EXHIBIT 10.5E
COMPAQ/ALTIRIS CONFIDENTIAL
AMENDMENT NUMBER 2 ("AMENDMENT 2")
TO THE LICENSE AND DISTRIBUTION AGREEMENT DATED
NOVEMBER 12, 1999 ("AGREEMENT") AND TO AMENDMENT NUMBER 1
("AMENDMENT 1")
WHEREAS, the parties wish to amend the Agreement and Amendment 1 to the
Agreement as they pertain to Services provided by Altiris under the Agreement,
NOW THEREFORE, in consideration of the mutual covenants and promises in the
Agreement as amended hereunder, and for other good and valuable consideration,
the receipt, sufficiency and adequacy of which are hereby acknowledged, the
Parties hereto agree as follows:
All terms defined or used in the Agreement or Amendment 1 shall have the same
meaning in this Amendment 2. All references to Sections shall mean sections or
subsections in the Agreement or Amendment 1 as applicable.
1. Paragraph 13 of Amendment 1 is amended by changing the last sentence to read:
Professional Services are subject to Altiris' then-current services
agreement, the following terms, and the availability of Altiris personnel.
2. Paragraph 13 of Amendment 1 is further amended by adding the following
additional subsections:
13 (a) INDEMNIFICATION
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Each party shall indemnify, defend, and hold the other party harmless from
any and all claims or demands (including all losses, damages, and
liabilities resulting from such claims or demands, and all related costs
and expenses, including reasonable legal fees) arising from or in
connection with (1) ALTIRIS' performance of such services or ALTIRIS'
failure to perform any such services for which ALTIRIS is contractually
obligated to perform or (2) a negligent act or omission of either party in
its relationships with its employees, agents, subcontractors or suppliers.
Neither party shall be liable to the other party for any indirect, special,
punitive, incidental, or consequential loss or damage of any kind
(including, without limitation, loss of profits, revenue, business or data)
regardless of the form of the action (whether contract, warranty, tort,
strict liability or otherwise) and even if the parties had been advised of
the possibility of such damages.
13 (b) INSURANCE
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1. ALTIRIS shall carry at all times, and with companies with a Best Rating
of not less than A-:VII, insurance policies of the kinds and in the amounts
listed below:
a. Worker's Compensation - statutory limits in each state in which ALTIRIS
is required to provide Worker's Compensation coverage including Other
States Endorsement or policy equivalent thereof. Policy shall include a
waiver of subrogation in favor of Compaq Computer Corporation, its
officers, directors, employees and agents
b.Employer's Liability - not less than $1,000,000
c. Comprehensive General Liability - including Contractual Liability,
Independent Contractor's Liability, Products and/or Completed Operations
Liability, and Personal Injury/Property Damage Coverage's in a combined
single limit of not less than $1,000,000 per occurrence combined single
limit and $2,000,000 General Aggregate. Compaq Computer Corporation, its
officers, directors, employees and agents shall be named as Additional
Insureds.
d. Automobile Liability - for owned, non-owned, and hired vehicles in a
combined single limit of not less than $1,000,000.
e. Umbrella Liability - a combined single limit of not less than
$2,000,000.
2. ALTIRIS shall furnish COMPAQ with Certificates of Insurance evidencing the
specified insurance policies and stating that such insurance policies may not be
changed or terminated so as to not comply with the foregoing insurance
requirements without at least thirty (30) days prior written notice to COMPAQ.
13 (c) CONFIDENTIALITY
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Each party will maintain all confidential information or data, whether written
or oral relating to the other party or the other party's customers, with at
least the same degree of care that it uses to protect its own confidential and
proprietary information, but no less than a reasonable degree of care. Neither
party shall disclose or transfer any of the other party's confidential
information to any third parties or to employees, agents, subcontractors, or
suppliers who do not have a need for access to such information or data. The
confidentiality obligations stated in this Section 13(c), shall terminate three
(3) years following the date of disclosure of the confidential information.
Exceptions. The receiving party will not be liable for the disclosure of any of
the disclosing party's confidential information that the receiving party can
show: (a) is rightfully in the public domain without any breach by the receiving
party, but only from the date that it entered the public domain, (b) is
rightfully received from a third party without any obligation of
confidentiality, (c) is rightfully known to the receiving party without any
obligation of confidentiality prior to its receipt from the disclosing party,
(d) is independently developed by employees of the receiving party without use
of the disclosing party's Confidential Information, (e) is made generally
available to third parties by the disclosing party without restrictions on
disclosure, or (f) is, in the opinion of the receiving party's counsel, required
to be disclosed under applicable law or governmental rules or regulations
(including, without limitation, federal or state securities laws, rules and
regulations), provided that the receiving party gives to the disclosing party
reasonable advance notice in writing of the need for disclosure.
-2-
Except as set forth herein, all other provisions of the Agreement and Amendment
1 remain in full force and effect. In the event of any conflict between this
Amendment 2 and either the Agreement or Amendment 1, this Amendment 2 shall
govern.
Agreed and Accepted:
ALTIRIS COMPAQ
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
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Signature Signature
Name: Xxxxxx Xxxxxxx Name: Xxxx X. Xxxxxxx
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Typed or Printed Typed or Printed
Title: Vice President, Compaq Services GSO
Strategic Alliances Title: Global Contracts Manager
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Date: October 31, 2001 Date: October 5, 2001
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