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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported) October 2, 1998
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SYMANTEC CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-17781 77-0181864
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
10201 Torre Avenue
Cupertino, California 95014
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (408) 253-9600
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Item 5: Other Events
Purchase of Anti-Virus Business of Intel Corporation.
Symantec Corporation ("Symantec") acquired rights to Intel
Corporation's anti-virus business. Symantec has also licensed Intel systems
management technology which it will combine with its own antivirus technology to
create best-of-breed anti-virus solutions for corporate organizations.
Norton AntiVirus engine technology will be integrated into a new
anti-virus product that Intel has had under development for most of this year.
The product will be fully integrated with Intel LANDesk Management Suite and
will be launched as a Norton AntiVirus product later this year to provide an
obvious and smooth upgrade path for current LANDesk Virus Protect customers.
Under the agreement, Symantec will support Intel's registered
anti-virus customers once Symantec distributes a new Symantec version of Intel's
antivirus product. Intel will also market the Norton AntiVirus product line
through its extensive reseller channel worldwide.
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Item 7: Financial Statements and Exhibits.
(c) Exhibits
<TABLE>
<S> <C>
10.1 Software License Agreement between Symantec and Intel
Corporation, dated September 27, 1998.*
99.1 Press release of Symantec dated September 28, 1998.
</TABLE>
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*Confidential treatment has been requested for certain portions of this exhibit.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: October 2, 1998
SYMANTEC CORPORATION
By: /s/ Derek P. Witte
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Derek P. Witte
Vice President and General Counsel
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<TABLE>
<CAPTION>
Exhibit
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<S> <C>
10.1 Software License Agreement between Symantec and Intel
Corporation, dated September 27, 1998.*
99.1 Press release of Symantec dated September 28, 1998.
</TABLE>
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*Confidential treatment has been requested for certain portions of this exhibit.
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EXHIBIT 10.1
SOFTWARE LICENSE AGREEMENT
This agreement ("Agreement") is made between Symantec Corporation, a Delaware
corporation having offices at 10201 Torre Avenue, Cupertino CA 95014
("Symantec"), and Intel Corporation, a Delaware corporation having offices at
5200 N.E. Elam Young Parkway, Hillsboro, OR 97124 ("Intel"). Symantec and Intel
are each individually referred to herein as a "Party" and collectively as the
"Parties." This Agreement shall become effective on the date as of which both
parties have executed the agreement (the "Execution Date").
AGREEMENT
1.0 DEFINITIONS
1.1 "LDVP SOFTWARE" means that certain Intel LANDesk(R) Virus Protect
software specified in Exhibit A (which does not include the Common
Technology Software and Third Party Software), which includes the Antivirus
Specific Software, in both Source Code and Object Code form, all associated
Design Documentation and End User Documentation plus all generally
available language translations of the foregoing.
1.2 "COMMON TECHNOLOGY SOFTWARE" means that certain Intel Common
Technology Software specified in Exhibit A, in Object Code form, and any
subsequent Releases and Maintenance Updates, API definitions, plus all
generally available language translations of the foregoing.
1.3 "AVC SOFTWARE" means the Norton Anti-Virus Client software specified
in Exhibit A, in Object Code form, which contains functionality equivalent
to that which is offered as Symantec's standard anti-virus client product,
any subsequent Releases and Maintenance Updates, End User Documentation,
and API definitions, plus all generally available language translations of
the foregoing.
1.4 "LICENSED SYMANTEC PRODUCTS" means any product sold or licensed by
Symantec, which contains the Common Technology Software.
1.5 "LICENSED INTEL PRODUCTS" means any product sold or licensed by Intel,
which contains the AVC Software.
1.6 "RELEASE" means a major release or point release of any software
licensed by either Party under this Agreement, which is designated by the
licensor Party in its sole discretion as a new release. A "Major Release"
means a significantly enhanced or revised release of such software, as
customarily signified in the software industry by a change in the digit
which appears immediately to the left of the decimal point in the version
number. A "Point Release" means a new release of such software that may
contain new features and functionality and is customarily signified by the
software industry by a change in the digit that appears to the right of the
decimal point in the version number. "Release" specifically excludes
"Maintenance Updates."
Confidential treatment has been requested for portions of this document.
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1.7 "MAINTENANCE UPDATE" means changes to fix a bug or correct an error to
an existing release of any software licensed by either Party to the other
Party under this Agreement, made by or for the licensor Party in its sole
discretion, and which is designated by the licensor Party as a maintenance
update.
1.8 "DESIGN DOCUMENTATION" shall mean any documentation existing as of the
Execution Date of the Agreement or thereafter relating to (i) how software
was developed, (ii) how the software works, is organized or is partitioned
internally, (iii) how a licensee other than an end user can if granted the
right modify or add to the software functionality, (iv) any non-public
APIs, and/or (v) any written confidential and trade secret information of a
technical nature provided by one Party to the other under this Agreement.
1.9 "END-USER DOCUMENTATION" shall mean any end user installation and user
guides, manuals, and other technical information in printed and
machine-readable form that are normally provided by the licensor Party to
end users of software. End User Documentation specifically excludes Design
Documentation and any Source Code documentation.
1.10 "OBJECT CODE" means software, including all computer programming code
in binary form that is directly executable by a computer after suitable
processing but without the intervening steps of compilation or assembly,
and all help, message, and overlay files.
1.11 "SOURCE CODE" means the software code from which Object Code is
compiled. Source code includes the commented software Source Code and
design documentation for the relevant software, as well as all other
materials, in both machine readable and hard-copy form, that are used to
develop or test the software. Source Code includes, for example, relevant
electronically readable source documentation, design documents, data
models, test scripts, help materials, and tutorial programs.
1.12 "SUBSIDIARY" means any corporation, company or other entity with
regard to which (a) greater than fifty percent (50%) of whose outstanding
shares or securities entitled to vote for the election of directors or
similar managing authority is directly or indirectly owned or controlled by
a Party hereto; or (b) which does not have outstanding shares or securities
but greater than fifty percent (50%) of whose ownership interest
representing the right to make such decisions for such entity is, now or
hereafter, owned or controlled, directly or indirectly, by a party hereto;
provided however, that in each case such corporation, company or other
entity shall be deemed a Subsidiary only so long as such ownership or
control exists and exceeds fifty percent (50%). For purposes of this
Agreement, the terms Intel and Symantec shall include all of each
respective Party's Subsidiaries.
1.13 "SMA" means a Service Maintenance Agreement between Intel and
licensees of LDVP 5.X in one of the forms attached as Exhibit D.
1.14 "VPA" means a Volume Purchase Agreement between Intel and licensees of
LDVP 5.X in one of the forms attached as Exhibit D.
1.15 "NET REVENUE" means actual gross receipts from sales, marketing and
distribution of the products, less taxes (including, but not limited to,
any sales, use, excise or other taxes), bad debts, interest, currency
exchange fees and other finance charges, shipping
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costs (including, but not limited to, insurance, transportation costs and
duties) and allowances for returns, defects, replacements or stock
balances. If any product is distributed with other products in a package
for a single price, the Net Revenue attributable to such product will be
determined by prorating the receipts from the sale or license of the
package according to the suggested retail prices, or if no suggested retail
price is announced, the values established by the Party selling the product
, for the separate works contained in the package, whether or not such
products are distributed separately, provided that such values are
reasonably related to the values, marketing potentials or cost of the
separate products. Net Revenue will not include any receipts from copies of
the products which are distributed by the Party to previous purchasers of
the products as back-up, replacement or update copies for which that Party
does not receive payment in excess of $15.00, and no amount will be
credited or paid to the other Party with respect to any receipts from
copies of the products supplied for promotional purposes to the press,
trade, sales representatives or potential customers for the products.
Amounts received by a Party as deposits or advances will not be deemed to
have been received until shipments of the product to the party making the
deposits or advances have been made against such deposits or advances.
Partial payments of an invoice will be prorated over all products included
in the invoice. Amounts received by the Party in foreign currencies will be
deemed converted into United States Dollars at the average exchange rates
used by the Party in its financial statements for the month of receipt.
1.16 "THIRD PARTY SOFTWARE" means the third party software code included in
LDVP Software Version 5.0 and LDVP Software Version 6.0 specified in
Exhibit A.
1.17 "AV SUBSCRIPTION" means a subscription granting rights to receive
updated virus pattern files over a specified period of time for end users
of the AVC Software.
1.18 "INTELLECTUAL PROPERTY" means (i) copyrights and trade secrets in the
software as delivered; and (ii) to the minimum extent that is necessary to
exercise the copyright license, claims of patents that read on inventions
incorporated into the software as delivered
1.19 "ANTIVIRUS SPECIFIC SOFTWARE" means that portion of the LDVP Software
that is specific to detection and removal of viruses.
2.0 INTEL DELIVERABLES
2.1 INITIAL DELIVERY OF SOFTWARE: Intel shall deliver to Symantec the LDVP
Software version 5.0, alpha version 6.0, Common Technology Software and
associated End-User Documentation and any available mail extensions or
foreign language translations that are available as of the Execution Date
within thirty (30) days after the Execution Date. Intel shall also deliver
available training materials and sales/marketing collateral specifically
related to the LANDesk Virus Protect product to Symantec at this time..
Additionally, Intel shall deliver to Symantec the English only LDVP
Software version 6.0 (without mail extensions or foreign language
translations) 10 days after Intel determines, in its reasonable discretion,
that development and testing of such product are complete based on Intel's
normal criteria (including as set forth in Exhibit F) for releasing LANDesk
software products and based on Intel's definition of the product (i.e. no
custom development work for Symantec is contemplated). Concurrent with the
LDVP 6.0 alpha
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delivery, Intel shall either deliver all Intel proprietary tools (including
localization tools) necessary to build LDVP 6.0 under the license
provisions set forth in Section 4.5 or will help Symantec identify
alternative tools and/or processes to accomplish such build, however Intel
will be under no obligation to obtain or provide Symantec with third party
software tools.
2.2 SUBSEQUENT DELIVERY OF RELEASES: Any Releases and Maintenance Updates
to the Common Technology Software developed by or for Intel during the term
of this Agreement shall be provided to Symantec at such time as the Release
or Maintenance Update is made generally available to third parties. Intel
further agrees to provide to Symantec beta versions of any Releases or
Maintenance Updates (if any) at or before the time that Intel provides beta
versions to any third party. Symantec further acknowledges that,
notwithstanding any other provision of this Agreement, Intel will not be
required to deliver to Symantec any Releases of Common Technology Software
relating to unique features developed by or for Intel solely for a single
customer.
2.3 AGREEMENT DELIVERY AND ASSIGNMENT: On the Execution Date, Intel shall
deliver to Symantec true and correct copies of all current VPAs and site
agreement for the LANDesk(R) Virus Protect product to Symantec.
Furthermore, Intel represents that the VPA's are substantially similar to
the sample VPA agreement in Exhibit D.
2.4 CUSTOMER DATABASES: On the Execution Date, Intel shall deliver to
Symantec customer databases related to the LDVP Software in a MS excel
format containing information available to Intel for each database as
further defined in Exhibit E. Furthermore, Intel represents that the SMAs
referred to therein are substantially similar to the sample SMA agreements
in Exhibit D with the exception of customers who choose the enterprise
level support upgrade which includes 7x24 hour support. Symantec represents
that to the extent the LDVP customers remain separately identified, such
lists or databases shall not be provided to any third party without Intel's
prior written consent.
3.0 SYMANTEC DELIVERABLES
3.1 INITIAL DELIVERY: Symantec shall deliver to Intel the AVC Software,
associated End-User Documentation, technical API's for the underlying AV
scan engine included in the AVC Software, and any associated Design
Documentation related to such APIs within thirty (30) days after the
execution of this Agreement by both Parties.
3.2 SUBSEQUENT DELIVERY OF RELEASES: Any Releases and Maintenance Updates
to the AVC Software (after the delivery of the initial release) developed
by or for Symantec during the term of this Agreement shall be provided to
Intel at such time as the Release or Maintenance Update is made generally
available to third parties (including technical API's for the underlying AV
scan engine). Symantec further agrees to provide to Intel beta versions of
any Releases or Maintenance Updates (if any) at or before the time that
Symantec provides beta versions generally to third parties. Intel further
acknowledges that, notwithstanding any other provision of this Agreement,
Symantec will not be required to deliver to Intel any Releases of the AVC
Software relating to unique features developed by or for Symantec solely
for a single customer. Symantec shall also make Releases and Maintenance
Updates, including but not limited to virus pattern file updates, available
to
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Intel in a format that can be delivered by Intel to its customers via
electronic means, e.g. FTP or other web-based delivery mechanism.
3.3 SYMANTEC UPDATE OBLIGATION: Symantec will provide, for no additional
cost, Maintenance Updates and Releases of LDVP Software to any end user
customer who has an unexpired SMA for LANDesk Virus Protect software on the
Execution Date of the Agreement, for such time as the SMA is unexpired.
4.0 INTEL LICENSES TO SYMANTEC
4.1 LDVP SOFTWARE LICENSE: Subject to the terms and conditions of this
Agreement, Intel grants Symantec a non-exclusive, worldwide, irrevocable,
transferable, fully paid up (in accordance with the payment terms in
Section 11.1), perpetual license (with the right to sublicense) under
Intel's Intellectual Property in the LDVP Software to reproduce, have
reproduced, prepare and have prepared derivative works of, publicly
display, use, and distribute the LDVP Software and derivative works
thereof, in both Object Code and Source Code form to third parties;
provided that:
4.1.1 For twenty four (24) months after the Execution Date, Intel
agrees not to license LDVP Software (excluding the Antivirus Specific
Software, which is restricted as set forth in Section 4.1.3 below) or
derivatives thereof to [*] (including their respective successors in
interest, or assignees) for use in their anti-virus products.
4.1.2 From twenty four (24) months to thirty six months (36) after the
Execution Date, Intel agrees that if it licenses any derivatives of
LDVP Software (excluding the Antivirus Specific Software, which is
restricted as set forth in Section 4.1.3 below) to [*] (including
their respective successors in interest, or assignees) it shall make
available the same derivatives on a royalty free basis (subject to any
underlying royalties owed by Intel) to Symantec.
4.1.3 With respect to the Antivirus Specific Software, Intel agrees
that for the term of this Agreement, it will not use the Antivirus
Specific Software in the stand-alone anti-virus business and that it
will not (a) license or sell it to [*] (including their respective
successors in interest or assignees), or (b) license or sell the
buildable Object or Source Code to any other person or entity for
antivirus purposes, or (c) allow its licensees or assignees to do such
restricted acts. Notwithstanding the foregoing and subject to Intel's
payment of any applicable royalties set forth in the Agreement, Intel
shall not be prohibited from licensing or selling the Antivirus
Specific Software in conjunction with any Intel services and/or
products authorized herein (e.g, Intel(R) Answer Express sm, Intel(R)
LANDesk(R) Client Manager, etc.) or hereinafter as agreed upon by the
Parties. Additionally, Intel shall be permitted to license the
buildable Object or Source Code in conjunction with any outsourcing of
Intel support obligations. After the term of this Agreement has
expired, Intel will not be subject to the restrictions on the
Antivirus Specific Software set forth in this Section 4.1.3.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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4.2 COMMON TECHNOLOGY SOFTWARE LICENSE: Subject to the terms and
conditions of this Agreement, Intel grants Symantec a non-exclusive,
worldwide, non-transferable (except for assignment pursuant to Section
18,8), license under Intel's Intellectual Property in the Common Technology
Software (without the right to sublicense except as set forth below in
Section 4.3) to reproduce, have reproduced, publicly display, distribute
and use the Common Technology Software solely in Object Code form to third
parties; provided that:
4.2.1 In the event that Intel sells, assigns, or otherwise transfers
its rights in the Common Technology Software to a third party, which
is unable or unwilling to satisfy the support obligations related
thereto as set forth in this Agreement, Intel shall deliver to
Symantec the Common Technology Software in Source Code form and
provide Symantec with a limited license to use such Source Code solely
for support pursuant to the terms of this Agreement.
4.3 COMMON TECHNOLOGY SOFTWARE DISTRIBUTION: Symantec may distribute the
Common Technology Software in Object Code form solely through license
agreements binding on all parties in the distribution chain and/or on the
end user, which shall contain terms no less restrictive than those normally
used when Symantec distributes its own software products. In addition,
Symantec shall only distribute Common Technology Software when integrated
with Symantec products (which shall include for purposes of this
restriction the LDVP Software) and not in stand-alone form.
4.4 LIMITED SOURCE CODE LICENSES::
4.4.1 Subject to the terms and conditions of this Agreement, Intel
grants to Symantec a non-exclusive, non transferable, royalty free,
internal use only license under Intel's trade secret rights to use the
Source Code of the Common Base Agent ("CBA") software as set forth in
Exhibit A (i.e. - Common Base Agent Ping Discovery Service and Common
Base Agent Network Transport System) for the sole and exclusive
purpose of facilitating identification of software bugs and anomalies
and providing suggested fixes and workarounds to both Symantec's
Licensed Symantec Products customers and Intel, provided that:
4.4.1.1 Symantec shall strictly comply with the Source Code
Confidentiality provisions as set forth in Section 18.2.1;
4.4.1.2 No copyright, patent or other intellectual property
rights are granted to Symantec pursuant to this Section 4.4.1.
Intel shall provide one (1) copy of the CBA Source Code to
Symantec not later than Symantec's first commercial shipment of a
Licensed Symantec Product and shall provide Symantec with
periodic Source Code updates for the CBA software within a
reasonable period following Intel's commercial shipment of a new
Release; and
4.4.1.3 Intel shall not provide to Symantec, nor shall Intel be
required to obtain for Symantec, the Source Code to any third
party software which may be included in the CBA software.
Notwithstanding
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the foregoing, Intel shall notify Symantec of any third party
software contained in the CBA software.
4.4.2 Upon reasonable request by Symantec, which shall not be
unreasonably denied by Intel, and subject to the terms and conditions
of this Agreement, Intel shall, on a case by case basis, grant to
Symantec a non-exclusive, non transferable, royalty free license under
Intel's Intellectual Property rights to create derivatives of the
Source Code of the Common Technology Software solely by porting the
Source Code to function with Operating Systems ("OS's") which are not
supported by Intel. In conjunction with the foregoing, Intel also
grants to Symantec, a non-exclusive, non-transferable, royalty free
license under Intel's Intellectual Property rights to copy and
distribute the Common Technology Software derivatives in Object Code
form only to customers of Licensed Symantec Products. The conditional
rights and licenses set forth in this Section 4.4.2 are also subject
to the following:
4.4.2.1 Symantec shall strictly comply with the Source Code
Confidentiality provisions as set forth in Section 18.2.1;
4.4.2.2 Intel shall own all rights to the derivative Common
Technology Software Source Code and Object Code created by
Symantec as authorized hereunder and Symantec shall cooperate in
making all necessary assignments of copyrights and any other
Intellectual Property rights necessary to perfect Intel's full
ownership interest therein;
4.4.2.3 Symantec shall distribute the derivative Common
Technology Software Object Code solely with Symantec's anti-virus
products and shall not distribute the derivative Common
Technology Software Object Code in standalone form;
4.4.2.4 Symantec shall not sublicense or otherwise transfer the
derivative Common Technology Software Source Code to any third
party without Intel's express prior written permission, which
Intel may withhold at its sole discretion;
4.4.2.5 Symantec shall be solely responsible for the maintenance
and support of any derivative Common Technology Software Source
Code and Object Code created by Symantec as authorized hereunder
and shall provide Intel with copies thereof in both Source Code
and Object Code form upon their completion. Additionally,
Symantec shall periodically provide Intel with updates to such
derivative Common Technology Software Source and Object Code upon
their availability; and
4.4.2.6 Intel shall not be required to provide to Symantec, nor
shall Intel be required to obtain for Symantec, the Source Code
to any third party software which may be included in the Common
Technology Software. Notwithstanding the foregoing, Intel shall
notify
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Symantec of any third party software contained in the Common
Technology Software.
4.4.3 Upon any termination or expiration of this Agreement, Intel
shall be under no further obligation to provide Symantec with: (I) the
Common Technology Software Source Code as set forth in Section 4.4.2
above if not previously provided pursuant to the terms thereof, or
(ii) updates or support of any kind for the Object Code or Source Code
provided to Symantec prior to such termination or expiration under
this Section 4.0.
4.5 LIMITED OBJECT CODE LICENSE TO LDVP 6.0 TOOLS
4.5.1 Subject to the terms and conditions of this Agreement, Intel
grants to Symantec a time limited, non-exclusive, non transferable,
royalty free, internal use only Object Code license under Intel's
Intellectual Property rights to copy and use those Intel proprietary
LDVP 6.0 tools delivered pursuant to Section 2.1 for the sole and
exclusive purpose of building English and localized versions of the
LDVP 6.0 product provided that:
4.5.1.1 Symantec employs reasonable commercial efforts to move
LDVP 6.0 into its own build and localization environment as soon
as feasible;
4.5.1.2 Intel shall be under no obligation to provide support for
the tools provided other than high level instruction and/or
documentation regarding use of the tool(s);
4.5.1.3 This license shall expire and Symantec shall return or
destroy and render unrecoverable, at Intel's option, all copies
of the LDVP 6.0 tools provided hereunder by Intel upon the
earlier of (I) Symantec's completion of its integration of LDVP
6.0 into its own build and localization environment, or (ii)
January 1, 2000);
4.5.1.4 For purposes of this license only, any Intel proprietary
"Make" or similar type tool files necessary for the LDVP 6.0
build shall be considered part of the Object Code and may be
modified as necessary by Symantec; and
4.5.1.5 Symantec shall only make a reasonably sufficient number
of copies of the LDVP 6.0 tools provided by Intel hereunder to
accomplish the LDVP 6.0 build and facilitate migration to
Symantec's own software build and localization environment.
5.0 SYMANTEC LICENSES TO INTEL
5.1 AVC SOFTWARE LICENSE: Subject to the terms and conditions of this
Agreement, Symantec grants Intel a non-exclusive, worldwide, non
transferable (except for assignment pursuant to Section 18.8), license
under Symantec's Intellectual Property in the AVC Software (without the
right to sublicense except as set forth below in Section 5.2) to reproduce,
have reproduced, publicly display, distribute and use the AVC Software
solely in Object Code form to third parties, provided that:
5.1.1 This license shall not be effective during any period in which
Intel commercially ships an anti-virus software solution from a vendor
other than
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Symantec as part of its LANDesk(R) branded systems management software
products;
5.1.2 End users will be restricted from gaining new virus pattern file
updates after 90 days from registration unless they obtain an AV
Subscription from either Symantec or Intel; and
5.1.3 For virus pattern updates, this license shall only apply when
exercised in conjunction with Intel's Answer Express sm service
offering/products (or their logical successors) and is subject to
Intel's payment of the associated royalty amounts as set forth in
Section 11.2.1. Additionally, unless otherwise authorized by Symantec
in writing, Intel shall only sell AV Subscriptions in conjunction with
Intel's Answer Expresssm service offering/products (or their logical
successors).
5.2 AVC SOFTWARE DISTRIBUTION: Subject to the terms and conditions of this
Agreement, Intel may distribute the AVC Software in Object Code form solely
through license agreements binding on all parties in the distribution chain
and/or on the end user, which shall contain terms no less restrictive than
those normally used when Intel distributes its own software products. In
addition, Intel shall only distribute AVC Software when integrated with
Intel products or services which provide significant additional
functionality and not in stand-alone form.
5.3 AVC SOFTWARE TRANSLATION LICENSE: Subject to the terms and conditions
of this Agreement, Symantec grants Intel a non-exclusive, worldwide,
non-transferable (except for assignment pursuant to Section 18.8), license
under Symantec's Intellectual Property in the AVC Software to create or
have created derivative works of the AVC Software and distribute such
derivative works solely in Object Code form to third parties; provided
that: (i) such derivative works shall consist only of foreign language
translations of the AVC Software, which Intel needs in order to distribute
Licensed Intel Products, and only where such translations are not available
from Symantec; and (ii) Symantec will own all right, title and interest in
any derivatives created by Intel under this section; (iii) and provided
that Intel shall distribute such translation derivatives only when
integrated with the Intel products or services, which provide significant
additional functionality and not in stand-alone form (the "Translation
Derivatives").
5.4 AVC INTERNAL USE LICENSE: Subject to the terms and conditions of a
Symantec End User License, Symantec grants to Intel and its subsidiaries a
fully paid-up worldwide enterprise license to the AVC Software including
updates, when available, and Symantec's standard level (and not gold or
platinum level) of support that Symantec provides to its other customers.
The terms and conditions of the Symantec End User License Agreement shall
apply only if Intel chooses, in its sole discretion, to deploy the AVC
Software.
6.0 LICENSE RESTRICTIONS
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6.1 RESERVATION OF RIGHTS: All rights not expressly granted herein are
reserved to the owner, and no other licenses are granted herein by
implication, estoppel or otherwise. Furthermore, notwithstanding anything
herein to the contrary, Intel grants no licenses or other rights under any
of its intellectual property rights for technical information to any
microprocessor (including, without limitation, co-processors and embedded
controllers), associated core logic device (including, without limitation,
chip sets), flash memory, or semiconductor manufacturing technology.
Symantec grants no licenses or other rights for any Symantec product or
technology other than as expressly set forth herein.
6.2 NO REVERSE ENGINEERING: Neither Party shall reverse engineer,
decompile or disassemble any software, which is provided to it by the other
Party in Object Code form only, without the express permission of the other
Party.
6.3 INTEL NOTICES: Symantec agrees to reproduce Intel's and Intel's
vendors copyright notices on each copy of any product it manufactures or
reproduces that contains in whole or in part, the Common Technology
Software or the LDVP Software. Symantec agrees not to remove or obscure any
copyright notices of Intel or its vendors or other proprietary notices on
such software.
6.4 SYMANTEC NOTICES: Intel agrees to reproduce Symantec's and Symantec's
vendors copyright notices on each copy of any product it manufactures or
reproduces that contains in whole or in part, the AVC Software. Intel
agrees not to remove or obscure any copyright notices of Symantec or its
vendors or other proprietary notices on such software.
6.5 SHIPMENT OF NEW RELEASES AND MAINTENANCE UPDATES: Each Party will make
reasonable efforts to incorporate new Releases and Maintenance Updates
supplied by the other Party under the same terms and conditions as the
previous Release into its products, which incorporate software licensed by
the other Party as soon as is commercially reasonable. Moreover, the Party
delivering such new Release or Maintenance Update will not be obligated to
provide any support for the previous Release of the licensed software
twelve (12) months after delivery of the new Release or Maintenance Update.
7.0 OWNERSHIP
7.1 LDVP SOFTWARE AND COMMON TECHNOLOGY SOFTWARE: Symantec acknowledges
that, as between Symantec and Intel, Intel retains all rights, title and
interest to the LDVP Software as delivered to Symantec and the Common
Technology Software, including any derivatives of the Common Technology
Software created by Intel or Symatec.
7.2 LDVP DERIVATIVES CREATED BY SYMANTEC: Intel acknowledges that, as
between Intel and Symantec, Symantec shall own all right, title and
interest to all derivatives of the LDVP Software created by Symantec under
the terms of this Agreement after the Execution Date.
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7.3 AVC SOFTWARE: Intel acknowledges that, as between Intel and Symantec,
Symantec retains all rights, title and interest to the AVC Software.
7.4 AVC SOFTWARE TRANSLATION DERIVATIVES: Intel acknowledges that, as
between Intel and Symantec, Symantec shall own all right, title and
interest to all translation derivatives of the AVC Software created
pursuant to Section 5.3 above as well as all support obligations for such
Translation Derivatives.
8.0 LANDESK BRAND ATTRIBUTION
8.1 Symantec is granted no right, license, title or interest in or to any
Intel trademarks, including the Intel LANDesk trademark ("LANDesk Mark").
Symantec acknowledges and agrees that the LANDesk Mark may not be used as
or as part of the title or brand name for Licensed Symantec Products (e.g.,
"Norton LANDesk Antivirus"). However, Symantec may make a textual reference
to the Licensed Symantec Products as being "designed for" or "for" use with
"Intel LANDesk products" so long as such references (a) are truthful, fair,
and not misleading and (b) are subject to the prior approval of Intel.
8.2 Symantec agrees that it will make such textual references to the
LANDesk Mark in conjunction with marketing collateral and product packaging
for Licensed Symantec Products, to the extent the requirements of this
Section are (i) consistent with Symantec co-marketing and branding
guidelines and policies; (ii) not in conflict with any Symantec agreements
with third parties. Symantec represents and warrants that it will not make
the authorized textual reference to the LANDesk Mark on or in connection
with any items other than the Licensed Symantec Products.
8.3 Symantec acknowledges Intel's exclusive rights in and to the LANDesk
Mark, and all goodwill associated therewith, and further acknowledges that
all use by Symantec of the LANDesk Mark inures to the sole benefit of
Intel. If, at any time, Symantec acquires any rights in, or registrations
or applications for the LANDesk Mark by operation of law or otherwise,
Symantec will immediately and at no expense to Intel assign such rights,
registration(s) or application(s) to Intel, along with any associated
goodwill. At no time during or after the term of this Agreement shall
Symantec challenge or assist others to challenge the LANDesk Mark or the
registration thereof or attempt or assist another in the attempt to
register any trademarks, marks or similar rights for marks the same as or
confusingly similar to the LANDesk Mark.
8.4 Upon reasonable notice, Symantec agrees to allow Intel to inspect
materials, such as advertising, packaging, manuals, instruction materials,
splash screens, brochures, catalogs, point-of-purchase displays, etc.,
which refer to the LANDesk Mark, to ensure that such references of the
LANDesk Mark on Licensed Symantec Products and such materials complies with
the terms of this Agreement.
9.0 SYMANTEC AND NORTON BRAND ATTRIBUTION
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9.1 Intel is granted no right, license, title or interest in or to any
Symantec trademarks, including the Symantec and Norton AntiVirus trademarks
("Symantec Marks"). Intel acknowledges and agrees that the Symantec Marks
may not be used as or as part of the title or brand name for Licensed Intel
Products (e.g., "Norton LANDesk" or "Symantec LANDesk"). However, Intel may
make a textual reference to the Licensed Intel Products as "including" or
"with" Symantec or Norton AntiVirus so long as such references (a) are
truthful, fair, and not misleading and (b) are subject to the prior
approval of Intel. Notwithstanding the foregoing, this Agreement will not
prevent Intel from making fair use of the generic term "anti virus".
9.2 Intel agrees that it will make textual references to the Symantec
Marks in conjunction with marketing collateral and product packaging for
LANDesk branded Licensed Intel Products, to the extent the requirements of
this Section are (i) consistent with Intel co-marketing and branding
guidelines and policies; (ii) not in conflict with any Intel agreements
with third parties. Intel represents and warrants that it will not make
textual references to the Symantec Marks on or in connection with any items
other than the Licensed Intel Products.
9.3 Intel acknowledges Symantec's exclusive rights in and to the Symantec
Marks, and all goodwill associated therewith, and further acknowledges that
all use by Intel of the Symantec Marks inures to the sole benefit of
Symantec. If, at any time, Intel acquires any rights in, or registrations
or applications for the Symantec Marks by operation of law or otherwise,
Intel will immediately and at no expense to Symantec assign such rights,
registration(s) or application(s) to Symantec, along with any associated
goodwill. At no time during or after the term of this Agreement shall Intel
challenge or assist others to challenge the Symantec Marks or the
registration thereof or attempt or assist another in the attempt to
register any trademarks, marks or similar rights for marks the same as or
confusingly similar to the Symantec Marks.
9.4 Upon reasonable notice, Intel agrees to allow Symantec to inspect
materials, such as advertising, packaging, manuals, instruction materials,
splash screens, brochures, catalogs, point-of-purchase displays, etc.,
which refer to the Symantec Marks, to ensure that such references of the
Symantec Marks on Licensed Intel Products and such materials complies with
the terms of this Agreement.
10.0 SUPPORT
10.1 LDVP SOFTWARE SUPPORT: Intel will provide engineering support to
Symantec until 90 days after the completed LDVP Software version 6.0 has
been delivered as per section 2.1 to Symantec. In any event, support from
Intel will not extend beyond July 8, 1999.
10.2 COMMON TECHNOLOGY SOFTWARE SUPPORT: Both Parties will provide ongoing
support to each other for integration of Common Technology Software into
Licensed Symantec Products. This support will consist of providing API
definitions and updates, as well as engineer to engineer support as
required from time to time and as agreed to by the Parties. Both Parties
will make reasonable efforts to allow the other to meet their delivery
schedules. In addition, both Parties will make reasonable efforts to keep
their respective API's consistent over time. Upon request from Symantec,
Intel will make up to 120 hours
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of engineering assistance available on-site at Symantec's facilities for
consultation/integration support of the Common Technology Software
throughout the 1999 calendar year to be made reasonably available within
ten (10) days after requested.
10.3 AVC SOFTWARE SUPPORT: Both Parties will provide ongoing support to
each other for integration of the AVC Software into Licensed Intel
Products. This will consist of providing API definitions and updates, as
well as engineer to engineer support as required from time to time as
agreed to by the Parties. Both Parties will make reasonable efforts to
allow the other to meet their delivery schedules. In addition, both Parties
will make reasonable efforts to keep their respective API's consistent over
time. Upon request from Intel, Symantec will make up to 120 hours of
engineering assistance available on-site at Intel's facilities for
consultation/integration support of the AVC Software (including the
underlying AV scan engine) throughout the 1999 calendar year to be made
reasonably available within ten (10) days after requested.
10.4 END-USER SUPPORT:
10.4.1 Intel acknowledges that any end user support for version 5.X of
LANDesk Virus Protect and previous versions of the product will be
performed by Intel, including, without limitation, all such support
required pursuant to the SMAs or VPAs assigned or otherwise
transferred to Symantec hereunder and the support contracts for these
versions of the LDVP Software entered into by Symantec after the
Execution Date, provided however that Intel shall not be obligated to
provide support materially different than the support it currently
provides to its LANDesk Virus Protect customers. Moreover, in no event
shall this support obligation extend beyond June 30, 1999. After June
30, 1999, any remaining support obligations to end users of LANDesk
Virus Protect Software will be provided solely by Symantec.
10.4.2 Intel will provide first line support to end users with
questions regarding AVC Software, which has been shipped with Licensed
Intel Products. If Intel is unable to resolve the problem, it will be
escalated to Symantec who will work to resolve the problem through
Intel or directly with the end-user at Intel's discretion.
10.5 ONGOING SUPPORT: As between Intel and Symantec, engineer to engineer
support will be provided pursuant to Exhibit C.
10.6 SUPPORT PLAN: Symantec and Intel will establish a mutually agreed upon
support plan including contacts, escalation procedures between the
companies, training schedules, and customer hand-off guidelines and both
Parties will make reasonable efforts to execute on such plan.
10.7 VIRUS DISCOVERY AND RESPONSE PROCEDURES: Symantec shall provide virus
detection and resolution to Intel and Intel's customers which is the same
or better as the support it provides to its own customers generally.
Symantec acknowledges that Intel may, from time to time in its sole
discretion, request priority support for certain of its customers, and that
Symantec will provide such priority customers with the same level of
support it provides to its most favored enterprise level customers.
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10.8 NO CUSTOM DEVELOPMENT: Both Parties acknowledge that any special
development requirements beyond creation of standard API definitions may
require reasonable NRE, as subsequently agreed to by the Parties.
10.9 SUPPORT FOR COMPLETION OF LDVP VERSION 6.0 FROM SYMANTEC: Symantec
will fund (as set forth in provision 11.1.2 and 11.2.2) two dedicated
quality assurance heads on site at Intel in Utah beginning at the Execution
Date to support Intel efforts to complete LDVP version 6.0 per the delivery
requirements in Section 2.1. Symantec will also utilize this time to
facilitate the transition of and training related to the LDVP business.
Symantec will also provide one program manager to assist in coordinating
the above activities.
11.0 ROYALTIES & PAYMENTS
11.1 ROYALTIES AND PAYMENTS TO INTEL
11.1.2 CONSIDERATION FOR TRANSFER OF LDVP BUSINESS: In consideration
for the transition of Intel's LANDesk Virus Protect business and
associated good will to Symantec under this Agreement, Symantec shall,
within 10 days after the Execution Date, pay to Intel thirteen million
dollars ($13M) plus the cost of funding two (2) dedicated quality
assurance engineers (as discussed in Section 10.9) not to exceed one
hundred thousand dollars ($100,000) and less both (i) 80% of all LDVP
5.X Net Revenue from 7/8/98 to the Execution Date and (ii) 90% of all
LDVP 5.X related SMA Net Revenue from 7/8/98 to the Execution Date..
11.1.3 FRONT END ROYALTIES FOR LDVP SOFTWARE AND COMMON TECHNOLOGY
SOFTWARE: Symantec shall pay Intel a royalty of [*] dollars ($[*]) in
partial consideration of the license of the LDVP Software and the
Common Technology Software within 10 days after the Execution Date and
an additional one million dollar ($1M) royalty within 30 days of Intel
delivering the completed LDVP Software version 6.0 to Symantec per
section 2.1 or upon first commercial shipment of any Symantec product
which incorporates either the derivative LDVP Software or Common
Technology Software, whichever occurs first.
11.1.4 BACK END ROYALTIES FOR LDVP SOFTWARE AND COMMON TECHNOLOGY
SOFTWARE: Symantec shall pay Intel an additional royalty of [*]
dollars ($[*]) in partial consideration of the license of the LDVP
Software and the Common Technology Software, paid in quarterly
installments of $181,818.18/quarter beginning within 30 days after the
end of the quarter in which Intel delivers the completed LDVP Software
version 6.0 to Symantec per Section 2.1 hereof, and continuing for 11
consecutive calendar quarters payable within 30 days after the end of
each quarter.
11.1.5 ROYALTY CREDIT: Symantec hereby grants to Intel a two million
dollar ($2M) royalty credit, which may be applied without limitation,
at any time to this or any future small business-related contract
between the two Parties. Intel acknowledges that this credit may not
be applied to Section 11.2.2 nor to the Net Revenue in 11.1.2 received
by Intel for sale of LDVP 5.X from July 8, 1998 to the Execution Date,
nor to Section 11.1.7.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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11.1.6 SUPPORT PAYMENT: Symantec shall pay to Intel five hundred
thousand dollars ($500,000) within thirty (30) days after the
Execution Date, to cover Intel's ongoing support of LDVP Software
Version 5.X and earlier end users.0
11.1.7 REVENUE SHARING PAYMENTS TO INTEL: Symantec shall pay to Intel
[*] percent ([*]%) of Symantec's Net Revenue for the Revenue Share
Products (as defined below) up to fifteen million dollars ($15M)
received by Intel per revenue sharing period and ten percent (10%) of
Symantec's Net Revenue for the Revenue Share Products for the
remainder of that revenue sharing period. The initial revenue sharing
period shall run from the Execution Date through the first Symantec
fiscal quarter end that is at least one year after the Execution Date.
Each revenue sharing period thereafter shall run for one year
commencing on the first day of the Symantec fiscal quarter following
the end of the prior period. Termination of this Agreement will
automatically terminate the revenue sharing period. "Revenue Share
Products" shall mean Symantec's anti-virus products designed and
marketed specifically for the LANDesk platform ("designed for
LANDesk(R) products, including AV Subscriptions for LANDesk(R)
products"), upgrade insurance for such products, and any LDVP Software
(version 5.X), or LDVP Software (version 5.x) related SMA's thereon,
sold by Intel. The Net Revenue of Symantec for the Revenue Share
Products shall initially be measured by Net Revenue derived from
separate skus for NAV for LANDesk and associated upgrade insurance. If
Symantec at any point during the term of this Agreement ceases to
maintain such separate skus, Net Revenue for the applicable Revenue
Share Product shall be determined by other reasonable methods agreed
by the parties, including, without limitation, technology tracking or
registration. Symantec acknowledges that it will provide "designed for
LANDesk(R) products" versions of all Symantec anti-virus products
(including foreign language versions thereof) in all countries and all
direct and indirect channels where Symantec distributes its anti-virus
products. In the event that Intel sells both its LANDesk Management
Suite business and its LANDesk Client Manager business to [*] (or any
of their respective successors in interest or assigns), then Symantec
shall owe no further royalty to Intel under this provision effective
on the date of closing of such a sale. In the event Intel sells its
LANDesk Management Suite business, Symantec shall owe no further
royalty to Intel under this provision with respect to LANDesk
Management Suite-related product sales.
11.1.8 FUNDING FOR MARKETING ACTIVITIES: Symantec will accumulate
marketing dollars at a rate of 4% for all sales by either party of
Revenue Share Products, sale of LDVP 5.X and related SMA's from July
8, 1998 to the Execution Date and sale of AV Subscriptions by Intel as
referenced in 11.1.7 above. Intel may request reimbursement to be paid
quarterly for any marketing activities against accumulated dollars
based on a mutually agreed upon written marketing plan.
11.1.9 FUTURE COMMON TECHNOLOGY SOFTWARE ROYALTIES: In the event
Symantec chooses to extend the Common Technology Software license in
Section 4.2 and 4.3 beyond the term of this Agreement, Symantec will
pay to Intel a minimum royalty of $150,000 per year due at the
beginning of the period, and payable at a rate of 1% of Net Revenue of
such Licensed Symantec Products up to Net Revenue of $30,000,000 and
0.5% of the Net Revenue exceeding $30,000,000. Minimum payments and
revenue percentages shall be reset yearly.
11.2 ROYALTIES AND PAYMENTS TO SYMANTEC
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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11.2.1 AVC PATTERN FILE UPDATES: Intel shall pay to Symantec a royalty
of [*]% for all AV Subscriptions sold by Intel in conjunction with
Intel's Answer Express sm service offering/products (or their logical
successors). This may be broken into smaller units (i.e. $/month) or
included as part of a larger bundle of products and services. If any
product is distributed with other products or services in a package
for a single price, the Net Revenue attributable to such product will
be determined by prorating the receipts from the sale or license of
the package according to the suggested retail prices, or if no
suggested retail price is announced, the values established by Intel,
for the separate works contained in the package, whether or not such
products are distributed separately, provided that such values are
reasonably related to the values, marketing potentials or cost of the
separate products. In any event, if the MSRP exceeds $30, then $30
shall be used. If the MSRP is less than $10, $10 shall be used
(however, if the Symantec MSRP has not increased beyond $10 after 270
days from the Execution Date, then the actual MSRP shall be used).
11.2.2 LANDESK VIRUS PROTECT REVENUE: Intel will transfer to Symantec
100% of Net Revenue it receives after the Execution Date that is
attributable to sales of LDVP version 5.X, including any SMA
agreements thereon on a quarterly basis net of any difference in the
estimated cost of QA engineers (as referenced in provision 10.9 and
11.1.2) and actual expenditures. Symantec acknowledges that the Net
Revenue could be negative which would constitute a payment to Intel.
Upon request, Intel will provide Symantec with updates on outstanding
inventory valuations for LANDesk Virus Protect 5.X.
11.2.3 OTHER SYMANTEC PRODUCTS: Symantec acknowledges that in any
future agreements, Intel shall pay Symantec no more than the lowest
price available to Symantec's distributors for the highest volume.
11.3 TRANSITION TERMS FOR SCAN ENGINE/PATTERN FILES/SUPPORT: As of July 8,
1998, Intel shall owe Symantec no royalties for either the Symantec or IBM
anti-virus scan engine licensed to Intel pursuant to the IBM OEM
Distribution Agreement dated December 30, 1997, which was assigned to
Symantec on May 18, 1998, provided that the scan engines, virus pattern
file updates and support provided to Intel under that agreement may only be
used in Intel's LANDesk Virus Protect product and other Intel products and
services incorporating the LANDesk Virus Protect product until such time as
Intel is able to reasonably transition customers to the products containing
the AVC Software. Intel agrees to terminate the IBM OEM Distribution
Agreement dated December 30, 1997 as soon as it is able to successfully
transition its products and customers which are currently shipping with the
IBM AV scan engine as long as Symantec acknowledges it will provide the
support obligations stated therein as requested by Intel.
11.4 ROLL-OVER OF PREPAID ROYALTIES: Intel shall owe Symantec no royalties
for the AVC pattern files updates or AVC Software used in Intel products
other than LANDesk branded software products until such a time as $750K of
the advanced royalty payment of $1.75M made by Intel is fully applied
(including any application of such advance payment to royalties earned
prior to July 8, 1998) pursuant to the IBM OEM Distribution Agreement dated
December 30, 1997, which was assigned to Symantec on May 18, 1998. In no
event shall the advanced royalty payment be applied after December 31,
1999.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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12.0 MARKETING
12.1 MARKETING PLAN: The Parties will jointly define and execute a written
marketing plan to transition LANDesk(R) Virus Protect business to Symantec
and build and grow the revenue stream for Symantec sales of anti-virus
products and associated technologies into the LANDesk customer base,
including (i) PR; (ii) programs; (iii) joint customer visits; (iv)
advertising; and (v) analyst tours.
12.2 PR: Subject to approval by both Parties' PR departments, Intel and
Symantec will jointly develop a press announcement regarding the anti-virus
relationship established by this Agreement. Additionally, Intel will
support an announcement of Symantec's "digital immune system" once it is
available to Intel and its customers.
12.3 LDVP MARKETING INFORMATION: Intel will transfer to Symantec available
worldwide marketing information relevant to LANDesk Virus Protect products,
as permitted by law, specifically including customer and channel
information.
12.4 Intel will provide marketing activities as defined in the Exhibit B.
13.0 REPORTS & PAYMENTS
13.1 REPORTS: Within thirty (30) days following the end of each calendar
quarter, each Party shall submit a report to the other, in a form
reasonably acceptable to the other and signed by an authorized
representative of the Party, which will set forth the basis for calculating
all royalties and/or payments due to either Party during that quarter.
13.2 PAYMENT: Within such thirty (30) days, each Party shall, irrespective
of its own business and accounting methods, pay in United States Dollars to
the other Party any royalties and/or payments payable for such quarter as
shown in the statement. Royalties/payments due to Intel pursuant hereto
will be paid by check tendered or wire transfer at the following address:
Remittance Address Wire Transfer Account
Intel Corporation CITIBANK
Post Contract Management New York, New York
5200 N.E. Elam Young Parkway ABA #021000089
Hillsboro, OR 97124 General Account 38385954
Attn: Sheryl White
Royalties/payments due to Symantec pursuant hereto will be paid by check
tendered or wire transfer at the following address:
Remittance Address Wire Transfer Account
Symantec Corporation Bank of America, 1850 Gateway Blvd
c/o Bank of America, Dept. 5190 Concord, CA 94520
1455 Market St., 21st Floor ABA #(within US):121-000-358
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San Francisco, CA 94103 Acct. #12338-10287 (for U.S.)
SWIFT ADDRESS (outside of US): BOFA
US 6S
13.3 LATE PAYMENT: Each Party agrees that any payments required under the
terms of this Agreement which are not paid when due will accrue interest at
the prime lending rate established by Citibank, New York, commencing thirty
(30) days after the due date as established by this Agreement. The right to
collect interest on such late payments shall be in addition to any other
rights that either Party may have.
13.4 AUDIT RIGHTS: Each Party agrees to make and to maintain until the
expiration of three (3) years after the last payment under this Agreement
is due, sufficient books, records and accounts regarding such Party's
manufacturing and sales activities in order to calculate and confirm its
royalty obligations hereunder. Each Party shall have the right not more
than once every twelve (12) months to, directly or through an agent
reasonably acceptable to the other Party, examine such books, records and
accounts, upon reasonable notice and during the other Party's normal
business hours, to verify that Party's reports on the amount of payments
made under this Agreement. If any such examination discloses a shortfall or
overpayment in the fees due hereunder, the appropriate Party shall
reimburse the other Party for the full amount of such shortfall or
overpayment. Should the audit discover any errors or omissions by one Party
which have a value of more than five percent (5%) of the amounts due with
respect to the period being audited, that Party shall reimburse the other
Party for the costs of such audit.
14.0 TERM & TERMINATION
14.1 TERM: The term of this Agreement shall commence on the Execution Date,
and shall continue for a period of three (3) years, which term shall be
automatically renewed for additional one (1) year periods, unless
terminated by either Party in writing at least ninety (90) days before any
renewal date, or unless otherwise terminated under the terms of this
Agreement.
14.2 TERMINATION FOR CAUSE: This Agreement may be terminated by either
Party upon notice, if the other Party: (i) breaches any material term or
condition of this Agreement and fails to remedy the breach within sixty
(60) days after being given notice thereof: (ii) becomes the subject of any
voluntary or involuntary proceeding under the U.S. Bankruptcy code or state
insolvency proceeding and such proceeding is not terminated within sixty
(60) days of its commencement; or (iii) ceases to be actively engaged in
business.
14.3 EFFECT OF EXPIRATION/TERMINATION: In the event of termination or
expiration of this Agreement, all licenses and rights granted hereunder
(with the exception of the licenses granted in Sections 4.1, 4.2, 4.3, and
4.4 which shall survive provided that the licensing Party continues to pay
any applicable royalties) shall terminate. However, each Party may continue
to exercise the rights and licenses granted hereunder as necessary to
provide maintenance and technical support to existing sublicensees.
Moreover, each Party may continue to distribute any inventory of Licensed
Intel Products or Licensed Symantec Products existing at the date of
termination or expiration. The termination or expiration of this Agreement
will not terminate any use license granted to any end-user by either Party.
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15.0 INDEMNIFICATION AND LIMITATIONS
15.1 INDEMNIFICATION: Each Party will defend or settle any suit or
proceeding brought against the other Party arising out of any actual or
alleged:
a. claim that any software supplied by it to the other Party hereunder or
part thereof, alone and not in combination with any other product,
constitutes an infringement of any U.S. patent, copyright or
misappropriation of any third party trade secret, and pay all damages
finally awarded against the other Party;
b. breach by such Party of any agreement assigned hereunder during the
time such Party was a party to the agreement; or
c. breach by such Party of any representation or warranty made by such
Party under Section 16.0;
provided that: (i) the indemnifying Party is notified promptly in writing
of such claim; (ii) the indemnifying Party controls the defense or
settlement of the claim; and (iii) the other Party cooperates reasonably
and gives all necessary authority, information and assistance (at the
indemnifying Party's expense). The indemnifying Party will pay all damages
and costs finally awarded against the other Party, but the indemnifying
Party will not be responsible for any costs, expenses or compromise
incurred or made by the other Party without the indemnifying Party's prior
written consent.
15.2 LIMITED REMEDIES: If the use of any software supplied under this
agreement is permanently enjoined, or either Party determines in its
reasonable discretion that it may be enjoined, that Party may, at its sole
discretion and at its own expense: (i) procure for the other Party the
right to continue using said software; (ii) replace the same with
non-infringing software; (iii) modify it so that it becomes non-infringing;
or (iv) if such Party is unable to reasonably do any of the above and if
the other Party is enjoined from distributing the software, refund any
royalties paid for the infringing software which has not yet been
distributed.
15.3 LIMITATIONS: Notwithstanding the foregoing, the Party supplying
software under this agreement will not be liable for any costs or damages,
and the Party receiving software under this Agreement will indemnify,
defend and hold the supplying Party harmless from any expenses, damages,
costs or losses resulting from any suit or proceeding based upon a claim
arising from (i) the combination of software supplied under this Agreement
with any other product, where such claim would not have arisen from the use
of such software standing alone, except where there is no substantial
non-infringing use of such software other than as part of that combination,
(ii) any modification of software supplied under this Agreement, after
delivery of the software to the receiving Party, where such infringement
would not have occurred but for such modifications, (iii) compliance with
the receiving Party's designs, specifications or instructions; (iv) breach
of any warranty made by the receiving Party to any third party.
15.4 DISCLAIMER: THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS
OF BOTH PARTIES AND THE EXCLUSIVE REMEDY OF EACH WITH RESPECT TO ANY
ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS OR
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OTHER INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE LICENSED UNDER THIS
AGREEMENT.
16.0 REPRESENTATION & WARRANTIES
16.1 INTEL LIMITED REPRESENTATIONS & WARRANTIES: Intel represents and
warrants that:
a. it has full corporate authority to enter into and fulfill its
obligations under this Agreement;
b. it has not previously and will not grant any rights to any third party
that are inconsistent with the rights granted to Symantec under this
Agreement;
c. neither Intel's execution nor performance of this Agreement will
result in a breach of any agreement or obligation by which Intel is
bound; and
d. Intel has provided to Symantec true and complete copies of all current
VPAs and other agreements to be provided to Symantec hereunder
e. Intel has provided to Symantec true and complete list of third party
content in LDVP Software as set forth in Exhibit A .
f. During the Agreement term, unless otherwise authorized in the
Agreement or by subsequent written agreement of the Parties, Intel (i)
will not use the Antivirus Specific Software in the stand alone
antivirus business, (ii) will not use the Antivirus Specific Software
to facilitate any thrid party to get involved with the antivirus
business, and (iii) will not use the Antivirus Specific Software to
facilitate any third party improving their antivirus business.
16.2 SYMANTEC LIMITED REPRESENTATIONS & WARRANTIES: Symantec represents and
warrants that:
a. it has full corporate authority to enter into and fulfill its
obligations under this Agreement;
b. it has not previously and will not grant any rights to any third party
that are inconsistent with the rights granted to Intel under this
Agreement; and
c. neither Symantec's execution nor performance of this Agreement will
result in a breach of any agreement or obligation by which Symantec is
bound;
16.3 DISCLAIMER: THIS SECTION 16 CONTAINS THE ONLY WARRANTIES MADE BY INTEL
AND SYMANTEC. ANY AND ALL OTHER WARRANTIES ARE EXPRESSLY EXCLUDED AND
DECLINED. EXCEPT AS EXPLICITLY SET FORTH IN SECTION 16, EACH PARTY
DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS, INCLUDING
IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND/OR
FITNESS FOR A PARTICULAR PURPOSE.
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17.0 LIMITATION OF LIABILITY: IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY
TO THE OTHER PARTY, END USERS OR ANY OTHER THIRD PARTY, FOR ANY LOST PROFITS OR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT OR
THE DESIGNS, PRODUCTS, INFORMATION OR OTHER TECHNOLOGY PROVIDED PURSUANT TO THIS
AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, PROVIDED HOWEVER
THAT THIS LIMITATION SHALL NOT APPLY TO ANY MATERIAL BREACH BY EITHER PARTY OF
THE LICENSES GRANTED UNDER SECTIONS 4 AND 5 OF THIS AGREEMENT. MOREOVER, IN NO
EVENT WILL EITHER PARTY'S TOTAL LIABILITY FOR: (i) ANY INDEMNIFICATION CLAIMS
FOR PATENT INFRINGEMENT ARISING UNDER SECTION 15.1.a OF THIS AGREEMENT EXCEED
TEN (10) MILLION DOLLARS; OR (ii) ANY OTHER CLAIMS RELATED TO THIS AGREEMENT,
WITH THE EXCEPTION OF INDEMNIFICATION CLAIMS FOR COPYRIGHT INFRINGEMENT OR TRADE
SECRET MISAPPROPRIATION ARISING UNDER SECTION 15.1.a OF THIS AGREEMENT OR BREACH
OF THE SOURCE CODE CONFIDENTIALITY PROVISION AS SET FORTH IN SECTION 18.2.1,
EXCEED FIVE (5) MILLION DOLLARS. THE PROVISIONS OF THIS SECTION WILL APPLY
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES
HEREUNDER.
18.0 ADDITIONAL TERMS
18.1 DISCLOSURES OF CONFIDENTIAL INFORMATION: The terms, and conditions of
this Agreement are confidential and neither Party may make any disclosures
regarding this Agreement without the express prior written consent of the
other, with the following exceptions:
a. subject to (b) below, as otherwise may be required by law or legal
process, including, without limitation, any requirements of the
securities laws or regulations that either Party disclose the
existence and terms of this Agreement, and to legal and financial
advisors in their capacity of advising a Party in such matters; or
b. during the course of litigation so long as the disclosure of such
terms and conditions are restricted in the same manner as is the
confidential information of other litigating parties and so long as
(i) the restrictions are embodied in a court-entered Protective Order
and (ii) the disclosing Party informs the other Party in writing in
advance of the disclosure; or
c. in confidence to its legal counsel, accountants, banks and financing
sources and their advisors.
18.2 CONFIDENTIALITY AGREEMENT: Disclosures of confidential and proprietary
information by either Party to the other Party hereunder shall be governed
by the Intel Corporate Non-disclosure Agreement ("CNDA") number 07284,
executed by the Parties which Agreement is hereby incorporated and made
part of this Agreement.
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<PAGE> 22
18.2.1 SOURCE CODE CONFIDENTIALITY: Notwithstanding the
confidentiality provisions set forth in Sections 18.1 and 18.2 above
and with regard to any software provided or otherwise disclosed in
Source Code form by a Party of this Agreement (the "Disclosing Party")
to the other Party (the "Receiving Party"), the Receiving Party
acknowledges that such Source Code is represented to be the trade
secret and confidential information of the Disclosing Party or its
licensors and agrees to exercise the same degree of care in preventing
the disclosure of such Source Code as the Receiving Party uses to
protect its own Source Code and/or similar types of proprietary trade
secrets. At a minimum, the Receiving Party agrees to limit the
disclosure of the Source Code to its own employees which have a need
to access the Source Code to perform their job and to not disclose the
Source Code to any third party individual, corporation, independent
contractor, consultant or other entity without the prior written
consent of the Disclosing Party. This obligation shall not applly to
any Source Code which is:
a. published or otherwise available to the public other than by
breach of this Agreement by the Receiving Party; or
b. rightfully received by the Receiving Party from a third party
without obligations of confidentiality; or
c. independently developed by the Receiving Party by employees
having no access to the Source Code; or
d. known to the Receiving Party prior to its first receipt of the
same from the Disclosing Party; or
e. hereinafter intentionally disclosed by the Disclosing Party to a
third party without restriction on disclosure.
18.3 CONFLICTS: In the event of a conflict between this Agreement and any
other document related to the subject matter of this Agreement, or the body
of this Agreement and any of the Exhibits to this Agreement, the terms of
this Agreement, or the body of this Agreement as the case may be, shall
govern.
18.4 FORCE MAJEURE: Neither Party will be liable for any failure to perform
due to unforeseen circumstances or causes beyond its reasonable control,
including, but not limited to, acts of God, war, riot, embargoes, acts of
civil or military authorities, delay in delivery by vendors, fire, flood,
accident, strikes, inability to secure transportation, facilities, fuel,
energy, labor, or materials. In the event of force majeure, time for
delivery or other performance will be extended for a period equal to the
duration of the delay caused thereby.
18.5 EXPORT: Neither Party shall export, either directly or indirectly, any
software or products incorporating such software, in whole or in part,
without first obtaining any required license or other approval from the U.
S. Department of Commerce or any other agency or department of the United
States Government or applicable foreign governments. In the event the
Licensed Intel Products, Licensed Symantec Products are exported from the
United States or re-exported from a foreign destination by the other Party,
its
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<PAGE> 23
distributors or end users, such Party shall ensure that the distribution
and export/re-export is in compliance with all laws, regulations, orders,
or other restrictions of the U.S. Export Administration Regulations and any
applicable foreign laws or regulations. Each Party agrees that neither it
nor any of its Subsidiaries will export/re-export any technical data,
process, or service, directly or indirectly, to any country for which the
United States government or any agency thereof requires an export license,
other governmental approval, or letter of assurance, without first
obtaining such license, approval or letter.
18.6 NOTICES: Any notice required or permitted to be given under this
Agreement shall be effective if it is in writing and sent by certified or
registered mail, return receipt requested, to the appropriate Party hereto
at the address set forth below and appropriate postage affixed. Either
Party may change its address for receipt of notice by notice to the other
Party in accordance with this Section.
Notices shall be deemed given on the date of mailing and the date of notice
shall be the date of mailing.
If to Symantec:
Symantec Corporation
10201 Torre Avenue
Cupertino, CA 95014
Attn: General Counsel
If to Intel:
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052
Attn: General Counsel
With a copy to:
Intel Corporation
2111 NE 25th Ave
Hillsboro, OR 97124
Mailstop JF3-147
Attn: General Counsel
18.7 SURVIVAL: 4.1, 4.2, 4.3 (subject to the terms of 11.1.9) and 4.4, 6,
7, 8, 13, 14, 15, 16, 17, 18.
18.8 ASSIGNMENT: This Agreement may not be assigned or otherwise
transferred, nor, except as expressly provided herein, may any right or
obligation hereunder be assigned or transferred, to a third party by either
Party without the prior written consent of the other Party hereto.
Notwithstanding the foregoing or anything contained herein to the contrary,
either Party may transfer or assign its licenses, rights and obligations
under this Agreement, or any part thereof to (i) a directly or indirectly
controlled Subsidiary or to a parent company who has sufficient resources
and rights to fulfill the terms of this Agreement, or (ii) a successor to
all or substantially all of the business or assets relating to
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<PAGE> 24
this Agreement who has sufficient resources and rights to fulfill the terms
of this Agreement whether by sale, merger, operation of law or otherwise.
Provided, however, that Symantec may elect to block a transfer or
assignment to [*], or their respective successors in interest and assigns.
Except as provided above, the terms and conditions of this Agreement shall
bind and inure to each Party's successors and assigns.
18.9 SPIN-OFF OF BUSINESS OPERATION OR DIVISION: In the event that Intel
spins-off or otherwise divests all or part of a business operation or
division which sells or distributes Licensed Intel Products (e.g., the
Internet Services Operation or Systems Management Division) into a new
independent business entity, Symantec agrees to license the AVC Software to
the successor entity under substantially the same terms and conditions as
which they are licensed to Intel herein, provided that such successor
entity has sufficient resources to fulfill the applicable terms of this
Agreement, and provided that any such successor entity is not an antivirus
competitor.
18.10 RELATIONSHIP BETWEEN THE PARTIES: In all matters relating to this
Agreement, Symantec and Intel shall act as independent contractors. Neither
Party will represent that it has any authority to assume or create any
obligation, expressed or implied, on behalf of the other Party, or to
represent the other Party as agent, employee, or in any other capacity.
Neither Party shall have any obligation, expressed or implied, except as
expressly set forth herein.
18.11 INTERPRETATION: This Agreement, including any exhibits, addenda,
schedules, and amendments, has been negotiated at arm's length and between
persons sophisticated and knowledgeable in the matters dealt with in this
Agreement. Each Party has been represented by experienced and knowledgeable
legal counsel. Accordingly, any rule of law (including California Civil
Code Section 1654) or legal decision that would require interpretation of
any ambiguities in this Agreement against the Party that has drafted it is
not applicable and is waived.
18.12 ENTIRE AGREEMENT: This Agreement sets forth the entire Agreement
between the Parties and supersedes prior and contemporaneous proposals,
agreements, and representations between them, whether written or oral,
relating to the subject matter contained herein. This Agreement may be
changed only if agreed to in writing and signed by an authorized signatory
of each Party.
18.13 SEVERABILITY: All rights and remedies, whether conferred hereunder or
by any other instrument or law, will be cumulative and may be exercised
singularly or concurrently. The failure of any Party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of
such Party thereafter to enforce such provisions. The terms and conditions
stated herein are declared to be severable. If any provision or provisions
of this Agreement shall be held to be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
18.14 COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 25
18.15 INJUNCTIVE RELIEF: The Parties agree that preliminary injunctive or
other equitable relief will be a necessary and proper remedy in the event
of a breach of this Agreement in violation of either Party's intellectual
property rights. The Parties further agree that in the event such equitable
relief is granted in the United States, they will not object to courts in
other jurisdictions granting provisional remedies enforcing such U.S.
judgments.
18.16 DISPUTE RESOLUTION: The parties agree to negotiate in good faith to
resolve any dispute between them regarding this Agreement. If the
negotiations do not resolve the dispute to the reasonable satisfaction of
both parties, then each Party will nominate one senior officer of the rank
of Vice President or higher as its representative. These representatives
will, within thirty (30) days of a written request by either Party to call
such a meeting, meet in person and alone (except for one assistant for each
Party) and will attempt in good faith to resolve the dispute. If the
disputes cannot be resolved by such senior managers in such meeting, the
parties agree that they will, if requested in writing by either Party, meet
within thirty (30) days after such written notification for one day with an
impartial mediator and consider dispute resolution alternatives other than
litigation. If an alternative method of dispute resolution is not agreed
upon within thirty (30) days after the one day mediation, either Party may
begin litigation proceedings. This procedure will be a required
prerequisite before taking any additional action hereunder. Notwithstanding
the foregoing, either Party may seek immediate injunctive or other interim
relief from court of competent jurisdiction.
18.17 GOVERNING LAW: Any claims arising under or relating to this Agreement
shall be governed by the internal substantive laws of the State of Delaware
or federal courts located in Delaware, without regard to principles of
conflict of laws. Each Party hereby agrees to jurisdiction and venue in the
courts of the State of Delaware for all disputes and litigation arising
under or relating to this Agreement. This provision is meant to comply with
6 Del. C. Section 2708(a).
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<PAGE> 26
AGREED:
INTEL CORPORATION SYMANTEC CORPORATION
By: By:
---------------------------------- ------------------------------
Edward D. Ekstrom
- ------------------------------------- ---------------------------------
Printed Name Printed Name
Title: Vice President, New Business Group Title:
- --------------------------------------------
General Manager, Systems Management Division
- --------------------------------------------
Date: September 27th, 1998 Date: September 27th, 1998
------------------------------------- ----------------------------
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<PAGE> 27
EXHIBIT A
Description of Software
LDVP SOFTWARE:
LANDesk Virus Protect ("LDVP") Software as incorporated into the alpha version
of LDVP version 6.0, the production version of LDVP version 5.0, and the future
production version of LDVP version 6.0 as defined by Intel (less mail extensions
and foreign language translations) and includes all code with the exception of
any 3rd party content and the Common Technology Software defined below provides
integrated, centrally-managed virus protection for both desktops and servers.
NetWare 3.12-5.0 and NTS 3.51 & 4.0 are supported, as well as NTW 3.51 & 4.0,
Windows 95, Windows 3.1x, and DOS desktops. A system administrator can define
one to many anti-virus domains with any number of servers (any listed NOS) and
connected clients (any listed OS) in each. Configuration can be done at the
domain, server & clients, server only, and client only levels. The administrator
can "lock" any desktop configurations desired. The locked configuration cannot
be modified at the desktop, while the unlocked configurations may be modified by
the user. Real-time and manual scanning is provided. Manual scans include
start-up scans, any number of scheduled scans, scan now, screen-saver scan, and
virus sweep. If the administrator suspects a virus outbreak, they can initiate
an immediate virus sweep of all machines in a domain via one click.
Server protection includes an Integrity Shield which alerts if specified files
are requested for access/modify/rename/delete. A set of automatic actions can be
configured to trigger when a macro or non-macro virus is found. The auto-actions
include clean/delete/move/rename/leave alone. LDVP software allows the same
actions after-the-fact (user can set both primary and secondary action to "leave
alone", then review the infected files and specify the action). LDVP Software
provides the following reports: Virus History, Scan History, and Event Log.
These are kept as text logs so require no database. Desktop logs are
automatically rolled up their server. The administrator console can view the
integrated logs.
The architecture separates the Network Policy Management from the actual scan
technology. The LDVP Software makes all configuration decisions, then sends one
file with one action request to the scan engine via an API. All anti-virus
domain and configuration information is kept in the local registry of each
machine. The primary server for each domain additionally maintains the domain
information in the registry. The LDVP 6.0 product scans email attachments for
viruses. cc:Mail is scanned on the desktop. MS Exchange and Lotus Notes provide
both server and desktop scanning. The console is also componentized to allow
snap-in/out of email server & client scanning.
The LDVP Software includes, without limitation, all software code comprising
LDVP Software Versions 5.0 and 6.0 except for the Common Technology Software and
the Third Party Software.
COMMON TECHNOLOGY SOFTWARE:
Common Base Agent Ping Discovery Service defines protocols used to discover and
communicate with remote applications on the network. Ping Discovery Service is
used by
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<PAGE> 28
LANDesk Virus Protect (LDVP) to discover all connected servers that have LDVP
installed. Ping Discovery Service, or simply discovery, is a client/server
process, where the client and server nodes can be of any type, not just file
servers and application servers. LDVP uses it to discover servers with LDVP
installed.
Common Base Agent Network Transport System is a protocol-independent transport
system. NTS allows an application to send datagrams using an underlying protocol
of choice such as IP, IPX, NetBIOS, etc. NTS is implemented as a static library
that provides a common set of APIs for Netware, Windows NT, and Windows 95. NTS
relieves the application from the details of the NetWare IPX interface and the
Windows Winsock interface, without adding significant overhead. LDVP uses this
library of functions to provide platform and protocol independence. It allows
LDVP to use Netware and NT on both IPX and IP with one source code base that
does not care about protocols.
Alert Management System (AMS) enhances alerting. When AMS is installed, multiple
types of alerts can be configured for multiple locations. Machines with LDVP
installed create text log files to record virus incidents. Client log files are
rolled up to the parent server. Alerts on servers may be directed to AMS for
alerting. AMS can be installed on the primary server for every Anti Virus
domain. AMS provides its own install and configuration console. It allows for
origination, handling, and delivery of multiple types of alerts to multiple
recipients. An alert can be a simple text string or a complex data packet with
multiple state variables and thresholds. An alert is different from an alert
type. When the network is not functioning, alert delivery may go through extra
steps such as re-logging and transmitting via an out-of-band media.
[*]
AVC SOFTWARE means the Norton Anti-Virus Client software which contains
functionality equivalent to that which is offered as part of Symantec's standard
anti-virus client
* Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 29
product, including all available translations, any subsequent Releases, APIs
(including any associated documentation related to the APIs) to allow the AVC
software to be used at a component level (e.g. scan engine only or different
graphical user interface), virus pattern file updates, scan engine for DOS,
OS/2, Windows 3.X, Windows NT, Windows 9X, Netware, any updates thereof, access
to the digital immune system, technology to update and manage end user virus
pattern files (specifically including "Live Update" technology), and Maintenance
Updates plus all generally available language translations of the foregoing.
EXHIBIT B
MARKETING STATEMENT OF WORK
Intel will provide assistance, as mutually determined appropriate, to
successfully migrate Intel's LDVP Software customers to Symantec. This
assistance will include efforts substantially consistent with the following:
DIRECT SALES SUPPORT:
o Support for joint Intel and Symantec sales visits (for up to 20 key
customers within North America as mutually identified by both Symantec and
Intel) within 180 days of Execution Date.
o 1 week visit in Japan for as many sales visits during that week.
o 1 week visit in Europe for as many sales visits during that week.
o Support for joint Intel and Symantec phone contacts (for to up to 100 key
customers as mutually identified by Symantec and Intel) within 270 days of
Execution Date.
o Symantec shall be solely responsible for setting up the visits and phone
contacts for Direct Sales Support activities following coordination with
Intel to achieve mutually acceptable time(s) for conducting such.
PRESS RELEASES:
o Coordinated Press Release and Analyst messages
INDIRECT CUSTOMER CONTACTS:
o Web site links and coordinated messages
o Support for Intel e-mail messages to registered accounts
o Support for joint mail piece to selected customers
o "Dear Customer" letter to known customers introducing Symantec and the
relationship.
o Reasonable commerical efforts to include information in the newsletter to
LANDesk VARs.
CHANNEL PARTNER DEMAND CREATION:
o Active marketing of relationship and product benefits to PC OEM's who are
purchasing or considering the purchase of LANDesk branded products
containing AVC Software (i.e. LDCM)
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<PAGE> 30
o Active marketing of relationship and product benefits to ISV's who are
purchasing or considering the purchase of LANDesk branded products
containing AVC Software (i.e. LDMS)
o Include promotional material for NAV for LANDesk with LANDesk's "solution
kit" or equivalent mailings
o Direct Mail Announcement to VARs which includes the NAV evaluation CD.
EXHIBIT C
Support Process
If either Party becomes aware of any Level 1 or Level 2 errors (as defined
in the table below) in the software licensed to the other Party under this
Agreement or if either Party informs its customers generally of any errors in
such software, then the licensor party will promptly notify the licensee Party
in writing and will promptly provide the licensee party at the same time that it
provides customers generally with any related corrections in object code form
(and source code form where applicable) with an explanation of what defects it
corrects. If either Party reports in writing to the other Party any reproducible
error in the software licensed to the other Party under this Agreement, then the
licensor Party will use commercially reasonable efforts to respond to such
report in accordance with the following table:
<TABLE>
<CAPTION>
- -------- ----------------------------------------------------------------------
SEVERITY DESCRIPTION
- -------- ----------------------------------------------------------------------
<S> <C>
Level 1 The defect causes the system to halt or causes persistent
data to be corrupted. The system cannot continue.
RESPONSE: The responding Party will make reasonable efforts to respond
to reporting Party within one business day with an acknowledgment
of the error and will make diligent efforts to respond with a fix
or workaround within 5 working days. If no solution has been
found within this time, the responding Party will develop an
action plan and present it to the reporting Party within 10
working days of the initial notification of the error, or, if no
commercially reasonable solution is possible, the responding
Party shall report such to the reporting Party, together with its
rationale for making such a determination
- -------- ----------------------------------------------------------------------
Level 2 The defect prevents major portions of the program from functioning
correctly or causes a major component of the system not to
function with other components of the system. These defects cause
the program not to be able to continue but do not cause the
system to crash.
RESPONSE: The responding Party will make diligent effort to provide a
response within 10 working days and a solution within 20 working
days. If no solution has been found within this time, the
responding Party will develop an action plan and present it to
the Licensee within 20 working days of the initial notification
of the error or, if no commercially reasonable solution is
possible, the responding Party shall report such to the reporting
Party, together with its rationale for making such a
determination
- -------- ----------------------------------------------------------------------
</TABLE>
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<PAGE> 31
<TABLE>
<CAPTION>
- -------- ----------------------------------------------------------------------
SEVERITY DESCRIPTION
- -------- ----------------------------------------------------------------------
<S> <C>
Level 3 The defect prevents small portions of the program from functioning
correctly. The program could produce incorrect results, but the
errors would not corrupt persistent data.
RESPONSE: Responding party will use diligent efforts to provide a
solution either as a correction or in a subsequent release of the
product or, if no commercially reasonable solution is possible,
the responding Party shall report such to the reporting Party,
together with its rationale for making such a determination.
- -------- ----------------------------------------------------------------------
Level 4 The defect is cosmetic or involves usability issues, which means that
the screen or other output may not be drawn correctly, but the
program is still running and producing correct results. For
usability issues, the user can accomplish the defined
functionality, but it is awkward to do so. This could also
include some internal functionality which has been omitted in the
interface. The program can continue normally.
RESPONSE: The responding Party will use diligent efforts to provide a
solution either as a correction or in a subsequent release of the
product or, if no commercially reasonable solution is possible,
the responding Party shall report such to the reporting Party,
together with its rationale for making such a determination or,
if no commercially reasonable solution is possible, the
responding Party shall report such to the reporting Party,
together with its rationale for making such a determination.
- -------- ----------------------------------------------------------------------
</TABLE>
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<PAGE> 32
EXHIBIT D
Sample SMA and VPA Agreements
Sample SMA
Europe: @ HTTP://WWW.INTEL.COM/EUROPE/SERVICES/ORDFORM.HTM
North America: @ HTTP://SUPPORT.INTEL.COM/SERVICES/AMERICAS/TERMS.HTM
Sample VPA:
Intel Software Volume Purchase Agreement Request
Internal Use License - Document version 2.0
Instructions:
1. Print this document.
2. Complete Licensee (Company) and address information.
3. You will receive an acknowledgment letter with a copy of the license
referencing the Agreement Number assigned by Intel. The Intel contact name for
licensee to send any notices or requests to, will also be identified in the
acknowledgment letter.
4. Complete contact name and address for Intel to ship all software notices to.
5. An authorized signature is required by Licensee named on the license.
6. List all software and the number of licensed copies in the sections provided.
7. Mail or FAX License to:
Intel Corporation
Attn: VPA Administrator
5200 NE Elam Young Parkway
Hillsboro, OR 97124
Fax No: 503-264-6304
A copy of the LANDesk(R) Management Suite and LANDesk(R) Virus Protect product
Software License Agreements will be attached to the completed Agreement for your
convenience.
Internal Use License
LICENSEE:
----------------------------------------------------------
AGREEMENT NUMBER:
--------------------------------------------------
ADDRESS:
-----------------------------------------------------------
CONTACT NAME and PHONE NUMBER:
-------------------------------------
EFFECTIVE DATE:
----------------------------------------------------
The furnished programs ("Software") identified on this License are furnished
subject to the terms and conditions of the applicable Intel Software License
Agreement packaged or otherwise provided with the Software [End User License].
Supplemental License Grant Effective on the date specified above, Intel grants
the Licensee the right to reproduce the Software for use on the number of
computers or workstations
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<PAGE> 33
specified on this license agreement ("Licensed Copies"). Licensee agrees that
the maximum number of copies shall not exceed the number of Licensed Copies.
Licensee will maintain a log of the copies made and to whom they were
distributed.
Distribution to or use by any third party is expressly prohibited.
Additional Licenses
If Licensee desires to increase the number of Licensed Copies, Licensee must
sign another license prior to making any additional copies of the Software.
Notice
All notices and requests required under this Agreement shall be in writing,
shall reference this Agreement and shall be deemed given upon delivery if
personally delivered or upon receipt if sent by registered or certified mail,
return receipt requested, to the addresses listed below, which addresses may be
modified upon subsequent written notice.
Notices to Intel shall be sent to:
Intel Corporation
PO Box 14070
Portland, OR 97214
Attention: Contracts Manager
Notices to Licensees shall be sent to:
- --------------------------------------
- --------------------------------------
- --------------------------------------
Attn:
---------------------------------
General
This Agreement and the Intel Software License Agreement [End User License]under
which the Software was originally licensed contains the entire agreement between
the parties with respect to the Software including any warranties and
liabilities of Intel.
Agreed and accepted:
Licensee By:
--------------------------
Printed Name:
-------------------------
Title:
--------------------------------
Date:
---------------------------------
Software
The following Software shall be covered under this Agreement:
SOFTWARE NUMBER OF LICENSED COPIES
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
- ------------------------------- ----------------------------
(End of "Intel Software Volume Purchase Agreement Request".)
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<PAGE> 34
EXHIBIT E
Customer Databases
Intel shall provide the following:
1) Support and Maintenance Agreement (SMA) database with customer information
containing:
North America: approximately 400 contacts including information on:
contact, company name, address, phone, product, quantity, and expiration
date. Data is approximately 95% complete.
Europe: approximately 70 European contacts including information on:
contact, company name, address, phone, product, quantity, and expiration
date. Data is approximately 95% complete.
APAC: approximately 25 contacts including information on: contact, company
name, address, phone, product, quantity, and expiration date. Data is
approximately 85% complete.
2) Request for lower pricing to meet competition with customer information
containing:
North America: approximately 400 contacts including information on:
reseller, reseller contact, company name, city, phone, product, quantity,
and authorized price. Data is approximately 90% complete.
3) Request for support database:
North America: approximately 2000 contacts including information on:
contact, company name, phone, fax and product. Data is approximately 80%
complete.
4) Copies of current volume purchase agreements
North America: approximately 19 agreements including information on:
reseller, contact, company name, city, phone, product. Data is
approximately 95% complete.
5) Registration database with customer information containing:
World wide: Approximately 18,500 contacts including information on: company
name, city, phone, contact, product, and registration date. Data is
approximately 85% complete.
6) Request for literature database with customer information containing:
Approximately 10,000 contacts including information on: company name, city,
phone, contact, product, and inquiry date. Data is approximately 80%
complete.
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<PAGE> 35
EXHIBIT F
LDVP Software Product Release Metrics
Intel will, at a minimum, apply the following metrics to the production release
of the final version of LDVP Software version 6.0 to Symantec.
"Priority 1" Defects will be fixed and verified. Priority 1, or
showstopper, defects prevent further execution of the program and have no
recovery method.
"Priority 2" defects will be fixed and verified. Priority 2 defects give
grossly wrong results or degrade performance substantially.
Defect Density must be <= 10. Defect Density is calculated to be the # of
defects/10,000 lines of source code. Comments are not counted as source
code.
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<PAGE> 1
EXHIBIT 99.1
FOR IMMEDIATE RELEASE
<TABLE>
<S> <C>
CONTACT:
William Giles Richard Saunders
Intel Corporation Symantec Corporation
(503) 264-7550 (408) 446-7550
[email protected] [email protected]
Barbara Grimes Genevieve Haldeman
Intel Corporation Symantec Corporation
(503) 264-5563 (310) 449-4309
[email protected] [email protected]
Shelley Wilson
Director of Investor Relations
Symantec Corporation
(408) 446-8891
[email protected]
</TABLE>
SYMANTEC BUYS INTEL'S ANTI-VIRUS BUSINESS
Symantec licenses Intel Systems Management technology to integrate into Norton
AntiVirus Product Line; Intel to integrate Norton AntiVirus into Intel LANDesk
Management Suite -
CUPERTINO, Calif. - Sept. 28, 1998 - Symantec Corporation (Nasdaq: SYMC)
announced today that it has bought Intel Corporation's anti-virus business.
Symantec has also licensed Intel systems management technology which it will
combine with its own antivirus technology to crate best-of-breed anti-virus
solutions for corporate organizations.
Norton AntiVirus engine technology will be integrated into a new anti-virus
product that Intel has had under development for most of this year. The product
will be fully integrated with Intel LANDesk Management Suite and will be
launched as a Norton AntiVirus product later this year to provide an obvious and
smooth upgrade path for current LANDesk Virus Protect customers.
As part of the agreement, Symantec will support Intel's 18,000 registered
anti-virus customers and Intel will recommend Norton AntiVirus to its corporate
customers worldwide as the anti-virus solution of choice. Intel will also market
the Norton AntiVirus product line through its extensive reseller channel
worldwide.
"For nearly seven years LANDesk Virus Protect has been the leader in providing
the robust systems management capabilities that businesses need in their
anti-virus solution," said Ed Ekstrom, vice president, Intel New Business Group
and general manager, Systems Management Division. "By licensing these
technologies to Symantec, we can focus entirely on our core
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competency - systems management leadership - while continuing to provide our
customers with a world-class anti-virus solution. This alliance means Symantec
will be the only anti-virus vendor to incorporate LANDesk management
technologies into their utilities product line and to offer true integration
with LANDesk products."
"Our relationship with Intel is a key component of our overall strategy to meet
the needs of corporate customers and follows on the heels of other significant
alliances including IBM, Entrust Technologies and PLATINUM technology," said
Gordon Eubanks, Symantec's president and CEO. "Integrating Intel LANDesk
management technologies provides Norton AntiVirus customers with the best
management solutions available and gives them the confidence they have the most
manageable and flexible solution to fit within their existing network management
architecture."
Symantec will use the Intel systems management technology it has licensed to
help build the Digital Immune System that Symantec is developing with IBM. The
Digital Immune System combines Symantec's award-winning products with neural
network technology from IBM to provide corporate customers with an automated,
trouble free environment to keep systems up and running. The Intel technology
will enable network administrators to implement and manage the Digital Immune
System across the enterprise.
Availability and Support
The relationship with Intel is ongoing. Starting immediately, Norton AntiVirus
engine technology will be integrated into a new anti-virus product that Intel
has had under development for most of this year. The product will fully
integrate with Intel LANDesk Management Suite and will be launched as a Norton
AntiVirus product later this year to provide an obvious and smooth upgrade path
for current LANDesk Virus Protect customers.
The client portion of this product will be bundled with future versions of
LANDesk Management Suite. Symantec will have a license to LANDesk Virus Protect
software including all the common elements that make this product integral to
LANDesk Management Suite. Versions will be fully compatible with the existing
version of Norton AntiVirus and LANDesk Management Suite and will include
complete management functionality such as distribution, configuration, lockdown,
remote operations from one console, and event management and logging.
Customers migrating to this new version of Norton AntiVirus will receive support
directly from Symantec. During this transition period, Intel will continue to
honor all existing support and maintenance agreements for the current versions
of LANDesk Virus Protect and will continue to provide anti-virus pattern files.
Until the new version is available, Intel and Symantec will continue to sell
LANDesk Virus Protect 5.0.
For additional information regarding support for current products, customers can
contact Intel at www.intel.com. For information regarding the transition
program, customers can contact Symantec at 1-800-745-6054.
About LANDesk Management Suite
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Intel LANDesk Management Suite, the flagship product in the LANDesk family,
provides integrated remote problem resolution, hardware and software inventory,
server monitoring, software distribution, virus protection and other leading
desktop system management functions. It also takes advantage of the Intel-led
and industry-supported Wired for Management Initiative.
About Norton AntiVirus
Symantec's multi-tier virus protection strategy is the basis for products that
protect the enterprise at the desktop, groupware, server, Internet and gateway
levels. The Norton AntiVirus product line uses innovative Bloodhound heuristic
technology to detect and remove both known and unknown viruses. Norton AntiVirus
also includes LiveUpdate, which automatically updates users with the latest
engine updates and virus definitions over the Internet.
About Intel
Intel, the world's largest chip maker, is also a leading manufacturer of
computer, networking and communications products. Additional information about
Intel is available at http://www.intel.com/pressroom.
About Symantec
Symantec is the world leader in utility software for business and personal
computing. Symantec products and solutions help make users productive and keep
their computers safe and reliable anywhere and anytime. Symantec offers a broad
range of solutions and is acclaimed as a leader in both customer satisfaction
and product brand recognition. Symantec is traded on Nasdaq under the symbol
SYMC. More information on the company and its products can be obtained at
www.symantec.com.
# # #
Symantec Forward Looking Statement
This press release contains forward-looking statements. There are certain
important factors that could cause Symantec's future development efforts to
differ materially from those anticipated by some of the statements made above.
Among these are the anticipation of the growth of certain market segments, the
positioning of Symantec's products in those segments, the competitive
environment in the software industry, dependence on other products, changes to
operating systems and product strategy by vendors of operating systems, and the
importance of new Symantec products. Additional information concerning those and
other factors is contained in the "Risk Factors" section of the company's annual
report on Form 10-K for the fiscal year ended April 3, 1998 and the quarterly
report on Form 10-Q for the fiscal quarter ended July 3, 1998.
NOTE TO EDITORS: Members of the press are invited to take part in a conference
call to discuss this announcement. The call starts at 10:30 PST and the dial in
number is 1-800-754-1053. If you would like additional information on Symantec
Corporation and its products, please
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view the Symantec Press Center at http://www.symantec.com/PressCenter/ on
Symantec's Web site.
Intel and LANDesk Management Suite are registered trademarks of Intel
Corporation.
Digital Immune System is a trademark of Symantec Corporation.
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