[***] INDICATES THAT TEXT HAS BEEN OMITTED WHICH IS THE SUBJECT OF A
CONFIDENTIAL TREATMENT REQUEST. THIS TEXT HAS BEEN FILED SEPARATELY WITH THE
SEC.
EXHIBIT 10.18
SOFTWARE LICENSING AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT is entered into as of this 17th day of December,
2003 (hereinafter "Effective Date") by and between Dell Products L.P.
(hereinafter "Dell") with its principal place of business at One Dell Way, Round
Rock, Texas 78682, and CommVault Systems, Inc., a Delaware corporation having a
principal place of business at 2 Crescent Place, Oceanport, New Jersey 07757
(hereinafter "Licensor").
1.0 DEFINITIONS
1.1 AGREEMENT shall mean this Software License Agreement and its
Supplement.
1.2 LICENSED PRODUCT(S) shall mean: (i) the software in object code form
and documentation listed in the Supplement to this Software License
Agreement and (ii) all improvements, corrections, modifications,
alterations, revisions, extensions, upgrades, national language
versions and/or enhancements to the software in object code form and/or
documentation made during the term of this Agreement (hereinafter
"Updates").
1.3 SUPPLEMENT shall mean the supplement executed under this Software
License Agreement. The supplement shall describe the Licensed
Product(s) and may include additional terms and conditions such as
compensation, delivery schedules, technical contacts and other
information related to the Licensed Product(s). The terms and
conditions of this Software License Agreement shall apply to the
Supplement.
2.0 OBJECT CODE LICENSE
2.1 Licensor hereby grants to Dell a non-exclusive, worldwide, and, subject
to Section 9, below, irrevocable right and license, under all
copyrights, patents, patent applications, trade secrets and other
necessary intellectual property rights, to: (i) use, make, execute,
reproduce, display, perform, the Licensed Product(s), in object code
form, (ii) distribute and license, the Licensed Product(s), in object
code form, as part of, in conjunction with, or for use with, Dell
systems and (iii) authorize, and license third parties to do any, some
or all of the foregoing. Dell shall have the option to distribute the
Licensed Product(s) to end users pursuant to Licensor's end user
license agreement
2.2 The above grant includes, without limitation, the right and license to:
(i) use Licensor's trade names, product names and trademarks (the
"Trademarks") in connection with the marketing and distribution of
Licensed Product(s) and (ii) all pictorial, graphic and audio visual
works including icons, screens and characters created as a result of
execution of the Licensed Product(s). Dell's use of the Trademarks
shall be in accordance with applicable trademark law. Dell agrees to
consistently identify the Trademarks as being the property of Licensor.
Dell agrees that the Trademarks are and will remain the sole property
of Licensor and agrees not to do anything inconsistent with that
ownership. Dell shall (a) comply with any requirements established by
Licensor concerning the style, design, display and use of the
Trademarks, (b) correctly use the "(R)" registration and "(TM)"
symbols, (c) use the Trademark solely in connection with the
appropriate products, (d) promptly inform Licensor of the use of any
marks similar to the Trademarks and any potential infringements of the
Trademarks which comes to Dell's attention, and (e) not misuse the
Trademarks or engage in any unlawful activity in any way related to the
use of the Trademarks. Dell will indemnify, defend and hold harmless
Licensor and its officers, directors, employees and agents from and
against any and all liabilities, losses, damages, claims, costs and
expenses (including without limitation, reasonable attorney's fees and
expenses) arising out of (i) misuse of the Trademarks, (ii) any
statements or representations made to any person or entity by the Dell
or its agents concerning the Products and (iii) any other negligent,
reckless or wrongful conduct of the Dell or its agents arising in
connection with its activities related to this Agreement or the
Products. All sales and promotions materials (including, without
limitation, labels, stickers, packaging or software documentation)
which include any Trademark shall be subject to the advance review and
approval of Licensor; it being understood that once Licensor has
approved any particular use, Licensor need not approve any additional
use which is substantially the same as that which has been previously
approved, provided such future use complies with the foregoing
obligations regarding Trademark usage. When requested, Dell shall send
samples of advertising and promotional materials bearing any Trademark,
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CONFIDENTIAL TREATMENT REQUEST. THIS TEXT HAS BEEN FILED SEPARATELY WITH THE
SEC.
samples of any goods bearing or sold under any Trademark, and any other
documentation which may permit Licensor to determine whether the
Trademark uses conform to the requirements of this Agreement..
2.3 Licensor hereby grants to Dell a non-exclusive, worldwide, and, subject
to Section 9, below irrevocable right and license, under all
copyrights, patents, patent applications, trade secrets and other
necessary intellectual property rights, to internally: (i) use,
execute, reproduce, display, perform, and distribute the Licensed
Product(s), for the purposes of enabling Dell to maintain, service and
manufacture the Licensed Product(s) and (ii) authorize, and license
third parties to do any, some or all of the foregoing on Dell's behalf.
3.0 COMPENSATION; PER COPY ROYALTIES, SUPPORT PRICING, AND MAINTENANCE
PRICING
3.1 Dell will pay Licensor a per copy royalty as set forth in the Pricing
Supplement for each copy of the Licensed Product(s) distributed by Dell
for revenue. No per copy royalties shall be due for copies of the
Licensed Product(s): (i) used or distributed for demonstration,
marketing or training purposes, (ii) distributed to a customer as a
replacement for a defective copy or to fix an error, (iii) used to
repair or maintain a customer's system, (iv) held for backup or
archival purposes, (v) returned by a customer, (vi) used for
manufacturing or testing purposes or (vii) distributed to an existing
customers as an upgrade to their existing copy of the Licensed
Product(s).
3.2 Unless provided otherwise in a Schedule, all prices will be in U.S.
dollars and are exclusive of applicable value, added, sales, use,
excise, or similar taxes for which Dell shall be obligated to pay
licensor. Dell will have no liability for any taxes based on Licensor's
net assets or income or for which Dell has an appropriate resale or
other exemption. Licensor shall be the importer of record for VAT/GST
purposes (applicable in the country of incorporation). All payments
shall be made in United States currency. Licensor acknowledges that
there is no minimum aggregate royalty due under this Agreement and that
any royalties received will be based solely on the criteria set forth
above. Licensor acknowledges and agrees that Dell has the right to
withhold any applicable taxes from any royalties due under this
Agreement if required by any government agency.
3.3 Dell shall pay Licensor the amounts set forth in the Pricing Supplement
during the term of this Agreement and for so long thereafter as
Licensor has any obligations under Exhibit C ("Support") or to provide
maintenance as described in Section 4.2 below.
4.0 SUPPORT, TRAINING AND MAINTENANCE
4.1 Licensor shall, at its expense, train Dell personnel to set up,
install, configure and operate the Licensed Product(s) and provide such
other training to assist and enable Dell to fully perform and exercise
its rights under this Agreement. Such training shall be completed
thirty (30) days prior to Dell's commercial introduction of the
Licensed Product(s). Thereafter, further training of additional Dell
personnel will be conducted by the Dell personnel previously trained by
Licensor. Additional training periods for Updates, if any shall also be
provided at Licensor's expense and within a mutually agreed upon time
period.
4.2 During the term of this Agreement, and for a period of up to three
years after the termination of the Agreement, as long as Dell has not
breached this Agreement, Licensor shall, provide Dell with all
maintenance releases generally made available by Licensor to licensees
of the Licensed Product(s).
4.3 During the term of this Agreement, and for a period of up to three
years after the termination of the Agreement, as long as Dell has not
breached this Agreement, the parties shall provide and comply with the
Support obligations set forth in Exhibit C.,
5.0 END USER LICENSE
Dell acknowledges that all software sold separately or with hardware
and obtained by Dell from Licensor is proprietary to Licensor and its
licensors and is subject to patents and/or copyrights owned by Licensor
and/or its licensors. Any references to "purchases" of software and
Products containing software products signify only the purchase of a
license to use the software in question pursuant to the terms of the
Licensor's then current applicable end user license agreement, as
provided to Dell,, a copy of which Licensor has and will have included
with the
2
Products and which is incorporated herein in its entirety by this
reference for the term of this Agreement. Notwithstanding anything to
the contrary contained herein, Dell agrees to be bound by all of the
terms of such end user license agreement and agrees that it will
acquire no rights with respect to such software Product other than the
right to use such software pursuant to the terms of such software
license agreement.
6.0 REPRESENTATIONS AND WARRANTIES
On an ongoing basis, Licensor represents and warrants that:
(a) the Licensed Product(s) will operate in accordance with its
written specifications;
(b) Licensor has all the necessary rights, titles and interests in
the Licensed Product(s) to grant Dell the rights and licenses
contained in this Agreement;
(c) the Licensed Product(s) shall not infringe any copyright,
patent, trade secret or any other intellectual property rights
or similar rights of any third party;
(d) the Licensed Product(s) does not contain any known viruses,
expiration, time-sensitive devices or other harmful code that
would inhibit the end user's use of the Licensed Product(s) or
Dell system;
(e) Licensor and the Licensed Product(s) comply with all
governmental laws, statutes, ordinances, administrative
orders, rules and regulations and that Licensor has procured
all necessary licensees and paid all fees and other charges
required so that Dell can exercise the rights and license
granted under this Agreement;
(f) Licensor has a proprietary and invention assignment agreement
for employees which provides for a waiver or agreement not to
assert any rights in the Licensed Product(s)
(g) There is no restriction of any relevant governmental authority
which prohibits the export of the Licensed Product(s) to
countries outside the United States and Canada, other than
those laws of the United States which prohibit exports
generally , as may be modified from time to time, including
without limitation, to Libya, Cuba, North Korea, Syria, Sudan,
Iran and Iraq; and
(h) Licensor has and will continue to comply with all applicable
governmental laws, statutes, rules and regulations including,
but not limited to, those related to export of product and
technical data, and Licensor agrees that for any updates,
upgrades and new products which are licensed to Dell pursuant
to the terms of this Agreement, Licensor shall provide prior
written notice of any facts which would make the foregoing
representations untrue.
(i) Either (i) the Licensed Product(s) are not encrypted, nor do
they contain encryption capability; or (ii) if the Licensed
Product(s) does contain encryption capabilities, Licensor
agrees to adhere to the requirements described in Exhibit A.
In addition to Licensor's end user license agreement, Licensor hereby makes the
following additional ongoing representations and warranties:
(l) Licensor will warrant the Licensed Product(s) directly to the
end-user in accordance with the terms and conditions set forth
in Licensor's end-user license agreement; and
(m) Licensor has agreed to honor all replacement requests received
from Dell or end users under the terms of Licensors end user
license agreement pertaining to defective Licensed Product(s).
7.0 LIMITED WARRANTY
Licensor warrants that the Products sold hereunder shall be new and
shall operate substantially in accordance with its user documentation
for a period of ninety (90) days from the date of shipment by Licensor
(hereinafter the "Warranty Period"). If, during the Warranty Period,
Dell believes any Product to be defective, Dell shall immediately
notify Licensor in writing and shall follow Licensor's instructions
regarding the return of such Product. Licensor's sole liability to
Dell, and Dell's sole remedy, shall be, at Licensor's option, (i)
repair or replacement of the Product which does not comply with this
Limited Warranty, or (ii) return of the amount paid by Dell for the
Product which does not comply with the Limited Warranty. In the event
Licensor determines that the Product is in compliance
3
with this Limited Warranty, Dell shall pay the cost of all charges
associated with the inspection and shipment of such Product by
Licensor.
LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL OPERATE UNINTERRUPTED
OR ERROR FREE. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE,
AND LICENSOR EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY
QUALITY, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE
PROVISIONS SET FORTH ABOVE STATE LICENSOR'S ENTIRE RESPONSIBILITY AND
YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF ANY
WARRANTY.
NO CONSEQUENTIAL DAMAGES. LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES,
BE LIABLE TO DELL OR ANY OTHER PARTY, FOR COSTS OF PROCUREMENT OF
SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOST OPPORTUNITY COSTS,
LOSS OF INFORMATION OR DATA OR ANY OTHER SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION ARISING OUT OF
OR RELATING TO THIS WARRANTY OR RESULTING FROM THE SALE OF PRODUCTS OR
USE BY DELL OR ANY OTHER PARTY OF SUCH PRODUCTS, EVEN IF LICENSOR HAS
BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
ANY FAILURE OF AN ESSENTIAL PURPOSE OF THIS LIMITED WARRANTY.
8.0 INDEMNIFICATION
8.1 Licensor shall fully indemnify, defend and hold harmless Dell, Dell,
Inc., Dell, Inc.'s subsidiaries and affiliates and all of the foregoing
entities' officers, directors, employees, agents, customers and
licensees, and their successors and assigns, from and against any and
all third party claims, actions, suits, legal proceedings, demands,
liabilities, damages, losses, judgments, settlements, costs and
expenses, including, without limitation, attorney's fees, arising out
of or in connection with any alleged or actual:
(i) infringement by Licensor and/or the Licensed
Product(s) of any copyright, patent, trade secret or other
intellectual property rights or similar rights of any third
party;
(ii) damage to any real and tangible property,
personal injury, death or any other damages or losses
sustained by whomever suffered, resulting, or claimed to
result, in whole or in part from any alleged or actual defect
in the Licensed Product(s) whether latent or patent, including
any alleged or actual improper construction or design or the
failure of the Licensed Product(s) to comply with its written
specifications or any express or implied warranties.
8.2 In the event that Dell becomes aware of any such claim, Dell shall: (i)
notify Licensor of such claim, (ii) cooperate with Licensor in the
defense thereof. Licensor and Dell, at Dell's discretion, shall have
the right to participate in the defense of any such claim or action.
Dell shall not settle any such claims without the Licensor's prior
consent, which consent shall not be unreasonably withheld. If Dell
complies with the provisions hereof, Licensor will pay all damages,
costs and expenses finally awarded to third parties against Dell in
such action.
8.3 In addition to Licensor's obligations under Subsection 8.1 above, in
the event that a claim of infringement is made with regard to the
Licensed Product(s), or in Licensor's opinion might be held to infringe
as set forth above, Licensor shall, at its own expense and option,
procure for Dell the right to exercise the rights and licenses granted
to Dell under this Agreement or modify the Licensed Product(s) such
that it is no longer infringing. If neither of such alternatives is, in
Licensor's opinion, commercially reasonable, the infringing Product
shall be returned to Licensor and Licensor 's sole liability, in
addition to its obligation to reimburse awarded damages, costs and
expenses set forth above, shall be to refund the amounts paid to
Licensor by Dell for such Product. Licensor will have no liability for
any claim of infringement arising as a result of Dell's use of a
Product in combination with any items not supplied by Licensor, or any
modification of a Product by Dell or third parties.
4
THIS SECTION 8 STATES THE ENTIRE LIABILITY OF LICENSOR TO DELL OR ANY
SUBSEQUENT PURCHASER, LESSEE, END USER OR ASSIGNEE OF PRODUCTS
CONCERNING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT
NOT LIMITED TO, PATENT, COPYRIGHT AND TRADE SECRET RIGHTS.
9.0 TERM AND TERMINATION OF AGREEMENT
9.1 Unless earlier terminated as provided below, the term of this Agreement
shall be for three (3) years from the Effective Date and, unless either
party gives thirty (30) days notice of nonrenewal prior to the end of
the initial term or any renewal term, this Agreement shall
automatically renew for successive one (1) year periods.
9.2 Either Party may, at its option and upon written notice to the other
Party, terminate this Agreement if: (a) a material breach of this
Agreement by the other Party is not remedied within thirty (30) Days
after the breaching Party's receipt of written notice of the breach;
(b) the other Party admits in writing its inability to pay its debts
generally as they become due, files a petition for bankruptcy or
executes an assignment for the benefit of creditors or similar
document; (c) a receiver, trustee in bankruptcy or similar officer is
appointed for the other Party's property; or (d) a majority interest of
the equity or assets of the other Party is transferred to an unrelated
third party or this Agreement is assigned without the prior written
consent of the other Party to this Agreement. Dell may terminate this
Agreement without cause upon prior written notice to the other party.
Neither party will have any liability to the other arising from such a
termination of the Agreement, provided the termination is properly
noticed
9.3 All licenses and sublicenses granted to customers and other licensees
under this Agreement, and all provisions of Sections, 9.0, 10.0 and
11.0, shall survive any expiration or termination of this Agreement and
shall bind the parties and their successors, heirs, assigns and legal
representatives. In addition, Licensor's obligations under Section 4,
5, 6,7 and 8 shall survive for one (1) year after any expiration or
termination of this Agreement in order for Dell to satisfy its then
existing contractual obligations to its customers and licensees. Dell
shall retain a limited license in accordance with Section 2 to use the
Licensed Product(s) in order to satisfy such obligations and to exhaust
its inventory of Licensed Product(s) existing at expiration or
termination, provided that Dell's right to exhaust any such inventory
shall not extend beyond 180 days after expiration or termination.
Thereafter, Dell agrees to return or destroy all additional copies of
the Licensed Product(s) in its possession.
10.0 LIMITATION OF LIABILITIES
10.1 EXCEPT AS SET FORTH IN SECTION 10.2, NEITHER PARTY SHALL BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY
PART OF THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF
SUCH DAMAGES.
10.2 EXCEPT FOR LICENSOR'S OBLIGATIONS UNDER SECTION 9 "INDEMNIFICATION" AND
SECTION 12 "CONFIDENTIALITY", DELL AGREES THAT LICENSOR'S LIABILITY TO
DELL IN ANY WAY CONNECTED WITH THE SALE OF PRODUCTS TO DELL, REGARDLESS
OF THE FORM OF ACTION, SHALL IN NO EVENT EXCEED THE PRICE PAID BY DELL
FOR SUCH PRODUCTS. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE FOR
ANY DAMAGES RESULTING FROM LICENSOR 'S FAILURE TO MEET ANY DELIVERY
SCHEDULE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT WILL LICENSOR BE LIABLE FOR COSTS OF PROCUREMENT
OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOST OPPORTUNITY
COSTS OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES,
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY OUT
OF THESE TERMS OR THE SALE OF PRODUCTS OR SERVICES TO DELL. THIS
LIMITATION SHALL APPLY EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY.
5
11.0 CONFIDENTIAL INFORMATION
11.1 The parties agree that information exchanged under this Agreement that
is considered by either party to be confidential information will be
subject to the terms and conditions of the non-disclosure agreement in
place between the parties. If the parties have not executed a
non-disclosure agreement, the parties will negotiate in good faith the
terms of such an agreement. Licensor shall not provide to Dell any
information that is considered confidential information of any third
party.
11.2 At Dell's request, which shall not be made more frequently than once
per quarter per year, Licensor will provide unaudited, or audited,
financial statements to Dell.
12.0 [***]
13.0 MISCELLANEOUS
13.1 This Agreement shall in no way preclude Dell from independently
developing, having developed or acquiring or marketing any products or
services nor shall it in any way preclude Dell from entering into any
similar agreement with any other party.
13.2 Dell shall have full freedom and flexibility in its decisions
concerning the distribution and marketing of the Licensed Product(s)
including, without limitation, the decision of whether or not to
distribute or discontinue distribution of the Licensed Product(s). Dell
does not guarantee that its marketing, if any, of the Licensed
Product(s) will be successful.
13.3 This Agreement may not be assigned by Licensor, in whole or in part,
including without limitation by operation of law, in a merger or stock
or asset sale, without the express written permission of Dell. If
Licensor makes any attempt to assign this Agreement without Dell's
written consent, Dell will have the option to immediately terminate
this Agreement. No permitted assignment or subcontract by Licensor
shall relieve Licensor of any obligations hereunder. Licensor shall
always remain jointly and severally liable with any assignees under
this Agreement. In the event Dell terminates this Agreement under this
section Licensor will have no liability to Dell in respect of such
termination.
13.4 Licensor is an independent contractor. Licensor is not a legal
representative or agent of Dell, nor shall Licensor have the right or
authority to create or incur any liability or any obligation of any
kind, express or implied, against, or in the name of, or on behalf of
Dell.
13.5 Provider represents and warrants that the prices for Products shall not
be less favorable than prices applicable to sales by Provider to any
other customer purchasing like quantities of the same products under
comparable terms. If at any time during the term of this Agreement
Provider accords to any other such customer more favorable prices,
Provider shall immediately offer to sell the Products to Dell at
equivalent prices accorded to such other customer. Dell, or Dell's
agent, may audit Provider's compliance with this Section 5 upon
reasonable notice to Provider and subject to the confidentiality
provisions of Section 15 of this Agreement and the applicable NDA, Dell
may audit Provider's manufacturing locations or corporate headquarters
and review and copy any information reasonably relevant to the purpose
of any audit permitted by this Agreement. Notwithstanding anything to
the contrary contained herein, Licensor shall have no obligation to
disclose confidential information which is the subject of another
confidentiality agreement. In addition, Dell may: (a) inspect Products
at any stage of production or testing; (b) review Provider's facilities
and quality control procedures; and (c) accompany Dell customers on
visits to Provider's manufacturing locations. Provider will furnish, or
cause to be furnished (without charge), all reasonable facilities and
assistance necessary for the safety and convenience of any personnel
performing the audits.
13.6 Licensor shall not publicize the existence of this Agreement with Dell
nor refer to Dell in connection with any promotion or publication
without the prior written approval of Dell. Further, Neither Party
shall disclose the terms and conditions of this Agreement to any third
party, including, but not limited to, any financial terms, except as
required by law or with the prior written consent of the other Party.
6
13.7 Licensor shall comply with all applicable governmental laws, statutes,
ordinances, administrative orders, rules and regulations including,
without limitation, those related to the export of technical materials.
Licensor shall provide Dell with prompt written notice of any export
restrictions related to the Licensed Product(s).
13.8 Any and all written notices, communications and deliveries between
Licensor and Dell with reference to this Agreement shall be deemed made
on the date of mailing if sent by registered or certified mail to the
respective address of the other party as follows:
In the case of Dell: Dell Products L.P.
One Dell Way
[***]
Round Rock, TX 78682
Attn: [***]
In the case of Licensor: CommVault Systems, Inc.
2 Crescent Place
Oceanport, NJ 07757
Attn: Finance
Cc: Legal Department
13.9 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of New York, U.S.A. without regards for its rules
of conflict of laws, as if this Agreement was executed in and fully
performed within the State of New York. Both parties hereby waive any
right to a trial by jury relating to any dispute arising under or in
connection with this Agreement.
13.10 Should any provision herein be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable, such provision
shall be modified to reflect the intentions of the parties. All other
terms and conditions shall remain in full force and effect.
13.11 No amendment, modification or waiver of any provision of this Agreement
shall be effective unless set forth in a writing executed by an
authorized representative of each party. No failure or delay by either
party in exercising any right, power or remedy will operate as a waiver
of any such right, power or remedy. No waiver of any provision of this
Agreement shall constitute a continuing waiver or a waiver of any
similar provision unless expressly set forth in a writing signed by an
authorized representative of each party.
13.12 Since Dell transacts business with the United States government,
Licensor must comply with the applicable federal laws and Federal
Acquisition Regulations ("FARs") including the following:
It is Dell's policy to take affirmative action to provide equal
employment opportunity without regard to race, religion, color,
national origin, age, sex, disability, veterans status or any other
legally protected status. As a condition of doing business, Dell
requires Licensor to practice equal opportunity employment and to
comply with Executive Order 11246, as amended, Section 503 of the
Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era
Veteran's Readjustment Assistance Act of 1974, all as amended, and the
relevant Regulations and Orders of the U.S. Secretary of Labor.
Additionally, to the extent required by applicable law, the following
sections of Chapter 60 of Title 41 of the Code of Federal Regulations
are incorporated by reference in this Agreement and each Order: 41 CFR
60-1.4(a); 41 CFR 60-1.8; 41 CFR 60-741; 41 CFR 60-250; 41 CFR 60-1.7;
41 CFR 60-1.40.
It is the policy of the United States (FAR 52.219-8) that small
business concerns, small business concerns owned and controlled by
socially and economically disadvantaged individuals and small business
concerns owned and controlled by women shall have the maximum
practicable opportunity to participate in performing contracts for any
Federal agency. Licensor agrees to comply with this policy and to
provide reporting of data as requested to the Small Business Liaison
Officer, Dell, Inc., One Dell Way, Round Rock, Texas, 78682.
13.13 This Agreement sets forth the entire agreement and understanding of the
parties relating to the subject matter contained herein, and merges all
prior discussions and agreements, both oral and written, between the
parties.
7
Nothing in any purchase order, invoice, order acknowledgment, or other
document of Licensor shall be of any effect whatsoever and may not
affect, alter, or modify the terms and conditions of this Agreement. If
the terms and conditions of this Agreement conflict with any terms of a
Dell purchase order relating to the Licensed Product(s), the terms and
conditions of this Agreement shall govern. The terms and conditions set
forth in Supplements are hereby incorporated into this Software License
Agreement by reference. If the terms and conditions of this Software
License Agreement conflict with any terms and conditions contained in a
Supplement, the terms and conditions of the Supplement shall govern.
13.14 [***]
IN WITNESS WHEREOF, the parties hereto have duly executed this Software License
Agreement by their respective duly authorized officers to be effective as of the
Effective Date as first written above.
DELL PRODUCTS L.P. COMMVAULT SYSTEMS, INC.
By: /s/ Illegible By: /s/ David R. West
Title: Director, WWP Title: VP Business Development
Date: Dec 22, 2003 Date: Dec. 18, 2003
8
EXHIBIT A
SOFTWARE COMPLIANCE QUESTIONNAIRE
NOTE: ENCRYPTED SOFTWARE EXPORT CONTROLS
In accordance with the U.S. Export Administration Regulations, certain software
and items possessing encryption capabilities may require formal export licenses
before they can be exported and/or re-exported from the United States.
In order to make proper licensing determinations of your software and/or
commodity it is essential that you complete the questions on the following page.
If you need assistance or have questions, please contact [***] at: [***] or tel:
[***].
If your software has not been classified and you have questions on how to
classify your software, refer to the BXA (Bureau of Export Administration)
Website at http://www.bxa.doc.gov. Under the category of Getting Help and
Contacting Us, click on the General Fact Sheets. Then click on Explanation of
what commodity classifications are or Guidance on requesting a commodity
classification.
If you are unable to provide the information required, please forward this
questionnaire to your Export Controls or Legal department.
This is a legal matter which deals with regulations on export controls and
compliance. We trust we can count on your maximum cooperation, in providing us
with the requested information by return fax to [***], or e-mail to [***].
Yours truly,
Dell, Inc.
Worldwide Export Compliance Organization
9
SOFTWARE QUESTIONNAIRE
COMPANY NAME: _________________________________________________________
PRODUCT NAME & VERSION NUMBER: ___________________________
COUNTRY OF ORIGIN: ____________
EXPORT COMMODITY CONTROL NUMBER (ECCN): __________________
LICENSE EXCEPTION: __________
IF YOUR LICENSE EXCEPTION IS ENC, HAVE YOU HAD YOUR 1X REVIEW FOR
RETAIL EXEMPTION? YES OR NO
CCAT NUMBER: _______________
IF PRODUCT IS 5D002, ENC, PLEASE PROVIDE A COPY OF THE BXA CLASSIFICATION
VERIFICATION (CCAT).
1. What is the functionality of your software (i.e.: word processing,
engineering/design, communication, operating system, etc.)?
_______________________________________________________________________
2. What type of equipment is the software used to support
(i.e.: telecommunications, manufacturing/test, computers, etc.)?
Please be specific.
_______________________________________________________________________
3. Is your software available to the public via sales from stock at retail
selling points by means of "over-the-counter" transactions, mail
order, or telephone call transactions (Mass Market)?
_________________________________________ IF YES, PLEASE FORWARD A COPY
OF BXA APPROVAL.
4. Is your software designed for installation by the user without further
substantial support (substantial support does not include telephone
(voice only) help line services for installation or basic operation, or
basic operation training provided by the supplier?
_______________________________________________________________________
5. Does your software or commodity have encryption capabilities?
_______________________________________________________________________
IF THE ANSWER TO QUESTION 5 ABOVE IS "NO", YOU DO NOT NEED TO COMPLETE THE
REMAINING QUESTIONS ON THIS FORM.
6. What function does the encryption provide (i.e.: password protection,
data encryption, etc.? Please be specific.
_______________________________________________________________________
7. Does the data encryption algorithm exceed a key space of 64 bits?
_______________________________________________________________________
8. What is the specific bit level of encryption?
_______________________________________________________________________
9. Does your software or commodity allow the alteration of the data
encryption mechanism and its associated key spaces by the user?
_______________________________________________________________________
10. Please provide a brief written summary of the encryption technology
used in the design of the software or commodity in question. Please be
sure to identify the type of algorithm used.
_______________________________________________________________________
10
11. Is there an EXPORT version of the software named above?
_______________________________________________________________________
THIS FORM COMPLETED BY:
Name: __________________ Title: ____________________ Signature: ________________
Date: _______________ Phone #: ____________________
11
PRICING SUPPLEMENT
TO THE
SOFTWARE LICENSING AGREEMENT
BETWEEN
DELL
&
COMMVAULT SYSTEMS, INC.
SKU DESCRIPTION [***] [***] MSRP DISCOUNT
CommServe [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
GalaxyExpress LAN Suite includes: [***] [***] [***] [***]
GalaxyExpress (key code upgrade to Galaxy)
1 Windows, Storage Server2003, Linux or Novell MediaAgent included
Includes support for up to 6 drive library for list of Dell supported
drives/libraries
3 FS Agents (can purchase more FS agents from list above) for Windows,
UNIX, Linux or Novell
1 Windows Application iDA (can purchase more Windows (only) APP agents from
list above)
Max 25 total clients (agents), no san spt + other Gexpress limitations
[***] [***] [***]
12
SCHEDULE C
ENTERPRISE SUPPORT
1.0 PURPOSE
This Schedule C describes the support and training terms and conditions
required by Dell.
The working relationship between Dell and the Supplier in addressing
different levels of customers' problems (severity incidents) should be a
consistent, smooth, understandable process. Dell customers should perceive
a seamless and efficient supporting organization that can meet their
expectations on all levels of support issues with:
- A sense of urgency
- A timely resolution
- Concern for the customer's situation
2.0 DEFINITIONS:
Severity 1 Support Request
A customer problem reported to Dell where immediate Supplier engagement
and assistance is required in providing resolution. A Severity 1 situation
is when any of the following conditions occur:
- A problem, which critically impacts the end customer's ability
to do business.
- A significant number of users of the system and/or network are
currently unable to perform their tasks as necessary.
- The system and/or network are down or severely degraded.
- A system or major application is totally down.
Severity 2 Support Request
A customer problem reported to Dell where urgent Supplier engagement and
assistance is required in providing resolution. A Severity 2 situation is
when any of the following conditions occur:
- A problem which impacts the end customer's ability to do
business, the severity of which is significant and may be
repetitive in nature.
- A function of the system, network or product is impacted
which impedes the customer from meeting daily production
deliverables.
Severity 3 Support Request
A customer problem reported to Dell where timely Supplier engagement and
assistance is required in providing resolution. A Severity 3 situation is
when any of the following conditions occur:
- - A problem, which negligibly impacts our customer's ability to do business.
- - May include questions and/or general consultation.
3.0 SUPPLIER SUPPORT INCIDENT RESPONSE BY SEVERITY
The Incident Severity levels defined below are utilized in establishing
the problem impact to the customer upon problem receipt and will be used
to set expectations between the parties of this agreement. Severities are
established by Dell during escalation to the Supplier and are subject to
change during the life of each specific incident.
3.1 SEVERITY 1: [***]
3.2 SEVERITY 2: [***]
3.3 SEVERITY 3: [***]
4.0 TECHNICAL SUPPORT PROCEDURES
[***].
Where the vendor performing installation and Professional Service
Offerings of their product, it is required that they have extensive
knowledge of the following hardware;
Dell Confidential 13
- Dell Servers and PowerVault Storage Products
- Dell|EMC SAN environments, including switches, hubs and HBAs
- Other major vendor's tape backup products.
LEVEL 1 SUPPORT means the services provided by a product trained Customer
Support Engineer in response to an End User's initial notification of a
suspected Problem. These services include, but may not be limited to, call
logging, entitlement verification, and closing the matter with the End
User after Problem Resolution. If escalation is required, all necessary
information will be gathered. Upon completion of information gathering,
escalation will occur to a Level 2 Support Engineer.
LEVEL 2 SUPPORT means the services provided by one or more trained senior
Customer Service Engineers ("CSEs") for detailed installation,
configuration information, integration information, compatibility
information, Problem isolation, troubleshooting, and determination of
whether a Problem is reproducible, with the intent to resolve the End
User's Problem. All resources including documentation, Knowledge Base
and/or Patch matrix should be consulted before escalation to a Level 3
Support engineer.
LEVEL 3 SUPPORT means the services provided by one or more CommVault
senior CSEs working in conjunction with development engineers to resolve
Problems in the Software that cannot be resolved with Level 2 Support or
are determined to be, or are highly probable to be, the result of a
design, implementation or product defect. The problem may also be related
to compatibility issues due to complex interaction between the Software
and a third party vendor's product.
When contacted for support by Dell, Supplier will respond according to the
support collaboration targets and guidelines in Section 5.0 below. Both
Dell and the Supplier will specify initial Technical Escalation Contacts
in ATTACHMENT 1, which may be updated from time to time by mutual written
agreement of the parties. Such written agreement may be in the form of
electronic mail.
4.1 TECHNICAL SUPPORT ENGAGEMENT
To ensure a smooth transition during technical collaboration or
escalation, it is essential that all parties remain engaged until the next
level is fully engaged, including access to all relevant contact
information and technical activity to date.
4.2 SOLUTION DELIVERY
[***].
4.3 THIRD PARTY DEPENDENCY
In the event that a Supplier is dependent upon a third party to
provide support for a product or product component, it is incumbent upon
the Supplier to establish an agreement with the third party, such that
the Supplier is capable of meeting the expectations identified in this
SLA by working through the 3rd party.
4.4 UNRESOLVED SEVERITY 1 PROBLEMS (SOFTWARE)
In the event of an unresolved Severity 1 problem for a
customer or Dell, that has not been resolved within the `Resolution
Target' timeframe defined below in Section 5.0, Supplier will [***].
5.0 SUPPORT COLLABORATION GUIDELINES AND RESOLUTION REQUIREMENTS
This section describes the collaboration target times. These
REQUIREMENTS ensure that additional resources are obtained in a
consistent, timely manner. These requirements are intended to minimize
customer impact and incident resolution time.
The following chart indicates, by severity, the Technical
Collaboration/incident resolution requirements Supplier must meet in
addressing customer incidents (the "RESOLUTION REQUIREMENTS"):
Dell Confidential 14
RESOLUTION OF MUTUAL CUSTOMER CASES
Each party shall endeavor to respond to and use commercially reasonable
efforts to provide Case Remedies in a timely manner in accordance with the
Priority Level identified in Exhibit C, and in accordance with that
party's support or maintenance agreement with such Mutual Customer.
Dell will use every effort available to resolve issues involving Dell
hardware and VENDOR software. Partnership of Escalated issues
In certain cases the customer may lack a clear understanding whether the
issue lies with THE VENDOR or Dell. In cases such as these Dell or THE
VENDOR will work jointly to resolve the issue. THE VENDOR and Dell will
provide real-time experts to work until resolution to the escalated issue
has been met. THE VENDOR and Dell are responsible for providing the
following for all Sev 1 and Sev 1-A issues:
1. [***].
2. THE VENDOR will provide engineering contacts for Dell's Global Product
Support Engineering team. Dell will also provide Engineering contacts to
THE VENDOR for issues that involve Dell products under the same
guidelines.( For long term sustaining issues). Requests from the customer
for root cause analysis shall be completed within [***] by Dell and THE
VENDOR
3. Depending on Severity of issue THE VENDOR will move the escalated
issues to the needed level. See table for timelines below.
<Table>
<Caption>
SEV 1-A SEV 1 SEV 2 SEV 3
THE VENDOR T1 [***] [***] [***] [***]
THE VENDOR T2 [***] [***] [***] [***]
THE VENDOR [***] [***] [***] [***]
Engineering
</Table>
4. If the need arises for on-site assistance, both Dell and THE VENDOR
will move experts on-site with a goal [***]. Due to the critical nature of
these escalations Dell and THE VENDOR will work out any costs associated
with these on-site visits on the backend. Need to determine what their
hourly cost is
5. Both Dell and the Vendor will provide single points of contacts on all
Severity 1-A and 1 issues. Dell utilizes a Technical Account Manager as
the single point of contact for areas involving severe escalations.
6. Dell and the Vendor will provide a list of executive contacts that will
be available [***] for engagement in escalations where process breakdowns
are occurring.
7. Executives, Managers and technical representatives from both companies
will participate in joint conference calls with the customer during
critical outages.
8. Dell and the Vendor will meet via conference call on a quarterly basis
to discuss performance on all escalated issues between the two companies.
9. THE VENDOR and Dell will provide 7X24 original ownership on all Sev 1-A
and Sev 1 issues (Sev 1 and Sev 1-A cases cannot be transferred to other
regions until the issues has stabilized)
5.1 STATUS UPDATES
Dell requires STATUS updates from the Supplier based on incident
severity. Unless otherwise agreed to, the schedule for status updates are
as follows.
Severity 1 = [***]
Severity 2 = [***]
Severity 3 a= [***]
These are recommended feedback intervals. Updating of S1 incidents every
[***] for customer review may inhibit the speed of resolution of the
incident. Dell and Supplier may agree on an alternative update time, per
incident.
For all Incidents, status will include WHAT the next action will
constitute and WHEN it will occur. If the next action is not delivered as
committed, a new status will be sent, prior to the deadline to reset the
expectations. Some additional clarification of roles/responsibilities is
as follows:
- [***].
Dell Confidential 15
- [***].
- [***].
- [***]:
1. [***], or
2. [***], and
3. [***].
- [***]
- See ATTACHMENT 1 for Management Escalation contact names and
telephone numbers for Dell and Supplier.
5.2 NON-INCIDENT SPECIFIC ENGAGEMENT OF THE SUPPLIER
In some circumstances Dell may require engagement of the
Supplier on issues other than a specific customer event. Supplier
agrees to work with Dell in good faith to address issues including,
but not limited to, Quality issues, Process improvements and
Information requests.
6.0 SUPPORT MANAGEMENT ESCALATION (NOTIFICATION)
6.1 ESCALATION CONDITIONS
Conditions that require escalating the incident to a higher level of
management include, but are not limited to, the following:
6.1.1 Established timeframe exceeded (notification to management)
- The agreed RESOLUTION REQUIREMENT time frame has passed
6.1.2 Exceptional circumstances (management decision or action
required). Some examples:
- Incident data is insufficient to start resolution
- The promised resolution to customer time line has passed
- The resolution resource is insufficient
- The resolution does not resolve customer's problem
- The resolution does not satisfy customer's requirements
7.0 SUPPORT RESOLUTION REQUIREMENTS PERFORMANCE
Dell and the Supplier will monitor their own performance against the
expected incident activity and resolution timeframes for each severity
level of incident.
Dell Performance Measures include without limitation:
- Incoming incident rate (known/unknown solution)
- Backlog
- # Resolved within guidelines
- Total Time to Solution Provided
- # of transfers to Supplier
- # of problem re-occurrences - Quality
Supplier performance measures include without limitation:
- Total # resolved within guidelines
- # Rejected (incomplete info. or problem known)
- Total Time to Problem Fix submitted
Dell Confidential 16
- # of problem Re-occurrence - Quality
7.1 SUPPORT EVALUATION
Following commercial release by Dell of the Supplier's product, and
no less frequently than twice per year, representatives from each party
will meet to review the performance of, and recommend improvements
regarding, the technical support provided by Supplier to Dell, and the
technical support provided by Dell to its customers, under this Agreement.
Either party can request a special meeting, or may call for a Root Cause
Analysis and Closed Loop Corrective Action Plan in the event that such
party has substantial concerns regarding a party's performance under this
Schedule C or results are not meeting the service levels stated in
SCHEDULE B to the Agreement (Quality Agreement).
8.0 SUPPORT TRAINING REQUIREMENTS
8.1 CONTENT
Supplier shall train a reasonable number of Dell technical support
personnel (and Dell-authorized third party support team members, if
applicable) at no additional expense to Dell. Supplier will provide this
training at Dell's regional offices worldwide to set up, install,
configure and operate the Supplier product (the "Initial Training"). This
Initial Training is intended to provide information required to diagnose
and resolve hardware or software issues. Supplier will provide an
additional in-depth technical training class at mutually agreed upon times
and locations.
The Initial Training will cover (at a minimum) the following information
related to the Dell version of the Supplier product design:
o Modular flow code walk-thru
o Engineering specifications
o New technology primer
o Error handling
o Trouble-shooting steps/procedures
o Diagnostic capability
o Delta's between the OEM or "Dell" version and retail version
o Basic product installation/re-installation procedures
o Driver installations/setup procedures
o Symptom-based Troubleshooting Tree/Process with isolation steps and
recommended corrective actions
o Known issues list
o Disassembly/Reassembly procedures
o Product White Papers if available
o Technical Case Studies based on tech support calls seen by the
Supplier
8.2 TRAINING PLAN
Supplier shall provide a written training plan to Dell not less than
ninety (90) days prior to Dell's commercial introduction of the initial
Supplier deliverables under this Agreement.
At a minimum, the training plan will include:
o Recommended course outline and objectives to be approved by Dell
o Course timeline based on course outline
o Target audience and expected prerequisites
o Technical requirements for training environment
o Instructor resumes demonstrating working proficiency with the
product, including working field experience
o Product FAQ's attachment
o Supplier product URLs available to the public
o List of the training deliverables
o Special equipment/tools required for Supplier training delivery
o List of all training contacts, including main point of contact
8.3 TRAINING COURSEWARE
Dell Confidential 17
Supplier shall provide a draft softcopy of all training courseware
not less than sixty (60) days prior to Dell's commercial introduction of
the initial Supplier Deliverables under this Agreement. Supplier shall
provide hardcopy of any required training materials for each student at
the time of training. Dell will retain the right to reproduce and
distribute all training materials to Dell employees and Dell-authorized
third party support team members.
8.4 TRAINING DELIVERY
Such training shall be completed not less than thirty (60) days
prior to Dell's commercial introduction of the initial Supplier
Deliverables under this Agreement. Additionally, training shall be
provided within thirty (30) days prior to each new release, major revision
and Update release at no expense to Dell at Dell's worldwide regional
offices.
8.5 TROUBLESHOOTING DOCUMENTATION
Supplier shall provide softcopy documentation describing without
limitation: (a) all known error codes and messages, (b) all known failure
conditions and potential symptoms, (c) steps to take in isolating a
failure to the proper root cause, and (d) recommended action(s) to
correct.
8.6 VIDEO PRESENTATION
Supplier hereby authorizes Dell to videotape any of the training
sessions to be performed by Supplier and hereby authorizes Dell to use
such videotapes for any additional training of Dell personnel, Dell
Resellers, Dell Subcontractors or Dell-authorized third party support team
members during the term of this Agreement.
8.7 SUBJECT MATTER EXPERT
Supplier shall make reasonably available to Dell a subject matter
expert who will be available to review modified Product Documentation
and/or editing of videos regarding the Product(s) for technical and
informational accuracy.
9.0 MUTUAL TRAVEL AGREEMENT
Dell and Supplier agree to jointly travel on-site to a customer
environment experiencing a problem that cannot be isolated or duplicated
remotely, if customer circumstances so warrant. Each party agrees to
initially bear its own costs that might arise in case of on-site travel.
If the reported problem is determined to be attributable to causes other
than Supplier's product(s), Dell will reimburse Supplier for its
reasonable out-of-pocket expenses incurred in connection with such on-site
support.
10.0 LICENSED PRODUCT USE FOR SUPPORT (SOFTWARE)
Supplier will provide Dell royalty-free copies of all supported software
products and documentation for the purpose of training and on-going
support.
11.0 SUPPORT PROCESSES
Both Dell and Supplier will document and maintain support contact detail,
problem reporting and statusing procedures, management escalation
contacts, problem resolution process flows and service level expectations
in ATTACHMENT 1. Additionally, detail should be included in SCHEDULE B to
the Agreement (Quality Agreement) that identifies problem-tracking
systems, problem documentation requirements for incident creation, and
problem support web sites available. This operational detail will be
utilized by both parties to ensure an efficient and high quality support
relationship for end customers.
12.0 CONTINUING SUPPORT AVAILABILITY (SOFTWARE)
Supplier's technical support will be available to Dell for code-level
issues on (a) all software releases, including all relevant software
versions and updates available for sale and (b) for the immediate prior
software release, including the most recent software version and update.
Supplier's technical support will be available to Dell for critical
problems at a minimum on the previous software release for the longer of
(i) the period of Supplier's warranty to Dell, or (b) 12 months after
current release is commercially available for sale to Dell customers.
13.0 SUPPORT SURVIVAL
Termination of this Agreement regardless of the reason shall not relieve
either party from its support obligations hereunder arising prior to such
termination. Rights and obligations defined in this Schedule that by their
nature should survive will remain in effect after termination or
expiration of the Agreement. Supplier will continue to provide Support
Dell Confidential 18
to Dell for no less than three (3) years after contract termination or
expiration. Should the parties agree to terminate the Agreement, they will
work together to develop a mutually agreeable plan to provide continued
services to affected Dell customers.
DELL PRODUCTS L.P. COMMVAULT SYSTEMS, INC.
By: /s/ Illegible By: /s/ David R. West
Title: Director, WWP Title: VP Business Development
Date: Dec 22, 2003 Date: Dec. 18, 2003
Dell Confidential 19