DEVELOPMENT LICENSE AGREEMENT
1. Computer Associates International, Inc., a Delaware corporation having
offices at Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000-0000 ("CA")
grants to CompuDawn, Inc., a Delaware corporation having offices at 00
Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Company"), and Company accepts from
CA, a non-exclusive, non-transferable, limited-use license to use and
operate the CA software products ("Licensed Program(s)"), ordered by
Company in Appendix A, solely on the computers of Company located at the
Development Site set forth in Appendix A (the "Development Site") solely
to:
(a) Implement the Development Project as described in Exhibit C; and
(b) Provide to potential customers supervised demonstration of the use of
the Licensed Program(s) with the Company's products ("Company
Product') as listed in Appendix A involved in the Development Project.
CA will provide authorization keys for a maximum of ten (10)
demonstration copies (subject to certification as set forth below upon
receipt of written notification of the location, make, model, serial
number and IP address and any other information necessary for CA to
issue the authorization key) of each computer system on which such
demonstration copies of the Licensed Program(s) are installed.
2. CA grants to Company and Company accepts from CA a non-exclusive,
non-transferable, personal right to use the CA trademarks, servicemarks,
tradenames and logos depicted on Appendix B attached (the "Marks") solely
in conjunction with the Company Product in the manner set forth in the
guidelines attached as Appendix B and subject to the terms and conditions
of this Agreement, including the certification by CA of the compatibility
of the Company Product with the Licensed Program(s) as set forth below.
All Marks remain the exclusive property of CA. Company will take no action
which jeopardizes CA's proprietary rights in the Marks. Company shall
follow CA's instructions relating to the Marks and use the Marks in
unaltered form. CA shall require Company to submit all advertising and
marketing material referencing CA or the Marks to CA for advance review and
approval, and CA may require Company to discontinue use of any advertising
or marketing materials relating to CA, the Marks or the Licensed
Program(s).
3. CA agrees to Provide Company with the opportunity, to participate in its
marketing and sales promotions, subject to the conditions and requirements
of each individual promotion and CA's exclusive approval.
4. (a) Upon signing this Development License Agreement, Company shall be
appointed as a nonexclusive Premier Development Partner.
(b) In a twelve-month period, CA agrees at its option to match every
$5,000.00 spent by Company on each Licensed Program, up to a limit set
within CA's sole discretion, to advertise and market the compatibility
of each Licensed Program and the Company Product. Company must provide
CA with verified advertising and marketing expenses within forty-five
(45) days of the end of each fiscal quarter (June 30, September 30,
December 31, and March 31) in which such expenses were made in order
for such funds to be matched by CA. CA shall be entitled to withdraw
this offer at anytime in its sole discretion or in the event Company
fails to comply with the terms of this Agreement or any related
Addendum.
(c) Company shall retain for a period of three (3) years after the date of
payment records evidencing its advertising and marketing activities
regarding the Company Product and the Licensed Program(s) and its
entitlement to matching fees, the xxxxxxxx therefore, the calculation
of its eligibility for matching fees, and any other accounting records
relevant for such services. During this three-year period, CA or its
designated representative shall have the right to examine and audit,
at its own expense, such records during normal business hours, upon
ten (10) business days notice to Company. CA shall bear the expenses
of such audit; however, in the event any such audit reveals that
Company has overstated the amount of matching fees that it is eligible
to receive under this Agreement by more than five (5%) of the amount
reported during the period audited, Company shall repay CA such
overstated amount, in addition to any other fees contractually due,
and pay all reasonable costs associated with the audit.
5. Without the prior written consent of CA, Company shall not:
(a) copy in whole or in part the Licensed Program(s), except for normal
back-up and archive purposes;
(b) modify, reverse compile, reverse engineer or reverse assemble all or
any portion of the Licensed Program(s);
(c) distribute, market, rent, lease, transfer, assign, or sublicense the
Licensed Program(s) to third parties or use the Licensed Program(s)
for the benefit of third parties:
(d) export the Licensed Program(s) in violation of United States laws and
regulations or other applicable laws or regulations;
(e) perform, publish or release benchmarks or other comparisons without
CA's prior written consent;
(f) use the Licensed Program(s) for any development activities or for any
purpose other than as agreed to in this Agreement; or
(g) use the Licensed Program(s) to develop nor shall Company market any
conversion utility or aid specific to the Licensed Program(s) enabling
users to convert from the Licensed Program(s) to an alternative
product.
6. Company's right to use the Marks is contingent on the testing and
verification by CA that the Company Product is compatible with the Licensed
Program(s) (referred to herein as "Certification") and Company's continued
compliance with the following:
(a) that Company has tested the Company Product and has verified the
successful completion of the Development Project described in Appendix
C. Upon receipt of any subsequent releases (excluding bug fixes, patch
tapes or other such maintenance releases) of the Licensed Program(s)
from CA, Company shall validate that the Company Product remains
compatible with the Licensed Program(s). Company shall indemnify CA
and defend and hold CA harmless from and against any claims from users
of the Company Product alleging that the Company Product is not
compatible with the Licensed Program(s).
(b) that CA be entitled to test each release of the Company Product to
confirm that it is compatible with the Licensed Program(s). CA shall
be entitled to withdraw Certification and Company's right to use the
Marks immediately on notice to Company in the event that the Company
Product fails Certification at any time or Company fads to comply with
the terms of this Agreement.
Company and CA shall each be responsible for bearing its own respective
costs and expenses in connection with the testing and Certification of the
Company Product.
7. CA will provide upgrades, enhancements, and new releases to the Licensed
Program(s) as they become generally available and maintenance for the
Licensed Program(s), including but not limited to, hot line telephone
support services under CA's current support policies.
8. CA shall retain all title, copyright, patent, trademark, trade secret and
other intellectual property rights in or relating to the Licensed
Program(s) and Marks, and any related copies, partial copies, compilations,
modifications or translations. Company and its employees shall keep the
Licensed Program(s) strictly confidential and will not disclose, permit
access or otherwise distribute the Licensed Program(s) to anyone except its
authorized employees. All rights not expressly granted in this Agreement
are reserved by CA.
9. This Agreement shall remain in effect for thirty (30) days from the date
hereof and shall be renewed automatically, thereafter for a term of thirty
(30) days until terminated by either party upon written notice given not
less than ten (10) days prior to the end of the original or any renewed
term hereof. Upon termination or expiration, Company shall cease use of all
copies of the Licenses Program(s) and the Marks, return the original and
all copies of the Licensed Program(s) and documentation to CA, and certify
to CA in writing that all copies thereof have been destroyed and deleted
from any computer libraries or storage devices and are no longer in use by
Company.
Sections 2, 4, 5, 11, 12, and 13 shall survive termination of this
Agreement.
10. (a) Company provides CA with its consent and authorization and grants
CA the right to include a hyperlink to Company's URL address on CA's
web page, as determined within its sole discretion, and in CA's
Development Partner cd.
(b) Company grants CA, and CA accepts, a worldwide, nonexclusive right and
license to distribute, merge, combine, copy, use, and duplicate its
trademark, tradename, logo or marketing materials provided for such
hyperlink, for use on CA's web page, as determined within in its sole
discretion, CA's Development Partner cd or Development Partner
brochure solely in accordance with this Agreement or related Addendum.
11. Company acknowledges and agrees that CA does not support and has not
reviewed the contents of Company's World Wide Web Site. Company agrees that
it is fully responsible for the content posted at its URL address on its
World Wide Web Site.
12. Company will indemnify and hold harmless and defend CA against any loss or
liability (including any expense or cost incurred in defending any third
party claim, demand, action, suit or proceeding), which arises out of or
relates to
(a) The hyperlink described in this Agreement, including but not limited
to, claims of trademark infringement; trademark dilution, copyright
infringement, or misappropriation; (b) Company's advertisements or
marketing consented to and for which CA paid matching fees, including
Company's negligence or other failure under this Agreement: (i) In
obtaining consent of any nature, other than with respect to materials
furnished by CA, whatsoever; or (ii) In protecting CA against claims
for the unauthorized use of name or likeness of any person, libel,
slander, defamation, disparagement, piracy, plagiarism, unfair
competition, idea misappropriation, infringement of copyright, title,
slogan, or other property rights, and any invasion of the right of
privacy.
13. THE LICENSED PROGRAM(S) IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
CA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL CA BE LIABLE TO COMPANY OR ANY OTHER PARTY FOR ANY
INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE WHICH MAY ARISE FROM
THE USE, OPERATION, OR MODIFICATION OF THE LICENSED PROGRAM(S) OR MARKS.
14. Company may not assign or transfer its rights or delegate its duties under
this Agreement. Any change of control of 51% of the ownership or interest
or transfer to a successor corporation of Company shall terminate this
Agreement. Any prohibited assignment shall be null and void.
15. This Agreement represents the entire Agreement between the parties,
supersedes all prior understandings of the parties, both written or oral
and may be amended only by a written agreement signed by authorized
representatives of CA and Company.
COMPUTER ASSOC INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: SVP Business Development
Date: 1/2/98
COMPANY: CompuDawn, Inc.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
` Title: Chief Technology Officer
Date: September 8, 1997
ADDENDUM TO DEVELOPMENT LICENSE AGREEMENT
BETWEEN
COMPUTER ASSOCIATES INTERNATIONAL, INC.
AND
COMPU-XXXX, INC. ("COMPANY")
The Development License Agreement is hereby amended to add the following
provisions with respect to Company's licensing of Company Product, as defined
below, to CA. In the event of any conflict between the terms and conditions of
this Addendum and those of the Development License Agreement, the terms of this
Addendum shall prevail.
1. Company grants to CA and CA accepts from Company, a non-exclusive,
royalty-free, non-transferable, limited-use license to use and operate the ALECS
2000 Suite of Software (the "Company Product") solely on the Computers of CA
located at the Development Site set forth below (the "Development Site") solely,
to:
(a) Implement the Development Project as described in Appendix C of the
Development License Agreement.
(b) Use ten (10) object code copies of the Company Product solely for the
purpose of providing supervised demonstration of the use of the
Licensed Program(s) with the Company Product to potential customers.
CA will notify Company of the location, make, model, and serial number
of each computer system on which such demonstration copies are
installed.
CA Devolepment Site: Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx, xxxxxxxx, XX
00000-0000
2. Company grants to CA and CA accepts from Company a non-exclusive,
non-transferable, personal right to use the Company trademarks, tradenames and
logos depicted on Appendix A attached (the "Company Marks") solely in
Conjunction with the Licensed Program(s) in the manner set forth in the
guidelines attiched as Appendix A and subject to the terms and conditions of
this Agreement.
All Company Marks remain the exclusive property of Company. CA will not
register the Company Marks or take any action that jeopardizes Company's
proprietary rights in the Company Marks. CA shall follow Company's instructions
and adhere to Company's quality control procedures relating to the Company Marks
and shall only use the Company Marks in unaltered form. Company may require CA
to submit all advertising and marketing material referencing Company or the
Company Marks to Company for advance review and approval, and discontinue use of
any advertising or marketing materials relating to Company, the Company Marks or
the Company Product.
3. Without the prior written consent of Company, CA shall not:
(a) copy in whole or in part the Company Product, except for normal
back-up and archive purposes.
(b) modify, reverse compile, reverse engineer or reverse assemble all or
any portion of the Company Product;
(c) distribute, market, rent, lease, transfer, assign, or sublicense the
Company Product to third parties;
(d) export the Company Product in violation of United States Department of
Commerce regulations;
(e) perform, publish or release benchmarks or other comparisons without
Company's prior written consent; or
(f) use the Company Product for any development activities or for any
other purpose other than as agreed in this Agreement.
4. Company will provide upgrades, enhancements, and new releases to the Company
Product as they become generally available and maintenance for the Company
Product, including but not limited to, hot line telephone support services under
Company's current technical support policies.
5. Company shall retain all title, copyright, patent, trademark, trade secret
and other intellectual property rights in or relating to the Company Product and
Marks, and any related copies, partial copies, compilations, modifications or
translations. CA and its employees shall keep the Company Product strictly
confidential and will not disclose, permit access or otherwise distribute the
Company Product to anyone, except its authorized employees.
6. THE COMPANY PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. COMPANY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Upon termination of this Agreement, CA shall cease to use all copies of the
Company Product and Company Marks, return the original and all copies of the
Company Product to Company and certify to Company in writing that all copies
thereof have been destroyed and deleted from any computer libraries or storage
devices and are no longer in use by CA.
COMPANY: CompuDawn, Inc.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chief Technology Officer
Date: September 8, 1997
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: SVP
Date: 12/29/97
