Exhibit 10.5A
LICENSE AND DISTRIBUTION AGREEMENT
----------------------------------
THIS License and Distribution Agreement (this "Agreement") is made and
entered as of August 21, 2001 (the "Effective Date") by and between Altiris,
Inc. ("Altiris"), a Delaware corporation with its principal offices at 000 Xxxxx
000 Xxxx, Xxxxxx, Xxxx 00000, and Compaq Computer Corporation ("Compaq"), a
Delaware corporation with its principal offices at 00000 XX 000, Xxxxxxx, Xxxxx
00000-0000, and includes the following attached documents, which are
incorporated herein in full by this reference:
EXHIBIT A "SCHEDULES"
EXHIBIT B "QUICK SILVER STATEMENT OF WORK (SOW)"
EXHIBIT C "CO-MARKETING LIST"
EXHIBIT D "ESCROW AGREEMENT"
WHEREAS, Compaq manufactures and sells various products, such as computer
equipment;
WHEREAS, Altiris manufactures and distributes software;
WHEREAS, Compaq and Altiris desire to incorporate Altiris' software into
certain Compaq products and product lines, and to have Compaq otherwise
distribute Altiris' software;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration the parties hereto agree as
follows:
1. Definitions. In addition to the other terms defined throughout this
-----------
Agreement, the following terms shall have the meanings set forth below and such
definitions shall be applicable to both the singular and plural forms of such
terms:
1.1 "ABG Agreement" means the License and Distribution Agreement
-------------
by and between Compaq and Altiris entered into on November 12, 1999.
1.2 "Affiliate" shall mean, with respect to a referenced person
---------
or entity, such other person or entity that controls, is controlled by, or is
under common control with such referenced person or entity. For the purposes of
this Agreement, if (i) the entity is a corporation, then "control" shall mean
the direct or indirect ownership of securities having 50% or more of the votes
for the election of directors of such corporation, and (ii) if the entity is a
partnership or other entity, then "control" shall mean the direct or indirect
ownership of the right to receive 50% or more of the profits or assets of the
partnership or other entity.
______________
This exhibit is the subject of a Confidential Treatment Application.
Confidential information has been omitted and has been filed separately.
1.3 "Applicable Software" is defined in paragraph 8. 6(e).
-------------------
1.4 "Bundle" and "Pre-install" shall mean either (a) to install
------ -----------
a copy of the Licensed Software on the hard disk or other data storage device of
a Compaq Product prior to shipment to the end user, or (b) to deliver the
Licensed Software with and directly connected to the sale, delivery, or
installation of that Compaq Product, even if via web distribution using licensed
key methodology or by including a CD or other diskette with the Compaq Product.
1.5 "Claim" is defined in paragraph 10. 5(a).
-----
1.6 "Code Complete Software" shall mean software code that
----------------------
includes the specified and agreed-upon features and functions; those features
and functions are as set forth in Schedule 1. 2 of Exhibit A and on the
Statement of Work, but may be changed upon mutual agreement in writing.
1.7 "Compaq Brand" shall mean the trademarks, trade names, logos
------------
and designs owned or licensed by Compaq and used to designate products and
services that originate from Compaq.
1.8 "Compaq Development Items" are defined in paragraph 8. 1.
------------------------
1.9 "Compaq Product" shall mean the Compaq equipment described
--------------
on Schedule 1. 3 of Exhibit A, which Schedule may be revised upon both (a)
mutual agreement of the parties and (b) at least 60 days notice by Compaq
(unless the parties mutually agree to a different time period).
1.10 "Compaq Software" is defined in paragraph 8. 4.
---------------
1.11 "Confidential Information" is defined in paragraph 9. 1.
------------------------
1.12 "Deployment" means setting an Intel Compatible Server to a
----------
known standard software configuration from an out-of-box state, and
"redeployment" means setting an Intel Compatible Server to a known standard
software configuration from any state.
1.13 "Disclosing Party" is defined in paragraph 9. 1.
----------------
1.14 "End User License Agreement" shall mean the terms and
--------------------------
conditions governing the use of the Licensed Software provided by Altiris, which
terms and conditions must be reasonable and similar to Altiris' standard terms
and conditions for licensing its software, as such terms and conditions may be
modified by Altiris from time to time consistent with the foregoing.
1.15 "Escrow Agent" is defined in paragraph 8. 6(a).
------------
1.16 "Excluded Source Code" is defined in paragraph 8. 6(f).
--------------------
2
1.17 "Failure to Support" is defined in paragraph 6. 7(a).
------------------
1.18 "Gold Software" shall mean the final version of software to
-------------
be sent to a CD duplicator for mastering.
1.19 "Initial Deposit" is defined in paragraph 8. 6(a).
---------------
1.20 "including" shall mean including, without limitation.
---------
1.21 "Initial Term" is defined in paragraph 11. 1.
------------
1.22 "Intel Compatible Server" shall mean a computer (1) with a
-----------------------
main system microprocessor compatible with Intel's 80386 instruction set or
successors thereto; (2) with an operating system generally accepted in the
computer industry as an operating system designed for servers, such as, but not
limited to: Microsoft Windows 2000, Windows 2002 (i. e., the server version of
Windows XP), Microsoft Windows NT, IBM OS/2, Linux, FreeBSD, BSDI UNIX,
UnixWare, Solaris, and other variants of UNIX; and (3) marketed as a server or
server appliance (i.e., a preconfigured, low-cost, low-maintenance server).
1.23 [*]
1.24 "Intellectual Property Rights" shall mean, collectively, all
----------------------------
current and future worldwide patents, patent applications, trade secrets,
copyrights, copyright registrations and applications therefore, moral rights,
and all other intellectual property rights and proprietary rights (except
trademarks, service marks and related rights), whether arising under the laws of
the United States of America or any other state, country or jurisdiction.
1.25 "Internal Training Organization Agreement" is defined in
----------------------------------------
paragraph 5. 2(a)(i).
1.26 "Joint Product" means the combination of the Bundled or
-------------
Pre-installed Licensed Software and a Compaq Product.
1.27 "Level 1 Support", "Level 2 Support", and "Level 3 Support"
---------------------------------------------------------
are defined in paragraphs 6. 1(a), 6.1(b), and 6.1(c), respectively.
1.28 "Licensed Distributor" shall mean a third party contracted
--------------------
by Compaq or its Affiliates to distribute Compaq Products, including at multiple
levels, subject to the restrictions in Section 3. 6(a).
----------
*This provision is the subject of a Confidential Treatment Request.
3
1.29 "Licensed Software" shall mean [* ] the Altiris eXpress
-----------------
deployment server software, which consists of the software components listed on
Schedule 1. 2 of Exhibit A (as may be modified as set forth on Schedule 1.2), to
the extent the foregoing are for deployment and redeployment of Compaq Products
and products similar thereto, and any Updates/Maintenance Releases and New
Releases to be provided under this Agreement.
1.30 "Licensee" is defined in paragraph 3. 5(a).
--------
1.31 "Licensor" is defined in paragraph 3. 5(a).
--------
1.32 "Licensor's Trademarks" is defined in paragraph 3. 5(a).
---------------------
1.33 "New Releases" shall mean any release that includes any new
------------
enhancement, function or feature to the Licensed Software, in object code form,
and which release is: (a) made commercially available by Altiris, either
generally or to an Intel -compatible Server OEM, for deployment or redeployment
of Compaq Products or products similar thereto, (b) indicated by a change in the
digit to the left of the first decimal point (i. e., a change from version x.x.x
to y.x.x), or (c) described in the Statement of Work and required to be provided
under this Agreement.
1.34 [*]
1.35 "Quick Silver [*]" shall mean the version of the Licensed
----------------
Software that is referred to on the Statement of Work as "Quick Silver [*]".
1.36 "Quick Silver [*]" shall mean the version of the Licensed
----------------
Software that is referred to on the Statement of Work as "Quick Silver [*]".
1.37 "Quick Silver [*]" shall mean the Licensed Software to be
----------------
integrated with Compaq's Insight Manager (web-based version).
1.38 "Receiving Party" is defined in paragraph 9. 1.
---------------
1.39 "Return Date" is defined in paragraph 6. 7(a).
-----------
1.40 "Training Documentation" shall mean materials and
----------------------
documentation as provided by Altiris hereunder written in U. S. English intended
for individuals who will train other personnel on the features, use, operation,
support and/or maintenance of the Licensed Software.
____________
*This provision is the subject of a Confidential Treatment Request.
4
1.41 "Updates/Maintenance Releases" shall mean a release of the
----------------------------
Licensed Software containing error corrections or updates, in object code form,
which is made commercially available by Altiris and indicated by a change in the
digit to the right of the first decimal point (e. g., a change from version
x.x.x to x.y.x or x.x.x to x.x.y) and any corrections and updates to the
associated User Documentation.
1.42 "User Documentation" shall mean user manuals or other
------------------
documentation, as provided by Altiris hereunder, written in U. S. English
intended for users of the applicable Licensed Software.
2. Development, Delivery, and Acceptance.
-------------------------------------
2.1 Development. Altiris shall use reasonable efforts to
-----------
complete the development tasks described on the Statement of Work and, where
noted, to deliver the deliverables set forth in the Statement of Work, using
reasonable efforts to do so in accordance with the delivery, target or expected
end dates set forth in the Statement of Work.
2.2 Delivery and Acceptance. Upon delivery to Compaq of the
-----------------------
Licensed Software, and of each New Release or other deliverable specified in the
Statement of Work, Compaq may evaluate those deliverables. Compaq shall accept
the deliverables unless they materially fail to conform to, or do not
substantially comply with, the specifications set forth in the Statement of Work
and Schedule 1.2 of Exhibit A. If the deliverables materially fail to conform
to, or do not substantially comply with, such specifications, then Compaq shall
provide Altiris with a written statement detailing those areas. If Compaq fails
to provide such a written statement within three weeks (provided that with
respect to acceptance of the Gold Software for Quick Silver [* ], within four
weeks) after receipt by Compaq of such deliverables, then the deliverables will
be deemed accepted. Upon receipt of Compaq's written statement of
non-conformance or failure to substantially comply, Altiris shall use reasonable
efforts to correct those areas and re-deliver the deliverables to Compaq within
a reasonable time. Altiris shall dedicate additional technical resources to the
development effort in order to achieve such corrections. [*]
2.3 Termination for Failure to Achieve Acceptance.
---------------------------------------------
Notwithstanding the foregoing, if the deliverables are not accepted (including a
deemed acceptance) as of ninety (90) days after the originally scheduled
delivery date plus the addition of one day for each day that the delivery
failure was attributable to Compaq and not Altiris in accordance with this
Section (the "Acceptance Period Deadline"), then Compaq may, upon written notice
to Altiris at any time within 90 days after the Acceptance Period Deadline,
elect to terminate this Agreement (unless during that 90 days the deliverables
are accepted). Such termination will be subject to all of the terms and
conditions of Section 11.5, except that, as Altiris' sole and exclusive
obligation and Compaq's exclusive remedy for Altiris' failure to deliver the
Gold Software for Quick Silver [*] that materially conforms to and
____________
*This provision is the subject of a Confidential Treatment Request.
substantially complies with the specifications set forth in the Statement of
Work and Schedule 1.2 of Exhibit A, Compaq will be entitled to receive (for
internal use, resale or distribution) without cost, [*] licenses (measured by
number of Intel Compatible Servers) of version 5.1 of Altiris eXpress under and
otherwise subject to all of the terms of the ABG Agreement, but for deployment
or redeployment of Compaq Products. Altiris shall notify Compaq in writing
(which writing may include an email if sent to Compaq's Director of Server
Deployment Development or the equivalent) within 10 business days of any day in
which its efforts to make delivery is delayed due to Compaq and not Altiris,
explaining in detail how Compaq's action caused such delay.
3. Licenses and Rights.
-------------------
3.1 License Grant to Compaq. Subject to the terms and conditions
-----------------------
of this Agreement, Altiris grants to Compaq a nonexclusive (subject to Section
4.4), irrevocable (during the term, and subject to Section 11), worldwide
license, of Altiris' or Altiris' suppliers' Intellectual Property Rights, (i) to
install, use and execute the Licensed Software internally for the purposes of
server development and testing, and training, field marketing and sales
activities of the Compaq Products, and (ii) to reproduce, have reproduced,
Bundle and Pre-install, have Bundled or Pre-installed, display, import, export,
market, transmit, and distribute internally and externally by any means now
known or developed in the future (including through Licensed Distributors) the
Licensed Software, but only Bundled or Pre-installed with a Compaq Product, and
(iii) subject to payment as provided in Section 7.3 (if any), to reproduce, have
reproduced, display, import, export, market, perform, and distribute internally
and externally by any means now known or developed in the future (including
through Licensed Distributors) the Licensed Software for use only with any
Compaq Product that was sold prior to the delivery and acceptance by Compaq of
the Gold Software for the Quick Silver [*], and (iv) subject to payment as
provided in Section 7.3, to reproduce, have reproduced, display, import, export,
market, perform, and distribute internally and externally by any means now known
or developed in the future (including through Licensed Distributors) the
Licensed Software for use only with any Compaq Product. In each case above, the
licenses granted are limited to the Licensed Software as released by Altiris.
3.2 Testing and Demonstration Units. The license grant set forth
-------------------------------
in Section 3.1 shall include the right to provide pre-production and production
Compaq Products, with which the Licensed Software is Pre-Installed or Bundled,
to customers and potential customers for evaluation purposes.
3.3 User Documentation License. Subject to the obligations of
--------------------------
this Agreement, Altiris grants Compaq a non-exclusive, irrevocable (during the
term of this Agreement and subject to Section 11), royalty-free, worldwide
license to reproduce, import, export and display the User Documentation of the
Licensed Software and to distribute the User Documentation with documentation
for a Compaq Product. Compaq may incorporate the User Documentation into its
documentation for a Compaq Product so long as the User Documentation correctly
identifies the
______________________________
*This provision is the subject of a Confidential Treatment Request.
6
source and origin of the Licensed Software. Compaq may reformat the contents of
the User Documentation as needed to comply with Compaq's format, branding, and
documentation policies and may modify the User Documentation with Altiris' prior
written consent, not to be unreasonably withheld or delayed; provided that such
User Documentation as incorporated shall display all required attributions as
set forth in Section 3.6. Altiris reserves the right to approve the inclusion of
that content prior to distribution, which approval shall not be unreasonably
withheld or delayed. In each case in this Section where Compaq's actions are
subject to Altiris' consent, Compaq may assume that such consent has been
granted if it does not receive a response within five (5) business days after
providing to Altiris written notice that includes a specific discussion or
representation of the modification.
3.4 Training Documentation License. Altiris grants Compaq a
------------------------------
non-exclusive, royalty-free, worldwide license to reproduce, import, export,
display, and distribute Training Documentation solely to employees and
contractors of Compaq or its Affiliates, for training employees, Licensed
Distributors, and contractors of Compaq or its Affiliates who are responsible
for supporting and/or maintaining Compaq Products.
3.5 Trademark Licenses.
------------------
(a) Solely for the purposes and subject to the
restrictions set forth in Section 4.2, each party ("Licensor") grants to the
--------
other party ("Licensee") the right to use the trademarks and trade names that
--------
Licensor may adopt from time to time ("Licensor's Trademarks"), solely to
---------------------
exercise Licensee's rights/obligations under this Agreement. The actual
trademarks used must be those specifically associated with the product or
service and agreed by the parties in writing. In addition, Licensee shall fully
comply with reasonable guidelines, if any, communicated by Licensor to Licensee
concerning the use of Licensor's Trademarks.
(b) Except as set forth in Section 3.5(a), nothing
contained in this Agreement shall grant or shall be deemed to grant to Licensee
any right, title or interest in or to Licensor's Trademarks. At no time during
or after the term of this Agreement shall either party challenge or assist
others to challenge Licensor's Trademarks (except to the extent such restriction
is expressly prohibited by applicable law) or the registration thereof or
attempt to register any trademarks, marks or trade names confusingly similar to
those of the other party. If Licensee, in the course of exercising its rights
hereunder, acquires any goodwill or reputation in any of Licensor's Trademarks,
all such goodwill or reputation shall automatically vest in Licensor, when and
as, on an on-going basis, such acquisition of goodwill or reputation occurs, as
well as at the expiration or termination of this Agreement, without any separate
payment or other consideration of any kind to Licensee, and Licensee agrees to
take all such actions necessary to effect such vesting.
3.6 Obligations.
-----------
(a) Compaq shall use reasonable efforts to enter into
agreements with new Licensed Distributors that include provisions limiting
liability, disclaiming warranties, protecting intellectual property and
preventing reverse engineering for the Licensed Software, on Altiris' behalf,
that are either (a) consistent with Compaq's standard practice, as represented
in one of Compaq's standard forms of distribution agreement provided to Altiris
contemporaneously with this Agreement
7
(although the parties acknowledge that such forms are subject to negotiations)
or (b) are as protective of Altiris as those in this Agreement. [*]
(b) For each copy of Licensed Software distributed
hereunder (by Compaq, its Affiliates or Licensed Distributors) Compaq shall
deliver or cause to be delivered or executed the End User License Agreement
(which is provided by Altiris in accordance with this Agreement) in its
then-current form (except as provided under Section 3.6(g)) in a manner that is
consistent with a standard delivery or execution requirement of Compaq for its
own software.
(c) Compaq shall not make any representations, warranties,
or covenants binding Altiris except those specifically included in and set forth
in the End User License Agreement, which run directly between Altiris and the
end user. Compaq shall limit its representations, warranties, and/or covenants
relating to the Licensed Software to those contained in the applicable End User
License Agreement.
(d) [*]
(e) Altiris' failure to comply with any representations,
warranties or covenants included in and set forth in the End User License
Agreement that has been properly made available under Section 3.6(b) or Section
3.6(c) will be deemed a material breach of this Agreement, for which Compaq can
obtain from Altiris (as Compaq's sole and exclusive remedy and Altiris' entire
liability for that breach) damages equal to (i) the amounts that Compaq is
obligated to pay to a third party pursuant to a final judgment or written
settlement that will NOT be subject to or limited by the terms of Section 10.6
(including costs, if any, included in the judgment or settlement) and (ii) any
attorneys' fees incurred as a result of such breach by Altiris. Compaq shall
inform Altiris of any claims that Compaq believes may be due to Altiris' breach
of such representations or warranties and Altiris may, at its option, elect to
defend the claim at its own expense. Altiris then shall pay any amounts awarded
or amounts agreed to in a written settlement entered into by Altiris. Altiris
may not enter into a settlement that admits liability on Compaq's behalf or that
commits Compaq to take any future action without Compaq's written consent, which
consent shall not be unreasonably withheld or delayed. If Altiris makes such an
election, then Compaq will provide necessary assistance, also at Altiris'
expense. If Altiris fails to affirmatively defend the claim (as described below)
at Altiris' own expense, then Compaq may undertake the defense or settlement of
such claim with its own counsel on behalf of and for the account and risk of
Altiris (including a right to be reimbursed any reasonable amount spent in such
defense).
(f) Compaq shall not remove, obscure, or materially alter
Altiris' copyright notices, trademarks, or other proprietary rights notices
affixed to or contained within the Licensed Software or any materials provided
by Altiris, except where necessary to permit reasonable reformatting to fit
Compaq publication and product layout and design policies or practices; provided
that Compaq shall not remove, obscure or materially alter Altiris' proprietary
rights notices without Altiris' prior written consent, which shall not be
unreasonably withheld.
_______________________________
*This provision is the subject of a Confidential Treatment Request.
8
(g) Compaq shall implement any Altiris changes in the End
User License Agreement terms, User Documentation, Training Documentation or
attribution, provided that Compaq is provided by Altiris with at least sixty
(60) days prior written notification from Altiris detailing requested changes.
Requested changes will not obligate Compaq to modify existing inventory of
Compaq Products unless reasonable to do so (such as replacing CD's or other
media shipped or delivered in connection with Compaq Products). Altiris shall
use commercially reasonable efforts to keep such requested changes to less than
four (4) times per year.
(h) Compaq shall comply, in all material respects, with
all applicable export laws and regulations of the United States, and any
country, in which the Licensed Software is used, and any other country having
competent jurisdiction.
(i) Throughout this Agreement, a party shall have failed
to affirmatively defend a claim if, upon the written tender of the claim by the
other party, the recipient does not respond within 60 days in writing that it is
defending the claim. Determination of the party who will defend the claim is not
a final determination of responsibility or liability for the claim (and related
amounts awarded or incurred); that responsibility or liability is subject to the
relevant substantive provision of this Agreement.
3.7 License Grant to Altiris. Compaq grants to Altiris, for the
------------------------
longer of 10 years from the Effective Date or the expiration or termination of
this Agreement, a nonexclusive, irrevocable, royalty-free, worldwide license,
under Compaq's or Compaq's suppliers' Intellectual Property Rights, (i) to
install, use and execute Compaq's SmartStart scripting tools, and (ii) to
reproduce, have reproduced, display, import, export, market, relicense and
distribute internally and externally by any means now known or developed in the
future (including through multiple levels of distributors) those SmartStart
scripting tools, but for both (i) and (ii) above, only for use with, and as
distributed in connection with, the Licensed Software as made available for
distribution hereunder.
3.8 Compaq Affiliates. Licenses and rights granted under this
-----------------
Agreement to Compaq also are granted to any Affiliate of Compaq that sells,
owns, markets, distributes or promotes the Joint Products, but such licenses and
rights are subject to the terms and conditions of this Agreement. Compaq is
solely responsible for any of its Affiliate's activities and for their
compliance with this Agreement. Compaq is responsible for any action of its
Affiliates that would constitute a breach of this Agreement to the same extent
it is responsible and liable hereunder had it been Compaq's breach.
4. Marketing, Promotion and Press Releases.
---------------------------------------
4.1 Publicity. Altiris and Compaq may, in their respective sole
---------
discretion, issue one or more press releases and/or marketing announcements
regarding the Joint Product contemplated under this Agreement; provided, that,
any press releases and/or marketing announcements referencing the other party in
any way other than to describe the Joint Product shall have prior written
approval on a case by case basis by such referenced party prior to release (such
approval not to be unreasonably withheld or delayed, and will be deemed granted
if there is no response within ten (10) business days from the date such
approval was requested). The parties shall mutually agree upon the timing of the
press releases and other announcements that mention the other party.
9
4.2 Promotion. Subject to the limitations set forth in this
---------
Agreement and with prior written approval by each party on a case by case basis,
such approval not to be unreasonably withheld, Altiris and Compaq shall have the
right to use the Compaq Brand and any trademarks, trade names, logos, and/or
designs of Altiris, respectively, solely in connection with the promotion of the
Compaq Products and Joint Products under this Agreement.
4.3 Co-marketing. Altiris and Compaq agree to initiate
------------
discussions about the co-marketing activities set out in the Co-Marketing List
set forth in Exhibit C.
4.4 Preferred Partner Access. Compaq will receive preferred
------------------------
partner access to the Licensed Software as set forth below:
(a) Altiris agrees not to provide the Licensed Software or
associated User Documentation or Training Documentation to any Intel-compatible
Server OEM from the Effective Date until six (6) months after the delivery to
Compaq of Gold Software for the Licensed Software delivered under Quick Silver
[*].
(b) The foregoing [*] only applies to the Licensed
Software as delivered under this Agreement. It does not apply to Altiris' other
products that are not used for the deployment or redeployment of Compaq Products
or products similar thereto, which other products are freely distributable.
(c) The foregoing [*] excludes Altiris' existing
agreements with any entity with annual revenues of less than $1 billion.
(d) The foregoing [*] also only applies to OEM
Distributions, where "OEM Distributions" are distributions of the Licensed
Software that is Bundled or Pre-installed with an Intel Compatible Server
without additional charge to the customer and as a standard part of a SKU, not
as an add-on. Altiris is not required to include restrictions on its general
commercial sales or licenses of the Licensed Software or any component thereof
unless those commercial sales or licenses are to an Intel-compatible Server OEM.
OEM Distributions do not include distributions by Altiris. OEM Distributions
also do not include distributions by an Altiris distributor or reseller where
the Licensed Software is either not Bundled or Pre-installed or where the
Licensed Software is provided other than as a standard part of a SKU or is an
add-on. As used in this Section 4.4, the definition of "Bundled or
Pre-installed" as set forth in Section 1.20 is amended by substituting each
reference to the term "Compaq Product" or "Compaq Products" with the term "Intel
Compatible Server" or "Intel Compatible Servers."
(e) Altiris also agrees to discuss with Compaq, on an
annual basis, the business terms under this Agreement as they compare
competitively to arrangements with other distributors of Altiris. Altiris agrees
to provide to Compaq the benefit of and/or rights to any more favorable terms or
conditions that it grants to any other Intel-compatible Server OEM for a license
___________________________
*This provision is the subject of a Confidential Treatment Request.
10
that includes the right to Pre-install or Bundle the Licensed Software or
software that has the features and functionality substantially similar to the
Licensed Software, including the royalty rate, when such terms and conditions
are made available to such Intel-compatible Server OEM; provided, that Compaq
accept the conditions or requirements associated with such more favorable terms
or conditions. To the extent those conditions or requirements are connected with
a unique capability, asset or ability of a specific licensee, Altiris will
provide to Compaq the benefit of and/or rights to those more favorable terms in
exchange for monetary value equivalent to those unique capabilities, assets or
abilities. If the parties are unable to assign a value, then they will do so
pursuant to Section 12 (Dispute Resolution). If Compaq accepts the conditions or
requirements associated with such more favorable terms or conditions, Altiris
shall make the favorable terms or conditions immediately available to Compaq,
even while the value of any monetary value equivalent is being determined.
4.5 Preferred Partner Distribution.
------------------------------
(a) If Compaq distributes any software competitive with
the Licensed Software, then Compaq must also distribute the Licensed Software in
that same distribution transaction. The sole recourse and remedy of Altiris for
any breach of this Section 4.5 shall be that Altiris' obligations under Section
4.4 terminate.
(b) Further, if during any six-month period (measured on
a rolling basis each calendar month) Compaq sells, distributes or licenses more
units in total and by any method (measured using an equivalent unit) of any
software competitive with the Licensed Software, then Altiris' obligations under
Section 4.4 terminate.
(c) For the purposes of this Section 4.5, software is
competitive if it actually deploys or redeploys a Compaq Product (but excluding
the Compaq software existing as of the Effective Date and any updates,
maintenance releases, or new versions, to the extent such new versions are based
on Compaq technology and not technology acquired from third parties other than
consultants or independent contractors).
(d) Moreover, Section 4.4 shall terminate upon Compaq
acquiring an entity that is a licensor of software that deploys or redeploys
Intel Compatible Servers and subsequently distributing and marketing such
software as a solution for the deployment or redeployment of Intel Compatible
Servers.
5. Delivery/Training.
-----------------
5.1 Delivery. Altiris shall ship to Compaq the Licensed Software
--------
in binary code form per the schedule set forth in Exhibit B, "Statement of Work"
---------
provided that each delivery date shall be extended by the number of days, if
any, that delivery is delayed by Compaq. Acceptance is as described in Section
2. Altiris shall notify Compaq in writing (including via an e-mail if sent to
Compaq's Director of Server Development Deployment or equivalent) within 10
business days of any day in which its efforts to make delivery is delayed due to
Compaq and not Altiris, explaining in detail the failure of Compaq attributing
to such delay.
11
5.2 Training.
--------
(a) Altiris shall provide Compaq training in the use,
operation, maintenance and support of the Licensed Software in accordance with
the following provisions:
(i) The parties agree to execute a mutually
agreeable internal training organization agreement (the "Internal Training
Organization Agreement") no later than August 1, 2001, with Compaq Training to
provide training materials for distribution to Compaq internal audiences.
(ii) [*]
(iii) [*]
(iv) [*]
(v) [*]
(vi) [*]
(b) Compaq may, in its sole discretion, contract with
Altiris to provide on-site consulting services and training (including
additional train-the-trainer events) for field and or customer events based on
then current Altiris pricing less Compaq's discount of [*]%; subject to the
availability of Altiris' personnel and Compaq's acceptance of terms and
conditions similar to Altiris' standard terms and conditions for those services.
(c) [*]
(d) Each party shall designate a training manager, who
will serve as a point of contact for the other party and whose responsibilities
will include arranging and coordinating the training under this Section 5.
Altiris designates [*], and Compaq designates [*]. Either party may change the
designated training manager on written notice to the other party.
6. Support and Updates/Maintenance Releases and New Releases.
---------------------------------------------------------
6.1 Support Levels.
--------------
(a) "Level 1 Support" shall mean the following support
---------------
services:
. providing the support mechanism, including a call center, to receive
calls from customers relating to the Licensed Software;
. receiving and screening calls from end users;
________________________
*This provision is the subject of a Confidential Treatment Request.
12
. responding to issues related to availability, supported products,
installation, and common usage of the Licensed Software;
. addressing known issues and any questions or problems for which the
solution is covered by or suggested in any of Altiris' product
documentation or training sessions;
. providing problem identification and diagnosis by identifying and
providing solutions to reproducible program errors for which there are
existing known workarounds or patches;
. answering design and architecture questions regarding the Licensed
Software;
. creating a reproducible demonstration of program error; and
. if applicable, distributing any New Releases and Updates/ Maintenance
Releases to its Licensed Distributors and end users.
(b) "Level 2 Support" shall mean back-end support
---------------
provided to personnel at the Call Center (and not to customers or end users
directly), including the following:
. analyzing reproducible program errors in the Licensed Software;
. analyzing and using reasonable efforts to provide solutions to
reproducible program errors for which there are not existing known
workarounds or patches; and
. addressing questions requiring intimate knowledge of the source code or
design and engineering documentation of the Licensed Software.
(c) "Level 3 Support" shall mean engineering level
---------------
support from the programmers who maintain or develop the Licensed Software or
from other technical personnel having knowledge and expertise concerning the
Licensed Software, including the following:
. using reasonable efforts to create revisions and changes to the
operation of the Licensed Software;
. analyzing and using reasonable efforts to provide solutions to
reproducible program errors for which there are not existing known
workarounds or patches and which have not been addressed by Level 2
support within 10 business days of the initial request by a customer;
. using reasonable efforts to create significant service patches to the
Licensed Software that are currently unknown;
. using reasonable efforts to identify defective source code and using
reasonable efforts to provide corrections, workarounds and/or object
code patches to correct substantial program errors, if applicable.
13
(d) Severity Levels. Altiris will use reasonable
---------------
efforts to resolve escalated issues (i.e., issues escalated to Level 2 Support
or Level 3 Support under (c) above) as soon as reasonably possible. Compaq will
classify each escalated issue as Severity 1, 2 or 3 in accordance with the
following.
(i) Severity 1. A Severity 1 problem is a
catastrophic problem that may severely impact the customer's ability to conduct
business. This may mean that the customer's systems and/or Licensed Software are
down, there is a loss of essential functionality in the Licensed Software, and
no procedural workaround exists.
(ii) Severity 2. A Severity 2 problem is a
----------
high-impact problem in which the customer's operation is disrupted but there is
capacity to remain productive and maintain necessary business-level operations.
The problem may require a fix be installed on the customer's system prior to the
next planned commercial release of the Licensed Software.
(iii) Severity 3. A Severity 3 problem is a
medium-to-low impact problem that involves partial loss of non-critical
functionality. The problem impairs some operations but allows the customer to
continue to function. This may be a minor issue with limited loss or no loss of
functionality or impact to the customer's operation. This includes documentation
errors.
(e) [*]
(i) Severity 1. For a Severity 1 problem,
Altiris' support organization will respond directly to Compaq within one (1)
hour following receipt of the call from Compaq. Compaq and Altiris will develop
the Action Plan within four (4) hours following receipt of the call. When
working a Severity 1 problem, the objective is to get the customer back on line
by whatever means within 24 hours and to downgrade the problem severity
accordingly. Efforts to isolate, diagnose, and deliver a work-around or repair
to a Severity 1 problem shall be continuous (i.e., round-the-clock). Telephone
contact and progress updates are also required. These progress updates should be
once every four (4) hours or as specified in the Action Plan. When the severity
level has been changed to Severity 2 or Severity 3, the appropriate guidelines
should be followed. Resources must be available seven (7) days a week and for
twenty-four (24) hours a day to respond to Severity 1 cases.
(ii) Severity 2. For a Severity 2 problem,
Altiris' support organization will respond to Compaq within two (2) hours
following receipt of the call from Compaq during normal business hours,
otherwise on the next business day. Efforts to isolate, diagnose, and deliver a
work-around or repair to a Severity 2 problem shall be continuous during
business hours (Monday through Friday, 8am - 5pm). Specific implementation
should be agreed upon by Compaq and Altiris on a case-by-case basis and
documented in an Action Plan within two (2) business day of receipt of the call
by Altiris. Altiris shall provide status updates twice a week or
__________________________
*This provision is the subject of a Confidential Treatment Request.
14
as mutually agreed. Resources may need to be available after hours
and/or weekends depending on the Action Plan. The objective is to have a
solution and/or fix to the customer within an average of fifteen (15) days.
(iii) Severity 3. For a Severity 3 problem, Altiris'
support organization will respond to Compaq within three (3) business days. When
working a Severity 3 problem, the objective is to get the customer a fix to the
problem within thirty (30) days or a statement describing the disposition of the
problem. Action should be appropriate to the nature of the escalation. Altiris
shall provide status updates once a week or as mutually agreed. Altiris shall
use its efforts to isolate and resolve the problem as agreed to in the Action
Plan or, at a minimum, shall use its continuous efforts Monday through Friday
during normal business hours.
6.2 Altiris Support. Altiris' obligation to provide Xxxxx 0 and
---------------
Level 3 Support is conditioned upon Compaq providing Level 1 Support, and doing
so in accordance with the requirements in this Agreement and at a level of
quality consistent with standard practices in the industry. Altiris shall
provide Level 2 Support and Level 3 Support to Compaq, at no charge but subject
to payment of the license fees in Section 7 of this Agreement, during the
Initial Term and any Compaq Renewal, subject to payment of the amounts indicated
in Section 11.6. In connection with that, Altiris shall provide Compaq with a
telephone number and an e-mail address that Compaq may use to request such
support. Altiris shall make commercially reasonable efforts to provide quality
support. Altiris is not required to correct any program error caused by (a)
Compaq's incorporation or attachment of a feature, program, or device to the
Licensed Software, or any part thereof; (b) any nonconformance caused by
accident, transportation, neglect, misuse, alteration, modification, or
enhancement of the Licensed Software; (c) any program errors resulting from
hardware (other than the Compaq Products) or software not provided for by
Altiris; (d) the failure to provide a suitable installation environment; (e) use
of the Licensed Software for other than the specific purpose for which the
Licensed Software is designed; (f) use of the Licensed Software on any systems
other than the Compaq Product; (g) Compaq's use of defective media or defective
duplication of the Licensed Software; or (h) Compaq's failure to incorporate any
New Releases and Update/Maintenance Releases previously released by Altiris to
Compaq which corrects such program error.
6.3 Buyout. Compaq shall have the option, in its sole
------
discretion, to have Altiris perform Level 1 Support for a fee. Such performance
is subject to the availability of Altiris' engineers and to mutual agreement on
an appropriate fee and will not be begun until 90 or more days after Compaq
exercises its option.
6.4 Updates/Maintenance Releases and New Releases.
---------------------------------------------
(a) Altiris shall provide Compaq Updates/Maintenance
Releases to the Licensed Software at no charge and free of royalty payment
obligation (except royalties, if any, on the Licensed Software generally) for
the term of the Agreement (including the Initial Term and any Compaq Renewal),
for use with Joint Products. [*]
______________________
*This provision is the subject of a Confidential Treatment Request.
15
(b) Altiris shall provide New Releases to Compaq at no
charge and free of royalty payment obligation (except royalties, if any on the
Licensed Software generally) for the term of this Agreement (including the
Initial Term and any Compaq Renewal), for use with Joint Products. [*]
6.5 Compaq Responsibilities. Compaq shall provide Level 1 Support,
-----------------------
in accordance with the requirements in this Agreement and at a level of quality
consistent with standard practices in the industry. Compaq agrees that any
documentation distributed by Compaq shall clearly and conspicuously state that
Licensed Distributors and end users should contact Compaq for Level 1 Support.
Compaq shall identify up to [*] member(s) of its customer support staff to act
as the primary technical liaisons responsible for communications with Altiris'
technical support representatives. Such liaisons shall have sufficient technical
expertise, training, and/or experience for Altiris to perform its obligations
hereunder.
6.6 Product Revisions. Compaq and Altiris agree to work together
-----------------
to track revisions to be made to the Compaq Product with changes planned in the
Licensed Software and review such revisions during the quarterly meetings
between the parties as set out in Exhibit C.
6.7 Failure to Support.
------------------
(a) In the event of a Failure to Support (defined
herein), Altiris shall, at its sole option, either be liable for actual damages
resulting therefrom that will be in no way limited by or subject to Section
10.6, but not to exceed [*], or (b) release to Compaq the source code to the
Licensed Software for Compaq to attempt to remedy the problem resulting from
Altiris' breach. Altiris is not required to provide support after it has
released the source code to Compaq. However, Altiris is not prohibited from
attempting to remedy the Failure to Support at any time, and if Altiris does so
fewer than 10 business days after receiving notice of a Failure to Support then
Altiris shall have no liability or obligation under this Section 6.7(a). If
Altiris releases the source code pursuant to option (b) above and if Compaq is
successful, Altiris shall have no liability and no obligation under this Section
6.7(a) for such Failure to Support; if Compaq is not successful, Altiris shall
be entitled to the limitation of damages set forth in Section 10.6 to any damage
claim arising from such Failure to Support. "Failure to Support" means that (1)
Altiris has failed to respond to an escalated issue in accordance with
Subsection 6.1(e) by not assigning an engineer to the escalated issue or by not
providing the required status reports, and (2) any such failure to assign an
engineer or provide any status reports continues for: (a) with respect to a
Severity 1 problem, five (5) business days; (b) with respect to a Severity 2
problem, ten (10) business days; and (c) with respect to a Severity 3 problem,
fifteen (15) business days. Before Compaq can assert a Failure to Support claim,
Altiris and Compaq shall meet (including by telephone conference) within three
(3) business days of Compaq's notice of a Failure to Support in an attempt to
address any Failure to Support claim. If the Failure to Support claim is not
resolved by the representatives at such meeting (or conference call) or the
parties have not met within such three (3) business days, the chief executive
officer of Altiris or his designee and a Vice President of Compaq shall meet
(including by telephone conference) within
_____________________________
*This provision is the subject of a Confidential Treatment Request.
16
seven (7) business days of Compaq's notice of Failure to Support. If the Failure
to Support claim is still not resolved after such meeting or such meeting does
not take place within such seven (7) business days because Altiris' chief
executive officer or his designee have not been available, then the claim shall
be deemed to be a proper claim for Failure to Support, subject to Altiris
proving otherwise. If Altiris releases the source code to Compaq, Compaq is
granted a right and license to use the source code as set forth in Section
8.6(c) (including the license back to Altiris), except for the following terms:
(i) such license is for the limited purpose of resolving the escalated issue
until the Return Date (defined below); (ii) the source code will only be made
available to product support engineers and not developers; and (iii) Compaq
shall return the source code and any copies made thereof to Altiris no later
than six (6) months after receipt of the source code (the "Return Date").
(b) In the event of an Altiris Chronic Failure (defined
herein), Altiris shall be liable to Compaq for any actual damages resulting
therefrom that will be in no way limited by or subject to Section 10.6, but not
to exceed [*] . An "Altiris Chronic Failure" means there exists, during any
twelve (12) month period, five (5) Severity 1 or Severity 2 escalated issues
(regardless of the number of users or customers that each of those five (5)
escalated issues affect) that remain unresolved by Altiris for three (3) months
from the date Compaq provides notice to Altiris that an issue has been escalated
to Level 2 Support or Level 3 Support.
(c) If Altiris reasonably believes that Compaq is
providing inadequate Level 1 Support, then Altiris shall notify Compaq. In
addition, at Altiris' option, Altiris may require that Compaq make additional
Altiris training available to 5 Compaq support engineers, at Compaq's expense.
Altiris will provide that training at a price that does not exceed $1500/day
(plus reasonable expenses for travel, if that training is provided on-site for
Compaq) with a duration not to exceed the length of Altiris' standard training
course. Altiris may exercise its option to require Compaq to complete additional
training no more than once per year.
(d) If Altiris does not provide to Compaq any
Update/Maintenance Releases or New Releases required hereunder, and if that
Update/Maintenance Release or New Release is made commercially available, either
generally or to an Intel-compatible Server OEM, and if Altiris still has not
provided to Compaq any Update/Maintenance Release or New Release within ten (10)
business days after written notice from Compaq to Altiris' general counsel,
product manager and the product manager's supervisor, at the addresses below,
Altiris shall be liable for Compaq's actual damages resulting from that failure
that will be in no way limited by or subject to Section 10.6, but not to exceed
[*]. Altiris may provide in writing the name and address of the person to whom
notice shall be sent if contrary to the address below. Notice shall be sent to
the following: General Counsel, Product Manager, and the Product Manager's
Supervisor at the address set forth in the first paragraph hereof and by
facsimile to (000) 000-0000.
_________________________
*This provision is the subject of a Confidential Treatment Request.
17
7. Royalties and Fees.
------------------
7.1 Compaq shall pay Altiris license fees of $2,000,000 (US) as
follows:
$800,000 upon the Effective Date;
$200,000 upon delivery and acceptance to Compaq of Code
Complete Software for Quick Silver [*] (as described in the
Statement of Work);
$500,000 upon delivery and acceptance to Compaq of Gold
Software for Quick Silver [*] ;
$250,000 upon delivery and acceptance of Gold Software for
Quick Silver [*].
$250,000 upon delivery and acceptance of Gold Software [*] that
includes Quick Silver [*].
7.2 Fees. Altiris will provide training and services to Compaq at
----
fees that represent a [*]% discount, except as otherwise set forth in this
Agreement.
7.3 Royalties. [*]
---------
(a) [*]
(b) [*]
(c) If Compaq is required to pay royalties under this Section
7.3, then up to $800,000 of the amounts paid as fees under Section 7.1 will be
considered prepaid royalties, which will be applied as a credit to such
royalties, on a one-to-one basis, up to the following maximums for each year
(measured from the Effective Date until the date one calendar year later): (a)
$150,000 in (c) the first year, (b) $150,000 in the second year, (c) $200,000 in
the third year, and (d) $300,000 in the fourth year. If royalties due in any one
year exceed the foregoing amounts, then Compaq shall pay those royalties as set
forth below. If royalties are less than the foregoing amounts in those years,
then the same maximums continue to apply (i.e., unused amounts do not roll over
from year to year). Amounts in excess of the foregoing allocated amounts in any
one year must be paid as set forth below.
(d) [*]
7.4 Taxes. Fees and royalties are exclusive of, and must be paid
-----
without deduction for, taxes or governmental fees or charges of any kind. Compaq
and Altiris shall be responsible for their own taxes, including all income
taxes, sales taxes, use taxes, withholding taxes, value added
_____________________
*This provision is the subject of a Confidential Treatment Request.
18
taxes and any other similar taxes imposed by any federal, state, provincial or
local governmental entity on the transactions contemplated by this Agreement.
Taxes from the marketing, sale and distribution of the Joint Product are
Compaq's responsibility.
7.5 Audit. During the term of this Agreement, and during the
-----
one-year period thereafter, but not more often than once per calendar year,
Altiris may audit Compaq's records and books related to the payments required
under Section 7.3. The audit may be done only through a third party chosen by
Altiris and reasonably acceptable to Compaq, only upon reasonable notice to
Compaq, and only during normal business hours. If an audit of the appropriate
records reveals any amounts underpaid, then Compaq shall promptly pay Altiris
the amount of the underpayment, plus interest at 8% per annum. If the amount of
the underpayment is greater than 5% of the amounts properly payable in a
calendar year, then in addition Compaq shall reimburse Altiris for the
reasonable out of pocket costs it incurred in conducting the audit. Any dispute
regarding the amount of the underpayment will be resolved pursuant to Section
12.
8. Intellectual Property.
---------------------
8.1 Altiris Intellectual Property. As between Altiris and Compaq,
-----------------------------
Altiris shall own all right, title and interest to the Licensed Software,
Altiris' other software products, the Training Documentation, User Documentation
and all other materials supplied by Altiris and all Intellectual Property Rights
in any of the foregoing. However, ownership of the Licensed Software is subject
to Compaq's rights in (including ownership of) and to the Compaq Development
Items, as defined below, and in and to the SmartStart scripting tools, each of
which are in turn subject to the licenses in this Agreement (in this Section 8.1
and in Section 3.7, respectively). Altiris reserves all rights not explicitly
and expressly granted under this Agreement. Compaq may provide to Altiris
software code and other items for inclusion in the Licensed Software. Such
software code and other items, but excluding the SmartStart scripting tools, are
collectively referred to as the "Compaq Development Items." Compaq hereby grants
Altiris an irrevocable, perpetual, nonexclusive license to incorporate the
Compaq Development Items with Altiris' software, to modify and make derivative
works of the Compaq Development Items in connection with Altiris' software, and
to reproduce, publicly display and perform, and distribute and transmit the
Compaq Development Items as incorporated with Altiris' software.
8.2 Compaq Intellectual Property. As between Altiris and Compaq,
----------------------------
Compaq shall own all right, title and interest in and to the Compaq Products,
the Compaq Development Items, the SmartStart scripting tools, and all Compaq
Confidential Information, and all associated Intellectual Property Rights in any
of the foregoing.
8.3 Reservation of Rights. Each party acknowledges and agrees
---------------------
that any and all rights not explicitly and expressly granted in this Agreement
are hereby reserved.
8.4 Protection of Compaq Software; Reverse Engineering. Altiris
--------------------------------------------------
shall not: (i) disassemble, decompile or otherwise reverse engineer the
SmartStart scripting tools software or the Compaq Development Items
(collectively, the "Compaq Software") or attempt to recreate source code from
that Compaq Software, or (ii) allow others to copy, access or use the Compaq
Software; (iii) transfer or disclose the Compaq Software to others; (iv) create
derivative works based upon the
19
Compaq Software; or (v) translate or modify the Compaq Software, all except as
expressly permitted by this Agreement and the licenses herein.
8.5 Protection of the Licensed Software; Reverse Engineering.
--------------------------------------------------------
Compaq shall not: (i) disassemble, decompile or otherwise reverse engineer the
Licensed Software or attempt to recreate source code from the Licensed Software,
or (ii) allow others to copy, access or use the Licensed Software, or (iii)
transfer or disclose the Licensed Software to others; all except as expressly
permitted by this Agreement and the licenses herein. In addition, unless Compaq
has the right to obtain the source code pursuant to this Agreement and the
Escrow Agreement, Compaq shall not (x) create derivative works based upon the
Licensed Software, or (y) translate or modify the Licensed Software.
8.6 Source Code Escrow and Conditional License.
------------------------------------------
(a) Altiris shall deposit with Data Securities
International, Inc. (the "Escrow Agent") (i) the then current source code for
the Licensed Software (excluding the Excluded Source Code), (ii) the source code
(excluding the Excluded Source Code) for version 5.1 of Altiris eXpress and the
object code for those portions of version 5.1 of Altiris eXpress that were
obtained by Altiris from a third party in object code form only (excluding the
Excluded Source Code) (all the materials pursuant to this subparagraph (ii) and
the information provided pursuant to subparagraph (iv) below to the extent
related to version 5.1 of Altiris eXpress collectively are referred to as the
"Initial Deposit"), (iii) for those portions of the Licensed Software that were
or are obtained from a third party, but only in object code form, the object
code (excluding the Excluded Source Code), and (iv) for the [*], reasonable
identification of the functionality provided by that [*], the restrictions to
which it is subject, and that third party's address and other contact
information (including phone, fax and email) and all agreements authorizing
Altiris to use such proprietary information to the extent that the disclosure of
such agreements does not violate any confidentiality obligations (all the
materials and information pursuant to subparagraphs (i) through (iv) above are
collectively referred to as the "Source Materials"). Altiris shall deposit the
Initial Deposit with the Escrow Agent [*] after the Effective Date; Altiris
shall deposit the remaining Source Materials with the Escrow Agent [*] after
acceptance of the Gold Software for the applicable version of the Licensed
Software. Further, Altiris will continue to deposit with the Escrow Agent source
code (excluding Excluded Source Code) and information as required hereunder if
applicable for Updates/Maintenance Releases and New Releases, to reflect the
then current shipping version of the Licensed Software, [*] following commercial
release, either generally or to [*]. Compaq's payment for acceptance of the Gold
Software for Quick Silver [*] shall be further conditioned upon the successful
verification by the Escrow Agent, pursuant to the Escrow Agreement (defined
below). If the Escrow Agent is unable to make such successful verification, then
Altiris shall use reasonable efforts to provide further information, materials
or assistance to the Escrow Agent to achieve such successful verification (or to
Compaq, as indicated in the Escrow Agreement). Concurrently with the execution
and delivery of this Agreement, Altiris, Compaq and the Escrow Agent will
execute a Preferred Beneficiary Acceptance Form, which Preferred Beneficiary
Acceptance Form amends the Master
_________________________
*This provision is the subject of a Confidential Treatment Request.
20
Preferred Escrow Agreement between Altiris and the Escrow Agent (Master Number
011212), dated April 26, 2001, between Altiris and the Escrow Agent (which such
form and Master Preferred Escrow Agreement as amended by that form are
collectively referred to as the "Escrow Agreement" and are attached hereto as
Exhibit D). Upon termination or expiration of this Agreement, Altiris shall have
the right to remove the Source Materials from escrow, and Compaq's rights under
this Section 8.6 shall terminate unless (a) that termination is part of a
Release Condition (as set forth below) or (b) the Source Materials have been
released to Compaq hereunder.
(b) The Source Materials deposited with the Escrow Agent will be
released to Compaq (subject to the procedures in the Escrow Agreement), and
Compaq will have the rights set forth in Section 8.6(c) and (e), if either of
the following conditions (each a "Release Condition") occurs prior to the
expiration or termination of the Initial Term of this Agreement:
(i) Altiris files a petition in or is subject to any
proceeding relating to insolvency or bankruptcy, or permits the appointment of a
trustee in bankruptcy, and that petition, proceeding or appointment is not
dismissed within ninety (90) days thereafter; or is voluntarily or involuntarily
wound up, liquidated or dissolved,
AND
Altiris breaches its obligations to provide support
and/or Updates/Maintenance Releases under this Agreement and does not cure that
breach for 30 days after receipt of notice of the breach from Compaq; provided
that if the breach has been cured as of the expiration of the 90 days set forth
above (whether before or after the filing of the petition), then no Release
Condition will be deemed to have occurred; or
(ii) [*] (or any of their respective successors or
Affiliates) directly or indirectly (x) acquires Altiris, including through the
purchase of Altiris securities having 50% or more of the votes for the election
of directors, or by the purchase of substantially all of the assets of
(ii) Altiris, (y) merges, consolidates or combines with or into Altiris or its
Affiliates, or (z) acquires the ownership of, or rights tantamount to ownership
of, the source code of the Licensed Software (a "Competitive Acquisition"),
AND
Compaq elects to terminate this Agreement pursuant to
Section 11.4.
(c) Upon occurrence of a Release Condition (defined and set forth
above), Altiris hereby grants Compaq a non-exclusive, irrevocable (during the
Initial Term and for 12 months thereafter), worldwide right and license, to use
the documentation, source code and/or object code relating to the Applicable
Software (determined and defined in Section 8.6(e)) and any Intellectual
Property Rights embodied therein, to maintain and support the Applicable
Software, [*].
__________________
*This provision is the subject of a Confidential Treatment Request.
21
Compaq may disclose the source code of the Applicable Software only to employees
and third party contractors that have a need to know in order to maintain and
support the Applicable Software and that are subject to an agreement that
protects the Applicable Software and prohibits use and disclosure of the
Applicable Software to the same extent as does this Agreement, but further only
if those third party contractors are not also working with an Altiris competitor
or on internal products at Compaq that are competitive to Altiris products.
Altiris also grants Compaq a non-exclusive license to distribute the object code
of such Applicable Software and such authorized [*] (directly or through
Affiliates and Licensed Distributors), who may use the Applicable Software and
such authorized [*]. Distribution of the Applicable Software is intended to be
subject to the same terms as set forth in Section 3.1 and this Agreement,
including the provisions regarding ownership, all of the restrictions set forth
in this Agreement, and payment of royalties under Section 7.2. The source code
is Altiris' Confidential Information, and Compaq is subject to the obligations
in Section 9 with respect to that source code (except as modified by this
Section 8.6). Compaq grants Altiris a perpetual, irrevocable, worldwide
nonexclusive license to use, reproduce, display, and perform, [*].
(d) The license in Section 8.6(c) continues until the end of what
would have been the Initial Term of this Agreement and then for 12 months
thereafter. After that period, the license in Section 8.6(c) terminates and
Compaq shall return the Source Materials in connection with Section 9.4. If the
Source Materials are released and the license in Section 8.6(c) becomes
effective, then at the end, or what would have been the end, of the Initial Term
of this Agreement (excluding any renewal periods that would have applied), [*].
During the time that the license in Section 8.6(c) is effective, Compaq's
payment obligations (including those in Section 7.3 and in Section 11.6)
continue to apply.
(e) Upon release of the Source Materials, Altiris and [*] shall
have no further obligation (other than the license grant under Section 8.6(c))
or liability with respect to any of the foregoing and the same will be used,
distributed, licensed and sublicensed at the sole risk of Compaq, and Altiris
has no obligations to provide support, Upgrades/ Maintenance Releases, or New
(e) Versions. For purposes of this Section 8.6, the "Applicable Software" is the
following: (i) the Licensed Software (including all versions then being
distributed by Compaq under this Agreement); and (ii) either (a) if the Licensed
Software contains Excluded Source Code, then the latest version of the Licensed
Software that does not include Excluded Source Code, or (b) if none of the
versions of the Licensed Software is free of Excluded Source Code, then version
5.1 of Altiris eXpress (whether or not version 5.1 of Altiris eXpress includes
Excluded Source Code). Compaq will obtain its own licenses for Excluded Source
Code, including payment of any applicable royalties or other fees.
(f) For purposes of Section 8.6 of this Agreement, "Excluded
Source Code" means the source code (or object code, for code available only in
object code form) for the Licensed Software or version 5.1 of Altiris eXpress to
the extent that it is subject to a third party's proprietary rights restricting
the disclosure to Compaq, or restricting Compaq's exercise of any of its license
rights pursuant to this Section 8.6. Altiris represents and warrants that
Schedule 8.6(f) to Exhibit A
_______________________
*This provision is the subject of a Confidential Treatment Request.
22
is a complete list of Excluded Source Code for version 5.1 of Altiris eXpress,
and reflects whether the restrictions are to disclosure, [*] or both.
(g) Altiris represents and warrants that, at the time of each
deposit, the source code (and object code) deposited with the Escrow Agent under
Section 8.6(a), when combined with the Excluded Source Code, and when built
using the instructions provided to the Escrow Agent (including use of the
commercial compiler and "make" files) will build a product that has the same
features and functions as the then-current version of the Licensed Software, or
for the deposit of the Source Materials for version 5.1 of Altiris eXpress, the
features and functions of version 5.1 of Altiris eXpress.
9. Confidentiality.
---------------
9.1 Confidential Information. By virtue of this Agreement, each
----------------------------
Party hereto may disclose to the other Party information that is Confidential
Information. "Confidential Information" means technology, data, plans, and other
information disclosed by one Party (the "disclosing Party") to the other Party
(the "receiving Party"), subject to the exclusions of Section 9.3 below. Source
code for the Licensed Software is Altiris' Confidential Information, not subject
to the exclusions below. Such Confidential Information shall be governed by the
terms of this Section 9.
9.2 Confidentiality. Each Party agrees, for the term of this
---------------
Agreement and five (5) years after its expiration or termination, (i) to use the
Confidential Information only as expressly permitted under this Agreement, (ii)
to hold the other Party's Confidential Information in confidence, (iii) not to
disclose such Confidential Information to third parties not authorized by the
disclosing Party to receive such Confidential Information, and (iv) to disclose
such Confidential Information only to its employees and contractors with a need
to know such Confidential Information and who have the obligations of
confidentiality not to use or disclose such Confidential Information for any
purpose except as expressly permitted hereunder. Each Party agrees to take
reasonable steps using at least the same degree of care that it uses to protect
its own Confidential Information, but no less than reasonable care, to protect
the other Party's Confidential Information to ensure that such Confidential
Information is not disclosed, distributed or used in violation of the provisions
of this Agreement. The foregoing prohibition on disclosure of Confidential
Information shall not apply to the extent certain Confidential Information is
required to be disclosed by the receiving Party as a matter of law or by order
of a court, governmental rule or regulation (including federal and state
securities laws, rules and regulations, and the rules of any applicable national
stock exchange); provided that the receiving Party uses reasonable efforts to
provide the disclosing Party with prior notice of such obligation to disclose
and reasonably assists in obtaining a protective order or confidential treatment
therefore at the other party's expense.
9.3 Exclusions. Confidential Information shall not include any
----------
information to the extent it (i) was publicly known or made generally available
in the public domain prior to the time of
________________
*This provision is the subject of a Confidential Treatment Request.
23
disclosure by the disclosing Party; (ii) becomes publicly known or made
generally available after disclosure by the disclosing Party to the receiving
Party through no fault of the receiving Party; (iii) is already in the
possession of the receiving Party at the time of disclosure by the disclosing
party as shown by receiving Party's files and records immediately prior to the
time of disclosure; (iv) is obtained by the receiving Party from a third party
without a breach of such third party's obligations of confidentiality, provided
that the receiving Party complies with any and all restrictions imposed by such
third party; (v) is independently developed by either Party by persons who had
no access to the Confidential Information, as shown by documents and other
competent evidence in the Party's possession. Confidential Information which
subsequent to disclosure to the receiving Party becomes subject to (ii), (iv) or
(v), shall be Confidential Information until such time as (ii), (iv) or (v)
becomes applicable to it.
9.4 Return of Confidential Information. Within fifteen (15) days after
----------------------------------
the receiving Party's receipt of the disclosing Party's written request for the
return of Confidential Information, or the termination or expiration of this
Agreement, all of the disclosing Party's Confidential Information and all copies
thereof in the receiving Party's possession or control shall be returned to the
disclosing Party or destroyed by the receiving Party at the receiving Party's
option (except when that termination or expiration is in connection with a
Release Condition, in which case copies need to be returned upon expiration of
the license in Section 8.6(c)). The receiving Party shall then certify the same
in writing and that no copies have been retained by the receiving Party or its
employees or agents.
9.5 Independent Development. Nothing in this Section shall limit either
-----------------------
Party's right to independently develop information, materials, technology, or
other products or services for itself or for others which may compete with the
other Party or which may be similar to the Confidential Information of the other
Party, as the case may be, provided that in so doing no unauthorized disclosures
or uses of the other Party's Confidential Information are made and none of the
other Party's intellectual property is infringed. For Compaq, this Section is
subject to Section 8.6(c).
9.6 Similar Services. Subject to the restrictions in this Section,
----------------
Section 3 and Section 4.4 of this Agreement, and Altiris' compliance with the
confidentiality provisions stated herein, nothing in this Agreement shall
restrict or limit Altiris from performing the same or similar services for, or
providing the same or similar products to, any other entity in any industry,
including the computer, software, semiconductor and electronics industries.
Compaq agrees that, except as otherwise provided for in this Agreement, Altiris
and its employees may provide services similar in nature to the services under
this Agreement for any third parties both during and after the term of this
Agreement.
9.7 Injunctive Relief. Each Party acknowledges that unauthorized
-----------------
disclosure or use of the disclosing Party's Confidential Information may cause
irreparable harm to the disclosing Party for which recovery of money damages may
be inadequate, and the disclosing Party shall therefore be entitled to seek
timely injunctive relief to protect its rights under this Agreement, in addition
to any and all remedies available at law.
24
10. Warranties, Disclaimers, Indemnification, and Limitation on Liability.
----------------------------------------------------------------------
10.1 Warranty of Non-infringement. Altiris warrants to Compaq that
----------------------------
it owns or has license rights to the Licensed Software, has the right to grant
the licenses granted hereunder and under the End User License Agreements without
breaching any other agreement, and the Licensed Software as delivered to Compaq,
its use and the exercise of the other rights to the Licensed Software granted
under this Agreement and in the End User License Agreements, will not infringe
or misappropriate any Intellectual Property Right held by any third party.
Compaq's exclusive remedy and Altiris' entire liability for any breach of this
warranty shall be the remedies specified in Section 10.5 of this Agreement.
10.2 Warranty of Conformance. At the time of delivery of the Gold
-----------------------
Software for the applicable phase and for a period of [*] after the first
shipment of the Licensed Software for the applicable phase, the Licensed
Software included in that delivery will conform in all material respects to, and
substantially comply with, the specifications in the applicable SOW and Schedule
1.2 of Exhibit A. Compaq's exclusive remedy and Altiris' entire liability for
any breach of the foregoing warranty is that Altiris will use reasonable efforts
to repair or replace the Licensed Software so that it does materially conform
to, and substantially comply with, such specifications; provided, that, if
Altiris is unable to make such repair or replacement and determines that it is
commercially unreasonable to have that Licensed Software comply with and conform
to the above warranty, then Altiris shall so notify Compaq and Compaq may either
(a) accept that Licensed Software without requiring further modifications for
conformance or (b) elect to terminate the license with respect to that
particular Licensed Software. Such termination is otherwise subject to the terms
and conditions of Section 11.5, except that (x) if the Licensed Software is for
Quick Silver [*], then Compaq will be entitled to receive (for internal use,
resale or distribution), without cost, [*] licenses (measured by number of Intel
Compatible Servers) of version 5.1 of Altiris eXpress under and otherwise
subject to all of the terms of the ABG Agreement, but for deployment or
redeployment of Compaq Products, or (y) if the Licensed Software is for Quick
Silver [*] or Quick Silver [*], Compaq will be entitled to receive (for internal
use, resale or distribution), without cost, 10,000 licenses (measured by number
of Intel Compatible Servers) of the most recent version of Quick Silver [*]. The
foregoing remedies and limitations do not affect either party's rights or
obligations pursuant to Section 6.
10.3 Limits on Warranties. The foregoing warranties do not apply,
--------------------
and Altiris shall have no liability for any claims arising out of: (i) Compaq's
use of other than a current unaltered release of the Licensed Software provided
to Compaq; (ii) Compaq's use of the Licensed Software modified by or merged with
any other programs by Compaq or others without the approval of Altiris, (iii)
Compaq's use of the Licensed Software in combination with any other software not
approved by Altiris, or (iv) Compaq's use of the Licensed Software in
conjunction with equipment other than the Compaq Products and equipment
designated by Altiris.
________________
*This provision is the subject of a Confidential Treatment Request.
25
10.4 (a) Free to Enter Into Agreement. Each party represents it is free
----------------------------
to enter into this Agreement, and it has full legal power and authority to enter
into this Agreement.
(b) Warranty Disclaimer. Except as specifically set forth in this
-------------------
Article 10 and 8.6(f) and (g), Altiris makes no warranties, representations or
conditions regarding the Licensed Software. ALTIRIS SPECIFICALLY DISCLAIMS ANY
AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING OUT OF A COURSE
OF DEALING, SPECIFICALLY INCLUDING ANY WARRANTY AGAINST INFRINGEMENT, AND THE
WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.5 Infringement Indemnity.
----------------------
(a) Indemnity. Altiris shall defend or settle at Altiris' expense
---------
any claim ("Claim") brought against Compaq to the extent based on a breach of
the warranty in Section 10.1 above, including a claim brought by Compaq's
Affiliates or Licensed Distributors as a result of a claim brought against them.
Altiris' obligations set forth above in this Section are subject to the
conditions that Compaq: (i) gives Altiris the exclusive authority to control and
direct the defense and settlement of such Claim and (ii) gives Altiris at
Compaq's own expense (except for out-of-pocket expenses incurred in complying
with Altiris' requests which will be paid by Altiris), all necessary information
and reasonable assistance with respect to such Claim. Compaq shall give prompt
notice of the Claim to Altiris; provided, however, that the failure to give such
notice shall only affect Altiris' obligations under this Section to the extent
Altiris is prejudiced thereby. Altiris shall pay all amounts paid in settlement
and all damages and costs awarded to such third party with respect a final
resolution of such Claim, including costs and expenses associated with an action
required in an award granted to such third party. If Altiris falls to
affirmatively defend the claim at its own expense (as described above), then
Compaq may undertake the defense or settlement of such claim with its own
counsel on behalf of and for the account and risk of Altiris (including a right
to be reimbursed any reasonable amount spent in such defense). Altiris will not
be liable for any other damages of Compaq or for any other costs or expenses
incurred by Compaq as a result of such Claim, including any incidental or
consequential damages.
Replacement Software. If any particular Licensed Software is
--------------------
subject to a Claim, or Altiris reasonably believes that the Licensed Software
may become subject to a Claim, then Altiris may, at its sole option and expense
do one of the following: (i) obtain an appropriate (b) license to allow
continued use of the Licensed Software in question in accordance with this
Agreement; (ii) replace such Licensed Software with non-infringing software of
substantially equivalent or better functions and efficiency; or (iii) if Altiris
in its sole discretion believes that either of the foregoing options is not
commercially practical, terminate Compaq's right to use or distribute such
Licensed Software, in which case Altiris shall refund the amount Compaq
previously paid to Altiris for the use by Compaq of such Licensed Software, less
a portion thereof to account for the period of use.
The portion shall be a pro-rated portion based on a four (4)-year useful
life. For example, if the period of use is three years, then the portion
refunded shall equal 25%. The obligations and rights in this Section 10.5(b) are
in addition to, and not exclusive of, those in Section 10.5(a).
26
(c) Limit on Indemnity. The foregoing notwithstanding, Altiris
------------------
shall have no liability or obligation for a Claim (whether by Compaq or through
Compaq by its Licensed Distributors and Affiliates) to the extent it is based on
(i) the use or distribution by Compaq of any Licensed Software after Altiris has
provided Compaq a replacement as specified in Section 10.5(b) above; (ii) the
combination of any Licensed Software with other software, equipment, materials
or products not provided by Altiris other than the Compaq Products (but not to
the extent the damage or liability results from Compaq's failure to comply with
Altiris' specific reasonable written request to take steps to avoid such
infringement), (iii) unrelated intellectual property infringement, arising from
Compaq's distribution of products, (iv) the modification of any of the Licensed
Software by anyone other than Altiris, or (v) the use of the Licensed Software
in a process or manner not contemplated by Altiris' end-user documentation or
publications for the Licensed Software provided to Compaq.
10.6 Limitations of Liability. UNLESS A REFERENCE IS MADE THAT
EXPLICITLY PROVIDES THAT A LIABILITY OR OBLIGATION IS NOT SUBJECT TO OR LIMITED
BY THIS SECTION 10.6 AND EXCEPT FOR ALTIRIS' OBLIGATIONS TO COMPAQ PURSUANT TO
SECTION 10.5, THE LIABILITY OF ALTIRIS AND OF ALTIRIS' OFFICERS, DIRECTORS,
EMPLOYEES, AND AGENTS, TAKEN AS A WHOLE, WHETHER IN TORT, CONTRACT OR OTHERWISE,
AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY
OF ALTIRIS OR OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OR FAILURE OF
ESSENTIAL PURPOSE, WITH REGARD TO THIS AGREEMENT AND/OR ANY LICENSED SOFTWARE,
DOCUMENTATION, SERVICES OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT, SHALL IN
NO EVENT EXCEED THE COMPENSATION PAID OR PAYABLE BY COMPAQ TO ALTIRIS UNDER THIS
AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT UNLESS A
REFERENCE IS MADE THAT EXPLICITLY PROVIDES THAT A LIABILITY OR OBLIGATION IS NOT
SUBJECT TO OR LIMITED BY THIS SECTION 10.6, EXCEPT FOR ALTIRIS' OBLIGATIONS TO
COMPAQ PURSUANT TO SECTION 10.5, IN NO EVENT SHALL EITHER PARTY, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, COVER, OR ANY LOSS OF DATA,
PROFIT, REVENUE OR USE UNDER ANY THEORY OF LAW OR FOR ANY CAUSE OF ACTION.
HOWEVER, THIS SHALL NOT APPLY TO OR LIMIT ANY CLAIMS OR REMEDIES FOR THE
INFRINGEMENT OR MISAPPROPRIATION OF ALTIRIS' INTELLECTUAL PROPERTY OR THE
UNLICENSED COPYING OR DISTRIBUTION OF ANY LICENSED SOFTWARE.
11. Term and Termination.
--------------------
11.1 Term. This Agreement shall commence upon the Effective Date and
----
shall remain in full force and effect for an initial period lasting from the
Effective Date for a period of
27
four (4) years after the delivery to and acceptance by Compaq of the Gold
Software for Quick Silver [*] of the Licensed Software ("Initial Term").
11.2 Termination for Cause. Either party may terminate this Agreement
---------------------
upon written notice to the other of the occurrence of any material breach of the
other party's representations, warranties, covenants, obligations or other
agreements, if the breaching party has not cured such breach: (i) for material
breaches of confidentiality or license terms, for a period of thirty (30) days
after receipt of a written notice from the non-breaching party with respect to
such breach; and (ii) for other material breaches, for a period of sixty (60)
days after receipt of written notice from the non-breaching party with respect
to such breach.
11.3 Termination for Insolvency, Etc. Either party may terminate this
-------------------------------
Agreement effective upon written notice to the other party in the event that (i)
the other party files a petition in or is subject to any proceeding related to
insolvency or bankruptcy, or permits the appointment of a trustee in bankruptcy,
and that petition, proceeding or appointment is not dismissed within ninety (90)
days thereafter; or (ii) the other party is voluntarily or involuntarily wound
up, liquidated or dissolved.
11.4 Termination by Compaq. Compaq may elect to terminate this
---------------------
Agreement effective upon thirty (30) days prior written notice within six (6)
months after a Competitive Acquisition, provided however, such termination shall
not relieve Compaq of its responsibility for the payment of all royalties
incurred prior to the date of such termination.
11.5 Survival. The provisions of this Agreement, which by their nature
--------
are intended to survive expiration or termination (namely, the allocations of
responsibility described in Section 3.6, 3.7, and 3.8; Section 3.5; the tax,
payment and audit provisions in Article 7 (to the extent applicable); the
intellectual property provisions in Sections 8.1, 8.2, 8.3, 8.4, 8.5, 8.6(e);
the licenses in Section 8.6 per their terms; Section 8.6(f) and (g); Sections 9,
10, 11.5, 12 and 13; the obligations to defend, settle or pay any third party
claim (which will survive until one month after the expiration of any underlying
statute of limitations); and any provisions necessary for interpretation) shall
survive expiration or termination of this Agreement, as do any obligations to
pay royalties or provide refunds that accrued prior to or in connection with
termination or expiration. All other rights and obligations of the parties,
including the licenses granted by Altiris to the Licensed Software, shall cease
upon termination of this Agreement except as otherwise expressly provided.
11.6 Renewal. This Agreement shall be renewable at Compaq's option
-------
(each term for which renewal is elected is a "Compaq Renewal") to be exercised
upon written notice to Altiris at least 90 days prior to the end of the Initial
Term or the then applicable yearly extension period for an additional one year
period for up to four years. During each of the additional one-year Compaq
Renewals, at Compaq's option and election (which may be made at any time prior
to the commencement of the then forthcoming applicable Compaq Renewal), either
(a) pay to Altiris [*]
_______________
*This provision is the subject of a Confidential Treatment Request.
28
on the date of renewal (which amount is not considered prepaid royalties) for
each Compaq Renewal or (b) decline to pay to Altiris [*], in which case Compaq
would be deemed to have a license to the Licensed Software subject to a royalty
of [*] of then-current average price paid by Altiris' distributors for the
Licensed Software (i.e., there would be no right to distribute without
additional charge or payment to Altiris). During the period of a Compaq Renewal
all of the terms of this Agreement continue in full force and effect, except for
(x) those that are explicitly stated in this Agreement as terminating, (y)
Compaq's right to obtain a release of the source code pursuant to Section 8.6,
and Altiris' obligation to maintain the escrow account and (z) Section 4.4 and
Section 4.5, each of which terminates upon the end of the Initial Term.
12. Dispute Resolution.
------------------
12.1 Without waiving any rights, the Parties agree to use
commercially reasonable efforts to resolve between themselves any disputes
arising under this Agreement. If the persons responsible for the day-to-day
administration of this Agreement are unable to resolve the dispute, it shall be
referred to successively higher executives within each company.
12.2 Except as provided below, in the event that the dispute
cannot otherwise be settled by the management of the Parties after a good faith
attempt, the Parties agree to resolve such dispute by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association or
its successor. In the event of any conflict between such rules and this Section,
this Section shall govern. The Parties shall attempt to mutually agree upon a
neutral arbitrator. If the Parties cannot reach such agreement, they shall
request the American Arbitration Association or its successor to designate a
neutral arbitrator. The arbitration shall be conducted in Salt Lake City, Utah
if the arbitration is demanded or initiated by Compaq. The arbitration shall be
conducted in Houston, Texas if the arbitration is demanded or initiated by
Altiris. The institution of any arbitration proceeding hereunder shall not
relieve any Party of its obligation to make undisputed payments under this
Agreement. The decision by the arbitrator shall be binding and conclusive upon
the Parties, their successors, assigns and trustees and they shall comply with
such decision in good faith, and each Party hereby submits itself to the
jurisdiction of the courts of the place where the arbitration is held, but only
for the entry of judgment or for the enforcement of the decision of the
arbitrator hereunder. Judgment upon the award may be entered in any court having
jurisdiction. Notwithstanding anything herein to the contrary, neither Party has
any obligation to arbitrate any claims relating to the infringement or violation
of its copyrights or other intellectual property or the unlicensed use,
disclosure or transfer of any of its software or products. Such Party may assert
such claims in any court of competent jurisdiction at any time. Furthermore,
nothing herein shall prohibit either Party from seeking judicial relief if such
Party would be materially prejudiced by a failure to act during the time that
such good faith efforts are being made to resolve the dispute.
13. Miscellaneous Provisions.
------------------------
13.1 Cooperation. Each Party shall cooperate with the other Party
-----------
in performing work and obligations under this Agreement so as to minimize any
interference with the other activities of both Parties, to protect the safety
and health of the employees, agents and visitors of
29
both Parties, and to safeguard the security and integrity of the property and
the work sites of both Parties.
13.2 Independent Contractors. The Parties are independent contractors,
-----------------------
and nothing contained in this Agreement shall be construed to create or imply a
joint venture, partnership, principal-agent or employment relationship between
the Parties. Neither Party shall take any action or permit any action to be
taken on its behalf which purports to be done in the name of or on behalf of the
other Party and shall have no power or authority to bind the other Party, to
assume or create any obligation or responsibility express or implied on the
other Party's behalf or in its name, nor shall such Party represent to any one
that it has such power or authority.
13.3 References. Unless otherwise indicated, (a) all section references
----------
are to the sections of this Agreement and (b) all references to days are to
calendar days. The headings used in this Agreement are provided for convenience
only and this Agreement shall be interpreted without reference to any headings.
13.4 Notices. Notices to be given or submitted by either Party to the
-------
other pursuant to this Agreement shall be in writing and sent by registered mail
(although they may be effective as of one business day after sending in a
facsimile) and directed in the case of Compaq to the address above, Attn:
Contracts Manager, and in the case of Altiris to the address above, Attn:
President.
13.5 Severability. If any term or provision of this Agreement is
------------
invalid or unenforceable for any reason, the term or provision shall be adjusted
rather than voided, if possible, to achieve the intent of the parties to extent
possible. If not possible, then the term or provision shall be severed from this
Agreement and void ab initio. In any event, all other terms and provisions shall
not be affected thereby and shall be deemed valid and enforceable to the maximum
extent possible.
13.6 Force Majeure. Neither Party shall be liable to the other Party
-------------
for any loss, damage, or penalty arising from delay due to causes beyond its
reasonable control including acts of God, acts of government, war, riots, or
embargoes. But if the Force Majeure event lasts for more than ninety (90) days,
either Party shall have the right to terminate this Agreement.
13.7 Assignment. Notwithstanding anything in this Agreement to the
----------
contrary, all consideration, obligations, rights and activities owed by a Party
to the other Party under this Agreement shall be owed by such Party to any
successor or assign of the other Party; provided, however, that neither Party
may assign or delegate all or any part of its rights or obligations under this
Agreement without the prior written consent of the other Party, except to an
entity (including an Affiliate) that succeeds to all or substantially all of the
business assets of such Party applicable to the subject matter of this Agreement
and with respect to Compaq to any of its Affiliates (provided that such entity
agrees to be bound by all the rights, obligations and other terms and conditions
of this Agreement). Any attempted assignment or delegation without such consent,
except as expressly set forth herein, will be void, or at the non-assigning
Party's sole discretion, may be treated as fully binding upon and in force and
effect against any such successor or assign.
13.8 Export Administration. If any Licensed Software is for use or
---------------------
distribution outside the U.S.A., Compaq agrees to comply fully with all relevant
export laws and the regulations
30
of the U.S. Department of Commerce and with the U.S. Export Administration Act
to assure that such are not exported in violation of United States law and to
comply fully with any other regulations or laws relating to such export or
import into another country. Compaq shall be responsible for any duties, customs
charges or other taxes or fees relating to such exports or imports.
13.9 Complete Agreement. Each Party acknowledges that it has
------------------
read, understands and agrees to be bound by this Agreement, and that this
Agreement including any exhibits, acceptance criteria, schedule, any subsequent
attachments or amendments, and the Escrow Agreement, the support implementation
plan, and the Internal Training Organization Agreement, are the complete and
exclusive statements of the agreement between the parties regarding the subject
matter hereof, which supersedes all proposals, oral or written, all other
communications between the parties relating to such subject matter.
13.10 Modification. Compaq agrees that any terms and conditions
------------
of any purchase order or other instrument issued by Compaq in connection with
this Agreement that are in addition to or inconsistent with the terms and
conditions of this Agreement shall be of no force or effect. This Agreement may
be modified only by a written instrument duly executed by an authorized
representative of Altiris and Compaq.
13.11 No Waiver. The failure of a Party to enforce any provision
---------
of this Agreement shall not constitute a waiver of such provision or the right
of such Party to enforce such provision or any other provision.
13.12 Authorization. This Agreement and any supplement to it
-------------
shall be binding on the parties only after acceptance by officers or authorized
representatives of Altiris and Compaq.
13.13 Publicity. All notices to third parties and all other
---------
publicity concerning the transactions contemplated by this Agreement shall be
jointly planned and coordinated by and between the parties. Neither of the
parties shall act unilaterally in this regard without the prior written approval
of the other Party; however, this approval shall not be unreasonably withheld.
13.14 Drafter. No Party will be deemed the drafter of this
-------
Agreement, which Agreement will be deemed to have been jointly prepared by the
parties. If this Agreement is ever construed, whether by a court or by an
arbitrator, such court or arbitrator will not construe this Agreement or any
provision hereof against any Party as drafter.
13.15 Execution. This Agreement may be executed in duplicate
---------
originals, all of which shall constitute one and the same agreement. 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.
31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first stated above.
Altiris, Inc. Compaq Computer Corporation
By: /s/ Xxx Xxxxxxx By: /s/ Xxx Xxxxxxxx
--------------------------------- ------------------------------
Print Name: Xxx Xxxxxxx Print Name: Xxx Xxxxxxxx
--------------------------- -----------------------
Title: VP Strategic Alliance Title: Director
-------------------------------- ----------------------------
Date: August 21, 2001 Date: 8/8/01
--------------------------------- -----------------------------
32
EXHIBIT A
SCHEDULES
Schedule 1.2: Licensed Software
The components listed below are the current planned components for the
Licensed Software. However, Altiris may, at its discretion, modify, remove,
replace or add to the following list of components, so long as with respect to
any component that is used to deploy or redeploy the Compaq Products the
functionality is substantially similar with respect to the Compaq Products.
1. Altiris eXpress Deployment Server Description
This is a high-level description of the eXpress Deployment Server product
as it exists prior to modifications planned in Quick Silver [*] , where
functionality will be extended to provide support for client servers.
Altiris eXpress Deployment Server consists of the following components:
. Console
. Server
. Control Panel applet
. SQL7 MSDE database engine
. PXE Server package
. Aclient
. Bootworks
. Remote Client Install Utility
. RapiDeploy components
. Boot Disk Creator
- Bootworks install (DOS and NT)
- MS Client and drivers (pre-unpacked)
- NetX client and drivers (pre-unpacked)
- Client 32 and drivers (pre-unpacked)
- Appropriate boot records
. SIDgen
. AutoImager
. Image Explorer
. FIRM
. IB Client
. IB Master
_____________________________
*This provision is the subject of a Confidential Treatment Request.
33
. IB Reader
. RapidInstall 3.0
. License.exe
. Documentation for all components, including:
. Getting Started Guide
. User Guide
. Help files
Description of the Components
The Console provides an interface for hands-free deployment and management of
Windows 9x, Me, XX, 0000, and XP (beta 2) PCs.
The Server controls communication between the client PCs, the Console, and the
Database.
The Deployment Server Control Panel Applet is a utility added to the Windows
Control Panel and allows administration of the Server component.
The Database, which is a MS SQL 7, 2000, or MSDE database, stores information
regarding client PC properties, history, and current state, along with
Deployment Server events.
The PXE Server, which works in conjunction with DHCP, allows client PCs that
support PXE (Preboot eXecution Environment) to connect to the network and carry
out tasks before the OS loads. It also supports BIS (Boot Integrity Services)
which uses signed certificates for security reasons to ensure that clients do
not connect to a rogue PXE server.
Aclient, the eXpress Windows client, resides on client PCs. It returns device
properties to the Database and allows the eXpress Deployment Server to
communicate with and control the devices. It also provides administrator rights
for carrying out commands that would require an administrator if executed
directly on the device.
Bootworks, the eXpress DOS client, resides on client PCs that do not support
PXE. It provides clients the ability to connect to the network before the OS
loads, so that imaging and other DOS-level tasks can execute. It is also used
(alone or in conjunction with PXE) to provide communication between the
Deployment Server and the client PC.
Remote Client Install Utility enables administrators to install the Altiris
clients on NT and 2000 PCs without visiting each one.
RapiDeploy is the brand name of the Licensed Software feature that shares the
technology used by eXpress Deployment Server to clone the contents of PC or
server hard drives or partitions. It also includes technology for backing up and
restoring the registry under DOS, and for changing the SID (NT security ID).
Boot Disk Creator is a utility integrated into eXpress Deployment Server (as
well as other Altiris products), which allows users to create and edit network
boot disks or PXE images.
34
RapidInstall is the brand name of the Licensed Software feature that shares the
technology used by eXpress Deployment Server to create packages (RIPs) for
distributing software changes (such as drivers, applications, patches, etc.) to
client PCs.
License.exe provides the mechanism for licensing the various technologies.
35
Schedule 1.3
[*]
_____________________________
*This provision is the subject of a Confidential Treatment Request.
36
Schedule 8.6(f)
Excluded Source Code
Restrictions
------------
Objective Toolkit by Stingray 6.01 Both
source: xxx.xxxxxxxx.xxx
WDosx (DOS extender) Both
source: xxx.xxxxxxx.xxxxx.xx.xx
STLPort (STL Libraries) 3.12.3 & 4.0 Both
source: xxx.xxxxxxx.xxx
LZS221 Compression libraries Both
source: xxx.xxxx.xxx
Zinc (Cross platform Libraries) Both
source: xxx.xxxxxxxxx.xxx/xxxxxxxx/xxxx/xxxx0_xx.xxxx
Novell DOS Client Software Both
source: Novell Inc.
Microsoft DOS Client Software Both
source: Microsoft, Inc.
Intel PXE Both
source: Intel
CDSA and BIS Both
source: xxx.XxxxxxXxxxx.xxx
Microsoft Platform SDK and DDK Both
source: Microsoft
Wattcom 11.0b compiler for Dos Stuff Both
Microsoft MSDE version 7
source: Microsoft
InstallShield Professional 5.5 (and updates) (and international pack) Both
source: xxx.xxxxxxxxxxxxx.xxx
---------------------
InstallShield Professional 6.0 (and updates) (and international pack) Both
source: xxx.xxxxxxxxxxxxx.xxx
---------------------
InstallShield Windows Installer Edition 2.0 Both
source: xxx.xxxxxxxxxxxxx.xxx
---------------------
Windows 2000 SDK Both
source: xxx.xxxxxxxxx.xxx
-----------------
WMI SDK Both
source: xxx.xxxxxxxxx.xxx
-----------------
Windows 2000 DDK Both
source: xxx.xxxxxxxxx.xxx
-----------------
37
EXHIBIT B
TO THE LICENSE AND DISTRIBUTION AGREEMENT
Transactions performed under the Statement of Work (SOW) set forth below
will be conducted in accordance with and be subject to the terms and conditions
of this SOW and this Agreement. Compaq shall have the right to duplicate, use,
or disclose the information to the extent provided by the contract. This
restriction does not otherwise limit any of Compaq's confidentiality obligations
pursuant to this Agreement. In the event there is a conflict of terms or
definitions between this Agreement and this Exhibit, the terms contained herein
shall have precedence only as they pertain to this Exhibit. In the event there
is a conflict of terms or definitions between this Agreement and this Exhibit,
the terms contained herein shall have precedence only as they pertain to this
Exhibit.
38
QUICKSILVER
STATEMENT OF WORK
Confidentiality Notice
Contents of this document are confidential in nature and shall not be
revealed to any party other without prior explicit written permission of Compaq
Computer Corporation and Altiris Corporation.
[*]
_________________________
*This provision is the subject of a Confidential Treatment Request.
1
EXHIBIT C
TO THE
LICENSE AND DISTRIBUTION AGREEMENT
CO-MARKETING LIST
Within sixty (60) days of execution of this Agreement, both parties
mutually agree to jointly plan, define, and execute marketing programs in order
to promote Compaq products and Joint Products. Such programs and activities may
include subject to this Agreement of the parties, but are not limited to, the
following:
Potential Compaq Activities:
---------------------------
. Recommend, promote and package Altiris eXpress as part of ProLiant rapid
deployment solution
. Drive acceptance and availability of the Licensed Software to the broader
Industry Standard Server Marketplace
. Provide Project Lead for development activities
. Provide Project Lead for Go To Market activities
. Assign dedicated program management and product marketing resources to the
Licensed Software
. Install the Licensed Software in Compaq demo centers
. Provide field marketing and pre-sales support in predefined markets plus
in Technology Centers and/or joint customers
. Promote Altiris as one of its leading platform choices
. Use/recommend Altiris IT product for hosting engagements
. Use/recommend Altiris IT product to Compaq engagements
. Permit Altiris to include on Altiris' web site(s), hypertext links
(whether in graphical, text or other format) enabling "point and click"
access to such portions of Compaq's web site(s) designated by Compaq, and
in a prominent place on the xxx.xxxxxx.xxx /ALTIRIS(?) web home page
--------------
include hypertext links (whether in graphical, text or other format)
enabling "point and click" access to such portions of such ALTIRIS web
site(s) designated by ALTIRIS.
. Promote Altiris as the preferred server deployment and management solution
1
. Allow some marketing material either in the server box or in the Joint
Product itself promoting Altiris and some fee-based solutions to which
both parties mutually agree
Potential Altiris Activities:
----------------------------
. Recommend, promote and package Compaq Product as part of Altiris' rapid
deployment solution
. Provide Project Lead for development activities
. Provide Project Lead for Go To Market activities
. Assign dedicated program management and product marketing resources to
Compaq products
. Provide a press release within thirty (30) days of signed agreement
. Provide a training and or certification program for Compaq's consulting
and field sales professionals on the platform
. Promote Compaq as the preferred platform choice
. Use/recommend Compaq SP partners for hosting engagements
. Use/recommend Compaq IT infrastructure to Altiris engagements
. Promote Compaq as one of its leading platform partners and the preferred
hardware vendor for those customers requiring mainframe strength,
reliability, scalability and time-to-market advantages
. Permit Compaq to include on Compaq's web site(s), hypertext links (whether
in graphical, text or other format) enabling "point and click" access to
such portions of Altiris' web site(s) designated by Altiris, and in a
prominent place on the xxx.xxxxxxx.xxx\compaq(?) web home page include
---------------
hypertext links (whether in graphical, text or other format) enabling
"point and click" access to such portions of such Compaq's web site(s)
designated by Compaq
. Compaq may promote Altiris as the preferred server deployment and
management solution. Compaq may allow some marketing material either in
the server box or in the Joint Product itself promoting Altiris and some
fee-based solutions to which both parties mutually agree.
Potential Joint Activities:
--------------------------
Compaq and Altiris may hold quarterly meetings to review the progress of
the relationship created by this Agreement. Such reviews may include discussion
of the following topics:
. Relationship status
. Top 20 opportunities
2
. Joint marketing programs
. Shipment status
. Roadmap
. Procedures for executive escalation for any disagreements between the
parties and any current, potential problems between the parties
. Marketing development
Both parties may:
. Work together to produce marketing collateral and white papers for
inclusion in ActiveAnswers
. Conduct regular telemarketing, demand, and lead generation programs
3
EXHIBIT D
TO THE
LICENSE AND DISTRIBUTION AGREEMENT
"Escrow Agreement"
1
MASTER PREFERRED ESCROW AGREEMENT
Master Number 0112162
---------------
This agreement "Agreement" is effective April 26, 2001 among DSI Technology
--
Escrow Services, Inc. ("DSI"), Altiris, Inc. ("Depositor") and any additional
party signing the Acceptance Form attached to this Agreement ("Preferred
Beneficiary"), who collectively may be referred to in this Agreement as the
parties ("Parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor (referred to in this Agreement as
the "License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is
critical to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 00 Xxxxxx Xxxxxx [Bankruptcy] Code, Section 365(n).
ARTICLE I
DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
--------------------------
parties, including the signing of the Acceptance Form, and Exhibit D naming the
Deposit Account, Depositor shall deliver to DSI the proprietary technology and
other materials ("Deposit Materials") required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary, DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
--------------------------------
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.
1.3 Escrow Account Name Identification. Subject to this Article 1, and at
----------------------------------
the time Depositor makes the initial deposit with DSI in accordance with Section
1.2 above, Depositor shall complete and sign Exhibit D naming the initial
deposit/account. Any new deposits referencing new account names made subsequent
to the signing of this Agreement, intended by the Depositor to be held in a
separate account and maintained separately from the initial account, but made a
part of this Agreement, shall be provided for by the Depositor on Exhibit E, and
Exhibit E shall be signed by the Depositor and DSI.
1.4 Deposit Inspection. When DSI receives the Deposit Materials and
------------------
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on Exhibit B. In addition to the deposit
inspection, Preferred Beneficiary may elect to cause a verification of the
Deposit Materials in accordance with Section 1.7 below.
1.5 Acceptance of Deposit. At completion of the deposit inspection, if DSI
---------------------
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI.
1.6 Depositor's Representations. Depositor represents to DSI as follows:
---------------------------
Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as provided
in this Agreement;
The Deposit Materials are not subject to any lien or other
encumbrance;
The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as the case
may be; and
The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials is encrypted, the decryption tools
and decryption keys have also been deposited.
1.7 Verification. Preferred Beneficiary shall have the right, at Preferred
------------
Beneficiary's expense, to cause a verification of any Deposit Materials that
have been delivered by Depositor to DSI pursuant to this Agreement. Preferred
Beneficiary shall notify Depositor and DSI in writing of Preferred Beneficiary's
request for verification. Depositor shall have the right to be present at the
verification. A verification determines, in different levels of detail, the
accuracy, completeness, sufficiency and quality of the Deposit Materials. Only
DSI may perform the verification.
1.8 Deposit Updates. Unless otherwise provided by the License Agreement,
---------------
Depositor shall update the Deposit Materials within 60 days of each release of a
new version of the product
-2-
which is subject to the License Agreement. Such updates will be added to the
existing deposit. All deposit updates shall be listed on a new Exhibit B and the
new Exhibit B shall be signed by Depositor. Each Exhibit B will be held and
maintained separately within the escrow account. An independent record will be
created which will document the activity for each Exhibit B. The processing of
all deposit updates shall be in accordance with Sections 1.2 through 1.5 above.
All references in this Agreement to the Deposit Materials shall include the
initial Deposit Materials and any updates.
1.9 Removal of Deposit Materials. The Deposit Materials may be removed
----------------------------
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
1. ARTICLE 2
2. CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
---------------
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI and shall protect the confidentiality of the Deposit
Materials. Except as expressly provided in this Agreement, DSI shall not
disclose, transfer, make available, or use the Deposit Materials. DSI shall not
disclose the content of this Agreement to any third party. If DSI receives a
subpoena or any other order from a court or other judicial tribunal pertaining
to the disclosure or release of the Deposit Materials, DSI will immediately
notify the parties to this Agreement unless prohibited by law. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge any such
order; however, DSI does not waive its rights to present its position with
respect to any such order. DSI will not be required to disobey any order from a
court or other judicial tribunal. (See Section 7.5 below for notices of
requested orders.)
2.2 Status Reports. DSI will, at no additional charge, issue to Depositor
--------------
and Preferred Beneficiary a report profiling the account history at least
semi-annually. DSI may provide copies of the account history pertaining to this
Agreement upon the request of any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and
------------
Preferred Beneficiary shall each have the right to inspect the written records
of DSI pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
3. ARTICLE 3
GRANT OF RIGHTS TO DSI
1.1 3.1 Title to Media. Depositor hereby transfers to DSI the title to the
--------------
media upon which the proprietary technology and materials are written or stored;
however, the use of such media is strictly governed by this Agreement. Further,
Depositor does not transfer any ownership of any other tangible or intangible
property, including, without limitation, the proprietary technology and
materials contained on the media and any copyright, trade secret, patent or
other intellectual property rights associated with such technology and
materials. DSI acknowledges that any such copyrights, trade secrets, patent
rights and other intellectual property in or to such proprietary technology and
-3-
materials are and will remain the exclusive property of Depositor and/or
Depositor's licensor(s), if any.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
--------------------
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
accurately copy all copyright, nondisclosure, and other proprietary notices and
titles contained on the Deposit Materials onto any copies made by DSI. With all
Deposit Materials submitted to DSI, Depositor shall provide any and all
instructions as may be necessary to duplicate the Deposit Materials including
but not limited to the hardware and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the
------------------------------
right to transfer Deposit Materials to Preferred Beneficiary only upon the
occurrence of a Release Condition (as defined in Section 4.1) and the complete
satisfaction of all other release terms and conditions set forth in Sections
4.2, 4.3 and 4.4. Upon such release, Preferred Beneficiary may use the Deposit
Materials only as permitted in accordance with Section 4.5. Except upon such a
release, DSI shall not transfer the Deposit Materials. Notwithstanding anything
in this Agreement to the contrary, Preferred Beneficiary is not entitled to
receive any Deposit Materials that correspond to versions of Depositor's
software products that are not licensed or provided by Depositor to Preferred
Beneficiary under the License Agreement (e.g. if the Deposit Materials
correspond to versions 1.0 and 2.0 of a software product, but only version 1.0
was licensed to the Preferred Beneficiary under the License Agreement, then
Preferred Beneficiary is only entitled to a release of the Deposit Materials
that corresponds to version 1.0). Preferred Beneficiary shall include in its
notice under Section 4.2 below a statement specifically identifying the Deposit
Materials (including the specific version(s) of software) to which it is
entitled.
4. ARTICLE 4
RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition"
------------------
shall mean the following:
(a) Depositor's failure to carry out obligations imposed on it
pursuant to the License Agreement, which failure entitles Preferred Beneficiary
to the Deposit Materials under the express terms of the License Agreement.
4.2 Filing For Release. If Preferred Beneficiary believes in good faith
------------------
that a Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials by Exhibit B number. (The Exhibit B number is
found on the bottom right-hand corner of the Ex. B). Upon receipt of such
notice, DSI shall provide a copy of the notice to Depositor by commercial
express mail.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
---------------------
release of the Deposit Materials, Depositor shall have 15 business days to
deliver to DSI contrary instructions ("Contrary Instructions"). Contrary
Instructions shall mean the written representation by Depositor that a Release
Condition has not occurred or has been cured, or that Preferred Beneficiary's
request for release by Exhibit B number is otherwise not accurate. Upon receipt
of Contrary Instructions, DSI shall send a copy to Preferred Beneficiary by
commercial express mail. Additionally, DSI shall notify both Depositor and
Preferred Beneficiary that there is a dispute to be resolved pursuant to the
-4-
Section 7.3. Subject to Section 5.2 of this Agreement, DSI will continue to
store the Deposit Materials without release pending (a) joint instructions from
Depositor and Preferred Beneficiary; (b) dispute resolution pursuant to Section
7.3; or (c) order of a court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
------------------
the Depositor within the above-referenced 15 business day period, DSI is
authorized (subject to Section 3.3 above) to release the Deposit Materials to
the Preferred Beneficiary. However, DSI is entitled to receive any fees due DSI
before making the release. Any copying expense in excess of $300 will be
chargeable to Preferred Beneficiary. Upon any such release, the escrow
arrangement will terminate as it relates to the Depositor and Preferred
Beneficiary involved in the release.
4.5 Right to Use Following Release. Unless otherwise provided in the
------------------------------
License Agreement, upon release of the Deposit Materials in accordance with this
Article 4, Preferred Beneficiary shall have the right to use the Deposit
Materials solely in the manner and for the sole purpose specified in the License
Agreement, or if not so specified, Preferred Beneficiary will have the right to
use the Deposit Materials only to the extent necessary to continue exercising
its rights under the terms and subject to the conditions expressly set forth in
the License Agreement. Preferred Beneficiary shall be obligated in any event to
strictly maintain the confidentiality of the released Deposit Materials, which
obligation will survive expiration or termination of this Agreement and the
License Agreement.
5. ARTICLE 5
TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period
-----------------
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI
in writing that the Agreement is terminated; (b) Preferred Beneficiary instructs
DSI in writing that the Agreement is terminated as it relates to Preferred
Beneficiary; or (c) DSI instructs Depositor and Preferred Beneficiary in writing
that the Agreement is terminated for nonpayment in accordance with Section 5.2
or by resignation in accordance with Section 5.3. If the Acceptance Form has
been signed at a date later than this Agreement, the initial term of the
Acceptance Form will be for one year with subsequent terms to be adjusted to
match the anniversary date of this Agreement. If the deposit materials are
subject to another escrow agreement with DSI, DSI reserves the right, after the
initial one year term, to adjust the anniversary date of this Agreement to match
the then prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees
--------------------------
owed to DSI, DSI shall provide written notice of delinquency to the parties to
this Agreement affected by such delinquency. Any such party shall have the right
to make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at any
time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Termination by Resignation. DSI reserves the right to terminate this
--------------------------
Agreement, for any reason, by providing Depositor and Preferred Beneficiary with
60-days' written notice of its intent to terminate this Agreement. Within the
60-day period, the Depositor and Preferred
-5-
Beneficiary may provide DSI with joint written instructions authorizing DSI to
forward the Deposit Materials to another escrow company and/or agent or other
designated recipient. If DSI does not receive said joint written instructions
within 60 days of the date of DSI's written termination notice, then DSI shall
destroy, return or otherwise deliver the Deposit Materials in accordance with
Section 5.4.
5.4 Disposition of Deposit Materials Upon Termination. Subject to the
-------------------------------------------------
foregoing termination provisions, and upon termination of this Agreement. DSI
shall destroy, return, or otherwise deliver the Deposit Materials in accordance
with Depositor's instructions. If there are no instructions, DSI may, at its
sole discretion, destroy the Deposit Materials or return them to Depositor. DSI
shall have no obligation to destroy or return the Deposit Materials if the
Deposit Materials are subject to another escrow agreement with DSI or have been
released to the Preferred Beneficiary in accordance with Section 4.4. Upon
Depositor's request, DSI agrees, in the event it destroys the materials as
permitted herein, to certify such destruction in writing.
5.5 Survival of Terms Following Termination. Upon termination of this
---------------------------------------
Agreement, the following provisions of this Agreement shall survive:
(a) Depositor's Representations (Section 1.6);
(b) The obligations of confidentiality with respect to the
Deposit Materials;
(c) The rights granted in the sections entitled Right to
Transfer Upon Release (Section 3.3) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has occurred prior to termination;
(d) The obligation to pay DSI any fees and expenses due;
(e) The provisions of Article 7; and
(f) Any provisions in this Agreement which specifically state
they survive the termination of this Agreement.
6. ARTICLE 6
DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and
------------
expenses applicable to the services provided. DSI shall notify the party
responsible for payment of DSI's fees at least 60 days prior to any increase in
fees. For any service not listed on DSI's standard fee schedule, DSI will
provide a quote prior to rendering the service, if requested.
6.2 Payment Terms. DSI shall not be required to perform any service
-------------
unless the payment for such service and any outstanding balances owed to DSI are
paid in full. Fees are due upon receipt of a signed contract or receipt of the
Deposit Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.
-6-
7. ARTICLE 7
LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
-----------------------------
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI will not
be required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
---------------
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, reasonable attorney's fees and
other liabilities ("Liabilities") incurred by DSI relating in any way to this
escrow arrangement unless such Liabilities were caused solely by the negligence
or willful misconduct of DSI.
Notwithstanding the foregoing, as a condition to such indemnity,
Depositor or Preferred Beneficiary, as the case may be (in either case, the
"indemnifying party"), shall (i) receive from DSI prompt written notice of any
claim for indemnity hereunder and copies of all documents and other information
related to such claim, (ii) receive the reasonable assistance and cooperation of
DSI in the defense of the claim, and (iii) have sole control over such defense,
provided that the indemnifying party prosecute the defense of such claim with
all reasonable diligence and keep DSI and its designated counsel, if any,
apprised of the status of the case. The indemnifying party shall not have access
to any of DSI's confidential or privileged information at any stage in the
defense of any action without DSI's prior written consent. No such claim shall
be settled by an indemnifying party without DSI's consent to the terms of any
such settlement, which consent shall not be unreasonably withheld. Nothing
herein will be construed to prohibit DSI from retaining and paying for its own
legal counsel."
7.3 Dispute Resolution. Any dispute relating to or arising from this
------------------
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. Three arbitrators shall be selected. The
Depositor and Preferred Beneficiary shall each select one arbitrator and the two
chosen arbitrators shall select the third arbitrator, or failing agreement on
the selection of the third arbitrator, the American Arbitration Association
shall select the third arbitrator. However, if DSI is a party to the
arbitration, DSI shall select the third arbitrator. Unless otherwise agreed by
Depositor and Preferred Beneficiary, arbitration will take place in San Diego,
California, USA. Any court having jurisdiction over the matter may enter
judgment on the award of the arbitrator(s). Service of a petition to confirm the
arbitration award may be made by First Class mail or by commercial express mail,
to the attorney for the party or, if unrepresented, to the party at the last
known business address.
7.4 Controlling Law. This Agreement is to be governed and construed in
---------------
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order
-------------------------
from the arbitrator or any court of competent jurisdiction which may direct DSI
to take, or refrain from taking any action, that party shall:
(g) Give DSI at least two business days' prior notice of the
hearing;
-7-
(h) Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such order; and
(i) Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
8. ARTICLE 8
GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance
----------------
Form and Exhibits A, B, C, D and E described herein, embodies the entire
understanding among all of the parties with respect to its subject matter and
supersedes all previous communications, representations or understandings,
either oral or written. DSI is not a party to the License Agreement between
Depositor and Preferred Beneficiary and has no knowledge of any of the terms or
provisions of any such License Agreement. DSI's only obligations to Depositor or
Preferred Beneficiary are as set forth in this Agreement. No amendment or
modification of this Agreement shall be valid or binding unless signed by all
the parties hereto, except that Exhibit A need not be signed by DSI, Exhibit B
need not be signed by Preferred Beneficiary, Exhibit C need not be signed by any
party, Exhibit D need not be signed by Preferred Beneficiary or DSI and the
Acceptance Form need only be signed by the parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other
-------
documents and communications shall be given to the parties at the addresses
specified in the attached Exhibit C and Acceptance Form. It shall be the
responsibility of the parties to notify each other as provided in this Section
in the event of a change of address. The parties shall have the right to rely on
the last known address of the other parties. Unless otherwise provided in this
Agreement, all documents and communications may be delivered by First Class
mail.
8.3 Severability. In the event any provision of this Agreement is found
------------
to be invalid, voidable far unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable provision
most closely reflecting the intent and purpose of the original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to
----------
the benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor or
assign of Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible
-----------
for and warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export laws
and government regulations of any country from or to which the Deposit Materials
may be delivered in accordance with the provisions of this Agreement.
Depositor: Altiris, Inc. DSI Technology Escrow Services, Inc.
-8-
By: By:
__________________________________ _____________________________
Name: Name:
________________________________ ____________________________
Title: Title:
_______________________________ ___________________________
Date: Date:
________________________________ ____________________________
-9-
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number 0000000
------------------
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
____________________________________ ___________________________________
Depositor Preferred Beneficiary
By: By:
______________________________ ______________________________
Name: Name:
______________________________ _____________________________
Title: Title:
______________________________ ____________________________
Date: Date:
______________________________ _____________________________
-10-
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name _________________________________________________________
Account Number _________________________________________________________________
Product Name ____________________________________________ Version ______________
(Product Name will appear as Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
_______ Disk 3.5" or ______
_______ DAT tape ______mm
_______ CD-ROM
_______ Data cartridge tape ______
_______ TK 70 or ______ tape
_______ Magnetic tape ______
_______ Documentation
_______ Other __________________
PRODUCT DESCRIPTION:
Environment ____________________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes/No If yes, please include
any passwords and the decryption tools.
Encryption tool name _________________________________ Version _________________
Hardware required ______________________________________________________________
Software required ______________________________________________________________
Other required information _____________________________________________________
I certify for Depositor that the above-described DSI has inspected and accepted the above
Deposit Materials have been transmitted to DSI: materials (any exceptions are noted above):
Signature ___________________________________________ Signature ___________________________________________
Print Name __________________________________________ Print Name __________________________________________
Date ________________________________________________ Date ________________________________________________
Exhibit B# __________________________________________
Send materials to: DSI, 0000 Xxx Xxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
(000) 000-0000
-11-
EXHIBIT C
DESIGNATED CONTACT
Master Number 0112162
---------------------------
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name: Altiris, Inc. Altiris, Inc.
Address: 355 South 000 Xxxx 000 Xxxxx 000 Xxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
X.X.X. X.X.X.
Designated Contact: Xxxxx XX. Xxxxxxxxxxx Contact: Xxxx Xxxxxxx, Controller
Telephone: (000) 000-0000 _____________________________________
Facsimile: (000) 000-0000 P.O.#, if required: _________________
E-Mail: xxxxxxxxxxxx@xxxxxxx.xxx
Verification Contact: same as Designated Contact
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and notices Invoice inquiries and fee remittances
to DSI should be addressed to: to DSI should be addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Contract Administration PO Box 45156
0000 Xxx Xxxx Xxxxx, Xxxxx 000 Xxx Xxxxxxxxx, XX 00000-0000
Xxx Xxxxx, XX 00000
Telephone: (000) 000-0000 (000) 000-0000
Facsimile: (000) 000-0000 (000) 000-0000
E-Mail: xx@xxxxxxxxx.xxx
Date: _______________________________________
-12-
EXHIBIT D
NAME OF INITIAL ACCOUNT
Account Number 0000000
----------------------------
Altiris, Inc. ("Depositor") has entered into a Master Preferred Escrow Agreement
with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to that Agreement,
Depositor may deposit certain Deposit Materials with DSI.
The initial account will be referenced by the following name:
Altiris Programs
Depositor: Altiris, Inc.
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
-13-
EXHIBIT E
ADDITIONAL ESCROW ACCOUNT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number 0112162
---------------------------
New Account Number
---------------------------
_________________________ ("Depositor") has entered into a Master Preferred
Escrow Agreement with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to
that Agreement, Depositor may deposit certain Deposit Materials with DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the initial account. By execution of this Exhibit
E, DSI will establish a separate account for the new Deposit Materials. The new
account will be referenced by the following name: _________________________
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
____________________________________ DSI Technology Escrow Services, Inc.
Depositor
By: ________________________________ By: ____________________________________
Name: ______________________________ Name: __________________________________
Title: _____________________________ Title: _________________________________
Date: _____________________________ Date: _________________________________
-14-
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number 0000000
-----------------------
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledges that ________________________ is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective
__________, 20___ with DSI as the escrow agent and ___________________ as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------ --------------
__________________________________ __________________________________
__________________________________ __________________________________
__________________________________ __________________________________
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name: ____________________ __________________________________
Address: _________________________ __________________________________
_________________________ __________________________________
_________________________ __________________________________
Designated Contact:_______________ Contact: _________________________
Telephone: _______________________ __________________________________
Facsimile: _______________________ P.O.#, if required: ______________
E-Mail: __________________________
__________________________________ __________________________________
Preferred Beneficiary Depositor
By: _______________________________ By: ______________________________
Name: _____________________________ Name: ____________________________
Title: ____________________________ Title: ___________________________
Date: _____________________________ Date: ____________________________
DSI Technology Escrow Services, Inc.
------------------------------------
By: _______________________________
Name: _____________________________
Title: ____________________________
Date: _____________________________
-15-
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number 0000000
-------
Altiris, Inc. ("Depositor") and DSI Technology Escrow Services, Inc. ("DSI"),
hereby acknowledge that Compaq Computer Corporation is a Preferred Beneficiary
as referred to in the Master Preferred Escrow Agreement effective April 26,
2001. As such, Compaq Computer Corporation (hereinafter "Preferred Beneficiary")
hereby agrees to be bound by all provisions of such Agreement except to the
extent such provisions are amended or supplemented below.
The amendments set out below apply only to the Master Preferred Escrow Agreement
as it relates to the License and Distribution Agreement entered into on August
21, 2001, as amended by the Amendment thereto dated December 20, 2001
(collectively, the "License Agreement"), by and between Depositor and Preferred
Beneficiary. The sections set out below of the Master Preferred Escrow Agreement
(Master Number 0112162) are amended and/or supplemented to provide as follows:
Section 1.1 is amended to read as follows:
1.1 Obligation to Make Deposit. Depositor shall deliver to DSI a desktop
--------------------------
personal computer, two (2) sets of six (6) compact discs that are images of
the Altiris build system, and written instructions on how to log on to the
machine, restore the images, run the build process, and verify the
completed build. The computer, the two (2) sets of compact discs, and the
written instructions shall be deemed the Initial Deposit (as that term is
defined in the License Agreement). The contents of the compact discs will
include (1) the entire source code for version 5.5 build 89 of the Altiris
eXpress Deployment Server, including Excluded Source Code (as that term is
defined in the License Agreement), which Preferred Beneficiary has obtained
the right to use in the event of a Release Condition occurring, (2) the
tools (compilers, etc.) to build the source code, and (3) the script to
build the source code. Before depositing and delivering the computer and
any compact discs to DSI, Preferred Beneficiary shall have the right to
verify the contents of the deposit and the script to build the source code
and to verify that the source code placed on the compact discs builds a
software program with the features and functions of the then-current
version of the Licensed Software (as defined in the License Agreement).
Preferred Beneficiary shall further have the right to be present as the
deposit is being packaged and shipped by Depositor to DSI. For Excluded
Source Code (as defined in the License Agreement), Depositor shall identify
the Excluded Source Code and provide concurrently with the related deposit
of Deposit Materials (as defined below) reasonable identification in
writing to DSI of (i) the functionality provided by that Excluded Source
Code, (ii) the restrictions to which it is subject, (iii) such third
party's authentic contact information (which at a minimum will include a
company name and may include a web site address, but could include phone,
fax and email), (iv) sufficient instructions and any related documentation
to allow DSI and, in the event a Release Condition occurs, Preferred
Beneficiary to compile the Deposit Materials and build a
-1-
software program with the features and functions of the then-current
version of the Licensed Software (as defined in the License Agreement), and
(v) all agreements authorizing Depositor to use such proprietary
information, to the extent that the disclosure of such agreements does not
violate any confidentiality obligations (such information to be
specifically identified on Exhibit B). Depositor shall further deposit an
updated Schedule 8.6(f) to the License Agreement, which Altiris covenants
is a complete and accurate list of all Excluded Source Code with respect to
the Initial Deposit. Concurrently with each deposit required to be made
under the License Agreement or hereunder, Depositor covenants to provide
Preferred Beneficiary with sufficient information to allow Preferred
Beneficiary to contact third parties in order for Preferred Beneficiary to
either license the use of or obtain each portion of Excluded Source Code.
Depositor will reasonably assist Preferred Beneficiary, when requested, in
obtaining either the Excluded Source Code from the third parties or the
rights to use the Excluded Source Code. Depositor will review the portion
of Excluded Source Code obtained by Preferred Beneficiary to ensure that
such portion will provide the same functionality as the Excluded Source
Code contained in the Licensed Software. Depositor shall deposit, along
with the Initial Deposit and any remaining materials, the portion of
Excluded Source Code which Preferred Beneficiary has obtained or has
obtained the right to use and the information required to be disclosed
hereunder (such Excluded Source Code, the Initial Deposit, the remaining
materials deposited pursuant to Section 8.6(a) of the License Agreement,
and the information required to be disclosed and deposited hereunder being
collectively referred to as the "Deposit Materials"). Notwithstanding the
foregoing, Depositor's obligations with respect to Excluded Source Code
and/or providing third party information relating to the Excluded Source
Code will always be subject to Depositor's confidentiality and any other
obligations to the relevant third party or parties.
Section 1.2 is supplemented to add the following:
Depositor shall also list on Exhibit B any information required to be
identified pursuant to Section 1.1 above, to the extent Depositor may do so
without violation of any obligations to the relevant third party or
parties.
Section 1.7 is amended to read as follows:
1.7 Verification. At the Preferred Beneficiary's option and request, DSI
------------
shall perform a Level 1 or 2 verification (as referenced in the attachment)
of the Deposit Materials upon the initial deposit and/or for each update.
Preferred Beneficiary shall notify Depositor and DSI of Preferred
Beneficiary's request for verification. Depositor shall have the right to
be present at the verification and only DSI may perform the verification.
Upon such request, the Parties may enter into a separate proposal
agreement. Regardless of whether Preferred Beneficiary seeks verification
by DSI, Depositor covenants and agrees to provide to DSI complete responses
to DSI's Escrow Deposit Questionnaire. When DSI performs a verification,
DSI will prepare and deliver to Depositor and Preferred Beneficiary a
report documenting the verification procedure and the results of the
verification. It shall be the responsibility of the Depositor, and not DSI,
to ensure that the Deposit Materials contain the information required to be
placed in escrow by the License Agreement and this Agreement,
-2-
as amended and supplemented. Moreover, it shall be the responsibility of
the Depositor, and not DSI, to ensure that any materials necessary for a
successful verification are provided. It shall, however, be the
responsibility of Preferred Beneficiary, with Depositor's reasonable
assistance, to provide Depositor with the right for Preferred Beneficiary
to use the Excluded Source Code. Preferred Beneficiary shall pay all of the
reasonable fees and other reasonable expenses of DSI incurred as a result
of its request for verification and the verification process unless the
Deposit Materials and any additional materials provided by Depositor are
found to be incomplete or otherwise deficient in some material respect (for
reasons other than Preferred Beneficiary's failure to provide either the
Excluded Source Code or the right to use the Excluded Source Code) in which
event Depositor shall pay all such reasonable fees and expenses. If DSI is
unable to successfully verify the Deposit Materials, Depositor and
Preferred Beneficiary shall use reasonable efforts to provide any further
information, materials or assistance to DSI to achieve a successful
verification. Verification of the Initial Deposit will be deemed successful
if DSI is able to use the written instructions deposited by Depositor to
compile and verify the deposited source code, the build tools and build
scripts using the compact discs deposited by Depositor on the personal
computer and verify the expected results.
Depositor warrants that DSI's performance of any verification services,
using any materials supplied by Depositor, is lawful and does not violate
the rights of any third parties. Preferred Beneficiary warrants that DSI's
performance of any verification services using any Excluded Source Code
supplied by Preferred Beneficiary or in reliance on rights obtained by
Preferred Beneficiary, is lawful and does not violate the rights of any
third parties.
Section 1.8 is amended and supplemented to add the following:
1.8 Deposit Updates. Depositor shall update the Deposit Materials by
---------------
depositing Updates/Maintenance Releases and New Releases (as those terms
are defined in the License Agreement) in accordance with 8.6(a) of the
License Agreement within [*] following commercial release, either
generally [*]. These Updates/Maintenance Releases and New Releases shall be
made by depositing compact discs containing the source code (including the
Excluded Source Code for which Preferred Beneficiary has obtained the
rights to use upon the event of a Release Condition occurring). Depositor
will further deposit the tools (compilers, etc.), including Excluded Source
Code for which Preferred Beneficiary has obtained the rights to use upon
the event of a Release Condition occurring, to build the source code for
each Updates/Maintenance Releases and New Releases and the script to build
the source code for each Updates/Maintenance Releases and New Releases.
Such Updates/Maintenance Releases and New Releases will be added to the
existing deposit. All Updates/Maintenance Releases and New Releases will be
subject to the obligations set out in Section 1.1 above, provided, however,
that the applicable source code to be deposited is the source code for the
particular Updates/Maintenance Releases and New Releases. All deposit
Updates/Maintenance Releases and New Releases shall be listed on a new
Exhibit B
____________________________
*This provision is the subject of a Confidential Treatment Request.
-2-
and the new Exhibit B shall be signed by Depositor. Each Exhibit B will be
held and maintained separately within the escrow account. An independent
record will be created which will document the activity for each Exhibit B.
The processing of all deposit Updates/Maintenance Releases and New Releases
shall be in accordance with Sections 1.1 through 1.7 above. All references
in this Agreement to the Deposit Materials shall include the initial
Deposit Materials and any such Updates/Maintenance Releases and New
Releases.
The Release Conditions in Section 4.1 are replaced with the following:
4.1 Release Conditions. As used in this Agreement, "Release Condition"
------------------
shall mean the following:
a. If prior to the expiration or termination of the Initial Term (as
defined in the License Agreement) of the License Agreement,
(1) (i) Depositor files a petition in or is subject to any
proceeding relating to insolvency or bankruptcy, or permits the
appointment of a trustee in bankruptcy, and that petition,
proceeding or appointment is not dismissed within ninety (90)
days thereafter; or is voluntarily or involuntarily wound up,
liquidated or dissolved,
AND
(ii) Depositor breaches its obligations to provide support and/or
Updates/Maintenance Releases (as defined in the License
Agreement) under the License Agreement and does not cure that
breach for thirty (30) days after receipt of notice of the breach
from Preferred Beneficiary; provided that if the breach has been
cured as of the expiration of the ninety (90) days set forth
above (whether before or after the filing of the petition), then
no Release Condition will be deemed to have occurred; or
(2) (i) [*] (or any of their respective successors or Affiliates (as
defined in the License Agreement)) directly or indirectly (x)
acquires Depositor, including through the purchase of Depositor
securities having 50% or more of the votes for the election of
directors, or by the purchase of substantially all of the assets
of Depositor, (y) merges, consolidates or combines with or into
Depositor or its Affiliates (as defined in the License
Agreement), or (z) acquires the ownership of, or rights
tantamount to ownership of, the source code of the Licensed
Software (as defined in the License Agreement),
AND
(ii) Preferred Beneficiary elects to terminate the License
Agreement pursuant to Section 11.4 of the License Agreement.
____________________________
*This provision is the subject of a Confidential Treatment Request.
-4-
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------ --------------
________________________________ _________________________________
________________________________ _________________________________
________________________________ _________________________________
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name:
Compaq Computer Corp. Altiris, Inc.
Address: 20555 SH 249 355 South 000 Xxxx
Xxxxxxx, Xxxxx 00000-0000 Xxxxxx, Xxxx 00000
Designated Contact:_____________ Contact:_________________________
Telephone:______________________ _________________________________
Facsimile:______________________ P.O. #, if required:_____________
E-Mail:________________________
Invoices for verification services should be addressed to:
Company Name: Compaq Computer Corp.
Address: 00000 XX 000
Xxxxxxx, Xxxxx 00000-0000
Designated Contact:____________
Telephone:_____________________
Facsimile:_____________________
E-Mail:________________________
-5-
By signing below each of the undersigned consent to the amendments and
modifications to the Master Preferred Escrow Agreement set out above:
Compaq Computer Corporation Altiris, Inc.
-------------------------------------- --------------------------------
Preferred Beneficiary Depositor
By:___________________________________ By:_____________________________
Name:_________________________________ Name:___________________________
Title:________________________________ Title:__________________________
Date:_________________________________ Date:___________________________
DSI Technology Escrow Services Inc.
-----------------------------------
By:___________________________________
Name:_________________________________
Title:________________________________
Date:_________________________________
-6-
