Amendment No. 7 to the Software Licensing Agreement DELL/ALTIRIS OMCI INTEGRATION AND DCM DISTRIBUTION
Exhibit 10.7G
Amendment No. 7 to the Software Licensing Agreement
DELL/ALTIRIS OMCI INTEGRATION AND DCM DISTRIBUTION
Effective Date: September 25, 2006
This Amendment No. 7 (“Amendment”) to the Software Licensing Agreement (“Agreement”) between
Dell Products L.P., a Texas limited partnership located at Xxx Xxxx Xxx, Xxxxx Xxxx, Xxxxx 00000
(“Dell”) and Altiris Inc. (“Altiris”) a Delaware corporation with its principal place of business
at 000 X. 000 Xxxxx, Xxxxxx, Xxxx 00000 effective as of the 26th day of April, 2002
hereby incorporates by reference the following provisions of the Agreement and any and all
proceeding Amendments: hereby incorporates by reference the following provisions of the Agreement:
Sections 2.3 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 2.12, 3.5, 4.0-4.2, 5.0-5.8 (including any
corresponding services schedule), 6.4, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 8.1 (excluding the reference
to a refund), 8.2, 9,2, 9.3, 10.1 and 10.2, (provided that the limitation of liability under this
Xxxxxxxxx Xx, 0,xx pertains to Section 10.2 of the Agreement),
shall not exceed [*], For
the avoidance of ambiguity, references in the Agreement to Licensed Product in the Sections
referenced above shall apply to DCM X in the same manner as such foregoing provisions apply to
Licensed Products (i.e., DCM X shall be deemed to be a Licensed Product for the purposes of the
Agreement sections detailed above). In the event that the terms and conditions of this Amendment
conflict with the terms and conditions of the Agreement or the SDK Agreement referenced below, the
terms and conditions of this Amendment will prevail.
1. Purpose
WHEREAS, Altiris desires to license DCM X software products to Dell;
WHEREAS, Dell has previously provided Altiris with certain Dell Open Manage source code, object
code, documentation and other Dell intellectual property (“SOFTWARE PRODUCT”), as more completely
described in Attachment A of the Software Developer Kit for OpenManage Agreement with an effective
date of June 18, 2004 (“SDK Agreement”), and Dell will provide additional license rights to Altiris
as further described in Section 3 below, and
WHEREAS, Altiris will provide to Dell certain distribution and related rights in and to the DCM X
software products as defined below;
NOW THEREFORE, in consideration for the obligations set forth herein and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Dell and Altiris agree to the
following:
2. Defined Term
“DCM X” means the Altiris software products with the product name of “Dell Client Manager (version
X)” which product incorporates the SOFTWARE PRODUCT and derivatives thereof.
“SOW” means the separate and mutually agreed to and mutually executed statement of work for each
version of DCM.
3. Grant of Licenses
3.1 Altiris License Grant
DCM X. Altiris hereby grants to Dell a perpetual, irrevocable (except for material breach
by Dell of the terms of this Amendment in accordance with Section 9.2 of the Agreement),
nonexclusive, nontransferable, non-sublicenseable (except to end users), worldwide, [*] license
under all intellectual property rights, owned or controlled by Altiris, which are necessary to
exercise the rights to: (i) use, execute, reproduce,
| [*] These provisions are the subject of a Confidential Treatment Request |
display, perform and distribute copies of DCM
X, (ii) authorize Dell’s channel partners or resellers under appropriate agreements to redistribute
DCM X to end user customers solely in conjunction with, or for use with, Dell systems, solely in
executable format, provided that any such redistributions of DCM X to end users shall be solely
pursuant to Dell’s end user license agreement (“XXXX”), the wording of which shall be at least as
protective of Altiris as the Altiris XXXX (“Exhibit G” of the Agreement) which Exhibit G shall be
incorporated herein by reference hereto, (iii) use copies of DCM X for demonstration, marketing or
training purposes, (iv) distribute a replacement copy of DCM X to an end user customer in exchange
for the return of a defective copy or to fix an error in a copy, (vi) reproduce copies for backup
or archival purposes, (vi) conduct testing and
validation in accordance with the SOW, (vii) distribute upgrades of DCM X (if any are provided by
Altiris to Dell) to an existing customer who has previously obtained a copy of DCM X.
3.2 Documentation. Altiris hereby grants to Dell a nonexclusive, worldwide, royalty-free
license under Altiris’ copyrights to translate (in any language not already provided for by Altiris
as identified in the SOW) and distribute Altiris’ end user manuals and training documentation for
DCM X as provided to Dell by Altiris (“Documentation”), provided that (i) Dell shall be fully
liable for any and all errors or inaccuracies resulting from any changes made to the Documentation
as part of the translation process (for the additional languages not already provided for by
Altiris as identified in the SOW), and (ii) Dell shall remove any Altiris copyrights or logos from
such translated versions.
3.3 Distribution Limitations. Dell and Altiris agree and acknowledge that either party is
free to choose not to distribute a DCM X product if it determines in its sole discretion that a
significant quality issue exists with the DCM X product. In the event that either party determines
that DCM X has such a significant quality issue, the requesting party shall have the right to
request a stop shipment of all DCM X distribution by both parties until the issue has been mutually
resolved, and the non-requesting party shall reasonably investigate the request, provided that the
non-requesting party shall have no obligation to agree to such stop shipment.
3.4 Open Source Restrictions. Neither party shall, in any manner, cause DCM X or the
SOFTWARE PRODUCT in whole or in part to become subject to any of the terms of an Excluded License,
whether through the creation of derivative works, distribution mechanisms, or by bundling the
software via static or dynamic links to software governed by an Excluded License. An “Excluded
License” is any license which requires as a condition of use, modification and/or distribution of
software subject to the Excluded License, that such software or other software combined and/or
distributed with such software be disclosed or distributed in source code format.
4. Development and Pre-Release Testing. Development of DCM X shall be conducted pursuant to the
SOW. To enable Altiris to properly test and validate pre-release and production ready versions of
DCM X, Dell agrees that it shall use best efforts, at no cost to Altiris to provide: (i)an agreed
to number of each pre-production hardware model developed by Dell, subsequent to the
Effective Date of this Amendment, for Altiris’ sole use in development, integration and
compatibility verification, and testing of DCM X, and (ii) at least thirty (30) days prior to their
release, an agreed to number of each production hardware model to be released by Dell,
subsequent to the Effective Date of this Amendment, for Altiris’ sole use in validation,
and associated quality assurance purposes of DCM X, as well as for support purposes of DCM X. Dell
understands that all such foregoing platform support obligations on the part of Altiris shall be
contingent upon Altiris’ receipt of the above-referenced Dell hardware models.
5. Pre-Delivery Testing, Delivery and Acceptance
Prior to delivery by Altiris to Dell of the production ready version of DCM X, Altiris shall
perform testing as required to ensure that DCM X substantially complies with the written
specification in the SOW. Altiris shall, at its expense, deliver a master copy of production
versions of DCM X software in executable format, and associated development documentation
required by Dell for testing purposes, in accordance with the schedule set forth in the SOW.
Altiris shall also, at its expense, deliver to Dell, within thirty (30) days of their availability,
updates, bug fixes, and maintenance modifications, if any, made to DCM X developed during the term
of this Amendment or as otherwise agreed to. For the purposes of clarification, new
applications
incorporating Licensed Products, SOFTWARE PRODUCTS, or DCM 2.0, as developed by Altiris, shall not
be deemed to fall within the obligation of the preceding sentence.
Within fifteen (15) business days after receipt from Altiris of DCM X, Dell shall test and validate
DCM X for substantial conformance with the specifications in the SOW, using the acceptance criteria
set forth in the SOW Exhibit C (Attachment 1), and shall communicates to Altiris, via a detailed
written report, any substantial nonconformance with the specifications. Altiris shall then have
thirty (30) business days to promptly respond, and if required, shall have a reasonable time to
make appropriate such modifications such as will enable DCM X to substantially comply with the
specification.
6. Term and Termination
The initial term of this Amendment is five (5) years from the Effective Date of this Amendment
unless terminated in accordance with the terms of Section 9.2 of the Agreement as amended or if
another agreement is executed that specifically supersedes this Amendment No. 7. This Amendment
will automatically renew each year upon the termination date unless thirty (30) days prior to the
termination date, written notice is provided by the terminating party. In the event of expiration
or termination of this Amendment for any reason, other than material breach by either party: (i)
all licenses to Dell hereunder shall be terminated after ninety (90) days wind-down period,
provided that licenses to end user customers of DCM X shall not be affected; ii) all provisions
which should reasonably survive shall continue in full force and effect and shall bind the parties
and their successors, heirs, assigns and legal representatives, (iii) the parties will work
together to develop a mutually agreeable plan to provide continued service to affected Dell end
users after the expiration who have not executed a support agreement directly with Altiris, which
may include, without limitation, payment of additional fees to Altiris, and (iv) Dell shall retain
a limited license in and to DCM X solely for support purposes for end user customers who purchased
or received DCM X prior to the effective date of expiration or termination of this Amendment in
order to satisfy Dell’s existing contractual obligations to address support issues for such end
users for one (1) year, and the parties will mutually agreed upon additional support, if necessary.
With the foregoing exception, Dell shall return to Altiris or certify the destruction of any copies
of DCM X in its possession.
7. Royalties, Expenses, Support Fees and Payments
[*]
8. [*].
[*]
9. Follow-on Efforts. As noted above, each new version of DCM shall require the negotiation and
execution of a new SOW.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Amendment to the above referenced
Agreement by their respective duly authorized officers.
DELL PRODUCTS L.P.
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ALTIRIS, INC. | |
BY: Xxxx Hand
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BY: Xxxxxxx X. Xxxxxxxxx | |
SIGNATURE: /s/ Xxxx Hand
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SIGNATURE: /s/ Xxxxxxx X. Xxxxxxxxx | |
TITLE: VP Enterprise
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TITLE: Vice President Sales | |
DATE: 9/27/06
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DATE: October 4, 2006 |
