CONFIDENTIAL
TREATMENT
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omitted which is the subject of a confidential treatment request.
This text has been separately filed with the SEC.
EXHIBIT 10.26
ADDENDUM ELEVEN
TO THE
SOFTWARE LICENSE AGREEMENT
BETWEEN
DELL PRODUCTS, LP
AND
COMMVAULT SYSTEMS, INC.
This Addendum Eleven
(“Addendum”) to the Software License Agreement dated
December 17, 2003 (the “Agreement”) is entered
into by and between Dell Global BV (Singapore Branch) incorporated
in The Netherlands with limited liability, operating through its
Singapore branch on behalf of itself and the subsidiaries and
affiliates of Dell Inc. (hereinafter “Dell”), and
CommVault Systems, Inc., (hereinafter “CommVault”), a
Delaware corporation having a principal place of business at 2
Crescent Place, Oceanport, New Jersey 07757 (hereinafter
“Licensor”) and is effective as of the 9th day of
April, 2009 (the “Effective Date”).
RECITALS
WHEREAS, CommVault and Dell entered
into the Agreement through which CommVault granted Dell various
rights to distribute certain CommVault software
products;
WHEREAS, CommVault and Dell wish to
amend the Agreement and replace all Pricing Supplements, as set
forth in Addendum #10 dated October 1, 2008 and also wish
to modify the rebate and MDF provisions set forth in
Addendum #9 dated September 1, 2008.
NOW THEREFORE, in consideration of
the mutual covenants and promises set forth herein and for other
good and valuable consideration, the receipt of which both parties
hereby acknowledge, Dell and CommVault agree as follows:
The rebate and MDF terms introduced
in Addendum #9, and the pricing terms introduced in
Addendum #10, shall be deleted in their entirety and replaced
with the following:
1. Quarterly
Rebate.
For Licensed Products
distributed by Dell (with the exception of [***] for which rebates
provided for herein shall not apply), Dell shall earn a rebate
equal to [***] (“Rebate Percentage”) of the aggregate
quarterly royalties paid by Dell, as reported on the royalty
report. For the purposes of clarification, the royalties due per
copy of the Licensed Product shipped are as shown in the
“Total” column (column E) in Exhibit A
attached hereto. Dell shall have the right to deduct the aggregate
quarterly rebate amount due to Dell from Dell’s quarterly
royalty payment to CommVault. For clarification, Volume Purchase
Agreement (“VPA”) and Enterprise License Agreement
(“ELA”) transactions are excluded from the definition
of Licensed Products for the purposes of the Rebate Percentage
only.
2. Quarterly
MDF
For all Licensed
Products distributed by Dell, Dell shall earn MDF equal to [***]
(“MDF Percentage”) of the aggregate quarterly software
royalties paid by Dell, (column C of Exhibit A) as
reported on the royalty report. For clarification, VPA and ELA
transactions are excluded from the definition of Licensed Products
for the purposes of the MDF Percentage only.
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CONFIDENTIAL
TREATMENT
[***] Indicates that text has been
omitted which is the subject of a confidential treatment request.
This text has been separately filed with the SEC.
2.1 Terms and
conditions of MDF
i. Licensor will
provide the MDF in the form of reimbursement for specific,
identifiable and mutually agreed marketing expenses incurred by
Dell and/or Licensor.
ii. The parties
shall meet quarterly to determine the subsequent period marketing
activities to which the Quarterly MDF shall be applied
(“Reimbursable Activities”). The MDF may only be
applied to Reimbursable Activities approved by Licensor.
iii. Dell will
provide backup documentation supporting its pay