Software License Agreement

INDICATES THAT TEXT HAS BEEN OMITTED WHICH IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. THIS TEXT HAS BEEN FILED SEPARATELY WITH THE SEC.


EXHIBIT 10.18


SOFTWARE LICENSING AGREEMENT


THIS SOFTWARE LICENSE AGREEMENT is entered into as of this 17th day of December, 2003 (hereinafter "Effective Date") by and between Dell Products L.P. (hereinafter "Dell") with its principal place of business at One Dell Way, Round Rock, Texas 78682, and CommVault Systems, Inc., a Delaware corporation having a principal place of business at 2 Crescent Place, Oceanport, New Jersey 07757 (hereinafter "Licensor").


1.0 DEFINITIONS


1.1 AGREEMENT shall mean this Software License Agreement and its Supplement.


1.2 LICENSED PRODUCT(S) shall mean: (i) the software in object code form and
documentation listed in the Supplement to this Software License Agreement
and (ii) all improvements, corrections, modifications, alterations,
revisions, extensions, upgrades, national language versions and/or
enhancements to the software in object code form and/or documentation made
during the term of this Agreement (hereinafter "Updates").


1.3 SUPPLEMENT shall mean the supplement executed under this Software License
Agreement. The supplement shall describe the Licensed Product(s) and may
include additional terms and conditions such as compensation, delivery
schedules, technical contacts and other information related to the Licensed
Product(s). The terms and conditions of this Software License Agreement
shall apply to the Supplement.


2.0 OBJECT CODE LICENSE


2.1 Licensor hereby grants to Dell a non-exclusive, worldwide, and, subject to
Section 9, below, irrevocable right and license, under all copyrights,
patents, patent applications, trade secrets and other necessary
intellectual property rights, to: (i) use, make, execute, reproduce,
display, perform, the Licensed Product(s), in object code form, (ii)
distribute and license, the Licensed Product(s), in object code form, as
part of, in conjunction with, or for use with, Dell systems and (iii)
authorize, and license third parties to do any, some or all of the
foregoing. Dell shall have the option to distribute the Licensed Product(s)
to end users pursuant to Licensor's end user license agreement


2.2 The above grant includes, without limitation, the right and license to: (i)
use Licensor's trade names, product names and trademarks (the "Trademarks")
in connection with the marketing and distribution of Licensed Product(s)
and (ii) all pictorial, graphic and audio visual works including icons,
screens and characters created as a result of execution of the Licensed
Product(s). Dell's use of the Trademarks shall be in accordance with
applicable trademark law. Dell agrees to consistently identify the
Trademarks as being the property of Licensor. Dell agrees that the
Trademarks are and will remain the sole property of Licensor and agrees not
to do anything inconsistent with that ownership. Dell shall (a) comply with
any requirements established by Licensor concerning the style, design,
display and use of the Trademarks, (b) correctly use the "(R)" registration
and "(TM)" symbols, (c) use the Trademark solely in connection with the
appropriate products, (d) promptly inform Licensor of the use of any marks
similar to the Trademarks and any potential infringements of the Trademarks
which comes to Dell's attention, and (e) not misuse the Trademarks or
engage in any unlawful activity in any way related to the use of the
Trademarks. Dell will indemnify, defend and hold harmless Licensor and its
officers, directors, employees and agents from and against any and all
liabilities, losses, damages, claims, costs and expenses (including without
limitation, reasonable attorney's fees and expenses) arising out of (i)
misuse of the Trademarks, (ii) any statements or representations made to
any person or entity by the Dell or its agents concerning the Products and
(iii) any other negligent, reckless or wrongful conduct of the Dell or its
agents arising in connection with its activities related to this Agreement
or the Products. All sales and promotions materials (including, without
limitation, labels, stickers, packaging or software documentation) which
include any Trademark shall be subject to the advance review and approval
of Licensor; it being understood that once Licensor has approved any
particular use, Licensor need not approve any additional use which is
substantially the same as that which has been previously approved, provided
such future use complies with the foregoing obligations regarding Trademark
usage. When requested, Dell shall send samples of advertising and
promotional materials bearing any Trademark, samples of any goods bearing
or sold under any Trademark, and any other documentation which may permit
Licensor to determine whether the Trademark uses conform to the
requirements of this Agreement..


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2.3 Licensor hereby grants to Dell a non-exclusive, worldwide, and, subject to
Section 9, below irrevocable right and license, under all copyrights,
patents, patent applications, trade secrets and other necessary
intellectual property rights, to internally: (i) use, execute, reproduce,
display, perform, and distribute the Licensed Product(s), for the purposes
of enabling Dell to maintain, service and manufacture the Licensed
Product(s) and (ii) authorize, and license third parties to do any, some or
all of the foregoing on Dell's behalf.


3.0 COMPENSATION; PER COPY ROYALTIES, SUPPORT PRICING, AND MAINTENANCE PRICING


3.1 Dell will pay Licensor a per copy royalty as set forth in the Pricing
Supplement for each copy of the Licensed Product(s) distributed by Dell for
revenue. No per copy royalties shall be due for copies of the Licensed
Product(s): (i) used or distributed for demonstration, marketing or
training purposes, (ii) distributed to a customer as a replacement for a
defective copy or to fix an error, (iii) used to repair or maintain a
customer's system, (iv) held for backup or archival purposes, (v) returned
by a customer, (vi) used for manufacturing or testing purposes or (vii)
distributed to an existing customers as an upgrade to their existing copy
of the Licensed Product(s).


3.2 Unless provided otherwise in a Schedule, all prices will be in U.S. dollars
and are exclusive of applicable value, added, sales, use, excise, or
similar taxes for which Dell shall be obligated to pay licensor. Dell will
have no liability for any taxes based on Licensor's net assets or income or
for which Dell has an appropriate resale or other exemption. Licensor shall
be the importer of record for VAT/GST purposes (applicable in the country
of incorporation). All payments shall be made in United States currency.
Licensor acknowledges that there is no minimum aggregate royalty due under
this Agreement and that any royalties received will be based solely on the
criteria set forth above. Licensor acknowledges and agrees that Dell has
the right to withhold any applicable taxes from any royalties due under
this Agreement if required by any government agency.


3.3 Dell shall pay Licensor the amounts set forth in the Pricing Supplement
during the term of this Agreement and for so long thereafter as Licensor
has any obligations under Exhibit C ("Support") or to provide maintenance
as described in Section 4.2 below.


4.0 SUPPORT, TRAINING AND MAINTENANCE


4.1 Licensor shall, at its expense, train Dell personnel to set up, install,
configure and operate the Licensed Product(s) and provide such other
training to assist and enable Dell to fully perform and exercise its rights
under this Agreement. Such training shall be completed thirty (30) days
prior to Dell's commercial introduction of the Licensed Product(s).
Thereafter, further training of additional Dell personnel will be conducted
by the Dell personnel previously trained by Licensor. Additional training
periods for Updates, if any shall also be provided at Licensor's expense
and within a mutually agreed upon time period.


4.2 During the term of this Agreement, and for a period of up to three years
after the termination of the Agreement, as long as Dell has not breached
this Agreement, Licensor shall, provide Dell with all maintenance releases
generally made available by Licensor to licensees of the Licensed
Product(s).


4.3 During the term of this Agreement, and for a period of up to three years
after the termination of the Agreement, as long as Dell has not breached
this Agreement, the parties shall provide and comply with the Support
obligations set forth in Exhibit C.,


5.0 END USER LICENSE
Dell acknowledges that all software sold separately or with hardware and
obtained by Dell from Licensor is proprietary to Licensor and its licensors
and is subject to patents and/or copyrights owned by Licensor and/or its
licensors. Any references to "purchases" of software and Products
containing software products signify only the purchase of a license to use
the software in question pursuant to the terms of the Licensor's then
current applicable end user license agreement, as provided to Dell,, a copy
of which Licensor has and will have included with the Products and which is
incorporated herein in its entirety by this reference for the term of this
Agreement. Notwithstanding anything to the contrary contained herein, Dell
agrees to be bound by all of the terms of such end


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user license agreement and agrees that it will acquire no rights with
respect to such software Product other than the right to use such software
pursuant to the terms of such software license agreement.


6.0 REPRESENTATIONS AND WARRANTIES


On an ongoing basis, Licensor represents and warrants that:


(a) the Licensed Product(s) will operate in accordance with its written
specifications;


(b) Licensor has all the necessary rights, titles and interests in the
Licensed Product(s) to grant Dell the rights and licenses contained in
this Agreement;


(c) the Licensed Product(s) shall not infringe any copyright, patent,
trade secret or any other intellectual property rights or similar
rights of any third party;


(d) the Licensed Product(s) does not contain any known viruses,
expiration, time-sensitive devices or other harmful code that would
inhibit the end user's use of the Licensed Product(s) or Dell system;


(e) Licensor and the Licensed Product(s) comply with all governmental
laws, statutes, ordinances, administrative orders, rules and
regulations and that Licensor has procured all necessary licensees and
paid all fees and other charges required so that Dell can exercise the
rights and license granted under this Agreement;


(f) Licensor has a proprietary and invention assignment agreement for
employees which provides for a waiver or agreement not to assert any
rights in the Licensed Product(s)


(g) There is no restriction of any relevant governmental authority which
prohibits the export of the Licensed Product(s) to countries outside
the United States and Canada, other than those laws of the United
States which prohibit exports generally , as may be modified from time
to time, including without limitation, to Libya, Cuba, North Korea,
Syria, Sudan, Iran and Iraq; and


(h) Licensor has and will continue to comply with all applicable
governmental laws, statutes, rules and regulations including, but not
limited to, those related to export of product and technical data, and
Licensor agrees that for any updates, upgrades and new products which
are licensed to Dell pursuant to the terms of this Agreement, Licensor
shall provide prior written notice of any facts which would make the
foregoing representations untrue.


(i) Either (i) the Licensed Product(s) are not encrypted, nor do they
contain encryption capability; or (ii) if the Licensed Product(s) does
contain encryption capabilities, Licensor agrees to adhere to the
requirements described in Exhibit A.


In addition to Licensor's end user license agreement, Licensor hereby makes the following additional ongoing representations and warranties:


(l) Licensor will warrant the Licensed Product(s) directly to the end-user
in accordance with the terms and conditions set forth in Licensor's
end-user license agreement; and


(m) Licensor has agreed to honor all replacement requests received from
Dell or end users under the terms of Licensors end user license ...