Exhibit 4.1
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Software License and Distribution Agreement (this "Agreement") is
entered into as of June 30, 2005 (the "Effective Date") by and between Computer
Associates International, Inc., a Delaware corporation having a place of
business at One Computer Associates Plaza, Islandia, NY 11749 ("CA") and
CaminoSoft Corporation, a California corporation having a place of business at
600 Hampshire Blvd., Suite 105, Westlake Village, CA 91361 ("Supplier").
Whereas, CA wishes to acquire rights to use, market and distribute certain
computer software programs and documentation owned by Supplier (as more fully
defined and described below, the "Product"); and
Whereas, Supplier is willing to grant such rights and licenses and to
perform duties with respect to the Product and CA is willing to accept such
licenses on the terms and conditions of this Agreement.
Now Therefore, the parties intending to be legally bound agree as follows:
ARTICLE I
DEFINITIONS
The following capitalized terms shall have the meaning set forth below for
purposes of this Agreement:
"CA" means Computer Associates International, Inc. and any corporation
which is now or hereafter owned or controlled, directly or indirectly, by
Computer Associates International, Inc.
"Customer" means a customer who orders Product from CA or a Distributor
for end use and not for redistribution.
"Development Project" means the development project to be completed by
Supplier, which is described in Exhibit A, under the heading: "Functional
Specification".
"Distributor" means a company that is authorized by CA or a Distributor to
market, supply, license or distribute the Product pursuant to a written
distribution agreement.
"Documentation" shall mean technical documents provided by the Supplier
generally to its licensees and/or accompanying the Product including functional
specifications and usage instructions.
"Eligible Amounts" shall mean the aggregate license and maintenance fees
received by CA during each calendar quarter pursuant to license agreements
respecting the Product but shall not include amounts collected by CA for
consulting fees, taxes, handling charges, VAT, sales of reference materials and
4
supplies or licenses to other computer software programs licensed with such
Product. In the case of amounts CA collects from Distributors who are
unaffiliated, the "Eligible Amounts" will be net of commissions paid by CA or
retained by such Distributors. With respect to transactions denominated in
currencies other than United States Dollars, the foreign currency amount will be
converted into US Dollars in accordance with CA's generally accepted accounting
practices before determining the resulting Eligible Amounts. If the Product is
licensed with other hardware or software products priced together (a "Bundled
Product Sale"), then the Eligible Amount arising from such Bundled Product Sale
will be the pro rata amount attributable to the Product, with such allocation
being based on CA's standard list price license fees for the products included
in the Bundled Product Sale; provided that the amount attributable to the
Product in any such Bundled Product Sale may not be discounted below list price
more than CA products or services included in such Bundled Sale CA's list
pricing for the Product is set forth in Exhibit B.
"Functional Specification" means the specifications for the Product set
forth at Exhibit A.
"Product" means the software program(s) set forth in Exhibit A in object
code only together with associated technical manuals and other documentation
("Documentation") and all enhancements, updates, fixes, patches, maintenance
releases, new releases, translations and modifications thereof developed and
made generally available by Supplier during the Term of this Agreement.
"Territory" means worldwide.
"Term" means the period set forth in Section 10 of this Agreement.
ARTICLE II
APPOINTMENT AND GRANT OF LICENSES
2.1 Supplier appoints CA as a non-exclusive distributor with rights to
use, market, distribute and sublicense the Product in the Territory pursuant to
the licenses set forth in Section 2.2 below and in accordance with the other
terms and conditions of this Agreement.
2.2 Supplier hereby grants to CA world-wide, non-exclusive licenses:
(a) to use the Product for its own internal use, product support and
for demonstration purposes free of all license fees;
(b) to market, distribute and sublicense the Product as a stand
alone product or bundled, embedded or integrated with other products, in the
Territory directly, and indirectly through Distributors, to Customers subject to
CA's license agreements in consideration for royalties paid to Supplier as set
forth below;
(c) sublicense the Product directly or indirectly through
Distributors to potential Customers for evaluation purposes without payment of
royalty hereunder and pursuant to a trial or evaluation license agreement;
and/or
5
(d) to manufacture object code versions of the Product for internal
use, marketing and distribution to Distributors and Customers.
2.3 Upon completion of the Development Project, Supplier agrees to provide
CA with at least one copy of the object code version of the Product (including a
comprehensive set of technical documentation) for CA's evaluation and acceptance
testing purposes to determine that the Product complies with the Functional
Specification and can be remarketed by CA in accordance with CA's quality
standards. CA shall undertake appropriate testing and evaluation for acceptance
at CA's facilities or such other location(s) acceptable to both parties. In the
event that CA determines that the Product does not meet the Functional
Specifications or CA's quality standards, then Supplier shall promptly provide
CA with any modifications, new releases, fixes, patches or updates to ensure
that the Product meets the Functional Specifications and such quality standards.
CA will notify Supplier in writing of its acceptance of the Product and the work
product of the Development Project. In the event that CA does not accept the
Product after CA and Supplier have expended all commercially reasonable efforts,
then this Agreement shall automatically terminate and the parties will have no
further obligations to one another except as specifically provided by this
Agreement. In the event that Supplier fails to provide such modifications, new
releases or updates in a timely fashion, CA may terminate this Agreement upon
written notice without any further obligation to Supplier.
2.4 During the Term, Supplier shall continuously enhance and update the
Product to ensure that the Product supplied to CA will include: (i) all new
releases and functionality made available to Supplier's other distributors or
direct customers of the Product including any integrations to complementary
software programs; (ii) any substantially similar software product marketed by
Supplier during the Term; and (iii) all modifications necessary to support new
versions of the hardware and software operating environments on which the
Product is marketed.
2.5 Ownership of the Product shall remain vested in Supplier or its
licensors. Nothing in this Agreement shall be construed as transferring
ownership of any intellectual property rights of Supplier in the Product to CA.
CA may merge or combine the Product with other software programs provided always
that the copyright in the Product or any portions thereof included in such
derivative software remains vested in Supplier and all copyright and all other
intellectual property rights in the Product shall remain vested in Supplier. CA
will not copy, reverse engineer or decompile the Product except as specifically
permitted under this Agreement. CA will not create any copyrightable derivative
works of the Product and waives all rights it may acquire in any such works.
2.6 Supplier grants CA and its Distributors a royalty free license to use
in conjunction with the marketing of the Product under this Agreement any
trademarks or trade names used by the Supplier to identify the Product, subject
to Supplier's reasonable advance notice and consent, which will not be
unreasonably withheld. No right to use any CA trademark or trade name is granted
by CA hereunder.
2.7 Each party acknowledges that during the Term the other party may
disclose confidential and proprietary business or technical information
concerning the subject matter hereof. The receiving party agrees to hold such
information in confidence and employ reasonable precautions, at least as
protective as the precautions it uses to protect its own information, to protect
6
the disclosing party's confidential information from unauthorized copying, use
or disclosure. "Confidential information" subject to these provisions shall not
include information which the receiving party can establish (a) was known to the
receiving party prior to disclosure hereunder without an obligation of
confidentiality; (b) was obtained by the receiving party from a third party
having the right to disclose it; (c) was or became generally available to the
public without violation of this Agreement; (d) was disclosed with the written
authorization of the disclosing party; or (e) was developed by the receiving
party independent of any reference to the information and independent of the
participation of any person who had access to the information.
2.8 Each party agrees to appoint a relationship manager for the duration
of the term of this Agreement. The relationship manager's responsibilities will
include, but not be limited to: planning, scheduling, monitoring, evaluation,
generation of requirements and specifications, coordination of engineering,
marketing, sales and customer support activities, and resolution of differences
before they rise to the level of disputes.
ARTICLE III
SUPPLIER'S RESPONSIBILITIES
3.1 Supplier shall provide CA and its Distributors, at no charge, with a
reasonable number of copies of all marketing collateral and related information
regarding the Product upon request.
3.2 Supplier shall provide to CA (a) technical training relating to
installation and system administration of the Product and (b) the number of days
of on-site training and support set forth on Exhibit B at times mutually
acceptable to both parties. Such training and consulting shall be without charge
to CA and shall be provided at CA's offices unless otherwise agreed by the
parties in writing. In addition, Supplier shall make available one qualified
engineer available to provide telephone support to CA during normal business
hours until completion of the acceptance testing as set forth above in Article
2.
3.3 Supplier shall supply to CA promptly upon request, a golden master of
the Product in form sufficient to permit CA to reproduce the Product for
distribution hereunder. From time to time thereafter, Supplier will provide CA
with updated versions of such golden master containing new releases and other
modifications to ensure that CA is distributing the most current version of the
Product.
3.4 Supplier will notify CA in advance in writing of any plans to produce
new, enhanced or modified versions of the Product or any replacements to the
Product. Supplier agrees to offer to make all such new, enhanced, modified or
replacement version of the Product available to CA subject to the provisions of
this Agreement when the same are first made generally available to other
distributors or licensees of the Product.
3.5 Supplier shall provide CA with a reasonable number of copies of the
Documentation for the Product at no additional charge to enable CA to fulfill
its obligations under the Agreement.
7
ARTICLE IV
CA RESPONSIBILITIES
4.1 CA will use commercially reasonable efforts to market, sell and
support the Product. CA will obtain a license agreement or distribution
agreement from its Customers and Distributors, as applicable, prior to the
supply of Product to such parties.
4.2 CA will provide first level support for the Product and will refer
second level requests for support to Supplier as set forth below in Section 6.
4.3 CA will make no representations or warranties to Distributors or
Customers regarding the functionality of the Product that are inconsistent with
the Documentation.
4.4 CA's licenses to Customers and Distributors will be no less protective
than the CA End User License Agreement attached hereto as Exhibit C.
ARTICLE V
INVOICING AND PAYMENTS
5.1 As the sole consideration payable by CA for the licenses and rights
granted hereunder, CA shall pay Supplier royalties as set forth in Exhibit B for
copies of the Product licensed by CA or its Distributors to Customers.
Notwithstanding the foregoing, no moneys shall be payable for evaluation copies,
support or marketing copies or for replacement of defective copies. Charges for
maintenance are included in such royalties.
5.2 CA has license agreements with certain entities ("Entities") which are
entitled to receive CA software Product under licenses without the payment of
additional compensation therefor. CA shall not be required to pay Supplier any
royalties related to such license agreements existing as of the date hereof
provided CA is receiving no additional license fees from such agreements. The
number of Entities covered under this section shall not exceed five (5). CA
represents to Supplier that such Entities are not primarily engaged as
distributors, but Supplier acknowledges that CA software products may be
installed and operated by such Entities on behalf of end users in an outsourcing
context. In the event that Supplier's support obligations related to these
pre-existing licenses become unreasonably burdensome relative to Supplier's
royalty revenue, the parties will negotiate a reasonable support payment to be
paid to Supplier for such services. In the event that the parties cannot, in
good faith, reach agreement on such support payment, Supplier may terminate this
Agreement and CA shall have one hundred eighty (180) days to wind down active
sales opportunities in its sales pipeline. Additionally, during such 180-day
period, CA shall be free to accept and fulfill any new orders for the Product
that are placed by such Entities.
5.3 CA shall report Eligible Amounts received from the licensing and
distribution of the Product to Customers within 30 days of the end of each
calendar quarter. CA shall include royalty payments with respect to Eligible
Amounts received during such prior quarter together with its quarterly revenue
report.
8
5.4 CA shall maintain complete and accurate records of Product licensing
activities and license fees obtained therefrom. Not more frequently than once
per year during the Term, Supplier shall have the right to request an audit by
an independent accounting firm, at Supplier's expense and during normal business
hours, of CA's records solely to determine quantities of Product licensed and
verify related royalty records, subject to reasonable prior written notice.
5.5 Within five (5) days of the Effective Date, CA agrees to remit to
Supplier the non-refundable sum of two hundred and fifty thousand dollars
($250,000) in consideration of its impending performance of the Development
Project.
ARTICLE VI
SUPPORT AND UPDATES
6.1 CA will provide first level support services for the Product to
Customers and Distributors. Customers and Distributors may not contact Supplier
directly for support. CA will complete Supplier's training on the Product in
accordance with Section 3.2..
6.2 Supplier agrees to supply CA with second level support in accordance
with the terms of Exhibit D.
6.3 Supplier shall provide CA with one copy of the most current copy of
all materials necessary to provide support for the Product. Such materials shall
include, without limitation, the object code, necessary Documentation and
listings, known error information, amendments and modifications thereto and
Documentation and test tools for performing support services. The above
materials shall be provided to CA within 30 days of the Effective Date and shall
be periodically updated during the Term to ensure the currency of materials.
6.4 Supplier shall use its best efforts to correct any reported faults in
the Product which cause it not to operate substantially in accordance with the
Functional Specification ("Errors"). Supplier shall use its best efforts to
provide work-arounds to minimize the effects of any Errors until a fix can be
provided.
ARTICLE VII
ESCROW
The parties shall enter into the source code escrow agreement with Iron
Mountain Intellectual Property Management, Inc. ("Escrow Agent") in the form
attached hereto as Exhibit E upon CA's acceptance of the Product as provided in
Section 2.3. Supplier agrees to deposit the source code for the Product into an
escrow account with Escrow Agent. Supplier shall include in the deposit
sufficient technical specifications and supporting documentation necessary to
enable an independent, competent computer programmer to understand, maintain,
modify, and enhance the Product. Supplier shall make the initial deposit of
materials thereunder, no later than thirty (30) days after the Effective Date.
Supplier shall thereafter promptly add to the escrow account the source code for
any major function releases of the Product and any updates, enhancements,
9
patches, and fixes for the Product. Such escrow agreement shall provide that CA
has the right to withdraw the source code upon the occurrence of any of the
following events during the Term of this Agreement and for so long afterward as
support and maintenance obligations exist with regard to any Customer (each a
"Release Event"): (i) any material breach by Supplier of its support and
maintenance obligations hereunder and the expiration of any applicable cure
period; (ii) Supplier, whether directly or through a successor or affiliate,
ceases to be in business; or (iii) Supplier is the subject of any of the
following that is not dismissed within 90 days (A) any bankruptcy, insolvency,
or similar proceeding, (B) any assignment by Supplier for the benefit of
creditors or (C) any other proceeding involving insolvency or protection of or
from creditors. CA is granted a license, effective upon a Release Event, (i) for
a term not to exceed the Term of the Agreement, or the next anniversary of the
Agreement if it has been renewed, to use the source code for the purposes
specified in Section 2 of this Agreement, and (ii) for the duration of any
Preexisting Support Obligation, as defined in Section 10.3. During the
effectiveness of any such source code license CA will continue paying royalties
to Supplier in consideration of its continuing support obligation. CA will pay
the fees of the Escrow Agent.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that it has the right to grant the
licenses and rights granted in this Agreement and that 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 Supplier's obligations under this Agreement.
8.2 Supplier represents and warrants that, to the best of it's knowledge,
the Product does not infringe any intellectual property rights under any patent,
copyright or trademark or other intellectual property right in the Territory and
the exercise by CA and its Distributors of the rights granted under this
Agreement shall not infringe any patent, copyright, trademark or other
intellectual property right of any third party. SUPPLIER FURTHER REPRESENTS AND
WARRANTS THAT EXCEPT AS DISCLOSED ON THE ATTACHED EXHIBIT F, THE PRODUCT IS
ORIGINAL WORK OF SUPPLIER, DOES NOT INCORPORATE ANY THIRD PARTY PRODUCT OR CODE,
INCLUDING, BUT NOT LIMITED TO, ANY SO CALLED "FREEWARE" OR "OPEN SOURCE" OR
SOURCE CODE SUBJECT TO THE GENERAL PUBLIC LICENSE OR LESSER GENERAL PUBLIC
LICENSE OR ANY SIMILAR LICENSE, AND SUPPLIER IS UNDER NO ROYALTY OBLIGATION TO
ANY THIRD PARTY RELATING TO THE PRODUCT OR CA'S EXERCISE OF ITS RIGHTS UNDER
THIS AGREEMENT.
8.3 Supplier represents and warrants that the Product (including all new
releases and updates thereto) will operate substantially in accordance with its
Functional Specification. Should the Product not operate in accordance with its
Functional Specification then Supplier shall use its best efforts to ensure that
it does so in as short a time as is possible. Supplier shall not include any
authorizations strings, "time bombs", license managers or other similar devices
in the Product except as specified in Appendix One to Exhibit A.
8.4 Supplier represents and warrants that it has or will obtain
appropriate insurance coverage in accordance with generally accepted commercial
practices, covering risk, such loss due to errors or omissions in the Product,
as well as general liability. Supplier agrees to notify CA of any significant
changes in such policy and agrees to provide to CA, upon CA's request, copies of
the relevant certificates of insurance pertaining to such insurance.
10
8.5 Supplier represents and warrants that the U.S. Department of Commerce
Export Classification for the Product as of the date hereof is set forth on
Exhibit A. Supplier shall notify CA promptly of any changes to such
Classifications during the Term. Supplier shall cooperate with CA to provide CA
with all reasonable information covering export classification of the Product as
necessary to enable CA to comply with applicable import or export laws and
regulations.
ARTICLE IX
INDEMNITY
9.1 Supplier shall fully indemnify CA and its Distributors against any and
all loss, costs, expenses and liability in connection with, and defend CA 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 this Agreement,
including without limitation, the warranties set forth above in Section 8; or
(iii) which is based on a failure of Supplier to perform its maintenance and
support obligations set forth herein; provided that:
(a) Supplier is given prompt written notice of such claim and its
details by CA; provided, that if CA fails to give such prompt notice, Supplier
will still be obligated to indemnify hereunder unless Supplier can demonstrate
by reasonably satisfactory evidence that defense of the claim has been
materially prejudiced by such delay;
(b) Supplier may, upon CA's written consent (which shall not be
unreasonably withheld) have the opportunity of sole conduct and control of the
claim's settlement or compromise, provided, that if such settlement requires
payment of money or any other action or omission by CA, CA's prior consent will
be requested before settlement which consent will not be unreasonable withheld;
(c) CA shall give Supplier all reasonable assistance in connection
therewith at Supplier's expense; and
(d) with respect to any infringement claim, such infringement was
not caused by or contributed to by acts of CA or its Distributors other than use
and distribution of the Product in accordance with this Agreement.
9.2 Supplier shall also fully indemnify CA against any and all loss,
costs, expenses and liability howsoever incurred in connection with any computer
software virus introduced to CA or its Distributors or Customers via the
Product.
11
ARTICLE X
TERM AND TERMINATION
10.1 This Agreement shall commence upon its execution and shall continue
for a period of three years and shall thereafter automatically renew for
additional one year periods unless either party notifies the other of its
intention to terminate the Agreement at least 90 days prior to any anniversary
date. This Agreement may be terminated prior to the end of the above term as
follows:
(a) By CA without cause by giving at least 30 days notice or
immediately in the event the Product fails initial acceptance testing as set
forth above;
(b) At any time by mutual written agreement of the parties;
(c) By either party if the other party commits any material breach
of its obligations hereunder and fails within 15 days of written notice to cure
the same. Any such termination shall be without prejudice to any other rights
which may have accrued to it hereunder; or
(d) By either party immediately by written notice if the other party
files a petition in bankruptcy, goes into liquidation, admits that it is
insolvent, makes an assignment for the benefit of creditors, or has a petition
in bankruptcy or receivership filed against it and such petition is not
dismissed within 30 days following filing.
10.2 In the event of any breach by Supplier as set forth in Sections 10.1
(c) or (d), CA shall be entitled to all rights and licenses granted to it under
this Agreement, subject to CA or its Customers continuing to make payments in
accordance with this Agreement, including, if it so elects, the right to make
copies of the Product to fulfill orders for the remainder of the initial or
renewal Term of this Agreement, as applicable, and the right to retain all
copies of the Product including Documentation, in its possession for internal
use as permitted hereunder.
10.3 In the event of termination howsoever caused, Supplier shall, at CA's
option, either (i) continue to provide CA and its Customers with support and
updates for the Product for the longer of two years following termination of the
Agreement or for the remaining period of support obligations of CA to its
Customers to the extent such support obligations arose prior to such termination
(the "Preexisting Support Obligations"), subject to CA or its Customers
continuing to make payments in accordance with this Agreement (or the Customer's
agreement with Supplier), or (ii) offer to provide support to all Customers in
accordance with its then standard terms, conditions and prices for the longer of
two years following termination of this Agreement or for the remaining period of
Preexisting Support Obligations. In no event may the Preexisting Support
Obligations exceed [three] years.
10.4 Upon any termination of this Agreement, CA and its Distributors shall
immediately cease marketing and selling the Product. All orders for the Product
accepted by CA or its Distributors prior to the effective termination date may
be honored, subject to payment of the royalties to Supplier. CA and its
Distributors shall return or destroy all Confidential Information of Supplier in
their possession, with the exception of information required to carry out
support obligations that survive such termination.
12
10.5 All licenses to use the Product properly granted by CA and
Distributors to Customers hereunder shall survive termination or expiration of
this Agreement.
10.6 In addition to this Section 10, the obligations set forth in Sections
2.7, 8, 9, 11 and 12 shall survive termination of this Agreement and shall bind
the parties and the legal representatives, successors, heirs and assigns.
ARTICLE XI
LIMIT OF LIABILITY
11.1 Except as set forth above in the Section of this Agreement titled
"Indemnity", neither party shall in any circumstances be liable to the other
party for any special, consequential or indirect loss, damage or injury, cost or
expense howsoever arising and of whatsoever nature including (without
limitation) loss of profit, loss of contracts, loss of operation time or loss of
use of any equipment or process.
11.2 EXCEPT IN THE EVENT OF BREACH OF THE CONFIDENTIALITY OBLIGATION SET
FORTH IN SECTION 2.7, BREACH OF SUPPLIER'S ESCROW OBLIGATIONS UNDER SECTION 7,
BREACH OF THE WARRANTIES SET FORTH IN SECTION 8.2, OR AS MAY ARISE IN CONNECTION
WITH ITS OBLIGATIONS OF INDEMNIFICATION UNDER SECTION 9.1 (i) AND 9.1(ii), EACH
PARTY'S ENTIRE LIABILITY TO THE OTHER (INCLUDING ITS DISTRIBUTORS AND CUSTOMERS)
FOR ANY DAMAGE, LOSS OR EXPENSE BASED ON ANY CAUSE OF ACTION SHALL NOT EXCEED
THE AGGREGATE AMOUNT CA HAS PAID SUPPLIER DURING THE 12 MONTHS PRIOR TO THE
EVENT UPON WHICH SUCH CLAIM IS BASED.
ARTICLE XII
GENERAL
12.1 All notices, consents and other communications required or permitted
under this Agreement shall be in writing and sent by registered or certified
mail, postage pre-paid, transmitted by facsimile transmission confirmed by mail
as set forth above or sent by overnight courier (if delivery is confirmed by the
courier) to the addresses indicated on the first page of this Agreement, or such
other address as either party may indicate by at least 10 days prior notice to
the other party.
12.2 Both parties agree that the personnel of one party shall not for any
purposes be considered employees or agents of the other party and that the
parties shall be deemed independent contractors. Nothing in this Agreement shall
be construed to constitute either party as an agent, partner or legal
representative of the other party. Both parties assume full responsibility for
the actions of its personnel while performing activities pursuant to this
Agreement.
13
12.3 The parties agree to keep the specific terms and conditions of this
Agreement in confidence.
12.4 Each party shall bear its own expenses in its performance under this
Agreement and both parties shall comply with all applicable legal requirements
in their performance of this Agreement.
12.5 Neither party may assign this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
Any direct or indirect assumption of control of a party, or substantially all
(50% or more) of a party's assets, by any third party, shall be deemed an
assignment and shall require such consent.
12.6 If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, the validity or
enforceability of the remainder of this Agreement shall not be affected.
12.7 This Agreement shall be governed by the laws of the State of New York
and in the event of any dispute the parties hereto submit to the jurisdiction of
the State and Federal courts of New York, New York.
12.8 This Agreement represents the entire agreement between the parties
with respect to the subject matter contained herein and supersedes any and all
written communications, representations and arrangements whether written or oral
(whether given or made before or after the date hereof). No alteration,
modification, waiver or addition to this Agreement shall be valid unless made in
writing and signed by both parties' duly authorized representatives.
COMPUTER ASSOCIATES INTERNATIONAL, INC. SUPPLIER: CAMINOSOFT CORPORATION
By: By:
----------------------------------- -----------------------------
Name: Name:
--------------------------------- ---------------------------
Title: Title:
-------------------------------- --------------------------
The remainder of this page has been left intentionally blank.
14
EXHIBIT A
PRODUCT DESCRIPTION
This Exhibit A supplements the Software License and Distribution Agreement
between the parties. All Capitalized terms used but not defined herein have the
meanings set forth in the Agreement.
1. PRODUCT.
(A) PRODUCTS SUBJECT TO AGREEMENT (Include Operating Environments
Supported and US Department of Commerce Export Classification for
each of the Products)
Product Applicability Classification
- --------------------------------------------- --------------------- ---------------
Managed Server HSM Library Edition Windows 2000/2003 4D003
Managed Client HSM for Windows XP Windows XP 4D003
Managed Server HSM for Windows Windows 2000/2003 4D003
Managed Server HSM, Library Edition Support Windows 2000/2003 4D003
Managed Client HSM for Windows XP Support Windows XP 4D003
Managed Server HSM for Windows Support Windows 2000/2003 4D003
(B) OPERATING ENVIRONMENTS SUPPORTED
(C) US DEPARTMENT OF COMMERCE EXPORT CLASSIFICATION FOR (EACH OF) THE
PRODUCT(S)
2. FUNCTIONAL SPECIFICATION OF PRODUCT.
As described in the Documentation and modified in accordance with the
Development Project, which is attached to this Exhibit A as Appendix One
hereto.
15
Appendix One to Exhibit A
Supplier agrees to complete the following Development Project:
1) Re-branding the Product to a CA-branded name, as provided by CA, in the
following areas:
Installation:
Splash screens
Contact Information
Product Name
Installation paths
Registry entries
Configuration/ini files
Module names that may reflect a product name
Program groups/entries
(Start=>Programs=>Computer Associates=>BrightStor=>xxxxxxxxxx)
Click-on License agreement
UI:
Splash screens
Contact Information
Product Name
Messages
Log file entries
Icons that may have product name or acronym
Documentation/Help:
Artwork
Contact Information
Product Name
File names of the books, help files, etc.
Replace screen shots
Other:
Product Registration process/screens
Config files and parameters
Registry entries
Add/Remove Programs information
Environment variables
Windows Services entries and descriptions
Command Line Interface invocation program names
Database table names
System Tray icon and associated menu
Icons that may have product name or acronym
16
2) Replace the licensing mechanism to a CA license mechanism as directed by
CA (ALP, RegisterIT, ...)
Supplier agrees to complete the above Development Project within sixty
(60) days of the Effective Date.
17
EXHIBIT B
COMMERCIAL TERMS
This Exhibit B supplements the Software License and Distribution Agreement
between the parties. All Capitalized terms used but not defined herein have the
meanings set forth in the Agreement.
1. ROYALTIES FOR PRODUCT.
CA shall pay a royalty equal to thirty percent (30 %) of the Eligible
Amounts received by CA.
CA shall make a prepayment towards royalty payments of five hundred
thousand dollars ($500,000) within fifteen (15) days of CA's final acceptance of
the Product as set forth in section 2.3 herein. Further, CA agrees to make a
second prepayment of royalties of two hundred and fifty thousand dollars
($250,000) upon the first anniversary of the Effective Date (collectively known
as the "Prepayment"). The Prepayment shall be applied towards the royalty
payments as set forth above by CA deducting twenty-five percent (25%) from each
payment of royalties due hereunder during the initial year of this Agreement,
and fifty percent (50%) from each payment of royalties due hereunder every year
thereafter the initial year until such time as the entire Prepayment has been
repaid in full.
2. TRAINING PROVIDED TO CA.
Supplier shall provide CA with five (5) business days of technical
training.
3. CA Pricing
Supplier's list pricing for the Product(s) is attached as Appendix 1 to
Exhibit B.
It is CA's intent to establish its list price for the product to be the
same as the pricing set forth above. Should CA establish list pricing which
differs from the above, CA shall provide Supplier with written notice of such
pricing and opportunity to consent, which will not be unreasonably withheld..
4. PRIMARY CA AND SUPPLIER POINTS OF CONTACT.
A. FOR TECHNICAL ISSUES
CA: Anders Lofgren
----------------------------
Company: Neil Murvin
-----------------------
B. FOR COMMERCIAL ISSUES
CA: George Cox
----------------------------
Company: Stephen Crosson
-----------------------
18
Appendix 1 to Exhibit B
See attached.
19
EXHIBIT C
CA STANDARD END USER LICENSE AGREEMENT
See attached.
20
EXHIBIT D
SUPPORT SERVICES TERMS AND CONDITIONS
These Second Level Support Terms are an Exhibit to the Software License
and Distribution Agreement between CA and Supplier. Capitalized terms used
herein shall have the same meaning as set forth in the Agreement unless
otherwise defined herein.
1. DEFINITIONS.
"Maintenance Releases" means product temporary fixes (PTFs), error
corrections, work-arounds or other maintenance tapes and corrections made
available by Supplier to its customers.
"Updates" means new releases of the Product providing additional
functionality
2. FIRST LEVEL SUPPORT. In the event CA elects to provide first level support
for the Product, CA agrees to:
A. Have at least one employee take appropriate post-sales technical
training regarding the Product provided that Supplier offers such training at no
charge to CA and have at least one support installation of the Product at a CA
support center.
B. Provide First Level Support with respect to the Product. Such First
Level Support shall include call acceptance from the Customer with diagnosis of
problems to determine if they relate to hardware, operating software or
application software, whether provided by Supplier, CA or other parties. CA
shall be responsible for investigating and collating all suspected errors in the
Product reported by Customers and attempting to apply known PTFs or maintenance
releases previously supplied by Supplier to CA. Any unresolved suspected errors
relating to the Product may be referred by CA to Supplier for action under
Second Level Support.
3. SECOND LEVEL SUPPORT.
A. Supplier shall provide Second Level Support to CA during the hours and
substantially in accordance with the procedures described below which shall
include problem diagnosis and error corrections or avoidance (work-arounds) with
respect to suspected errors in the Product reported by CA Customers as set forth
above. Such service shall also include provision of any Maintenance Releases and
Updates for the Product made available by Supplier during the Term of the
Agreement. Second Level Support shall also include response to general advice
and guidance questions from supported Customers.
B. Severity levels:
(1) "Severity 1" means a suspected Product error that: (1) renders the
Product inoperative; or (2) causes the Product to fail
catastrophically (system down condition).
(2) "Severity 2" means a suspected high impact Product error that
materially restricts the use or performance of the Product.
21
(3) "Severity 3" means a Product error that causes a minor impact on the
use of the Product or a Documentation error.
(4) "Severity 4" means a question about Product use or implementation.
C. Supplier shall respond to CA requests for Second Level Support by
telephone, facsimile, on-line service (if available) or in writing to
Distributor on a twenty-four hour/7 day per week basis (unless otherwise
specifically agreed otherwise by the parties). Such Second Level Support service
shall be comparable to the level of second level service offered by CA with
respect to its own software programs. In connection with such service, Supplier
shall use reasonable efforts to respond to CA requests for service within the
following response times:
(1) Severity 1 -- 1 business hour
(2) Severity 2 -- 2 business hours
(3) Severity 3 -- 1 business day
(4) Severity 4 -- 2 business days
D. If any corrections to Product is required by CA as part of Second Level
Service, Supplier will also provide as applicable Maintenance Releases (or
Updates as applicable) in appropriate format to CA for distribution to CA's
Customers. Supplier will use reasonable efforts to provide corrections or
work-arounds to all errors reported by CA in the following time periods:
(1) Severity 1 -- work-around or fix restoring functionality of system
(must be restored to Severity 2 or better level of functionality)
within one business day and fix for error within 5 business days.
(2) Severity 2 -- work-around or avoidance within 5 business days and
fix within 10 business days.
(3) Severity 3 -- fix in next major release of the Product.
(4) Severity 4 -- reply to the advice and guidance call within a
reasonable period of time.
E. In the event that CA needs to escalate the severity level of a problem
or Supplier fails to respond or provide error correction or avoidance within the
above time periods, CA may escalate the problem to Supplier's customer services
(or engineering) manager or, if necessary, to Supplier's senior management.
F. All Updates to the Product furnished by Supplier to CA shall be
upwardly compatible with the prior release of the Product. CA shall have the
right to distribute all Maintenance Releases and Updates to the Product provided
by Supplier as part of Second Level Support to all Distributors and all
supported CA Customers.
22
EXHIBIT E
ESCROW AGREEMENT
To be attached
23
EXHIBIT F
LIST OF THIRD PARTY CODE
1. Microsoft ODBC Jet driver for SQL queries.
2. Microsoft Access policy files
3. Microsoft Native Win32 APIs
4. InstallShield Components
5. Microsoft Visual Studio
24