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EXHIBIT 10.10
AMENDMENT TO RESELLER AGREEMENT BETWEEN MARIMBA, INC. AND TIVOLI SYSTEMS, INC.
REFERENCE AGREEMENT NUMBER: RES9700332 AMENDMENT NO: 01
MARIMBA NAME AND ADDRESS: RESELLER NAME AND ADDRESS:
Marimba, Inc. ("Marimba") Tivoli Systems, Inc. ("Reseller")
000 Xxxxx Xxxxxx 0000 Xxxxxxx xx Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxx, XX 00000
MARIMBA COMPANY CONTACT: RESELLER COMPANY CONTACT:
Xxxx Xxxxxxxxx Xxxxxx X Xxxxxxxx
Legal Counsel Manager, Contract Services,
Phone: (000) 000-0000 Business Operations
Fax: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
WHEREAS, since the Reseller Agreement by and between Marimba and Reseller dated
as of August 14, 1997 (the "Reseller Agreement") was originally signed, Reseller
and Marimba have agreed to modify the terms under which Reseller resells the
Marimba Products;
NOW THEREFORE, in consideration of agreements reached between the parties, the
Reseller Agreement is hereby amended as follows (this "Amendment"):
1. Definitions. All capitalized terms used and not otherwise defined herein
shall have the meanings ascribed to them in the Reseller Agreement.
2. Section 2. Delivery of the Products and Promotional Material. Add the
following provisions:
Reseller and Marimba agree that a hot link to Reseller's web site will be
established for distribution of Marimba's demonstration Product software
download.
Distribution of the Product by Reseller will be delivered in the following
manner, but not be limited to:
1) Order is placed by the Reseller sales force
2) If order exceeds [***]* and Marimba and Reseller have agreed
to a special discount, discount must be authorized in advance in
writing by VP of Sales of Marimba
3) Order and associated licensing paperwork is delivered to Tivoli
Business Operations for processing
4) Reseller places an order with Marimba including the following
information:
a. Enabling Key request per Attachment D - 1 of the
Reseller Agreement
b. Reseller License Fee for the Product
c. Unique customer identifier, customer location, User
Access Licenses purchased (number and type)
5) Marimba issues the electronic license keys to Reseller
6) Reseller provides the electronic license keys to the Reseller
customer along with the Product download information to the
customer (customer can download off Tivoli's xxxxx-xxxx.xxx web
site.
7) Marimba invoices Reseller monthly based upon the number of
license keys given to Reseller and Reseller's reports to
Marimba.
Marimba agrees to reconcile the monthly reports it receives from Reseller with
Marimba's records of the total number of electronic keys distributed each month
within thirty (30) days following the end of the calendar month in which the
keys were distributed.
TIVOLI - MARIMBA RESELLER AGREEMENT AMENDMENT
[*] CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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3. Section 3. Section 3 is deleted in its entirety and replaced by the
following:
"3. End-User Restrictions. No distribution or license of a Copy by Reseller
shall be made except pursuant to Marimba's then-current end-user license
agreement for such Product (the "Marimba Product License")(the current version
of which for each Product is set forth in the Reseller License Guide attached as
Attachment C). Reseller may also license the Products under an enforceable
end-user license of either Reseller or IBM (a "Reseller License"), provided that
such Reseller License: (a) is consistent with and not less protective of Marimba
than the terms of the Marimba Product License (including, but not limited to,
with respect to limitation of liability, copying, reverse engineering,
redistribution, export, government end users, copyright and intellectual
property right protection (including reservation of rights and prohibition of
removal of copyright notices)); (b) does not contain any representation or
warranty made on behalf of Marimba or its suppliers not contained in the Marimba
Product License and (c) contains in all material respects the same terms and
restrictions in the Marimba Product License regarding permitted use, users and
duplication (i.e., access and user license terms). Reseller shall obtain the
advance written consent of the Marimba Legal Department before issuing any
license not in compliance with this Section 3. Reseller shall use reasonable
commercial efforts to enforce or cooperate with Marimba in the enforcement of
the end-user license for each Copy distributed by Reseller."
3. Section 12. Term and Termination. Add the following provision:
"The parties agree that this Reseller Agreement will be superseded at its
expiration by the OEM Agreement between Reseller and Marimba dated March 6,
1998. However, the General Availability date of the bundled OEM Application
known as "Cross Site" may not occur until after such time as the Reseller
Agreement expires. As a result, the parties agree that the Reseller Agreement
will be extended automatically when it reaches its present expiration date of
August 16, 1998 until the product Cross-Site is generally available or for a
period not to exceed one hundred eighty (180) days, whichever first occurs.
This action provides Reseller the opportunity to complete the sales cycle on any
outstanding proposals for the sale of Product under the Reseller Agreement and
provides some overlap time between the Reseller Agreement and the OEM Agreement
in the event of delays in the release of Cross Site."
4. Attachment A. Attachment A of the Reseller Agreement is deleted in its
entirety and is replaced by Attachment A-1 attached to this Amendment.
5. Attachment C. Attachment C of the Reseller Agreement is deleted in its
entirety and is replaced by Attachment C-1 attached to this Amendment.
6. Attachment D. Attachment D of the Reseller Agreement is deleted in its
entirety and is replaced by Attachment D-1 attached to this Amendment.
The parties acknowledge that they have read this Amendment, understand it, and
agree to be bound by its terms and conditions. Further, they agree that this
Amendment and the referenced Reseller Agreement are the complete and exclusive
statement of the agreement between the parties, superseding all proposals or
communications between the parties relating to this subject. Any reproduction of
this Amendment by reliable means will be considered an original of this
document. This Amendment shall be effective as of the date last executed below.
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TIVOLI SYSTEMS, INC. MARIMBA, INC.
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Mgr. Contract Services Title: V.P. Sales
Date: June 1, 1998 Date: May 27, 1998
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ATTACHMENT A - 1
Discount from U.S. Price List [***]+ - Standard Discount
Discount from U.S. Price List for Reseller and Marimba will
any single list price order in consider each sale on a case by
excess of [$***]+ case basis; must be approved by
written agreement of VP of Sales
of Marimba
Annual Support and Maintenance Fee [***]+ of fee due to Marimba by
Reseller for each Copy of
Product
Territory Worldwide
Initial Commitment Amount* [$***]+**
* - Reseller shall be deemed to have "consumed" all of the Initial Commitment
Amount on the date on which it has distributed either hereunder, or under the
OEM Agreement, in the aggregate, such number of Copies for which the fee payable
to Marimba would equal the Initial Commitment Amount.
** Reflects balance as of August 14, 1997 (Effective Date of Reseller Agreement)
only
Note: Any other special enterprise licensing terms shall be on a case by case
basis upon mutual agreement of the parties. In addition, Marimba may prepare and
offer to Reseller special bundle packs of the Products for distribution by
Reseller which may include first year maintenance and support.
--------
+ CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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ATTACHMENT C - 1
RESELLER LICENSE GUIDE
[SUBSEQUENTLY AMENDED]
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ATTACHMENT D - 1
INFORMATION FOR ENABLING KEY
Identification
Customer Name:
Customer Address:
Contact Information
Customer email:
Customer Phone:
Customer Fax:
Technical Contact Name:
Technical Contact Address:
Technical Contact email:
Technical Contact Phone:
Technical Contact Fax:
Configuration
User Access Licenses purchased: (number and type)
Platform (Sun Solaris, WinNT 4.0, Win95, Mac)
Number of Channels (Unlimited/Standard):
Number of Users purchased (Intranet):
Host IP address:
Host Ethernet address:
Language (English, Japanese):
Version (International, US):
Year of Support/Maintenance Purchased: _____ Yes ______ No
