exv10w25






EXHIBIT 10.25




DIRECT SUPPLIER AGREEMENT




This Direct Supplier Agreement by and between COMMVAULT SYSTEMS, INC., a Delaware corporation
located at 2 Crescent Place, Oceanport, NJ 07757, on behalf of itself and its worldwide affiliates
and subsidiaries (collectively “Provider”) and Dell Products L.P., a Texas limited partnership
located at One Dell Way, Round Rock, Texas 78682, on behalf of its worldwide affiliates and
subsidiaries, is effective as of the 2 day of August, 2008 (“Effective Date”).




1.0 Agreement Structure.



1.1 This Direct Supplier Agreement (“DSA”), together with all schedules (“Schedules”) and Dell
Orders (“Dell DO(s)”) shall be collectively referred to as the “Agreement.” The Agreement merges
all prior discussions, both oral and written, between the parties related to the subject matter of
the Agreement.



1.2 The Agreement constitutes the only terms and conditions under which Dell Products L.P. and its
worldwide subsidiaries and affiliates including, but not limited to, Dell Inc. and all subsidiaries
of Dell Inc., (collectively, “Dell”) will: (i) resell standalone software (collectively “Software”)
to end user customers subject to the terms of the Provider’s end user license and limited warranty
agreement (“EULA”) and (ii) resell maintenance and support services and professional services
including, but not limited to, any software, documentation or other items provided during the
course of providing the services (collectively “Services”) subject to the terms of the attached
First Addendum. All Dell entities will have the benefits, rights and remedies set forth in this
Agreement and may enforce any such benefit, right and remedy. The parties acknowledge that the
Software and Services acquired hereunder are for ultimate re-sale to Dell’s customers. Provider
grants to Dell the right to market, resell and distribute the Software and Services, and to use
Provider’s trademarks, tradenames and service marks in connection with the advertisement, promotion
and sale of the Software and Services.



1.3 The terms and conditions of the DSA apply to all Schedules and Dell DO(s) issued by Dell for
the purchase and/or licensing of Software and Services. Provider shall not provide Dell with any
Software and Services and Dell shall not be obligated to pay for any Software and Services unless
Dell has issued a Dell DO(s) for the applicable Software and Services.



1.4 Unless expressly stated otherwise in a Schedule and/or a Dell DO, in the event of conflict
between the DSA and any Schedule and/or Dell DO, the order of precedence shall be as follows: (i)
the DSA, (ii) the Schedule and then (iii) the Dell DO. No pre-printed terms on any Dell DO shall
apply.



1.5 When a Dell entity desires to resell Software or Services, the parties will execute a
Software Schedule and/or Services Schedule, as applicable. Once the applicable Schedule is
executed, any Dell entity may subsequently issue a Dell DO to purchase and/or license the Software
and Services described in the applicable Schedule. For purchases and/or licensing of Deliverables
outside of the United States, the Dell DO(s) will be issued by the applicable local Dell entity to
Provider, or to such other Provider affiliated entity designated by Provider. All Dell DO(s) will
be governed by the terms and conditions of the DSA and the applicable Schedule and collectively
shall be deemed a separate agreement between the applicable Dell entity and Provider entity. Both
parties acknowledge that the Software may be subject to United States export controls pursuant to
the Export Administration Regulations, and that both parties shall be responsible for complying
with all applicable rules and regulations.



1.6 Prices. Software and Services shall be purchased as set forth in Provider’s then current list
price, which shall be provided to Dell from time to time. Provider shall honor quotes issued by
Dell to customers thirty (30) days prior to any price changes for a period of thirty (30) days from
the date of the quote.



1.7 Title in the physical media on which the Software are stored will pass once the Software has
been delivered to the nominated carrier of the Software for delivery. All Product sales are final,
there are no rights of return or refund. Provider shall replace damaged media at no charge. There
are no acceptance provisions applicable to the Software.



2.0 Term and Termination.



2.1 Subject to the termination provisions in this DSA, the initial term of this DSA is for three
(3) years beginning on the Effective Date. This DSA will automatically renew for additional,
successive, one-year terms unless a party provides written notice of non-renewal to the other party
at least one hundred and eighty (180) days before the end of the then current term.



2.2 Either party may terminate the DSA including, but not limited to, any Dell DO and/or Schedule,
for cause in the event of a material breach by the other party if such breach is not cured within
thirty (30) days of receipt of written notice.



2.3 In addition, either party may terminate this DSA including, but not limited to, any Dell DO
and/or Schedule or any portion thereof, at any time without cause for its convenience upon ninety
(90) days written notice, provided however, that Provider agrees to continue to provide Software
and Services to Dell under the terms of this Agreement in order to allow Dell to fulfill any
outstanding orders or quotes existing on the date of termination pursuant to this section.



					
	 	 	 	 	 
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3.0 Warranty.



Provider represents and warrants that:



(a) All Software will substantially conform to Provider’s published specifications and
documentation for a period of ninety (90) days from the date of shipment. Software shall not
contain any time-sensitive code or other remote disabling devices which have potential or
capability of causing any unplanned interruption of the operations of the Software, and the parties
acknowledge that the license key controls currently contained in the Software do not violate this
provision. Provider shall run a commercially available anti-virus program on the Software prior to
shipping and Software shall be delivered virus free. In the event Software contains a virus,
Provider’s sole liability and obligation will be to replace the Software. To the knowledge of
Provider, Provider has not utilized open source software in such a manner as to require the
software to be (i) disclosed in source code form; (ii) licensed for the purpose of making a
derivative work; or (iii) redistributable at no charge.



(b) All Services will be performed in good and workmanlike manner by a skilled and qualified staff
in accordance with industry standards and Provider’s then current policies subject to the terms of
the attached First Addendum.



(c) To the best of its knowledge, it has all the rights and licenses in the Software and Services
necessary to allow Dell to market or resell such Software and Services without restriction or
additional charge as intended.



(d) To the best of Provider’s knowledge, the execution of this Agreement by Provider, to allow
Dell to market and/or resell the Software and Services, does not violate any applicable laws,
rules, ordinances or regulations (including without limitation all applicable import or export
regulations) in any jurisdiction where the Software or Services are intended to be used, and
Provider shall comply, in all material respects, with applicable laws, in the performance of its
obligations hereunder.



(e) To the extent that the Software and Services are resold or licensed to Dell’s customers under
Providers end user terms and condition, Provider shall comply with all of its obligations to the
customer as set forth in such Provider agreement. Provider will be responsible for any
representations, warranties or covenants it makes to Dell’s customers as well as compliance with
Provider’s published policies.



4.0 Indemnification.



4.1 Provider will defend, indemnify, and hold harmless Dell and their respective directors,
officers, employees, representatives, and agents (collectively “Indemnitees”) from and
against any and all claims, actions, demands, and legal proceedings (collectively “Claims”) and all
liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses
including, without limitation, reasonable attorneys’ fees (collectively “Damages”), to the
extent arising out of or in connection with: (a) any alleged or actual acts or omissions of
Provider or failure of Provider to perform or comply with the terms and conditions of the
Agreement; (b) any alleged or actual infringement and/or misappropriation by Provider and/or the
Software, either alone or in combination with other hardware or software as set forth in Provider’s
documentation supplied with the Software or Services of any copyright, patent, trademark, trade
secret or other proprietary or intellectual property right of any third party; (b) any Claim that
Provider and/or the Software provided under the Agreement have caused bodily injury including,
without limitation, death or has damaged real or tangible personal property; (d) violation by
Provider and/or the Deliverables of any governmental laws, rules, ordinances, or regulations;
and/or (e) any Claim by or on behalf of Provider’s subcontractors, suppliers, or employees for
salary, wages, benefits or other compensation.



4.2 Dell shall be solely responsible for, and shall indemnify and hold Provider harmless from, any
claims based upon warranties, guarantees or representations made by Dell or Dell’s employees, or
agents which differ from those made by Provider in its end user license agreement.



4.3 In addition to Provider’s obligations and liabilities above, if an infringement claim is made
or appears likely to be made about the Software, Provider shall, at its option, either: procure for
Dell the right to continue to exercise its rights under the Agreement with respect to the
applicable Software; modify the Software so that they are no longer infringing; or replace them
with non-infringing Software. If none of these alternatives is, in Provider’s determination,
commercially reasonable, Dell shall, and shall cause any Indemnitee to, cease its distribution of
any affected Software or return, redact or destroy any affected Software in its possession, for a
pro rata refund of the purchase price of the Software, based on a five (5) year straight line
amortized basis. Provider shall have no obligation to indemnify any Indemnitee if any claim is
based on Dell’s continued distribution of the Software or Services after receipt of written notice
from Provider to cease such distribution, or any unauthorized modifications made to the Software by
any Indemnitee.


4.4 In the event of any Claims, Dell will: (a) promptly notify Provider, (b) at Provider’s expense,
reasonably cooperate with Provider in the defense thereof, and (c) not settle any such Claims
without Provider’s consent which Provider agrees not to unreasonably withhold. Provider will keep
Dell informed at all times as to the status of Provider’s efforts and consult with Dell (or Dell’s
counsel) concerning Provider’s efforts; and Provider will not obligate to Dell to take any action
without Dell’s prior written consent, such consent not to be unreasonably withheld.



4.5. In the event of a recall or withdrawal of the Software from the market by Provider
(collectively, a



					
	 	 	 	 	 
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“Recall Event”), Provider will defend, indemnify and hold harmless the Indemnities as set forth
above in this Section 4.0 for all claims to the extent related to the Recall Event, and shall pay
and/or reimburse Dell for reasonable costs and expenses of notifying customers of said Recall
Event. Provider will, at its discretion, either replace the recalled Software with conforming
Software free of charge, or in lieu of replacement, Provider will refund the purchase price of such
Software on a pro rata basis over a five (5) year useful life.



5.0 Limitation of Liability.



EXCEPT FOR PROVIDER’S OBLIGATIONS UNDER SECTION 7.3 (“CONFIDENTIALITY”), NEITHER PARTY WILL BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE
PRODUCTS OR SERVICES AND LOST SALES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT EVEN IF
ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A PARTY ASSERTS OR ESTABLISHES A
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT.EXCEPT FOR
PROVIDER’S OBLIGATIONS AND LIABILITIES UNDER SECTION 4.1 AND DELL’S OBLIGATIONS AND LIABILITIES
UNDER SECTION 4.2 (“INDEMNIFICATION”), THE AGGREGATE LIABILITY OF EITHER PARTY SHALL BE LIMITED TO
THE LESSER OF THE AMOUNT PAID OR PAYABLE BY DELL FOR THE SOFTWARE UNDER THIS AGREEMENT OR TEN
MILLION ($10,000,000) DOLLARS.



6.0 Regulatory Compliance



6.1 Regulatory Compliance. Dell reserves the right to request that Provider provide reasonably
requested documentation verifying conformance with applicable laws, regulations, rules, standards
and ordinances.



7.0 General.



7.1 This Agreement will be governed by and construed in accordance with the laws of the State of
New York, exclusive of any provisions of the United Nations Convention on the International Sale of
Goods and without regard to principles of conflicts of law.



7.2 Regardless of the circumstances of termination or expiration of the Agreement, or portion
thereof, the provisions of Sections 3 (“Warranty”), 4 (“Indemnification”), 5 (“Limitation of
Liability”), and 7. (“General”) will survive the termination or expiration of the Agreement and
continue according to their terms. All licenses and sublicenses granted to customers and other
licensees under this Agreement shall also survive and expiration or termination of this Agreement.



7.3 Any confidential information disclosed by either party related to this Agreement including, but
not limited to, customer information contained in a Dell DO, is governed by the terms and
conditions of the Non-disclosure Agreement (# 99022507) between Provider and Dell



7.4 Provider will not use the name of Dell nor any Dell trademarks, trade names, service marks, or
quote the opinion of any Dell employee in any advertising, presentations or otherwise without first
obtaining the prior written consent of an officer of Dell. Provider grants Dell a limited license
to use the trademarks, logos, trade names, and service marks associated with the Software and
Services solely in connection with this Agreement. Dell will not be responsible for complying with
Provider’s mark usage requirements unless it has had prior notice of them in writing. All goodwill
generated by such marketing and distribution will inure exclusively to the benefit of Provider.



7.5 Insurance. Supplier will maintain Commercial General Liability insurance with limits for bodily
injury and property damage liability of not less than $10,000,000 each occurrence, $10,000,000
general aggregate and products/completed operations coverage with limits of not less than
$10,000,000 each occurrence, $10,000,000 general aggregate. Such coverage shall include
premises/operations liability, independent contractor’s liability, and broad form contractual
liability specifically in support of, but not limited to, the indemnity provisions set forth in
this Agreement. This policy shall include a waiver of subrogation in favor of Dell; will be
endorsed to include Dell as Additional Insured; will contain cross-liability and severability of
interest coverage.



If the Product is Software, Supplier will maintain a Software Errors and Omissions Policy (E&O),
including coverage for Data, Privacy and Security liability, with limits of not less than
$5,000,000 each occurrence, $5,000,000 general aggregate.



7.6 Dell is an Affirmative Action/Equal Opportunity Employer. Since Dell transacts business with
the United States Government, the Equal Opportunity Clauses at 41 CFR sections 60-1.4(a),
60-250.5(a) and 60-741.5(a) are hereby incorporated and, if applicable, Provider will comply with
FAR 52.212-3, Offer or Representations and Certifications-Commercial Items, and FAR 52-219-8,
Utilization of Small Business Concerns. If subcontractors are engaged to provide any Software and
Services pursuant to the Agreement, Provider will use commercially reasonable efforts to engage
businesses that are, (i) certified as minority or women owned by a third party certification agency
acceptable by Dell, or (ii) small business concerns that are fifty-one percent owned, controlled,
operated and



					
	 	 	 	 	 
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managed by women or members of a minority group including African
Americans, Hispanic Americans, Native Americans, Asian Indian Americans, Asian-Pacific Americans.
Provider must comply with Dell’s Supplier Diversity policies and procedures as well as comply, in a
timely manner, with any reasonable request or requirement from Dell’s Supplier Diversity office.



7.7. Provider agrees to maintain adequate books and records in connection with its activity under
this Agreement. If there is reasonable cause, Dell may audit all relevant books and records of
Provider to confirm compliance with the terms of this Agreement. Any such audit will be conducted
during regular business hours at Provider’s offices and will not interfere unreasonably with
Provider’s business activities. If an audit reveals that Provider has overcharged Dell, Provider
will immediately pay to Dell the overcharged fees or cost. If an audit reveals that the overcharge
was greater than 5% of what Dell should have been charged, then Provider shall also pay to Dell its
reasonable costs for conducting the audit.



7.8 The parties are independent contractors and neither party is an employee, agent, servant,
representative, partner, or joint venturer of the other or has any authority to assume or create
any obligation or liability of any kind on behalf of the other.



7.9 No waiver of any term or condition is valid unless in writing and signed by authorized
representatives of both parties, and will be limited to the specific situation for which it is
given. Use of pre-printed forms, including, but not limited to email, purchase orders, shrink-wrap
or click-wrap agreements, acknowledgements or invoices, is for convenience only and all
pre-printed terms and conditions stated thereon, except as specifically set forth in the Agreement,
are void and of no effect. No amendment or modification to the Agreement will be valid unless set
forth in writing and signed by authorized representatives of both parties. The Agreement may not
be assigned by Provider in whole or in part (except to an affiliate), even by operation of law, in
a merger or stock or asset sale, without the express written permission of Dell, such consent not
to be unreasonably withheld or delayed. Any attempt to do so will be null and void. All prior
agreements related to the subject matter hereof are hereby superseded in their entirety by the
terms of this Agreement, and shall be of no further force and effect.



7.10 Any notice required or permitted by the Agreement must be in writing in English and delivered
by certified or registered mail, return receipt requested, postage prepaid and addressed as follows
or to such other addresses as may be designated by notice from one party to the other, all such
notices being effective on the date received: If to Dell: Dell Products L.P., One Dell
Way, Round Rock, Texas 78682, Attn: VP, General Procurement, cc: General Counsel; and, If to
Provider: CommVault Systems, Inc., 2 Crescent Place, Oceanport, NJ 07757, Attn: VP, Business
Development, cc: General Counsel.



7.11 Whenever possible, each provision of this Agreement will be interpreted in such a manner as to
be effective and valid under applicable law, but if any provision of this Agreement is found to
violate a law, it will be severed from the rest of the Agreement and ignored and a new provision
deemed added to the Agreement to accomplish, to the extent possible, the intent of the parties as
evidenced by the provision so severed. The headings used in the Agreement have no legal effect.



7.12 Nothing in this Agreement requires Dell to purchase from Provider any or all of its
requirements for Software or Services that are the same or similar to the Software and Services
provided hereunder. Provider will cooperate and work with Dell and any other providers that Dell
may engage in connection with the provision of the Software and Services. Dell will have full
freedom and flexibility in its decisions concerning the distribution and marketing of the Software
and Services, or same or similar products purchased from third parties, including without
limitation the decision of whether or not to distribute or discontinue distribution of the Software
and Services. Dell does not guarantee that its marketing, if any, of the Software and Services
will be successful. Dell may distribute and sell the Software and Services on a stand-alone basis
or in conjunction with other offerings.



7.13 Except as may be otherwise provided in the Agreement, the rights or remedies of the parties
hereunder are not exclusive, and either party is entitled alternatively or cumulatively, subject to
the other provisions of the Agreement, to damages for breach, to an order requiring specific
performance, or to any other remedy available at law or in equity. Neither party or its
subsidiaries or affiliates will bring a claim under this Agreement more than two (2) years after
the cause of action arose.



7.14 This Agreement may be signed in original or facsimile counterparts, each of which will be
deemed an original, but which together will constitute one and the same instrument.



7.15 Dell DO(s) issued under the Agreement are placed with the expectation of potential acquisition
of credit for current and anticipated future offset obligations of Dell or their designated
assignees to various governments around the world. Provider will reasonably assist Dell or their
designated assignees in their efforts to secure offset credit from these governments in an amount
equal to the value of the applicable in-country content of the orders placed under the Agreement.



8.0 Payment




8.1 Unless otherwise agreed in a Schedule or Dell DO, all payments must be stated (and payments
made) in United



					
	 	 	 	 	 
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States dollars and are exclusive of applicable sales, use or
similar taxes for which Dell is obligated to pay Provider but are inclusive of all other charges
including any charges for freight, freight insurance, labeling, packing and crating, any finishing
or inspecting fees, any applicable royalties, third party payments, duties and all other taxes.
Dell has no liability for any taxes based on Provider’s assets or income or for which Dell has an
appropriate resale or other exemption. Dell has the right to withhold any applicable taxes from any royalties or other
payments due under the Agreement if required by any government authority. All amounts payable under
the Agreement shall be exclusive of value added tax or analogous taxes (if any) which Dell shall
pay at the rate applicable thereto from time to time. Provider shall provide Dell with a valid
value added tax invoice (applicable in the country of supply). Provider and Dell will cooperate to
ensure so far as possible that the VAT treatment of the Agreement is accepted by the relevant tax
authorities, and will produce all necessary invoices, records and other documentation for this
purpose. Supplier is the importer of record for VAT/GST purposes (applicable in the country of
importation). In addition, upon Dell Products L.P.’s request, Provider shall bill Dell Products
L.P.’s or its specified subsidiaries or affiliates on a regional or local basis.



8.2 All invoices for Software and Services provided to Dell will be accumulated, upon receipt, for
a period from the 16th day of a month to the 15th day of the following month
(“Accumulation Period”). Dell will pay invoices received during the Accumulation Period net 50
days from the end of the Accumulation Period (EOAP 50). No invoice can be dated prior to the date
of shipment. Provider agrees to invoice Dell within thirty (30) days after it has the right to
invoice under the terms of the Agreement. Unless otherwise agreed, Provider will invoice Dell
utilizing electronic data interchange (“EDI”) technology according to Dell specifications. Dell
may offer Provider an accelerated payment option program under mutually acceptable terms.



By signing below, the parties are agreeing to the terms and conditions contained in this
Direct Supplier Agreement.



	 	 	 	 	 	 	 	 	 
	DELL PRODUCTS L.P.	 	COMMVAULT SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	/s/ Joseph Kanicki	 	By:	 	/s/ David R. West	 	 
	
 
	 	
 
	 	 
	Printed Name:
	 	Joseph Kanicki	 	Printed Name:	 	David R. West	 	 
	Title:
	 	Software Manager	 	Title:	 	VP, Marketing & Business Development	 	 






					
	 	 	 	 	 
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