall mean any entity which controls, is
controlled by, or is under common control with that party, where "control" means
ownership or control, direct or indirect, of fifty percent (50%) or more of the
stock or other equity interest entitled to vote for the election of directors or
equivalent governing body of the entity.
1.31 "Consumer Price Index" shall mean the Consumer Price Index, for
All Urban Consumers, Subgroup "All Items", for the San Francisco-Oakland-San
Xxxx Metropolitan Area (Base Year 1982-84=100), which is currently being
published by the United States Department of Labor, Bureau of Labor Statistics.
If, however, this Consumer Price Index is changed so that the base year is
altered from that used as of the Commencement Date, then the Consumer Price
Index shall be converted in accordance with the conversion factor published by
the United States Department of Labor, Bureau of Labor Statistics, to obtain the
same results that would have been obtained had the base year not been changed.
If no conversion factor is available or if the Consumer Price Index is otherwise
changed, revised or discontinued for any reason, there shall be substituted in
lieu thereof and the term "Consumer Price Index" shall thereafter refer to the
most nearly comparable official price index of the United States Government to
obtain substantially the same result as would have been obtained had the
original Consumer Price Index not been changed, revised or discontinued, which
alternative index shall be selected by IMG and shall be subject to VERITAS'
reasonable written approval.
1.32 "Effective Date" shall mean the date of closing of the Merger
Agreement.
2. Ashwin License Grant to IMG.
---------------------------
2.1 License. VERITAS hereby grants to IMG, under all copyrights
-------
and other intellectual property rights pertaining to Ashwin, a nonexclusive,
perpetual, irrevocable, worldwide, royalty free, fully paid license (i) to
modify and otherwise prepare derivative works and compilations of Ashwin, (ii)
to reproduce, have reproduced, use, display and distribute Ashwin and derivative
works and compilations thereof, directly to End Users and/or to or through
Distributors, provided that IMG's right to distribute Ashwin (and derivative
works and compilations thereof) shall be limited to Ashwin (and derivative works
and compilations thereof) incorporated into, or bundled with, IMG Products;
(iii) to reproduce, have reproduced, use display and prepare derivative works
and compilations of the Ashwin user documentation, and to distribute this
documentation and derivative works and compilations thereof, directly to End
Users and/or to or through Distributors; and (iv) to sublicense third parties to
exercise the rights in the preceding clauses (ii) and (iii), including the right
to grant further sublicenses. This license grant includes, without limitation, a
license under all current and future patents owned by or licensed to VERITAS
which pertain to Ashwin to the extent necessary to exercise any of the foregoing
rights.
2.2 End User Licensing. IMG will use the same End User license
------------------
agreement for Ashwin as IMG then uses for the IMG Product in which Ashwin is
distributed. It is understood and agreed
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that, without limitation, this may be (i) a "shrinkwrap" agreement that appears
on or in the software package, (ii) an online agreement that appears on the End
User screen when the software is first used, and/or (iii) a "web wrap" agreement
that appears before, or in connection with, the End User's electronic receipt of
the software.
2.3 Use of Distributors. IMG shall be entitled to distribute
-------------------
Ashwin pursuant to this Section 2 directly to End Users and/or through
Distributors, in its discretion. IMG shall be entitled to sublicense
Distributors to reproduce Ashwin for use and distribution by the Distributor
pursuant to this Section 2, and shall be entitled to sublicense End Users to
reproduce Ashwin for use, in accordance with this Section 2, by the End User or
its affiliated companies (e.g., site, enterprise, or multiple-seat licenses).
Except as may be expressly provided herein, there shall be no restrictions
whatsoever on which distribution channels IMG may use.
2.4 Support; Existing Documentation. VERITAS will not be obligated
-------------------------------
to provide IMG with any technical support with respect to Ashwin. However, IMG
shall be entitled to retain, and to continue to reproduce, use, and modify, all
user documentation, technical documentation, and other materials in its
possession pertaining to Ashwin, in support of the license granted to IMG in
this Section 2.
2.5 Ownership. IMG will own all Ashwin derivative works prepared
---------
by or for it, subject to VERITAS' retention of ownership of Ashwin itself.
2.6 Infringement Actions. IMG will be entitled to commence
--------------------
infringement against third parties with respect to Ashwin, with respect to
alleged infringements pertaining to the IMG products in which Ashwin, or a
derivative work thereof, is incorporated, and VERITAS will provide all
cooperation, and take all such actions, as may be reasonably necessary or useful
to enable IMG to do so.
2.7 No Warranty. Ashwin is licensed to IMG pursuant to Section 2.1
-----------
above "AS IS" AND WITHOUT WARRANTY, AND VERITAS DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
2.8 No Liability. IN NO EVENT SHALL VERITAS HAVE ANY LIABILITY,
------------
DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHERWISE, TO SEAGATE SOFTWARE ARISING OUT
OF SEAGATE SOFTWARE'S DISTRIBUTION OR USE OF ASHWIN PURSUANT TO THIS SECTION.
2.9 Limitation. This Section 2 applies only to Ashwin as licensed
----------
to IMG pursuant to Section 2.1, and Sections 6, 7, 9, 11, 13, and 14 below shall
not apply thereto. Sections 6, 7, 9, 11, 13, and 14 below shall apply to Ashwin
only to the extent that IMG licenses Ashwin from VERITAS as a Software Product
pursuant Section 6 of this Agreement.
3. Client Exec License Grant to IMG.
--------------------------------
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3.1 License.
-------
(a) Object Code Rights. VERITAS hereby grants to IMG, under all
------------------
copyrights and other intellectual property rights pertaining to Licensed Client
Exec, a nonexclusive, perpetual, irrevocable, worldwide, royalty free, fully
paid license (i) to reproduce, have reproduced, use, display, and distribute
Licensed Client Exec, directly to End Users and/or to or through Distributors,
provided that IMG's right to distribute Licensed Client Exec shall be limited to
Licensed Client Exec incorporated into Crystal Info; (ii) to reproduce, have
reproduced, use, display and prepare derivative works and compilations of the
Licensed Client Exec user documentation, and to distribute this documentation
and derivative works and compilations thereof, directly to End Users and/or to
or through Distributors; and (iii) to sublicense Distributors to exercise the
rights in the preceding clauses (i) and (ii), including the right to grant
further sublicenses. This license grant includes, without limitation, a license
under all current and future patents owned by or licensed to VERITAS which
pertain to Licensed Client Exec, to the extent necessary to exercise any of the
foregoing rights.
(b) Source Code Rights. VERITAS shall deliver to IMG, promptly upon
------------------
IMG's written request, a copy of the source code for Licensed Client Exec and
all related technical documentation. VERITAS grants to IMG a nonexclusive,
royalty free license to reproduce, use, and modify such source code solely for
the purpose of supporting, maintaining and correcting errors in Licensed Client
Exec. IMG shall be entitled to retain contractors and consultants in connection
with the exercise of such rights, provided that such contractors and consultants
are subject to confidentiality obligations comparable to those to which IMG is
obligated pursuant to Section 16 below.
(c) End User Licensing. IMG will use the same End User license
------------------
agreement for Licensed Client Exec as IMG then uses for Crystal Info, provided
that IMG will use reasonable efforts to include provisions similar, as to
protection of VERITAS' interests, to Sections 2, 3, and 7 of Exhibit C. It is
understood and agreed that, without limitation, this may be (i) a "shrinkwrap"
agreement that appears on or in the software package, (ii) an online agreement
that appears on the End User screen when the software is first used, and/or
(iii) a "web wrap" agreement that appears before, or in connection with, the End
User's electronic receipt of the software.
3.2 Use of Distributors. IMG shall be entitled to distribute
-------------------
Licensed Client Exec pursuant to this Section 3 directly to End Users and/or
through Distributors, in its discretion. IMG shall be entitled to sublicense
Distributors to reproduce Licensed Client Exec for use and distribution by the
Distributor pursuant to this Section 3, and shall be entitled to sublicense End
Users to reproduce Licensed Client Exec for use pursuant to this Section 3 by
the End User or its affiliated companies (e.g., site, enterprise, or multiple-
seat licenses). Except as may be expressly provided herein, there shall be no
restrictions whatsoever on which distribution channels IMG may use.
3.3 Support for Licensed Client Exec. IMG may, at its sole option,
--------------------------------
(i) provide first-tier technical and help desk support to End Users receiving
Licensed Client Exec from IMG or its Distributors, in which case VERITAS shall
provide VERITAS' standard second-tier technical
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support to IMG to assist IMG technical support personnel in answering questions
and resolving problems regarding Licensed Client Exec reported by End Users; or
(ii) upon written request, require VERITAS to provide first-tier technical and
help desk support to End Users receiving Licensed Client Exec from IMG or its
Distributors.
3.4 Existing Documentation. IMG shall be entitled to retain, and
----------------------
to continue to reproduce, use, and modify, all user documentation, technical
documentation, and other materials in its possession pertaining to Licensed
Client Exec, in support of the license granted to IMG in this Section 3. At
IMG's request, VERITAS will provide to IMG then existing updates to, or new
version of, any of these materials.
3.5 No Warranty. Licensed Client Exec is licensed to IMG pursuant
-----------
to Section 3.1 above "AS IS" AND WITHOUT WARRANTY, AND VERITAS DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.6 No Liability. IN NO EVENT SHALL VERITAS HAVE ANY LIABILITY,
------------
DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHERWISE, TO IMG ARISING OUT OF IMG'S
DISTRIBUTION OR USE OF LICENSED CLIENT EXEC PURSUANT TO THIS SECTION.
3.7 Limitation. This Section 3 applies only to Licensed Client
----------
Exec as licensed to IMG pursuant to Section 3.1, and Sections 6, 7, 9, 11, 13,
and 14 below shall not apply thereto. Sections 6, 7, 9, 11, 13, and 14 below
shall apply to Client Exec only to the extent that IMG licenses Client Exec from
VERITAS as a Software Product pursuant to Section 6 of this Agreement.
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4. Manage Exec License Grant to IMG.
--------------------------------
4.1 License.
-------
(a) Object Code Rights. VERITAS hereby grants to IMG, under all
copyrights and other intellectual property rights pertaining to Licensed Manage
Exec, a nonexclusive, perpetual, irrevocable, worldwide, royalty free, fully
paid license (i) to reproduce, have reproduced, use, display, and distribute
Licensed Manage Exec, directly to End Users and/or to or through Distributors,
provided that Seagate Software's right to distribute Licensed Manage Exec shall
be limited to distribution Licensed Manage Exec bundled with Crystal Info, and
distribution of Licensed Manage Exec to End Users of copies of Crystal Info
previously distributed by IMG or its Distributors; (ii) to reproduce, have
reproduced, use, display and prepare derivative works and compilations of the
Licensed Manage Exec user documentation, and to distribute this documentation
and derivative works and compilations thereof, directly to End Users and/or to
or through Distributors; and (iii) to sublicense Distributors to exercise the
rights in the preceding clauses (i) and (ii), including the right to grant
further sublicenses. This license grant includes, without limitation, a license
under all current and future patents owned by or licensed to VERITAS which
pertain to Licensed Manage Exec, to the extent necessary to exercise any of the
foregoing rights.
(b) Source Code Rights. VERITAS shall deliver to IMG, promptly upon
IMG's written request, a copy of the source code for Licensed Manage Exec and
all related technical documentation. VERITAS grants to IMG a nonexclusive,
royalty free license to reproduce, use, and modify such source code solely for
the purpose of supporting, maintaining and correcting errors in Licensed Manage
Exec. IMG shall be entitled to retain contractors and consultants in connection
with the exercise of such rights, provided that such contractors and consultants
are subject to confidentiality obligations comparable to those to which IMG is
obligated pursuant to Section 16 below.
4.2 End User Licensing. IMG will use the same End User license
------------------
agreement for Licensed Manage Exec as IMG then uses for Crystal Info, provided
that IMG will use reasonable efforts to include provisions similar, as to
protection of VERITAS' interests, to Sections 2, 3, and 7 of Exhibit C. It is
understood and agreed that, without limitation, this may be (i) a "shrinkwrap"
agreement that appears on or in the software package, (ii) an online agreement
that appears on the End User screen when the software is first used, and/or
(iii) a "web wrap" agreement that appears before, or in connection with, the End
User's electronic receipt of the software.
4.3 Use of Distributors. IMG shall be entitled to distribute Licensed
-------------------
Manage Exec pursuant to this Section 4 directly to End Users and/or through
Distributors, in its discretion. IMG shall be entitled to sublicense
Distributors to reproduce Licensed Manage Exec for use and distribution by the
Distributor pursuant to this Section 4, and shall be entitled to sublicense End
Users to reproduce Licensed Manage Exec for use pursuant to this Section 4 by
the End User or its affiliated companies (e.g., site, enterprise, or multiple-
seat licenses). Except as may be expressly provided herein, there shall be no
restrictions whatsoever on which distribution channels IMG may use.
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4.4 Support for Licensed Manage Exec. IMG may, at its sole option,
--------------------------------
(i) provide first-tier technical and help desk support to End Users receiving
Licensed Manage Exec from IMG or its Distributors, in which case VERITAS shall
provide VERITAS' standard second-tier technical support to IMG to assist IMG
technical support personnel in answering questions and resolving problems
regarding Licensed Manage Exec reported by End Users; or (ii) upon written
request, require VERITAS to provide first-tier technical and help desk support
to End Users receiving Licensed Manage Exec from IMG or its Distributors.
4.5 Existing Documentation. IMG shall be entitled to retain, and
----------------------
to continue to reproduce, use, and modify, all user documentation, technical
documentation, and other materials in its possession pertaining to Licensed
Manage Exec, in support of the license granted to IMG in this Section 4. At
IMG's request, VERITAS will provide to IMG existing updates to, or new versions
of, any of these materials.
4.6 No Warranty. Licensed Manage Exec is licensed to IMG pursuant
-----------
to Section 4.1 above "AS IS" AND WITHOUT WARRANTY, AND VERITAS DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.7 No Liability. IN NO EVENT SHALL VERITAS HAVE ANY LIABILITY,
------------
DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHERWISE, TO IMG ARISING OUT OF IMG'S
DISTRIBUTION OR USE OF LICENSED MANAGE EXEC PURSUANT TO THIS SECTION.
4.8 Limitation. This Section 4 applies only to Licensed Manage Exec
----------
as licensed to IMG pursuant to Section 4.1, and Sections 6, 7, 9, 11, 13, and 14
below shall not apply thereto. Sections 6, 7, 9, 11, 13, and 14 below shall
apply to Manage Exec only to the extent that IMG licenses Manage Exec from
VERITAS as a Software Product pursuant Section 6 of this Agreement.
5. Crystal Reports License Grant to VERITAS.
----------------------------------------
5.1 License. IMG hereby grants to VERITAS, under all copyrights and
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other intellectual property rights pertaining to Licensed Crystal Reports, a
nonexclusive, perpetual, irrevocable, worldwide royalty free, fully paid license
(i) to reproduce, have reproduced, use, display, and distribute Licensed Crystal
Reports, directly to End Users and/or to or through Distributors, provided that
VERITAS' right to distribute Licensed Crystal Reports shall be limited to
Licensed Crystal Reports bundled with, or incorporated into, a Transferred
Product (or a successor thereto); (ii) to reproduce, have reproduced, use,
display and prepare derivative works and compilations of the Licensed Crystal
Reports user documentation, and to distribute this documentation and derivative
works and compilations thereof, directly to End Users and/or to or through
Distributors; and (iii) to sublicense Distributors to exercise the rights in the
preceding clauses (i) and (ii), including the right to grant further
sublicenses. This license grant includes, without limitation, a license under
all current and future patents owned by or licensed to IMG which pertain to
Licensed Crystal Reports, to the extent necessary to exercise any of the
foregoing rights.
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5.2 End User Licensing. VERITAS will use the same End User license
------------------
agreement for Licensed Crystal Reports as VERITAS then uses for the Transferred
Product with which it is bundled or in which it is incorporated, provided that
VERITAS will use reasonable efforts to include provisions similar, as to
protection of Seagate's interests, to Sections 2, 3, and 7 of Exhibit C. It is
understood and agreed that, without limitation, this may be (i) a "shrinkwrap"
agreement that appears on or in the software package, (ii) an online agreement
that appears on the End User screen when the software is first used, and/or
(iii) a "web wrap" agreement that appears before, or in connection with, the End
User's electronic receipt of the software. VERITAS shall either (i) distribute
with each copy of Licensed Crystal Reports distributed by VERITAS or its
Distributors a registration card specified by IMG, or (ii) to the extent this
information is available to VERITAS, VERITAS shall provide a report to IMG each
month of all End Users who have received copies of Licensed Crystal Reports
distributed by VERITAS or its Distributors.
5.3 Use of Distributors. VERITAS shall be entitled to distribute
-------------------
Licensed Crystal Reports directly to End Users and/or through Distributors, in
its discretion. VERITAS shall be entitled to sublicense Distributors to
reproduce Licensed Crystal Report for use and distribution by the Distributor
pursuant to this Section 5, and shall be entitled to sublicense End Users to
reproduce Licensed Crystal Report for use pursuant to this Section 5 by the End
User or its affiliated companies (e.g., site, enterprise, or multiple-seat
licenses). Except as may be expressly provided herein, there shall be no
restrictions whatsoever on which distribution channels VERITAS may use.
5.4 Support for Licensed Crystal Reports. VERITAS may, at its sole
------------------------------------
option, (i) provide first-tier technical and help desk support to End Users
receiving Licensed Crystal Reports from VERITAS or its Distributors, in which
case Seagate shall provide Seagate's standard second-tier technical support to
VERITAS to assist VERITAS technical support personnel in answering questions and
resolving problems regarding Licensed Crystal Reports reported by End Users; or
(ii) upon written request, require Seagate to provide first-tier technical and
help desk support to End Users receiving Licensed Crystal Reports from IMG or
its Distributors.
5.5 Existing Documentation. VERITAS shall be entitled to retain,
----------------------
and to continue to reproduce, use, and modify, all user documentation, technical
documentation, and other materials in its possession pertaining to Licensed
Crystal Reports, in support of the license granted to VERITAS in this Section 5.
At VERITAS' request, IMG will provide to VERITAS then existing updates to, or
new versions of, any of these materials.
5.6 No Warranty. Licensed Crystal Reports is licensed to VERITAS
-----------
pursuant to Section 5.1 above "AS IS" AND WITHOUT WARRANTY, AND IMG DISCLAIMS
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.7 No Liability. IN NO EVENT SHALL VERITAS HAVE ANY LIABILITY,
------------
DIRECT, INDIRECT, CONSEQUENTIAL, OR OTHERWISE, TO IMG ARISING OUT OF VERITAS'
DISTRIBUTION OR USE OF LICENSED CRYSTAL REPORTS PURSUANT TO THIS SECTION.
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6. License Grants.
--------------
6.1 Licenses.
--------
(a) VERITAS hereby grants to IMG, under all copyrights and other
intellectual property rights pertaining to the Base Software Products, a
nonexclusive, worldwide license (i) to reproduce, use, modify and prepare
derivative works and compilations of the Base Software Products (including the
Source Code thereof), only to achieve and ensure compatibility of the Base
Software Products with IMG Products, and for support and maintenance purposes;
(ii) to reproduce, have reproduced, use, display, and distribute the Base
Software Products (including derivative works and compilations prepared pursuant
to clause (i)), in object code or executable form, directly to End Users and/or
to or through Distributors, provided that IMG's right to distribute Base
Software Products shall be limited to distribution of Base Software Products
bundled with IMG products which are bona fide IMG products and which add value
to the Base Software Products; (iii) to reproduce, have reproduced, use, display
and prepare derivative works and compilations of the Documentation, and to
distribute this Documentation and derivative works and compilations thereof,
directly to End Users and/or to or through Distributors; and (iv) to sublicense
Distributors to exercise the rights in the preceding clauses (ii) and (iii),
including the right to grant further sublicenses. IMG agrees, however, not to
prepare a derivative work, of a Base Software Product, that constitutes a
product comparable to a VERITAS OEM Software Product that is a full featured
version of that Base Software Product.
(b) VERITAS hereby grants to IMG, under all copyrights and other
intellectual property rights pertaining to the OEM Software Products, a
nonexclusive (except as set forth in Section 6.6 below), worldwide license (i)
to reproduce, use, modify and prepare derivative works and compilations of the
OEM Software Products (including the Source Code thereof), only to achieve and
ensure compatibility of the OEM Software Products with IMG Products, and for
support and maintenance purposes; (ii) to reproduce, have reproduced, use,
display, and distribute the OEM Software Products (including derivative works
and compilations prepared pursuant to clause (i)), in object code or executable
form, directly to End Users and/or to or through Distributors; (iii) to
reproduce, have reproduced, use, display and prepare derivative works and
compilations of the Documentation, and to distribute this Documentation and
derivative works and compilations thereof, directly to End Users and/or to or
through Distributors; and (iv) to sublicense Distributors to exercise the rights
in the preceding clauses (ii) and (iii), including the right to grant further
sublicenses.
(c) VERITAS hereby grants to IMG, under all copyrights and other
intellectual property rights pertaining to the Application Software Products, a
nonexclusive, worldwide license (i) to reproduce, use, modify and prepare
derivative works and compilations of the Application Software Products
(including the Source Code thereof), only to achieve and ensure compatibility of
the Application Software Products with IMG Products, and for support and
maintenance purposes; (ii) to reproduce, have reproduced, use, display, and
distribute the Application Software Products (including derivative works and
compilations prepared pursuant to clause (i)), in object code or executable
form, directly to End Users and/or to or through Distributors; (iii) to
reproduce, have reproduced, use, display and prepare derivative works and
compilations of
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the Documentation, and to distribute this Documentation and derivative works and
compilations thereof, directly to End Users and/or to or through Distributors;
and (iv) to sublicense Distributors to exercise the rights in the preceding
clauses (ii) and (iii), including the right to grant further sublicenses.
(d) IMG shall be entitled to retain contractors and consultants
in connection with the exercise of the above Source Code rights, provided that
such contractors and consultants are subject to confidentiality obligations
comparable to those to which IMG is obligated pursuant to Section 12 below.
(e) The license grants in this Section 6.1 include, without
limitation, a license under all current and future patents owned by or licensed
to VERITAS, to the extent necessary to exercise any of the foregoing rights. IMG
will be entitled to reproduce its own Software Copies, and/or to obtain Software
Copies from VERITAS as set forth in Section 7 below for Software Products for
which VERITAS offers Media Kits.
6.2 Delivery of Software. Upon IMG's request in each case, VERITAS
--------------------
shall promptly provide to IMG (i) at IMG's option, one complete and accurate
"golden master" object code or executable copy of any or all of the Software
Products listed in Exhibit A and one complete and accurate copy of the
associated Documentation, and/or (ii) at IMG's option, one copy of the Source
Code for that Software Product. Upon completion of development of each
additional Software Product (including each Update), VERITAS shall provide to
IMG one complete and accurate "golden master" object code or executable copy of
that Software Product (or Update) and one complete and accurate copy of the
associated Documentation, for evaluation and use by IMG. If IMG has requested
the Source Code for any Updated Software Product, or if IMG requests the Source
Code for a new Software Product, then VERITAS shall also provide to IMG the
Source Code for the Update or Software Product. It is understood, however, that
some Software Products may include portions licensed from third parties, for
which VERITAS does not have the Source Code, or is not permitted to sublicense
the Source Code, and that VERITAS shall not be obligated to provide such Source
Code to IMG. VERITAS agrees, however, to use reasonable efforts to obtain the
right to sublicense to IMG any such Source Code which VERITAS does have.
6.3 End User Licensing. IMG will use an End User license agreement
------------------
for Software Products that includes provisions similar, as to protection of
VERITAS' interests, to Sections 2, 3, and 7 of Exhibit C hereto. It is
understood and agreed that, without limitation, this may be (i) a "shrinkwrap"
agreement that appears on or in the software package, (ii) an online agreement
that appears on the End User screen when the software is first used, and/or
(iii) a "web wrap" agreement that appears before, or in connection with, the End
User's electronic receipt of the software.
6.4 Use of Distributors. IMG shall be entitled to distribute
-------------------
Software Products directly to End Users and/or through Distributors, in its
discretion. IMG shall be entitled to sublicense Distributors to reproduce
Software Products for use and distribution by the Distributor, and shall be
entitled to sublicense End Users to reproduce Software Products for use by the
End User or its affiliated companies (e.g., site, enterprise, or multiple-seat
licenses). Except as may be expressly
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provided herein, there shall be no restrictions whatsoever on which distribution
channels IMG may use.
6.5 License Keys. When necessary, VERITAS will supply IMG with all
------------
License Keys required by IMG to exercise the rights and licenses granted to IMG.
6.6 Marketing Collateral. VERITAS will provide IMG with marketing
--------------------
materials, brochures, graphics, and all other similar existing materials, which
IMG shall be entitled to copy and modify for use in connection with marketing
the Software Products. For VERITAS-branded Software Products, VERITAS will
provide to IMG such quantities of such materials as IMG may reasonably require.
6.7 Trademarks. IMG will market and distribute the VERITAS
----------
Application Software Products under the applicable VERITAS trademarks. IMG will
have the right to market and distribute the Base Software Products and OEM
Software Products under IMG trademarks, under VERITAS trademarks, under third
party trademarks, or, if agreed, co-branded with VERITAS' and IMG's trademarks.
VERITAS hereby grants to IMG a non-exclusive license to use "VERITAS," both the
name and in the stylized form used by VERITAS, and the applicable Software
Product trademarks (the "Trademarks") in connection with IMG's distribution,
advertising and promotion of the Software Products. IMG's use shall be in
accordance with the applicable law and VERITAS' reasonable policies regarding
advertising and trademark usage as established from time to time, but only to
the extent such policies are communicated in writing to IMG with adequate
notice.
6.8 Product Discontinuance. VERITAS has the right to discontinue any
----------------------
Software Product, or the availability of Media Kits for any Software Product,
upon thirty (30) days prior written notice to IMG. This shall not, however,
affect IMG's and its Distributors' and other sublicensees' right to continue to
make and distribute Software Copies made by such parties pursuant to Section 6.1
above, provided that IMG shall not, after such discontinuance, market or
distribute any discontinued Software Product under VERITAS' trademarks. VERITAS
shall provide IMG at least twelve (12) months prior written notice of
discontinuance of support for any Software Product.
6.9 Ownership.
---------
(a) Subject to the rights and licenses granted herein and except
for the IMG Developments, VERITAS shall retain its ownership of the Software
Products and Documentation supplied to IMG by VERITAS. The rights granted to IMG
are nonexclusive, and, except as set forth in Section 6.6 below, VERITAS
reserves the right to distribute the Software Products directly, and indirectly
through OEMs, distributors, integrators, or otherwise.
(b) Subject to VERITAS' retention of ownership of the underlying
Software Product, IMG and VERITAS shall jointly and equally own all Software
Product modifications, and other developments resulting in derivative works,
prepared by or for IMG pursuant to Section 6.1 above and all intellectual
property rights with respect thereto arising out of such developments, with no
duty to account, and IMG hereby irrevocably transfers and assigns, and agrees to
transfer and
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assign, such joint ownership to VERITAS. IMG agrees to execute such documents,
render such assistance, and take such other action as VERITAS may reasonably
request, at VERITAS' expense, to apply for, register, perfect, confirm, and
protect VERITAS' rights in the jointly owned developments, including without
limitation an assignment of copyright. IMG hereby waives any and all moral
rights, including any right to identification of authorship or limitation on
subsequent modification, that IMG (or its employees, agents or consultants) has
or may have in any such jointly owned developments.
7. Orders For Media Kits and License Key Forms
-------------------------------------------
7.1 Orders. For each Media Kit and License Key IMG desires to
------
acquire from VERITAS, IMG shall place a written zero dollar purchase order with
VERITAS. All orders placed with VERITAS for the Media Kits and/or License Key
forms shall be subject to acceptance by VERITAS, which acceptance shall not be
unreasonably withheld or delayed. If VERITAS is unable to accept a proposed
delivery date, VERITAS shall propose an alternative date as soon as possible
after the requested date. If orders for the Media Kits and/or License Keys
exceed VERITAS' inventory, VERITAS shall allocate available inventory on a basis
that provides IMG no lesser priority than any other customer.
7.2 Forecast. IMG agrees to submit to VERITAS an initial Media Kit
--------
order forecast (in Software Product units) for the first six months commencing
after the Effective Date of this Agreement, and to update the six (6) month
forecast fifteen (15) days after the beginning of each calendar quarter.
7.3 Shipments. All shipments are F.O.B. VERITAS' facility or
---------
VERITAS' designated warehouse facility. Shipments will be any ground carrier
unless the order specifies otherwise. Media Kits and License Key forms will be
shipped within ten (10) working days from the date ordered by IMG. IMG shall pay
for all shipping costs associated with shipping Media Kits from VERITAS to IMG.
7.4 New Versions. VERITAS may, at its sole discretion, modify the
------------
Software Products. Once a new version of the Software Product begins shipping,
IMG has sixty (60) days from first VERITAS shipment date or from written
notification date, whichever is later, to return Media Kit inventory of the
prior release at its expense. Returned packages will be swapped by VERITAS
unit-for-unit with the Software Product for the new release of the same Software
Product and shipped to IMG at VERITAS' expense. Only unopened packages will be
accepted.
7.5 Warranty. VERITAS warrants that, until ninety (90) days after
--------
delivery to the End User, each Media Kit will be free of defects in materials
and workmanship. VERITAS' exclusive obligation shall be to promptly replace
each defective Media Kit returned to VERITAS during the warranty period. IMG
shall obtain a return materials authorization (RMA) from VERITAS for each
return, which RMA shall not be unreasonably withheld or delayed. VERITAS shall
be responsible for all associated shipping costs.
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8. Development by VERITAS.
----------------------
8.1 Development.
-----------
(a) From time to time during the term of this Agreement, IMG may
wish to develop compatibility with IMG Products new products or technologies,
additional features, derivative technologies, or enhancements of the Software
Products (e.g., for IMG requirements not satisfied by VERITAS' then current
Software Product offerings), and/or to ensure or achieve integration with IMG
products. Each product feature or other development pursuant to this section
will be made available to IMG either as standard VERITAS Software Product or, if
VERITAS elects not to release such a standard Software Product, as a special IMG
version.
(b) For each development requested by IMG, VERITAS will, within
thirty (30) days after IMG's request, provide IMG with an initial "Executive
Response" as to whether VERITAS intends to perform such development. VERITAS
shall not unreasonably refuse to perform such development. If VERITAS responds
that it intends to perform such development, VERITAS shall, in a timely fashion,
commence work on preparation of a proposed Statement of Work, and in a timely
fashion provide to IMG a good faith proposed Statement of Work. If both parties
determine that the development should proceed, then the parties shall,
diligently and in good faith, and in a timely fashion negotiate and complete the
Statement of Work for that development, including a reasonable Development
Schedule, in accordance with VERITAS' then-current "VERSE" software development
guidelines. At any time during preparation of the Statement of Work, either
party may decline to proceed with the development. If the parties agree on a
Statement of Work, VERITAS will in a timely fashion assign a competent,
appropriately staffed development team to perform such development and will
commence the development. IMG will not unreasonably withhold its consent to
extensions of these time periods when the complexity or extent of the requested
development necessarily requires longer periods, so long as VERITAS is
diligently endeavoring to complete these activities in a timely fashion.
(c) Each development team assembled and/or assigned by VERITAS,
pursuant to Section 8.1(b) or 8.1(c) above, shall be comparable in expertise to
other effective development teams assembled or assigned by VERITAS to high
priority development projects.
(d) Without limitation, IMG shall be entitled to develop, or
have developed, any work requested by IMG pursuant to this section which VERITAS
does not perform. If this work pertains to an Application Product, then the
license to IMG, pursuant to Section 6.1(c) above (and particularly clause (i)
thereof), with respect to that Application Product, shall be deemed to include
the right to perform such work, and the ownership provisions of Section 6.9(b)
shall extend thereto.
8.2 Delivery and Acceptance.
-----------------------
For each Statement of Work:
(a) VERITAS shall use diligent efforts to complete each
Milestone, and to deliver to IMG all applicable Deliverables, in accordance with
the Development Schedule. Upon
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completion of each Milestone, VERITAS shall deliver to IMG all applicable
Deliverables, including documentation, for evaluation by IMG pursuant to Section
8.2(b) below.
(b) Upon delivery to IMG of the Deliverables for each Milestone,
including related documentation, IMG shall evaluate such Deliverables for
conformity to the acceptance criteria in the Statement of Work and conformity in
all material respects to the Specifications. IMG shall provide VERITAS within
thirty (30) days (or, if so specified, the applicable time period specified in
the Statement of Work) after delivery of such materials with written acceptance
thereof, or a statement of applicable defects to be corrected. VERITAS shall
promptly correct such defects and return the corrected Deliverables for
retesting and reevaluation, and IMG shall within fifteen (15) days (or, if so
specified, the applicable time period specified in the Statement of Work) after
such redelivery provide VERITAS with written acceptance or a statement of
defects. If IMG has not accepted any Milestone within sixty (60) days of the
applicable Milestone completion date set forth in the Development Schedule, then
the parties shall meet to determine, in good faith, a mutually acceptable
corrective plan. If IMG determines that the parties are unable to agree on a
corrective plan, or if VERITAS fails to perform its obligations in accordance
with any agreed corrective plan, then IMG may, upon written notice to VERITAS,
elect to terminate the Statement of Work immediately on notice to VERITAS. Until
such election to terminate by IMG, VERITAS shall continue to attempt to correct
the defects and provide conforming Deliverables. Upon any such termination,
VERITAS shall refund to IMG all amounts paid to VERITAS pursuant to that
Statement of Work. Any failure of IMG to perform its obligations in any
Statement of Work shall result in a day-for-day extension of VERITAS'
obligations in that Statement of Work which are dependent on such performance by
IMG.
8.3 Royalties for Distribution of Developments. For IMG Developments
------------------------------------------
resulting in new versions of Software Products, the royalties payable by IMG
shall be based on the VERITAS the current list price for that new version, as
set forth in Section 9.1(c) below. For IMG Developments resulting in new
products, the parties will agree upon any royalties to be paid to VERITAS for
distribution by IMG of such new products. Any such royalties will be reasonable
and will reflect IMG's most favored pricing status pursuant to Section 9.8
below. IMG will be entitled to distribute such completed products pending
completion of negotiation of any royalty amounts.
8.4 Ownership of Developments. IMG and VERITAS will jointly and
-------------------------
equally own each development made pursuant to this Section 8, and all
intellectual property rights with respect thereto, with no duty to account, and
VERITAS hereby irrevocably transfers and assigns, and agrees to transfer and
assign, such joint ownership to IMG. VERITAS agrees to execute such documents,
render such assistance, and take such other action as IMG may reasonably
request, at IMG's expense, to apply for, register, perfect, confirm, and protect
IMG's rights in the jointly owned developments, including without limitation an
assignment of copyright. VERITAS hereby waives any and all moral rights,
including any right to identification of authorship or limitation on subsequent
modification, that VERITAS (or its employees, agents or consultants) has or may
have in any such jointly owned developments.
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9. Payments to VERITAS.
-------------------
9.1 Royalty.
-------
(a) IMG agrees to pay to VERITAS the applicable royalty for each
Software Product copy made (or acquired from VERITAS as a Media Kit) and shipped
by IMG (or, if the copy is made by a IMG Distributor, for each such copy shipped
by the Distributor) (in each case, other than replacement, backup, or archival
copies) net of returns, provided that no royalty shall be payable with respect
to (i) Software Products provided for demonstration, support, promotional,
evaluation (e.g., "Beta"), or marketing purposes, or for use for a limited
period for evaluation; (ii) Software Products provided as warranty, maintenance,
or other replacements; or (iii) Software Products used by IMG or its Affiliates
as End Users.
(b) The royalty payable for derivative works of Software
Products prepared by IMG (or for IMG, except pursuant to Section 8 above) shall
be the same as the royalty payable on the underlying Software Product on which
the derivative work is based.
(c) It is understood that royalties for OEM Software Products
and Application Software Products are normally a percentage of VERITAS' then
current list price for that Software Product, and that a different pricing model
will be established for Base Software Products.
9.2 Internal Use. IMG and its Affiliates shall be entitled to
------------
reproduce and use the Software Products as End Users at no charge and without
restriction as to number of copies or users.
9.3 Royalty Payments. Royalty payments shall be due within forty-
----------------
five (45) days after the end of each IMG fiscal quarter, based on Software
Copies distributed by IMG during that quarter. Royalty payments shall be
accompanied by a report stating the number of royalty bearing units which IMG
shipped in that quarter.
9.4 Development Fees.
----------------
(a) For the development services described in Section 8 above,
IMG will pay VERITAS at the "Annual Rate". The initial Annual Rate shall be one
hundred eighty thousand dollars ($180,000) per person-year. Commencing January
1, 2002, the Annual Rate shall be adjusted to equal the product of the then
current Annual Rate multiplied by a fraction, the numerator of which is the
Consumer Price Index published for the December immediately preceding the
January 1 in question and the denominator of which is the Consumer Price Index
published for the immediately preceding December; provided, however, that any
such increase in the Annual Rate shall not be greater than seven percent (7%) of
the immediately preceding Annual Rate.
(b) IMG will recover any development fees or other NRE charges
paid to VERITAS by a fifteen percent (15%) reduction in the royalties paid by
IMG to VERITAS, with respect to the product(s) resulting from that development,
until all such amounts are recovered by IMG. Any amounts not so recovered by IMG
upon termination of this Agreement shall be retained by VERITAS.
-17-
9.5 Support Fees. For the support, maintenance, error correction,
------------
and training services to be provided by VERITAS pursuant to this Agreement
(including without limitation to IMG and its Affiliates as End Users), IMG shall
pay, to VERITAS, VERITAS' standard fees therefor, provided that the fees to IMG
in its capacity as an OEM, and not as an End User, shall be no higher than the
support, maintenance, or error correction fees charged by VERITAS to any
similarly situated third party.
9.6 VERITAS Audit Rights. Until three (3) years after the applicable
--------------------
royalty bearing event, VERITAS shall at any time, on at least ten (10) business
days prior notice to IMG, be entitled to retain an independent certified public
accounting firm to audit the books and records of IMG pertaining to the payment
of royalties to VERITAS hereunder, for the sole purpose of confirming the
accuracy of the royalty payments and no more frequently than once in any twelve
(12) month period. Any such audit shall be performed at VERITAS' expense during
normal business hours and, at IMG's option, subject to the accounting firm's
agreement to comply with confidentiality obligations comparable to those in
Section 16 below. The accounting firm shall not, however, be prohibited from
reporting to VERITAS the results of the audit. In the event of any discrepancy,
the applicable party shall promptly remit to the other party all amounts due.
9.7 Currency. All payments to VERITAS hereunder shall be in United
--------
States dollars.
9.8 Most Favored Pricing. IMG will be entitled to purchase or
--------------------
license each Software Product at the lowest rate or price at which VERITAS
provides the Software Product, or any similar, competitive, or replacement
Software Product, to any similarly situated third party for similar volumes.
VERITAS agrees that if it charges a lower such royalty to any applicable third
party during the term of this Agreement for the same or any similar or
competitive product, it will immediately notify IMG in writing and IMG shall be
entitled to amend this Agreement to provide the lower royalty to IMG thereafter.
9.9 IMG Audit Rights. IMG shall at any time, on at least ten (10)
----------------
business days prior notice to VERITAS, be entitled to retain an independent
certified public accounting firm to audit the books and records of VERITAS, for
the sole purpose of confirming VERITAS' compliance with Sections 9.5 and/or 9.8.
Any such audit shall be performed at IMG's expense during normal business hours
and, at IMG's option, subject to the accounting firm's agreement to comply with
confidentiality obligations substantially equivalent to those in Section 16
below. The accounting firm shall not, however, be prohibited from reporting to
IMG the results of the audit. Any adjustment resulting from an audit shall be
retroactive to the date when IMG was entitled to the lower development fee or
royalty, as applicable, pursuant to this Section 9.
9.10 Taxes. IMG will be responsible for all sales, use, or similar
-----
taxes levied on IMG's purchase of Media Kits, or on IMG's payment of royalties
or other fees to VERITAS. With respect to sales of Media Kits by VERITAS to non-
U.S. IMG Affiliates, the parties will cooperate to eliminate any withholding
tax, or to provide for a company with the opportunity to obtain a tax credit
thereon to pay the tax.
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10. Marketing and Cooperation.
-------------------------
10.1 Press Release. IMG and VERITAS agree to issue a joint press
-------------
release within fifteen (15) days after the Effective Date. The content of this
press release shall be mutually agreed, and the content of xxxxxx xxxxx
releases, pertaining to amendments to this Agreement, shall be mutually agreed,
except to the extent a party believes, in good faith, that unilateral disclosure
(including disclosure prior to such agreement as to content) is required by law.
10.2 Marketing Plan. The parties will engage in cooperative joint
--------------
marketing efforts as mutually agreed. Unless otherwise agreed, the parties will
share the expenses for such efforts equally. These efforts may include, without
limitation, joint press releases, joint customer calls, marketing campaigns, Web
pages, and trade shows.
10.3 Co-Branding of Products. From time to time, the parties may
-----------------------
agree to sell co-branded products, on terms and conditions to be mutually
determined.
10.4 Access to New Products. VERITAS will provide IMG with access to
----------------------
new products and technology no later than it provides such access to any third
party, and will use its reasonable efforts to provide earlier access to IMG on a
"first look" basis.
10.5 Seagate Technology, Inc. Restrictions. The parties acknowledge
-------------------------------------
that, as an Affiliate of Seagate, IMG is subject to the restrictions of Section
6.8 of the Development and License Agreement between Seagate and VERITAS. That
Section 6.8 shall not apply to (i) the activities of IMG pursuant to this
Agreement, or (ii) IMG (or its successor) if and when IMG is no longer an
Affiliate of Seagate.
11. Software Support, Maintenance, and Training. VERITAS agrees to provide
-------------------------------------------
to IMG support, maintenance, and training for the Software Products in
accordance with Exhibit E. VERITAS will make available its standard end user
support to IMG and its Affiliates as End Users.
12. Term and Termination.
---------------------
12.1 Term. This Agreement shall commence on the Effective Date and
----
shall continue in full force and effect for an initial term of three (3) years
unless and until earlier terminated as set forth herein. This Agreement shall
automatically renew for additional twelve (12) month periods unless either party
gives written notice of its intent to terminate or renegotiate this Agreement to
the other party at least sixty (60) days prior to the end of the then current
term.
12.2 Default. If either party defaults in the performance of any of
-------
its material obligations hereunder and if any such default is not corrected (or,
in the case of defaults incapable of such cure, the defaulting party takes
reasonable actions to minimize the effects of the default) within forty-five
(45) days after it shall have been called to the attention of the defaulting
party, in writing, by the other party, then the other party, at its option, may,
in addition to any other remedies it may have, thereupon terminate this
Agreement by giving written notice of termination to the other party,
-19-
provided that any such termination by VERITAS shall not be effective unless and
until adjudication by a court of competent jurisdiction that IMG has materially
breached this Agreement.
12.3 Insolvency. This Agreement may be terminated by either party, on
----------
notice, (i) upon the institution by the other party of insolvency, receivership
or bankruptcy proceedings, or any other proceedings for the general settlement
of all or substantially all of its debts, (ii) upon the institution of such
proceedings against the other party, which are not dismissed or otherwise
resolved in its favor within sixty (60) days thereafter, (iii) upon the other
party's making a general assignment for the benefit of creditors, or (iv) upon
the other party's dissolution or ceasing to conduct business as a going concern,
or upon taking corporate action to dissolve or to cease business as a going
concern.
12.4 Survival. Except as may be otherwise expressly set forth herein, the
--------
parties' rights and obligations pursuant to Sections 6.9, 7.5, 8.4, 9.1 and 9.3
(as to distribution prior to the effective date of termination or expiration),
2, 3, 4, 5, 13, 14, 15, 16, and 17 shall survive any termination or expiration
of this Agreement. In addition, the parties' rights and obligations pursuant to
Section 11 shall survive until twelve (12) months after the effective date of
termination or expiration. After termination or expiration, IMG shall be
entitled to retain and use a reasonable number of Software Copies, and
Documentation, for support and maintenance purposes. In addition, VERITAS will
cooperate with IMG to enable IMG to continue to distribute Software Products for
a reasonable time to effect an orderly phase out of such distribution. All
Software Product End User licenses, and IMG's and its Affiliates' right to use,
as End Users, Software Copies existing as of the effective date of termination
or expiration, shall survive perpetually.
13. Representations and Warranties.
------------------------------
13.1 VERITAS represents and warrants that it has the right, power, and
authority to enter into and perform this Agreement, without breach of or
conflict with any other agreement or obligation of VERITAS.
13.2 VERITAS represents and warrants that it owns the Software Products
and Documentation or otherwise has the right to grant to IMG the rights and
licenses granted in this Agreement, provided that this representation and
warranty shall not apply to those Software Products acquired by VERITAS from IMG
pursuant to the Merger Agreement, as set forth in Exhibit F, but further
provided that the preceding exclusion shall not apply to modifications or
additions in the Software Products made by or for VERITAS.
13.3 VERITAS represents and warrants that (i) to the best of its
knowledge and belief, the Software Products and Documentation do not infringe
any intellectual property right, and (ii) VERITAS is not aware of any
infringement claim with respect to the Software Products or Documentation.
13.4 VERITAS warrants that the occurrence in or use by the Software
Products of dates on or after January 1, 2000 ("Millennial Dates") will not
adversely affect its performance with respect to date-dependent data,
computations, output, or other functions (including, without
-20-
limitation, calculating, comparing and sequencing) and that the Software
Products will create, store, process and output information related to or
including Millennial Dates without error or omissions. VERITAS warrants that the
Software Products include calendar year 2000 date conversion and compatibility
capabilities, including, but not limited to, date data century recognition, same
century and multiple century formula and date value calculations, and user
interface date data values that reflect the century, and that the Software
Products will (i) manage and manipulate data involving dates, including single
century and multiple century dates, and will not cause an abnormal abend or
abort or result in the generation of incorrect values or invalid output
involving such dates; and (ii) include the indication of the correct century in
all date-related user interface functionalities; and (iii) include the
indication of the correct century in all date-related system-to-system or
application-to-application data interface functionalities, provided that this
warranty shall not apply to those Software Products acquired by VERITAS from IMG
pursuant to the Merger Agreement, as set forth in Exhibit F, but further
provided that the preceding exclusion shall not apply to modifications or
additions in the Software Products made by or for VERITAS.
13.5 VERITAS represents and warrants that each Software Product, as and
when delivered by VERITAS, does not include any time bombs or other devices
intended to prevent use of the Software Product. VERITAS also represents and
warrants that it uses reasonable efforts to detect and eliminate code intended
to damage, interfere with, or otherwise adversely affect computer programs, data
files, or hardware without the consent or intent of the computer user, including
without limitation self-replicating and self-propagating programming
instructions commonly called viruses and worms, provided that this
representation and warranty shall not apply to those Software Products acquired
by VERITAS from IMG pursuant to the Merger Agreement, as set forth in Exhibit F,
but further provided that the preceding exclusion shall not apply to
modifications or additions in the Software Products made by or for VERITAS.
13.6 Except as set forth in Section 7.5 above, VERITAS PROVIDES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SOFTWARE PRODUCTS AND DOCUMENTATION.
13.7 The warranty made by VERITAS in Section 13.4 shall not apply to, and
VERITAS will have no liability or responsibility for, any defect, error or
noncompliance in the Software Products attributable to (1) any modifications to
or repair of the Software Products made by IMG, (2) operation of the Software
Products in conjunction with software or hardware not specified for use with the
Software Products in the written specifications or documentation provided by
VERITAS, (3) misuse of the Licensed Software or use of the Licensed Software in
a manner in violation of that specified in the written specifications or
documentation provided by VERITAS.
13.8 IMG represents and warrants that it has the right, power, and
authority to enter into and perform this Agreement, without breach of or
conflict with any other agreement or obligation of IMG.
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14. Indemnities.
-----------
14.1 Infringement Indemnity. VERITAS, at its sole expense, will defend
----------------------
any action brought against IMG, any IMG Distributors, or their End User
customers ("Indemnified Parties") to the extent based on a claim that any
Software Product or Documentation infringes any patent, copyright, trade secret,
or other intellectual property right. VERITAS will pay any award against the
Indemnified Parties, or settlement entered into on the Indemnified Parties'
behalf, and will indemnify and hold IMG harmless against all liability, costs,
expenses, and direct damages suffered or incurred by IMG, based on such
infringement or claim thereof, provided however that IMG shall notify VERITAS
promptly in writing of the claim, shall provide reasonable assistance (at
VERITAS' expense) in connection with the defense and/or settlement thereof, and
shall permit VERITAS to control the defense and/or settlement thereof. Any
settlement which restricts any of IMG's rights, licenses, or activities, or
requires the payment of money by IMG (whether or not such payment is indemnified
hereunder) shall be subject to IMG's prior written approval, which approval
shall not be unreasonably withheld. IMG shall be entitled to retain, at its
expense so long as VERITAS performs its obligations pursuant to this section,
counsel to participate in the defense and settlement of any claim. VERITAS shall
have no liability to the extent the alleged infringement is caused by any
modification of the Software Products or Documentation other than by VERITAS, or
by combination of the Software Products or Documentation with IMG products or
other non-VERITAS programs, where the unmodified Software Products or
Documentation alone would not have given rise to the claim. In the case of any
such excluded claim IMG shall defend and indemnify VERITAS to the same extent,
and subject to the same conditions, as provided herein. The foregoing states
the exclusive remedy of VERITAS and the sole liability of IMG for intellectual
property infringement.
14.2 VERITAS Infringement Options. In the event any Software Product or
----------------------------
Documentation is held to infringe any intellectual property right, or if use or
distribution of the Software Product or Documentation is enjoined, then VERITAS
shall, at its sole expense, use diligent efforts to (i) appropriately modify the
Software Product and/or Documentation licensed hereunder to eliminate the
infringement, or substitute another Software Product and/or Documentation which
does not infringe any third party intellectual property rights, provided that
the modified or substitute Software Product and Documentation is equivalent in
all material respects; or (ii) obtain a license with respect to the applicable
third party intellectual property rights. In the event that VERITAS is not able
to achieve (i) or (ii) above, VERITAS shall refund to IMG all payments made by
IMG hereunder with respect to affected Software Copies.
14.3 Exclusive Remedy. Except as set forth in Section 14.4 with respect
----------------
to Section 9.3, the foregoing states the exclusive remedy of IMG and the sole
liability of VERITAS for intellectual property infringement.
14.4 Indemnity. VERITAS will indemnify and hold IMG harmless against all
---------
liability, costs, and expenses (including without limitation attorneys fees)
arising out of any claim against IMG arising out of any breach by VERITAS of any
of the representations or warranties set forth in Sections 13.1, 13.2, and 13.3
above.
-22-
15. Limitation of Liability.
-----------------------
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. The foregoing
limitations, however, (i) shall not limit either party's obligations, with
respect to liability to third parties pursuant to Section 14 above, and (ii)
shall not affect either party's liability, if any, for contribution or indemnity
with respect to third party claims for personal injury, death, or physical
damage to property.
16. Confidentiality.
---------------
16.1 Confidential Information. As used in this Agreement, the term
------------------------
"Confidential Information" shall mean program source code and associated
technical documentation and any information disclosed by one party to the other
pursuant to this Agreement which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in some other
manner to indicate its confidential nature. Confidential Information may also
include oral information disclosed by one party to the other pursuant to this
Agreement, provided that such information is designated as confidential at the
time of disclosure and is reduced to writing by the disclosing party within a
reasonable time (not to exceed thirty (30) days) after its oral disclosure, and
such writing is marked in a manner to indicate its confidential nature and
delivered to the receiving party.
16.2 Confidentiality. Each party shall treat as confidential all
---------------
Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party except as may be
necessary or useful in connection with the exercise of rights or the performance
of obligations pursuant to this Agreement, and subject to confidentiality
obligations comparable to those set forth in this Section 16. Without limiting
the foregoing, each of the parties shall use at least the same degree of care
which it uses to prevent the disclosure of its own confidential information of
like importance to prevent the disclosure of Confidential Information disclosed
to it by the other party under this Agreement. Each party's obligations
pursuant to this section shall expire, with respect to any Confidential
Information, four (4) years after the initial disclosure of that Confidential
Information to that party.
16.3 Exceptions. Notwithstanding the above, neither party shall have
----------
liability to the other with regard to any Confidential Information of the other
which:
(i) was in the public domain at the time it was
disclosed or has become in the public domain through no fault of the receiving
party;
(ii) was known to the receiving party, without
confidentiality restriction, at the time of disclosure;
-23-
(iii) is disclosed with the prior written approval of
the disclosing party;
(iv) was independently developed by the receiving party
without any use of the Confidential Information;
(v) becomes known to the receiving party, without
restriction, from a source other than the disclosing party without breach of
this Agreement by the receiving party and otherwise, to the best of the
receiving party's knowledge, not in violation of the disclosing party's rights;
or
(vi) is disclosed generally to third parties by the
disclosing party without restrictions similar to those contained in this
Agreement.
In addition, neither party shall have liability pursuant to this section for
disclosures required by the order or requirement of a court, administrative
agency, or other governmental body; provided, that such party shall provide
prompt, advanced notice thereof to enable the other party to seek a protective
order or otherwise prevent such disclosure.
17. General.
-------
17.1 Governing Law. This Agreement shall be governed by and
-------------
interpreted in accordance with the laws of the State of California, without
reference to conflict of laws principles.
17.2 Confidentiality of Agreement. Each party shall be entitled to
----------------------------
disclose the existence of this Agreement, but agrees that the terms and
conditions of this Agreement shall be treated as Confidential Information and
shall not be disclosed to any third party; provided, however, that each party
may disclose the terms and conditions of this Agreement.
(i) as required by any court or other governmental
body;
(ii) as otherwise required by law;
(iii) to legal counsel of the parties;
(iv) in confidence, to banks, investors and other
financing sources and their advisors;
(v) in connection with the enforcement of this
Agreement or rights under this Agreement; or
(vi) in confidence, in connection with an actual or
prospective merger or acquisition or similar transaction.
17.3 Partial Invalidity. If any provision in this Agreement shall be
------------------
found or be held to be invalid or unenforceable in any jurisdiction in which
this Agreement is being performed, then the
-24-
meaning of said provision shall be construed, to the extent feasible, so as to
render the provision enforceable, and if no feasible interpretation would save
such provision, it shall be severed from the remainder of this Agreement, which
shall remain in full force and effect. In such event, the parties shall
negotiate, in good faith, a substitute, valid and enforceable provision which
most nearly effects the parties' intent in entering into this Agreement.
17.4 Independent Contractors. The parties hereto are independent
-----------------------
contractors. Nothing contained herein or done in pursuance of this Agreement
shall constitute either party the agent of the other party for any purpose or in
any sense whatsoever, or constitute the parties as partners or joint venturers.
17.5 Modification. No alteration, amendment, waiver, cancellation or any
------------
other change in any term or condition of this Agreement shall be valid or
binding on either party unless the same shall have been mutually assented to in
writing by both parties.
17.6 Waiver. The failure of either party to enforce at any time any of
------
the provisions of this Agreement, or the failure to require at any time
performance by the other party of any of the provisions of this Agreement, shall
in no way be construed to be a present or future waiver of such provisions, nor
in any way affect the right of either party to enforce each and every such
provision thereafter. The express waiver by either party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
17.7 Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party shall assign any of its rights,
-------- -------
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party. Notwithstanding the foregoing,
however, either party may assign this Agreement to a successor in interest (or
its equivalent) of all or substantially all of its relevant assets, whether by
sale, merger, or otherwise, provided that IMG shall not be entitled to so assign
this Agreement to a direct competitor of VERITAS. As of the Effective Date,
VERITAS' direct competitors are set forth in Exhibit G hereto. VERITAS shall be
entitled to update this list annually, subject to IMG's approval of the updated
list, which approval shall not be unreasonably withheld. Any attempted
assignment in violation of this section shall be void. Any assignee (by
operation of law or otherwise) shall, as a condition of such assignment, agree
in writing with the non-assigning party to perform the assigning party's
obligations pursuant to this Agreement.
17.8 Notices. Any notice required or permitted to be given by either
-------
party under this Agreement shall be in writing and shall be personally delivered
or sent by commercial courier service (e.g., DHL), or by first class mail
(certified or registered), or by telecopy confirmed by first class mail
(registered or certified), to the other party at its address first set forth
above, or such new address as may from time to time be supplied hereunder by the
parties hereto. If mailed, notices will be deemed effective three (3) working
days after deposit, postage prepaid, in the mail.
17.9 Force Majeure. Notwithstanding anything else in this Agreement, and
-------------
except for the obligation to pay money, no default, delay or failure to perform
on the part of either party shall
-25-
be considered a breach of this Agreement if such default, delay or failure to
perform is shown to be due to causes such as strikes, lockouts or other labor
disputes, riots, civil disturbances, actions or inactions of governmental
authorities or suppliers, epidemics, war, embargoes, severe weather, fire,
earthquakes, acts of God or the public enemy, nuclear disasters, default of a
common carrier, or similar causes beyond reasonable control of the party charged
with a default.
17.10 No Third Party Beneficiaries. Unless otherwise expressly provided,
----------------------------
no provisions of this Agreement are intended or shall be construed to confer
upon or give to any person or entity other than VERITAS and IMG any rights,
remedies or other benefits under or by reason of this Agreement.
17.11 Counterpart Originals. This Agreement may be executed in two (2) or
---------------------
more English language counterparts or duplicate originals, all of which shall be
regarded as one and the same instrument, and which shall be the official and
governing version in the interpretation of this Agreement.
17.12 Entire Agreement. The terms and conditions herein contained,
----------------
including exhibits, constitute the entire agreement between the parties and
supersede all previous agreements and understandings, whether oral or written
and including the parties' Term Sheet, between the parties hereto with respect
to the subject matter hereof.
-26-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
SEAGATE SOFTWARE INFORMATION VERITAS HOLDING CORPORATION
MANAGEMENT GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------------------- ------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx Print Name: Xxxx Xxxxxx
------------------------- ----------------------
Title: _____________________________ Title: President and CEO
--------------------------
VERITAS SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxxx
------------------------------
Print Name: Xxxx Xxxxxx
--------------------
Title: President and CEO
---------------------------
-27-
EXHIBIT A
Software Products
-----------------
All software products (including each new version and release thereof) offered
for sale, license, or distribution by VERITAS during the first ten (10) years of
the term of this Agreement, and including, without limitation:
A. Base Software Products
Volume Manager Lite
File System Lite
B. OEM Software Products
Volume Manager Full
File System Full
Clustered Volume Manager
Clustered File System
C. Application Software Products
NetBackup
HSM
Clustered Server
Storage Replicator
Storage Manager
Storage Optimizer
Editions
"Software Products" also includes the products set forth in Exhibit F
hereto. The parties shall, in good faith, classify each such product, and each
new VERITAS product, as a Base Software Product, OEM Software Product, or
Application Software Product.
EXHIBIT B
Form of Statement of Work
-------------------------
[Attached]
STATEMENT OF WORK (SOW)
PROJECT DEFINITIONS AND DELIVERABLES
_______________ PRODUCT
1. SCOPE
This Statement of Work documents the deliverables and timetable for the
_____________ Product to be supplied to IMG. It defines the responsibilities and
deliverables of both parties in the execution of this project.
2. CONTACTS.
-----------------------------------------------------------------------
Technical Project Program Manager
Manager
-----------------------------------------------------------------------
VERITAS
-----------------------------------------------------------------------
IMG
-----------------------------------------------------------------------
3. PRODUCT OVERVIEW
4. FEATURES OF THE PRODUCT
5. DOCUMENTATION
6. VERITAS WORK/ACTIVITIES
7. IMG WORK/ACTIVITIES
8. VERITAS DEPENDENCIES
9. DELIVERABLES.
-----------------------------------------------------------------------
DELIVERABLE FROM TO DATE
-----------------------------------------------------------------------
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EXHIBIT C
End User License
----------------
[Attached]
IMPORTANT-
READ THIS CAREFULLY BEFORE OPENING THE MEDIA PACKAGE
DO NOT OPEN THE MEDIA PACKAGE OR USE THIS SOFTWARE UNTIL YOU HAVE READ THIS
SOFTWARE LICENSE AGREEMENT. BY OPENING THE MEDIA PACKAGE (OR AUTHORIZING ANY
OTHER PERSON TO DO SO), YOU ACCEPT THE SOFTWARE LICENSE AGREEMENT. IF YOU DO
NOT ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT, YOU MAY
RETURN THE MEDIA PACKAGE AND ALL ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS
AND BINDERS AND OTHER CONTAINERS), TO THE PLACE YOU OBTAINED THEM FOR A FULL
REFUND; OR YOU MAY WRITE, LICENSING DEPARTMENT, X.X. XXX 00000, XXXXXX XXXXXX,
XX 00000.
SEAGATE SOFTWARE LICENSE
1. GRANT OF LICENSE. Seagate Software, Inc. ("Seagate"), grants to you, the
end user, a personal, nonexclusive license to use one copy of this software
program, including any updates, additional modules, or additional software
provided by Seagate in connection therewith (the "Software"), solely for your
own use, and solely in accordance with the terms and conditions of this license
agreement. You may copy the Software into the memory of any computer, solely as
necessary to use the Software in accordance with this license agreement. You may
use one copy of the Software (Single Server or Enterprise Edition), and related
documentation (a) on a single backup server at any one time (b) you may use a
single copy of the agent/module Software on an unlimited number of workstations
connected to the backup server (c) you may use a single copy of the Remote
Admin. Utility on an unlimited number of workstations connected to the backup
server and (d) you may copy the software program into any computer-readable or
printed form for backup or modification purposes required in support of your use
of the software program.
2. COPYRIGHT AND COPIES. The Software (including any copy thereof), is owned
by Seagate or its suppliers and is protected by United States copyright and
patent laws and international treaty provisions. The Software copy is licensed,
not sold to you, and you are not an owner of any copy thereof. You may either
(a) make one copy of the Software solely for backup or archival purposes, or (b)
transfer the Software to a single hard disk provided you keep the original
solely for backup or archival purposes. You may not otherwise copy the Software,
and you may not copy the written materials accompanying the Software. Seagate
hereby reserves all rights not explicitly granted in this software license
agreement.
3. OTHER RESTRICTIONS. You may not rent or lease the Software, but you may
transfer the Software and accompanying written materials on a permanent basis
provided you retain no copies and the recipient agrees to the terms of this
Agreement. If the Software is an update, any transfer must include the update
and all prior versions. You may not modify or translate the Software. You may
not reverse engineer, decompile or disassemble the Software, except to the
extent expressly authorized by applicable law.
-1-
4. DUAL MEDIA. If the Software package contains more than one form of media,
such as a 3.5" diskette and a CD-ROM, then you may use only the media
appropriate for your single-user computer. You may not use the other media on
another computer or loan, rent, lease, or transfer them to another except as
part of the permanent transfer (as provided above), of all Software and written
materials.
5. LIMITED WARRANTY AND REMEDY. Seagate warrants the physical media (e.g.
diskette(s) or CD-ROM), and the physical documentation, to be free of defects in
materials and workmanship for a period of 90 days from the original purchase
date. If Seagate receives notification within this warranty period of any such
defects and such notification is determined to be correct, Seagate will, at its
sole option and discretion, repair or replace the media or documentation, or
provide you a full refund. The foregoing is your sole and exclusive remedy
arising out of this warranty. This limited warranty is void if the damage or
defect has resulted from accident, abuse or misapplication.
6. NO OTHER WARRANTIES. THE LIMITED WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES FOR THE SOFTWARE AND DOCUMENTATION. SEAGATE MAKES NO OTHER
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT FOR THE
SOFTWARE AND DOCUMENTATION.
7. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT AND UNDER NO LEGAL THEORY SHALL SEAGATE OR ITS SUPPLIERS BE LIABLE TO YOU
FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE
OF, USE OF, OR INABILITY TO USE ANY SEAGATE SOFTWARE OR DOCUMENTATION, EVEN IF
SEAGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
SEAGATE'S LIABILITY EXCEED THE LICENSE FEE PAID BY YOU. THIS LIMITATION OF
LIABILITY AND RISKS IS REFLECTED IN THE PRICE OF THE SOFTWARE LICENSE.
8. TERM. This license is effective until terminated. You may terminate it at
any time by destroying the Software together with all copies, modifications and
merged portions in any form. It will also terminate automatically upon your
failure to comply with any term or condition of this Agreement. In the event of
such termination, you agree to promptly destroy the Software together with all
copies, modifications and merged portions in any form.
9. MISCELLANEOUS. This is the entire Agreement between you and Seagate, and
supersedes any prior agreement, whether written or oral, relating to the subject
matter of this Agreement. The parties disclaim the application of the United
Nations Convention on the International Sale of Goods. This Agreement is
governed by the laws of the State of California, U.S.A., without
reference to conflict of laws principles. You may not export or re-export the
Software or documentation without the appropriate United States or foreign
government licenses. If any provision of this Agreement is ruled invalid,such
invalidity shall not affect the validity of the remaining portions of this
Agreement.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and accompanying
documentation are deemed to be "commercial computer software" and "commercial
computer software documentation," respectively, pursuant to DFAR Section
227.7202 and FAR Section 12.212, as applicable. Any use, modification,
reproduction release, performance, display or disclosure of the software and
accompanying documentation by the U.S. Government shall be governed solely by
the terms of this Agreement and shall be prohibited except to the extent
expressly permitted by the terms of this Agreement.
You must affix the following legend to each copy of the Software:
Use, duplication, reproduction, or transfer of this commercial Software and
accompanying documentation is restricted in accordance with FAR 12.212 and DFARS
227.7202 and by a license agreement. Contact Legal Department, Seagate Software,
X.X. Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxx, 00000 X.X.X.
EXHIBIT D
[INTENTIONALLY BLANK]
EXHIBIT E
Support, Maintenance, and Training
----------------------------------
1. DEFINITIONS
1.1. "Release" means the addition by VERITAS of a previously
unincluded function or feature to the Software Product
(designated sequentially by VERITAS as "Release 1.0," "Release
2.0" etc.).
1.2. "Version" means the addition by VERITAS of a function or feature
of the Software Product, or any change made by VERITAS to the
Software Product which improves its performance, including all
Patches and Bug Fixes made to the Software Product since the
last previous Version (designated sequentially by VERITAS as
"Version 1.1," `Version 1.2" etc.).
1.3. "Patches and Bug Fixes" means any minor change made by VERITAS
to the Software Product, including changes made for purposes of
maintaining operating system and database system compatibility,
error correction, workarounds and patches (designated
sequentially by VERITAS as "Version 1.1.1", "`Version 1.1.2"
etc.).
1.4. "1st Level Support" means the initial response (and any follow-
up response as appropriate) to an End User initiated support
request. 1st Level Support includes call logging, initial
information gathering, verification of entitlement to support,
answering product installation, configuration or usage
questions, and problem isolation, identification, and
replication. 1st Level Support may also include providing
standard fixes and workarounds to known problems.
1.5. "2nd Level Support" means technical support staff performs
problem isolation, identification, and replication; and/or
providing standard fixes and workarounds to known problems;
providing remedies for both new and known complex problems.
1.6. "3rd Level Support" means backup engineering and technical
support staff isolates a problem/error and implements a
solution, including, but not limited to, a Software Product
change.
1.7. "Severity Level 1" is an emergency condition which makes the use
or continued use of any one or more functions impossible. The
condition requires an immediate solution that is not already
available.
1.8. "Severity Level 2" is an emergency condition which makes the use
or continued use of any one or more functions difficult and
which cannot be circumvented or avoided on a temporary basis.
1.9. "Severity Level 3" is a limited problem condition which is not
critical in that no loss of data occurs and which can be
circumvented or avoided on a temporary basis.
1.10. "Severity Level 4" is a minor problem condition or documentation
error which can be easily circumvented or avoided. Additional
requests for new feature suggestions, which are defined as new
functionality in existing Software Products are also classified
as Severity Level 4.
2. VERITAS' OBLIGATIONS
2.1. During the term of the Agreement, VERITAS will provide 2nd and
3rd Level Support to IMG 24 hours a day, 365 days a year for all
Software Products. For the avoidance of doubt, VERITAS will
provide such support for the current and immediately preceding
two (2) Releases of each Software Product, including all interim
Versions.
2.2. For all IMG-branded Software Products, if VERITAS provides 2nd
Level Support directly to End Users, such support shall be
represented as IMG support. The parties will agree on a process
for accomplishing this. IMG acknowledges that there may be an
additional charge for this arrangement.
2.3. For all VERITAS-branded Software Products, VERITAS will be
responsible for providing 1st Level Support to IMG's End Users,
and VERITAS shall inform such End Users that all calls should be
made first to VERITAS.
2.4. VERITAS support personnel will respond to and correct identified
problems based on the correction periods set forth in Table A
below. Depending on the severity of the problem, VERITAS support
staff will contact IMG by telephone, electronic mail or fax, as
appropriate. High severity problems will be given priority over
fixes for low severity problems. For Severity Level 1 problems,
VERITAS will use continuous efforts until the problem is
corrected.
2.5. VERITAS will provide a call tracking ID# for each call opened by
IMG, and will respond to information requests using an agreed
upon template with that call tracking ID#.
2.6. VERITAS will at all times adhere to standard call
policy/procedures and release policy/ procedures.
2.7. VERITAS will make available to IMG all generally available
defect correction patches.
2.8. During the term of the Agreement, VERITAS shall, at its expense,
provide IMG with one (1) course per Software Product of basic
training and of advanced training for IMG employees engaged in
the technical support and training of the Software Product. This
will include "Train the Trainer" type training to IMG technical
support
operations, as well as providing support documentation
and support tools, as available, for use by IMG and/or its
Distributors. Training will be at IMG's facilities in
California, or such other mutually agreeable facility. IMG will
reimburse reasonable, preapproved travel and related expenses
incurred by VERITAS in providing training. IMG may record any or
all training courses on video tape and may reproduce and
distribute such recordings, for internal use only, under IMG's
name and at IMG's expense. Upon each Release of the Software
Product or new Version of the existing Software Product with
substantial functional changes, VERITAS shall provide to IMG
sufficient technical training relating to such Release or
Version.
3. IMG'S OBLIGATIONS
3.1. For all IMG-branded Software Products, IMG shall be responsible
for providing 1st Level Support to IMG's End Users, and IMG
shall inform its End Users that all calls should be made first
to IMG.
3.2. IMG's technical support contacts must complete training courses
on the IMG-branded Software Products before providing product
support services. Technical support contacts must be able to
isolate, debug and resolve complex system administration issues.
3.3. IMG's technical support contacts shall fully document and
isolate reported problems and attempt to eliminate other causes
of the problem (such as application software errors, equipment
incompatibility or End User modifications) before contacting
VERITAS support personnel. VERITAS shall only be responsible for
supporting the Software Product as provided to IMG.
3.4. IMG must inform its End User customers that all calls for
support of IMG-branded Software Products should be made first to
IMG. IMG shall also maintain an open call throughout the problem
resolution process and will hold the primary responsibility for
the End-User support customer contact.
TABLE A
--------------------------------------------------------------------------------
SEVERITY LEVEL ACKNOWLEDGMENT ERROR CORRECTION
--------------------------------------------------------------------------------
1 1 hour 24 hours
--------------------------------------------------------------------------------
2 24 hours 10 days
--------------------------------------------------------------------------------
3 2 days 30 days
--------------------------------------------------------------------------------
4 5 days Provided in next Version
--------------------------------------------------------------------------------
EXHIBIT F
Software Products Acquired from NSMG
------------------------------------
NSMG/SMG Products
-----------------
Ashwin
Backup Exec Desktop 98/95
Backup Exec for Windows NT
Backup Exec for Windows NT Server
Backup Exec NetWare
Backup Exec NT Work Station
Backup Exec OS/2 Warp
Backup Exec Small Business Server
Backup Exec Windows NT Options
Client Exec
Desktop Storage
Direct Tape Access
DMS
Exec View
Image Option
LANAlert
Manage Exec
Nerve Center
Open File Option
RAIDirector
Replication Exec
Server Management Bundle
Storage Area Network (SAN/NAS)
Storage Exec
Storage Exec Netware
Storage Exec Windows NT
Storage Migrator
Storage Resource Manager
Sytos Premium
Visual Storage Administrator
WinINSTALL
XxxXXXX
WinSMART
EXHIBIT G
VERITAS Competitors
-------------------
As of the Effective Date, VERITAS' competitors are:
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
[ * ]
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
