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Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as [*]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
EXHIBIT 10.9
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") is dated as of the 2nd
day of December, 1998 (the "Effective Date"), by and between Motive
Communications, Inc., a Delaware corporation ("Licensor"), located at 2112
Rutland Drive, Suite 150, Austin, TX 78758 and Dell Products L.P., a Texas
limited partnership ("Dell"), located at One Dell Way, Round Rock, Texas 78682.
Dell Computer Corporation ("DCC") and any of its majority owned corporate
subsidiaries or affiliates may enjoy the benefits of this license, but all
liabilities or obligations incurred by Dell, DCC, or any of DCC's subsidiaries
or affiliates under this Agreement will be the sole responsibility of Dell.
WHEREAS, Dell wishes to buy certain Products; as more specifically described in
this Agreement including any Schedule attached hereto ("Schedule");
WHEREAS, Dell may want to establish other relationships with Licensor as
identified in Attachment 1 to this Agreement; and, as such, at Dell's
discretion, Licensor agrees to cooperate and in good faith discuss broadening
their relationship;.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
sufficiency of which is hereby acknowledged, both parties agree as follows:
1. Definitions.
1.1 "Derivative Work" means a work that is based upon the Products, such
as revision, modification, translation, abridgement, expansion or any form in
which such pre-existing work may be recast, transformed or adapted.
1.2 Motive Assistant - a downloadable software component that runs on an
end user machine. It provides an electronic support request interface and local
diagnostic capability for end users.
1.3 Specifications - The applicable Licensor user documentation and
release notes provided at time of Products (s) delivery.
2. Grant of License.
2.1 Licensor grants to Dell an irrevocable, nontransferable, perpetual
(subject to the terms of Section 11 "Term and Termination"), nonexclusive,
worldwide royalty-free, fully paid up license (the "License") to install,
reproduce and use the software program(s) (the "Software") and related
documentation and other materials, including electronic format, (the
"Documentation") described on Schedule B (collectively, the "Products"), subject
to the terms of this Agreement. The number of copies of the Products subject to
the License is stated on Schedule B. Dell may not modify, decompile, reverse
engineer, disassemble or create derivative works based on the Products without
the prior written consent of Licensor. Except as outlined in Section 14 in this
Agreement, Dell may not sell, assign, transfer, or grant rights in the Products
to any other person or entity without the prior written consent of Licensor.
2.2 Use for Single User License: If the License is designated on Schedule
A as a Single User License, each licensed copy of the Software may be used only
by a single user on a single computer at any one time.
2.3 Use for Networked Software License: If the License is designated on
Schedule A as a Network License, Dell may install each licensed copy of the
Software on the number of file servers designated on Schedule A for use in a
network environment. Any number of users designated on Schedule A may access
and use the Software
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on these file server(s) through workstations or other terminals located at DCC's
facilities or at remote log-on sites so long as all users are Dell employees or
contractors and all use is directly related to Dell's business purposes.
2.4 Use for Enterprise License: If the License is designated on Schedule
A as an Enterprise License, any number of users may install and use the Products
in connection with one or more computer systems now or in the future owned or
controlled by DCC.
3. Copies.
3.1 Dell may make a reasonable number of copies of the Products for
emergency, backup, or archival purposes and a reasonable number of library
copies of the Products for the purposes permitted by Section 1. Dell may not
use more than the number of copies which it has licensed. Dell may make
additional copies of the Documentation, but only for distribution to persons
authorized to use the Software. Copies of any copyright notices or other
proprietary legends must be included within the material reproduced by Dell.
4. Delivery and Installation.
4.1 Concurrently with the execution of this Agreement, Licensor will
deliver to Dell the number of licensed copies of the Products as stated on
Schedule B. The Software will be delivered in object code format on diskette,
tape or other format reasonably specified by Dell on Schedule B. A copy of the
Documentation will be delivered on diskette, tape or other format reasonably
specified by Dell on Schedule B and will be accompanied by a printed copy of the
Documentation. If Licensor fails to deliver to Dell the number of licensed
copies of the Products as stated on Schedule B, Dell may make up to the number
of copies stated on Schedule B, in addition to the copies permitted by Section 2
above. Dell will provide Licensor with access to all equipment and systems
software, including any communication devices, as may be required for the
installation, operation or maintenance of the Software. Dell will be
responsible for installation of the Products. Further, for a separate fee and
under a separate Schedule, Dell may procure from Licensor certain deployment
services including without limitation installation and consulting services.
5. Pricing; Payment
5.1 The total price for the Products, including the cost of any support
and maintenance for the warranty period, is stated on Schedule B (the "Price").
Dell agrees to pay Licensor the full Price within [*] days after receipt of an
invoice for the Products which Licensor will deliver after this Agreement has
been executed by both parties. Unless set forth otherwise in a Schedule as a
fixed-term deployment services package, Licensor will invoice on a monthly basis
for time and material services actually performed. Dell will pay for acceptable
time and material services within [*] days after receipt of an invoice. For
deployment services packages, Dell will pay [*] at the completion of the
installation. Dell will pay Licensor for paying all applicable sales, use and
similar taxes associated with Dell's acquisition of the Products, except for
taxes based on Licensor's net assets or net income, or for which Dell has an
appropriate resale or other exemption. All payments will be in U.S. currency
unless otherwise agreed to on a Schedule. Except for any taxes associated with
exporting or importing the Products to a country outside the United States, all
other taxes, including income tax, due on income received by Licensor from Dell
under this Agreement or any other debts, obligations, or other liabilities
whatsoever will be the responsibility of Licensor. All invoices will reference
this Agreement, the applicable Order number, and be mailed to:
Dell Computer Corporation
Accounts Payable
One Dell Way
Round Rock, TX 78682-1810
Dell's obligations to pay all due and owing accrued charges shall survive the
expiration or termination of this Agreement. If Licensor has charges remaining
unpaid for sixty (60) days beyond the date payment is due, Licensor shall send a
certified letter with return receipt to the Dell contact stating the amount
owed. If payment is not received within fifteen (15) days, Licensor will have
the right to terminate support services until such payment is made.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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6. Pre-Delivery Testing, Delivery and Acceptance
6.1 Prior to delivery, Licensor shall perform all testing necessary to
ensure that the Product(s) comply with its written Specifications. Licensor
shall appoint a designated project manager who shall be available on a dedicated
basis to support Dell in all areas relating to the Product(s). Such designated
project manager will work with Dell on any modifications to the Product(s)
necessary to fully support Dell's systems and their features.
6.2 During the acceptance/warranty period, Licensor shall, at its expense,
deliver a master copy of the Product(s) to Dell in accordance with the
timeframes set forth in the Schedule. Licensor also shall, at its expense,
deliver to Dell, within fifteen (15) days of Dell's request, all Updates to the
Product(s) made during the term of this Agreement. Licensor shall inform Dell
of the existence of a major Update at least ninety (90) days prior to making
such an Update generally available. Upon Dell's request, Licensor shall provide
Dell with a pre-release copy of any Update.
6.3 Acceptance testing for a new Licensor product. During the term of
---------------------------------------------
this Agreement, Licensee may test any new product of Licensor (the "New
Products"). New Products are software products not currently (as of the
Effective Date) licensed by Licensee or under an evaluation agreement. Upon
Dell's receipt of a New Product, Dell shall have [*] days to conduct those tests
that Dell deems appropriate to determine whether the New Product: (i) complies
with and performs to the written Specifications. If Dell discovers a non-
conformance with the Specifications, Dell will notify Licensor in writing and
Licensor will have fifteen days (15) to fix the problem and deliver a corrected
version of the New Product to Dell. Upon receipt of the corrected version, Dell
will have fifteen (15) days to test the corrected version of the New Product. If
Dell determines that there is still a problem, Dell will have the option of
rejecting the New Product or agreeing upon a fix strategy with Licensor. If Dell
rejects the New Product, any payments previously made by Dell to Licensor
relating to the New Product, if any, shall be refunded in their entirety within
thirty (30) days of Dell's rejection. If Dell decides to agree on a fix
strategy, such decision shall not be deemed an acceptance of the New Product. In
fact, each version of the New Product delivered to Dell, in accordance with the
fix strategy, will go through the acceptance process set forth above. If Dell
gives no notification within the [*] day period, the products will be deemed
accepted.
7. Source Code Provisions.
7.1 Licensor will provide source code and supporting documentation to
Dell, at no additional cost, upon occurrence of one of the following incidences:
a) If Licensor or Licensor's controlling entity declares bankruptcy,
liquidation, or is put into Receivership.
b) If, for any reason, Licensor or Licensor's controlling entity
abandons or discontinues offering the Products to its customers and
discontinues the support and maintenance of the Products, leaving no
successor in interest supporting the Products, or without making a
functionally equivalent product substitution available. This section
7.1(b) only applies to discontinued Products for which Dell has paid
for the latest maintenance support.
7.2 Source Code Use Provisions. If a release incident occurs and Licensor
is required to release source code in accordance with this Section 7, Dell shall
be entitled to receive from Licensor a copy of all source code and source
documentation for the Product(s) licensed by Dell to be used by Dell solely for
the maintenance thereof ("Maintenance Materials"). Subject to compliance with
all other terms of this Agreement, Dell will have a nonexclusive, non-
sublicenseable license to use the Maintenance Materials only to support and
maintain copies and use of Product that are and continue to be licensed under
this Agreement; provided that, in addition to any other confidentiality
obligations in this Agreement, Dell acknowledges that the Maintenance Materials
are extremely valuable, extraordinarily confidential and key strategic assets of
Licensor and agrees to employ at least the following protective measures with
respect thereto:
(a) keeping the Maintenance Materials solely at a Dell owned and
operated site;
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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(b) maintaining internal access to the Maintenance Materials in a
secure environment and only on a non-networked computer the access to
which is physically limited, monitored and recorded;
(c) insuring Dell does not decompile, reverse engineer, disassemble,
create derivative works, or use Maintenance Materials to develop a
competitive product;
(d) allowing access to the Maintenance Materials only to Dell's
employees who need them to perform software maintenance authorized
hereunder,
(e) restricting the number of Product licenses in use to the
quantities of licenses purchased by Dell (except for the Motive
Assistant which Dell has unlimited deployment ability per this
Agreement);
(f) insuring Maintenance Materials are identified as Confidential
Information under Section 14 whether or not marked confidential
(g) otherwise taking all steps that Dell uses to protect its own
important source code and its own most confidential information. Dell
acknowledges that violation of this Paragraph 7.2 will cause
irreparable harm to Licensor and that Licensor may not have an
adequate remedy at law and injunctive or other equitable relief may be
appropriate to restrain unauthorized use or other violation of this
Paragraph 7.2.
8. Warranty; Disclaimer.
8.1 Licensor warrants that the Products will, under ordinary use, perform
substantially in accordance with the Specifications and all other technical
requirements of this Agreement; and the media contained in the Products will be
free from defects in design, workmanship and materials.
8.2 Licensor warrants that all Products delivered hereunder shall: (a) be
new, free from defects in material, workmanship and title; and (b) after
shipment to Dell, comply, function, and perform substantially in accordance with
the Specifications. Additionally, Licensor warrants that the Products shall be
able to accurately process date data (including, but not limited to,
calculating, comparing, and sequencing) between the twentieth and twenty-first
centuries (including, but not limited to, the change from December 31, 1999 to
January 1, 2000 and recognition of the Year 2000 as a leap year). Licensor will
warrant Year 2000 capabilities for thirty six (36) months from the effective
date of this agreement. Licensor further warrants that its internal business
applications and processes (including manufacturing, testing and inspection
processes) shall be able to accurately process date data as described above, and
shall recognize the Year 2000 as a leap year. Licensor agrees to complete
Dell's Year 2000 Business Partner Readiness Certification as requested by Dell;
Licensor warrants that the information contained therein shall be true and
accurate on an ongoing basis. At Dell's request, Licensor agrees to provide
Dell with written information verifying Year 2000 readiness as stated in
Licensor's completed Year 2000 Business Partner Readiness Certification.
8.3 Licensor agrees to make available to Dell, during the warranty period
for the Products, any updates or upgrades that Licensor may develop for the
Products. Updates (which term will include any bug fixes) will be furnished to
Dell at no additional charge no later than the date the relevant update is
released to other customers who license the Products. As set forth in the
applicable Schedule, Licensor will promptly notify Dell as updates and upgrades
become available and released by Licensor for general availability. All updates
and upgrades will be subject to the applicable provisions in the Agreement and
will substantially function and perform in accordance with the specifications.
Licensor further warrants that no update or upgrade will adversely affect form,
fit, function, reliability, safety, or serviceability of the Products, or the
Products' compliance with this Agreement. During the warranty period and during
the period Dell is covered by a Licensor maintenance program, Dell will have the
right to obtain upgrades (which term includes changes or additions to the basic
program functions from the Products).
8.4 Licensor will have no obligation under this Section 7 to the extent
problems are caused (i) by a malfunction of computer hardware or software other
than the Products, (ii) an unauthorized modification of the Products by Dell for
such modifications, (iii) by any combination, operation, or use of the Products
with systems other than those that may be contemplated by this Agreement or the
Specifications or that may otherwise be approved by Licensor, (iv) by Dell's
failure to use reasonable efforts to implement at least the second most recent
update provided to Dell by Licensor, or (v) by Products being subjected to
neglect, accident or the elements.
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8.5 Licensor further warrants that the Products will be provided free and
clear of all liens, restrictions, reservations, encumbrances, and security
interests of all kinds. Licensor further warrants that it is a duly organized
corporation in good standing under the laws of the State of Delaware, that it is
qualified to transact business in all states where the ownership of its
properties or nature of its operations requires this qualification, that it has
full power and authority to enter in and perform this Agreement, that the
execution and delivery of this Agreement has been duly authorized and that this
Agreement does not violate any law or breach any other Agreement to which
Provider is a party or is bound.
8.6 Except for paragraph 7.2, the warranties defined in this section 7
will apply. All warranties will apply for a period of [*] days from the date of
product delivery. If, during the warranty period, it is determined that the
Products do not operate according to the Specifications, Licensor will at its
option, either (i) repair or replace the Products or (ii) return the price paid
for the Products.
8.7 EXCEPT AS STATED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. Proprietary Rights; Indemnification.
9.1 All intellectual property rights of Licensor with respect to the
Products will remain the property of Licensor, except as may be provided in this
Agreement.
9.2 Licensor represents and warrants that the Products are free from
defects in title and that it has sufficient right, title, and or interest in and
to all copyrights, trademarks, patents, trade secrets and other proprietary and
intellectual property rights relating to the Products to enter into and perform
under this Agreement and to grant the rights and licenses in this Agreement.
LICENSOR WILL INDENINIFY, DEFEND, AND HOLD DCC, AND ANY AUTHORIZED USERS OF THE
PRODUCTS, HARMLESS FROM AND AGAINST ANY AND ALL AMOUNTS A COURT HAS AWARDED OR
AGREED UPON IN SETTLEMENT, INCLUDING ALL REASONABLE ATTORNEY'S FEES, AND RELATED
EXPENSES RESULTING FROM ANY THIRD PARTY CLAIMED INFRINGEMENT OR VIOLATION OF ANY
COPYRIGHT, TRADEMARK, PATENT, TRADE SECRET OR OTHER PROPRIETARY OR INTELLECTUAL
PROPERTY RIGHT WITH RESPECT TO THE PRODUCTS OR THEIR INSTALLATION, REPRODUCTION
OR USE IN ACCORDANCE WITH THIS AGREEMENT. FOLLOWING NOTICE OF A CLAIM OR A
THREAT OF ACTUAL SUIT, LICENSOR WILL, AT ITS OWN EXPENSE AND AT LICENSOR's
OPTION, (I) PROCURE FOR DELL THE RIGHT TO CONTINUE TO INSTALL, REPRODUCE AND USE
THE PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT; (II) PROVIDE DELL WITH A
MODIFIED, NON-INFRINGING VERSION OF THE PRODUCTS, PROVIDED THE MODIFICATIONS
MATERIALLY CONFORM TO THE SPECIFICATIONS; OR (III) FULLY REFUND TO DELL ALL
AMOUNTS PAID TO LICENSOR FOR THE PRODUCTS.
9.3 Dell agrees to notify Licensor promptly of any suit or claim of which
it has knowledge, and furnish Licensor with a copy of each communication,
notice, or other similar materials received by Dell relating to any suit or
claim. Licensor will conduct the defense or settlement of all matters
indemnified under this agreement or any related negotiations at Licensor's
expense. Licensor will keep Dell informed at all times as to the status of
Licensor's efforts and consult with Dell concerning these efforts. Dell will
provide, at the expense of Licensor, reasonable information and assistance as is
requested by Licensor in connection with any suit or claim. Dell will have the
option to be represented by separate legal counsel, at Dell's expense.
9.4 Licensor will have no obligation under this Section 9 to the extent
any claim of infringement resulting from an unauthorized modification of the
Products by Dell to the extent such a claim is caused by such modifications,
from any combination, operation, or use of the Products with systems other than
those contemplated by this Agreement or the Specifications or that may otherwise
be approved by Licensor, or from Dell's failure to implement any update provided
to Dell by Licensor.
10. Limitation of Liability.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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10.1 LICENSOR SHALL NOT BE LIABLE FOR ANY AMOUNTS IN EXCESS OF [*] BY
LICENSEE FOR PRODUCT AND SERVICES. THIS [*] LIMITATION WILL NOT APPLY
TO OBLIGATIONS OF LICENSOR ARISING OUT OF SECTION 9 ("PROPRIETARY
RIGHTS; INDEMNIFICATION") OR A BREACH OF SECTION 14
("CONFIDENTIALITY").
10.2 UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR SPECIAL,
INDIRECT, INCIDENTAL,OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES RESULTING FROM LOSS OF DATA, OR BUSINESS, WHETHER
OR NOT THE PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF
THESE DAMAGES, EXCEPT FOR LIABILITY ARISING UNDER SECTION 9
("PROPRIETARY RIGHTS; INDEMNIFICATION") OR A BREACH OF SECTION 14
("CONFIDENTIALITY").
10.3 COURT AWARDS OR AGREED UPON SETTLEMENTS FOR SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES SHALL NOT EXCEED [*].
11. Services - Training; Support; Deployment, Consulting.
11.1 Licensor will provide Dell with training with respect to the Products
as stated on Schedule C.
11.2 Licensor will provide Dell with support, maintenance, assistance,
updates and upgrades with respect to the Products as stated in
Section 7 ("Warranty; Disclaimer") and on Schedule E. Licensor will
provide Dell with sixty (60) days prior notice of the expiration of
these services.
11.3 Licensor will provide Dell with consulting or deployment services in
accordance with Schedule D (Professional Services).
12. Term and Termination.
12.1 This Agreement will begin as of the Effective Date, and unless
terminated earlier as provided in this Agreement, will continue until Dell
terminates this Agreement for cause (i) upon thirty (30) days prior written
notice to Licensor, (ii) for cause of a breach, if the breach has not been cured
within that 30 day period; (iii) immediately upon written notice if Licensor
becomes insolvent or declares bankruptcy, (iii) immediately upon written notice
if a petition is filed in any court and not dismissed in ninety (90) days to
declare Licensor bankrupt or for Licensor's reorganization under the United
States bankruptcy act or any similar statute; (iv) immediately upon written
notice if Licensor consents to the appointment of a Trustee in Bankruptcy or a
Receiver or similar entity; or Licensor is bought [*].
12.2 Licensor may terminate this Agreement for cause (i) upon thirty (30)
days prior written notice to Dell of a breach, if the breach has not been cured
within that 30 day period; (ii) upon thirty (30) days prior written notice if
Dell attempts to make an assignment in violation of this Agreement, if the
breach has not been cured within that 30 day period; (iii) immediately upon
written notice if Dell becomes insolvent or declares bankruptcy, (iv)
immediately upon written notice if a petition is filed in any court and not
dismissed in ninety (90) days to declare Dell bankrupt or for Dell's
reorganization under the United States bankruptcy act or any similar statute; or
(v) immediately upon written notice if Dell consents to the appointment of a
Trustee in Bankruptcy or a Receiver or similar entity.
12.3 Upon written notice, Dell may, at any time and for whatever reason,
terminate for convenience any Professional Services provided hereunder including
without limitation deployment services, training or support with five (5) days
prior written notice. Dell shall pay for all services actually performed up to
the date of service termination. Dell may also choose not to renew maintenance
services. Termination of the services under this paragraph shall not terminate
this Agreement.
12.4 In the event of termination in accordance with 12.2 or expiration of
this Agreement, Dell will i) cease all internal use of the Products, including
any use by a third party (other than a Dell Customer) who is using the Products
on behalf or in support of Dell, and make reasonable efforts to return to
Licensor, or destroy, all copies of the Products; and ii) cease to resell,
bundle, or distribute any Products to Dell's Customers. If Dell has exercised
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
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its right to additional support, Licensor will refund to Dell a pro rata amount
of any annual support and maintenance fees within thirty (30) days of notice of
termination.
13. Disputes.
13.1 Before either party initiates a lawsuit against the other relating to
a dispute under this Agreement, the parties agree to work in good faith to
resolve between them all disputes and claims arising out of or relating to this
Agreement, the parties' performance under it, or its breach. To this end,
either party may request, after informal discussions have failed to resolve a
dispute or claim, that each party designate an officer or other management
employee with authority to bind the party to meet in good faith and attempt to
resolve the dispute. During their discussions, each party will honor the
other's reasonable requests for information relating to the dispute or claim.
This Section will not apply should the expiration of the statute of limitations
for a cause of action be imminent.
14. Confidentiality
14.1 Licensor and Dell acknowledge that, in the course of dealings between
the parties, each party may acquire information or materials about the other
party, its business activities and operations, its technical information and
trade secrets, which are of a confidential or proprietary nature. Information
will be treated as confidential (i) if it is marked or accompanied by documents
clearly and conspicuously designating them as "confidential" or the equivalent;
or (ii) if it is identified by the disclosing party as confidential before,
during or promptly after the presentation or communication. Each party will use
the same degree of care, but no less than a reasonable degree of care, as the
party uses with respect to its own similar information to protect the
information and to prevent (i) any use of information not authorized in this
Agreement, (ii) dissemination of information to any employee of the party
without a need to know, (iii) communication of information to any thirty party,
or (iv) publication of information. These restrictions of confidentiality will
not apply, however, to any information which (i) was known to the receiving
party before receipt from the disclosing party; (ii) is or becomes publicly
available through no fault of the receiving party; (iii) is rightfully received
by the receiving party from a third party without a duty of confidentiality;
(iv) is disclosed by the disclosing party to a third party without a duty of
confidentiality on the third party; (v) is independently developed by the
receiving party without a breach of this Agreement; or (vi) is disclosed by the
receiving party with the disclosing party's prior written approval. If a
receiving party is required by a government body or court of law to disclose
information, the receiving party agrees to give the disclosing party reasonable
advance notice so that disclosing party may contest the disclosure or seek a
protective order. Each party warrants that it has the right to disclose its
confidential information. Each party agrees to use reasonable efforts to return
to the other party, or to destroy (and to certify the destruction in writing to
the other party), all materials containing any confidential information of the
other party, regardless of the media and regardless of by whom prepared, within
ten (10) days after demand for the materials or in any event within ten (10)
days after termination or expiration of this Agreement. The parties further
agree that this section will remain in effect for a period of three (3) years
from the termination date of this Agreement.
14.2 Both parties agree that by disclosing information under this
Agreement, the disclosing party does not grant to the receiving party any
express or implied right or license under the disclosing party's, or any of its
affiliate's, patents, copyrights, trademarks, trade names, service marks,
proprietary designations, or other intellectual property.
14.3 Title. Except for ownership of the media on which the Licensor
delivers the Licensed Products to Licensee, this Agreement grants Dell no title
or rights of ownership in the Products. Except as otherwise set forth in a
separate Schedule or Agreement, all Products furnished by Licensor, and all
copies thereof made by Dell, including translations, compilations, and partial
copies, and all patches, revisions, and updates thereto are and shall remain the
property of Licensor or Licensor's licensors, as applicable.
14.4 Both parties agree that the receiving party may allow access of the
disclosing party's confidential information to agents or contractors who are
working on behalf of the receiving party and have a need to know under this
Agreement and who are under a written confidentiality agreement protecting such
information.
15. Customer and Third Party Use
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15.1 Dell is authorized to use the Products to support its Customers (for
this Agreement the term "Customer(s)" shall mean any individual or corporation
who has purchased a computer from Dell and who Dell has a requirement to provide
technical support to that individual or corporation).
15.2 Dell may bundle with its product offering or provide access to its
Customers the Licensor Product called "Motive Assistant." Dell agrees not to i)
modify the Motive Assistant, or ii) remove, modify or otherwise alter the Motive
brand name on the Motive Assistant. Dell will only provide access (of the Motive
Assistant) to its employees, contractors or others engaged by Dell solely for
the purpose of providing technical support to its Customers through a licensed
Licensor server Product. The Motive Assistant will be provided royalty free into
perpetuity.
15.3 Except for use of the Motive Assistant as outlined in paragraph 15.2,
The Licensed Products may only be used by i) employees of Dell, or ii)
contractors/agents of Dell who are under a written non-disclosure agreement with
Dell which will protect Licensor's Products and who are performing services
solely for Dell's benefit.
15.4 If Dell subcontracts its internal technical support or the support
obligations of its products to a third party (contractor or agent) such third
party will be authorized to use the Products provided i) there is a written
agreement in place between Dell and the third party that governs and protects
the Licensor, its Products, and its Confidential Information to the same degree
as provided under this Agreement; ii) that the third party uses the Products
solely on behalf of Dell to support Dell or fulfill Dell's support obligations
to its Customers and no other customers of the third party; and iii) upon
completion or termination of the subcontracting agreement between Dell and the
third party, all Licensor's Products and Confidential Information be returned to
Dell.
16. General.
16.1 Amendments; Waiver. This Agreement may not be amended except by a
subsequently dated written instrument signed on behalf of both parties by a duly
authorized person. No waiver of any term or condition is valid unless it is in
writing and signed by a duly authorized person of the party charged with the
waiver. A valid waiver is limited to the specific situation for which it was
given.
16.2 Assignment. This Agreement may not be assigned, in whole or in part,
by either party without the prior written consent of the other party, which the
other party will not unreasonably withhold, condition or delay except that Dell
may assign this Agreement, or any of its rights or obligations under this
Agreement, to any of DCC's majority owned subsidiaries or affiliates without
consent of Licensor. Any attempted assignment in violation of the foregoing will
be void.
16.3 Compliance. Licensor agrees to comply with all applicable laws,
rules, regulations and orders of the United States and any other state or
country with jurisdiction over Licensor or Licensor's activities in performance
of its obligations under this Agreement, including without limitation all
applicable import or export regulations and all licensing or permitting
requirements.
16.4 Construction. This Agreement has been negotiated by the parties and
their respective counsel and will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against either party.
16.5 Counterparts; Translations. This Agreement may be executed in two or
more counterparts in the English language, and each counterpart will be deemed
an original, but all counterparts together will constitute a single instrument.
The English language version of this Agreement will control regardless of any
subsequent translations of this Agreement.
16.6 Forms. Dell and Licensor agree that use of preprinted forms, such as
acknowledgments or invoices, is for convenience only and all terms and
conditions stated on the forms are void and of no effect.
16.7 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUSIVE OF ANY PROVISIONS OF
8
<PAGE>
THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS AND WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
16.8 Headings. The headings contained in this Agreement are for the
purposes of convenience only and are not intended to define or limit the
contents of this Agreement.
16.9 Exclusivity. Licensor grants to Dell an exclusive, irrevocable,
worldwide, royalty-free, fully paid-up license to the unique Dell libraries
(external to the map) created, developed or otherwise generated by Dell
(hereinafter called "Dell Libraries") through use of the Product customer map
applications. The Dell Libraries shall be considered Confidential Information
of Dell. However, this section 16.9 does not prevent Motive or any other third
party from independently creating similar maps which may perform similar
functionality or Motive's use of residual knowledge associated with the Dell
Libraries.
16.10 Independent Contractors. The parties are independent contractors
and neither party is an employee, agent, servant, representative, partner, or
joint venture of the other. Neither party has the right or ability to bind the
other to any agreement with a third party or to incur any obligation or
liability on behalf of the other party without the other party's written
consent. Licensor will be solely responsible for all materials and work until
Acceptance by Dell, and Dell will have no direction or control of Licensor, or
any person employed by or contracted for by Licensor, except in the results to
be obtained.
16.11 Notices. Any notice or other communication (other than telephone
maintenance or support or requests for maintenance or support) must be in
writing, in English, and either actually delivered (including delivery by
facsimile, telex, courier or similar means) or deposited in the United States
mail in registered or certified form, return receipt requested, postage prepaid,
addressed to the receiving party at the address stated below or to another
address as the party may indicate by notice in accordance with this Section.
Notice will be effective on the date that it is delivered or, if sent by mail in
accordance with this Section, five (5) days after the date of mailing.
For Dell:
Name: Dell Computer Corp.
Address: One Dell Way
Round Rock, TX 78682
Telephone: 512.723.8085
Fax: 512.728.3199
With a copy to: Attention: Legal Department
For Licensor:
Name: Motive Communications
Attn: Christopher Burch
Address: 2112 Rutland, Suite 150
Austin, TX 78758
Telephone: 512.339.8335
Fax: 512.339.9040
16.12 Records. Licensor agrees to maintain, during the term of this
Agreement and for three (3) years thereafter, accurate and legible written
records in English, utilizing generally accepted accounting principles, of all
payments made by Dell under this Agreement. Dell may request and receive copies
for review and audit of these records during this period.
16.13 Severance. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is found to violate a law, it will
be severed from the rest of the Agreement and ignored.
16.14 Survival of Terms. Regardless of the circumstances of termination
or expiration of this Agreement, the provisions of Sections 1.1, sentences 3 -
6, 8 ("Proprietary Rights; Indemnification"), 9 ("Limitation
9
<PAGE>
of Liability"), 11(c) ("Term and Termination"), 12 ("Disputes"), 13
("Confidentiality"), and 14 ("General") will survive the termination or
expiration of this Agreement and continue according to their terms.
16.15 Time. Whenever reference is made in this Agreement to "days," the
reference means calendar days, not business days, unless otherwise specified.
16.16 Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and
merges all prior written or oral communications, understandings, and agreements
with respect to the subject matter of this Agreement.
16.17 Verifications of Products Deployed. Upon reasonable advance notice
to Dell and on a noninterference basis with Licensee's normal business
operations, Licensor has the right to do a check-up of the quantity of Products
Dell has placed into use under this Agreement. Such check-up shall not be
conducted more frequently than once per year.
16.18 U.S. Government End Users ("Government"). The Product and its
related documentation are provided with "Restricted Rights" unless the
Government agrees to other terms. Use, duplication or disclosure by the
Government is subject to the restrictions set forth in FAR clause 52.227-14
(Alternate III) or FAR Clause 52.227-19. Unpublished-All Rights Reserved Under
the Copyright Laws of the United States.
16.19 Export Law Controls; Export Assurance Declaration.
(a) Both parties agrees to comply with all export and re-export
restrictions and regulations imposed by the governments of the United
States or the country to which the Product is shipped to Dell. Neither
party will commit any act or omission which will result in a breach of any
such Export Requirements. Both parties agree that it will comply in all
respects with any governmental laws, orders or other restrictions on the
export of Licensed copies of its Product(s) (including any related
information and documentation) which may be imposed from time to time by
the government of the United States or the country to which the parties
Product(s) are shipped. ("Export Requirements"). This Section shall survive
the expiration or termination of the license or this Agreement.
16.20 The Motive enterprise server architecture can support a minimum of
[*]. However, the actual number of [*] which can actually be supported by a
given Motive sever will depend on the server hardware and transaction volume.
16.21 Licensor will deliver to Dell the latest release/version of Motive
software when the contract is executed by both parties.
16.22 Public Announcement
a) At the time of Agreement execution, Licensor may announce the
relationship between Licensor and Dell as it relates to the pilot phase of
this Agreement. This announcement shall be coordinated and subject to the
approval of Dell prior to publication.
b) Upon completion of an agreement to license the Licensed Products on an
enterprise basis, Licensor may announce this new phase of the business
relationship. The contents of this announcement shall be coordinated and
subject to the approval of Dell prior to publication.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
10
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P. DELL PRODUCTS L.P.
By: /s/ Gary Cotshott 12/4/98 By: /s/ Mike Clifford 12/4/98
-------------------------------- -----------------------------------
Printed Name: Gary Cotshott Printed Name: Mike Clifford
Title: Exec. V. P. of Customer Service Title: CIO
LICENSOR LICENSOR
MOTIVE MOTIVE
By: /s/ Scott Harmon By: /s/ Christopher A. Burch 12/4/98
-------------------------------- ------------------------------------
Printed Name: Scott Harmon Printed Name: Christopher A. Burch
Title: President and CEO Title: Manager of Contract Services
11
<PAGE>
SCHEDULE A
Pilot Program
This Schedule is subject to the terms and conditions of the Software License
Agreement (the "Agreement") between Motive Communications ("Licensor") and Dell
Products L.P. ("Dell") effective as of December 2, 1998.
Purpose
Under the terms set forth below, Licensor has agreed to provide Product and
services allowing Dell to initiate a Pilot Program to test the value of the
Product. This Pilot Program or the results therefrom in no way obligates Dell
to purchase any further Products or services from Motive. All of the terms of
the Agreement shall apply to this Pilot Program and the provision of Product and
services to Dell by Licensor.
1. Quantity and Prices
Product
-------
<TABLE>
<CAPTION>
Support
Qty Item Description Price Services
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] MOT-PACK25-002 Enterprise Server [*] [*] [*]
------------------------------------------------------------------------------------------------------------------
[*] MOT-SERVER-002 Motive Enterprise Server [*] [*] [*]
------------------------------------------------------------------------------------------------------------------
[*] MOT-ASSISTANT Motive Assistant [*] [*] [*]
------------------------------------------------------------------------------------------------------------------
[*] MOT-INTSVR Motive Integration Server [*] [*] [*]
------------------------------------------------------------------------------------------------------------------
Total Software Price [*] [*]
------------------------------------------------------------------------------------------------------------------
</TABLE>
Deployment Services
The deployment services will be completed when accepted by Dell. Such services
shall be deemed accepted when they fully perform in accordance with their
intended purpose. Upon acceptance, Dell shall provide written notice.
<TABLE>
<CAPTION>
Qty. Item Description Price
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[*] [*] [*] [*]
-------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
-------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
-------------------------------------------------------------------------------------------------------------
Total Price [*]
------------------------------
</TABLE>
2. Documentation
For use of the Products under this Pilot Program, Licensor shall provide to
Dell the following documents:
a Motive System Release 1.0 Notes
b. Motive System Concepts
c. Motive Assistant User's Guide
d. Motive Support Desktop User's Guide
e. Motive Server Administrator's Guide
f. Motive Active Content Author's Guide
g. Motive System Documentation Errata
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
12
<PAGE>
3. Delivery
The Product is delivered shall be delivered on CD. The Documentation shall be
delivered in written form.
4. TYPE OF LICENSE:
Single User License
---
X Network License
---
[*] File Servers (insert number)
---
[*] Users (insert number)
---
Enterprise License
---
5. Specifications:
Product
-------
Both parties acknowledge that this Pilot Program shall incorporate all
specifications (the "Specifications") set forth in the Documentation above.
As such, the Product should operate in accordance with the Documentation
and Specifications.
Deployment Services
-------------------
As a part of the Pilot Program, Licensor agrees to perform the following
services:
A. Motive Up ad Running Service (MOT-UPRUN):
--------------------------------------------
Motive Up-and-Running Services provide the expertise to assist in the
installation, configuration, and operation of the Motive System. The
following services are included in the program:
Installation
. Installation of [*] Motive System Server
. Installation of [*] Support Desktops
. Installation of [*] install package for Motive Customer Assistant
. Installation of [*] Motive Customer Assistants
Configuration
. Configuration of Support Roles
. Configuration of up to ten Incident Queues
. Configuration of Routing file for Incident Queues
. Configuration and setup of five Support Engineers
. Configuration of MOTPREFS
Customization
. Customization of graphical layout of Active Content templates
. Customization of Contact Information HTML document
Education/Training
. Mentored training of one Support Engineer on administration of the
Motive System
. Training of five Support Engineers on Map Building, Active Content
publishing, and Support Desktop use
B. Motive Custom Map Service (MOT-MAP):
---------------------------------------
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
13
<PAGE>
The Motive Custom Map Service provides the Motive consulting resources to
develop and install a set of core Motive Maps required to implement the
Motive System in Dell's support model and an initial target customer
segment. Motive Maps are a set of configurable commands that take an
existing support process and implement it as a reusable automated
component of in the Motive System. The Motive Custom Map Service consists
of the generation of [*] custom maps for any applications running on
Motive supported platforms or "problem areas" identified by Dell. An
application is a single executable and does not encompass a "system" such
as large-scale ERP systems. A problem area can be such items as network
problem identification or printer problem identification.
C. Motive Integration Services (MOT-IS):
----------------------------------------
The Motive Integration Services provide the Motive consulting services
required to integrate the Motive System into [*] based call tracking
environment. The Motive Integration Service will provide the resources
required to create a [*] for use with the Motive System 1.0. This [*]
will open a trouble ticket in the [*] when an incident is electronically
submitted to the Dell Support Organization through the Motive System.
Additionally, the [*] will close the trouble ticket in the [*] when the
closure is initiated in the Motive System.
IN WITNESS WHEREOF, the parties have executed this Schedule A by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P. DELL PRODUCTS L.P.
By: /s/ Gary Cotshott 12/4/98 By: /s/ Mike Clifford 12/4/98
-------------------------------- -----------------------------------
Printed Name: Gary Cotshott Print Name: Mike Clifford
Title: Exec. V. P. of Customer Service Title: CIO
LICENSOR LICENSOR
MOTIVE MOTIVE
By: /s/ Scott Harmon By: /s/ Christopher A. Burch 12/4/98
-------------------------------- -----------------------------------
Printed Name: Scott Harmon Printed Name: Christopher A. Burch
Title: President and CEO Title: Manager of Contract Services
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
14
<PAGE>
SCHEDULE B
Volume Purchase Pricing
This Schedule is subject to the terms and conditions of the Software License
Agreement (the "Agreement") between Motive Communications ("Licensor") and Dell
Products L.P. ("Dell") effective as of December 2, 1998.
PURPOSE
Prior to the purchase of any Product under this Schedule, both parties have
agreed to engage in the Pilot Program attached hereto as Exhibit 1. For purchase
of Product under this Schedule, Dell has engaged Licensor to provide the Product
below to perform customer support services to lessen the queue times.
PRODUCT DESCRIPTION
Upon receipt of an Order stating quantity, under this Schedule, Licensor shall
provide the following products (collectively the "Products"):
a. MOT PACK 25 002 - Enterprise Server
b. MOT SERVER 002 - Motive Enterpriser
c. MOT ASSISTANT - Motive Assistant
d. MOT INTSVR - Motive Integration Server
1. PRICES
Except as set forth in Attachment 1 (Pilot Program), the Prices below shall
apply to the purchase of Products under this Schedule.
For a [*], ending [*], Dell may purchase new or additional Licensor
Products or Professional Services (excluding maintenance fees and taxes) at
the following discounts off Licensor's then current commercial price list:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------
Net [*] Discount off List Price on dollars
Dollars (Jan Dec) in range
---------------------------------------------------------------------------------------------
<S> <C>
[*] [*]
---------------------------------------------------------------------------------------------
</TABLE>
The following additional terms apply to purchases made under this Table A:
1. [*] dollars volume applies to Product License and Professional services
fees for [*] or [*] in support of Dell's Customer(s).
2. [*] dollars calculated on an [*] basis ([*]).
3. Discount applies to all generally released [*] and [*].
4. Purchases made under a [*] will apply to the [*] dollar volume under
this Table A.
5. The discount applicable to the then current year will be based on the
[*] volume of purchases made the prior year.
6. Purchases which cross over discount ranges will be applied according to
the dollar volume applicable to each range.
For a [*], ending [*], Dell may purchase Motive Support Analyst Package
Licenses ("SA Licenses") excluding maintenance fees and taxes, in
accordance with the following individual lump sum purchase levels. If Dell
makes a lump sum purchase of at least [*] SA Licenses by [*], the purchase
levels and pricing validity period of this Table B will be extended by [*].
<TABLE>
<CAPTION>
Number of Support Analyst Seats Effective per SA Unit
Price
-----------------------------------------------------------------------------
<S> <C>
[*] [*]
-----------------------------------------------------------------------------
</TABLE>
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
15
<PAGE>
The following additional terms apply to purchases made under this Schedule:
1. [*] SA License includes: [*] Motive SE Desktop License and [*] Motive
Base Server and Motive Integration Server licenses required to support
licensed number of Motive [*] license.
2. SA License for internal use or use in support of Dell's [*] only.
3. An SA License is required per each Dell support analyst.
4. The SA License purchase option pricing is not subject to further
discounts listed under Table A above.
5. The pricing and number Support Analyst Seats under this Table B are [*],
the pricing is based on each individual [*] purchase.
6. To determine the [*] amount for an individual purchase under this Table
B, multiply the number of SA Licenses being purchased by the SA Unit
Price shown on Table B.
7. On the date this Schedule B is fully executed, including a period of [*]
prior and [*] after execution of this Schedule B, Licensor affirms that
it has not licensed the Products contained in this Agreement to [*] Dell
under similar quantities, terms, and other considerations. At the end of
this [*] period, parties may enter into further pricing discussions.
PARTIES WILL CONTINUE TO DISCUSS PRICING IN THIS SCHED ULE B, WITH A GOAL OF
FINALIZING SUCH NEW SCHED ULE B WITHIN TWO (2) WEEKS OF AGREEMENT EXECUTION.
UNDER NO CIRCUMSTANCES WILL THE PRICES EXCEED WHAT IS EXHIBITED IN THIS
SCHEDULE B.
2. DOCUMENTATION:
For use of the Products, Licensor shall provide to Dell the following documents:
a. Motive System Release 1.0 Notes
b. Motive System Concepts
c. Motive Assistant User's Guide
d. Motive Support Desktop User's Guide
e. Motive Server Administrator's Guide
f. Motive Active Content Author's Guide
g. Motive System Documentation Errata
3. DELIVERY FORMAT:
The Product is delivered shall be delivered on CD. The Documentation shall
be delivered in written form.
4. TYPE OF LICENSE:
Single User License
---
X Network License
---
File Servers (insert number)
---
Users (insert number)
---
Enterprise License
---
5. SPECIFICATIONS:
Both parties acknowledge that this Schedule shall incorporate all
specifications (the "Specifications") set forth in the Documentation above.
As such, the Product should operate in accordance with the Documentation
and Specifications.
6. ADDITIONAL TERMS
The following terms shall supply and modify the Agreement:
1. Source Code. The following source code release incident will be added as
7.1(c):
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
16
<PAGE>
c) If Licensor or Licensor's controlling entity is acquired (by merger,
sale of substantially all assets or acquisition of stock representing a
majority of the voting power of all Licensor securities with respect to
election of directors) by [*].
2. Termination
In the event that ownership of Motive and / or the Licensed Products
covered by this Agreement is transferred in full or in. part to a [*], Dell
may terminate existing maintenance and be entitled to a prorated refund of
any unused maintenance amount.
IN WITNESS WHEREOF, the parties have executed this Schedule B by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P. DELL PRODUCTS L.P.
By: /s/ Gary Cotshott 12/4/98 By: /s/ Mike Clifford 12/4/98
----------------------------- ----------------------------------
Printed Name: Gary Cotshott Printed Name: Mike Clifford
Title: Exec. V. P. of Customer Service Title: CIO
LICENSOR LICENSOR
MOTIVE MOTIVE
By: /s/ Scott Harmon By: /s/ Christopher A. Burch 12/4/98
----------------------------- ------------------------------------
Printed Name: Scott Harmon Printed Name: Christopher A. Burch
Title: President and CEO Title: Manager of Contract Services
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
17
<PAGE>
SCHEDULE C
TRAINING
18
<PAGE>
Attachment 1
Additional Opportunities
Dell and Licensor hereby agree to continue discussions on a further business
relationship. Both parties agree that these discussions are separate and
independent discussions. Furthermore, if the parties agree to proceed with any
opportunity. Implementation of any of the opportunities below may require either
a new Schedule or a new Agreement.
1. Beta Program. Licensor will provide Dell with early access to new updates
and products under a Beta Program. Such program will be coordinated by the
parties and will allow Dell to test and evaluate the new products on an "as
is basis" for a period of [*] days.
2. Reseller Agreement. Dell and Licensor will begin good faith discussions
associated with the requirements involving a potential reseller
relationship.
3. Licensor will review whether the Products are compliant with the Microsoft
Server Design Guidelines as per the Microsoft Logo program. Licensor will
notify Dell in writing of the extent of compliance for all Products under
this agreement. Licensor will determine if any changes are needed to bring
such Products into compliance and will make changes if Licensor determines
this meets future marketing plans for these Products.
4. [*]. Dell and Licensor will begin discussions associated with entering into
a separate agreement involving the issuance of [*].
5. Customer and Third Party Use: Parties will work in good faith toward Dell
having the right to deploy the Motive Assistant on [*] for support of its
customers.
6. Derivative Work: Dell and Licensor may begin good faith discussions
concerning exclusive derivatives from the Motive software which would be
done under a separate agreement with separate terms and conditions.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
19
<PAGE>
Schedule D - Professional Services
This Schedule is subject to the terms and conditions of the Software License
Agreement (the "Agreement") between Motive Communications ("Licensor") and Dell
Products L.P. ("Dell") effective as of December 2, 1998.
1.0 Licensor Professional Services (hereinafter "Professional Services").
If ordered by Dell, the following terms and conditions shall apply to
professional services supplied by Licensor.
(a) Term of Professional Services. The "Term of Professional Services" will
begin and terminate on the dates or times defined in Dell's Purchase Order
and/or Quotation which has been accepted by an official of both parties
unless earlier terminated pursuant to paragraph (d) below.
(b) Scope of Professional Services. The scope of Professional Services
provided hereunder consist solely of delivery of Product installation,
deployment assistance and/or non-formal Product training and such Services
provided to Dell by Licensor shall not constitute works for hire.
(c) Fees and Expenses. Services are provided on either:
(i) a time and materials basis in which the fees for Services are
defined in Licensor's Quotation or, where no Quotation is provided, fees
shall be as stated in Licensor's current, price list applicable to the
territory for such Services. Fees and charges are due [*] days after the
date of invoice by Licensor. Invoices may be published on a monthly basis
or at the completion of Services. Reasonable expenses for travel and
lodging directly related to the performance of Services, will be paid by
Dell as reimbursable expenses. Dell will have the right to refuse any
expenses deemed inappropriate
(ii) a fixed term basis for select deployment Packages as generally
offered by Licensor. Deployment Packages will be specified in the invoice.
The deployment services to be provided for the deployment packages shall be
defined in the Deployment Package Specifications. Licensor will issue an
invoice for deployment packages) price at time the order is placed. [*] of
the invoice will be due [*], and the other [*] at the completion of the
deployment. The deployment package prices do not include travel and living
expenses. Dell will reimburse Licensor for reasonable travel and living
expenses. Dell will have the right to refuse any expenses deemed
inappropriate. The deliverables for the deployment packages consist solely
of deployment services only. No Product delivery, customization, or
development will be made under this Addendum.
(d) Termination or delay of Professional Services. Services may be
terminated by Dell at any time for any reason, with or without cause, by
giving [*] days prior written notice to the other party; termination shall
be effective [*] days after the other party's receipt of notice. Dell shall
pay Licensor for services performed up to the date of termination.
(e) Independent Contractors. Licensor is an independent contractor and is
solely responsible for all taxes, withholdings, and other similar statutory
obligations including, but not limited to Worker's Compensation Insurance.
Nothing herein shall form or be construed to form a joint venture or
partnership.
(f) Performance Standards. Licensor's performance of Professional Services
under this Agreement will be conducted with standards of practice common in
the industry for such services. Licensor will comply with all applicable
laws and Dell safety rules in the course of performing Services.
(g) Consent to Subcontract. Dell hereby consents for Licensor to
subcontract Professional Services to persons or companies qualified and
certified by Licensor to provide services on Licensor's behalf Motive shall
continue to be liable for the work performed by subcontractors.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
20
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Schedule D by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P. DELL PRODUCTS L.P.
By: /s/ Gary Cotshott 12/4/98 By: /s/ Mike Clifford
----------------------------- ----------------------------------
Printed Name: Gary Cotshott Printed Name: Mike Clifford
Title: Exec. V. P. of Customer Service Title: CIO
LICENSOR LICENSOR
MOTIVE MOTIVE
By: /s/ Scott Harmon By: /s/ Christopher A. Burch 12/4/98
----------------------------- ------------------------------------
Printed Name: Scott Harmon Printed Name: Christopher A. Burch
Title: President and CEO Title: Manager of Contract Services
21
<PAGE>
SCHEDULE E
SUPPORT SERVICES TERMS AND CONDITIONS
This Schedule is subject to the terms and conditions of the Software License
Agreement (the "Agreement") between Motive Communications ("Licensor") and Dell
Products L.P. ("Dell") effective as of December 2, 1998.
To the extent a Company license or support agreement for a Company product
component ("Product Component") provides for support on Company's standard
terms, the following will apply so long as they remain Company's standard terms
and the licensee is in full compliance with such agreement.
SCOPE OF SUPPORT SERVICES. Company provide the following services for the
-------------------------
Product Component during the hours specified:
. Maintain a center capable of receiving information from licensees through
the Motive Assistant, electronic mail, fax, telephone or postal mail.
. Information will also be made available via the internet.
. Standard support and error correction allow for up to [*] people designated
by the licensee to Company in writing to have access to the Company support
organization ("Authorized Contact Persons"). Additional contacts may be
purchased, if so desired by the customer.
. All inquiries to technical support must be made by an Authorized Contact
Person.
. Product Component updates that Company, in its discretion, makes generally
available without additional charge.
. Company shall accommodate requests for modifications; however, Company is
under no obligation to incorporate those requests from licensee in future
releases of any product or product component.
. From time to time Company may provide licensee with on-site support in the
form of installation, configuration, and training assistance.
. During the period Customer is covered under Company's Maintenance Plan,
Company shall make all reasonable efforts, as standard in the industry, to
update the Motive Assistant to maintain compatibility with the Microsoft
Windows operating system. Company agrees to issue an update or revision to
its the Motive Assistant to maintain compatibility within [*] days of a
commercially viable release to such operating system. A version and/or
release is "viable" when Customer deems it sufficiently stable for use in
its production environment and delivery to its customers.
ERROR SEVERITY LEVELS. Company shall correct any Error reported by Licensee in
---------------------
the current unmodified release of Product Component in accordance with the
Severity level reasonably assigned to such Error by Company.
. Severity 1 Errors - Company shall promptly commence the following
procedures: within [*] for a support request through the Motive system or
within [*] of a support request through Standard Support means: (i) assign
Company engineers to investigate the Error, (ii) notify Company management
that such Errors have been reported and of steps being taken to correct
such Error(s); (iii) provide Licensee with periodic reports on the status
of the investigation; and (iv) initiate work to provide Licensee with a
Workaround or Fix.
. Severity 2 Errors - Company shall include the Fix for the Error in the [*]
Product Component maintenance release.
. Severity 3 Errors - Company shall include the Fix for the Error in a future
release of the Product Component.
Licensee is responsible for providing sufficient information and data to allow
Company to readily reproduce all reported Errors. If Company believes that a
problem reported by Licensee may not be due to an Error in a Product Component,
Company will so notify Licensee
EXCLUSIONS. Company shall have no obligation to support (i) altered or damaged
----------
Product Component or any portion of a Product Component incorporated with or
into other software; (ii) Product Component that is not the then current release
or immediately Previous Sequential Release; (iii) Product
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
22
<PAGE>
Component problems caused by Licensee's negligence, abuse or misapplication, use
of Product Component other than as specified in Company's user manual or other
causes beyond the control of Company, or (iv) Product Component installed on any
hardware that is not supported by Company. Company shall have no liability for
any changes in Licensee's hardware which may be necessary to use Product
Component due to a Workaround or maintenance release.
DEFINITIONS.
-----------
. "Error" means a defect in a Product Component as compared to Company's
published performance specifications which significantly degrades such
Product Component.
. "Error Correction" means actions taken to correct Errors.
. "Fix" means the repair or replacement of object or executable code of a
Product Component to remedy an Error.
. "Previous Sequential Release" means the release of a Product Component
which has been replaced by a subsequent release of the same Product
Component. Notwithstanding anything else, a Previous Sequential Release
will be supported by Company only for a period of [*] months after release
of the subsequent release.
. "Severity 1 Error" means an Error which impacts production environments
only. The Motive System is mission critical and the situation is an
emergency for the Customer. This Error prevents the user from performing a
mission critical action or task in the system.
. "Severity 2 Error" means an error in which a major functionality is
experiencing a reproducible problem which causes major inconvenience to the
user. A workaround may exist but it has high user impact.
. "Severity 3 Error" means an Error in which an important function is
experiencing an intermittent problem or a common non-essential operation is
failing consistently.
. "Support Services" means Company support services as described in Section
1.
. "Standard Support" means technical support assistance provided by Company
via telephone, electronic mail, fax, or postal mail to the Technical
Support Contact during normal business hours concerning the installation
and use of the then current release of a Product Component and the Previous
Sequential Release.
. "Workaround" means a change in the procedures followed or data supplied by
Licensee to avoid an Error without substantially impairing Licensee's use
of a Product Component.
. "Response" means acknowledgement of problem received containing assigned
support engineer name, problem queue name, data and time assigned, and
severity assignment.
. "Regular Hours" means 8:OOAM to 6:OOPM Central Time on Company's regular
business days excluding regularly scheduled holidays.
. "Extended Hours" means twenty four (24) hours per day, seven days per week.
THESE TERMS AND CONDITIONS DEFINE A SERVICE ARRANGEMENT AND NOT A PRODUCT
WARRANTY. ALL PRODUCTS, PRODUCT COMPONENTS AND MATERIALS RELATED THERETO ARE
SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE APPLICABLE LICENSE
AGREEMENT. THESE TERM AND CONDITIONS DO NOT CHANGE OR SUPERSEDE ANY TERM OF ANY
SUCH AGREEMENT.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
23
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Schedule E by their duly
authorized representatives, to be effective as of the Effective Date stated
above.
DELL PRODUCTS L.P. DELL PRODUCTS L.P.
By: /s/ Gary Cotshott 12/4/98 By: /s/ Mike Clifford 12/4/98
----------------------------- ----------------------------------
Printed Name: Gary Cotshott Printed Name: Mike Clifford
Title: Exec. V. P. of Customer Service Title: CIO
LICENSOR LICENSOR
MOTIVE MOTIVE
By: /s/ Scott Harmon By: /s/ Christopher A. Burch 12/4/98
----------------------------- ------------------------------------
Printed Name: Scott Harmon Printed Name: Christopher A. Burch
Title: President and CEO Title: Manager of Contract Services
24
<PAGE>
SCHEDULE F
Enterprise Pricing Agreement
This Schedule F ("Schedule") is subject to the terms and conditions of the
Software License Agreement (the "Agreement") between Motive Communications, Inc.
("Licensor" or "Motive") and Dell Products L.P. ("Dell") effective as of
December 2, 1998.
1. PURPOSE
Under the additional terms set forth below, Licensor has agreed to provide
and Dell agrees to license the following additional Products. Except for those
additions or modifications agreed to in this Schedule, all terms and conditions
contained in the Agreement shall remain unchanged. The term of this Schedule
begins upon full execution thereof and ends [*] (herein after "Term"). By
execution of this Schedule, Dell hereby places a firm order for the software
programs and services detailed in this Schedule.
2. PRODUCT DESCRIPTION
Upon execution of this Schedule, Licensor shall provide the following products
(collectively the "Products"):
a) "SA Licenses" - Each "SA License" shall include: [*]Motive SE Desktop
License and [*] Motive E-Hub Licenses (previously referred to as
"Motive Base Server" in Schedule B) and Motive Integration Server
Licenses needed to support the deployed number of Motive SE Desktop
licenses.
b) "Self Service Licenses" - A ("SSL") license is required for [*] which
is receiving, accessing or utilizing the self-healing or self-service
functionality. Self-service or self-healing is defined as use of the
system or Product to attempt a fix of a customer problem without the
assistance of a System Analyst. This will invoke a SSL license fee. The
SSL licensing model also includes as many Motive Self-Service Engine
licenses required to support the licensed number of SSL's.
3. ACTIVELINK SUBSCRIPTION SERVICE
a) ActiveLink Premium Subscription Service - ("ActiveLink") is an [*]
subscription service which provides access to a Motive web site that
hosts automated software files designed to diagnose and/or resolve
technical support problems.
b) During the [*] after execution of this Schedule, Dell will receive
access to and the right to use Motive's ActiveLink Premium Subscription
Service for [*]. Each year during the Term thereafter, Dell may renew
its subscription to ActiveLink for [*] per year. Dell's access to and
use of Motive's ActiveLink Premium Subscription Service is to provide
technical support for its products provided such use is made through a
Motive E-Hub Server license purchased from Motive
c) Motive's ActiveLink Subscription Service provides Dell access to the
ActiveLink web site. The ActiveLink web site contains "Active Content"
files which are text files or fragments which have been activated by
Motive to produce an executable program which is designed to diagnose
and potentially repair technical problems being experienced by an end
user.
d) ActiveLink Subscription Use Rights. Subject to the terms and conditions
of this Schedule and the Agreement, Motive grants Dell an individual,
non-sublicensable, non-exclusive and non-transferable right to download
and use the Active Content to diagnose and/or repair its technical
support problems. Except as expressly authorized by Motive, Dell will
not use the Active Content for timesharing or service bureau purposes
or otherwise for the benefit of a third party (other than Dell's
Customers) or remove any Active Content proprietary notices or labels.
Dell acknowledges that Motive and its licensors retain ownership of all
Active Content including translations,
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
25
<PAGE>
compilations, and derivative products, any portions or copies thereof,
and all rights therein. Dell will not (and will not allow any third
party to) reverse engineer or attempt to discover any source code or
underlying ideas or algorithms of any Active Content. Dell agrees only
to use the Active Content diagnostic / repair routines through and in
conjunction with licensed Motive server and desktop Software Programs.
e) Support. For payment of the ActiveLink Premium Subscription Fee, Dell
will receive access to any updates or modifications made to the
ActiveLink web site by Motive. Motive will scan all Active Content
served on the ActiveLink web site for any known viruses.
f) Warranty. THE ACTIVELINK SERVICE IS PROVIDED "AS IS" WITHOUT A
PERFORMANCE WARRANTY OF ANY KIND, AND MOTIVE DISCLAIMS ALL WAS, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WAS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MOTIVE AND ITS
LICENSORS, WITH RESPECT TO ACTIVELINK, WILL NOT BE LIABLE IN ANY EVENT
FOR LOSS OR INACCURACY OF DATA, OR LOSS OF PROFITS OR REVENUE.
4. FINANCIAL SUMMARY
The total initial value of this Schedule is [*] consisting of the Products
(as specified in paragraph 6 of this Schedule) and services specifically
described in this Schedule:
Schedule License Fee [*]
Year One Maintenance [*]
Total [*]
5. PAYMENT TERMS
Dell shall pay Licensor in accordance with the following schedule (all fees
exclude taxes):
Product
Amount Notification Date Payment Due Date
------ ----------------- ----------------
[*] N/A [*]
[*] [*] [*]
[*] Upon request and delivery of the final [*] Licenses no later than
[*]
6. DELIVERY
By execution of this Schedule, Dell places a firm order for [*] Licenses
and [*] SSL Licenses with an option to purchase [*] additional SA Licenses.
Each Payment Due Date specified in Section 5 also represents a use
authorization date for the specified number of SA Licenses and SSL
Licenses. Dell receives the right to use a portion of the [*] SA Licenses
and [*] SSL Licenses on these Payment Due Dates. At Dell's direction, each
payment will be associated with a combination of additional SA Licenses and
SSL Licenses. The total value of the additional licenses shall not exceed
the payment amount for that specific Payment Due Date. The value of the
licenses shall be based on the unit prices of [*] per SA License and [*]
per SSL License. On each of the Product Notification Dates identified in
Section 5, Dell agrees to provide Motive with a breakout of the number of
additional SA and SSL Licenses to be associated with that particular
payment amount. If Motive has not received the breakout from Dell within
ten (10) days after the Product Notification Date, Motive will provide the
Dell contact point (identified below) with a projected breakout number of
SA and SSL Licenses to be used. All correspondences will be made either
through electronic mail or overnight carrier. If Dell does not respond to
the Motive contact point (identified below) with a change to the product
breakout within ten (10) days after Motive's notice to Dell, the projected
product breakout for that particular payment period as provided by Motive
will be deemed accepted by Dell and Dell will pay schedule payment amount.
Notwithstanding the forgoing, Dell may not use more licenses than they have
procured at the unit values set forth in this Paragraph. The
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
26
<PAGE>
breakout of the number of SA and SSL Licenses to be available for use in
conjunction with the [*] payment date is [*] SA Licenses and [*] SSL
Licenses. Additionally, upon the final Payment Due Date [*] Dell will have
taken delivery of entire [*] SA Licenses and [*] SSL Licenses.
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
Total Product Licenses Delivery Date
---------------------------------------------------------------------------------------------------------
<S> <C>
[*] SSL Licenses Pursuant to Section 6
---------------------------------------------------------------------------------------------------------
[*] SA Licenses Pursuant to Section 6
---------------------------------------------------------------------------------------------------------
[*] SA Licenses Upon Dell's request but not later than [*]
---------------------------------------------------------------------------------------------------------
<CAPTION>
---------------------------------------------------------------------------------------------------------
Dell Contact Point Motive Contact Point
---------------------------------------------------------------------------------------------------------
<S> <C>
Dell Products L.P. Motive Communications, Inc.
Attn: Strategic Business Management Attn: Contract Manager
One Dell Way 9211 Waterford Centre Blvd, Suite 100
Round Rock, TX 78682 Austin, TX 78758
512/338-4400 512/339-9040
---------------------------------------------------------------------------------------------------------
</TABLE>
7. NON-DELIVERY OF FINAL SA LICENSES
If Dell chooses not to purchase the final [*] SA Licenses by [*], the
following will occur:
a) Motive will invoice Dell a cancellation fee of [*] on [*]. This
cancellation fee represents the SA License per unit fee difference
between [*] and [*] (a [*] delta) times the [*] SA Licenses actually
taken.
b) The unit purchase price for additional SA Licenses purchased during
the Term will increase from [*] to [*].
8. ADDITIONAL LICENSE PURCHASES
a) Dell may purchase additional SA Licenses at [*] per license in [*]
during the Term provided Dell takes delivery and makes scheduled
payments for all [*] SA Licenses by [*]. If Dell chooses not to
purchase the final [*] SA Licenses by [*], the unit purchase price for
SA Licenses will increase from [*] to [*].
b) Dell may purchase additional SSL Licenses at a unit rate of [*] in
quantities of [*] during the Term.
9. SOFTWARE MAINTENANCE
a) Dell may continue to renew maintenance covering all internal use
licensed Products for Years [*] by paying Licensor the charges defined
below for [*] annual software maintenance:
Annual Monthly
Maintenance Year Maintenance Fee Payment Amount
---------------- --------------- --------------
[*] [*] [*]
b) The above Maintenance Fees include the renewal maintenance fees for i)
all licenses currently purchased under this Schedule, ii) all
additional licenses purchased in accordance with this Schedule, and
iii) the Pilot Program licenses purchased [*]. All maintenance fees
are hereby made co-terminus.
c) The above annual Maintenance Fees will be paid in advance on a monthly
basis in accordance with the payment amounts identified above.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
27
<PAGE>
10. TEST/LABORATORY USE
Dell shall that the right to deploy at any time during the Term up to [*]
of the total purchased SA Licenses at [*] for training testing/laboratory
use, educational and backup purposes.
11. LICENSEOR PROFESSIONAL SERVICES ("Professional Services")
Dell shall be entitled to a [*] discount on Motive's then current
professional services daily labor rates during the Term if ordered in [*]
day increments. In return, Dell agrees to provide reasonable efforts to
forecast services [*] days in advance. Any extended term project
engagements ([*] or more) shall be bid separately and subject to [*] based
on term and nature of project.
12. RESELLER DISCOUNT FOR "CABLE GUY" PRODUCTS
Dell shall be entitled to a minimum [*] reseller discount off the "Cable
Guy" products) list price for the resale of the Motive's Cable Guy
products) into Dell's accounts during the Term. Actual discounts shall be
established and based on an annual volume schedule. In addition, the
parties agree to work together to establish a reference fee model for any
Dell "Cable Guy" customers) which purchase any type of potential Cable Guy
upgrade license directly through Motive.
13. SUPPORT FOR NON-DELL SYSTEMS
For Enterprise-class customers only, and those customers which have an on-
premise, heterogeneous "Cable Guy" license purchased from either Motive or
an authorized Motive Reseller, Dell shall have the right to support [*]
provided such systems have a Self Service License.
14. DELL'S PRODUCT INFORMATION RIGHTS
Motive will disclose, on a regular basis determined in advance, its future
technology roadmap and product release plans. The purpose of these
technology/product reviews would be to give to [*], as well as [*] into
important product capabilities. Motive will also agree to provide Dell with
early development releases of technology, [*] are commercially available
via commercial beta test agreements. Motive would agree to stipulate that
such joint planning and information sharing would be at a [*] by [*].
With respect to new products or business initiatives that Motive has
unilaterally developed internally without any input from non-Motive
personnel or in conjunction with another entity, Motive agrees to approach
Dell no later than the time frame in which they approach or brief any other
third party with such opportunities. Motive agrees that Dell's request to
participate in said opportunity shall not be unreasonably refused.
15. FAVORED CUSTOMER CLAUSE
-----------------------
During the Term of this Schedule F, Motive affirms that it will not license
the Products contained in this Schedule to other Motive customers for a
better price than those charged Dell under similar quantities, terms, and
other considerations. If, during the Term, it is found that Motive is
offering a pricing model which is more favorable than the model under which
this Schedule was developed at similar quantities, terms, and other
considerations, Motive will apply the new model only to additional
purchases made by Dell. At the end of this period, parties may enter into
further pricing discussions.
16. PUBLIC ANNOUNCEMENT AND REFERENCE ACCOUNT
a) Dell agrees to be a reference account of Licensor and will assist with
answering a reasonable number of Licensor potential customer inquiries
concerning the Licensor Products.
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
28
<PAGE>
b) At the time of Schedule execution, Dell will support a major press
releases announcing the agreement and how Dell will use Products to
support its enterprise from a business perspective. The announcement
shall be coordinated and subject to approval of Dell prior to
publication, such approval shall not be unreasonably withheld.
17. SCHEDULE CONFIDENTIALITY
The parties agree that the pricing, quantities, terms and conditions of
this Schedule are Confidential Information and except as otherwise agreed
(specifically under Section 10 above) shall not be disclosed to or
discussed with any third party unless they are agents or contractors who
are under a nondisclosure agreement with Dell. Therefore, the parties agree
to treat this Schedule as Confidential Information and shall protect it in
the same manor as they protect their own Confidential Information.
18. DOCUMENTATION
For use of the Products, Motive shall provide to Dell the following
documents:
Motive System Getting Stated
Motive Assistant User's Guide for Windows
Motive Support Desktop User's Guide
Motive Studio User's Guide
Motive Map Creator's Guide for Windows
Motive Advanced Map Command Reference for Windows
Motive System Release Notes
19. SPECIFICTIONS
Both parties acknowledge that this Schedule shall incorporate all
specifications (the "Specifications") set forth in the Documentation above.
As such, the Product should operate in accordance with the Documentation
and Specifications.
20. MISCELLANEOUS
a) For purpose of this Schedule, Paragraph 6.3, Acceptance testing for a
new Licensor product, shall not apply to the Products and services
provided under this Schedule.
b) Software Warranty. Motive shall provide a warranty, in accordance with
Paragraph 8.6 of the Agreement, that the software licensed to Dell
under this Schedule will perform in accordance to the published
technical Specifications for said software for a period of 150 days
from date of execution of this Schedule. Motive's warranty repair or
replacement obligations for the SSL Licenses can be electronically
delivered by Dell to its customers from a remote location through an
operational network or Internet connection.
29
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Schedule F with an
effective date of June 30, 1999.
DELL PRODUCTS L.P. LICENSOR
MOTIVE COMMUNICATIONS, INC.
By: /s/ Gary Cotshott By: /s/ Scott Harmon
----------------------------- ------------------------------------
Printed Name: Gary Cotshott Printed Name: Scott Harmon
Title: Vice President Title: President and CEO
LICENSOR
DELL PRODUCTS L.P. MOTIVE COMMUNICATIONS, INC.
By: /s/ Mike Clifford By: /s/ Christopher A. Burch
---------------------------- ------------------------------------
Printed Name: Mike Clifford Printed Name: Christopher A. Burch
Title: VP/CIO Title: Manager of Contract Services
30
<PAGE>
Dell Marketing L. P.
Addendum One to the Software License Agreement
with
Motive Communications, Inc.
THIS ADDENDUM to the SOFTWARE LICENSE AGREEMENT is entered into as of this l0th
----
day of August, 1999 (hereinafter "Effective Date") by and between Dell Products
----
L.P. (hereinafter "Dell") with its principal place of business at One Dell Way,
Round Rock, Texas 78682, and Motive Communications, Inc., a Delaware corporation
(hereinafter "Motive"), a corporation having a principal place of business at
9211 Waterford Centre Blvd., Austin, Texas 78758.
Both parties wish to amend the Agreement to establish additional terms and
conditions that apply to purchases by Dell of products from Motive and the
distribution of such products ("Products") in the United States.
Definitions. Unless otherwise indicated herein, all capitalized terms used in
-----------
this Addendum shall have the definitions assigned to them in the Agreement
1. Amendment to the Agreement. This Addendum constitutes an amendment to the
--------------------------
Agreement. In the event of any conflict or inconsistency between the terms of
this Addendum and the terms of the Agreement, the terms of this Addendum
shall control.
2. Other Terms and Conditions of the Agreement. Except as modified herein above,
-------------------------------------------
all other terms, conditions, and provisions of the Agreement shall remain in
full force and effect.
3. Waiver. Nothing contained in this Addendum shall be deemed a waiver of any
------
rights or release of any obligations that shall have accrued under the
Agreement prior to the Effective Date of this Addendum.
4. Entire Agreement; Integration. This Addendum and the Agreement constitute the
-----------------------------
entire and exclusive agreement between the parties with respect to the
subject matter hereto. All previous discussions and agreements with respect
to this subject matter are superseded by the Agreement and this Addendum.
Add the following new paragraph to Section 2. Grant of License:
"2.5 Dell is authorized to subcontract the reproduction and installation of
the Products to its agents or contractors who are manufacturing and
assembling computers on behalf of Dell provided i) there is a written
agreement in place between Dell and the agent/contractor that governs and
protects the Licensor , its Products, and its Confidential Information to
the same degree as provided under this Agreement; ii) that the
agent/contractor uses the Products solely on behalf of Dell to fulfill
Dell's obligations under this Agreement or a Schedule to this Agreement;
and iii) upon completion or termination of the subcontracting agreement
between Dell and the third party, all Licensor's Products and Confidential
Information be returned to Dell."
IN WITNESS WHEREOF, the parties hereto have duly executed this Software License
Agreement by their respective duly authorized officers to be effective as of the
Effective Date as first written above.
DELL PRODUCTS L.P. MOTIVE COMMUNICATIONS, INC.
By: /s/ Sharon Peterson By: /s/ Christopher A. Burch
-------------------------------- ----------------------------------
Title: Dir, WWSP Title: Manager of Contract Services
------------------------------ -------------------------------
Date: 8/23/99 Date: August 12, 1999
------------------------------ -------------------------------
31
<PAGE>
Dell Products L.P.
Addendum Two to the Software License Agreement
with
Motive Communications, Inc.
THIS ADDENDUM to the SOFTWARE LICENSE AGREEMENT is entered into as of this 3rd
day of September, 1999 (hereinafter "Effective Date") by and between Dell
Products L.P. (hereinafter "Dell") with its principal place of business at One
Dell Way, Round Rock, Texas 78682, and Motive Communications, Inc., a Delaware
corporation (hereinafter "Motive"), a corporation have a principal place of
business at 9211 Waterford Centre Blvd., Austin, Texas 78758.
Both parties wish to amend the Agreement to establish additional terms and
condition that shall expand Dell's rights under the License Grant section of the
Agreement.
Definitions. Unless otherwise indicated herein, all capitalized terms used in
-----------
this Addendum shall have the definitions assigned to them in the Agreement.
1. Amendment to the Agreement. This Addendum constitutes an amendment to the
--------------------------
Agreement. In the event of any conflict or inconsistency between the terms of
this Addendum and the terms of the Agreement, the terms of this Addendum
shall control.
2. Other Terms and Conditions of the Agreement. Except as modified herein, all
-------------------------------------------
other terms, conditions and provisions of the Agreement shall remain in full
force and effect.
3. Waiver. Nothing contained in this Addendum shall be deemed a waiver of any
------
rights or release of any obligations that shall have accrued under the
Agreement prior to the Effective Date of this Addendum.
4. Entire Agreement: Integration. This Addendum and the Agreement including
-----------------------------
Addendum 1 and any attachments and Schedules to the Agreement constitute the
entire and exclusive agreement between the parties with respect to the
subject matter hereto. All previous discussions and agreements with respect
to this subject matter are superseded by the Agreement and this Addendum.
Add the following language to the end of Section 2.1 of the Agreement:
The above license grant includes, without limitation, the right and license
to use, in connection with the marketing and distribution of the
Product(s): (i) Motive's trade names, product names and trademarks and (ii)
all pictorial, graphic and audio visual works including icons, screens and
characters created as a result of execution of the Product(s).
IN WITNESS WHEREOF, the parties hereto have duly executed this Addendum to the
Agreement by their respective duly authorized officers to be effective as of the
Effective Date as first written above.
DELL PRODUCTS L.P. MOTIVE COMMUNICATIONS, INC.
By: /s/ Sharon Peterson By: /s/ Christopher A. Burch
-------------------------------- ----------------------------------
Title: Dir, WWSP Title: Manager of Contract Services
------------------------------ -------------------------------
Date: 9/16/99 Date: September 8, 1999
------------------------------ -------------------------------
32
<PAGE>
PURCHASING SCHEDULE NO. 1
DATED July 23, 1999
This Purchasing Schedule No. 1 ("Schedule") documents the services being
purchased by customer under the terms and conditions of the License Agreement
dated December 2, 1998, between Motive Communications, Inc., a Delaware
corporation with an office at 9211 Waterford Centre Blvd, Suite 100, Austin, TX
78759 and Dell Products L.P. ("Dell").
Service and Fee Information
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Qty Item Description List Price Extended
Price
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*] Project Services [*] [*]
Motive will provide up to [*] days of Professional Services
performed on a time and material basis at the discounted rate of
[*] per day for the services outlined in the Exhibit A, Statement
of Work. One day is defined as one person for an eight (8) hour
day. Any funding unused by November 30, 1999 shall expire and no
additional services will be provided after such expiration unless
agreed to in writing by both parties.
----------------------------------------------------------------------------------------------------------------------
Total Price: [*]
----------------------------------------------------------------------------------------------------------------------
</TABLE>
1. All prices and terms valid to [*].
2. Prices exclude taxes.
3. Motive will invoice on a monthly basis for only the number of days actually
performed.
Licensee, by its execution hereof, orders and purchases for delivery, under
these terms and conditions, the Professional Services provided in accordance
with this Schedule.
Motive Communications, Inc. ("Motive") Dell Computer Corporation ("Dell")
By: /s/ Michael Clifford By: /s/ Christopher A. Burch
-------------------------------- ----------------------------------
Name: Michael Clifford Name: Christopher A. Burch
------------------------------ -------------------------------
Title: VP / CIO Title: Manager of Contract Services
------------------------------ -------------------------------
Date: 7/27/99 Date: August 4, 1999
------------------------------ -------------------------------
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
33
<PAGE>
PURCHASING SCHEDULE NO. 2
DATED December 1, 1999
This Purchasing Schedule No. 2 ("Schedule") documents the services being
purchased by customer under the terms and conditions of the License Agreement
dated December 2, 1998, between Motive Communications, Inc., a Delaware
corporation with an office at 9211 Waterford Centre Blvd, Suite 100, Austin, TX
78759 and Dell Products L.P. ("Dell").
Service and Fee Information
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Qty Item Description List Price Extended
Price
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[*] [*] Project Services [*] [*]
Motive will provide up to [*] days of Professional Services
performed on a time and materials basis at the discounted rate
of [*] per half day. One half-day is defined as one person for
a four (4) hour day. Any funding unused by [*] shall expire and
no additional services will be provided after such expiration
unless agreed to in writing by both parties.
----------------------------------------------------------------------------------------------------------------------
Total Price: [*]
----------------------------------------------------------------------------------------------------------------------
</TABLE>
1. All prices and terms are valid until [*].
2. Prices include taxes.
3. Motive will invoice on a monthly basis for only the number of days actually
performed.
Licensee, by its execution hereof, orders and purchases for delivery, under
these terms and conditions, the Professional Services provided in accordance
with this Schedule.
Motive Communications, Inc. ("Motive") Dell Computer Corporation ("Dell")
By: /s/ Christopher A. Burch By: /s/ Sameer Jaetap
---------------------------------- --------------------------------
Name: Christopher A. Burch Name: Sameer Jaetap
------------------------------- ------------------------------
Title: Manager of Contract Services Title: Manager
------------------------------- ------------------------------
Date: Jan. 17, 2000 Date: 1/13/2000
------------------------------- ------------------------------
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
34
<PAGE>
PURCHASING SCHEDULE NO. 3
DATED MAY 28, 1999
This Purchasing Schedule No. 3 ("Schedule") documents the services being
purchased by customer under the terms and conditions of the License Agreement
dated December 2, 1998, between Motive Communications, Inc., a Delaware
corporation with an office at 9211 Waterford Centre Blvd, Suite 100, Austin, TX
78759 and Dell Products L.P. ("Dell").
Service and Fee Information
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Qty Item Description Price
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[*] [*] Project Services [*]
Overview: To modify the [*] of the user interface of the Motive Assistant
from "Motive Assistant" and Motive [*] to [*] with a [*]. To accomplish
this Motive will modify the Motive Assistant Release 2.0 source code and hard
code Dell's requested UI modifications into a special version of the product.
This effort will require engineering and testing cycles to build and test the
separate Dell code base and will apply to Motive Motive Duet Release 2.0 only.
Motive will support the special Release 2.0 version in the same fashion as we
support our standard Release 2.0 version. The efforts to be performed under
this Schedule shall be performed in accordance with the specifications mutually
agreed to on a "Specification Sheet" which shall be mutually agreed to
and executed separately as an attachment to this Schedule.
Delivery: Motive will deliver the special version of the product within
two weeks of being provided final message text and bit maps referenced
in Attachment A.
Cost: The fixed cost to Dell for effort is [*] billable upon
completion.
----------------------------------------------------------------------------------------------------------------------
[*]
Total Price:
----------------------------------------------------------------------------------------------------------------------
</TABLE>
1. All prices and terms valid to [*].
2. Prices exclude taxes.
Licensee, by its execution hereof, orders and purchases for delivery, under
these terms and conditions, the Professional Services provided in accordance
with this Schedule.
Motive Communications, Inc. ("Motive") Dell Computer L.P. ("Dell")
By: /s/ Christopher A. Burch By: /s/ Rick Hoffman
---------------------------------- ---------------------------------
Name: Christopher A. Burch Name: Rick Hoffman
------------------------------- -------------------------------
Title: Manager of Contract Services Title: Director of Systems Management
------------------------------- -------------------------------
Date: June 3, 1999 Date: 5/28/99
------------------------------- -------------------------------
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
35
<PAGE>
PURCHASING SCHEDULE NO. 4
DATED JUNE 30, 1999
This Purchasing Schedule No. 4 ("Schedule") documents the services being
purchased by customer under the terms and conditions of the License Agreement
dated December 2, 1998, between Motive Communications, Inc., a Delaware
corporation with an office at 9211 Waterford Centre Blvd, Suite 100, Austin, TX
78759 and Dell Products L.P. ("Dell").
Service and Fee Information
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------------
Qty Description Unit Price Extended
Price
-----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
[*] Motive Support Analyst Licenses ("SA Licenses") [*] [*]
Each SA License includes [*] Motive SE Desktop License and as may Motive E-Hub and Integration
Server licenses required to support the number of Motive SE Desktop licenses.
-----------------------------------------------------------------------------------------------------------------------
[*] Motive Self-Service Engine (see note 3 below) [*] [*]
Provides [*] Self-Service License as required to support Dell America's [*].
These licenses will only be used [*] in support of Dell America's [*] requirements.
-----------------------------------------------------------------------------------------------------------------------
[*] Motive System Integration Services for Ticket System. [*] [*]
-----------------------------------------------------------------------------------------------------------------------
[*] Motive [*] [*] [*]
(Motive [*] provides the expertise to assist in the installation,
configuration, and operation of the Motive System.)
-----------------------------------------------------------------------------------------------------------------------
[*] Custom Project Services [*] [*]
Time and Material based projects on a daily basis. One day is defined as
one person for an 8 hour day.
-----------------------------------------------------------------------------------------------------------------------
Total Price: [*]
-----------------------------------------------------------------------------------------------------------------------
</TABLE>
1. All prices and terms valid to [*].
2. Prices exclude taxes.
3. For this Schedule only, Motive is waiving the requirement to purchase Motive
Self-Service Licenses in minimum lots of [*]. Except for normal growth of
Dell America's [*] operations, the scope of use of the Self-Service Licenses
acquired herein shall not include any non-Dell business operation that may be
subsequently acquired by or merged with Dell.
4. Maintenance for the software Products licensed under this Purchasing Schedule
No. 4 will be provided for [*] as long as Dell continues to pay the
coterminous maintenance fees payable under Schedule F of the Agreement.
5. Dell America's [*] operation group shall have access to and use rights of
Motive's ActiveLink Premium Subscription Service for [*] as long as Dell
continues to pay the subscription fee as outlined in Schedule F of the
Agreement. The terms and conditions of Schedule F of the Agreement shall
govern Dell's access to and use of Motive's ActiveLink Premium Subscription
Service.
Licensee, by its execution hereof, orders and purchases for delivery, under
these terms and conditions, the Professional Services provided in accordance
with this Schedule.
[CAPTION]
Dell Products L.P. Motive Communications, Inc. ("Motive")
By: /s/ Dave Wagner By: /s/ Christopher A. Burch
-------------------------------- ----------------------------------
Name: Dave Wagner Name: Christopher A. Burch
------------------------------ -------------------------------
Title: VP/CIO IT Infrastructure Svcs. Title: Manager of Contract Services
------------------------------ -------------------------------
Date: 6/30/99 Date: June 30, 1999
------------------------------ -------------------------------
*Certain confidential information on this page has been omitted and filed
separately with the Securities and Exchange Commission.
36
