EXHIBIT 10
COMPUTER ASSOCIATES Software superior by design.
Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, NY 11788-7000
1-516-DIAL CAI (342-5224)
FAX 1-516-DIAL FAX (342-5329)
Monday, June 30, 1997
Mr. Marty Kittrell
Vice President and Chief Financial Officer
Exide Electronics
8609 Six Forks Road
Raleigh, North Carolina 27615
Dear Marty:
This letter, when executed and returned by you to CA, will incorporate the
attached license agreement between Exide Electronics and Computer Associates
International, Inc. with an effective Date of June 30, 1997.
* CA will resell Exide's Forseer Technology/Agents and remit to Exide a 17.5%
royalty rate on the actual gross sales of the Forseer Technology/Agents to
CA's client;
* CA will implement a seperate product code for Exide's Forseer Technology/
Agents to facilitate the tracking of Gross Sales.
* CA will commit to $20,000,000 worth of Forseer Technology/Agent royalties,
payable as follows:
$10,000,000 due June 30, 1997
$5,000,000 due June 30, 1998
$5,000,000 due June 30, 1999
All of the above financial commitments will be non-contingent and will be due
and payable by both parties. Please sign your concurrence below to this
Agreement.
Very Truly Yours' Accepted By Exide Electronics
/s/RICHARD P.CHIARELLO /s/MARTY KITTRELL
Richard P. Chiarello Marty Kittrell
Senior Vice President, Vice President & Chief
North American Sales Financial Officer
Computer Associates International, Inc. Exide Electronics
)
Exide Electronics Source License Agreement
Licensee's Name Computer Associates International
Licensee's Address One Computer Associates Plaza - Islandia, NY 11788-7000
Date 6/30/97
Exide Software License Agreement No. MKM -047-DTX
Exide Electronics grants to Licensee only, and not to any parent, subsidiary, or
affiliate of Licensee, and Licensee accepts a nonexclusive, nontransferable
license to use the Source Code for the Licensed Programs identified on Exhibit
"A", only under the following terms and conditions:
1.0 DEFINITIONS
1.1 "Derivative Work" means a software program, in object code, developed by
Licensee which incorporates portions of Licensed Programs through compiling
and/or linking Exide Electronics - provided code with Licensee's code.
1.2 "Licensed Program" means the software object programs for which Source Code
is obtained.
1.3 "Source Code" means the source code for the Licensed Programs identified on
Exhibit "A" and which consists of the material listed on Exhibit "A"
supplied to Licensee by Exide Electronics
2.0 RIGHTS AND CONDITIONS
2.1 Licensee may use Source Code at Licensee's development locations and will
exercise the same methods and process used to protect the Licensee's own
source code developments and products.
2.2 Licensee may modify Source Code and merge portions of the Source Code into
Licensees' program material for its own use. Programs which incorporate
portions of Source Code are Derivative Source Programs. Object Code
generated from Derivative Source Programs is a Derivative Work.
2.3 Licensee shall keep accurate records of the number of Derivative Works on
the number of Derivative Works distributed.
3.0 NOTICES
3.1 All notices and requires under this Agreement shall be in writing, shall
reference this Agreement and shall be deemed given upon delivery,
registered receipt requested, to the addresses listed below, which may be
modified upon written request.
Notices to Exide Electronics sent to: Notices to Licensee shall be sent to:
Exide Electronics _SVP North American Sales___________
8609 Six Forks Road ____________________________________
Raleigh, North Carolina 27615 _(Address Above)____________________
Attn: Contract Management ____________________________________
4.0 DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
4.1 EXIDE ELECTRONICS MAKES NO WARRANTY OF ANY KIND WITH REGARD TO SOURCE
CODE. SOURCE CODE IS LICENSED ON AN "AS IS" BASIS. EXIDE ELECTRONICS
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS OF A PARTICULAR PURPOSE.
5.0 PROTECTION AND SECURITY
5.1 Licensee acknowledge that Exide Electronics considers Source Code a trade
secret. Licensee shall not make Source Code or Derivative Programs
available in whole or in part or in any form, to any person other than
Licensee's employees who are designated to work on Licensee's development
effort and who have a specific need for access to Source Code. Licensee
agrees to instruct each such employee of his or her obligations with
respect use, copying, protection, and security of Source Code.
Notwithstanding the earlier termination of this Agreement, the obligations
of this paragraph are to remain in effect until such time as Source Code
becomes publicly known, through no act or failure to act on Licensee's
part.
5.2 Each Licensed Program is copyrighted. Licensee shall include the
appropriate copyright notice on all copies, partial copies, Derivative
Works and their media. Licensee shall use its best efforts to prevent any
violation of these copyrights.
6.0 ASSIGNMENT, SALE OR TRANSFER
6.1 Licensee may not assign, sublicense, or otherwise transfer this Agreement
or any right or obligation hereunder without Exide Electronics written
consent.
7.0 REPRESENTATIONS AND WARRANTIES
7.1 Exide Electronics warrants that it has the right to grant the licenses and
rights granted in this Agreement and it is under no obligation or
restriction, nor will it assume any obligation or restriction, which would
in any way interfere with, be inconsistent with or present a conflict of
interest concerning Exide Electronics obligations under this Agreement.
7.2 Exide Electronics warrants that the Products do not infringe any
intellectual property rights under any patent, copyright or trademark or
other intellectual property right in the territory and that the exercise by
Licensee and it distributors of the rights granted under this Agreement
shall not infringe on any patent, copyright, trademark or other
intellectual property right of any third party. Supplier further represents
that except as disclosed to Licensee in writing, the Product is original
work of Exide Electronics, does not incorporate any third party products or
code and Exide Electronics is under no royalty obligation to any third
party relating to the Product or Licensee's exercise of it rights under
this Agreement.
7.3 Exide warrants that the product (including all new releases and updates
thereto) will operate substantially in accordance with its functional
specification and published documentation. Should the Product not operate
in the prescribed manner then Exide Electronics shall use its best efforts
to ensure that it does so in as short a time as is possible. Exide
Electronics shall not include any authorizations strings, "time bombs",
license managers or other devices in the Product unless such devices are
specifically disclosed to and accepted by Licensee in writing.
7.4 Exide Electronics represents and warrants that it has or will obtain
appropriate insurance coverage in accordance with generally accepted
commercial practices, covering risk, loss due to errors or omissions in the
Products, as well as general liability. Exide Electronics agrees to notify
Licensee of any significant changes in such policy and agrees to provide
Licensee, upon Licensee's request, copies of the relevant certificates of
insurance pertaining to such insurance.
8.0 INDEMNITY
8.1 Exide Electronics shall fully indemnify Licensee and its distributors
against any and all loss, costs, expenses and liability in connection with,
and defend Licensee and its distributors against any claims (i) that the
product infringes any copyright, patents trademarks, trade secrets or other
intellectual property right of third parties (ii) which result from a
breach of the warranties set forth above in Section 7; or (iii) which is
based on a failure of Exide Electronics to perform its maintenance and
support obligations set forth herein; provided that:
(a) Exide Electronics is given prompt written notice of such claim and
its details by Licensee;
(b) Exide Electronics may, upon Licensee's written consent (which
shall not be unreasonably withheld) have the opportunity of sole
conduct and control of the claim's settlement or compromise.
(c) Licensee shall give Exide Electronics all reasonable assistance in
connection therewith at Exide Electronics expense.
(d) Such infringement is not caused by or contributed to by acts of
Licensee or its Distributors other than use and distribution of
the Product in accordance with this agreement.
8.2 Exide Electronics shall also fully indemnify Licensee against any and all
actual costs, expenses and liability incurred in connection with any
computer software virus introduced to Licensee or its Distributors or
customers via the Product, if the introduction of such virus is the result
of negligence on part of Exide Electronics.
9.0 BREACH AND TERMINATION
9.1 If Licensee breaches any term of this Agreement, or if Licensee becomes
insolvent or if bankruptcy or receivership proceedings are initiated by or
against Licensee, Exide shall have the right to terminate this Agreement
immediately, and in addition to all other rights of Exide Electronics, all
amounts which would have become due and payable under this agreement will
immediately become due and payable to Exide Electronics.
9.2 Upon termination of this agreement, Licensee shall either return or destroy
source code obtained for this agreement and may not include source code in
any new developments or derivative programs. Licensee may retain any source
code and use any and all derivative works necessary to support existing
customers already using derivative works for a period of five (5) years
following such termination.
10.0 OWNERSHIP OF SOURCE CODE
10.1 Source Code, Derivative Source Code, Derivative Works and all copies, in
whole or in part, are and shall remain the property of Exide Electronics.
This agreement grants no rights other than those set forth herein.
11.0 GENERAL
11.1 This Agreement shall be governed by the laws of the State of North
Carolina.
AGREED:
Exide Electronics Licensee
/s/MARTY KITTRELL /s/RICHARD P. CHIARELLO
Signature Signature
Marty Kittrell Richard P. Chiarello
Printed Name Printed Name
Vice President & Chief Senior Vice President and General
Financial Officer Manager
Title Title
June 30, 1997 June 30, 1997
- ---------------------------------- -----------------------------------
Date Date
Appendix A
Source Code for the following product(s):
DataTrax Systems Foreseer Enterprise Management Software for foundation
equipment
Current Release: Release 1.4 - June 26, 1997