EXHIBIT 99.2
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (the "AGREEMENT") is dated June 24,
2002 (the "EFFECTIVE DATE") and is entered into by and between the following
Parties:
Previo: Previo, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
U.S.A.
Tel: (000) 000-0000
Fax: (000) 000-0000
Altiris: Altiris, Inc.
000 Xxxx 000 Xxxxx
Xxxxxx, XX 00000
U.S.A.
Tel: (000) 000-0000
Fax: (000) 000-0000
who agree as follows:
1. DEFINITIONS
1.1 "CONFIDENTIAL INFORMATION" has the meaning ascribed to it in
Section 9.1.
1.2 "CUSTOMER SERVICES" has the meaning ascribed to it in Section 5.1.
1.3 "DERIVATIVE WORK" means all "derivative works" and "compilations"
based on the Software as such terms are defined in the U.S. Copyright Act (17
U.S.C. Section 101 ET SEQ.).
1.4 "DEVELOPMENT ENVIRONMENT" means the programming documentation,
schematics, designs, and flow charts and any proprietary software tools,
libraries, linkers, utilities, compilers, and other programs used by programmers
to develop, maintain or implement the Software, including instructions for
compiling and linking the Source Code into executable forms and any programming
tools. If any of the foregoing are commercial products of other companies and
are readily available to Altiris from third party market sources, then such
commercial products do not need to be included if a list identifying them is
included by Previo with the Development Environment.
1.5 "DISTRIBUTORS" has the meaning ascribed to it in Section 3.4.
SOFTWARE LICENSE AGREEMENT - PAGE 1
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
1.6 "DOCUMENTATION" means the documentation, manuals, packaging, and
other works of authorship (including technical documentation, white papers, web
content, etc.) relating to any Software. All references in this Agreement to
Software shall also apply to the Documentation to the extent that the context
reasonably permits.
1.7 "EFFECTIVE DATE" means the date first above written.
1.8 "END USER" means the ultimate user of the Software who has obtained
such Software subject to the terms of an end user license agreement.
1.9 "LICENSE" has the meaning ascribed to it in Section 3.1.
1.10 "LICENSE FEE" has the meaning ascribed to it in Section 4.1.
1.11 "NEW VERSIONS" means any and all updates, upgrades, enhancements,
modifications, future releases, new versions, improvements, maintenance fixes,
patches, and work-around solutions to or of any Software, including all
subsequent versions and generations thereof. New Versions shall be governed by
this Agreement as "Software" and is licensed to Altiris as such.
1.12 "OBJECT CODE" means a software program's Source Code translated or
processed by a computer into a machine language or intermediate code appropriate
for execution or interpretation by a computer. Object code is intended to
include any object code, machine readable, binary or executable form of the
Software.
1.13 "INTELLECTUAL PROPERTY RIGHTS" means all rights in, to, or arising
out of (a) any U.S. or foreign patent or any application therefor and any and
all reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof; (b) inventions (whether patentable or not in any
country), invention disclosures, improvements, trade secrets, proprietary
information, know-how, technology and technical data; (c) works of authorship,
copyrights, copyright registrations and applications therefor in the U.S. or any
foreign country, and all other rights corresponding thereto throughout the
world; (d) registered trademarks, applications for trademark registrations and
all other trademark rights and associated good will; and (f) any other
proprietary rights anywhere in the world.
1.14 "PURCHASE AGREEMENT" has the meaning set forth in Section 2.1.
1.15 "SOFTWARE" means the computer software programs described or
identified in EXHIBIT A. The Software includes all of its forms, e.g., Source
Code and Object Code.
1.16 "SOURCE CODE" means the human readable form of computer
programming code and related system Documentation, including any and all
comments, procedural language and programming documentation included by any
Software programmers in or with the source code.
SOFTWARE LICENSE AGREEMENT - PAGE 2
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
2. DELIVERY OF SOFTWARE
2.1 INITIAL DELIVERABLES. Upon execution of an asset purchase agreement
whereby Previo agrees to transfer to Altiris all of its right, title and
interest in and to the Software and related Intellectual Property Rights (the
"PURCHASE AGREEMENT"), Previo shall deliver all of the following items to
Altiris by electronic means; PROVIDED, that to the extent such items are not
deliverable electronically upon the execution of the purchase agreement, Previo
will make delivery in such media and format as reasonably requested by Altiris:
(a) Master copies of the most current commercially released
versions of the Software, the Software in its most current state, and any
previous versions of the Software that may be requested by Altiris. This shall
include Source Code and Object Code;
(b) Master copies of the Documentation for the most current
commercially released versions of the Software, the Documentation in its most
current state, and any previous versions of the Documentation that may be
requested by Altiris;
(c) The Development Environment for the Software; and
(d) Testing scripts for the Software.
2.2 NEW VERSIONS. As New Versions are developed or created by or for
Previo, Previo shall deliver to Altiris all of the items identified in 2.1 (a),
(b), (c) and (d) above for the New Versions. Previo will provide deliverables to
Altiris as needed to keep Altiris current with New Versions.
3. LICENSE AND RIGHTS
3.1 LICENSE. Effective as of the Effective Date, Previo hereby grants
to Altiris, and Altiris accepts, a license under all of Previo's Intellectual
Property Rights to: (a) make, have made, use, import, display, perform, produce
and copy the Software, (b) distribute, publish, license, market, offer to sell,
sell and otherwise commercialize the Software, and (c) modify and make
Derivative Works and improvements and otherwise exploit the Software and any
part thereof and any Derivative Work, improvement or successor thereof. Altiris
may also authorize others to exercise any of these rights for Altiris. (The
above license and rights are referred to herein as the "LICENSE.")
3.2 NATURE AND SCOPE OF LICENSE. The License is exclusive to Altiris
and shall be worldwide, assignable, perpetual (except as expressly set forth in
Sections 10.4 and 10.5), irrevocable (except as expressly set forth in Sections
10.2, 10.3 and 10.4) and non-terminable (except as expressly set forth in
Sections 10.2, 10.3 and 10.4), royalty-free, and fully paid-up. Altiris may
grant sublicenses to others under this License.
SOFTWARE LICENSE AGREEMENT - PAGE 3
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
3.3 DISTRIBUTION MEDIA AND PLATFORMS. The License is not limited to any
specific media or means of distribution or commercialization, and includes,
without limitation, publishing and distribution through diskettes, CD-ROMs, DVD,
magnetic tapes, and other computer storage media, as well as all other forms of
electronic distribution including distribution through the Internet or by modem
or other communications means. The License and Altiris' rights under this
Agreement are not limited to any specific platforms, operating systems or
databases, i.e., they include all platforms, operating systems and databases
with which Software (including New Versions) may be compatible.
3.4 DISTRIBUTORS. The License includes Altiris' right to distribute,
publish, license, market, and otherwise commercialize the Software through
resellers, distributors, VARs, OEMs, dealers, retailers and other intermediaries
(collectively referred to herein as "DISTRIBUTORS" and individually as a
"DISTRIBUTOR"). Altiris is not limited as to its channels of distribution for
the Software.
3.5 TRADEMARKS. Altiris may use any of Previo's trademarks associated
with the Software solely in connection with or to identify the Software;
HOWEVER, Altiris is not obligated to use Previo's trademarks and may use its own
trademarks and branding architecture for any Software.
3.6 COPYRIGHT NOTICES. Altiris will include in or with all distributed
copies of the Software or the Altiris product in or with which the Software is
distributed, a copyright notice either for the Software or for such Altiris
product.
3.7 NO OBLIGATION. Altiris shall decide, in its sole discretion, the
extent to which Altiris shall exercise the License and any other rights under
this Agreement. Altiris has no obligation to use, market, distribute or
otherwise exercise the License.
3.8 RIGHT TO XXX. Altiris, as exclusive licensee, shall have power to
institute, prosecute and settle suits, in its own name and on its own behalf,
for past and future infringement of the Intellectual Property Rights in and to
the Software. If required by law, Previo will join as a party plaintiff in such
suits. Altiris shall bear all expenses incurred by it in bringing and
prosecuting such suits, and will be entitled to collect for its own use all
damages, profits and any other amounts of whatever nature awarded in such suits
or agreed to in settlement.
4. COMPENSATION
4.1 LICENSE FEE. Within ten (10) days after the Effective Date, Altiris
shall pay to Previo a one-time, fully paid-up, non-refundable (except as
expressly set forth in Sections 10.2, 10.3 and 10.4) license fee of $500,000
(the "LICENSE FEE") in full consideration for the License and accompanying
rights. Except as expressly set forth in Section 10.3, there are no other
payments payable by Altiris to Previo under this Agreement.
SOFTWARE LICENSE AGREEMENT - PAGE 4
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
4.2 EXPENSES. Each of the parties will bear its respective costs and
expenses in preparing, negotiating and delivering this Agreement and performing
its respective obligations hereunder.
4.3 TAXES. In the event that any of the fees or other payments to
Previo are subject to any withholding taxes or other taxes or government
assessments, then such taxes or assessments shall be paid by Previo. Such taxes
or assessments may be withheld or paid from fees or other payments payable to
Previo.
5. PRODUCTION, SUPPORT AND MAINTENANCE ETC.
Altiris shall be responsible for the production, assembly, binding and
packaging of the Software and Documentation for distribution by Altiris. Altiris
shall also be responsible for managing the relationships with its Distributors
and End Users, including any delivery, installation, training, support and
maintenance services (collectively, "CUSTOMER SERVICES"); PROVIDED, HOWEVER,
Altiris will outsource certain portions of Customer Services to Previo (though
its subsidiary) under the terms and conditions set forth in that certain
Services Agreement entered into by and between Altiris and Previo as of the same
date hereof (the "SERVICES AGREEMENT").
6. INTELLECTUAL PROPERTY
Altiris acknowledges Previo's rights of ownership to the Intellectual
Property Rights in or to the Software delivered by Previo to Altiris, as such
rights are warranted by Previo in Section 7.2. Such ownership does not extend to
or include anything developed or created by or for Altiris, including, without
limitation, any Software modifications, improvements or Derivative Works
developed or created by or for Altiris. Altiris shall own such modifications,
improvements and Derivative Works, but such ownership shall not extend to or
include any of Previo's code or intellectual property remaining in the modified
or improved Software or in a Derivative Work. Neither Party agrees, pursuant to
this Agreement, to assign or transfer ownership of any of its intellectual
property to the other Party.
7. REPRESENTATIONS AND WARRANTIES
7.1 BY ALTIRIS. As an inducement to Previo to enter into this
Agreement, Altiris hereby represents and warrants to Previo that the following
statements contained in this Section 7.1 are correct and complete as of the
Effective Date, subject to such exceptions as are disclosed in the section of
the disclosure schedule of Altiris (attached hereto as EXHIBIT B and made a part
hereof) that corresponds with the Section of this Agreement to which such
exception is intended to apply and to any other Sections of this Agreement to
the extent that it is reasonably apparent from such disclosure that it applies
to such other Sections.
SOFTWARE LICENSE AGREEMENT - PAGE 5
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
(a) ORGANIZATION. Altiris is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) CORPORATE POWER AND AUTHORITY. Altiris has full power and
authority (including full corporate power and authority) to execute, deliver and
perform this Agreement. The execution, delivery and performance of this
Agreement have been duly authorized and approved by all necessary corporate
action on the part of Altiris. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Altiris
enforceable against Altiris in accordance with its terms and conditions.
7.2 BY PREVIO. As an inducement to Altiris to enter into this
Agreement, Previo hereby represents and warrants to Altiris that the following
statements contained in this Section 7.2 are correct and complete as of the
Effective Date, subject to such exceptions as are disclosed in the section of
the disclosure schedule of Previo (attached hereto as EXHIBIT C and made a part
hereof) that corresponds with the Section of this Agreement to which such
exception is intended to apply and to any other Sections of this Agreement to
the extent that it is reasonably apparent from such disclosure that it applies
to such other Sections.
(a) ORGANIZATION. Previo is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) CORPORATE POWER AND AUTHORITY. Previo has full power and
authority (including full corporate power and authority) to own and hold the
Software and all related Intellectual Property Rights and to license the
Software and all related Intellectual Property Rights and to execute, deliver
and perform this Agreement. The execution, delivery and performance of this
Agreement have been duly authorized and approved by all necessary corporate
action on the part of Previo. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of Previo
enforceable against Previo in accordance with its terms and conditions.
(c) NO CONFLICT. Neither the execution and delivery of this
Agreement nor the performance of this Agreement in compliance with the terms and
conditions hereof will (i) violate, conflict with or result in any breach of the
certificate of incorporation or by-laws of Previo, (ii) require Previo to obtain
any consent, approval, authorization or permit of, or make any filing with or
notification to, any governmental or regulatory authority, (iii) violate,
conflict with or result in a material breach of or default under or give rise to
any right of termination, cancellation or acceleration of the maturity of any
payment date under any contract or other agreement of Previo, (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Software or (v) result in the creation of any lien or claim against any of the
Software or related Intellectual Property Rights.
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ALTIRIS / PREVIO CONFIDENTIAL - FINAL
(d) LITIGATION. There is no action, suit, claim, proceeding or
investigation pending or, to Previo's knowledge, threatened against Previo that
(i) relates to or involves the Software or related Intellectual Property Rights
or (ii) seeks to prevent, restrict or delay performance under this Agreement.
There are no outstanding orders, writs, judgments, injunctions or decrees of any
court, governmental agency or arbitration tribunal against, relating to or
involving the Software or related Intellectual Property Rights. Previo is not in
default with respect to any order, writ, injunction or decree known to or served
upon it from any court or of any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign relating to or involving the Software or related Intellectual Property
Rights. There is no action or suit by Previo pending or threatened against
others relating to, involving or in any way affecting the Software or related
Intellectual Property Rights.
(e) COMPLIANCE WITH LAW. Previo is in compliance, in all
material respects, with all laws, ordinances, legal requirements, rules,
regulations and orders applicable to the Software and related Intellectual
Property Rights.
(f) INTELLECTUAL PROPERTY. EXHIBIT D sets forth a true,
correct and complete list of all United States and foreign (i) patents and
patent applications, (ii) copyrights and copyright applications, and (ii)
registered trademarks and applications for trademark registrations, relating to
the Software, indicating for each the jurisdiction, registration number (or
application number), and the date issued or filed.
(1) Previo is the original and sole creator, author
and developer of the Software. The Software does not contain any code, content
or intellectual property of any other person. Previo owns the Software and all
related Intellectual Property Rights, free and clear of any liens, encumbrances,
or defects in title and of any claims by third parties that may interfere with
the License or rights granted to Altiris under this Agreement;
(2) except as disclosed in Exhibit C, the Software,
as provided by Previo to Altiris, and the use, reproduction, publication,
distribution, licensing, sublicensing, marketing, sale or commercialization
thereof, and the exercise of the License, do not and will not constitute an
infringement of any copyright, patent, trade secret, trademark or other
intellectual property or other right of any other person or entity in existence
as of the Effective Date;
(3) all trademarks, copyrights and patents in or to
the Software are currently in compliance with all legal requirements and are
valid and enforceable. No patent or patent application related to the Software
is now involved in any interference, reissue, re-examination or opposition
proceeding.
(4) Previo has taken all reasonable and prudent steps
to protect and preserve the Intellectual Property Rights in or to the Software.
Except under enforceable confidentiality obligations under Previo's standard
non-disclosure agreement or other non-disclosure agreements that include terms
that are customary in the computer software industry, to the knowledge of
Previo, there has been no material disclosure by Previo or any of its employees,
consultants, independent contractors or agents of any confidential information
or trade secrets of Previo relating to the Software;
SOFTWARE LICENSE AGREEMENT - PAGE 7
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
(5) there is no action in which Previo has been
served or, to Previo's knowledge, filed or threatened, nor has Previo received
any communication of, and Previo has no knowledge of, any basis for a claim
against it (A) alleging that the conduct of its business relating to the
Software infringes upon, violate or constitutes the unauthorized use of the
intellectual property rights of any third party or (B) challenging the
ownership, use, validity or enforceability of any Intellectual Property Rights
in or to the Software;
(6) except as disclosed in Exhibit C, the Software
does not include, contain, or depend on a link established at runtime to any
software made available as "open source" software and does not contain any
software code owned by a third party;
(7) Previo has not granted to any third party any
rights or licenses in or to the Software or any related Intellectual Property
Rights, that would restrict in any manner the marketing or distribution by
Altiris of the Software; and
(8) Except as disclosed in Exhibit C, no claims have
been brought, threatened or contemplated by Previo that allege the
misappropriation, infringement, dilution, or other violation of the Intellectual
Property Rights in or to the Software, and Previo has no knowledge of any basis
for such a claim.
(g) SOFTWARE. The Software will function and perform
substantially in accordance with its Documentation and will be free from
material defects and will be in marketable condition.
(h) NO VIRUSES. The Software shall be delivered to Altiris
free of any Viruses. "VIRUSES" shall mean any viruses, Trojan horses, worms,
time bombs, and trap doors as these terms are commonly understood by computer
programmers, and any other code or devices designed or intended to (i) destroy,
erase, alter, or harm any computer program, computer system, or data, or (ii)
shut-down, slow-down or adversely impact the operation of a computer system or
to tie-up or misuse computer system resources, or (iii) allow unauthorized
access to a computer system or any computer program or data on a computer system
("unauthorized" means without the informed consent of the owner or operator of
the computer system).
7.3 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE,
NEITHER PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE,
REGARDING THE SOFTWARE OR DOCUMENTATION OR OTHERWISE IN CONNECTION WITH THIS
AGREEMENT, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES OF TITLE OR
NON-INFRINGEMENT.
SOFTWARE LICENSE AGREEMENT - PAGE 1
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
7.4 SURVIVAL. All representations and warranties set forth in this
Agreement shall remain in force and effect through September 30, 2002 and shall
thereafter have no further force or effect.
7.5 INDEMNIFICATION BY ALTIRIS. From and after the Effective Date
through September 30, 2002, Altiris shall indemnify and hold harmless Previo,
its successors and assigns, and their respective stockholders, officers,
directors, employees, agents and legal representatives (each, an "PREVIO
INDEMNIFIED PARTY") for the full amount of all any and all judgments,
settlements, demands, claims, actions or causes of action, assessments,
liabilities, losses, damages, interest, fines, penalties, costs and expenses
(including, without limitation, reasonable legal, accounting and other costs and
expenses incurred in connection with investigating, defending, settling or
satisfying any and all demands, claims, actions, causes of action, suits,
proceedings, assessments, judgments or appeals, and in seeking indemnification
therefor, suffered by a Previo Indemnified Party as a result of (a) the
inaccuracy of any representation or warranty made by Altiris in this Agreement
or any schedule, certificate or document delivered in connection herewith; or
(b) the failure by Altiris to perform or comply with any obligation, covenant or
agreement of Altiris specified in this Agreement; or (c) infringement of any
third party's intellectual property based on any modification, Derivative Work
or other enhancement of or to the Licensed Software made by or on behalf of
Altiris in accordance with specifications supplied by Altiris; PROVIDED,
HOWEVER, that Altiris shall have exclusive control of the defense and settlement
of any third party claims against a Previo Indemnified Party.
7.6 INDEMNIFICATION BY PREVIO. From and after the Effective Date
through September 30, 2002, Previo shall indemnify and hold harmless Altiris,
its successors and assigns, and their respective stockholders, officers,
directors, employees, agents and legal representatives (each, an "ALTIRIS
INDEMNIFIED PARTY") for the full amount of all any and all judgments,
settlements, demands, claims, actions or causes of action, assessments,
liabilities, losses, damages, interest, fines, penalties, costs and expenses
(including, without limitation, reasonable legal, accounting and other costs and
expenses incurred in connection with investigating, defending, settling or
satisfying any and all demands, claims, actions, causes of action, suits,
proceedings, assessments, judgments or appeals, and in seeking indemnification
therefor, suffered by an Altiris Indemnified Party as a result of (a) the
inaccuracy of any representation or warranty made by Previo in this Agreement or
any schedule, certificate or document delivered in connection herewith; or (b)
the failure by Previo to perform or comply with any obligation, covenant or
agreement of Previo specified in this Agreement; PROVIDED, HOWEVER, that Previo
shall have exclusive control of the defense and settlement of any third party
claims against an Altiris Indemnified Party.
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ALTIRIS / PREVIO CONFIDENTIAL - FINAL
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PREVIO'S LIABILITY UNDER
SECTION 7.6 OR FOR BREACH OF SECTION 9, EACH PARTY'S TOTAL AGGREGATE LIABILITY
ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO
PREVIO BY ALTIRIS UNDER THIS AGREEMENT OR THE SUM OF $2,000,000, WHICHEVER IS
GREATER.
9. CONFIDENTIALITY
9.1 CONFIDENTIALITY OBLIGATIONS. The parties may disclose or exchange
certain information, including Confidential Information, as necessary for
purposes of this Agreement. "CONFIDENTIAL INFORMATION" means any information (a)
disclosed in tangible form that is conspicuously marked as "confidential" or by
other restrictive legend, or (b) disclosed verbally and identified as
confidential at the time of disclosure. In either case, the receiving party
shall exercise reasonable care to maintain the confidentiality of the disclosing
party's Confidential Information; PROVIDED, that the receiving party may
disclose Confidential Information to employees and consultants who have a need
to know and who have been informed of the confidential nature of the
information, and may otherwise disclose such information to the extent required
by applicable laws, rules and/or regulations (including, without limitation,
those relating to applicable securities laws). No obligation of confidentiality
applies to any Confidential Information that (i) is or becomes publicly
available through no breach of the receiving party, (ii) was rightfully in the
possession of the receiving party prior to disclosure hereunder without
obligation of confidentiality, (iii) was rightfully disclosed to the receiving
party without obligation of confidentiality, or (iv) was independently developed
by the receiving party without reference to or use of the disclosing party's
Confidential Information.
9.2 RESIDUALS. Notwithstanding anything in this Agreement to the
contrary, the receiving party will be free to use Residuals (as defined below)
for any purpose, including without limitation, use in development, manufacture,
marketing and/or sale of its products and services; PROVIDED, the foregoing
right (a) does not give the receiving party any right to disclose the business
plans or financial, statistical or personnel information of the disclosing
party, and (b) does not represent or otherwise grant any license under any of
the disclosing party's copyrights or patents. The term "RESIDUALS" means
information that is retained in the unaided memory of one or more of the
receiving party's employees who have had access to the disclosing party's
Confidential Information pursuant to this Agreement. An employee's memory is
"unaided" if the employee has not deliberately memorized the Confidential
Information for the purpose of retaining and later using or disclosing it.
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ALTIRIS / PREVIO CONFIDENTIAL - FINAL
9.3 ANNOUNCEMENTS. Neither Party will make any public disclosure
concerning this Agreement without the prior written consent of the other party;
PROVIDED, HOWEVER, that notwithstanding anything to the contrary herein, to the
extent that either party is advised by counsel that disclosure of such matters
is required by applicable securities laws or exchange requirements, then such
party may make such disclosure but agrees to use reasonable efforts to provide
the other party prior notice of such disclosure as well as an opportunity to
review and comment on such disclosure in advance of public release.
10. TERM AND TERMINATION
10.1 TERM OF LICENSE. This Agreement and the License granted herein
shall become effective on the Effective Date and, unless earlier terminated as
provided for in Section 10.2, 10.3 or 10.4, shall continue in perpetuity in
accordance with its terms.
10.2 TERMINATION BY ALTIRIS. In the event of any material breach of any
of the representations, warranties or covenants made by Previo in this Agreement
occurring on or before September 30, 2002, Altiris may, upon written notice to
Previo and without waiving or limiting any other available remedies, terminate
this Agreement and receive a full refund of its License Fee.
10.3 TERMINATION OF ASSET PURCHASE AGREEMENT BY ALTIRIS. In the event
Altiris terminates the proposed Purchase Agreement (under the terms and
conditions set forth therein) for breach of any representation, warranty,
covenant or agreement of Previo contained in the Purchase Agreement, Altiris
shall, at its sole option, either (i) terminate this Agreement and receive a
full refund of its License Fee, or (ii) pay an additional fee of $250,000 (in
addition to the License Fee) in full consideration of the License and
accompanying rights that are also exclusive even as to Previo. Except as
expressly set forth in this Section 10.3, this Agreement and all rights granted
herein shall not be impaired or otherwise affected in any way by the termination
of the Purchase Agreement.
10.4 AUTOMATIC TERMINATION. This Agreement shall terminate
automatically: (i) in the event the Parties have not entered into a Purchase
Agreement by July 10, 2002, provided that upon such termination Altiris shall
receive a full refund of its License Fee; or (ii) in the event that all right,
title and interest in and to the Software and Intellectual Property Rights
related thereto are actually transferred to Altiris.
10.5 OBLIGATIONS ON TERMINATION. Immediately following termination of
this Agreement under Section 10.2, 10.3(i) or 10.4(i) above, (a) the rights and
licenses granted to Altiris herein shall cease, (b) Altiris shall cease all use
and distribution of the Software, and (c) Altiris shall return to Previo all
copies of the Software in Altiris' possession or under its control; PROVIDED,
HOWEVER, that Altiris may retain and use copies of the Software as reasonably
necessary to fulfill its support and maintenance obligations to Distributors and
End Users for the then-remaining term of its existing agreements (the "EXTENDED
MAINTENANCE PERIOD"). At the end of the Extended Maintenance Period, if any,
Altiris shall cease all use of the Software and shall return to Previo all full
or partial copies thereof in its possession or under its control. Upon written
request by Previo, Altiris shall certify in writing to that it has complied with
the terms of this Section 10.5.
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ALTIRIS / PREVIO CONFIDENTIAL - FINAL
11. GENERAL PROVISIONS
11.1 EXPORT LAWS. This Agreement and any disclosures, transfers, and
export of software, data or technology are subject to United States laws and
regulations, including United States export laws and regulations. Neither Party
shall violate any such laws or regulations.
11.2 GOVERNING LAW AND FORUM. This Agreement shall be governed by and
enforced in accordance with the laws of the state of Utah and of the United
States of America. Any litigation or arbitration between the Parties relating to
this Agreement or the Software shall be conducted exclusively in the state of
Utah.
11.3 ASSIGNMENT. In the absence of Altiris' advance written consent,
Previo shall not have the right or power to assign or transfer this Agreement or
any rights under this Agreement (including the License) or to delegate any
duties or responsibilities under this Agreement to any third party, except that
Previo shall be entitled to assign or transfer this Agreement or any rights
under this Agreement to a liquidation trust established to liquidate the assets
of Previo so long as Previo remains fully responsible and liable for its
obligations under this Agreement. Subject to the foregoing sentence, this
Agreement shall not be deemed to have been assigned or transferred by operation
of law (e.g., in a merger or consolidation) or otherwise without Altiris' prior
written consent. Any such attempt to assign, transfer and/or delegate without
Altiris' prior written consent shall be void and of no effect. Any assignee or
transferee to whom this Agreement is assigned or transferred must agree, in a
writing delivered to the nonassigning or non-transferring Party, to be bound by
this Agreement in the same manner that the assigning or transferring Party is
bound by this Agreement.
11.4 NOTICES. All notices and consents permitted or required under this
Agreement must be in writing and shall be (a) delivered by hand, in which case
delivery will be deemed to have occurred at the time of delivery, (b) by
registered or certified mail, postage prepaid, in which case delivery will be
deemed to have occurred on the fifth business day following the day such mailing
is made, (c) by overnight courier, in which case delivery will be deemed to have
occurred on the next business day following the day such notice is delivered to
the courier service, or (d) by facsimile transmission, in which case delivery
will be deemed to have occurred at the time that receipt thereof has been
acknowledged by electronic confirmation, to the other Party at the address set
forth at the beginning of this Agreement (or such substitute address as either
Party specifies below or may specify by written notice), and to the attention of
the following individuals:
SOFTWARE LICENSE AGREEMENT - PAGE 12
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
To Altiris:
Attn: Chief Financial Officer
With copy to: General Counsel
To Previo:
Attn: Chief Financial Officer
With copy to:
Xx. Xxx Xxxx
Partner- Corporate Counsel
Xxxxxx Godward LLP 0000 Xxxxxxxx Xxxx Xxx Xxxxx, XX 00000-0000 Phone
(000) 000-0000 Fax (000) 000-0000 xxxxxx@xxxxxx.xxx
11.5 HEADINGS. Section headings used herein are for convenience only
and shall not be used to broaden or limit this Agreement.
11.6 SEVERABILITY. If any provision in this Agreement is invalid or
unenforceable, such provision shall be construed, limited, or if necessary,
severed to the extent necessary to eliminate such invalidity or
unenforceability, and all other provisions of this Agreement shall remain in
effect.
11.7 RELATIONSHIP. Neither Party is the partner, joint venturer, agent
or representative of the other Party. Altiris and Previo are independent
contractors. There is no employment or agency relationship between the Parties.
Neither Party has the authority to make any representations or warranties or
incur any obligations or liabilities on behalf of the other Party. Neither Party
shall make any representation to a third party inconsistent with this Section
11.7.
11.8 CONSTRUCTION. This Agreement represents the wording selected by
the Parties to define their agreement and no rule of strict construction shall
apply against either Party.
11.9 WAIVER. Any waiver of, or promise not to enforce, any right under
this Agreement shall not be enforceable unless evidenced by a writing signed by
the Party making said waiver or promise.
11.10 SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and assigns.
SOFTWARE LICENSE AGREEMENT - PAGE 13
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
11.11 ENTIRE AGREEMENT. This Agreement (which includes its Exhibits)
(a) represents the entire agreement between the Parties relating to the subject
matter of this Agreement, (b) supersedes all prior agreements, understandings,
representations and warranties relating to the subject matter of this Agreement,
and (c) may only be amended by a writing signed by both Parties.
11.12 EXECUTION. This Agreement may be executed in any number of
duplicate counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. The persons
signing below represent that they are duly authorized to execute this Agreement
for and on behalf of the Party for whom they are signing.
[SIGNATURE PAGE FOLLOWS]
SOFTWARE LICENSE AGREEMENT - PAGE 14
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
AGREED TO AND ACCEPTED BY:
Previo, Inc. ("Previo")
By (signature): /s/ Xxxxx Xxxxxxx
------------------------------------
Name (print): Xxxxx Xxxxxxx
------------------------------------
Title: CFO
------------------------------------
Altiris, Inc. ("Altiris")
By (signature): /s/ Xxx Xxxxxx
------------------------------------
Name (print): Xxx Xxxxxx
------------------------------------
Title: VP Business Development
------------------------------------
[SIGNATURE PAGE FOR SOFTWARE LICENSE AGREEMENT]
SOFTWARE LICENSE AGREEMENT - PAGE 15
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
AMENDMENT NO. 1
TO SOFTWARE LICENSE AGREEMENT
This Amendment No. 1 to Software License Agreement (the "AMENDMENT")
amends the Software License Agreement (the "AGREEMENT") dated June 24, 2002,
between Altiris, Inc. ("ALTIRIS") and Previo, Inc. ("PREVIO"). This Amendment is
dated effective July 10, 2002.
1. DEFINITIONS. Terms with the initial letter capitalized will have the same
meaning as defined in the Agreement, unless otherwise defined in this Addendum.
2. AMENDMENT. The Agreement is amended as follows:
Section 10.4, "Automatic Termination," is deleted and replaced with the
following:
AUTOMATIC TERMINATION. This Agreement shall terminate automatically:
(i) in the event the Parties have not entered into a Purchase Agreement
on or before July 15, 2002, PROVIDED, that upon such termination
Altiris shall receive a full refund of its License Fee; or (ii) in the
event that all right, title and interest in and to the Software and
Intellectual Property Rights related thereto are actually transferred
to Altiris.
3. SURVIVAL OF TERMS. The terms and conditions of the Agreement, as expressly
amended hereby, shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
SOFTWARE LICENSE AGREEMENT - PAGE 16
ALTIRIS / PREVIO CONFIDENTIAL - FINAL
AGREED TO AND ACCEPTED BY:
Previo, Inc. ("Previo")
By (signature): /s/ Xxxxx Xxxxxxx
-------------------------------------
Name (print): Xxxxx Xxxxxxx
-------------------------------------
Title: CFO
-------------------------------------
Altiris, Inc. ("Altiris")
By (signature): /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Name (print): Xxxxx Xxxxxxxxxxx
-------------------------------------
Title: VP General Cousel
-------------------------------------
[SIGNATURE PAGE FOR AMENDMENT NO. 1 TO SOFTWARE LICENSE AGREEMENT]
SOFTWARE LICENSE AGREEMENT - PAGE 17
