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EXHIBIT 10.01
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DEVELOPMENT AND LICENSE AGREEMENT
This Development and License Agreement (the "Agreement") is entered into
as of the Effective Date by and between Seagate Technology, Inc., a Delaware
corporation, with offices at 000 Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000
(together with its Affiliates, "Seagate"); and VERITAS Holding Corporation, a
Delaware corporation, with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000 and VERITAS Software Corporation, a Delaware corporation, with
offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000.
WHEREAS, the parties have entered into an Agreement and Plan of
Reorganization (the "Merger Agreement") pursuant to which VERITAS is acquiring
Seagate's subsidiary Network and Storage Management Group, Inc. ("NSMG") and
NSMG's software products; and
WHEREAS, the parties desire that Seagate have continued access to these
NSMG software products, as well as access to VERITAS' other current and future
products, and the technology therein, on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties agree:
1. Definitions and Related Matters.
1.1 "VERITAS" shall mean VERITAS Holding Corporation and/or VERITAS
Software Corporation.
1.2 "Software Products" shall mean the software products described
in Exhibit A attached hereto, in source code, object code, executable, or any
other form, and shall include (i) all Updates, and (ii) all Seagate
Developments. Each Software Product shall be either a Base Software Product, an
OEM Software Product or an Application Software Product. It is the parties'
intent and agreement that all VERITAS software products be included in Exhibit
A. Accordingly, if any such product is inadvertently omitted, Exhibit A shall
be deemed amended to include such product. "Software Products" shall include
all software products of each company acquired by VERITAS. If, however, VERITAS
is merged into a company with (A) assets and revenue larger than VERITAS', and
(B) its own line(s) of software products, in a transaction in which VERITAS is
not the surviving entity, then, as to the new, merged company as successor to
VERITAS in this Agreement, "Software Products" shall be limited to (1) all
VERITAS Software Products as of the date of merger, and all successor products
("Existing VERITAS Products"), and (2) all of the current and future software
products of the merged entity which relate to the same or similar businesses as
the Existing VERITAS Products.
1.3 "Base Software Products" shall mean those Software Products
which provide foundation storage management capabilities. The Base Software
Products as of the Effective Date are so specified in Exhibit A, Section A.
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1.4 "OEM Software Products" shall mean those Software Products (or
portions thereof) which are functional supersets of Base Software Products. The
OEM Software Products as of the Effective Date are so specified in Exhibit A,
Section B.
1.5 "Application Software Products" shall mean all Software Products
other than Base Software Products and OEM Software Products. "Application
Software Products" ordinarily are application products which function in
conjunction with a Base Software Product or OEM Software Product. The
Application Software Products as of the Effective Date are so specified in
Exhibit A, Section C.
1.6 "Documentation" shall mean the related materials customarily
supplied or made available by VERITAS to End Users of the Software Products, or
used for marketing the Software Products, including without limitation all
printed and on-line documentation, on-line help, training materials, and
collateral marketing materials.
1.7 "Software Copy" means a copy of a Software Product and the
supporting End User Documentation ("User Documentation").
1.8 "Media Kit" means the shrink-wrapped package containing a
Software Copy and associated User Documentation.
1.9 "License Key" means a series of characters which activates a
Software Copy for use.
1.10 "Update" to a Software Product shall mean any error correction,
update, upgrade, new version, new release, or other modification or addition
thereto.
1.11 "Release" of a Software Product means a new version of that
Software Product which includes the addition of a previously unincluded
function or feature to the Software Product (designated sequentially by VERITAS
as an increase to the left of the decimal point, e.g., "Release 1.0," "Release
2.0" etc.).
1.12 "End User" shall mean a person or entity which acquires a
Software Product for its own internal data processing requirements and not for
redistribution.
1.13 "Distributor" shall mean any distributor, OEM, VAR, reseller, or
other third party intermediary between Seagate (or its sublicensee) and an End
User in Seagate's (or, as applicable, its sublicensee's) Software Product chain
of distribution.
1.14 "Seagate Developments" shall mean all developments performed by
or for VERITAS, pursuant to Section 4 below.
1.15 "Statement of Work" shall mean a document, executed by the
parties and in the form attached hereto as Exhibit B, setting forth development
to be performed by VERITAS, at the request of Seagate, pursuant to this
Agreement.
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1.16 "Milestone" shall mean each development milestone identified in a
Statement of Work.
1.17 "Deliverables" shall mean the items to be delivered by VERITAS to
Seagate in connection with each Milestone, as set forth in a Statement of Work.
1.18 "Specifications" shall mean the technical and other specifications
for the Deliverables, as set forth in a Statement of Work.
1.19 "Development Schedule" shall mean the schedule for completion of each
Milestone, as set forth in a Statement of Work.
1.20 "OEM", with respect to each Software Product, shall mean a company
which distributes the Software Product with any added value, including but not
limited to distribution of the Software Product with, or for use with, that
company's products, bundling the Software Product with hardware or software, or
private labeling of the Software Product.
1.21 "Confidential Information" shall have the meaning specified therefor
in Section 12.1 below.
1.22 "Source Code" shall mean a Software Product in human readable form
(e.g., C/C++ code, and including all comments), together with all technical
documentation (e.g., flow charts) useful for a programmer to modify or
understand the code. With respect to build tools and other libraries, tools,
and all other items necessary to build, install, and test the product
("Tools"), Source Code shall include (i) a list of all commercially available
Tools for that product, and (ii) a copy of all other Tools for that product.
1.23 "Affiliate" of a party shall mean any entity which controls, is
controlled by, or is under common control with that party, where "control"
means ownership or control, direct or indirect, of fifty percent (50%) or more
of the stock or other equity interest entitled to vote for the election of
directors or equivalent governing body of the entity.
1.24 "Consumer Price Index" shall mean the Consumer Price Index, for All
Urban Consumers, Subgroup "All Items", for the San Francisco-Oakland-San Xxxx
Metropolitan Area (Base Year 1982-84=100), which is currently being published
by the United States Department of Labor, Bureau of Labor Statistics. If,
however, this Consumer Price Index is changed so that the base year is altered
from that used as of the Commencement Date, then the Consumer Price Index shall
be converted in accordance with the conversion factor published by the United
States Department of Labor, Bureau of Labor Statistics, to obtain the same
results that would have been obtained had the base year not been changed. If no
conversion factor is available or if the Consumer Price Index is otherwise
changed, revised or discontinued for any reason, there shall be substituted in
lieu thereof and the term "Consumer Price Index" shall thereafter refer to the
most nearly comparable official price index of the United States Government to
obtain substantially the same result as would have been obtained had the
original Consumer Price Index not been changed, revised or discontinued,
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which alternative index shall be selected by Seagate and shall be subject to
VERITAS' reasonable written approval.
1.25 "Applicable Product" shall mean, at any time, a software
product then within the scope of clause (i), (ii), (iii), (iv), (v), or (vi) of
Section 6.8(a) below.
1.26 "Competing Version" of an applicable Product shall mean a
version of that Applicable Product which is either (i) provided to Seagate by a
third party, or (ii) developed by or for Seagate without use of VERITAS software
or technology (i.e., is not developed by or for Seagate pursuant to Section 2.1
and is therefore not subject to this Agreement).
1.27 "Effective Date" shall mean the date of closing of the
Merger Agreement.
2. License Grants.
2.1 Licenses.
(a) VERITAS hereby grants to Seagate, under all copyrights
and other intellectual property rights pertaining to the Base Software Products,
a nonexclusive (except as set forth in Section 6.6 below), worldwide license (i)
to reproduce, use, modify and prepare derivative works and compilations of the
Base Software Products (including the Source Code thereof); (ii) to reproduce,
have reproduced, use, display, and distribute the Base Software Products
(including derivative works and compilations prepared pursuant to clause (i)),
in object code or executable form, directly to End Users and/or to or through
Distributors, provided that Seagate's right to distribute Base Software Products
shall be limited to distribution of Base Software Products bundled with Seagate
products which are bona fide Seagate products and which add value to the Base
Software Products; (iii) to reproduce, have reproduced, use, display and prepare
derivative works and compilations of the Documentation, and to distribute this
Documentation and derivative works and compilations thereof, directly to End
Users and/or to or through Distributors; and (iv) to sublicense Distributors to
exercise the rights in the preceding clauses (ii) and (iii), including the right
to grant further sublicenses. Seagate agrees, however, not to prepare a
derivative work, of a Base Software Products, that constitutes a product
comparable to a VERITAS OEM Software Products that is a full featured version of
that Base Software Product.
(b) VERITAS hereby grants to Seagate, under all copyrights
and other intellectual property rights pertaining to the OEM Software Products,
a nonexclusive (except as set forth in Section 6.6 below), worldwide license (i)
to reproduce, use, modify and prepare derivative works and compilations of the
OEM Software Products (including the Source Code thereof); (ii) to reproduce,
have reproduced, use, display, and distribute the OEM Software Products
(including derivative works and compilations prepared pursuant to clause (i)),
in object code or executable form, directly to End Users and/or to or through
Distributors; (iii) to reproduce, have reproduced, use, display and prepare
derivative works and compilations of the Documentation, and to distribute this
Documentation and derivative works and compilations thereof, directly to End
Users and/or to or through Distributors; and (iv) to sublicense Distributors to
exercise the rights in the preceding clauses (ii) and (iii), including the right
to grant further sublicenses.
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(c) VERITAS hereby grants to Seagate, under all copyrights and
other intellectual property rights pertaining to the Application Software
Products, a nonexclusive (except as set forth in Section 6.6 below), worldwide
license (i) to reproduce, use, modify and prepare derivative works and
compilations of the Application Software Products (including the Source Code
thereof) only for support and maintenance purposes; (ii) to reproduce, have
reproduced, use, display, and distribute the Application Software Products
(including derivative works and compilations prepared pursuant to clause (i)),
in object code or executable form, directly to End Users and/or to or through
Distributors; (iii) to reproduce, have reproduced, use, display and prepare
derivative works and compilations of the Documentation, and to distribute this
Documentation and derivative works and compilations thereof, directly to End
Users and/or to or through Distributors; and (iv) to sublicense Distributors to
exercise the rights in the preceding clauses (ii) and (iii), including the right
to grant further sublicenses.
(d) Seagate shall be entitled to retain contractors and
consultants in connection with the exercise of the above Source Code rights,
provided that such contractors and consultants are subject to confidentiality
obligations comparable to those to which Seagate is obligated pursuant to
Section 12 below.
(e) The license grants in this Section 2.1 include, without
limitation, a license under all current and future patents owned by or licensed
to VERITAS, to the extent necessary to exercise any of the foregoing rights.
Seagate will be entitled to reproduce its own Software Copies, and/or to obtain
Software Copies from VERITAS as set forth in Section 3 below for Software
Products for which VERITAS offers Media Kits.
2.2 Delivery of Software. Upon Seagate's request in each case, VERITAS
shall promptly provide to Seagate (i) at Seagate's option, one complete and
accurate "golden master" object code or executable copy of any or all of the
Software Products listed in Exhibit A and one complete and accurate copy of the
associated Documentation, and/or (ii) at Seagate's option, one copy of the
Source Code for that Software Product. Upon completion of development of each
additional Software Product (including each Update), VERITAS shall provide to
Seagate one complete and accurate "golden master" object code or executable copy
of that Software Product (or Update) and one complete and accurate copy of the
associated Documentation, for evaluation and use by Seagate. If Seagate has
requested the Source Code for any Updated Software Product, or if Seagate
requests the Source Code for a new Software Product, then VERITAS shall also
provide to Seagate the Source Code for the Update or Software Product. It is
understood, however, that some Software Products may include portions licensed
from third parties, for which VERITAS does not have the Source Code, or is not
permitted to sublicense the Source Code, and that VERITAS shall not be obligated
to provide such Source Code to Seagate. VERITAS agrees, however, to use
reasonable efforts to obtain the right to sublicense to Seagate any such Source
Code which VERITAS does have.
2.3 End User Licensing. Seagate will use an End User license agreement
for Software Products that includes provisions similar, as to protection of
VERITAS' interests, to Sections 2, 3, and 7 of Exhibit C hereto. It is
understood and agreed that, without limitation, this
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may be (i) a "shrinkwrap" agreement that appears on or in the software package,
(ii) an online agreement that appears on the End User screen when the software
is first used, and/or (iii) a "web wrap" agreement that appears before, or in
connection with, the End User's electronic receipt of the software.
2.4 Use of Distributors. Seagate shall be entitled to distribute
Software Products directly to End Users and/or through Distributors, in its
discretion. Seagate shall be entitled to sublicense Distributors to reproduce
Software Products for use and distribution by the Distributor, and shall be
entitled to sublicense End Users to reproduce Software Products for use by the
End User or its affiliated companies (e.g., site, enterprise, or multiple-seat
licenses). Except as may be expressly provided herein, there shall be no
restrictions whatsoever on which distribution channels Seagate may use.
2.5 License Keys. When necessary, VERITAS will supply Seagate with
all License Keys required by Seagate to exercise the rights and licenses
granted to Seagate.
2.6 Marketing Collateral. VERITAS will provide Seagate with marketing
materials, brochures, graphics, and all other similar existing materials, which
Seagate shall be entitled to copy and modify for use in connection with
marketing the Software Products. For VERITAS-branded Software Products, VERITAS
will provide to Seagate such quantities of such materials as Seagate may
reasonably require.
2.7 Trademarks. Seagate will market and distribute the VERITAS
Application Software Products under the applicable VERITAS trademarks. Seagate
will have the right to market and distribute the Base Software Products and OEM
Software Products under Seagate trademarks, under VERITAS trademarks, under
third party trademarks, or, if agreed, co-branded with VERITAS' and Seagate's
trademarks, under third party trademarks, or, if agreed, co-branded with
VERITAS' and Seagate's trademarks. VERITAS hereby grants to Seagate a
non-exclusive license to use "VERITAS," both the name and in the stylized form
used by VERITAS, and the applicable Software Product trademarks (the
"Trademarks") in connection with Seagate's distribution, advertising and
promotion of the Software Products. Seagate's use shall be in accordance with
the applicable law and VERITAS' reasonable policies regarding advertising and
trademark usage as established from time to time, but only to the extent such
policies are communicated in writing to Seagate with adequate notice.
2.8 Product Discontinuance. VERITAS has the right to discontinue any
Software Product, or the availability of Media Kits for any Software Product,
upon thirty (30) days prior written notice to Seagate. This shall not, however,
affect Seagate's and its Distributors' and other sublicensees' right to continue
to make and distribute Software Copies made by such parties pursuant to Section
2.1 above, provided that Seagate shall not, after such discontinuance, market or
distribute any discontinued Software Product under VERITAS' trademarks. VERITAS
shall provide Seagate at least twelve (12) months prior written notice of
discontinuance of support for any Software Product.
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2.9 Ownership.
(a) Subject to the rights and licenses granted herein and
except for the Seagate Developments, VERITAS shall retain its ownership of the
Software Products and Documentation supplied to Seagate by VERITAS. The rights
granted to Seagate are nonexclusive, and, except as set forth in Section 6.6
below, VERITAS reserves the right to distribute the Software Products directly,
and indirectly through OEMs, distributors, integrators, or otherwise.
(b) Subject to VERITAS' retention of ownership of the
underlying Base Software Product or OEM Software Product, Seagate shall own all
Base Software Product and OEM Software Product modifications and derivative
works prepared by or for Seagate pursuant to Section 2.1 above.
3. Orders For Media Kits and License Key Forms
3.1 Orders. For each Media Kit and License Key Seagate desires to
acquire from VERITAS, Seagate shall place a written zero dollar purchase order
with VERITAS. All orders placed with VERITAS for the Media Kits and/or License
Key forms shall be subject to acceptance be VERITAS, which acceptance shall not
be unreasonably withheld or delayed. If VERITAS is unable to accept a proposed
delivery date, VERITAS shall propose an alternative date as soon as possible
after the requested date. If orders for the Media Kits and/or License Keys
exceed VERITAS' inventory, VERITAS shall allocate available inventory on a
basis that provides Seagate no lesser priority than any other customer.
3.2 Forecast. Seagate agrees to submit to VERITAS an initial Media
Kt order forecast (in Software Product units) for the first six months
commencing after the Effective Date of this Agreement, and to update the six
(6) month forecast fifteen (15) days after the beginning of each calendar
quarter.
3.3 Shipments. All shipments are F.O.B. VERITAS' facility or
VERITAS' designated warehouse facility. Shipments will be any ground carrier
unless the order specifies otherwise. Media Kits and License Key forms will be
shipped within ten (10) working days from the date ordered by Seagate. Seagate
shall pay for all shipping costs associated with shipping Media Kits from
VERITAS to Seagate.
3.4 New Versions. VERITAS may, at its sole discretion, modify the
Software Products. Once a new version of the Software Product begins shipping,
Seagate has sixty (60) days from first VERITAS shipment date or from written
notification date, whichever is later, to return Media Kit inventory of the
prior release at its expense. Returned packages will be swapped by VERITAS
unit-for-unit with the Software Product for the new release of the same
Software Product and shipped to Seagate at VERITAS' expense. Only unopened
packages will be accepted.
3.5 Warranty. VERITAS warrants that, until ninety (90) days after
delivery to the End User, each Media Kit will be free of defects in materials
and workmanship. VERITAS's exclusive obligation shall be to promptly replace
each defective Media Kit returned to VERITAS
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during the warranty period. Seagate shall obtain a return materials
authorization (RMA) from VERITAS for each return, which RMA shall not be
unreasonably withheld or delayed. VERITAS shall be responsible for all
associated shipping costs.
4. Development by VERITAS.
4.1 Development.
(a) From time to time during the term of this Agreement, Seagate
may wish to develop new products or technologies, additional features,
derivative technologies, or enhancements of the Software Products (e.g., for
Seagate requirements not satisfied by VERITAS' then current Software Product
offerings), and/or to ensure or achieve integration with Seagate products. Each
product feature or other development pursuant to this section will be made
available to Seagate either as standard VERITAS Software Product or, if VERITAS
elects not to release such a standard Software Product, as a special Seagate
version.
(b) For each development requested by Seagate, VERITAS will,
within thirty (30) days after Seagate's request, provide Seagate with an initial
"Executive Response" as to whether VERITAS intends to perform such development.
VERITAS shall not unreasonably refuse to perform such development. If VERITAS
responds that it intends to perform such development, VERITAS shall, in a timely
fashion, commence work on preparation of a proposed Statement of Work, and in a
timely fashion provide to Seagate a good faith proposed Statement of Work. If
both parties determine that the development should proceed, then the parties
shall, diligently and in good faith, and in a timely fashion negotiate and
complete the Statement of Work for that development, including a reasonable
Development Schedule, in accordance with VERITAS' then-current "VERSE" software
development guidelines. At any time during preparation of the Statement of Work,
either party may decline to proceed with the development. If the parties agree
on a Statement of Work, VERITAS will in a timely fashion assign a competent,
appropriately staffed development team to perform such development and will
commence the development. Seagate will not unreasonably withhold its consent to
extensions of these time periods when the complexity or extent of the requested
development necessarily requires longer periods, so long as VERITAS is
diligently endeavoring to complete these activities in a timely fashion.
(c) VERITAS shall, diligently and in good faith, undertake
and complete the development activities of Seagate with respect to the Sun JINI
project that are outstanding as of the Effective Date. Seagate shall cooperate
reasonable to assist VERITAS in the transition of such activities to VERITAS.
(d) Each development team assembled and/or assigned by
VERITAS, pursuant to Section 4.1(b) or 4.1(c) above, shall be comparable in
expertise to other effective development teams assembled or assigned by VERITAS
to high priority development projects.
(e) Without limitation, Seagate shall be entitled to
develop, or have developed, any work requested by Seagate pursuant to this
section which VERITAS does not perform. If this work pertains to an Application
Product, then the license to Seagate, pursuant to
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Section 2.1(c) above (and particularly clause (i) thereof), with respect to
that Application Product, shall be deemed to include the right to perform such
work, and the ownership provisions of Section 2.9(b) shall extend thereto.
4.2 Delivery and Acceptance.
For each Statement of Work:
(a) VERITAS shall use diligent efforts to complete such Milestone,
and to deliver to Seagate all applicable Deliverables, in accordance with the
Development Schedule. Upon completion of each Milestone, VERITAS shall deliver
to Seagate all applicable Deliverables, including documentation, for evaluation
by Seagate pursuant to Section 4.2(b) below.
(b) Upon delivery to Seagate of the Deliverables for each Milestone,
including related documentation, Seagate shall evaluate such Deliverables for
conformity to the acceptance criteria in the Statement of Work and conformity
in all material respects to the Specifications. Seagate shall provide VERITAS
within thirty (30) days (or, if so specified, the applicable time period
specified in the Statement of Work) after delivery of such materials with
written acceptance thereof, or a statement of applicable defects to be
corrected. VERITAS shall promptly correct such defects and return the corrected
Deliverables for retesting and reevaluation, and Seagate shall within fifteen
(15) days (or, if so specified, the applicable time period specified in the
Statement of Work) after such redelivery provide VERITAS with written
acceptance or a statement of defects. If Seagate has not accepted any Milestone
within sixty (60) days of the applicable Milestone completion date set forth in
the Development Schedule, then the parties shall meet to determine, in good
faith, a mutually acceptable corrective plan. If Seagate determines that the
parties are unable to agree on a corrective plan, or if VERITAS fails to
perform its obligations in accordance with any agreed corrective plan, then
Seagate may, upon written notice to VERITAS, elect to terminate the Statement
of Work immediately on notice to VERITAS. Until such election to terminate by
Seagate, VERITAS shall continue to attempt to correct the defects and provide
conforming Deliverables. Upon such termination, VERITAS shall refund to Seagate
all amounts paid to VERITAS pursuant to that Statement of Work. Any failure of
Seagate to perform its obligations in any Statement of Work shall result in a
day-for-day extension of VERITAS' obligations in that Statement of Work which
are dependent on such performance by Seagate.
4.3 Royalties for Distribution of Developments. For Seagate Developments
resulting in new versions of Software Products, the royalties payable by Seagate
shall be based on the VERITAS the current list price for that new version, as
set forth in Section 5.1(c) below. For Seagate Developments resulting in new
products, the parties will agree upon any royalties to be paid to VERITAS for
distribution by Seagate of such new products. Any such royalties will be
reasonable and will reflect Seagate's most favored pricing status pursuant to
Section 5.8 below. Seagate will be entitled to distribute such completed
products pending completion of negotiation of any royalty amounts.
4.4 Ownership of Developments. Seagate and VERITAS will jointly and
equally own each development made pursuant to this Section 4, and all
intellectual property rights with
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respect thereto, with no duty to account, and VERITAS hereby irrevocably
transfers and assigns, and agrees to transfer and assign, such joint ownership
to Seagate. VERITAS agrees to execute such documents, render such assistance,
and take such other action as Seagate may reasonably request, at Seagate's
expense, to apply for, register, perfect, confirm, and protect Seagate's rights
in the jointly owned developments, including without limitation an assignment of
copyright. VERITAS hereby waives any and all moral rights, including any right
to identification of authorship or limitation on subsequent modification, that
VERITAS (or its employees, agents or consultants) has or may have in any such
jointly owned developments.
5. Payments to VERITAS.
5.1 Royalty.
(a) Seagate agrees to pay to VERITAS the applicable royalty for
each Software Product copy made (or acquired from VERITAS as a Media Kit) and
shipped by Seagate (or, if the copy is made by a Seagate Distributor, for each
such copy shipped by the Distributor) (in each case, other than replacement,
backup, or archival copies) net of returns, provided that no royalty shall be
payable with respect to (i) Software Products provided for demonstration,
support, promotional, evaluation (e.g., "Beta"), or marketing purposes, or for
use for a limited period for evaluation; (ii) Software Products provided as
warranty, maintenance, or other replacements; or (iii) Software Products used by
Seagate or its Affiliates as End Users.
(b) The royalty payable for derivative works of Software
Products prepared by Seagate (or for Seagate, except pursuant to Section 4
above) shall be the same as the royalty payable on the underlying Software
Product on which the derivative work is based.
(c) It is understood that royalties for OEM Software Products
and Application Software Products are normally a percentage of VERITAS' then
current list price for that Software Product, and that a different pricing model
will be established for Base Software Products.
5.2 Internal Use. Seagate and its Affiliates shall be entitled to
reproduce and use the Software Products as End Users at no charge and without
restriction as to number of copies or users.
5.3 Royalty Payments. Royalty payments shall be due within forty-five
(45) days after the end of each Seagate fiscal quarter, based on Software Copies
distributed by Seagate during that quarter. Royalty payments shall be
accompanied by a report stating the number of royalty bearing units which
Seagate shipped in that quarter.
5.4 Development Fees.
(a) For the development services described in Section 4 above,
Seagate will pay VERITAS at the "Annual Rate". The initial Annual Rate shall be
one hundred eighty thousand dollars ($180,000) per person-year. Commencing
January 1, 2002, the Annual Rate shall
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be adjusted to equal the product of the then current Annual Rate multiplied by a
fraction, the numerator of which is the Consumer Price Index published for the
December immediately preceding the January 1 in question and the denominator of
which is the Consumer Price Index published for the immediately preceding
December; provided, however, that any such increase in the Annual Rate shall not
be greater than seven percent (7%) of the immediately preceding Annual Rate.
(b) Seagate will recover any development fees or other NRE
charges paid to VERITAS by a fifteen percent (15%) reduction in the royalties
paid by Seagate to VERITAS, with respect to the product(s) resulting from that
development, until all such amounts are recovered by Seagate. Any amounts not so
recovered by Seagate upon termination of this Agreement shall be retained by
VERITAS.
5.5 Support Fees. For the support, maintenance, error correction, and
training services to be provided by VERITAS pursuant to this Agreement
(including without limitation to Seagate and its Affiliates as End Users),
Seagate shall pay, to VERITAS, VERITAS' standard fees therefor, provided that
the fees to Seagate in its capacity as an OEM, and not as an End User, shall be
no higher than the support, maintenance, or error correction fees charged by
VERITAS to any third party.
5.6 VERITAS Audit Rights. Until three (3) years after the applicable
royalty bearing event, VERITAS shall at any time, on at least ten (10) business
days prior notice to Seagate, be entitled to retain an independent certified
public accounting firm to audit the books and records of Seagate pertaining to
the payment of royalties to VERITAS hereunder, for the sole purpose of
confirming the accuracy of the royalty payments and no more frequently than once
in any twelve (12) month period. Any such audit shall be performed at VERITAS'
expense during normal business hours and, at Seagate's option, subject to the
accounting firm's agreement to comply with confidentiality obligations
comparable to those in Section 12 below. The accounting firm shall not, however,
be prohibited from reporting to VERITAS the results of the audit. In the event
of any discrepancy, the applicable party shall promptly remit to the other party
all amounts due.
5.7 Currency. All payments to VERITAS hereunder shall be in United
States dollars.
5.8 Most Favored Pricing.
(a) This Section 5.8(a) shall apply to Software Products which
Seagate bundles with Seagate products, and only with respect to such bundling.
Software Copies of these Software Products which are not so bundled shall be
subject to Section 5.8(b) below:
(i) With respect to Base Software Products and OEM Software
Products, Seagate will be entitled to purchase or license each such Software
Product at the lowest rate or price at which VERITAS provides the Software
Product, or any similar, competitive, or replacement Software Product, to any
third party, regardless of the type, quantity, volume and terms under which such
Software Products are provided to third parties, provided that this shall not
apply to Software Products provided by VERITAS to strategic partners at no
charge or a nominal fee.
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(ii) With respect to all other Software Products (i.e.,
Application Software Products, which Seagate ordinarily would not bundle),
Seagate will be entitled to purchase or license each such Software Product at a
mutually agreeable, economically attractive (to Seagate) price, considering
Seagate's hardware margin requirements and volumes, but also considering
VERITAS' reliance on these Application Products for a substantial portion of its
revenue as well as VERITAS' desire to maintain multiple channels of distribution
for such products.
(b) With respect to all Software Products which are not subject
to Section 5.8(a) above, Seagate will be entitled to purchase or license each
such Software Product at the lowest rate or price at which VERITAS provides the
Software Product, or any similar, competitive, or replacement Software Product,
to any similarly situated third party for similar volumes.
(c) VERITAS agrees that if it charges a lower such royalty to
any applicable third party during the term of this Agreement for the same or any
similar or competitive product, it will immediately notify Seagate in writing
and Seagate shall be entitled to amend this Agreement to provide the lower
royalty to Seagate thereafter.
5.9 Seagate Audit Rights. Seagate shall at any time, on at least ten
(10) business days prior notice to VERITAS, be entitled to retain an independent
certified public accounting firm to audit the books and records of VERITAS, for
the sole purpose of confirming VERITAS' compliance with Sections 5.5 and/or 5.8
above, and/or the accuracy of any notice by VERITAS to Seagate pursuant to
Section 6.6(b) below. Any such audit shall be performed at Seagate's expense
during normal business hours and, at Seagate's option, subject to the accounting
firm's agreement to comply with confidentiality obligations substantially
equivalent to those in Section 12 below. The accounting firm shall not, however,
be prohibited from reporting to Seagate the results of the audit. Any adjustment
resulting from an audit shall be retroactive to the date when Seagate was
entitled to the lower development fee or royalty, as applicable, pursuant to
this Section 5.
5.10 Taxes. Seagate will be responsible for all sales, use, or similar
taxes levied on Seagate's purchase of Media Kits, or on Seagate's payment of
royalties or other fees to VERITAS. With respect to sales of Media Kits by
VERITAS to non-U.S. Seagate Affiliates, the parties will cooperate to eliminate
any withholding tax, or to provide for a company with the opportunity to obtain
a tax credit thereon to pay the tax.
6. Marketing and Cooperation.
6.1 Press Release. Seagate and VERITAS agree to issue a joint press
release within fifteen (15) days after the Effective Date. The content of this
press release shall be mutually agreed, and the content of xxxxxx xxxxx
releases, pertaining to amendments to this Agreement, shall be mutually agreed,
except to the extent a party believes, in good faith, that unilateral disclosure
(including disclosure prior to such agreement as to content) is required by
law.
6.2 Marketing Plan. The parties will engage in cooperative joint
marketing efforts as mutually agreed. Unless otherwise agreed, the parties will
share the expenses for such efforts
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equally. These efforts may include, without limitation, joint press releases,
joint customer calls, marketing campaigns, Web pages, and trade shows.
6.3 Co-Branding of Products. From time to time, the parties may
agree to sell co-branded products, on terms and conditions to be mutually
determined.
6.4 Product and Technology Planning. Each party will assign a
program manager responsible for managing the parties' relationship established
by this Agreement. In addition, in order to ensure that Seagate is fully
informed, and has a forum for formal input, with respect to VERITAS products
and technology planning, (i) engineering representatives of the parties will
meet monthly to review ongoing development projects, if any; (ii) engineering
representatives of the parties will meet quarterly to review current VERITAS
Software Product and technology plans; and (iii) executive management
representatives of the parties will meet semiannually to review long term
planning. At Seagate's request, VERITAS will assign a VERITAS representative to
be a member of Seagate's Storage Architecture Committee. The VERITAS
representative will have appropriate technical expertise and, if appropriate,
at VERITAS's option, may be the above-referenced VERITAS program manager.
VERITAS acknowledges that acting as VERITAS' representative to the Storage
Architecture Committee may require 15% to 20% of that representative's time.
6.5 Product Integration. The parties will determine in good faith
integration guidelines for their respective products. For those Software
Products that Seagate chooses to distribute, VERITAS will use reasonable
efforts to ensure that all such appropriate Software Products and Updates are
compatible with Seagate products. In addition, in enhancing, migrating, or
developing new Software Products for new technologies (e.g., for fiberchannel
drives, gigabit Ethernet drives), VERITAS will use reasonable efforts to ensure
that all appropriate Software Products that Seagate chooses to distribute are
available for Seagate technologies no later than such Software Products, or
similar Software Products, are available for competing technologies.
6.6 Other OEMs.
(a) VERITAS will not (i) perform development for or with any
other disk drive company (i.e., any company that derives its primary revenue
from the sale of storage media manufactured by it (or for it by subcontract
manufacturers), and any company division which derives its primary revenue from
the sale of storage media manufactured by it (or for it by subcontract
manufacturers), nor (ii) enter into any OEM or other relationship with any disk
drive company in which the disk drive company is authorized to distribute any
Software Product (A) in the case of the Software Products released as of the
Effective Date, until twelve (12) months after the Effective Date, and (B) in
the case of each Software Product first released after the Effective Date, until
twelve (12) months after such release. Each VERITAS release of a new Release of
any Software Product shall restart this restriction for a new six (6) month
period, commencing with release of such Release. Seagate shall have no marketing
or other obligation arising out of this limited exclusivity. Clause (ii) of this
Section 6.6 shall not apply to such Software Products as the parties may, in
their discretion, agree. Clause (i) of this Section 6.6 shall not prohibit
VERITAS from porting (but not enhancing) its Software Products for operation on
disk drive companies' products, nor shall clause
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(i) prohibit VERITAS from performing development for or with disk drive
companies with respect to each Software Product after the expiration of the
time period specified in clause (ii) hereinabove with respect to that Software
Product. The parties acknowledge that, as of the Effective Date, the disk drive
companies are those specified in Exhibit G hereto.
(b) For purposes of this section:
"Seagate Royalties" means the amount of royalties payable
by Seagate under Section 5.1(a) for the prior Agreement Year, including without
limitation any amounts by which Seagate's royalties have been reduced pursuant
to Section 5.4(b) above.
"Top 10 Royalty Threshold" means the lesser of (i) one
million dollars ($1,000,000); and (ii) the tenth greatest amount of license
fees (but excluding maintenance, support, or other fees) paid to VERITAS by any
OEM of the Software Products during the prior Agreement Year. If less than ten
(10) OEMs have paid VERITAS license fees during the prior Agreement Year, the
Top 10 Royalty Threshold for such Agreement Year will be deemed to be zero.
"Agreement Year" means the twelve (12) month period
beginning on the Effective Date, and each twelve (12) month period thereafter
during the term of this Agreement.
The provisions of this Section 6.6 will continue in effect
automatically for the first four (4) Agreement Years. No later than thirty (30)
days after the end of the fourth Agreement Year, and each anniversary thereof
during the term of this Agreement, VERITAS shall notify Seagate of the Top 10
Royalty Threshold for the prior Agreement Year. If Seagate Royalties are no
less than the Top 10 Royalty Threshold, this Section 6.6 will automatically
renew in effect for the current Agreement Year. If Seagate Royalties are less
than the Top 10 Royalty Threshold then (x) Seagate may, at its sole option and
discretion, pay to VERITAS within thirty (30) days thereafter the difference
between the Top 10 Royalty Threshold and the Seagate Royalties; (y) upon such
payment, this Section 6.6 will automatically renew in effect for the current
Agreement Year; and (z) if Seagate fails to make such payment at the end of
such thirty (30) day period, this Section 6.6 will automatically cease in
effect.
6.7 Access to New Products. VERITAS will provide Seagate with access
to new products and technology no later than it provides such access to any
third party, and will use its reasonable efforts to provide earlier access to
Seagate on a "first look" basis.
6.8 Seagate Restrictions.
(a) During the term of this Agreement, Seagate agrees not to
compete directly or indirectly with VERITAS in the following business:
(i) on-line file management software used for system
recovery from operating system failure or disruption;
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(ii) on-line volume management software used to partition
files across multiple physical disks;
(iii) off-line backup and hierarchical storage management
software used for back-up and retrieval and movement of data between file
systems and storage devices;
(iv) storage resource management software used for
administrative management of hardware and software components;
(v) high availability software used to recover applications
after hardware failure such as FirstWatch or VERITAS Cluster Server; and
(iv) any other Software Product marketed by VERITAS during
the term of this Agreement, provided that, as to Seagate Software Information
Management Group, Inc., Seagate Software GmbH, Seagate Software Limited,
Seagate Software S.A., Seagate Software AB, Seagate Software Pte Ltd., Seagate
Software BV, Nippon Seagate Software KK, Seagate Software IMG GmbH, Seagate
Software Private Pty Ltd., Seagate Software IMG, Inc., and Seagate Software IMG
Ltd. (collectively, the "IMG Entities"), this clause (vi) shall apply only to
VERITAS storage management Software Products.
For purposes of this definition competing directly or
indirectly shall include (1) only activities wherein Seagate sells such
software exclusive of hardware or storage devices (i.e. selling a combined
storage hardware and software system (or subsystem) which includes such
software as part of a complete solution would not be considered competing
directly or indirectly irrespective of the type of software included) and (2)
conducting such businesses as partner, owner, consultant or investor of more
than five percent (5%) of the equity of interest of such competing business.
(b) Notwithstanding the foregoing, the provisions of Section
6.8(a) shall have no further force or effect if and when:
(i) Seagate provides VERITAS with six (6) months advance
notice of its intention to compete (the "Notice"),
(ii) The nominees/designees of Seagate who serve as members
of VERITAS' Board of Directors tender resignation from the Board with the
Notice,
(iii) Seagate remains bound by the obligations of Section
6.8(a) during such six (6) month notice period; and
(iv) Seagate ownership of VERITAS voting equity securities
is 10% or less of VERITAS' outstanding "Voting Power" (as such term is defined
in the parties' Shareholder Agreement).
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(c) The provisions of Section 6.8(a) shall not affect any
business of a successor to Seagate, but shall remain binding on Seagate whether
as a division, subsidiary or affiliate of such successor, provided that Section
6.8(a) shall not be binding in any way whatsoever on any successor(s) to any of
the IMG Entities.
(d) This Section 6.8 shall not apply to, and shall not prohibit,
restrict, or otherwise affect, any of Seagate's activities pursuant to this
Agreement.
6.9 Applicable Products.
(a) If Seagate desires to distribute an Applicable Product (which
may be, for example, a new feature or an entirely new product) which VERITAS
does not then offer, it shall first so notify VERITAS and provide VERITAS the
opportunity to provide the Applicable Product (e.g., as a new Software Product
or feature developed by VERITAS, or as a Seagate Development pursuant to
Section 4 above). If the parties are, for any reason, unable to agree on
VERITAS' providing that Applicable Product, or if VERITAS fails to provide the
Applicable Product as agreed, Seagate will be entitled to market and distribute
a Competing Version of that Applicable Product, notwithstanding Section 6.8(a)
above. In this event:
(i) If the proposed Applicable Product was a version of a
then existing Software Product, then Seagate's rights with respect to that
Software Product pursuant to Section 6.6(a) above shall terminate.
(ii) If the proposed Applicable Product was a new software
product, then Seagate's rights pursuant to Section 6.6(a) above with respect to
that Applicable Product, or any Software Product directly competitive with that
Applicable Product, shall terminate, provided that if thereafter VERITAS offers
a Software Product which is comparable to, competitive with, or a reasonable
substitute for that Applicable Product (regardless of additional features or
functionality), then VERITAS shall so notify Seagate and (A) if Seagate
substitutes the Software Product for the Competing Version, then Seagate will
retain its rights with respect to that Software Product under Section 6.6(a),
and (B) if Seagate does not substitute the Software Product for the Applicable
Product, then Seagate's rights pursuant to Section 6.6(a) with respect to that
Software Product shall terminate. Seagate shall communicate to VERITAS
Seagate's commitment to make any such substitution within sixty (60) days after
the later of receipt of the notice from VERITAS or VERITAS' release of the
Software Product, and Seagate shall have a reasonable time thereafter to effect
the substitution.
(b) Notwithstanding Section 6.8(a) above, Seagate will be
entitled to continue to distribute any non-VERITAS Applicable Products which,
as of the Effective Date, Seagate bundles with any of its hardware products.
If, however, after the Effective Date VERITAS introduces a new Software Product
that is a reasonable substitute for that Applicable Product, VERITAS shall so
notify Seagate, and (i) if Seagate substitutes the Software product for that
Applicable Product, then Seagate will retain its rights with respect to that
Software Product pursuant to Section 6.6(a), and (ii) if Seagate does not
substitute the Software Product for that Applicable Product, then Seagate's
rights pursuant to Section 6.6(a) with respect to that Software Product shall
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terminate. Seagate shall communicate to VERITAS any such commitment to make the
substitution within sixty (60) days after the later of receipt of the notice
from VERITAS or VERITAS' release of the Software Product, and Seagate shall
have a reasonable time thereafter to effect the substitution.
7. Software Support, Maintenance, and Training. VERITAS agrees to
provide to Seagate support, maintenance, and training for the Software Products
in accordance with Exhibit E. VERITAS will make available its standard end user
support to Seagate and its Affiliates as End Users. Seagate will loan to
VERITAS reasonable numbers of Seagate hardware products ("Loaned Equipment") to
the extent necessary for VERITAS to perform its obligations pursuant to this
section. Seagate shall retain title to and ownership of the Loaned Equipment,
and VERITAS shall promptly return Loaned Equipment to Seagate, in the same
condition as delivered to VERITAS (subject to normal wear and tear), upon
termination of VERITAS' support obligations with respect thereto normal wear
and tear), upon termination of VERITAS' support obligations with respect
thereto. VERITAS shall bear the risk of casualty loss to all Loaned Equipment
in its possession or control.
8. Term and Termination.
8.1 Term. This Agreement shall commence on the Effective Date and
shall continue in full force and effect for an initial term of ten (10) years
unless and until earlier terminated as set forth herein. This Agreement shall
automatically renew for additional twelve (12) month periods unless either
party gives written notice of its intent to terminate or renegotiate this
Agreement to the other party at lease sixty (60) days prior to the end of the
then current term.
8.2 Default. If either party defaults in the performance of any
of its material obligations hereunder and if any such default is not corrected
(or, in the case of defaults incapable of such cure, the defaulting party takes
reasonable actions to minimize the effects of the default) within forty-five
(45) days after it shall have been called to the attention of the defaulting
party, in writing, by the other party, then the other party, at its option,
may, in addition to any other remedies it may have, thereupon terminate this
Agreement by giving written notice of termination to the other party, provided
that any such termination by VERITAS shall not be effective unless and until
adjudication by a court of competent jurisdiction that Seagate has materially
breached this Agreement.
8.3 Insolvency. This Agreement may be terminated by either party,
on notice, (i) upon the institution by the other party of insolvency,
receivership or bankruptcy proceedings, or any other proceedings for the
general settlement of all or substantially all of its debts, (ii) upon the
institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in its favor within sixty (60) days thereafter,
(iii) upon the other party's making a general assignment for the benefit of
creditors, or (iv) upon the other party's dissolution or ceasing to conduct
business as a going concern.
8.4 Survival. Except as may be otherwise expressly set forth
herein, the parties' rights and obligations pursuant to Sections 2.9, 3.5, 4.4,
5.1 and 5.3 (as to the distribution prior to the effective date of termination
or expiration), 9, 10, 11, 12, and 13 shall survive any termination or
expiration of this Agreement. In addition, the parties' rights and obligations
pursuant to Section 7 shall survive until twelve (12) months after the
effective date of termination or expiration. After
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termination or expiration, Seagate shall be entitled to retain and use a
reasonable number of Software Copies, and documentation, for support and
maintenance purposes. In addition, VERITAS will cooperate with Seagate to enable
Seagate to continue to distribute Software products for a reasonable time to
effect an orderly phase out of such distribution. All Software Product End User
licenses, and Seagate's and its Affiliates' right to use, as End Users, Software
Copies existing as of the effective date of termination or expiration, shall
survive perpetually.
9. Representations and Warranties.
9.1 VERITAS represents and warrants that it has the right, power, and
authority to enter into and perform this Agreement, without breach of or
conflict with any other agreement or obligation of VERITAS.
9.2 VERITAS represents and warrants that it owns the Software
products and Documentation or otherwise has the right to grant to Seagate the
rights and licenses granted in this Agreement, provided that this representation
and warranty shall not apply to those Software Products acquired by VERITAS from
Seagate pursuant to the Merger Agreement, as set forth in Exhibit F, but further
provided that the preceding exclusion shall not apply to modifications or
additions in the Software Products made by or for VERITAS.
9.3 VERITAS represents and warrants that (i) to the best of its
knowledge and belief, the Software products and Documentation do not infringe
any intellectual property right, and (ii) VERITAS is not aware of any
infringement claim with respect to the Software Products or Documentation.
9.4 VERITAS warrants that the occurrence in or use by the Software
products of dates on or after January 1, 2000 ("{Millennial Dates") will not
adversely affect its performance with respect to date-dependent data,
computations, output, or other functions (including, without limitation,
calculating, comparing and sequencing) and that the Software products will
create, store, process and output information related to or including Millennial
Dates without error or omissions. VERITAS warrants that the Software Products
include calendar year 2000 date conversion and compatibility capabilities,
including, but not limited to, date data century recognition, same century and
multiple century formula and data value calculations, and user interface data
values that reflect the century, and that the Software Products will (i) manage
and manipulate data involving dates, including single century and multiple
century dates, and will not cause an abnormal abend or abort or result in the
generation of incorrect values or invalid output involving such dates; and (ii)
include the indication of the correct century in all date-related user interface
functionalities; and (iii) include the indication of the correct century in all
date-related system-to-system or application-to-application data interface
functionalities, provided that this warranty shall not apply to those Software
Products acquired by VERITAS from Seagate pursuant to the Merger Agreement, as
set forth in Exhibit F, but further provided that the preceding exclusion shall
not apply to modifications or additions in the Software products made by or for
VERITAS.
9.5 VERITAS represents and warrants that each Software Product, as
and when delivered by VERITAS, does not include any time bombs or other devices
intended to prevent use of
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the Software Product. VERITAS also represents and warrants that it uses
reasonable efforts to detect and eliminate code intended to damage, interfere
with, or otherwise adversely affect computer programs, data files, or hardware
without the consent or intent of the computer user, including without
limitation self-replicating and self-propagating programming instructions
commonly called viruses and worms, provided that this representation and
warranty shall not apply to those Software Products acquired by VERITAS from
Seagate pursuant to the Merger Agreement, as set forth in Exhibit F, but
further provided that the preceding exclusion shall not apply to modifications
or additions in the Software Products made by or for VERITAS.
9.6 Except as set forth in Section 3.5 above, VERITAS PROVIDES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SOFTWARE PRODUCTS AND DOCUMENTATION.
9.7 The warranty made by VERITAS in Section 9.4 shall not apply to, and
VERITAS will have no liability or responsibility for, any defect, error or
noncompliance in the Software Products attributable to (1) any modifications to
or repair of the Software Products made by Seagate, (2) operation of the
Software Products in conjunction with software or hardware not specified for
use with the Software Products in the written specifications or documentation
provided by VERITAS, (3) misuse of the Licensed Software or use of the Licensed
Software in a manner in violation of that specified in the written
specifications or documentation provided by VERITAS.
9.8 Seagate represents and warrants that it has the right, power, and
authority to enter into and perform this Agreement, without breach of or
conflict with any other agreement or obligation of Seagate.
10. Indemnities.
10.1 Infringement Indemnity. VERITAS, at its sole expense, will defend any
action brought against Seagate, any Seagate Distributors, or their End User
customer ("Indemnified Parties") to the extent based on a claim that any
Software Product or Documentation infringes any patent, copyright, trade secret
or other intellectual property right. VERITAS will pay and award against the
Indemnified Parties, or settlement entered into on the Indemnified Parties'
behalf, and will indemnify and hold Seagate harmless against all liability,
costs, expenses, and direct damages suffered or incurred by Seagate, based on
such infringement or claim thereof, provided however that Seagate shall notify
VERITAS promptly in writing of the claim, shall provide reasonable assistance
(at VERITAS' expense) in connection with the defense and/or settlement thereof,
and shall permit VERITAS to control the defense and/or settlement thereof. Any
settlement which restricts any of Seagate's rights, licenses, or activities, or
requires the payment of money by Seagate (whether or not such payment is
indemnified hereunder) shall be subject to Seagate's prior written approval,
which approval shall not be unreasonably withheld. Seagate shall be entitled to
retain, at its expense so long as VERITAS performs its obligations pursuant to
this section, counsel to participate in the defense and settlement of any
claim. VERITAS shall have no liability to the extent the alleged infringement
is caused by any modification of the Software Products or Documentation other
than by
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VERITAS, or by combination of the Software Products or Documentation with
Seagate products or other non-VERITAS programs, where the unmodified Software
Products or Documentation alone would not have given rise to the claim. In the
case of any such excluded claim Seagate shall defend and indemnify VERITAS to
the same extent, and subject to the same conditions, as provided herein. The
foregoing states the exclusive remedy of VERITAS and the sole liability of
Seagate for intellectual property infringement.
10.2 VERITAS Infringement Options. In the event any Software
Product or Documentation is held to infringe any intellectual property right,
or if use or distribution of the Software Product or Documentation is enjoined,
then VERITAS shall, at its sole expense, use diligent efforts to (i)
appropriately modify the Software Product and/or Documentation licensed
hereunder to eliminate the infringement, or substitute another Software Product
and/or Documentation which does not infringe any third party intellectual
property rights, provided that the modified or substitute Software Product and
Documentation is equivalent in all material respects; or (iii) obtain a license
with respect to the applicable third party intellectual property rights. In the
event that VERITAS is not able to achieve (i) or (ii) above, VERITAS shall
refund to Seagate all payments made by Seagate hereunder with respect to
affected Software Copies.
10.3 Exclusive Remedy. Except as set forth in Section 10.4 with
respect to Section 9.3, the foregoing states the exclusive remedy of Seagate
and the sole liability of VERITAS for intellectual property infringement.
10.4 Indemnity. VERITAS will indemnify and hold Seagate harmless
against all liability, costs, and expenses (including without limitation
attorneys fees) arising out of any claim against Seagate arising out of any
breach by VERITAS of any of the representations or warranties set forth in
Sections 9.1, 9.2, and 9.3 above.
11. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY
CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. The foregoing
limitations, however,(i) shall not limit either party's obligations, with
respect to liability to third parties pursuant to Section 10 above, and (ii)
shall not affect either party's liability, if any, for contribution or
indemnity with respect to third party claims for personal injury, death, or
physical damage to property.
12. Confidentiality.
12.1 Confidential Information. As used in this Agreement, the
term "Confidential Information" shall mean program source code and associated
technical documentation and any information disclosed by one party to the other
pursuant to this Agreement which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in some
other manner to indicate its confidential nature. Confidential Information may
also include oral information disclosed by one party to the other pursuant to
this Agreement, provided that such
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information is designated as confidential at the time of disclosure and is
reduced to writing by the disclosing party within a reasonable time (not to
exceed thirty (30) days) after its oral disclosure, and such writing is
marked in a manner to indicate its confidential nature and delivered to the
receiving party.
12.2 Confidentiality. Each party shall treat as confidential all
confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party except as may be
necessary or useful in connection with the exercise of rights or the performance
of obligations pursuant to this Agreement, and subject to confidentiality
obligations comparable to those set forth in this Section 12. Without limiting
the foregoing, each of the parties shall use at least the same degree of care
which it uses to prevent the disclosure of its own confidential information of
like importance to prevent the disclosure of Confidential Information disclosed
to it by the other party under this Agreement. Each party's obligations
pursuant to this section shall expire, with respect to any Confidential
Information, four (4) years after the initial disclosure of that Confidential
Information to that party.
12.3 Exceptions. Notwithstanding the above, neither party shall
have liability to the other with regard to any Confidential Information of the
other which:
(i) was in the public domain at the time it was disclosed or
has become in the public domain through no fault of the receiving party;
(ii) was known to the receiving party, without confidentiality
restriction, at the time of disclosure;
(iii) is disclosed with the prior written approval for the
disclosing party,
(iv) was independently developed by the receiving party
without any use of the Confidential Information;
(v) becomes known to the receiving party, without
restriction, from a source other than the disclosing party without breach of
this Agreement by the receiving party and otherwise, to the best of the
receiving party's knowledge, not in violation of the disclosing party's rights;
or
(vi) is disclosed generally to third parties by the disclosing
party without restrictions similar to those contained in this Agreement.
In addition, neither party shall have liability pursuant to this section for
disclosures required by the order or requirement of a court, administrative
agency, or other governmental body; provided, that such party shall provide
prompt, advanced notice thereof to enable the other party to seek a protective
order or otherwise prevent such disclosure.
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13. General
13.1 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, without
reference to conflict of laws principles.
13.2 Confidentiality of Agreement. Each party shall be entitled
to disclose the existence of this Agreement, but agrees that the terms and
conditions of this Agreement shall be treated as Confidential Information and
shall not be disclosed to any third party; provided, however, that each party
may disclose the terms and conditions of this Agreement.
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
(iii) to legal counsel of the parties;
(iv) in confidence, to banks investors and other financing
sources and their advisors;
(v) in connection with the enforcement of this Agreement
or rights under this Agreement; or
(vi) in confidence, in connection with an actual or
prospective merger or acquisition or similar transaction.
13.3 Partial Invalidity. If any provision in this Agreement shall
be found or be held to be invalid or unenforceable in any jurisdiction in which
this Agreement is being performed, then the meaning of said provision shall be
construed, to the extent feasible, so as to render the provision enforceable,
and if no feasible interpretation would save such provision, it shall be
severed from the remainder of this Agreement, which shall remain in full force
and effect. In such event, the parties shall negotiate, in good faith, a
substitute, valid and enforceable provision which most nearly effects the
parties' intent in entering into this Agreement.
13.4 Independent Contractors. The parties hereto are independent
contractors. Nothing contained herein or done in pursuance of this Agreement
shall constitute either party the agent of the other party for any purpose or in
any sense whatsoever, or constitute the parties are partners or joint ventures.
13.5 Modification. No alteration, amendment, waiver, cancellation
or any other change in any term or condition of this Agreement shall be valid
or binding on either party unless the same shall have been mutually assented to
in writing by both parties.
13.6 Waiver. The failure of either party to enforce at any time
any of the provisions of this Agreement, or the failure to require at any time
performance by the other party of any of the provisions of this Agreement,
shall in no way be construed to be a present or future waiver of such
provisions, nor in any way affect the right of either party to enforce each and
every such
-22-
24
provision thereafter. The express waiver by either party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
13.7 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party shall assign any of its rights,
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party. Notwithstanding the foregoing,
however, either party may assign this Agreement to a successor in interest (or
its equivalent) of all or substantially all of its relevant assets, whether by
sale, merger, or otherwise. Any attempted assignment in violation of this
section shall be void. Any assignee (by operation of law or otherwise) shall,
as a condition of such assignment, agree in writing with the non-assigning
party to perform the assigning party's obligations pursuant to this Agreement.
13.8 Notices. Any notice required or permitted to be given by either
party under this Agreement shall be in writing and shall be personally
delivered or sent by commercial courier service (e.g., DHL), or by first class
mail (certified or registered), or by telecopy confirmed by first class mail
(registered or certified), to the other party at its address first set forth
above, or such new address as may from time to time be supplied hereunder by
the parties hereto. If mailed, notices will be deemed effective three (3)
working days after deposit, postage prepaid, in the mail.
13.9 Force Majeure. Notwithstanding anything else in this Agreement,
and except for the obligation to pay money, no default, delay or failure to
perform on the part of either party shall be considered a breach of this
Agreement if such default, delay or failure to perform is shown to be due to
causes such as strikes, lockouts or the labor disputes, riots, civil
disturbances, actions or inactions of governmental authorities or suppliers,
epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or
the public enemy, nuclear disasters, default of a common carrier, or similar
causes beyond reasonable control of the party charged with a default.
13.10 No Third Party Beneficiaries. Unless otherwise expressly
provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person or entity other than VERITAS and Seagate any
rights, remedies or other benefits under or by reason of this Agreement.
13.11 Counterpart Originals. This Agreement may be executed in two
(2) or more English language counterparts or duplicate originals, all of which
shall be regarded as one and the same instrument, and which shall be the
official and governing version in the interpretation of this Agreement.
13.12 Entire Agreement. The terms and conditions herein contained,
including exhibits, constitute the entire agreement between the parties and
supersede all previous agreements and understandings, whether oral or written
and including the parties' Term Sheet, between the parties hereto with respect
to the subject matter hereof.
-23-
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first
above written.
SEAGATE TECHNOLOGY, INC. VERITAS HOLDING CORPORATION
By: /s/ XXXXXX X. XXXXXXXX By: /s/ XXXX XXXXXX
----------------------------- -----------------------------
Print Name: XXXXXX X. XXXXXXXX Print Name: XXXX XXXXXX
---------------------- --------------------
Title: SENIOR VICE PRESIDENT Title: PRESIDENT & CEO
--------------------------- ---------------------------
VERITAS SOFTWARE CORPORATION
By: /s/ XXXX XXXXXX
-----------------------------
Print Name: XXXX XXXXXX
--------------------
Title: PRESIDENT & CEO
---------------------------
26
EXHIBIT A
Software Products
All software products (including each new version and release thereof) offered
for sale, license, or distribution by VERITAS during the first ten (10) years of
the term of this Agreement, and including, without limitation:
A. Base Software Products
Volume Manager Lite
File System Lite
B. OEM Software Products
Volume Manager Full
File System Full
Clustered Volume Manager
Clustered File System
C. Application Software Products
NetBackup
HSM
Clustered Server
Storage Replicator
Storage Manager
Storage Optimizer
Editions
"Software Products" also includes the products set forth in Exhibit F
hereto. The parties shall, in good faith, classify each such product, and each
new VERITAS product, as a Base Software Product, OEM Software Product, or
Application Software Product.
27
EXHIBIT B
Form of Statement of Work
[Attached]
28
STATEMENT OF WORK (SOW)
PROJECT DEFINITIONS AND DELIVERABLES
__________________ PRODUCT
1. SCOPE
This Statement of Work documents the deliverables and timetable for the
_______________ Product to be supplied to Seagate. It defines the
responsibilities and deliverables of both parties in the execution of this
project.
2. CONTACTS.
-------------------------------------------------------------------
Technical Project Program Manager
Manager
-------------------------------------------------------------------
VERITAS
-------------------------------------------------------------------
SEAGATE
-------------------------------------------------------------------
3. PRODUCT OVERVIEW
4. FEATURES OF THE PRODUCT
5. DOCUMENTATION
6. VERITAS WORK/ACTIVITIES
7. SEAGATE WORK/ACTIVITIES
8. VERITAS DEPENDENCIES
9. DELIVERABLES.
-------------------------------------------------------------------
DELIVERABLE FROM TO DATE
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
29
EXHIBIT C
End User License
[Attached]
30
IMPORTANT
READ THIS CAREFULLY BEFORE OPENING THE MEDIA PACKAGE
DO NOT OPEN THE MEDIA PACKAGE OR USE THIS SOFTWARE UNTIL YOU HAVE READ THIS
SOFTWARE LICENSE AGREEMENT. BY OPENING THE MEDIA PACKAGE (OR AUTHORIZING ANY
OTHER PERSON TO DO SO), YOU ACCEPT THE SOFTWARE LICENSE AGREEMENT. IF YOU DO NOT
ACCEPT THE TERMS AND CONDITIONS OF THE SOFTWARE LICENSE AGREEMENT, YOU MAY
RETURN THE MEDIA PACKAGE AND ALL ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS
AND BINDERS OR OTHER CONTAINERS), TO THE PLACE YOU OBTAINED THEM FOR A FULL
REFUND; OR YOU MAY WRITE, LICENSING DEPARTMENT, X.X. XXX 00000, XXXXXX XXXXXX,
XX 00000.
SEAGATE SOFTWARE LICENSE
1. GRANT OF LICENSE. Seagate Software, Inc. ("Seagate"), grants to you, the
end user, a personal, nonexclusive license to use one copy of this software
program, including any updates, additional modules, or additional software
provided by Seagate in connection therewith (the "Software"), solely for your
own use, and solely in accordance with the terms and conditions of this license
agreement. You may copy the Software into the memory of any computer, solely as
necessary to use the Software in accordance with this license agreement. You may
use one copy of the Software (Single Server or Enterprise Edition), and related
documentation (a) on a single backup server at any one time (b) you may use a
single copy of the agent/module Software on an unlimited number of workstations
connected to the backup server (c) you may use a single copy of the Remote
Admin. Utility on an unlimited number of workstations connected to the backup
server and (d) you may copy the software program into any computer-readable or
printed form for backup or modification purposes required in support of your use
of the software program.
2. COPYRIGHT AND COPIES. The Software (including any copy thereof), is owned
by Seagate or its suppliers and is protected by United States copyright and
patent laws and international treaty provisions. The Software copy is licensed,
not sold to you, and you are not an owner of any copy thereof. You may either
(a) make one copy of the Software solely for backup or archival purposes, or (b)
transfer the Software to a single hard disk provided you keep the original
solely for backup or archival purposes. You may not otherwise copy the Software,
and you may not copy the written materials accompanying the Software. Seagate
hereby reserves all rights not explicitly granted in this software license
agreement.
3. OTHER RESTRICTIONS. You may not rent or lease the Software, but you may
transfer the Software and accompanying written materials on a permanent basis
provided you retain no copies and the recipient agrees to the terms of this
Agreement. If the Software is an update, any transfer must include the update
and all prior versions. You may not modify or translate the Software. You may
not reverse engineer, decompile or disassemble the Software, except to the
extent expressly authorized by applicable law.
-1-
31
4. DUAL MEDIA. If the Software package contains more than one form of media,
such as a 3.5" diskette and a CD-ROM, then you may use only the media
appropriate for your single-user computer. You may not use the other media on
another computer or loan, rent, lease, or transfer them to another except as
part of the permanent transfer (as provided above), of all Software and written
materials.
5. LIMITED WARRANTY AND REMEDY. Seagate warrants the physical media (e.g.
diskette(s) or CD-ROM), and the physical documentation, to be free of defects in
materials and workmanship for a period of 90 days from the original purchase
date. If Seagate receives notification within this warranty period of any such
defects and such notification is determined to be correct, Seagate will, at its
sole option and discretion, repair or replace the media or documentation, or
provide you a full refund. The foregoing is your sole and exclusive remedy
arising out of this warranty. This limited warranty is void if the damage or
defect has resulted from accident, abuse or misapplication.
6. NO OTHER WARRANTIES. THE LIMITED WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES FOR THE SOFTWARE AND DOCUMENTATION. SEAGATE MAKES NO OTHER
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS
ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT FOR THE
SOFTWARE AND DOCUMENTATION.
7. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT AND UNDER NO LEGAL THEORY SHALL SEAGATE OR ITS SUPPLIERS BE LIABLE TO YOU
FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE
OF, USE OF, OR INABILITY TO USE ANY SEAGATE SOFTWARE OR DOCUMENTATION, EVEN IF
SEAGATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
SEAGATE'S LIABILITY EXCEED THE LICENSE FEE PAID BY YOU. THIS LIMITATION OF
LIABILITY AND RISKS IS REFLECTED IN THE PRICE OF THE SOFTWARE LICENSE.
8. TERM. This license is effective until terminated. You may terminate it at
any time by destroying the Software together with all copies, modifications and
merged portions in any form. It will also terminate automatically upon your
failure to comply with any term or condition of this Agreement. In the event of
such termination, you agree to promptly destroy the Software together with all
copies, modifications and merged portions in any form.
9. MISCELLANEOUS. This is the entire Agreement between you and Seagate, and
supersedes any prior agreement, whether written or oral, relating to the
subject matter of this Agreement. The parties disclaim the application of the
United Nations Convention on the International Sale of Goods. This Agreement is
governed by the laws of the State of California, U.S.A., without
32
reference to conflict of laws principles. You may not export or re-export the
Software or documentation without the appropriate United States or foreign
government licenses. If any provision of this Agreement is ruled invalid, such
invalidity shall not affect the validity of the remaining portions of this
Agreement.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and accompanying
documentation are deemed to be "commercial computer software" and "commercial
computer software documentation," respectively, pursuant to DFAR Section 227.
7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction
release, performance, display or disclosure of the software and accompanying
documentation by the U.S. Government shall be governed solely by the terms of
this Agreement and shall be prohibited except to the extent expressly permitted
by the terms of this Agreement.
You must affix the following legend to each copy of the Software:
Use, duplication, reproduction, or transfer of this commercial Software and
accompanying documentation is restricted in accordance with FAR 12.212 and DFARS
227.7202 and by a license agreement. Contact Legal Department, Seagate
Software, X.X. Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxx, 00000 X.X.X.
33
EXHIBIT D
[INTENTIONALLY BLANK]
34
EXHIBIT E
Support, Maintenance, and Training
1. DEFINITIONS
1.1. "Release" means the addition by VERITAS of a previously unincluded
function or feature to the Software Product (designated sequentially
by VERITAS as "Release 1.0," "Release 2.0" etc.).
1.2. "Version" means the addition by VERITAS of a function or feature of
the Software Product, or any change made by VERITAS, to the Software
Product which improves its performance, including all Patches and Bug
Fixes made to the Software Product since the last previous Version
(designated sequentially by VERITAS as "Version 1.1," "Version 1.2"
etc.).
1.3. "Patches and Bug Fixes" means any minor change made by VERITAS to the
Software Product, including changes made for purposes of maintaining
operating system and database system compatibility, error correction,
workarounds and patches (designated sequentially by VERITAS as
"Version 1.1.1", "Version 1.1.2" etc.).
1.4. "1st Level Support" means the initial response (and any follow-up
response as appropriate) to an End User initiated support request.
1st Level Support includes call logging, initial information
gathering, verification of entitlement to support, answering product
installation, configuration or usage questions, and problem
isolation, identification, and replication. 1st Level Support may
also include providing standard fixes and workarounds to known
problems.
1.5. "2nd Level Support" means technical support staff performs problems
isolation, identification, and replication; and/or providing standard
fixes and workarounds to known problems; providing remedies for both
new and known complex problems.
1.6. "3rd Level Support" means backup engineering and technical support
staff isolates a problem/error and implements a solution, including,
but not limited to, a Software Product change.
1.7. "Severity Level 1" is an emergency condition which makes the use or
continued use of any one or more functions impossible. The condition
requires an immediate solution that is not already available.
1.8. "Severity Level 2" is an emergency condition which makes the use or
continued use of any one or more functions difficult and which cannot
be circumvented or avoided on a temporary basis.
35
1.9. "Severity Level 3" is a limited problem condition which is not
critical in that no loss of data occurs and which can be
circumvented or avoided on a temporary basis.
1.10. "Severity Level 4" is a minor problem condition or documentation
error which can be easily circumvented or avoided. Additional
requests for new feature suggestions which are defined as new
functionality in existing Software Products are also classified as
Severity Level 4.
2. VERITAS' OBLIGATIONS
2.1. During the term of the Agreement, VERITAS will provide 2nd and 3rd
Level Support to Seagate 24 hours a day, 365 days a year for all
Software Products. For the avoidance of doubt, VERITAS will provide
such support for the current and immediately preceding two (2)
Releases of each Software Product, including all interim Versions.
2.2. For all Seagate-branded Software products, if VERITAS provides 2nd
Level Support directly to End Users, such support shall be
represented as Seagate support. The parties will agree on a process
for accomplishing this. Seagate acknowledges that there may be an
additional charge for this arrangement.
2.3. For all VERITAS-branded Software Products, VERITAS will be
responsible for providing 1st Level Support to Seagate's End Users,
and VERITAS shall inform such End Users that all calls should be
made first to VERITAS.
2.4. VERITAS support personnel will respond to and correct identified
problems based on the correction periods set forth in Table A below.
Depending on the severity of the problem, VERITAS support staff will
contact Seagate by telephone, electronic mail or fax, as
appropriate. High severity problems will be given priority over
fixes for low severity problems. For Severity Level 1 problems,
VERITAS will use continuous efforts until the problem is corrected.
2.5. VERITAS will provide a call tracking ID# for each call opened by
Seagate, and will respond to information requests using an agreed
upon template with that call tracking ID#.
2.6. VERITAS will at all times adhere to standard call policy/procedures
and release policy/procedures.
2.7. VERITAS will make available to Seagate all generally available
defect correction patches.
2.8. During the term of the Agreement, VERITAS shall, at its expense,
provide Seagate with one (1) course per Software product of basic
training and of advanced training for Seagate employees engaged in
the technical support and training of the Software
36
Product. This will include "Train the Trainer" type training to
Seagate technical support operations, as well as providing support
documentation and support tools, as available, for use by Seagate
and/or its Distributors. Training will be at Seagate's facilities in
California, or such other mutually agreeable facility. Seagate will
reimburse reasonable, preapproved travel and related expenses incurred
by VERITAS in providing training. Seagate may record any or all
training courses on video tape and may reproduce and distribute such
recordings, for internal use only, under Seagate's name and at
Seagate's expense. Upon each Release of the Software Product or new
Version of the existing Software Product with substantial functional
changes, VERITAS shall provide to Seagate sufficient technical
training relating to such Release or Version.
3. SEAGATE'S OBLIGATIONS
3.1. For all Seagate-branded Software Products, Seagate shall be
responsible for providing 1st Level Support to Seagate's End Users,
and Seagate shall inform its End Users that all calls should be made
first to Seagate.
3.2. Seagate's technical support contacts must complete training courses on
the Seagate-branded Software Products before providing product support
services. Technical support contacts must be able to isolate, debug
and resolve complex system administration issues.
3.3. Seagate's technical support contacts shall fully document and isolate
reported problems and attempt to eliminate other causes of the problem
(such as application software errors, equipment incompatibility or End
User modifications) before contacting VERITAS support personnel.
VERITAS shall only be responsible for supporting the Software Product
as provided to Seagate.
3.4. Seagate must inform its End User customers that all calls for support
of Seagate-branded Software Products should be made first to Seagate.
Seagate shall also maintain an open call throughout the resolution
process and will hold the primary responsibility for the End-User
support customer contact.
TABLE A
--------------------------------------------------------------------------------
SEVERITY LEVEL ACKNOWLEDGMENT ERROR CORRECTION
--------------------------------------------------------------------------------
1 1 hour 24 hours
--------------------------------------------------------------------------------
2 24 hours 10 days
--------------------------------------------------------------------------------
3 2 days 30 days
--------------------------------------------------------------------------------
4 5 days Provided in next Version
--------------------------------------------------------------------------------
37
EXHIBIT F
Software Products Acquired from NSMG
NSMG/SMG Products
Ashwin
Backup Exec Desktop 98/95
Backup Exec for Windows NT
Backup Exec for Windows NT Server
Backup Exec NetWare
Backup Exec NT Work Station
Backup Exec OS/2 Warp
Backup Exec Small Business Server
Backup Exec Windows NT Options
Client Exec
Desktop Storage
Direct Tape Access
DMS
Exec View
Image Option
LANAlert
Manage Exec
Nerve Center
Open File Option
RAIDirector
Replication Exec
Server Management Bundle
Storage Area Network (SAN/NAS)
Storage Exec
Storage Exec Netware
Storage Exec Windows NT
Storage Migrator
Storage Resource Manager
Sytos Premium
Visual Storage Administrator
WinINSTALL
XxxXXXX
WinSMART
38
EXHIBIT G
Disk Drive Companies
* (and Affiliates)
* (and Affiliates)
The disk drive divisions of the following companies (or their Affiliates)
*
*
*
*
*
*
*
*
provided that, as applicable, these companies, and these divisions of these
companies, shall not be considered disk drive companies, for purposes of
Section 6.6(a) of this Arrangement, for the purpose of distributing Software
Products in conjunction with storage arrays and network attached storage
cabinets (collectively, "Array Products"), provided further that any
integration of Software Products with these Array Products must be at the Array
Product, and not at the disk drive, level.
* Confidential treatment has been requested with respect to this material. This
material has been omitted in reliance on the request for confidential
treatment. The material has been filed separately with the Securities &
Exchange Commission.
