EXHIBIT 10.98
Agreement No.: 271-RSLR-3511-A-2
AMENDMENT #2 TO RESELLER AGREEMENT
BETWEEN LEGATO SOFTWARE DIVISION, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ AND MTI TECHNOLOGY CORPORATION
The Reseller Agreement between LEGATO SOFTWARE, a division of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
("Legato"), its subsidiary Legato Systems Nederlands B.V., and MTI TECHNOLOGY
CORPORATION ("Reseller") dated December 23, 2002, contract # 271-RSLR-3511 (the
"Agreement"), as amended December 23, 2003 is hereby amended effective June 1,
2004 (the "Effective Date of Amendment #2"), as follows (all capitalized terms
shall have the same meanings as set forth in the Agreement unless indicated
otherwise):
Whereas both parties desire that Reseller resell software licenses for "Legato's
Content Management Software"; and,
Whereas the parties agree to amend Schedule A-1 to change the pricing for
Updates for Storage Management software licenses for a period of one year.
Now, therefore, the parties agree to the following:
1. Add new Schedules A-4, dated 05/01/04 and where references to Schedule A
are contained in the language of the Agreement, add "and Schedule A-4".
2. Add the following new Subsection 7.1 to Schedule A-1 as follows:
"7.1 If Reseller has executed an Authorized Technical Support Provider
Agreement with Legato, the price to the Reseller for Updates for Storage
Management Software licenses for the End-User shall be EIGHT PERCENT (8%)
of the List Price for Software installed at the End-User.
3. In Section 9, TERM AND TERMINATION, replace sub-section 9.1 in its
entirety with the following:
"9.1 TERM. This Agreement shall commence on the Effective Date and
shall remain in effect until terminated pursuant to this Section 9
and as provided herein. Each Schedule A and/or Schedule B and/or
Schedule C (referred to as "Schedule" for purposes of this
Subsection) will specify its own term which will commence on the
Effective Date specified in the Schedule and shall continue for the
term specified in such Schedule, unless the Schedule is terminated
as provided herein. If the Agreement is terminated pursuant to the
terms of this Subsection, all Schedules attached to this Agreement
shall be considered terminated."
IN WITNESS WHEREOF, the parties have executed this Amendment #2 as of the
Effective Date set forth above.
LEGATO SOFTWARE, A DIVISION OF EMC RESELLER: MTI TECHNOLOGY CORPORATION
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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AUTHORIZED REPRESENTATIVE AUTHORIZED REPRESENTATIVE
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director Title: Chief Financial Officer
Date: 9/13/04 Date: August 26, 2004
LEGATO SYSTEMS NEDERLAND B.V. Date
8/30/04
By: /s/ [ILLEGIBLE] APPROVED
------------------------- LEGATO
AUTHORIZED REPRESENTATIVE CONTRACTS
Name: [ILLEGIBLE] [ILLEGIBLE]
Title: Authorized Representative BY
Date: September 16, 2004
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
051104 WW
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Agreement No.: 271-RSLR-3511-A-2
SCHEDULE A-4 TO RESELLER AGREEMENT
CONTENT MANAGEMENT SOFTWARE
PREMIER PARTNER
TARGETS, TERRITORY, QUALIFICATION AND TRAINING REQUIREMENTS, PRICING, PRICE
LIST, STANDARD DISCOUNTS, OTHER DISCOUNTS, COOPERATIVE MARKETING RATES
Unless defined otherwise herein, capitalized terms used in this Schedule shall
have the same meaning as set forth in the Agreement.
1. ANNUAL MINIMUM NET TARGET COMMITMENT. Reseller agrees to an annual
Minimum Net Revenue Target Commitment of: US$175,000.00. Reseller's
net revenue target commitment is based on actual cumulative net
revenue received by Legato for Reseller's sale of Software licenses
during any year of the Term, and does not include sales of Updates,
End User Support, Technical Support, professional services,
collateral, or Media Kits. Legato's "net revenue" is defined as
gross ▇▇▇▇▇▇▇▇ plus re-bills, less credits of any kind.
2. THE LEGATO GLOBAL PARTNER PROGRAM GUIDE ("THE GUIDE") WHICH APPLIES
TO THE RESELLER HEREIN IS CALLED: Legato Global Partner Program for
Content Management for North America.
3. COOPERATIVE MARKETING ACCRUAL RATE: The percentage of Reseller's
monthly "net revenue" from the sales of Software licenses as further
described in Cooperative Marketing Plan is THREE PERCENT (3%).
4. TERRITORY. Territory as defined herein shall mean: WORLDWIDE
5. QUALIFICATION AND TRAINING REQUIREMENTS. Reseller agrees to meet the
headcount qualification and certification requirements as set forth
in the Agreement in Sections 5.8 and 5.9, and which are specified in
the table below
SALES TRAINING AND QUALIFICATION (BY PRODUCT GROUP)
---------------------------------------------------
Salespeople 2
TECHNICAL TRAINING AND QUALIFICATION (BY PRODUCT)
Systems Engineers 2
6. RESELLER PRICING, PRICE LIST, AND DISCOUNTS. Legato's pricing to
Reseller shall be as follows. All discounts are from the list price
of the Software listed in the LEGATO CONTENT MANAGEMENT CORPORATE
PRICE LIST ("CPL") FOR NORTH AMERICA ("PRICE LIST"). "List Price"
means the Legato price listed for the Software in the Price List.
Legato reserves the right to revise any discount at the end of the
Term of this Schedule or any subsequent renewal thereof.
DESCRIPTION DISCOUNT/PRICING
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SOFTWARE LICENSES* 42% Discount off Legato's then-current Price List specified above
*except for Kofax Ascent Capture
KOFAX ASCENT CAPTURE SOFTWARE** 38% off Legato's then-current Price List specified above
**See special terms below on the procurement of licenses for Kofax
END-USER SUPPORT
INCLUDES:
END-USER SELECTED Discount off Legato's then-current List Price of the End-User
TECHNICAL SUPPORT 20% direct sell thru Software installed base
AND
UPDATES 20% direct sell thru Discount off Legato's standard software Update fee charged to
End-Users based on the List Price of their Software installed
base
PROFESSIONAL SERVICES Discount off Legato's then-current published professional
DISCOUNT 25% services fees in the Price List
7. If Reseller has executed an Authorized Technical Support Provider
Agreement with Legato, the price to the Reseller for Updates for the
End-User shall be EIGHT PERCENT (8%) of the List Price for Software
installed at the End-User.
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
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8. PRODUCTS. Except for Kofax Ascent Capture, Reseller will be allowed
to resell licenses for all Software items in the specified Price
List named above.
9. KOFAX ASCENT CAPTURE. Reseller may only purchase Kofax Ascent
Capture provided they have received and provided to Legato an
authorized reseller number from Kofax.
10. REFERENCE ACCOUNTS AND ADDITIONAL PRODUCT DISCOUNT. If Reseller
registers two (2) validated referenceable End-User Accounts which
Legato can use as a Software reference with a Legato prospective
customer ("Reference Account"), upon validation of the second
reference account, Reseller shall be entitled to apply for an
additional two percent (2%) discount off of the List Price of the
designated Price List for any new Software orders. In order for
Reseller to maintain the 2% discount Reseller must provide Legato
with a new Reference account every 90 days following the date of the
initial entitlement of the 2% discount. If Reseller fails to provide
a new Reference account within the 90 days then the discount will be
revoked. If a Reference Account decides to terminate its status as a
reference account, Reseller has thirty (30) days from the date of
termination of status to register a replacement reference account.
If Reseller fails to register a replacement account, then Reseller
shall not be eligible for the additional product discount of 2%, and
it is considered revoked by Legato. In order to be considered a
valid Reference Account, after submission of the registration form
by Reseller, Legato will verify with the proposed account and will
notify Reseller of the status. If the Schedule is renewed as
specified in the Agreement, if Reseller has valid Reference
Accounts, Legato agrees to roll the Reference Accounts into the
renewed Schedule and the discount will continue to be honored by
▇▇▇▇▇▇.
▇▇. ▇▇▇▇, ▇▇▇, & ▇▇▇ LAB TESTING SOFTWARE.
12.1 DEMO SOFTWARE. Legato shall provide Reseller with demo
software at no charge for each of Reseller's sales
representatives and technical persons. This software shall be
fully functional with a limit of 2000 docs or 12 months,
whichever comes first. This software is for the purpose of
product demonstration, testing, and presales activities.
Support for the demo software is obtained through the
Pre-sales Engineering group.
12.2 NFR PRODUCTION LICENSE. Upon submission of a Purchase
Order from Reseller for the license fee and support fees
as specified below, Legato will provide Reseller with
live-for-production software as specified in the table
below that is available for partners' internal use and
cannot be resold. Support for the NFR production license
is obtained through the Technical Support organization.
NFR PRODUCTION FEES
Software $1,000
INCLUDES: Support fees and Updates will be based on that Software
- ApplicationXtender/WebXtender/ERMX- which is licensed at the then-current support rate (either
Total configuration of 6 Concurrent Basic or Premier or ATSP) and Updates rate for the Reseller
Connections based on the then-current List Price of each Software
- ERMX Server (1) license.
- DX Raid 500 GB
Note: Other add-on components or options are available for purchase based
on List Price less Reseller's then-current discount.
Additional AX Components: OCR; Verity; Pro-Index;
Print Stream Options: PDF; AFP; Metacode; PCL; Business
Intelligence Gateway
12.3 NFR TEST LAB LICENSE: If Reseller requires a "live-for-testing
license" for the Software that is used for the purpose of ongoing
integration, testing of new product releases, and/or customization,
Reseller must submit a written request to Legato which Legato shall
consider on a case-by-case basis. If the request is allowed by
Legato, support for the NFR Test Lab software is obtained through
Legato's Pre-sales Engineering group.
12. SOFTWARE DEVELOPMENT TOOLKITS Reseller shall have the choice of purchasing
a license for Legato's ApplicationXtender software development toolkit
("SDK Toolkit"). If Reseller chooses to procure a Toolkit, then the
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
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terms and conditions of Exhibit A-2 hereof shall govern the license.
Reseller shall be pre-qualified by a Legato authorized employee prior to
procurement of a Toolkit license.
13. This Schedule A-4 is in effect for a period of one (1) year from the
Effective Date of Amendment #2, which is June 1, 2004, unless terminated
earlier pursuant to Section 9 of the Agreement.
LEGATO SYSTEMS, INC: RESELLER. MTI Technology Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------- -------------------------
AUTHORIZED REPRESENTATIVE AUTHORIZED REPRESENTATIVE
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director Title: Chief Financial Officer
Date: 9/13/04 Date: August 26, 2004
DATE
8/30/04
APPROVED
LEGATO
CONTRACTS
[ILLEGIBLE]
-----------
BY
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
062104 WW
4
Agreement No.: 271-RSLR-3511-A-2
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
051104 WW
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EXHIBIT A-1 OF SCHEDULE A-4
RESELLER AGREEMENT FOR CONTENT MANAGEMENT SOFTWARE
LICENSE TERMS AND CONDITIONS FOR APPLICATIONXTENDER(TM) TOOLKIT
Reseller agrees that if it licenses an ApplicationXtender Toolkit, the following
terms and conditions govern such SDK Toolkit. Unless defined otherwise herein,
capitalized terms used in this Exhibit shall have the same meaning as set forth
in the Agreement and the attached Schedules.
1. LICENSE GRANT AND USE. Legato, as licensor, grants to Reseller a
non-exclusive license and right to use Legato's software development kit
(SDK) for ApplicationXtender (the "SDK Toolkit"). The SDK Toolkit consists
of documentation; on-line help; sample applications; a demo copy of the
Product, and setup/uninstall utilities. The grant of this license and the
use of the SDK Toolkit are for development purposes only.
2. OWNERSHIP AND LIMITATION OF USE. Legato retains title to and ownership of
all of the components comprising the SDK Toolkit. Accordingly, this
license is not a sale of original software or of any source code or any
portion or copy of such. Further, Reseller agrees that its use of the SDK
Toolkit shall be utilized solely to allow Reseller to design, develop,
demonstrate and test Reseller's applications with Legato's
ApplicationXtender.
3. COPY RESTRICTIONS. The SDK Toolkit and its accompanying materials are
protected by copyrights and contain proprietary information and trade
secrets of Legato. Copying of the SDK Toolkit materials even if modified,
merged or included with other software, or of the written materials, is
expressly forbidden without the prior written consent of Legato.
4. NON-ASSIGNABILITY AND PROHIBITED ACTIONS. The SDK Toolkit (and all of its
components) is solely licensed hereby to Reseller, and may not be
transferred to any third party without the express written consent of
Legato. Reseller may not modify, translate, reverse engineer, decompile or
disassemble the SDK Toolkit
5. SUPPORT. Support for the SDK Toolkit shall be provided by Reseller
purchasing such services from Legato's Professional Services for Content
Management Software
6. TERMINATION. This Schedule will terminate automatically without notice
from Legato if Reseller fails to comply with any provision contained
herein. Upon termination, Reseller shall return and/or destroy all
materials and components comprising the SDK Toolkit, and all copies
thereof.
7. DISCLAIMER. THE SDK TOOLKIT IS PROVIDED "AS IS." LEGATO DOES NOT MAKE ANY
AND HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The entire risk as
to the quality and performance of the SDK Toolkit is with Reseller. Legato
does not warrant that the functions contained in the SDK Toolkit will meet
Reseller's requirements or that the operation of the product will be
uninterrupted or error free.
8. TRADEMARKS, TRADE NAMES, LOGOS, DESIGNATIONS AND COPYRIGHTS. Refer to
Section 12 of the Agreement.
9. CONFIDENTIALITY. Reseller shall take all reasonably necessary and
appropriate steps to preserve, protect and prevent disclosure of all of
the Legato confidential and proprietary data and information contained in
the SDK Toolkit. For purposes of this Schedule, all information and data
comprising and contained in the SDK Toolkit is deemed to be confidential
and proprietary.
LEGATO SYSTEMS INC. RESELLER: MTI TECHNOLOGY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------- --------------------------
Authorized Signature Authorized Signature
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director Title: Chief Financial Officer
Date: 9/13/04 Date: August 26, 2004
DATE
8/30/04
APPROVED
LEGATO
CONTRACTS
[ILLEGIBLE]
-----------
BY
Amendment 2 to MTI WW Reseller Agreement Legato Confidential
062104 WW
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