EXHIBIT 10.10
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
SOFTWARE LICENSE AGREEMENT
CONTRACT #_________________
This Agreement is made effective this 30th day of April, 1999 by and between
Motive Communications, Inc., a Delaware corporation with its principal place of
business at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000
("Licensor"), and Compaq Computer Corporation, a Delaware corporation having its
principal place of business at 00000 X.X. 000, Xxxxxxx, XX 00000-0000 ("Compaq")
on behalf of itself and its worldwide divisions, subsidiaries and affiliates.
1. DEFINITIONS
a. The term Compaq shall mean Compaq Computer Corporation and its
divisions, subsidiaries and affiliates.
b. The term "site" shall mean a data center for one or more Compaq
divisions, subsidiaries, sales regions or sales offices.
c. [*] refers to Content (defined below) which has been activated by
Licensor to produce an executable program which is designed to
diagnose and potentially repair technical problems being experienced by an
end user.
d. Content means text files or fragments created by Compaq or Licensor for
inclusion into the [*] web site for general use.
e. Customer shall mean any customer of Compaq, individual or corporation,
who has purchased computer equipment from Compaq and who Compaq has a
requirement to provide technical support to that individual or corporation.
f. Specifications are the applicable Licensor user documentation,
product/services data sheets, and/or release notes delivered with the
Software.
2. PRODUCT DESCRIPTION
a. The products which are the subject of this Agreement are certain
computer software programs of Licensor, as defined and described in
Appendix A including all related materials, documentation and technical
information (the "Software").
b. Licensor has established an [*] web site that contains [*] that can be
accessed, downloaded, and used by Compaq to diagnose and/or resolve its
technical support problems. The [*] service is provided on an [*] basis.
Upon execution of this Addendum, payment of the [*] fee, and deployment of
Licensor's [*] Server Software Compaq shall be provided access to the [*]
web site.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission
3. RIGHTS GRANTED
a. Licensor hereby grants to Compaq an irrevocable (except as noted in
Section 7, Termination), worldwide, non-exclusive, non-transferable, [*]
to use the Software as ordered under the provisions of Appendix-A.
Compaq may install and use Software on Compaq owned or operated
computers up to the maximum number of licenses of each Software defined
in Compaq's Appendix A and for which Compaq has paid the applicable
license fee(s). In the case of a Software which is licensed on a [*],
licensee may install the applicable Software on owned or operated
computers to support the quantity of unique users defined in a Appendix
A. A [*] is an [*] having access to and use of the licensed Software. In
the case of an agent license (currently called "Motive Assistant"), this
Software may be distributed [*] by Compaq to Compaq's Customers, but may
be used only in conjunction with the Licensor desktop and Licensor
server components licensed by Compaq.
b. Except for use of the Motive Assistant as outlined above, the Software
may only be used by i) employees of Compaq, or ii) contractors/agents of
Compaq who are under a written nondisclosure agreement with Compaq which
will protect Licensor's Software and who are performing services solely
[*] requirements [*] or to its Customers as outlined below.
c. If Compaq subcontracts its [*] obligations of its products to a third
party (contractor or agent) such third party will be authorized to use
the Software provided i) there is a written agreement in place between
Licensee and the third party that governs and protects the Licensor, its
Software, and its Confidential Information, including the Software, to
the same degree as provided under this Agreement; ii) that the third
party uses the Software solely on behalf of Compaq to support Compaq or
fulfill Compaq's support obligations to its Customers and no other
customers of the third party; and iii) upon completion or termination of
the subcontracting agreement between Compaq and the third party, all
Licensor's Software and Confidential Information shall be returned to
Compaq.
d. Compaq agrees only to use the [*] diagnostic / repair routines through
and in conjunction with licensed Licensor server and desktop Software.
Compaq acknowledges that Licensor and its licensors retain ownership of
all [*] including translations, compilations, and derivative products,
any portions or copies thereof, and all rights therein. Compaq will not
(and will not allow any third party to) reverse engineer or attempt to
discover any source code or underlying ideas or algorithms of any [*].
Licensor will monitor usage statistics to verify performance of [*]. The
parties agree that neither Licensor nor any other third party is
prevented from independently creating similar Content that may perform
similar functionality or restricts Licensor's use of residual knowledge
associated with Compaq Content
4. DELIVERY AND INSTALLATION
Licensor shall deliver the Software as set forth in Appendix A. no later
than the date set forth in Appendix A. Licensor shall enhance, add to, or
otherwise modify the Software prior to or at the same time any
modifications of the Software are made commercially available to Licensor's
general customer base contingent upon Compaq's compliance with the
maintenance terms specified in Appendix A.
Licensor shall be subject to the following insurance requirements when
providing on-site installation and training services as set forth in
Appendix A:
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
2
a. Without limiting any of the obligations or liabilities of Licensor,
Licensor shall maintain, as long as this Agreement is in effect, at
Licensor's expense, insurance policies of the kind and limits listed below
and shall provide Compaq, prior to execution of this Agreement, a
Certificate of Insurance evidencing such coverage for the term of this
Agreement. Licensor shall also require any consultants or subcontractors
retained by Licensor to insure against the following risks to the extent
stated.
Insurance is to be placed with insurers with a Best's Rating of no less
than A:VII, and must be licensed to do business in the State of Texas and
which have been approved by the State of Texas Commissioner of Insurance.
All policies shall contain the limits outlined below and shall name Compaq
as a certificate holder. Such policies shall remain in force until receipt
of final payment by Licensor.
Type of Coverage Limits
---------------- ---------------
Statutory, State of Texas
Worker's Compensation
including All States Endorsement
and Waiver of Subrogation in favor of COMPAQ
Employer's Liability $[*] Each Accident
$[*] Disease - Policy Limit
General Liability $[*] Each Occurrence
Bodily Injury/Property Damage $[*] Aggregate/1/
Comprehensive Form including:
(1) Premises/Operations, Single Limit
(2) Products/Completed Operations,
(3) Contractual Liability,
(4) Independent Contractors,
(5) Broad Form Property Damage,
(6) Personal/Advertising Injury, and
(7) Owner's Contractors Protective
/1/ The General Aggregate limit shall apply separately to this Agreement or
the General Aggregate shall be twice the required occurrence limit.
Automobile Liability $[*] Combined Single Limit per accident
for bodily injury and property damage.
Covering all automobiles, trucks, tractor trailers, motorcycles, or other
automotive equipment, whether non-owned, owned or hired by Licensor or
employees of Licensor, including Compaq as an additional insured with
respect to any non-owned, owned or hired automotive equipment used by or
with the permission of Licensor.
Excess/Umbrella Liability - $[*]
following form over primary Commercial General Liability
Commercial Blanket Bond $[*]
(employee dishonesty)
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
3
b. Each [*] Insurance shall contain a provision that coverage afforded
under the policies will not be canceled without at least [*] days prior
written notice to Compaq in the event of cancellation or material change,
in accordance with Section 7 of this Agreement. Furthermore, Licensor will
obtain an endorsement to its policies providing that the Licensor's
insurance shall be primary as respects Compaq, its officers and employees.
Any other valid and collectible insurance or self - insurance maintained by
or in the name of Compaq shall be in excess of Licensor's insurance and
shall not contribute to it.
c. Licensor shall cause each insurance policy issued hereunder to provide:
(i) that Compaq is named as a [*] as their interests may appear, and
that the coverage shall contain no special limitations of the scope of
protection afforded Compaq, its officers or employees.
(ii) that all amounts payable thereunder will be paid to Compaq or
Compaq's assigns
d. It is Licensor's responsibility to ensure that the insurance
requirements listed above are in effect for the full term of this
Agreement. Cancellation or change of coverage without Compaq's approval
shall be considered a breach of contract. In addition, all of Licensor's
outside consultants or subcontractors shall maintain adequate insurance as
detailed above if performing work for Compaq on Licensor's behalf. Licensor
is responsible to verify and maintain Certificates of Insurance from such
outside consultants or subcontractors.
The original Certificate of Insurance should be mailed to Compaq Computer
Corporation, attn. Risk Xxxxxxxxxx, XX 000000, XX Xxx 000000, Xxxxxxx,
Xxxxx 00000-0000 and a copy to Xxxx Xxxx Xxxxxx-Xxxxxxxx, Xx.Commodity
Manager, Corp. Software Procurement, XX Xxx 000000, Xxxxxxx, XX 00000-0000.
5. APPLICABLE FEES
a. Compaq shall pay Licensor the fees specified in Appendix A [*] days from
date of invoice provided that the Software has been received. Payment of
invoices shall not constitute final acceptance of the Software.
b. Taxes; Shipping. Compaq will pay all amounts due under this Agreement in
U.S. currency. Unless Compaq provides Licensor a valid exemption
certification from the applicable taxing authority Compaq shall pay or
promptly reimburse Licensor for all federal, state, local or other taxes
(exclusive of income, business privilege, or similar taxes) including but
not limited to sales, use, lease, value-added, withholding or similar
assessments, taxes and duties based on charges payable, on the Software's
use or services performed hereunder or in connection with this Agreement,
excluding taxes payable on Licensor's net income. Delivery is FOB Origin.
However, if the Software or Documentation is lost or damaged during
shipment, Licensor will reship at no additional cost to Compaq. [*] shall
pay for all shipping charges for shipments to locations within the United
States. [*] shall be responsible for the payment of all international
freight, customs, duties, international freight forwarding and related
charges applicable to the delivery of the Software to [*] and [*] shall
reimburse [*] for all such charges which are prepaid by [*] and invoiced to
[*].
c. Upon election of the [*], Licensor will invoice Compaq for the then
current [*] service fee as agreed to in Appendix A. This fee will be paid
in advance on an [*] basis with payment due a net [*] days after receipt of
invoice. The
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
4
[*] Services shall automatically renew [*] on the Agreement anniversary
date by paying the then current [*] service fee. If Compaq chooses not to
renew its [*], Compaq will notify Licensor no later than [*] days prior to
such [*] renewal date.
6. COPIES OF SOFTWARE
In addition to producing copies for the licensed number of users, Compaq
shall have the right to reproduce for backup and archival purposes all of
the Software described in Appendix A at any Compaq site provided for herein
or specifically provided for in Appendix A, subject to the restrictions on
use and disclosure set forth herein.
7. TERMINATION
a. Either party has the right to terminate this Agreement if the other
party materially breaches or is in material default of any obligation
hereunder which default has not been cured within [*] after receipt of
notice of such default from the nondefaulting party or within such
additional cure period as the nondefaulting party may authorize. Licensor
shall also be deemed in default if the Software program continues to
exhibit defects causing serious disruption of use and/or repeated periods
of downtime, notwithstanding Licensor's remedial or maintenance efforts,
over a continuous period of [*] or more.
b. Either party may terminate this Agreement by written notice to the other
party if the other party becomes insolvent, makes a general assignment for
the benefit of creditors, suffers or permits the appointment of a receiver
for its business or assets, becomes subject to any proceeding under any
bankruptcy or insolvency law whether domestic or foreign, or has wound up
liquidated, voluntarily or otherwise.
c. In the event that either party is unable to perform any of its
obligations under this Agreement or to enjoy any of its benefits because of
(or if loss of the Software is caused by) natural disaster, actions or
decrees of governmental bodies or communications line failure not the fault
of the affected party (hereinafter referred to as a "Force Majeure Event"),
the party who has been so affected shall give written notice to the other
party within [*] days and shall do everything possible to resume
performance. Upon receipt of such notice, this Agreement shall immediately
be suspended. If the period of non-performance exceeds [*] days from the
receipt of notice of the Force Majeure Event, the party whose ability to
perform has not been so affected may by giving written notice terminate
this Agreement. However, delays in delivery due to Force Majeure Events
shall automatically extend the delivery date for a period equal to the
duration of such events; any warranty period affected by a Force Majeure
Event shall likewise be extended for a period equal to the duration of such
event.
d. In the event that this Agreement is terminated, each party shall return
to the other all papers, materials, and other properties of the other party
then in its possession.
e. The obligations of the parties under Section 7.d. (Return of
Properties), and 12 (Indemnification) shall survive termination of any
license hereunder.
f. Any remedy expressed herein is in addition to any other remedies at law
or in equity.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
5
g. Licensor may terminate this Agreement within [*] days in the case of
non-payment for any invoices which are not subject to dispute by Compaq [*]
in the case of a breach of Section 10 or 11.
h. Upon non-renewal of [*] or termination of this Agreement for breach,
Compaq will; (i) discontinue accessing the [*] web site, (ii) cease to
using any [*]; and (iii) destroy any downloaded [*] and any derivative
products made in connection with the [*].
8. WARRANTY
a. Licensor warrants that on the date the Software is delivered to Compaq
and for a period of [*] thereafter the Software furnished hereunder shall
materially conform to the Specifications; that, in general, the Services
shall be performed in a timely, professional and workmanlike manner by
qualified professional personnel; and that the Services and Software shall
conform to the standards generally observed in the industry for similar
Services and Software.
b. Licensor warrants that it has full power and authority to grant the
rights granted by this Agreement to Compaq with respect to the Software
without the consent of any other person; and that neither the performance
of the Services by Licensor nor the license to and use by Compaq of the
Software (including the copying thereof) will in no way constitute an
infringement or other violation of any patent, copyright, trade secret,
trademark, trade dress, invention, proprietary information, nondisclosure
or other intellectual property rights of any third party.
c. Licensor warrants that its Software, its license to and use by Compaq,
and the performance by Licensor of the Services, shall be in compliance
with all applicable laws, rules and regulations.
d. EXCEPT FOR THE EXPRESS LIMITED WAY SET FORTH ABOVE, LICENSOR HEREBY
DISCLAIMS AND COMPAQ EXPRESSLY WAIVES ANY AND ALL OTHER EXPRESS WARRANTIES
OR REPRESENTATIONS OF ANY KIND OR NATURE, AND ANY AND ALL IMPLIED
WARRANTIES, INCLUDING, BUT NOT LIMITED T0, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
e. THE [*] SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND
MOTIVE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9. CONFIDENTIALITY AND INDEPENDENT DEVELOPMENT
a. Each party recognizes that it may have previously entered or will in the
future enter into various agreements with the other party which obligates
it to maintain as confidential certain information disclosed to it by the
other party. To the extent that such information or any further
confidential information, which might include but is not limited to
business plans, forecasts, volumes, capacity, network deployment
information, pricing, inventory levels, Software, etc., (collectively
referred to hereinafter as "Information") is disclosed in furtherance of
this Agreement or any purchase or sale made hereunder, such Information
shall be so disclosed pursuant to the minimum terms and conditions listed
below; provided, however, the minimum terms and conditions listed below
shall in no way relieve the parties from any obligation or modify such
obligations previously agreed to in other agreements.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
6
b. Both parties agree that the party receiving Information will maintain
such Information in confidence for a period of [*] from the date of
disclosure of such Information. Each party shall protect the other party's
Information to the same extent that it protects it own confidential and
proprietary information and shall take all reasonable precautions to
prevent unauthorized disclosure to third parties. The parties acknowledge
that the unauthorized disclosure of such Information will cause irreparable
harm. Accordingly, the parties agree that the injured party shall have the
right to seek immediate injunctive relief enjoining such unauthorized
disclosure.
c. The provisions of this Section 9. shall not apply to information (i)
known to the receiving party at the time of receipt from the other party,
(ii) generally known or available to the public through no act or failure
to act by the receiving party, (iii) furnished to third parties by the
disclosing party without restriction on disclosure, (iv) furnished to the
receiving party by a third party as a matter of right and without
restriction on (v)disclosure, (v) independently developed, or (vi)
furnished as required by court order or similar governmental authority or
by the imminent likelihood thereof or by applicable law.
d. Immediately upon termination of this Agreement or at the request of the
other party, each of the parties shall promptly return all materials in its
possession containing Information of the other party.
e. Neither party shall use the name(s), trademark(s), tradename(s), or
logo(s) whether registered or not, of the other party in publicity
releases, advertising, or in any other manner, without securing the prior
written approval of the other party except that Compaq hereby provides
approval for Licensor to use Compaq's name in its customer list.
f. Each party agrees not to publicize or disclose to any third party
without the consent of the other, either the terms of this Agreement or the
fact of its agreement and execution. In particular, no press releases shall
be made without the mutual consent of Licensor and Compaq, such
consent not to be unreasonably withheld.
g. Nothing in this Agreement shall be construed to preclude Compaq from
independently developing, using, acquiring or marketing computer software
packages which may perform the same or similar functions as the Software
provided by Licensor.
10. COPYRIGHT AND TRADEMARK OBLIGATIONS
Compaq agrees not to remove, deface, or destroy any copyright, patent
notice, trademark, service xxxx, proprietary markings or confidential
legends placed on or within the Software.
11. PROPRIETARY RIGHTS
Compaq agrees not to disassemble or reverse engineer the Product. Compaq
hereby expressly acknowledges that it does not have, and shall not by
virtue of this License Agreement acquire, any proprietary rights whatsoever
of any kind in or over any adaptation, modification, derivation, addition,
or extension to Product, whether made by Compaq or by Licensor and that
Compaq's sole right in relation thereto is as set forth herein. The
original and any copies of Product, whether made by Licensor or by Compaq,
shall remain the property of Licensor. If Compaq becomes aware of any
unauthorized disclosure of use of Product, Compaq shall immediately notify
Licensor thereof and shall advise Licensor of the full particulars thereof
in writing.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
7
12. INDEMNIFICATION
a. Licensor shall defend all suits or proceedings brought against Compaq
arising from claimed infringements of any patent, trademark, service xxxx,
copyright, or intellectual property right for any Software furnished by
Licensor under this Agreement and shall indemnify Compaq against all costs,
fees and damages. Compaq shall promptly notify Licensor in writing and
provide information and assistance, at Licensor's expense, for such
defense.
b. Additionally, in the event that use of the Software by Compaq is
enjoined, Licensor shall (i) replace the Software, without additional
charge, by a compatible, functionally equivalent and non-infringing
product; (ii) modify the Software to avoid the infringement; (iii) obtain a
license for Compaq to continue use of the Software for the term of this
Agreement and pay for any additional fee required for such license; or,
(iv) if none of the foregoing alternatives is possible even after the
Licensor's reasonable commercial efforts, the Licensor shall return the
license fee, and expenses incurred by Compaq, to Compaq.
The foregoing obligations do not apply with respect to a Software or
portions or components thereof (i) not supplied by Licensor, (ii) made in
whole or in part in accordance to Compaq specifications, (iii) that are
modified by Compaq after delivery (iv) combined with other products,
processes or materials where the alleged infringement relates to such
combination, (v) where Compaq continues the allegedly infringing activity
after being notified thereof or after being informed of modifications that
would have avoided the alleged infringement, or (vi) where Compaq's use of
such Software is not strictly in accordance with this Agreement. Compaq
will indemnify and hold harmless Licensor from all damages, settlements,
attorneys' fees and expenses related to any claim of infringement or
misappropriation excluded from Licensor's indemnity obligation by the
preceding sentence.
13. LIMITATION OF LIABILITY
EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY WAY RISING OUT OF OR RELATING TO THIS
AGREEMENT EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN COMMUNICATED TO
THE OTHER PARTY.
EXCEPT AS SPECIFIED IN SECTION 12 AND 16, LICENSOR SHALL NOT BE LIABLE FOR
ANY LOSS OR DAMAGE WHICH MAY ARISE IN CONNECTION WITH THE FURNISHING OR USE
BY COMPAQ OF THE SOFTWARE OR PERFORMANCE OF THE SOFTWARE OR SERVICES FOR
ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE [*] HEREUNDER WITH RESPECT TO
THE APPLICABLE SOFTWARE PROGRAM LICENSES OR PROFESSIONAL SERVICES.
MOTIVE'S TOTAL LIABILITY WITH RESPECT TO THE [*] WILL BE LIMITED [*] FOR
THE [*] IN THE [*] PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE
LIABILITY.
14. SOFTWARE SUPPORT
Licensor shall, at Compaq's election, provide support and maintenance
services, as defined and described in Appendix A, at the fees set forth in
Appendix A or as set forth in a separate Software Support Agreement.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
8
During the period for which the Compaq has subscribed to and paid for
contracted [*] maintenance and support for the Software, Licensor will
provide the following maintenance support of the current version of
Software (Licensor will also support the previous sequential release of the
Software for a period of [*]). In the event Compaq acquires additional
licenses beyond its initial acquisition, maintenance fees for such licenses
shall be pro-rated to be co-terminus with Compaq's existing maintenance
period.
Licensor's Standard Maintenance and Support Plan shall include (i) Software
Updates - To supply improvements, extensions and other changes to the
Software which Licensor, at its discretion, deems to be logical
improvements or extensions; (ii) Code Corrections - To supply code
corrections to correct material deviations of unmodified Software from the
Specifications; (iii) [*] support requests through [*] designated
individuals using the Licensor support system technology; iv) Classic
Hotline Support - To provide support service via telephone, FAX and E-Mail,
unlimited requests for mission critical production related situations and
up to [*] annually for all non-critical classic support requests; and (v)
Fixes - to supply workarounds for problems where known, answer questions
and provide patches where they exist. Support requests will be made during
Licensor's normal principal period of service ("PPS") during the hours of
[*], CST, Mon. - Fri., except Licensor holidays. If on-site assistance is
required and the problem is the failure of the Software to materially
perform to Specifications, no charge will be made. If the problem is due to
other causes, Licensor's then-current professional services rates for such
services will be applicable and payable by Compaq.
Licensor [*] Maintenance and Support Plan. The premium support plan
provides all services in the standard plan described above in this Section
on a [*].
Renewal; Charges for Subsequent Years. [*] Compaq has given the other prior
written notice canceling Licensor's maintenance and support as defined
below. Compaq will be invoiced for [*] maintenance for subsequent years [*]
days prior to the expiration of the [*] maintenance period.
Cancellation. Compaq may cancel its [*] in the maintenance and support
plan(s) effective as of the next anniversary or coterminous [*] renewal
date by written notice to Licensor received prior to the [*] renewal date,
or if there is an increase in [*] maintenance and support charges over the
preceding year by giving Licensor written notice of cancellation within [*]
days of receipt of Licensor's invoice or price quotation notice showing
such increase.
Reinstatement. Compaq may reinstate maintenance at a later time by paying
the plan(s) fee in effect at the time of reinstatement plus a fee equal to
the then current maintenance and support fees for the Software times the
number of [*] periods the [*] was interrupted or [*] of the license fee for
the Software at the time the license was purchased, whichever is less.
Scope of Coverage. Licensor's maintenance support policy requires that (i)
the same level of services shall apply to all licensed Software at the
installation site, (ii) Compaq shall bring or keep all licensed Software it
has acquired at an installation under current contracted maintenance in
order to receive the maintenance update services defined in the maintenance
program. The automated reporting routines contained in the Software which
identifies and analyzes the use and performance of the Software including
problems and issues that arise in connection therewith will be used by
Licensor to provide support services, and improve, enhance the performance
of the Software offered by Licensor.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
9
Limitations on Licensor's Obligations. Compaq understands and agrees that
Licensor may develop and market new or different computer programs or
features which use part or all of the Software and which perform all or
part of the functions performed by the Software, including but not limited
to releases of new software products which include new product features and
functionality. Nothing contained in this Agreement gives Compaq any rights
with respect to such products, or such new or different computer programs
or features.
Exclusions. Company shall have no obligation to correct any error resulting
from: (i) altered or damaged Software or any portion of a Software
incorporated with or into another software to the extent the error is the
result of such alteration, damage or incorporation; (ii) use of a Software
that is not the then current release or immediately Previous Sequential
Release; or (iii) Software problems caused by Compaq's negligence, abuse or
misapplication, or use of Software other than as specified in Licensor's
user manual.
The terms of this Section entitled "Software Support" do not apply to [*]
services. For payment of the [*] fee, Compaq will receive access to any
updates or modifications made to the [*] web site by Licensor
15. PROFESSIONAL SERVICE
If ordered by Compaq on its Appendix A, Quotation and/or Pricing Schedule
the following terms and conditions shall apply to professional services
supplied by Licensor to Compaq. Compaq may purchase technical support
services ("Professional Services") from Licensor in the form of service
package offerings or on a time and material basis.
Scope of Professional Services. Licensor will perform the Professional
Services documented in Compaq's Appendix A, Pricing Schedule and/or
Quotation which has been accepted by an official of Licensor in writing.
The parties acknowledge that the scope of Professional Services provided
hereunder consist solely of (i) Software installation, deployment
assistance, interface adapter efforts, and/or non-formal software training.
Licensor may also offer select service package offerings under its then
current price list to perform certain Professional Services on a fixed
price basis. The contents and deliverables of these packages shall be
defined in the then current price list or the applicable Specifications.
Professional Services provided to Compaq by Licensor shall not constitute
works for hire.
Term of Professional Services. The "Term of Professional Services"
performed on a time and material basis will begin and terminate on the
dates or times defined in Compaq's Appendix A, Pricing Schedule and/or
Quotation which has been accepted by an official of Licensor in writing,
unless earlier terminated in accordance with this Agreement.
Fees and Expenses. Fees for Professional Services are defined in Licensor's
Quotation or, where no Quotation is provided, fees shall be as stated in
Licensor's current, price list applicable to the territory for such
Professional Services. Fees and charges are due net [*] days after date of
invoice by Licensor. Invoices may be published on a monthly basis or at the
completion of Professional Services. Professional Services fees include
reasonable expenses for travel, food and lodging, directly related to the
performance of Professional Services.
Termination or delay of Professional Services. Compaq agrees that
Professional Services may be terminated by either party at any time for any
reason, with or without cause, by giving [*] days prior written notice to
the other party; termination shall be effective [*] days after the other
party's receipt of such notice. If Compaq delays the scheduled start of
contracted Professional
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
10
Services, Compaq shall reimburse Licensor for any actual costs incurred due
to such delay. If Compaq terminates Professional Services before the end of
the Term of Professional Services engagement, Compaq shall pay Licensor for
Professional Services completed prior to the effective termination date and
reasonable and actual subcontractor costs incurred by Licensor as a result
of such delay or termination.
Licensor Proprietary Information. All Licensor Proprietary Information and
all right, title and interest, including without limitation, all patents,
copyrights, and trade secret rights any where in the world, and all other
intellectual property and rights in connection therewith shall be the sole
property of and remain with Licensor or its licensors, as applicable.
Licensor Proprietary Information includes, but is not limited to, Licensor
Software and related documentation and any modifications thereto developed
in whole or in part by Professional Services. Except for the license use
rights otherwise expressly provided in this Agreement, no right, title or
interest in Licensor Software is granted hereunder.
Independent Contractors. Licensor is an independent contractor and is
solely responsible for all taxes, withholdings, and other similar statutory
obligations including, but not limited to Worker's Compensation Insurance.
Nothing herein shall form or be construed to form a joint venture or
partnership.
Performance Standards. Licensor's performance of Professional Services
under this Agreement will be conducted with standards of practice common in
the industry for such services. Licensor will comply with all applicable
laws and Compaq safety rules in the course of performing Professional
Services.
Consent to Subcontract. Compaq hereby consents for Licensor to subcontract
Professional Services to persons or companies qualified and certified by
Licensor to provide services on Licensor's behalf
16. YEAR 2000 WARRANTY
Licensor warrants, at no additional cost to Compaq, the following under
this Agreement:
That the Software licensed hereunder will accurately process, calculate,
compare and sequence date and time data from, into and between the
twentieth and twenty-first centuries, including leap year calculations,
when used in accordance with Licensor supplied documentation and provided
that all hardware, software and firmware used in combination with such
Software properly exchange accurate date data with the Software. As used
herein, the term accurately shall mean in accordance with industry standard
conventions with respect to the environment in which the Software is
operating.
That any licensing keys contained in the Software will not expire or cause
the Software to perform at less than full function due to the Software not
performing as set out herein; and
That the duration of this warranty shall be as set out in this Agreement or
as otherwise provided in this Section.
The remedies available to Compaq hereunder for any such Software which in
Licnesor's opinion does not perform as set out herein, shall include, at
Licensor's option, either repair or replacement, or a refund of any and all
license, services and maintenance fees paid or still owed
11
by Compaq. Licensor agrees to repair, replace or refund, per Compaq's
request, within [*] days of such request.
Should any term or condition of this Section conflict with any other term
or condition contained in this Agreement, the term or condition contained
in this Section shall control. This warranty shall not be construed to
limit any rights or remedies that Compaq may otherwise have under this
Agreement with respect to defects other than Year 2000 performance.
17. EXPORT ADMINISTRATION
Compaq agrees to comply fully with all-relevant export laws and regulations
of the United States Department of Commerce ("Export Laws") to assure that
neither the Software nor any direct product thereof are (i) exported,
directly or indirectly, in violation of Export Laws; or (ii) are intended
to be used for any purposes prohibited by the Export Laws. Licensor agrees
to provide sufficient technical information for application for export
license to the Department of Commerce in order for Compaq to obtain an
export license to countries authorized by the Export Laws and/or assign any
existing export license Licensor may have for Compaq's use in exporting
Software procured hereunder for use in such countries permitted by Export
Laws.
18. MISCELLANEOUS PROVISIONS
a. Unless otherwise stated, all notices required under this Agreement shall
be in writing and shall be considered given upon personal delivery of the
written notice or within forty-eight (48) hours after deposit in the U.S.
Mail, certified or registered, and appropriately addressed. However, no
action adverse to the other party may be taken unless the party taking
action ascertains by any reasonable method that notice has been received.
b. This Agreement is made under and shall be construed in accordance with
the laws of the State of Texas.
c. The captions of Sections of this Agreement are for reference only and
are not to be construed in any way as terms.
d. No party may assign or transfer any of the rights or responsibilities
set forth herein without the express written consent of the other parties
(which shall not be unreasonably withheld) provided, however, that Licensor
may assign this Agreement, and/or any of its rights and/or obligations
hereunder upon written notice to Compaq, to a successor of all, or
substantially all, of its business or assets without Compaq's consent. Any
other purported attempt to do so shall be void.
e. Neither party's failure to exercise any of its rights hereunder shall
constitute or be deemed a waiver or forfeiture of any such rights.
f. Each Appendix and Exhibit referred to in this Agreement is incorporated
in full in this Agreement wherever reference to it is made.
g. This document represents the entire Agreement between the parties as to
the matters set forth and integrates all prior discussions or
understandings between them.
h. This Agreement may only be modified by a writing signed by an authorized
representative of both Licensor and Compaq.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
12
i. This Agreement shall be binding on, and inure to the benefit of, the
parties hereto and their respective heirs, legal representatives,
successors and assigns.
j. If suit is brought to enforce or interpret any part of this Agreement,
the prevailing party shall be entitled to recover as an element of its
costs of suit, and not as damages, reasonable attorneys' fees to be fixed
by the court. The "prevailing party" shall be the party who is entitled to
recover its costs of suit, whether or not the suit proceeds to final
judgment. A party not entitled to recover its costs shall not recover
attorneys' fees. No sum for attorneys' fees shall be counted in calculating
the amount of a judgment for purposes of determining whether a party is
entitled to recover its costs or attorneys' fees.
k. Any invalidity, in whole or in part, of any provision of this Agreement
shall not affect the validity of any other of its provisions.
1. The parties do not intend that any agency or partnership relationship be
created between them by this Agreement.
m. The terms and conditions of this Agreement replace, supersede, and shall
take precedence over the terms and conditions of any previous or existing
Software License Agreement between the parties, or shrinkwrap agreement,
provided for the software acquired for the purposes hereunder.
APPROVED AND AGREED TO:
MOTIVE COMMUNICATIONS, INC. COMPAQ COMPUTER CORPORATION
/S/ XXXXXXXXXXX X. XXXXX /S/ XXXX XXXXXX
---------------------------- --------------------------
SIGNATURE SIGNATURE
XXXXXXXXXXX X. XXXXX XXXX XXXXXX
---------------------------- --------------------------
TYPED OR PRINTED NAME TYPED OR PRINTED NAME
MANAGER OF CONTRACT SERVICES GM & SR. VP CONSUMER
---------------------------- --------------------------
TITLE TITLE
APRIL 29, 1999 APRIL 30, 1999
---------------------------- --------------------------
DATE DATE
13
EXHIBIT A
This Exhibit A ("Schedule") documents the product licenses and services being
purchased by Compaq under the terms and conditions of the Software License
Agreement ("Agreement") dated April 30, 1999, between Motive Communications,
Inc., a Delaware corporation with an office at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxx, XX 00000 and Compaq Computer Corporation located at 00000 X.X.000,
Xxxxxxx, XX 00000.
1. General Terms:
. This Schedule is valid if executed by [*].
. All payment terms are net [*] days.
. Pricing and terms valid for the [*] Product line only. For purpose of this
Schedule, the [*] product line shall mean personal computers sold, marketed,
and supported by the Compaq [*] Division regardless of the actual Compaq
brand name.
. Terms and Conditions shall be those of the Compaq / Motive Software License
Agreement.
2. Base Investment:
The base investment provides the core software and professional services
required to support this initial deployment.
SOFTWARE:
Qty Item Description Price
----------------------------------------------------------------
[*] [*] [*] [*]
----------------------------------------------------------------
SUB-TOTAL FOR INITIAL
SOFTWARE INVESTMENT: [*]
----------------------------------------------------------------
MAINTENANCE AND SUPPORT:
The [*] Maintenance fee for the Term (defined below) of this Schedule is [*] per
year.
PROFESSIONAL SERVICES:
Qty ITEM DESCRIPTION PRICE
----------------------------------------------------------------
[*] [*] [*] [*]
----------------------------------------------------------------
SUB-TOTAL FOR INITIAL
PROFESSIONAL SERVICES [*]
----------------------------------------------------------------
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
14
[*]:
QTY ITEM DESCRIPTION PRICE
----------------------------------------------------------------------------------------------------
[*] [*] Motive [*]. [*] *
[*] fee includes up to [*] person days of consulting services (to
be fully utilized by [*] or days [*]) to assist in the [*] and the
integration of [*] management files into [*].
----------------------------------------------------------------------------------------------------
* The [*] year of Motive [*] Partners [*] Service will be provided for [*].
This [*] is [*] on Compaq providing the following during the [*] year period:
. Contributes its [*] to Motive for inclusion in the [*] for redistribution at
[*]. The quantity and quality of the [*] must be at a sufficient level to
qualify.
. Agrees to actively work with Motive as an active partner in the [*] of the
[*]. Licensee also agrees to the use of Licensee's name and logo in marketing
Motive [*]. Specifically, [*] will identify Licensee as a [*] of [*]. All
such promotional usage shall be coordinated with Licensee but in no event
will Licensee unreasonably refuse a coordinated use as provided under this
clause.
. Renews Maintenance & Support coverage outlined in this Schedule.
TOTAL INITIAL INVESTMENT SUMMARY:
Software [*]
---------------------------------------------------------
Professional Services [*]
---------------------------------------------------------
Maintenance & Support [*]
---------------------------------------------------------
[*] [*]
---------------------------------------------------------
TOTAL INITIAL INVESTMENT [*]
(Total amount to be invoiced upon
execution of this Agreement)
---------------------------------------------------------
3. Motive [*] Pricing and Licensing Model:
A. Motive [*] based license model:
In this special licensing model, a "Motive [*] License" is an individual
Compaq [*] system on which the Motive Assistant has been installed or which
has access to [*]. This means for each licensed Compaq [*] computer, Compaq
may install a Motive Assistant (client software) on the system and deploy
[*] of the [*] (server software) required to support the licensed systems
plus the quantity of [*] licenses and [*] licenses identified in the
Infrastructure Product Table based on the [*] number of Motive [*]
purchased. During the term of this licensing model and products use
thereafter, Compaq will [*] the products licensed hereunder [*] for
supporting Motive [*] Licenses on Compaq [*] computers.
The term of this licensing model is valid from [*] to [*] ("Term"). If
mutually agreed to, Compaq and Motive may extend this licensing model for
additional licenses.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
15
B. Motive [*] License Pricing Terms
[*]
During the Term of this Schedule, Compaq agrees to pay Motive [*] excluding
taxes for [*]. Each [*] computer sold and shipped, net of returns which has
access to Compaq's Motive [*] or Motive [*] Server is required to have a
[*] License. These products [*] be used to support licensed Motive [*]
Licenses on Compaq [*] computer systems.
C. Payment Schedule:
Compaq shall provide Motive a [*] days after the end of each [*] (beginning
with the [*] on [*]) reporting the [*] licensed and pay Motive a license
fee equal to the number of Motive [*] licensed during that [*] times the
[*] license fee.
On [*], Compaq shall provide Motive a final installation report for this
Schedule and pay Motive for the number of Motive [*] Licenses in [*] for
which Compaq has previously paid.
D. End of Licensing Term:
(1) At the end of this licensing term [*] Compaq shall retain the right to
use:
. all Motive [*] Licenses purchased and all Motive [*] Licenses [*] as of
[*],
. the quantity of Motive [*] for [*] licenses identified in the
Infrastructure Product Table based on the [*] number of Motive [*]
License purchased. After [*] Motive [*], Motive [*] Engine licenses, [*]
licenses, [*] licenses, [*] licenses, or [*] for [*] licenses may [*]
under this licensing model.
(2) On [*], Compaq shall retain the right to use [*] of Motive [*] licenses
[*] by that date and will report such quantity to Motive.
All products deployed under this Schedule will [*] to support licensed
Motive [*] on Compaq [*] computer systems.
E. Infrastructure Product Table:
[*] NUMBER Infrastructure Product Licenses-Total
OF MOTIVE [*]
LICENSES
PURCHASED
[*] [*]
4. Maintenance and Support
Motive standard [*] Maintenance and Support Terms and Conditions shall apply as
are detailed in this Agreement. Compaq will use [*] points of contacts to
request and receive maintenance and support.
5. Reference Account and Press Release:
In consideration of the [*] and terms provided to Compaq under this Schedule,
Compaq agrees to the release of an individual press announcement that Compaq has
licensed Motive technology to deliver internet based technical support for
Compaq's [*] products. Additionally, a Compaq spokesperson
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
16
will speak to news reporters and industry analysts in conjunction with said
release. Such press release will be coordinated with Compaq and shall be subject
to its prior approval that shall not be unreasonably withheld. However, in any
event the timing of any such press release specifically announcing the
incorporation of Motive's products onto Compaq's [*] products shall not
occur until after the related [*] products are announced by Compaq or by
[*] which ever occurs first. Motive may list Compaq as a Motive customer prior
to the related [*] products are announced by Compaq in sales presentations
subject to the provisions of Section 9. f. of this Agreement.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
17
SOFTWARE LICENSE AGREEMENT
AMENDMENT #1
BETWEEN
COMPAQ COMPUTER CORPORATION
AND
MOTIVE COMMUNICATIONS, INC.
This Amendment (the "Amendment") is entered into by and between Compaq Computer
Corporation ("COMPAQ") and Motive Communications, Inc. ("Motive").
Whereas, COMPAQ and Motive entered into said Software License Agreement dated
April 30, 1999 and;
Whereas, COMPAQ and Motive wish to amend the terms of the Agreement pursuant to
the terms of this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual convenants contained
herein, as well as for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, COMPAQ and Motive agree to amend
the Agreement as follows:
1. The Agreement in it's entirety is hereby amended as follows:
All references to "Appendix A" shall be modified to read "Exhibit A and
Exhibit B as applicable".
2. Add Exhibit B, "COMPAQ Computer Commercial and Consumer Systems Pricing
Terms" to incorporate Pricing and Terms valid for all Compaq products sold
globally excluding Compaq Consumer products sold in North America which are
covered in the pricing terms of Exhibit A to the Agreement.
Except as expressly modified herein, or pursuant to the terms of an earlier
executed written amendment between COMPAQ and Motive, all of the terms of the
agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties signing below warrant that they are duly
authorized to sign for, and on behalf of, the respective parties.
MOTIVE COMMUNICATIONS, INC. COMPAQ COMPUTER CORPORATION
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxxxxxxx
---------------------------- ------------------------
Signature Signature
Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxx
---------------------------- ------------------------
Typed or Printed Name Typed or Printed Name
President & CEO Global Contracts
---------------------------- ------------------------
Title Title
December 9, 1999 December 9, 1999
---------------------------- ------------------------
Date Date
18
EXHIBIT B
COMPAQ COMPUTER COMMERCIAL AND CONSUMER SYSTEMS
PRICING TERMS
This Exhibit B ("Exhibit") documents the product licenses and services
being purchased by Compaq under the terms and conditions of the Software License
Agreement ("Agreement") dated April 30, 1999, between Motive Communications,
Inc., ("Motive") a Delaware corporation with an office at 0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxx 000, Xxxxxx, XX 00000 and Compaq Computer Corporation ("Compaq")
located at 00000 X.X.000, Xxxxxxx, XX 00000.
1. General Terms:
. All payment terms are net [*] days.
. Pricing and terms are valid for all Compaq products sold globally excluding
Compaq [*] products sold in [*] which are covered in the pricing terms of
Exhibit A to the Agreement.
. This Exhibit B does not impact or restrict Compaq's use and deployment rights
for the [*] Product line as authorized in Exhibit A to the Agreement.
. Terms and Conditions shall be those of the Compaq / Motive Software License
Agreement.
2. [*] USAGE MODEL:
The Motive Duet "Infrastructure Software" (consisting of Motive Duet Server,
Motive Solo Server, and Motive Integration Server licenses), Motive Solo Self
Service Licenses, and Motive Support Desktop Licenses shall be provided and
licensed on an [*]. Compaq will use the Motive Software for providing basic
service and standard warranty support for Compaq systems only. Software
provided under this Exhibit shall not be used to support Compaq's [*] line or
any other product sold by Compaq's [*].
3. [*] USAGE TERM AND FEE:
The term of this Exhibit ("Term") is the [*] year period beginning [*] and
ending [*]. Pricing is based on a minimum [*] commitment.
[*] Usage Fee Description [*] Usage Fee
---------------------------------------------------------------------------------------
Includes: [*]
. [*] and use of Motive Duet Server, Motive Solo Server, Motive
Support Desktop, and Motive Integration Server to support Compaq
systems.
. Support of up to [*] Compaq Support Desktops
. Motive Solo Self Service Usage for all Compaq systems.
. Basic [*] Maintenance & Support Services based on POC model
within the US.
---------------------------------------------------------------------------------------
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
19
4. PAYMENT SCHEDULE:
Year 1: [*] through [*]
Payment Due Date Payment Amount
---------------- --------------
[*] [*]
Year 2: [*] through [*]
Payment Due Date Payment Amount
---------------- --------------
[*] [*]
Year 3: [*] through [*]
Payment Due Date Payment Amount
---------------- --------------
[*] [*]
5. Professional Services and Fees:
For an additional [*], Motive will provide [*] days of Professional Services.
All fees [*] domestic travel and living. One day is defined as one person for
an eight-hour day. Services will be invoiced on a [*] basis as Services are
actually rendered.
6. MAINTENANCE AND SUPPORT
For Compaq's continued payment of the [*] during the Term, Motive will provide
it's [*] Maintenance and Support for [*]. The Maintenance and Support Terms and
Conditions of the Agreement shall apply. [*].
7. CONTINUED USAGE SUPPORT:
If, at the end of the Term, Compaq chooses not to [*] Model, [*]. This
extension option will be available for a period of [*] after the Term. If this
option is selected, [*].
8. REFERENCE ACCOUNT AND PRESS RELEASE:
In consideration of the favorable pricing and terms provided to Compaq under
this Exhibit, [*]. Additionally, a Compaq spokesperson will speak to news
reporters and industry analysts in conjunction with said release. Such press
release will be coordinated with Compaq and shall be subject to its prior
approval that shall not be unreasonably withheld.
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
20
9. OTHER TERMS AND CONDITIONS:
a) [*] is restricted to all Compaq products sold globally by Compaq [*]
computer systems sold by Compaq's [*].
b) In consideration of these Fees, [*].
c) Upon expiration of the Term or the continued [*] outlined in Section 7,
Compaq's rights [*] the Motive Software provided under this Exhibit [*].
d) [*].
* Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
21
