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EXHIBIT 10.46
MASTER AGREEMENT
AGREEMENT NO. 4998FL0009
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AND
SYMANTEC CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Certain information is this Master Agreement has been omitted and filed
separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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This is a Master Agreement (hereinafter "Agreement") between International
Business Machines Corporation (hereinafter "IBM") with an address for purposes
of this Agreement at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Symantec
Corporation and Symantec Limited (hereinafter, collectively, "Symantec") with an
address for purposes of this Agreement at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ dated May 18, 1998 ("Effective Date").
WHEREAS, IBM is the owner of or has rights to certain Code, including Code
generally referred to as IBM AntiVirus;
WHEREAS, IBM has entered into various contracts with Customers and QEMs related
to IBM AntiVirus; and
WHEREAS, Symantec desires to obtain the assignment of such various contracts and
obtain a license to such IBM AntiVirus and other Code to provide support
pursuant to the various contracts with Customers and OEMs;
NOW, THEREFORE, IBM AND SYMANTEC AGREE AS FOLLOWS:
1 DEFINITIONS
.1 CODE shall mean computer programming code, including both Object Code
and Source Code.
a. OBJECT CODE shall mean Code substantially in binary form, and
includes header files of the type necessary for use or
interoperation with other computer programs. It is directly
executable by a computer after processing or linking, but without
compilation or assembly. Object Code is all Code other than Source
Code.
b. SOURCE CODE shall mean Code in a form which when printed out or
displayed is readable and understandable by a programmer of
ordinary skills. It includes related source code level system
documentation, comments and procedural code.
Source Code does not include Object Code.
1.2 COLLABORATION AGREEMENT shall mean the Collaboration Agreement between
the parties dated the same day as this Agreement, as amended from time
to time.
1.3 CORPUS shall mean a collection of uninfected programs that is used to
help ensure a low rate of false positives in an antivirus product, for
example, by testing a virus definition on the Corpus to determine that
it does not identify a virus, or proactively by using the
characteristics of the Corpus to select a virus definition that is
projected to have a low rate of false positives.
1.4 CUSTOMER shall mean a party that has licensed or acquired IBM AntiVirus
from IBM or an IBM OEM for internal use and not for distribution.
1.5 CUSTOMER AGREEMENTS shall mean the forms of contracts and licenses that
are used by IBM to license IBM AntiVirus to Customers, including without
limitation Subscriptions, together
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with all attachments and other documents that form a part of such
contracts and licenses, in each case which relate to IBM AntiVirus, and
which arc attached to this Agreement in Part A of Attachment 2.
1.6 DERIVATIVE WORK shall mean a work that is based on an underlying work
and that would be a copyright infringement if prepared without the
authorization of the copyright owners of the underlying work. Derivative
Works are subject to the ownership rights and licenses of a party or of
others in the underlying work.
1.7 DEVELOPMENT DOCUMENTATION shall mean manuals and other materials such as
logic manuals, flow charts and principles of operation that are useful
for development and support purposes.
1.8 END USER DOCUMENTATION shall mean user manuals and other materials which
are generally provided with the IBM AntiVirus to Customers.
1.9 HARMFUL CODE shall mean viruses, worms, or other code that are
intentionally designed to damage, interfere with or otherwise adversely
affect computers, programs or files without the consent or intent of the
computer user.
1.10 IBM ANTIVIRUS shall mean the Code IBM has made generally available to
Customers that detects and removes computer viruses as described more
fully in Attachment 1.
1.11 IBM ANTIVIRUS ADMINISTRATION PROGRAM shall mean the latest version of
the Code that gathers known and suspected computer viruses from personal
computers and workstations, and distributes code to detect and remove
computer viruses from such personal computers and workstations.
1.12 IBM ANTIVIRUS ANALYSIS PROGRAM shall mean the latest version of the Code
that replicates and analyzes computer viruses and prepares code that
detects and removes computer viruses, other than the Corpus and virus
collections.
1.13 IBM ANTIVIRUS IMMUNE SYSTEM shall mean the latest version of the IBM
AntiVirus Communication Subsystem Program, IBM AntiVirus Administration
Program and the IBM AntiVirus Analysis Program.
1.14 IBM ANTIVIRUS COMMUNICATION SUBSYSTEM PROGRAM shall mean the latest
version of the Code that performs transmission of suspected viruses and
code that removes and detects viruses between the IBM AntiVirus
Administration Program and the IBM AntiVirus Analysis Program.
1.15 IMMUNE AGENT shall mean portions of a Symantec Anti Virus Immune System
that are designed to execute solely on a client or server that resides
on the end user's premises.
1.16 IMMUNE ENABLED ANTI VIRUS PRODUCTS shall mean any product containing the
▇▇▇▇ referenced in Section 8.4 or products whose principle function is
to detect and remove computer viruses and malicious code and that are
capable of accessing any Symantec Anti
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Virus Immune System and which implementation exists as of the date of
sale or license of a unit such product.
1.17 MAINTENANCE SUPPORT is the service provided when a customer identifies
an Error. There are three levels of support:
a. LEVEL 1 is the service provided in response to the customer's
initial contact identifying an Error.
b. LEVEL 2 is the service provided to reproduce and attempt to correct
the Error, or to find that the service provider cannot reproduce
the Error,
C. LEVEL 3 is the service provided to isolate the Error at the
component level of the Products, The service provider distributes
the Error correction or circumvention, or gives notice if no
correction or circumvention is found.
1.18 IMMUNE SERVICES shall mean services provided by Symantec that utilize
the Symantec AntiVirus Immune System for the purpose of detection and
removal of computer viruses and malicious code.
1.19 NET RECEIPTS shall mean Symantec's gross receipts (exclusive of taxes
(other than taxes on Symantec's income), product handling and processing
charges, insurance and transportation costs) from all sales, licenses,
shipments and distributions of Immune Enabled AntiVirus Products; NAV
Netware, NAV for OS/2, NAV for Notes for OS/2, NAV for Notes for System
390 and NAV for Notes for AS/400 following the later dates specified in
the table in Section 4.4 applicable to such products in the event that
Symantec elects not to complete immune system enablement for such
products pursuant to Section 4.4; and provision of Immune Services less
any credits, rebates or refunds for the sale, licensing, shipment or
distribution of the foregoing products and services . Net receipts will
not include any receipts from the foregoing products distributed to end
users as defect replacement copies of the foregoing products for which
Symantec receives any payment under $10.00, and no amount will be
credited or paid to IBM with respect to any receipts under $10.00 from
copies of the foregoing products supplied for promotional purposes to
the press, trade, sales representatives or potential customers for the
foregoing products.
1.20 OEM shall mean a business entity that is a third party licensed by IBM
to distribute IBM AntiVirus to Customers in conjunction with their
products.
1.21 OEM AGREEMENTS SHALL MEAN THE CONTRACTS and licenses pursuant to which
IBM has licensed IBM AntiVirus to OEMs together with all attachments and
other documents that form a part of such contracts and licenses, in each
case which relate to IBM AntiVirus, and which are attached to this
Agreement in Part A of Attachment 2.
1.22 SUBSIDIARY shall mean an entity during the time that more than 50% of
its voting stock is owned or controlled, directly or indirectly, by
another entity. If there is no voting stock, a Subsidiary is an entity
during the time that more than 50% of its decision-making power is
controlled, directly or indirectly, by another entity.
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1.23 SUBSCRIPTION shall mean materials provided to Customers that permit
Customers to submit orders for updates to the IBM AntiVirus. Copies of
Subscriptions are set forth in Part A of Attachment 2.
1.24 SYMANTEC ANTI VIRUS IMMUNE SYSTEM shall mean any implementation of all
or part of the IBM AntiVirus Immune System done by or for Symantec that
implements an analysis subsystem, communications subsystem and
administration subsystem.
1.25 TOOLS shall mean devices, test cases, programming documentation, media
or other items required for the development, maintenance or support of
IBM AntiVirus, other than the Corpus and virus collections.
1.26 YEAR 2000 READY shall mean that a product or deliverable when used in
accordance with its associated documentation is capable of correctly
processing, providing and/or receiving date data within and between the
twentieth and twenty-first centuries, provided that all products (for
example, hardware software and firmware) used with the product or
deliverable properly exchange accurate date data with it.
2 ASSIGNMENT
2.1 IBM hereby assigns to Symantec and Symantec hereby accepts the
assignment of (a) the contracts and licenses with Customers identified
in Part B of Attachment 2 to the extent that the contracts and licenses
relate to IBM AntiVirus and (b) the OEM Agreements to the extent that
the OEM Agreements relate to IBM AntiVirus. [*] Any attachments,
schedules or exhibits which are not a part of Attachment 2, but which
relate to contracts or licenses contained in Attachment 2, shall not be
considered part of the contracts or licenses assumed by Symantec.
2.2 Symantec further agrees to assume contracts and licenses with OEMs
identified by IBM after the execution of this Agreement as long as IBM
provides the information required by Section 3.4 and the contracts and
licenses are identical to the OEM Agreements (including all attachments
and other documents that form a part of such contracts and licenses, to
the extent that they relate to the IBM AntiVirus) [*]. [*]
*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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2.3 Symantec further agrees to assume contracts and licenses with Customers
identified by IBM after the execution of this Agreement as long as IBM
provides the information required by Section 3.4 and the contracts and
licenses are identical to the Customer Agreements (including all
attachments and other documents that form a part of such contracts and
licenses, to the extent that they relate to the IBM AntiVirus) [*]. [*]
2.4 [*]
2.5 Symantec agrees to make a good faith effort to transition all the
Customers listed on Part B of Attachment 2 to Norton Anti Virus ("NAV")
which effort will be comprised of no less than the following steps:
TRANSITION ACTIONS
[*]
Symantec will produce a program to help replace IBM AntiVirus with NAV
(IBM will provide technical specifications, consulting advice and access
to unique porting platforms, as requested by Symantec. Symantec will
grant a royalty free license to IBM to use such
*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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program.)
[*]
3 RESPONSIBILITIES OF IBM
3.1 IBM will deliver to Symantec one copy of the IBM AntiVirus and IBM
AntiVirus Immune System, in Object Code and Source Code form within
thirty (30) days after execution of this Agreement.
3.2 IBM will deliver to Symantec one copy of the Tools in Object code form
upon execution of this Agreement within thirty (30) days after execution
of this Agreement.
3.3 IBM will deliver to Symantec one copy of the Development Documentation
and End User Documentation within thirty (30) days after execution of
this Agreement.
3.4 IBM will use reasonable efforts to attach as part of Attachment 2 as of
execution of this Agreement, (a) a list of all Customers and OEMs to
whom IBM has licensed IBM AntiVirus including the type of contract or
license entered into with each Customer and OEM, the location of the
Customer or OEM, a contact address and name for each Customer and OEM,
and the expiration date or commencement date of the contract or license,
(b) copies of each type of contract and license used by IBM to license
IBM AntiVirus to Customers, (together with all attachments and other
documents that form a part of such contracts and licenses), in each case
which relate to IBM AntiVirus and (c) copies of each contract and
license under which IBM has licensed IBM AntiVirus to OEMs, together
with all attachments and other documents that form a part of such
contracts and licenses, in each case which relate to IBM AntiVirus.
In the event Symantec requests a copy of a contract or license with a
Customer, IBM agrees to use reasonable efforts to deliver to Symantec
such copy.
To the extent that such contract and licenses require access to
personnel, facilities or information that is unique to IBM that cannot
be provided by Symantec to the satisfaction of a Customer, then IBM will
provide such access to the extent required to satisfy the obligations
under such contracts. Additionally, if any of the Customer Agreements or
OEM Agreements require on site support, then IBM will continue to
provide such support to the extent required to satisfy the obligation
under such contracts.
3.5 IBM agrees to promptly provide to Symantec all Subscriptions received by
IBM from Customers following the execution of this Agreement.
*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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3.6 Within ninety (90) days following each calendar quarter IBM agrees to
remit to Symantec all revenue for Subscriptions received by IBM after
[*]. IBM will provide Symantec a report with such remittance that
identifies the revenue by region, and by country, if available.
3.7 [*]
3.8 IBM will provide assistance to Symantec to port or develop Symantec
products that support the platforms specified in Section 4.3 in
accordance with the terms of the IBM Solution Developer Program
Agreement, a copy of which is attached as Attachment 3. IBM will provide
to Symantec, at no charge, OS/390, AIX, OS/400, OS/2 and Lotus Notes on
all the foregoing platforms, in all available languages and all
necessary equipment to Symantec for such porting or development.
Notwithstanding the provisions of the Solution Developer Program
Agreement, Symantec may make a reasonable number of copies of the
foregoing software for development use at multiple locations. If
Symantec chooses to subcontract the development of the OS/390 product
set forth in Section 4.3, Symantec will inform IBM and IBM, at its
discretion, may license a copy of the OS/390 Software to the
subcontractor. Symantec will disclose to IBM any and all locations where
the software is installed. The Solution Developer Program Agreement
shall remain in effect as long as Symantec has development obligations
under this Agreement. Any such equipment shall be provided in accordance
with an Equipment and Program Loan Agreement, a copy of which is
attached as Attachment 4.
3.9 IBM will use reasonable efforts to deliver to Symantec, quarterly, in
Source Code form one copy of all Derivative Works of the IBM AntiVirus
Immune System prepared by IBM Research Division, during such quarter,
outside the scope of the Collaboration Agreement which relate to the
provision of the IBM AntiVirus Immune System.
3.10 IBM will, to the extent required by the contracts and licenses assumed
by Symantec, provide Symantec Level 3 Maintenance Support and virus
definitions for the IBM Anti-Virus until December 31, 1998. IBM does not
warrant that all defects will be corrected or that virus definitions
will be created for all computer viruses. Thereafter through the end of
the year 2000, IBM and Symantec will each offer to provide such Level 3
Maintenance Support and virus definitions on the basis set forth below.
[*]
*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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3.11 If IBM is responsible for the Level 3 Maintenance Support and virus
definitions as stated in Section 3.10 above, Symantec will prior to
requesting such Level 3 Maintenance Support from IBM provide ▇▇▇▇▇ ▇ ▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ Support to Customers and will get from each Customer
and provide to IBM: their name, daytime phone number, email address,
company name, regular mail address; the name and version number of the
operating system, the name and version number of IBM AntiVirus
installed, the name of the virus if known, the exact wording of any
messages displayed, the symptoms of the problem and what the Customer
was doing when the problem first occurred, whether the Customer tried to
solve the problem and if so, how, and whether the problem is repeatable
and if so, how it can be repeated.
4 RESPONSIBILITIES OF SYMANTEC
4.1 Subject to Section 2.1 above, Symantec agrees to comply with and fulfill
the terms and conditions of the contracts and licenses assigned to
Symantec including providing any required enhancements, updates or
support to the Customers and OEMs.
4.2 Symantec will collect and may retain all unpaid charges under the
assigned contracts and licenses. IBM is not liable for any failure by a
Customer or OEM to make payment under any assigned contract or license.
Symantec is not entitled to receive any portion of any payment
previously received by IBM from a Customer, distributor, dealer or OEM,
except as set forth in section 3.6 and [*].
4.3 Symantec will port or develop Symantec antivirus products that support
the following platforms and will make such antivirus products generally
available within the following periods:
Platform Date
-------- ----
Lotus Notes for OS/2("NAV for Notes [*]
for OS/2")
Lotus Notes for OS/390("NAV for Notes [*]
for OS/390")
Lotus Notes for AIX("NAV for Notes [*]
for AIX")
Lotus Notes for OS/400("NAV [*]
for Notes for OS/400")
Native OS/2("NAV for OS/2") [*]
Symantec agrees to provide updates to its antivirus products within a
reasonable period of time, not to exceed six (6) months, following the
general availability from IBM of a new
*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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version of any of the foregoing platforms to support such version.
Symantec agrees that the Symantec antivirus products ported or developed
to support the IBM platforms specified above also will support the
following languages:
[*] [*]
[*] [*]
Symantec will make other languages (e.g., [*]) available upon mutual
agreement of the parties or if the development investment on the part of
Symantec would result in at least a [*] revenue to expense ratio for
each language. If the development investment on the part of Symantec
would not result in at least a [*] revenue to expense ratio for a
language, then Symantec will provide the revenue to expense analysis to
the applicable IBM business unit Vice President and Symantec 's
applicable business unit Vice President will contact the IBM business
unit Vice President and review the investment decision including
detailed information concerning revenue and expenses on the language
support. Symantec acknowledges that if it does not make available
antivirus products that support the IBM platforms, provide updates for
any new version on a timely basis, or support the specified languages,
IBM will suffer irreparable harm and will be entitled to all equitable
remedies, including specific performance, for the support of such
platforms, versions.
4.4 Symantec will use reasonable efforts to implement and use the Symantec
Anti Virus Immune System to provide antivirus products and services to
end users by the earliest date set forth below. The following Symantec
products will be enabled to access the Symantec AntiVirus Immune System
and will initially be made available to Customers between the following
periods:
Product Time Period
------- -----------
NAV for NT 5.0 desktop & server [*]
NAV for Windows 98 desktop [*]
NAV Administration [*]
NAV Exchange (on NT 5.0) [*]
NAV Notes (on NT 5.0) [*]
NAV Notes on Solaris [*]
NAV for Notes for AIX [*]
NAV Netware [*]
*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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NAV for OS/2 [*]
NAV for Notes for OS/2 [*]
NAV for Notes for System 390 [*]
NAV for Notes for AS/400 [*]
Symantec will make reasonable efforts to complete the products listed
above on or before the time periods applicable to each product. However,
IBM agrees that if completion of a product can not be accomplished by
the end of its specified time period then Symantec may take up to an
additional [*] to complete the product.
The foregoing dates are based on Symantec's assumptions regarding the
current state of the IBM AntiVirus Immune System. If the assumptions are
materially inaccurate, the parties agree to negotiate in good faith, new
dates.
Symantec agrees that any subsequent version, release or follow-on
product to the products specified above will be enabled to access the
Symantec AntiVirus Immune System upon their general availability
Symantec may, after discussion with IBM, elect not to complete the
immune system enablement for NAV Netware, NAV for OS/2, NAV for Notes
for OS/2, NAV for Notes for System 390 and NAV for Notes for AS/400 if
the development investment on the part of Symantec would not result in
at least a [*] revenue to expense ratio for each such product. If the
development investment on the part of Symantec would not result in at
least a [*] revenue to expense ratio for a port, then Symantec will
provide the revenue to expense analysis to the applicable IBM business
unit Vice President and Symantec's applicable business unit Vice
President will contact the IBM business unit Vice President and review
the investment decision including detailed information concerning
revenue and expenses on the completion of the Symantec Anti Virus Immune
System support for the product. Such discussion shall occur no less than
six (6) months prior to the first date indicated above.
4.5 Symantec will deliver to IBM on a timely basis in Source Code form one
copy of all Derivative Works of the IBM AntiVirus and IBM AntiVirus
Administration Program prepared by or for Symantec.
4.6 If IBM asks Symantec to develop a product which is enabled to access the
Symantec Anti Virus Immune System for a platform marketed by IBM or a
platform to be marketed by IBM which is at least at the alpha stage of
development and which are not specified in Section 4.4 and IBM provides
to Symantec a detailed functional specification for such product, then
Symantec will within [*] after receipt of such specification tell IBM
whether Symantec will commit to create such product within [*]. If
Symantec declines to create such product, then the marketing or
distribution of such a product by IBM whether or not immune enabled,
will not be deemed to be a breach of IBM's obligations under Section
8.0.
4.7 In the event Symantec decides to outsource the operation of the Symantec
Anti Virus Immune System to another party, before contacting any third
party Symantec will provide
*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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IBM a written request to perform such operation. IBM shall have sixty
(60) days to respond with an offer to accept or reject Symantec's
request. Failure to respond in such sixty (60) day period shall
constitute rejection.
5 PAYMENT
5.1 PAYMENTS TO IBM
In consideration for the intellectual property, in-process research and
development provided by IBM, and other rights granted hereunder,
Symantec will pay to IBM:
5.1.1 Technology Payments. Symantec will make the following technology
payments to IBM on or before the specified dates:
[*] [*]
[*] [*]
5.1.2 Royalties while [*]. In addition to the technology payments set
forth in Section 5.1.1, while [*], Symantec will pay royalties to
IBM on all Net Receipts during such period in excess of [*]. The
royalty rate on the Net Receipts in excess of [*] shall be:
Time Period Royalty Rate
----------- ------------
[*] [*]
In addition to the technology payments set forth in Section
5.1.1, while [*] Symantec will pay royalties on all Net Receipts
during such period in excess of [*] at royalty rate of [*].
Notwithstanding the foregoing, the royalties shall not exceed the
maximums for each time period set forth below:
Time Period Maximum Royalty
----------- ---------------
[*] [*]
*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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[*] [*]
5.1.3 Royalties following [*]. In the event of and following [*] the
royalty rate shall be [*]. In addition to the technology payments
set forth in Section 5.1.1, Symantec will pay IBM royalties on
all Net Receipts after [*], in excess of the Net Receipts listed
below if [*] during the specified time period:
Time Period When Net Receipts
[*] Threshold
------------------ ---------
[*] [*]
Notwithstanding the foregoing, in the event [*], the royalties
shall not exceed the maximums for the time period during which
[*] and any subsequent time periods as set forth below:
Time Period Maximum Royalty
----------- ---------------
[*] [*]
5.1.4 Royalties following [*]. Following the [*], the royalty rate
shall be [*]. In addition to the technology payments set forth in
Section 5.1.1, Symantec will pay IBM royalties on all Net
Receipts after [*], in excess of the Net Receipts listed below if
[*] during the specified time period:
Time Period When Net Receipts
[*] Threshold
----------------- ---------
[*] [*]
Following [*], royalties shall be paid on all Net Receipts.
*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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Notwithstanding the foregoing, in the event [*], the royalties
shall not exceed the maximums for the time period during which
[*] and any subsequent time periods as set forth below:
Time Period Maximum Royalty
----------- ---------------
[*] [*]
5.1.5 Royalties following [*]. In the event of and following [*], the
royalty rate shall be [*]. In addition to the technology payments
set forth in Section 5.1.1, Symantec will pay IBM royalties on
all Net Receipts after the date of [*].
5.1.6 In no event shall the provisions of Sections 5.1.2, 5.1.3, 5.1.4,
and 5.1.5 operate concurrently.
5.1.7 Obligations to pay royalties or make payment pursuant to Sections
5.1.2, 5.1.3, 5.1.4, 5.1.5, and 5.5 do not cease upon expiration
of this Agreement.
5.1.8 The royalties to be paid by Symantec on Net Receipts pursuant to
Sections 5.1.2 5.1.3, 5.1.4, 5.1.5 or 8.6 shall not exceed the
maximums for each time period set forth below:
Time Period Maximum Royalty
----------- ---------------
[*] [*]
Symantec shall not pay any royalties on Net Receipts after [*].
*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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5.1.9 PAYMENT OF ROYALTIES
For each royalty payment period set forth above, Symantec will pay to
IBM all accrued and unpaid royalties within forty-five (45) days after
the end of each of its fiscal quarters. Amounts received by Symantec in
foreign currencies will be deemed converted into United States dollars
at the average exchange rates used by Symantec in its financial
statements for the month of receipt. With each royalty payment Symantec
will deliver to IBM a report which will provide all reasonably necessary
information for the computation of the payments, if any, due or credited
to IBM for such payment period.
All payments made by Symantec under this Agreement shall be sent to IBM
at one of the following addressee:
By mail:
IBM, Director of Licensing
The Bank of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
[*]
[*]
5.2 SOFTWARE BUNDLES
If Immune Enabled Anti-Virus Products are sold or licensed or Immune
Services are provided with other separately marketed software products
or services in a package for a single price, the Net Receipts
attributable to the Immune Enabled Anti-Virus Products or Immune
Services component of such package will be determined by prorating the
Net Receipts from the sale or license of the package according to the
published list, suggested retail or estimated retail price (as
applicable) of the Immune Enabled Anti-Virus Products or Immune Services
component of the package relative to the other separate software
products contained in the package.
5.3 In addition to the technology payments and royalties in Section 5.1,
Symantec agrees to pay to IBM a royalty of [*] of the license fees
received by Symantec (copies provided to the IBM Personal Systems Group
are royalty free) for copies of the IBM AntiVirus distributed pursuant
to section 7.1. Such royalties will be paid to IBM quarterly within
forty five (45) days following the end of each fiscal calendar quarter.
5.4 Symantec will maintain records, in accordance with generally accepted
accounting principles, of all transaction which are subject to royalties
for a period of three years from the date the royalty accrues. If IBM
deems it necessary, IBM or an accounting organization retained by IBM
shall have access to such records, upon reasonable notice, for the
purpose of audit during normal business hours, for so long as such
records are required to be maintained by Symantec.
5.5 Symantec will develop for [*]
*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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[*]
6 SYMANTEC LICENSE GRANT TO IBM
6.1 In the event that IBM terminates this Agreement for breach pursuant to
Section 12.2, a purchase or series of purchases occurs that causes a
single entity to own thirty (30%) percent or more of the outstanding
voting stock of Symantec, or Symantec sells or transfers to a third
party substantially all of the assets, including intellectual property
rights, contracts and licenses, that are used by Symantec to provide
and/or support antivirus products and services, Symantec will promptly
provide to IBM one up to date copy of the Symantec antivirus products
for Lotus Notes for OS/2, Lotus Notes for OS/390, Lotus Notes for AIX,
Lotus Notes for OS/400 and Native OS/2 ("Platforms") identified in
section 4.3 in Source Code form and grants to IBM a paid-up, worldwide,
nonexclusive, nontransferable right and license, under copyrights, to
execute, reproduce, display, perform, prepare Derivative Works based
upon, and distribute internally or externally the Symantec antivirus
products in Source Code or Object Code form and authorize others to do
any or all of the foregoing; provided that the foregoing shall only
apply to versions of such anti virus products that support the Platforms
or follow-on or successor Platforms thereto.
6.2 Symantec grants to IBM a paid-up, worldwide, nonexclusive,
nontransferable right and license, under copyrights, to execute,
reproduce, display, perform, prepare Derivative Works based upon, and
distribute internally or externally any Derivative Work of the IBM
AntiVirus Immune System prepared by or for Symantec that are not Immune
Agents in Source Code or Object Code form and authorize others to do any
or all of the foregoing.
7 IBM LICENSE GRANTS TO SYMANTEC
7.1 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
and prepare Derivative Works based upon the IBM AntiVirus and distribute
copies of IBM AntiVirus and Derivative Works thereof internally in
Source Code and Object Code and externally in Object Code to existing
Customers of IBM AntiVirus and to licensees of the OS/2 operating
system, and authorize others to do any or all of the foregoing. The
license to distribute to licensees of the OS/2 operating system shall
terminate two (2) years after Symantec makes an OS/2 version of its anti
virus products generally available.
7.2 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
and prepare Derivative Works based upon the IBM AntiVirus and distribute
copies of IBM AntiVirus and Derivative Works thereof internally and
externally in Source Code and Object Code form to existing OEMs of IBM
AntiVirus and authorize such OEMs to distribute IBM AntiVirus and
Derivative Works thereof in accordance with the terms of the OEM
Agreements.
*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.
17
7.3 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
prepare Derivative Works based upon, and distribute internally in Source
Code or Object Code form and externally to end users in Object Code form
the IBM AntiVirus Analysis Program, and Derivative Works thereof and
authorize others to distribute to end users the Immune Agents.
7.4 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
prepare Derivative Works based upon, and distribute internally in Source
Code or Object Code form and externally in Object Code form the IBM
AntiVirus Administration Program and IBM AntiVirus Communications
Subsystem Program, and Derivative Works thereof and authorize others to
distribute the IBM Anti Virus Administration Program, the IBM Anti Virus
Communications Subsystem Program and Derivative Works thereof to end
users.
7.5 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
prepare Derivative Works based upon, and distribute internally and
externally copies of the End User Documentation.
7.6 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform
and distribute internally Development Documentation for the purposes of
developing and providing Symantec antivirus products and services to end
users.
7.7 IBM grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform
and distribute internally the Tools in Object Code only for the sole
purpose of performing the obligation and duties set forth in the
contracts and licenses assigned to Symantec.
7.8 In the event that Symantec terminates this Agreement for breach pursuant
to Section 12.2, IBM will promptly provide Symantec one up to date copy
of the IBM AntiVirus and IBM AntiVirus Immune System in Source Code form
and grants to Symantec a worldwide, nonexclusive, nontransferable right
and license, under copyrights, to execute, reproduce, display, perform,
prepare Derivative Works based upon, and distribute internally or
externally the IBM AntiVirus and IBM AntiVirus Immune System, in Source
Code or Object Code form, and authorize others to do any or all of the
foregoing.
7.9 Symantec may use the program name(s), logos, trademarks, and/or trade
names used by IBM to identify and promote IBM AntiVirus:
a. in connection with the marketing and distribution of IBM
AntiVirus to Customers, OEMs, and licensees of OS/2; and
b. subject to the guidelines set forth in Attachment 5.
Symantec agrees to promptly modify any advertising or promotional
materials that do not comply with these guidelines. If Symantec receives
any complaints about the use of such program name(s), logos, trademarks,
or trade names Symantec agrees to promptly notify
18
IBM. When Symantec ceases distributing IBM AntiVirus, Symantec agrees to
stop using the program name(s), logos, trademarks, and trade names. If
Symantec does not stop, Symantec agree to pay any expenses and fees IBM
incurs in getting Symantec to stop. Symantec agrees not to register or
use any name(s) logos, trademarks or trade names that are confusingly
similar to IBM name(s), logos, trademarks, or trade names. IBM's
name(s), logos, trademarks and trade names and any goodwill resulting
from Symantec's use of them belong to IBM.
8 OTHER COVENANTS
8.1 IBM agrees that for a period of [*] commencing on the Effective Date,
neither IBM nor its Subsidiaries will license or otherwise grant the
right to distribute or use the IBM Anti Virus Immune System to any third
party who receives annual revenue in excess of [*] from the licensing of
products that detect and remove computer viruses [*], or authorize
others to grant such rights. IBM shall not be in breach of this
provision if it licenses the IBM Anti Virus Immune System to a third
party who subsequent to obtaining such license receives annual revenues
of [*] from the licensing of products that detect and remove computer
viruses. The foregoing provisions shall not apply to the extent IBM
makes the IBM Anti Virus Immune System available to existing Customers
to satisfy its obligations under existing contracts or licenses with
such Customers which have been assigned back to IBM pursuant to Section
2.0 or which have been offered to Symantec under Section 2.0 hereof and
are not assumed by Symantec pursuant to such section.
8.2 Following IBM's announcement of version 3.02 of IBM AntiVirus, IBM
agrees that IBM and its Subsidiaries will not for a period of [*] make
commercially available to distributors, resellers, end users or OEMs any
IBM logo'd product whose principle function is to detect and remove
Harmful Code. The foregoing shall not apply to the extent that IBM makes
IBM AntiVirus available to existing Customers to satisfy its obligations
under existing contracts and licenses with such Customers which have
been assigned back to IBM pursuant to Section 2.0 or which have been
offered to Symantec under Section 2.0 hereof and are not assumed by
Symantec pursuant to such section.
8.3 Following IBM's announcement of version 3.02 of IBM AntiVirus, IBM
agrees that IBM and its Subsidiaries will not for a period of [*]
announce as generally available worldwide to distributors, resellers,
end users or OEMs any IBM logo'd product whose sole function is to
detect and remove Harmful Code. The foregoing shall not apply to the
extent that IBM makes IBM AntiVirus available to existing Customers to
satisfy its obligations under existing contracts or licenses with such
Customers which have been assigned back to IBM pursuant to Section 2.0
or which have been offered to Symantec under Section 2.0 hereof and are
not assumed by Symantec pursuant to such section.
8.4 If IBM in its sole discretion decides to license Symantec to use a
trademark in the distribution and promotion of Symantec's products that
implement or are enabled to access the Symantec Anti Virus Immune System
and subject to a successful trademark clearance by IBM, IBM agrees that
Symantec may use the ▇▇▇▇ identified pursuant to and subject to
*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.
19
the terms of the Trademark Agreement in connection with Symantec
products that contain or support the IBM AntiVirus Immune System.
8.5 IBM agrees that for a period of [*] commencing on the Effective Date,
IBM and its Subsidiaries will not license or otherwise grant to any
third party [*] or authorize any third party to do the foregoing.
8.6 If IBM breaches the provisions of Section 8.1, and IBM agrees or a court
finally determines that such breach has not been cured within the cure
period provided in Section 14.14, Symantec's sole and exclusive remedy
for such breach and any other breaches of that section shall be that
Symantec is relieved of its obligations to pay royalties under sections
5.1.2, 5.1.3, 5.1.4 and 5.1.5 commencing upon the date of the breach.
Thereafter, Symantec will pay a royalty of [*] on all Net Receipts in
excess of a Threshold Amount calculated as follows:
Threshold Amount [*] Notwithstanding the foregoing, the royalties shall
not exceed the maximums for each time period set forth below:
Time Period Maximum Royalty
----------- ---------------
[*] [*]
Upon Symantec's good faith notice of breach to IBM, Symantec may cease
paying royalties under Sections 5.1.2, 5.1.3, 5.1.4 and 5.1.5. In the
event that Symantec withholds payment of royalties and a court finally
determines that IBM has not breached the provisions of Section 8.1, then
Symantec shall pay IBM all withheld royalties plus interest at the prime
interest rate reported in the Wall Street Journal at the time of
payment. After the court has first determined that IBM did not breach
the provisions of Section 8.1 after Symantec's claim to the contrary,
then Symantec may not withhold royalties for any future claim under this
Section until a court has finally determined that such future claim was
validly made.
8.7 If IBM breaches the provisions of Sections 8.2 or 8.5, and IBM agrees or
a court finally determines that such breach has not been cured within
the cure period provided in section 14.15, Symantec's sole and exclusive
remedy shall be to recover actual damages up to a maximum of [*].
8.8 If IBM breaches the provisions of Section 8.3 and IBM agrees or a court
finally determines that such breach has not been cured within the cure
period provided in Section 13.15, Symantec's sole and exclusive remedy
for such breach and any other breaches of this section shall be: (a) the
licenses specified in Sections 7.3, 7.4 and 7.7 for the IBM AntiVirus
Immune System shall be royalty free and Symantec's obligations to pay
further royalties under Section 5.1.2, 5.1.3, 5.1.4 and 5.1.5 shall
immediately cease upon the breach, and (b) IBM shall pay actual damages
up to a maximum of [*]. Upon Symantec's good
*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.
20
faith notice of breach to IBM, Symantec may cease paying royalties under
Section 5.1.2,5.1.3,5.1.4 and 5.1.5. In the event that Symantec
withholds payment of royalties and a court finally determines that IBM
has not breached the provisions of Section 8.3 , then Symantec shall pay
IBM all withheld royalties plus interest at the prime interest rate
reported in the Wall Street Journal at the time of payment. After the
court has first determined that IBM did not breach provisions of Section
8.3 after Symantec's claim to the contrary, then Symantec may not
withhold royalties for any future claim under this section until a court
has finally determined that such future claim was validly made.
8.9 For the purposes of this Section 8.0, a product or service whose sole or
principle function is the detection and removal of Harmful Code shall
not include products or services such as, but not limited to, network
protection tools that monitor, report and prevent network denial of
service attacks and host invasion attacks; intrusion detection
mechanisms that monitor or analyze system activities to detect and
report possible system attacks; platform integrity and access control
mechanisms such as those found in the Java Virtual Machine (VM) that
verify byte code is valid, signed by a valid authority and limit the
resources made available to byte code loaded by the WM; embedded generic
"hooks" for integration of content-sweeping/scanning into products;
content filtering mechanisms such as for unauthorized disclosure by
e-mail packages (such as Lotus Notes and Lotus cc:Mail); firewall
products; debuggers; and current IBM products other than IBM AntiVirus;
even if such products and services detect and remove Harmful Code.
8.10 Symantec will make its customer satisfaction data available to IBM
within ninety (90) days after Symantec conducts or has another company
conduct its survey and receives the results of its customer satisfaction
surveys.
8.11 [*], IBM shall be relieved of its obligations under this Section 8.0.
Notwithstanding the foregoing, in no event will the provisions of
Sections 8.1, 8.2, 8.3 and 8.5 extend for longer than [*].
8.12 In the event that Symantec breaches this Agreement and such breach is
not cured within the cure period set forth in Section 14.14, IBM shall
be relieved of its obligations under this Section 8.0.
9 IBM REPRESENTATIONS AND WARRANTIES
9.1 IBM represents and warrants that it has the right to grant the licenses
set forth in Section 7 and to assign the contracts and licenses assigned
to Symantec. IBM makes no representation or warranty concerning
Symantec's ability to terminate the assigned contracts and licenses,
Symantec's ability to substitute Symantec products pursuant to such
contracts and licenses or a Customer's or OEM's plans regarding
termination of the assigned contracts and licenses or acceptance of the
substitution of Symantec products pursuant to the contracts and
licenses.
9.2 IBM represents and warrants that it is not under, and will not assume
any contractual obligation that prevents IBM from performing its
obligations or conflicts with the rights and
*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.
21
licenses granted in this Agreement.
9.3 IBM represents and warrants that version 3.0 and higher of the IBM
AntiVirus is Year 2000 Ready.
10 SYMANTEC REPRESENTATIONS AND WARRANTIES
10.1 Symantec represents and warrants that it will comply with the duties and
obligations set forth in the contracts and licenses assigned to
Symantec.
10.2 Symantec represents and warrants that it is not under, and will not
assume any contractual obligation that prevents Symantec from performing
its obligations or conflicts with the rights and licenses granted in
this Agreement.
10.3 Symantec represents and warrants that any product that replaces or is
substituted for the IBM AntiVirus provided to Customers and OEMs is Year
2000 Ready.
11 INDEMNIFICATION
11.1 Symantec will defend IBM, its Subsidiaries, and its and their successors
and assigns from and against any and all suits and pay all costs,
damages, and attorney's fees that a court finally awards arising out of
any alleged or actual:
a. infringement of any third party's patents by any modification
made by Symantec to the IBM AntiVirus, IBM AntiVirus
Administration Program, or IBM AntiVirus Communications Subsystem
Program;
b. infringement of any third party's copyrights by any modification
made by Symantec to the IBM AntiVirus and IBM AntiVirus Immune
System;
c. infringement of any third party's patents or copyrights by any
Symantec product that replaces or may be substituted for the IBM
AntiVirus provided to Customers or OEMs pursuant to the contracts
and licenses assigned to Symantec;
d. breach by Symantec of any assigned contract or license;
e. breach of Symantec's representations or warranties set forth in
Section 10; or
f. breach by Symantec of any representation, warranty or promise
express or implied, made to any Customer or OEM.
Symantec's obligations to defend and indemnify IBM are conditioned upon
IBM:
a. promptly providing Symantec notice of any such claim and
b. allowing Symantec to control and cooperating with Symantec in,
the defense of the claim and settlement negotiations.
22
In addition, if an infringement claim appears likely or is made,
Symantec will use reasonable efforts, at Symantec's expense to:
a. obtain the necessary rights for IBM to use the IBM AntiVirus, IBM
AntiVirus Administration Program, IBM AntiVirus Communication
Subsystem Program or IBM AntiVirus Analysis Program, in
accordance with Section 6.2; or
b. modify the IBM AntiVirus, IBM AntiVirus Administration Program,
IBM AntiVirus Communications Subsystem Program, IBM AntiVirus
Analysis Program or Symantec product to resolve the claim.
If Symantec is unable to do either of the foregoing within a reasonable
period of time, Symantec may terminate the license grant set forth in
Section 6.2.
Symantec shall have no obligations to defend or indemnify IBM regarding
any claim of infringement based upon any of the following:
a. IBM's modification of any Derivative Works of the IBM AntiVirus
and the IBM AntiVirus Immune System prepared by or for Symantec
which are licensed to IBM pursuant to Section 6.2 or the
Derivative Work's use in other than its specified operating
environment; or
b. the combination, operation, or use of any Derivative Works of the
IBM AntiVirus and the IBM AntiVirus Immune System prepared by or
for Symantec which are licensed to IBM pursuant to Section 6.2
with any product, data or apparatus IBM did not provide.
11.2 IBM will defend Symantec, its Subsidiaries, and its and their successors
and assigns from and against any and all suits and pay all costs,
damages, and attorney's fees that a court finally awards arising out of
alleged or actual:
a. infringement of any third party's patents by IBM AntiVirus, IBM
AntiVirus Administration Program or IBM AntiVirus Communications
Subsystem Program as it exists when delivered to Symantec;
b. infringement of any third party's patents by any modification
made by IBM to the IBM AntiVirus, IBM AntiVirus Administration
Program, or IBM AntiVirus Communications Subsystem Program;
c. infringement of any third party's copyrights by IBM AntiVirus and
IBM AntiVirus Immune System and modifications thereto made by IBM
as they exist when delivered to Symantec;
d. breach of any representation, warranty or promise express or
implied, made by IBM to any Customer or OEM;
23
e. breach by IBM of the assigned contracts and licenses which breach
occurs prior to the assignment of the contracts and licenses to
Symantec; and
f. breach of IBM's representations and warranties set forth in
Section 9.0.
IBM's obligations to defend and indemnify Symantec are conditioned upon
Symantec:
a. promptly providing IBM notice of any such claim and
b. allowing IBM to control, and to cooperating with IBM in, the
defense of the claim and settlement negotiations.
In addition, if an infringement claim appears likely or is made, IBM
will use reasonable efforts at IBM's expense to:
a. obtain the necessary rights for Symantec to use the IBM
AntiVirus, IBM AntiVirus Administration Program, IBM AntiVirus
Communication Subsystem Program or IBM AntiVirus Analysis Program
in accordance with Section 7.0; or
b. modify the IBM AntiVirus, IBM AntiVirus Administration Program,
IBM AntiVirus Communication Subsystem Program, or IBM AntiVirus
Analysis Program to resolve the claim.
If IBM is unable to do either of the foregoing within a reasonable
period of time, IBM may terminate thc license grants set forth in
Section 7.0 affected by the claim of infringement.
IBM shall have no obligations to defend or indemnify Symantec regarding
any claim of infringement based upon any of the following:
a. Symantec's modification of the IBM AntiVirus, IBM AntiVirus
Administration Program, IBM AntiVirus Communication Subsystem
Program or IBM AntiVirus Analysis Program or its use in other
than its specified operating environment; or
b. the combination, operation, or use of the IBM AntiVirus, IBM
AntiVirus Administration Program, IBM AntiVirus Communication
Subsystem or IBM AntiVirus Analysis Program with any product,
data or apparatus IBM did not provide.
12 TERM AND TERMINATION
12.1 This Agreement begins on the Effective Date and ends on the third
anniversary following the Effective Date unless terminated sooner under
the terms of this Agreement.
12.2 Subject to sections 14.13 and 14.14, either party may terminate this
Agreement for the other's material breach by providing the breaching
party with a written notice that describes the breach.
24
12.3 Expiration or termination of this Agreement does not affect any licenses
granted in this Agreement for the IBM AntiVirus, IBM AntiVirus Immune
System, Development Documentation, End User Documentation, Tools or
Derivative Works thereof. Except as provided in Section 5.5 in the event
of termination by IBM for breach by Symantec, IBM will not be obligated
to make any payments that would have become due under this Agreement on
or after the effective date of termination, other than per copy royalty
payments incurred, if any.
12.4 Expiration or termination of this Agreement does not affect any licenses
granted to any third parties.
12.5 Subject to Section 13.3, any provisions of this Agreement that by their
nature extend beyond termination or expiration will survive in
accordance with their terms. These include Symantec License Grant to
IBM, Payment, IBM License Grant to Symantec, IBM Representations and
Warranties, Symantec Representations and Warranties Indemnification,
Limitations of Liability, and General. These terms will apply to either
party's successors and assigns.
13 LIMITATION OF LIABILITIES
13.1 Neither party shall be liable for indirect, incidental or consequential
damages, including, but not limited to, lost profits, under any part of
this Agreement even if advised in advance of the possibility of such
damages. The above limitations of liability, however, shall not apply to
any of the parties' indemnification obligations contained herein.
13.2 Except as set forth in Section 12, in no event shall either ▇▇▇▇▇ be
liable for any damages whatsoever arising out or related to this
Agreement, in excess of [*],
The foregoing does not apply to obligations to make payments under this
Agreement.
13.3 EXCEPT AS SET FORTH IN SECTIONS 9 AND 10, THE IBM ANTIVIRUS, IBM
ANTIVIRUS IMMUNE SYSTEM, SYMANTEC ANTIVIRUS PRODUCTS FOR OS/2, LOTUS
NOTES FOR OS/390, LOTUS NOTES FOR AIX, LOTUS NOTES FOR OS/400, NATIVE
OS/2 AND DERIVATIVE WORKS THEREOF ARE PROVIDED "AS IS." EXCEPT AS SET
FORTH IN SECTIONS 9 AND 10, NEITHER PARTY MAKES ANY WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE IBM ANTIVIRUS, IBM
ANTIVIRUS IMMUNE SYSTEM, SYMANTEC ANTIVIRUS PRODUCTS FOR OS/2, LOTUS
NOTES FOR OS/390, LOTUS NOTES FOR AIX, LOTUS NOTES FOR OS/400, NATIVE
OS/2 OR DERIVATIVE WORKS THEREOF. BOTH PARTIES EXPRESSLY DISCLAIM THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
14 GENERAL
*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.
25
14.1 The parties agree that information exchanged under this Agreement that
is considered by either party to be confidential will be subject to the
terms of the Confidential Disclosure Agreement (CDA) 499AU6756 dated
December 19, 1997 and its Supplements. In addition, neither party will
not provide to the other party any confidential information of any third
party unless provided under the CDA.
14.2 Each party agrees not to disclose to any third party the terms of this
Agreement, or anything related to the Parties' relationship hereunder,
without the express written consent of the other party (any such written
consent shall require, at a minimum a prior written confidential
obligation by such third parties), except as may be required by law or
government rule or regulation or to establish its rights under this
Agreement; provided, however, that if one of the parties is seeking to
disclose such information for any reason, then the disclosing party
shall limit the disclosure to the extent required, shall allow the other
party to review the information to be disclosed prior to such
disclosure, and shall apply, where available, for confidentiality,
protective orders, and the like. Such review by the other party shall
not be construed to make the non-disclosing party responsible for the
contents of the disclosure and the disclosing party shall remain solely
responsible for such contents.
14.3 Except as specifically provided herein, nothing in this Agreement shall
be construed as: (1) prohibiting or restricting either party or their
Subsidiaries from independently developing, having developed
independently, acquiring, licensing, distributing or marketing products,
services and other materials which are competitive in any form or (2)
guaranteeing that either party or its Subsidiaries shall announce, or
otherwise offer for sale or lease, any product or service, except as
expressly set forth in this Agreement. Nothing in this Agreement shall
be construed as affecting either party's pricing of products or
services. Nothing in this Agreement obligates IBM or its Subsidiaries to
announce or market products or services in any quantity or in any
particular manner.
14.4 Each party is acting solely as an independent company. This Agreement
shall not be construed to establish any form of partnership, agency,
franchise or joint venture of any kind between Symantec and IBM, nor to
constitute either party as the agent, employee, legal representative, or
any other form of representative of the other. This Agreement shall not
be construed to provide for any sharing of profits or losses between the
parties. Each party acknowledges that is has not relied on any promises,
inducements, representations, or other statements made by the other
party regarding the commercial viability, profitability or success of
any products or services, and that each party's decision to enter into
this Agreement is made independently from the other party.
14.5 This Agreement shall be governed by, and the legal relations between the
parties hereto shall be determined in accordance with, the substantive
laws of the State of New York, without regard to any conflict of laws
principles, as if this Agreement was executed in and fully performed
within the State of New York. The United Nations' Convention on
International Sale of Goods shall not apply to this Agreement. Each
party hereby waives any right to a trial by jury in any dispute arising
under or in connection with this Agreement, and agrees that any dispute
hereunder be tried by a judge without a jury.
26
14.6 No right, interest, privilege or obligation of this Agreement shall be
assigned or delegated by either party, without the other party's prior
written permission. Any act in derogation of the foregoing shall be null
and void. Notwithstanding the foregoing, a party may delegate its
obligations to perform development work or support work hereunder, but
such party shall remain obligated for performance of such work.
14.7 All communications between the parties under this Agreement shall be
carried out through or under the supervision of the following contract
coordinators:
For IBM: For Symantec:
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Symantec Corporation
Internal Zip 4106 10201 Torre Avenue
International Business Machines Cupertino,CA 95014
Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any legal notice shall be deemed received (a) two (2) days after mailing
if sent by certified mail return receipt requested or (b) on the date
confirmation is received if sent by facsimile transmittal, to the party
set forth above. Each party may change the aforesaid contract
coordinators or addresses at any time by written notice to the other
party's contract coordinator.
14.8 Headings used in this Agreement are for convenience of reference only
intended to be party of; or to affect the meaning or interpretation of,
this Agreement.
14.9 In the event of an inconsistency, the order of precedence shall be (a)
Attachments to this Agreement, and then (b) this Agreement.
14.10 If any provision of this Agreement is held to be illegal, invalid, or
unenforceable, the legality and enforceability of the remaining
provisions shall not be affected or impaired.
14.11 No amendment, modification or waiver of any provision of this Agreement
shall be effective, unless it is set forth in a writing which refers to
the provisions so affected and is signed by an authorized representative
of each party. No failure or delay by either party in exercising any
right, power or remedy will operate as a waiver of any such right, power
or remedy.
14.12 Neither party relies on any promises, inducements or representations
made by the other or expectations of more business dealings except as
expressly provided in this Agreement. This Agreement accurately
expresses the parties agreement.
14.13 IBM and Symantec agree to use the following process to attempt to
resolve any disputes between IBM and Symantec arising out of or in
connection with this Agreement including
27
any alleged breach. IBM and Symantec each shall designate a
representative to resolve such disputes. Within ten (10) days after the
party asserting a dispute provides notice to the other party such
representatives shall meet or confer by telephone and fully discuss all
disputes in an attempt to achieve a prompt resolution. In the event that
such dispute is not resolved within ten (10) business days after such
initial meeting or discussion by such representatives, the dispute shall
be submitted to senior management representatives designated by each
party on its own behalf. Within ten (10) days after the dispute is
submitted to the senior management representatives, such senior
management representatives shall meet or confer by telephone and fully
discuss such dispute in an attempt to achieve a prompt resolution. If
such dispute is not resolved within ten (10) business days after such
initial meeting or discussion by the mutual agreement of such senior
management representatives of IBM and Symantec, each party shall be free
subject to section 14.15 to exercise any of the remedies available to it
(a) pursuant to the terms of this Agreement or (b) otherwise at law or
equity, consistent with the terms of this Agreement.
14.14 In the event of a breach of this Agreement and following completion of
the dispute resolution process in Section 15.13, the breaching party
shall be provided an opportunity to cure the breach. The breaching party
will use reasonable efforts to cure the breach within forty-five (45)
days after receiving notice of such breach from the non-breaching party.
However, if the breach by its nature cannot be remedied in forty-five
(45) days, but can be remedied in a reasonable time thereafter, the
breaching party will take reasonable steps to remedy the breach, notify
the other party of the action plans, progress towards completion and
complete such remedial action promptly. In such event, the notice period
will be suspended while the breaching party takes these actions.
14.15 Neither party will bring a legal action relating to the subject matter
of this Agreement more than two (2) years after the cause of action
arose.
14.16 This Agreement may be signed in one or more counterparts, each of which
will be considered an original, but all of which together form one and
the same instrument. Once signed, both parties agree any reproduction of
this Agreement made by reliable means (for example, photocopy or
facsimile) shall be considered an original unless prohibited by law.
14.17 Either party shall be excused from any delay or failure in performance
hereunder, caused by acts of God, earthquake, labor disputes and
strikes, riots, war, and change in governmental requirements or other
events beyond such party's control. The obligations and rights of the
party so excused shall be extended on a day-to-day basis for the period
of time equal to that of the underlying cause of the delay.
14.18 The provisions of this Agreement, including its Attachments, constitute
the entire agreement between the parties and supersedes all prior, oral
or written intentions, proposals, understandings, communications and
agreements relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their
28
respective authorized representatives.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES SYMANTEC CORPORATION
CORPORATION
BY: BY:
Signature Signature
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇ NAME:
Type or Print Type or Print
TITLE: Software Contracts TITLE:
DATE: DATE:
SYMANTEC LIMITED
BY
Signature
NAME: ▇▇▇▇▇ ▇▇▇▇▇
Type or Print
TITLE: Director
DATE:
29
ATTACHMENT 1
The following are the Versions and Releases for IBM AntiVirus:
IBM AntiVirus Version or Release 2.2, 2.4, 2.4.1, 2.5, 2.5.1,2.5.2, 3.0
and 3.0.1.
Each Version and Release was made available in a Desktop and an Enterprise
Edition.
30
ATTACHMENT 2
Part A
1. End User Contract and Licenses OEM Contracts and Subscriptions.
Delivered to Symantec in Cupertino, CA upon execution of this Agreement.
Part B
1. Customer Lists
Delivered to Symantec in Cupertino, CA upon execution of this Agreement.
31
ATTACHMENT 3
IBM SOLUTION DEVELOPER PROGRAM AGREEMENT
IBM is committed to providing our customers with the highest quality products
and to increasing customer satisfaction. We recognize the benefit of making it
easier for commercial solution developers to acquire our software so they may,
in turn, develop and market their own software to the general public. Our goal
is for your software to be of the highest quality, be compatible with our
software platforms and be generally available in the marketplace.
SECTION 1 - YOUR RESPONSIBILITIES
1.1 In order to qualify for the IBM Solution Developer program discounts, you
hereby represent and warrant that you are a commercial company whose primary
business is either the development and marketing of software to end users not
affiliated with your company, or the providing of software consulting services
to end users not affiliated with your company. We may require you to provide us
with a non-confidential business plan covering your use of IBM technologies.
1.2 You will use the software provided under this agreement solely for the
purposes authorized and will pay us the generally available license fees for
such software if you use them for any other purpose or if we determine that you
do not qualify for any discounts received.
1.3 You will use commercially reasonable efforts to take full advantage of
the advanced features of our software and hardware platforms.
1.4 You will use commercially reasonable efforts to ensure that all of your
software developed using the software provided under this Agreement will not
contain any "viruses" or other harmful code. You will test these products in a
manner consistent with industry standards and will use commercially reasonable
efforts to fix any problems with them.
1.5 Nothing contained herein grants us any rights or obligations with regard
to your products.
SECTION 2 - IBM RESPONSIBILITIES
2.1 At our option, we will provide you with Evaluation Software. Evaluation
Software is provided under its generally available license agreement except
that it is provided on an "AS IS" basis without technical support (except where
specified in the program documentation) and it may only be used for evaluation,
demonstration, development and testing purposes. It may not be used for fee
work or productive use and may not be transferred to any third party.
Evaluation Software is generally provided free of charge and is limited to one
copy per Commercial Developer membership.
2.2 At our option, we will provide you with Discount Software. Discount
Software is provided under its generally available license agreement except
that it may only be used for evaluation, demonstration, development and testing
purposes to develop software that will primarily be marketed to end users. It
may not be used for fee work or productive use and may not be transferred to
any third party. Discount Software is provided at a reduced price and we reserve
the right to limit the number of orders we accept. You hereby grant us the
right to use your name and logo on lists and in advertisements stating that you
use the Discount Software provided.
2.3 We will issue you a Commercial Developer membership number when you
apply, and on our approval of your application we will allow you to place
orders. We will maintain an order desk which will have a list of all eligible
software, and fees if applicable.
2.4 Discounts offered under this Agreement do not apply to publications,
accessories, or documentation and may not be combined with any other discount,
revenue commitment or allowance.
SECTION 3 - GENERAL
3.1 IBM reserves the right to modify, withdraw, charge fees for or limit your
participation in this offering at any time. Additional terms and conditions may
apply to any specific offering, or geography. We will notify you if additional
or different terms and conditions apply.
3.2 Each of us is an independent contractor and will be responsible for the
direction and compensation of its own employees. Each of us is free to have
similar agreements with others and offer products competitive to those covered
by this Agreement. Each of us will independently set the prices for our own
products.
3.3 Either of us may terminate this Agreement, with or without cause, on 30
days' written notice. Upon termination, you must return or destroy all copies
of software products provided under this Agreement. If you wish to keep the
Software, you must pay us the difference between the amount you paid and the
generally available license fees for such software. Any terms of this Agreement
which by their nature extend beyond the termination remain in effect until
fulfilled.
3.4 For any product(s) that are not generally commercially available ("GA"),
such product(s) and any technical support provided shall be considered to be
Confidential Information of IBM. Prior to GA, you agree not to disclose such
Confidential Information without IBM's prior consent. You will treat the
Confidential Information with the same care and discretion to avoid disclosure,
publication, or dissemination as you use with your own similar information. No
obligation of confidentiality will apply to any information that (i) you
already possess, or rightfully receive from a third party, (ii) you develop
independently, or (iii) becomes publicly available without breach of this
Agreement. You understand that this information is subject to change by IBM at
any time without notice and agree that you will not hold IBM responsible for
any reliance you place on any such information.
Other than as indicated above, any information disclosed under this Agreement
will be considered non-confidential. Any other confidential information to be
disclosed between us will be governed by a separate Agreement for Exchange of
Confidential Information (AECI).
3.5 We encourage you to advertise the fact that your products operate with
IBM's software products, operating systems and hardware platforms. This
Agreement does not, however, grant you any rights in any of IBM's patents,
copyrights, trademarks, trade names of service marks.
3.6 In the event of a default in the performance of this Agreement, IBM will
only be liable to you for any actual direct damages up to the total amount paid
by you under this Agreement. Neither of us will be liable for any lost profits,
lost savings, indirect, incidental or other consequential damages, even if
advised of their possibility. Neither of us will bring a claim under this
Agreement more than two (2) years after the claim arose.
3.7 This Agreement represents the entire agreement between us and supersedes
all prior agreements on the subject. It can only be modified by a signed
writing and cannot be assigned to others. Failure by either of us to insist on
strict performance, does not prevent us from doing so at a later time.
3.8 This Agreement is governed by the laws of the country in which the
transaction is performed except that: 1. if the transaction is performed in the
United States, this Agreement is governed by the laws of the State of New York;
2. if the transaction is performed in Canada, the laws of the Province of
Ontario govern this Agreement.
Accepted and Agreed to International Business Machines Corporation
---------------------------------------
This registration is for a company that is primarily concerned with the
development of software for the commercial marketplace.
This registration is for one development location of your company only.
Additional memberships must be obtained for subsidiaries, affiliates, or other
development locations to receive benefits under this program.
This application allows IBM to state publicly that your company is a member of
the IBM solution developer program.
IBM may, without notice:
1. Modify or discontinue any or all services provided under this
program, or
2. Discontinue your participation in the program.
The information that you provide in this application is, to the best of your
knowledge, correct.
IBM reserves the right to accept or not accept your application.
---------------------------------------
32
ATTACHMENT 4
EQUIPMENT AND PROGRAM LOAN AGREEMENT
[IBM LOGO]
EQUIPMENT AND PROGRAM LOAN AGREEMENT
________________________________________________________________________________
If you have signed the IBM Customer Agreement, its Attachment for Trial or Loan
of Products should be used in place of this Agreement.
The Recipient (you) and International Business Machines Corporation (IBM) agree
that the following terms and conditions apply when IBM loans you equipment and
programs including associated user manuals and similar documentation (Loaned
Items). Loaned Items may also be referred to as Loaned Equipment or Loaned
Programs, as applicable.
1. ASSOCIATED CONTRACT DOCUMENTS
The Attachment to this Agreement (Attachment) lists the Loaned Items and
specifies any additional terms and conditions. A revised Attachment sets forth
any additions or deletions to the listed Loaned Items and any changes to the
terms and conditions. Your continued use of the Loaned Items or acceptance of
additional Loaned Items after your receipt of a revised Attachment will
constitute your acceptance of such revised Attachment.
When the loan is made in conjunction with a referenced Agreement, IBM will
specify the Reference Agreement Number. In this event, the referenced Agreement
will describe the purpose of the loan. Otherwise, the purpose of the loan is
specified below (Purpose of Loan).
2. TERM AND TERMINATION
This Agreement ends on the earliest of 1) the specified Agreement
Expiration Date, 2) the date this Agreement is terminated in accordance with
this Section, or 3) the date the referenced Agreement, if any, is terminated.
The Agreement Expiration Date may only be extended by IBM's issuance and your
acceptance of a revised Attachment specifying such later Date.
You may terminate this Agreement by providing written notice to IBM. If
you fail to meet any of your obligations under this Agreement or the referenced
Agreement, IBM may terminate this Agreement by giving written notice to you,
indicating the effective date of termination.
3. LOAN PERIOD
IBM will provide the Loaned Items to you on or about the Estimated
Delivery Date(s) specified in the Attachment. IBM provides this Estimated
Delivery Date(s) to you for planning purposes only. The Loan Period for each
Loaned Item will extend from the actual date IBM delivers the Loaned Item(s) to
you, until the earliest of:
(a) the applicable Return Date specified in the Attachment or revised
Return Date specified in a revised Attachment.
________________________________________________________________________________
PAGES 2 AND 3 AND ____ ATTACHMENT PAGE(S) ARE ALSO PART OF THIS AGREEMENT.
The parties acknowledge that they have read this Agreement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that the
complete and exclusive statement of the agreement between the parties relating
to the Loaned Items provided hereunder consists of 1) this Agreement, 2) its
Attachment(s) and 3) the referenced Agreement, if any, including those
effective in the future. This statement of the agreement supersedes all
proposals or other prior agreements, oral or written, and all other
communications between the parties relating to the Loaned Items provided
hereunder.
International Business Machines Recipient's name:
Corporation
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By ___________________________________ By _____________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
This Agreement number: Reference Agreement number:
IBM Office number: Recipient's Customer number
IBM Office address: Recipient's address:
Agreement Expiration Date:
Purpose of Loan (To be completed only if no referenced Agreement):
Page 1 of 3
33
b) the date you acquire i) title to the Loaned Equipment or ii) a
continuing license to the Loaned Program, should such acquisition or
licensing be available to you under Section 13;
or
c) the date this Agreement ends.
4. AUTHORIZED USE
IBM provides Loaned Items to you solely for use in accordance with the
terms of this Agreement and for the purpose(s) described either in this
Agreement or in the referenced Agreement (Authorized Use). You may not use the
Loaned Items for any other purposes.
5. OWNERSHIP AND LICENSE
IBM or a third party retains title to all Loaned Items. You may not
transfer Loaned Items to anyone else. For Loaned programs which are not subject
to another supplier's or publisher's license agreement, IBM grants you a
license to use, store, modify and make sufficient copies to support your
Authorized Use under this Agreement. Such copies will be deemed to be Loaned
Items. For Loaned Programs which are subject to another supplier's or
publisher's license agreement, however, the terms and conditions of that
supplier or publisher are passed to you through IBM. Such terms and conditions
will be shipped with the Loaned Program. Any authorized copies made by you will
be deemed to be Loaned Items.
6. LICENSED INTERNAL CODE
If the Loaned Equipment contains Licensed Internal Code (Code), so
identified by IBM, IBM grants you a license only to execute such Code to enable
the Loaned Equipment to perform in accordance with IBM's official published
specifications. You may not reverse assemble, reverse compile, decode,
translate, or make any copies of the Code. You must return the original copy of
the Code to IBM at the conclusion of the Loan Period.
7. DELIVERY AND INSTALLATION
IBM will deliver the Loaned Items to the location(s) specified in the
Attachment.
You will 1) set-up all Loaned Equipment IBM designates as Customer
Set-Up, 2) install all non-IBM equipment and 3) install all Loaned Programs.
IBM will be responsible for the installation of all other Loaned Items.
Installation by IBM will be during IBM's normal business hours.
8. RISK OF LOSS OR DAMAGE
IBM relieves you of the risk of loss of, or damage to, all Loaned Items,
except for loss or damage resulting from your breach of this Agreement including
use other than Authorized Use.
9. SECURITY
You will provide, at no cost to IBM, adequate security to protect the
Loaned Items from theft, damage or misuse.
You will use reasonable care in the use of all Loaned Items. You will
provide an operating environment for the Loaned Items consistent with the
related user documentation.
You will keep the Loaned Items at the location(s) specified in the
Attachment. You will not move the Loaned Items to another location without
IBM's prior written approval.
10. SERVICE AND SUPPORT
IBM will use reasonable efforts to provide or arrange for service and
support to cause the Loaned Items to operate in accordance with applicable
published specifications.
You will permit IBM personnel full, free and safe access to your
facilities, during normal business hours, for the purpose of inspection,
preventive maintenance service or remedial maintenance service.
11. ALTERATIONS AND ATTACHMENTS
An alteration to Loaned Equipment may be made only upon IBM's prior
written approval. An attachment to Loaned Equipment may be made without notice
to IBM.
You will remove any alteration or attachment and restore Loaned Equipment
to its unaltered condition before its return to IBM or upon IBM's notice to you
that the alteration or attachment creates a safety hazard or renders
maintenance of the Loaned Equipment impractical.
12. CHANGES
IBM may make substitutions for Loaned Items or may provide additional
items to you during the term of this Agreement. Such additions or deletions
will be specified in a revised Attachment.
13. DISPOSITION OF LOANED ITEMS
Return to IBM
You will return the Loaned Equipment to IBM at the end of the Loan Period,
except as may be provided for in this Section. You will return the Loaned
Equipment to IBM in the same condition as when delivered to you, reasonable
wear and tear excepted.
You will return the original and all copies of the Loaned Programs at the
end of the Loan Period, except as may be provided for in this Section.
You will permit IBM personnel access during IBM's normal business hours to
allow IBM to remove the Loaned Items.
Acquisition and Continued Licensing
IBM will determine the availability of Loaned Equipment for your
acquisition and Loaned Programs for your continued licensing beyond the
applicable Loan Period. You must inform IBM, prior to the end of the applicable
Loan Period, of your interest in the acquisition of specific Loaned Equipment or
the continued licensing of specific Loaned Programs. IBM will then notify you in
writing either 1) of the terms and conditions under which you may acquire such
Loaned Equipment or continue to license such Loaned Programs or 2) that the
Loaned Items are not available for acquisition or continued licensing.
Purchase of Loaned Equipment will be governed by the provisions of the IBM
Customer Agreement and its applicable Attachments (or any equivalent agreement
signed by both of us).
Continued licensing of Loaned Programs will be governed by the provisions
of the applicable IBM license agreement or another supplier's or publisher's
Page 2 of 3
34
license agreement. IBM will identify to you the applicable agreement which
governs such licensing.
14. DISCLAIMER OF WARRANTY
IBM PROVIDES LOANED ITEMS ON AN "AS IS" BASIS. IBM MAKES NO WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO SUCH ITEMS, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. PATENTS AND COPYRIGHTS
If the operation of a Loaned Item becomes, or IBM believes is likely to
become, the subject of a claim that it infringes a patent or copyright in the
United States or Puerto Rico, you will permit IBM, at its option and expense,
either to secure the right for you to continue using the Loaned Item or to
replace or modify it so that it becomes noninfringing. However, if neither of
the foregoing alternatives is available on terms which are reasonable in IBM's
judgment, you will return the Loaned Item upon IBM's written request.
IBM will have no obligation with respect to any such claim based upon your
modification of IBM equipment, programs or programming or their combination,
operation or use with any non-IBM apparatus, data or programs.
IBM will not have any liability regarding patent or copyright infringement
for non-IBM Loaned Items.
This Section states IBM's entire obligation to you regarding infringement
or the like.
16. CONFIDENTIAL INFORMATION
The parties agree that all information exchanged hereunder will be
nonconfidential. If the loan requires the exchange of confidential information
or includes an unannounced IBM product, such loan will also require that you and
IBM enter into a separate confidentiality agreement.
17. LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy for actual damages from
any cause whatsoever relating to the subject matter of this Agreement will be
limited to the amount of the actual loss or damage, up to the greater of
$100,000 or the charges for the Loaned Item that is the subject of the claim.
This limitation will apply, except as otherwise stated in this Section,
regardless of the form of action, whether in contract or in tort, including
negligence. This limitation will not apply to claims by you for bodily injury
or damage to real property or tangible personal property for which IBM is
legally liable.
In no event will IBM be liable for any lost profits, lost savings,
incidental damages, or other economic consequential damages, even if IBM has
been advised of the possibility of such damages. In addition, IBM will not be
liable for any damages claimed by you based on any third party claim.
In no event will IBM be liable for any damages caused by your failure to
perform your responsibilities.
18. GENERAL
You may not assign this Agreement without IBM's prior written consent. Any
attempted assignment without such consent is void.
Loaned Items are to be installed only in the United States or Puerto Rico.
IBM will pay normal transportation charges, both from and to
IBM-designated locations, for each Loaned Item. You will pay any rigging
charges. You will furnish all labor for unpacking and packing except as IBM
otherwise specifies or when performed at an IBM-designated location.
IBM may provide services described in this Agreement by using IBM-selected
independent contractors.
Neither party is responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control.
Neither party may bring an action, regardless of form, arising out of this
Agreement more than two years after the cause of action arose.
In the event of the termination or expiration of this Agreement, the
provisions of this Agreement which by their nature extend beyond the expiration
or termination of this Agreement shall remain in effect beyond such expiration
or termination until fulfilled.
If there is a conflict between this Agreement and an Attachment, the terms
and conditions of the Attachment will prevail. Except as modified by an
Attachment, the terms of this Agreement remain in full force and effect. The
terms of any Attachment not inconsistent with a subsequent Attachment remain in
full force and effect.
The laws of the State of New York govern this Agreement.
Page 3 of 3
35
[IBM LOGO]
ATTACHMENT TO EQUIPMENT AND PROGRAM LOAN AGREEMENT
________________________________________________________________________________
Name and Address of Recipient: IBM Address: This Agreement number:
IBM Office number:
Recipient's Installation Address: Recipient's IBM
Customer number:
Check one of the following:
Original Attachment ___
Revised Attachment ___
Date of Revision:
Revision number:
LIST OF LOANED ITEMS:
Type/Model Plant Order Estimated
or Program or Serial Delivery Return
Number Number Date Date* Description Charges
--------------------------------------------------------------------------------
*To be completed only if earlier than the Agreement Expiration Date specified in
this Agreement.
Page __ of __
36
ATTACHMENT 5
TRADEMARK USAGE GUIDELINES
Symantec agrees to comply with the following trademark usage guidelines:
1) Symantec's logo and product name should be the primary identity in
Symantec's communications.
2) Information about Symantec and its marketing expertise can be highlighted
within the content of the communications (e.g., headline, body copy imagery).
3) Proper trademark attribution must be supplied for each IBM trademark at
its first use. Attribution can be in the text or in a footnote. The attribution
should be generally of the form "trademark is/are trademarks of the IBM
Corporation in the United States and other countries."
4) The first reference in text to all IBM product names should be preceded by
IBM.
5) Each trademark must be used as an adjective qualifying a noun that is a
generic description of the product. The trademark should also be used in the
singular form.
6) Capitalize the initial letter of each IBM product name, unless the
trademarked name is different; in this case write it as it is trademarked.
7) Do not misspell or use lower case letters when using the name IBM in text.
8) The proper and complete name of an IBM product must be used in the first
or most prominent reference to the product.
9) Symantec's materials must be clearly perceived as communications from
Symantec and not IBM.
10) Symantec will not reference IBM products and services for which it is not
authorized.
11) Symantec will not disparage IBM or competitive products or services.
12) If Symantec references IBM products and non-IBM products together, the IBM
content must be at least equal in size to the other brands.
13) Symantec will not use any IBM trademark or product name in a telephone
number that will be promoted using alphabetic rather than numeric characters, or
in a domain name, URL, or e-mail address.