First Amendment to
License, Distribution and Option Agreement
This First
Amendment to License, Distribution and Option Agreement
(“Amendment”) is entered into this 6
th day of January, 2005 (“Amendment Effective
Date”), by and between IXIA, a California corporation doing
business at 26601 West Agoura Road, Calabasas, CA 91302
(“Ixia”), and NETIQ CORPORATION, a Delaware corporation
with its principal place of business at 3553 First Street, San
Jose, California 95134, and its wholly owned subsidiaries
(“NetIQ”), and amends the License, Distribution and
Option Agreement entered into on July 7, 2003, by and between
Ixia and NetIQ (the “Agreement”).
In consideration
of the premises and mutual covenants contained herein, and other
valuable consideration, the parties agree as follows:
For purposes of
this Amendment, capitalized terms set forth in this Amendment shall
have the meanings set forth in the Agreement, unless otherwise
defined in this Amendment.
2. Provision
and Use of Customer Data
Promptly after the
Amendment Effective Date, NetIQ will provide Ixia with the Option
Assets. Ixia acknowledges and agrees that the Option Assets include
information, such as customer and customer support information,
that may be protected by applicable data protection laws in certain
jurisdictions (“Protected Information”). Ixia
acknowledges and agrees that such information is provided to Ixia
in order to assist it with exercising its rights as the sole,
worldwide provider of maintenance and support with respect to the
Chariot Products and making support available for the benefit of
existing Chariot Product customers. Ixia agrees to comply with all
applicable laws, including data protection laws, in connection with
its use and disclosure of any Protected Information on or after the
Amendment Effective Date.
3. Provision
of Maintenance Services
On or before
January 7, 2005, NetIQ will (a) pay to Ixia, by wire
transfer in immediately available funds, all of NetIQ’s
deferred revenues (as of January 1, 2005) related to any
Distribution Product Maintenance (the “Deferred
Revenues”), and (b) provide to Ixia a detailed
accounting for such Deferred Revenues on a customer-by-customer
basis (which accounting will specify the amount of Deferred
Revenues being provided to Ixia per Chariot Product, and
NetIQ’s remaining Distribution Product Maintenance period for
each su
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