Exhibit 10.5F
COMPAQ/ALTIRIS CONFIDENTIAL
AMENDMENT NUMBER 3
TO
LICENSE AND DISTRIBUTION AGREEMENT
This Amendment Number 3 ("Amendment 3") to the License and Distribution
Agreement ("Agreement"), dated November 12, 1999, is entered into and is
effective as of the 1/st/ day of December, 2001 ("Effective Date") by and
between Compaq Computer Corporation ("Compaq"), a Delaware corporation having
its principal place of business at ▇▇▇▇▇ ▇.▇. ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and
Altiris, Inc. ("Altiris") a Utah corporation, having its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (Collectively "the Parties").
WHEREAS the Parties previously executed Amendment 1 to the Agreement with an
effective date of April 20, 2000; and
WHEREAS the Parties previously executed another Amendment 1 to the Agreement
with an effective date of August 11/th/, 2000; and
WHEREAS the Parties previously executed Amendment 2 to the Agreement with an
effective date of December 5, 2001; and
WHEREAS the Parties through this Amendment 3 now wish to further amend the
Agreement (as amended by the two previous amendments each called Amendment 1 and
by Amendment 2).
NOW THEREFORE, in consideration of the mutual covenants and promises in the
Agreement as amended previously and hereunder, and for other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
1. All terms defined or used in the Agreement (as previously amended)
shall have the same meaning in this Amendment 3.
2. Section 1.4 (a) of the Agreement (as amended) is deleted in its
entirety and replaced with the following:
"(a) Altiris eXpress - full product version (up to and including
version 5.0 only) including software, documentation (printed and/or electronic),
media and packaging."
3. Section 1 of the Agreement is amended by adding the following new
definitions:
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This exhibit is the subject of a Confidential Treatment Application.
Confidential information has been omitted and has been filed separately.
COMPAQ/ALTIRIS CONFIDENTIAL
"1.13 Commercial Products. "Commercial Products" shall mean all
commercial products and suites offered by Altiris for sale on its current price
list (attached hereto as Exhibit H), and any future commercial products as
mutually agreed between the parties.
1.14 Future Version(s). "Future Version(s)" shall mean future versions
of Commercial Products. "
4. Subsection 8.4 of the Agreement (as amended) is deleted in its
entirety and replaced with the following:
"8.4 Support.
(a) Support Levels.
"Level 1 Support" shall mean the support mechanism,
including a call center, that receives calls from
customers relating to Licensed Software. Issues related
to availability, supported products, known issues, and
common usage are resolved at this level.
"Level 2 Support" shall mean the technical trouble
shooting and resolution of more complex issues that
require a higher level of support or focused support for
difficult or sensitive issues.
"Level 3 Support" shall mean engineering level support
from the programmers who maintain or develop the Licensed
Software or from other technical personnel having
knowledge and expertise concerning the Licensed Software.
This support happens outside the call center, although
the call center will continue to track customer cases to
resolution.
(b) All Support, as defined in (a) above, shall be provided
by Altiris.
(c) Customer Advisories. After consultation with Altiris,
Compaq may, at its discretion, issue service and customer
advisories which identify potential customer issues and
Compaq's recommended course of action."
5. Subsection 9.7 of the Agreement (as amended) is deleted in its
entirety and replaced with the following:
"9.7 Resale Products and Commercial Products. The prices paid by
Compaq or its designated agent to Altiris for each Resale Product or
Commercial Product shall be the applicable percentage of Altiris'
then-current published retail price for
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COMPAQ/ALTIRIS CONFIDENTIAL
the Resale Product or Commercial Product. The applicable percentages
are as follows:
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COMPAQ/ALTIRIS CONFIDENTIAL
Resale Products ABG Applicable Other*
--------------- -------------- ------
Percentage (6.3)
----------------
Altiris eXpress (up to and including version 5.0) [*]% [*]%
Altiris Vision [*]% [*]%
PC Transplant Pro [*]% [*]%
Commercial Products
Altiris eXpress Solutions (version 5.1 and later) [*]% [*]%
Altiris eXpress Suites (version 5.1 and later) [*]% [*]%
Altiris eXpress SMS Add-ons (version 5.1 and later) [*]% [*]%
Altiris Enterprise Tools [*]% [*]%
Altiris Consumer Products [*]% [*]%
Altiris Academic Products [*]% [*]%
Altiris Services and Training [*]% [*]%
Altiris Annual Upgrade Protection for all
Commercial Products listed in Exhibit H [*]% [*]%
*When non-Access Business Group (ABG) organizations of Compaq resell
these products using any part number other than the traditional 6.3
part numbers, Compaq shall pay the percentage of the list price set
forth in the second column marked "Other".
These prices are F.O.B. Altiris and do not include shipping and
insurance costs. Such shipping and insurance costs shall be paid by
Compaq or its designated agent."
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* This provision is the subject of a Confidential Treatment Request.
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COMPAQ/ALTIRIS CONFIDENTIAL
6. Section 3.6, 3.8, 3.10, 4.1, 5.4, 5.10, 8.4(c), and 8.4(e) of the
Agreement (as amended) shall apply to Commercial Products and Future Versions in
the same manner that they apply to Resale Products.
7. Sections 5.10, 8.4, 10.1, 10.4, 12.1(a), 12.2, 12.3, 12.4, 13.3 (c),
and 15.10 of the Agreement shall apply to the Commercial Products and Future
Versions in the same manner that they apply to Licensed Software.
8. Subsection 2.4 of the Agreement (as amended) is deleted in its
entirety and replaced with the following:
"2.4 Delivery and Acceptance of Commercial Products and Future
Versions. Compaq acknowledges that each of the Commercial Products on
Exhibit H are hereby accepted for resale by Compaq. In the event that
Future Versions are offered for resale under this Agreement, each of
the new Future Versions shall be subject to the following acceptance
procedure. When Altiris believes that a Future Version is ready for
acceptance testing, a copy thereof shall be delivered to Compaq.
Compaq shall install the Future Version at its site for acceptance
testing. The acceptance testing period will be 30 days, beginning on
the date of delivery of the Future Version to Compaq. Compaq shall,
without undue delay, test each Future Version to see that it (i)
conforms with the specifications in the documentation provided with
the software, and (ii) operates on any Compaq platform that is
generally available by Compaq or that has been made generally
available during a 36 month period preceding the date the Future
Version is delivered to Compaq for testing ("Testing Criteria"). If
the testing does not reveal any material noncompliance with the
Testing Criteria, Compaq shall accept the Future Version and give
notice to Altiris that such Future Version is accepted and ready for
distribution by Compaq. Acceptance shall not be unreasonably withheld
or delayed by Compaq. If the testing reveals that the Future Version
does not conform in any material respect to the Testing Criteria, then
Compaq may either accept it "as is" or reject it. If it is accepted
"as is" Altiris will agree to consult with Compaq and make reasonable
commercial efforts to revise it and submit it for retesting to Compaq
in Altiris' normal course of business and in keeping with Altiris'
product development timelines. [*]. Compaq may forego testing any
Future Version by giving Altiris written notice of Compaq's acceptance
of such Future Version. Compaq will not make any use of a Future
Version for any purpose other than testing as set forth above until
after Compaq has accepted the Future Version. Compaq and its
Subsidiaries shall not distribute or resell any Future Version until
after acceptance."
_______________________
*This provision is the subject of a Confidential Treatment Request.
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COMPAQ/ALTIRIS CONFIDENTIAL
9. A new subsection 9.9 as follows is added:
[*]
Except as set forth herein, all other provisions of the Agreement, as
amended, remain in full force and effect. In the event of any conflict
between this Amendment 3 and the original Agreement, as amended, this
Amendment shall govern.
_____________________
*This provision is the subject of a Confidential Treatment Request.
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COMPAQ/ALTIRIS CONFIDENTIAL
IN WITNESS WHEREOF, the Parties hereto have duly executed this Amendment
by their respective duly authorized representatives to be effective as of
the Effective Date.
COMPAQ COMPUTER CORPORATION ALTIRIS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior V. P. and G. M. ABG Title: Chief Executive Officer
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COMPAQ/ALTIRIS CONFIDENTIAL
EXHIBIT H
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Altiris eXpress Suites
Client Mgmt Suite
Problem Mgmt Suite
Asset Mgmt Suite - IT Assets
Asset Mgmt Suite - Fixed Assets
Altiris eXpress Solutions
Deployment Solution - Clients
Inventory Solution
UNIX Inventory Solution
UNIX SW Delivery Solution
Helpdesk Solution
Carbon Copy Solution
Altiris eXpress SMS Add-ons
Mobile Client for SMS
UNIX Client for SMS
Web Admin for SMS
Helpdesk for SMS
Altiris Enterprise Tools
Compliance Toolkit
PC Transplant Pro
Notification Server
Migration Toolkit
Altiris Vision Corporate
Altiris Consumer Products
Altiris Carbon Copy (Consumer)
Altiris Academic Products
Deployment Solution - Clients (formerly LabExpert)
Altiris Vision
Inventory Solution
Education Mgmt Suite
Lab Mgmt Suite
Altiris Vision
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