PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement between I - STORM, INC. ("Client")
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Associates International, Inc. ("CA") sets forth the terms and conditions
pursuant to which CA shall provide certain professional services and other
materials for the benefit of Client.
SCOPE OF SERVICES
CA shall provide certain consulting services to Client as set forth in
the accompanying exhibit accepted in writing by the parties ("Statement of
Work"). All software code, documentation, materials, and other proprietary
information which may be developed in the course of performing or arising from
the Statement of Work or otherwise provided by CA in connection with CA's
performance under a Statement of Work (the "Work Product") shall be governed by
the terms of this Agreement and any corresponding Statements of Work. Each
Statement of Work shall be deemed to constitute a separate work project under
this Agreement. No modification may be made to any Statement of Work without the
written consent of the parities. To permit the services to be performed in
accordance with the Statement of Work, Client and CA shall each timely perform
all of its respective obligations set forth herein and in the Statement of Work
Client's obligations including, but are not limited to, providing CA with access
to all hardware, software, Client employees and facilities, and making
reasonable efforts to facilitate completion of the Statement of Work.
USE OF WORK PRODUCT
When the Work Product is related to CA software products, upon completion of the
Statement of Work, unless otherwise set forth in such applicable Statement of
Work, Client shall be entitled to use such Work Product ("CA-related Work
Product) only for the internal operations of Client and for the processing of
its own data at the installation site set forth in the Statement of Work and
subject to the terms and conditions of this Agreement.
When the Work Product is not related to CA software products, Client shall be
entitled to use the Software code and related documentation and materials
developed solely for Client at Client's sole cost and expense pursuant to a
Statement of Work (the " Client based Work Product") except as may be set forth
in the Statement of Work. All ownership of copyrights and other intellectual
property rights in the Work Product (including source and object code and
related documentation, if applicable) all copyrights to any Client based Work
Product developed by CA for Client under this Statement of Work including all
copyrights in anything produced by either party relating to any of Client's:
business plans, product plans, marketing plans, business strategy, client
information, partner information, E-Commerce Marketing and Sales Agreements and
business models, developed by CA under a Statement of Work shall, upon payment
of all amounts due CA, be solely the property of Client, without any usage
restriction or other limitation.
. Client shall have the right to obtain and hold in its name all patents and
copyright registrations and other evidence of intellectual property rights that
may be available for Client based Work Product. CA shall assign ownership of all
patents and copyrights in such Client based Work Product to Client.
Anything to the contrary in the Statement of Work notwithstanding, CA shall at
all times and for all purposes have all right, title and interest in, retain
sole and exclusive ownership and control of, and be entitled to continue to use
in its business and in all other engagements without limitation, all concepts,
ideas, techniques, processes tools, utilities and methodologies however
structured or conceived relating to the services set forth in the Statement of
Work, as well as all software programs, information technology and processing
related thereto, whether initially developed by CA prior to the Statement of
Work or developed in the course of delivering or performing the Work Product
under the Statement of Work ("CA' s Proprietary Methodologies"). CA's
Proprietary Methodologies shall not constitute "work made for hire" as that term
is defined in Section 101 of the Copyright Act. In addition, Client and its
employees will keep the CA's Proprietary Methodologies strictly confidential,
and will have no right to retain or use, nor market, copy, disclose or otherwise
distribute CA's Proprietary Methodologies. The provisions set forth in this
section shall survive the termination of this Agreement for any reason. To the
extent CA Proprietary Methodologies are incorporated in any Work Product, CA
grants to Client a non-exclusive, non-transferable, royalty-free, perpetual
internal use license, and license, to use, the CA Proprietary Methodologies that
are incorporated into the Work Product.
Anything to the contrary in the Statement of Work notwithstanding, Client shall
at all times and for all purposes have all right, title and interest in, retain
sole and exclusive ownership and control of, and be entitled to continue to use
in its business and in all other engagements without limitation, all concepts,
ideas, techniques, processes tools, utilities and methodologies however
structured or conceived, and all software programs, information technology and
processing related thereto, relating to the Client's creative intellectual
property.
TITLE AND CONFIDENTIALITY
Except as specifically provided in a Statement of Work, CA retains all
right, title and interest in and to the CA based Work Product and CA
Methodologies and any derivative thereof shall not constitute "work made for
hire" as that term is defined in Section 101 of the Copyright Act. Client and
its employees will keep the CA based Work Product and CA Methodologies and any
derivatives thereof strictly confidential, and will neither use the CA Works and
any derivative thereof for other than its internal operations, nor market, copy,
disclose or otherwise distribute the CA based Work Product and CA Methodologies
to anyone other than its authorized employees, without the express permission of
CA. Client will not remove or destroy any proprietary markings of CA. In the
event that Client makes any changes or modifications to the CA based Work
Product and CA Methodologies, Client agrees that such changes and modifications
shall be the property of CA, unless CA shall have given its prior written
consent to the contrary.
CA and its employees will keep the Client based Work Product and any
other Client information, including business plans, product plans, marketing
plans, business strategy, client information, partner information, E-Commerce
Marketing and Sales Agreements and business models (collectively, "Client
Confidential Information") strictly confidential and will neither use the CA
based Work Product or the Client Confidential Information other than in
connection with the performance of the Statement of Work., nor market, copy
,disclose or otherwise distribute the CA based Work Product or Client
Confidential Information.
The provisions set forth in this section shall survive the termination
of this Agreement for any reason.
LIMITED WARRANTY
CA warrants that it will utilize its best efforts to perform the
services set forth in the Statement of Work with employees who possess the
appropriate skills to perform in accordance with the Statement of Work. CA
further warrants that CA will defend or, at its option, settle any action at law
against Client based upon a claim that Client's use of the Work Product in
accordance with this Agreement infringes any patent, copyright or other
intellectual property right of any third party, if notified promptly in writing
of such claim and given authority, information and assistance (at Client's
expense) to defend or settle any suit or proceeding. In case any portion of the
Work Product is held in such suit or proceeding to constitute an infringement
and its use is enjoined, CA shall, at its own expense and at its option, either
(a) procure for Client the right to continue use, (b) replace the Work Product
with a non-infringing version of comparable functionality, or (c) issue a pro
rata refund based upon the usage of the Work Product by Client. This section
sets forth CA's entire liability for infringement of any third party's
intellectual property rights. CA further warrants that the Work Product will
comply with the specifications set forth in the applicable Statement of Work
during the limited period provided in the Statement of Work, or for 90 days
following delivery of the Work Product. CA will use it best efforts, consistent
with industry standards, to cure any defect or nonconformity with such
specifications during such period.
WARRANTY AND LIABILITY LIMITATIONS
EXCEPT AS SET FORTH ABOVE, NO OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED,INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ARE MADE BY CA. IN NO EVENT WILL CA BE
LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL DAMAGES INCLUDING
TIME, MONEY, GOODWILL, LOST PROFITS BASED ON CONTRACT, TORT OR OTHER LEGAL
THEORY, WHICH MAY ARISE HEREUNDER OR FROM THE USE, OPERATION OR MODIFICATION OF
THE WORK PRODUCT. THE MAXIMUM LIABILITY OF CA HEREUNDER SHALL NOT EXCEED THE
AMOUNT ACTUALLY PAID BY CLIENT UNDER THE APPLICABLE TASK CONTAINED IN THE
STATEMENT OF WORK.
PAYMENT
Client agrees to pay to CA the fees and charges set forth in the
Statement of Work, in addition to any associated tariffs, duties or taxes (other
than income taxes) imposed or levied by any government agency. Client agrees
that it shall be responsible to reimburse CA for all travel and out-of-pocket
expenses incurred by CA in providing the services, unless otherwise provided in
the Statement of Work.
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BREACH AND TERMINATION
If Client materially breaches any term of this Agreement or of any
Statement of Work, or fails to pay any valid invoice rendered by CA, CA shall
have the right to terminate this Agreement immediately as well as all Statements
of Work then in process and, in addition to all other rights of CA, all amounts
which would have become due and payable under this Agreement including any
Statement of Work will immediately become due and payable to CA. Any invoice
which is unpaid by Client when due shall be subject to an interest charge of 2%
per month or part thereof plus such late payment charge as CA may reasonably
require to cover its additional costs of administration and collection. Client
shall be entitled to terminate any portion of any Statement of Work by giving CA
thirty (30) days prior written notice and by paying to CA all invoices
representing services performed through the proposed date of termination.
ASSIGNMENT
Client may not assign, transfer, sell, or encumber this Agreement, the
use of, or information contained in, any CA Work, or its rights and obligations
under this Agreement without the prior written consent of CA. CA, however, may
assign this Agreement or the obligations contained herein to any third party,
with the prior consent of Client, not to be unreasonably withheld, provided that
such third party assumes the obligations of CA under this Agreement, except that
no Client consent will be required in the case of an assignment resulting from a
sale, merger or acquisition relating to the business unit performing the
services hereunder.
INDEPENDENT CONTRACTOR
CA shall perform the services set forth in the Statement of Work as an
independent contractor and neither CA nor its employees shall be deemed to be
employees of Client. CA shall determine in its sole discretion which of its
employees or subcontractors shall be assigned to perform any consulting services
for Client and may reassign any employee or subcontractor at any time. Nothing
in this Agreement is intended to establish a partnership, joint venture or
agency relationship between the parties.
NON-SOLICITATION OF CA EMPLOYEES
Client agrees that it will not, without the prior written consent of
CA, solicit or hire any CA employee, or induce such employee to leave CA's
employment, directly or indirectly, for a period of twelve (12) months after the
most recent time such employee has performed any services for Client.
NOTICES
All notices pursuant to this Agreement shall be sent by certified mail,
postage prepaid, and shall not be deemed to have been given until received by
the other party.
ENTIRE AGREEMENT
This Agreement, together with the applicable Statement of Work,
represents the entire agreement between CA and Client with respect to the Work
Product and the services, obligations and responsibilities to be performed by
the parties hereunder. CA and Client agree that all other agreements, proposals,
purchase orders, representations and other understandings concerning the subject
matter of this Agreement, whether oral or written, between the parties are
superseded in their entirety by this Agreement. No alterations or modifications
of this Agreement will be valid unless made in writing and signed by the
parties. No attachment, supplement or exhibit to this Agreement shall be valid
unless initialed by an authorized signatory of CA and Client.
COMPUTER ASSOCIATES INTERNATIONAL, INC. CLIENT: I - STORM, INC.
By:____________________________________ By:______________________________
(Authorized Signature) (Authorized Signature)
_______________________________________ _________________________________
Name Name
_______________________________________ _________________________________
Title Title
DECEMBER 30, 1999
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Professional Services Agreement No. Date
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