Exhibit 10.5D
AMENDMENT NUMBER 1
TO
LICENSE AND DISTRIBUTION AGREEMENT(PSI)
This Amendment Number 1 ("Amendment 1") to the License and Distribution
Agreement ("Agreement"), dated November 12, 1999, is entered into and is
effective as of the 11th day of August, 2000 ("Effective Date") by and between
Compaq Computer Corporation ("Compaq"), a Delaware corporation having its
principal place of business at 00000 X.X. 000, Xxxxxxx, Xxxxx 00000 and Altiris,
Inc. ("Altiris") a Utah corporation, having its principal place of business at
000 Xxxxx 000 Xxxx, Xxxxxx, Xxxx 00000 (collectively "the Parties").
WHEREAS, the Parties wish to amend the Agreement to bring an additional set
of Resale Products under the Agreement; and whereas these additional Resale
Products shall be: (1) Altiris eXpress, PC Transplant Pro and LabExpert which
are Integrated Altiris Products under a separate Alliance Master Agreement and
Project Statement Number 1 which shall be executed concurrently with this
Amendment 1, and (2) Altiris Vision.
NOW, THEREFORE, in consideration of the mutual covenants and promises in
the Agreement as amended hereunder, and for other good and valuable
consideration, the receipt sufficiency and adequacy of which are hereby
acknowledged, the Parties hereby agree as follows:
All terms defined or used in the Agreement shall have the same meaning in
this Amendment. All references to Sections shall mean sections or subsections of
the Agreement.
1. Subsection 1.4 of the Agreement is deleted in its entirety and replaced
with the following new subsection:
1.4 Resale Products. The "Resale Products" are the full commercial
versions of the following Altiris products:
(a) Altiris eXpress - full product version including software,
documentation (printed and/or electronic), media and packaging.
(b) PC Transplant Pro - full product version including software,
documentation (printed and/or electronic), media and packaging.
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This exhibit is the subject of a Confidential Treatment Application.
Confidential information has been omitted and has been filed separately.
(PSI) This Amendment 1 bears the same title as Amendment Number 1 to
License and Distribution Agreement, dated November 12, 1999, between Altiris
and Compaq, dated April 20, 2000. Notwithstanding the identical titles, the two
agreements are separate and distinct.
(c) Altiris Vision - full product version including software,
documentation (printed and/or electronic), media and packaging.
(d) Altiris LabExpert - full product version including software,
documentation (printed and/or electronic), media and packaging.
(e) Upgrade Protection for Altiris eXpress.
(f) Upgrade Protection for PC Transplant Pro.
(g) Upgrade Protection for Altiris Vision.
(h) Upgrade Protection for Altiris LabExpert.
Each of these Resale Products will have a separate SKU or other unique
product designation assigned by Altiris. Each Resale Product will be governed by
the applicable end-user license agreement. Future versions of these products
will be added to this list by Altiris to keep it current.
Compaq will not offer Upgrade Protection products until such time as
systems and policies are in place to track customers appropriately (to provide
detailed point-of-sale customer information). The Parties will share this
information with each other.
2. Section 1.12 is deleted.
3. Section 2.7(d) is deleted.
4. Section 3.1 of the Agreement is deleted in its entirety and replaced
with the following new section:
3.1 Internal Use License - Altiris Express, Altiris Vision, Altiris
LabExpert and PC Transplant Pro. Subject to the terms and conditions of this
Agreement and Compaq's compliance therewith, Compaq is authorized and licensed
to use copies of Altiris eXpress, Altiris Vision, Altiris LabExpert and PC
Transplant Pro for Compaq's internal use only on computers within the possession
and use of Compaq employees (the "Internal Use License"). To the extent that any
of these software products include third party code, then they are governed by
any restrictions or provisions required by the third party licensor and Altiris
agrees to promptly provide to Compaq copies of any such restrictions and/or
provisions. Compaq shall pay, in addition to all other payments under this
Agreement and Amendment, any royalties or other payments payable to the third
party for this Internal Use License and for any Upgrade Protection.
5. Section 3.7 is terminated because the concept of an upgrade from PC
Transplant to PC Transplant Pro is no longer offered.
6. Section 3.5 of the Agreement is deleted in its entirety and replaced
with the following new section:
3.5 Copying. The Internal Use License includes authorization for Compaq
to make copies of Altiris Express, Altiris Vision, Altiris LabExpert and PC
Transplant Pro, provided that any such copy: (i) is created as an essential step
in the utilization by Compaq of Altiris Express, Altiris Vision, Altiris
LabExpert and/or PC Transplant Pro in accordance with Section 3.1 and Section
3.12, and is used by Compaq in no other manner, or (ii) is only for archival
purposes to back-up licensed use of Altiris Express, Altiris Vision, Altiris
LabExpert and PC Transplant Pro. The Bundling License and Distribution License
include authorization to make copies of the Distributable Programs as reasonably
needed for the exercise of such Licenses by Compaq and for reasonable archival
or back-up purposes. All trademark, copyright and proprietary rights notices
must be faithfully reproduced and included by Compaq on copies made by Compaq.
Compaq may not make any other copies of the Licensed Software.
7. The Parties acknowledge that Section 3.9 previously expired.
8. The last sentence of Section 4.1 and the blank Exhibit F are deleted.
9. Sections 5.10, 8.4, 10.1, 10.4, 12.1(a), 12.2, 12.3, 12.4, 13.3 and
15.10 shall apply to Altiris Vision and Altiris LabExpert in the same manner
that they apply to Licensed Software.
10. Section 8.2 shall apply to Altiris Vision and Altiris LabExpert in the
same manner that it applies to Altiris eXpress.
11. Section 9.5 is expanded to include the following: [*]
12. Subsection 9.7 of the Agreement is deleted in its entirety and replaced
with the following new subsection:
9.7 Resale Products. The prices paid by Compaq or its designated agent to
Altiris for each Resale Product shall be the applicable percentage of
Altiris' then-current published retail price for the Resale Product. The
applicable percentages are as follows:
Resale Product Applicable Percentage
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Altiris Express [*]%
Altiris Vision [*]%
Altiris LabExpert [*]%
PC Transplant Pro [*]%
Upgrade Protection for Altiris eXpress [*]%
Upgrade Protection for Altiris Vision [*]%
Upgrade Protection for Altiris LabExpert [*]%
Upgrade Protection for PC Transplant Pro [*]%
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*This provision is the subject of a Confidential Treatment Request.
These prices are F.O.B. Altiris and do not include shipping and insurance costs.
Such shipping and insurance costs shall be paid by Compaq or its designated
agent.
13. Compaq will be allowed to resell the Altiris Professional Services as
described in Altiris' then-current published retail price list. The prices paid
by Compaq or its designated agent to Altiris for the Professional Services shall
be [* ]% of Altiris' then-current published retail price for the Altiris
Professional Services. As with prices for Resale Products, the prices for
Professional Services are subject to change by Altiris upon at least 30 days
advance notice to Compaq. The descriptions and types of Professional Services
are also subject to change by Altiris. Professional Services are subject to
Altiris' then-current services agreement and the availability of Altiris
personnel.
14. Section 9.11 is deleted and replaced by the following: [*]
15. Section 9.12 is deleted and Section 9.13 is deleted and replaced with
the following: [*]
16. Sections 13.2(c)(v) and 15.9 are deleted. The Parties have agreed to
address this issue in their Project Statement Number 1 under the Alliance Master
Agreement.
17. The last sentence of Section 13.3(b) is deleted and replaced with the
following:
Should any of the Licensed Materials contain third party code,
Altiris shall obtain the appropriate rights and licenses from the third parties
for Compaq to use such third party code embedded in the Licensed Software under
the terms and conditions of this Agreement. Altiris agrees to promptly provide
to Compaq copies of any restrictions or provisions required for the use of such
third party code and such third party code shall be governed by any such
restrictions or provisions.
18. Section 14 is deleted and replaced by the following:
Alternative Dispute Resolution (ADR). The parties wish to use
reasonable measures to avoid the litigation of disputes under this Agreement.
Therefore, any controversy between the parties involving or concerning the
construction, performance, validity, or application of any terms, covenants or
conditions of this Agreement, or any claim arising out of or relating to this
Agreement or the alleged breach or termination thereof that may be raised at any
time by either party shall be resolved in accordance with the following
procedures. Notwithstanding the above, however, these procedures shall not apply
to disputes relating to infringement of the other party's intellectual property
rights or the unlicensed use or disclosure of either party's software or
intellectual property. The parties shall use the procedures in the following
order of priority. Unless otherwise agreed, the parties shall each bear all of
their expenses incurred during the procedures. The entire procedure provided by
this section will be private and confidential to the greatest extent allowed by
law. Each party agrees to take all steps necessary to ensure the private and
confidential nature of all papers submitted, all negotiations, mediation
sessions, and arbitration proceedings, if any, held pursuant to this ADR
process.
_______________________
*This provision is the subject of a Confidential Treatment Request.
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1) NEGOTIATION. At the written request of either party
to initiate this ADR process, the parties shall
negotiate for a resolution of the dispute in a
meeting or series of meetings held at the site of the
non-requesting party. The meeting shall be attended
by appropriate executives of both parties who are at
a higher level of management than the persons with
direct responsibility for the administration of this
Agreement.
2) MEDIATION. In the event that the dispute is not
resolved by negotiation within thirty (30) days of
the original request to initiate this ADR process,
the parties shall submit their dispute to non-binding
mediation. The parties agree to use the services of
the private dispute resolution firm of JAMS to
establish a mediation process suitable to resolve the
dispute at issue. The time and place of the mediation
shall be as mutually agreed in consultation with
JAMS.
In the event these procedures do not result in a successful
resolution of the dispute, the parties shall be free to pursue all remedies
available through the judicial process.
19. Exhibit A- Description of Altiris Software Products is deleted in its
entirety and replaced with the following:
Exhibit A
Description of Altiris Software Products
1. Description of Altiris eXpress:
Altiris eXpress is a total PC management solution. Altiris combined
its imaging and configuration capabilities with a host of new technologies into
a completely redesigned, easy to use single console. Altiris eXpress is a fully
integrated management tool for the deployment, configuration, software and
registry management, reconfiguration, backup and recovery of PCs.
2. Description of PC Transplant Pro:
PC Transplant combines an intuitive GUI Interface with a powerful wizard
that walks users through creating a personality file that captures desktop,
network, and application settings, as well as data files and directories into a
self-extracting compressed personality package that can then be transplanted
onto another PC. The Pro version of PC Transplant includes a migration wizard,
an imaging component and Altiris' boot disk creator. This combination provides
an entire PC migration tool. End users as well as IT staff will be able to
backup or preserve a PC's personality, migrate or update the operating system on
an existing or a new PC, then restore the personality back onto the PC.
3. Description of Altiris Vision:
Altiris Vision includes teaching tools. A teacher can monitor his/her
class, have users work in groups, demonstrate concepts to the students, and
highlight key areas of the teacher's computer screen for the class, all from the
teacher's workstation. If a student has a problem, remote control
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lets the teacher help the student from the teacher's desk. The auto-sensing
feature allows student computers to automatically connect to the teacher module.
The teacher can also moderate chat between students working on the same project,
and shut down all the PCs at the end of the day.
4. Description of Altiris LabExpert:
LabExpert is a software configuration management program for PC labs and
classrooms. From the LabExpert console, a user can install or restore an
operating system or applications to a classroom of PCs.
Except as set forth herein, all other provisions of the Agreement remain in
full force and effect. In the event of any conflict between this Amendment and
the original Agreement, this Amendment shall govern.
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IN WITNESS WHEREOF, the Parties hereto have duty executed this Amendment by
their respective duly authorized representatives to be effective as of the
Effective Date.
COMPAQ COMPUTER CORPORATION ALTIRIS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President and General Manager Title: Chief Executive Officer
Internet Products and Services
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