EXHIBIT 10.16
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT NO. 1 TO Enterprise license agreement
This Amendment No. 1 to Enterprise License Agreement (this "Amendment") is
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entered into as of September ___, 1999 (the "Effective Date") by and between
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Tioga Systems, Inc., a Delaware corporation ("Tioga"), and Bear Xxxxxxx & Co.,
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Inc., a Delaware corporation ("Bear Xxxxxxx").
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Whereas, the parties desire to amend the Enterprise License Agreement
by and between the parties dated as of May 27, 1999 (the "Agreement") as set
forth in this Amendment;
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, the parties agree as follows:
1. Unless otherwise specifically defined herein, the capitalized terms in
this Amendment have the definitions set forth in the Agreement.
2. Except as expressly amended by this Amendment, the terms and conditions
of the Agreement remain in full force and effect.
3. The Agreement, as amended, and this Amendment together constitute the
entire agreement between the parties concerning its subject matter, and
supercede any prior or contemporaneous agreements whether written or
oral. In the event of any conflict or inconsistency between the
Agreement and this Amendment, this Amendment shall prevail and control.
4. The Agreement is hereby amended by adding an Exhibit E & F attached
hereto.
5. This Amendment may be amended or modified only by a subsequent writing
signed by both parties to this Amendment. If any provision of this
Amendment is declared invalid, illegal or unenforceable, such provision
shall be severed and all remaining provision shall continue in full
force and effect. This Amendment may be executed in counterparts, each
of which shall be an original as against any party whose signature
appears on such counterpart and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute and deliver this Amendment as of the Effective Date
set forth above.
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
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/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
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Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
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Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 9/29/99 Title 10/6/99
EXHIBIT E
ADDITIONAL LICENSED MATERIALS
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I. Description and Specifications of Software:
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Latest Version of Tioga Self-Healing System in object code format.
II. Number of Network Computers and Workstations Licensed
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Catalogue Number and Program Name Number of Authorized Copies
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11-00001 Tioga/Desktop Agent See Scope below.
11-00002 Tioga/Mobile Agent See Scope below.
11-00006 Server Agent See Scope below.
11-00011 Tioga/Administration and Healing Console - Enterprise See Scope below.
License
11-00050 Xxxxxxx.xxx Portal See Scope below.
Scope: This is an [***] License deal with a term of three (3) years. Bear
Xxxxxxx may deploy any mixture of Desktop, Mobil, and/or Server agents to their
[***] customer machines during the term of the agreement. At the end of the
three years, Bear Xxxxxxx will have a perpetual right to use the number of
licenses deployed during the term of this agreement.
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
--------------------------------------- --------------------------------------
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
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Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
--------------------------------------- -------------------------------------
Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 9/29/99 Title 10/6/99
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT F
ADDITIONAL PAYMENT TERMS AND FEE SCHEDULE
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I. Payment Terms:
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The Fees described in VI. below will become due and payable on the following
terms; (i) payments tied to dates will be due and payable net 30 days of the
date (ii) deployment and implementation fees related to the [***] Support
Portal ("Portal") will be due net [***] days after the [***]. The Portal will be
considered [***] when Tioga notifies Bear Xxxxxxx in writing of the [***], and
Bear Xxxxxxx does not, within [***] business days, notify Tioga in writing of
[***]. If Bear Xxxxxxx notifies Tioga of [***] within [***] days, Tioga will
have [***] business days to address the issues raised and [***]. This process
will continue until Bear Xxxxxxx does not notify Tioga within [***] business
days, in writing, of [***] of the [***], at which point the [***].
II. Software License Fees
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Item Fees
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License Fees $[***]
III. Technical Support Fee Schedule
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Item Fees
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Standard Technical Support (Year 1) [***]
Standard Technical Support (Year 2) $[***]
Standard Technical Support (Year 3 - [***]%) $[***]
IV. Deployment and Implementation Fee Schedule
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Item Fees
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Creation of Bear Xxxxxxx branded [***] Support $[***]
Portal, including web-based integration with Remedy.
Additional integration work and portal services
consulting to be mutually agreed upon.
V. Training
------------ Fees
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Training Onsite at Bear Xxxxxxx Facilities [***]
Additional training for Bear personnel will be provided [***] to Bear
(based on space available) for 3 years, provided Bear personnel attend training
at Tioga's offices in Redwood City, CA.
VI. Payment of Fees
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All fees are due and payable net 30 days from receipt of invoice. Payments are
due according to the following schedule:
. $[***] due September 30, 1999.
. $[***] due December 31, 1999.
. $[***] due upon delivery and acceptance of final [***] Support
. Portal, estimated 2/15/2000.
. $[***] Maintenance Fee due September 30, 2000
. $[***] Maintenance Fee due September 30, 2001
. Beginning September 30, 2002, Maintenance fee due annually in advance at a
rate of [***]% of license fees billed to date (increased annually based on
the percentage increase reflected in the CPI) .
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
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/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
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Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
--------------------------------------- -------------------------------------
Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 9/29/99 Title 10/6/99
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
