EXHIBIT 10(b)
COMPUTER ASSOCIATES
Software superior by design.
Computer Associates International, Inc.
Xxx Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
1-516-DIAL CAI (000-0000)
FAX 0-000-XXXX FAX (000-0000)
Monday, June 30, 1997
Xx. Xxxxx Xxxxxxxx
President and Chief Financial Officer
Exide Electronics
0000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Xxxxx:
This letter, when executed and returned by you to CA, will amend the existing
license agreement (#0329607) between Exide Electronics and Computer Associates
International, Inc. with an Effective Date of June 30, 1997. In return for
Exide's payment of the fees outlined below, CA shall upgrade Exide's CA licenses
to include generally available CA products for use on a worldwide basis without
any restriction to MIPS, location or size of CPU. These products may be used
only for Exides's internal data processing needs and not to provide data
processing services to non-Exide companies. These fees are inclusive of Usage
and Maintenance Fees through June 29, 2003. After the term of this Agreement,
Exide shall be deemed to have a prepaid license for all CA products deployed
during the term of this Agreement. Exide may elect to then receive maintenance
on any or all of these CA licenses by paying the then current CA maintenance fee
for each product.
The fees due by Exide Electronics under this upgrade total $46,000,000 and are
payable as follows:
PAYMENT # DUE DATE AMOUNT DUE
#1 June 30, 1998 $ 4,000,000
#2 June 30, 1999 $ 6,000,000
#3 June 30, 2000 $ 8,000,000
#4 June 30, 2001 $ 8,000,000
#5 June 30, 2002 $10,000,000
#6 June 30, 2003 $10,000,000
Any maintenance invoices paid within the last 12 months by Exide Electronics
will be amortized on a flat line basis and have any "unearned" portions applied
as a credit against the first invoice due under this Agreement.
If Exide Electronics agrees to this upgrade, please sign your concurrence below
as I know both of our companies are eager to begin implementation of this
significant Agreement.
Very Truly Yours' Exide Accepts This Upgrade
/s/XXXXXXX X. XXXXXXXXX /s/XXXXX XXXXXXXX
Xxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxxx
Senior Vice President, North Vice President & Chief Financial
American Sales Officer
Computer Associates International, Inc. Exide Electronics
Computer Associates
Software Superior by design
Computer Associates International, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
000-000-0000
FAX 000-000-0000
LICENSE AGREEMENT
This License Agreement between Exide Electronics, The Forum II, 0000 Xxx Xxxxx
Xxxx ("Licensee") located at Xxxxxxx, Xxxxx Xxxxxxxx 00000 and Computer
Associates International, Inc. ("CA") covers Program Products to be licensed by
Licensee pursuant to Order Forms which may be submitted and accepted from time
to time.
When CA accepts an Order Form, Licensee will have subject to the terms and
conditions of this Agreement, a nontransferable and nonexclusive license to use
the Program Product(s), optional features, if any, and related-materials
(collectively the "Licensed Program") described in the Order Forms(s)
referencing this Agreement. This Agreement applies to all program code,
documentation, training materials, and enhancements embodying or related to the
Licensed Program and any subsequent versions or releases of the Licensed Program
which may be delivered to Licensee and the definition of Licensed Program
includes all such code, documentation, materials and enhancements.
USE OF LICENSED PROGRAM
This Agreement authorizes Licensee to use the Licensed Program(s), covered by
Order Form(s) accepted by CA, only with the Designated CPU(s) of Licensee at the
installation site of Licensee identified on the Order Form and only for the
internal operations of Licensee and for the processing of its own data.
TITLE, CONFIDENTIALITY AND RESTRICTIONS
Title to the Licensed Program remains with CA, and the Licensed Program is a
trade secret and the proprietary property of CA. Licensee and its employees will
keep the Licensed Program strictly confidential, and Licensee will not disclose
or otherwise distribute the Licensed Program to anyone other than Licensee's
authorized employees. Licensee will not remove or destroy any proprietary
markings of CA. Licensee will not permit anyone except its authorized employees
to have access to the Licensed Program. Except for archive purposes, Licensee
will not make or permit others to make copies of or reproduce any part of the
Licensed Program in any form without the prior written consent of CA. In no
event will Licensee decompile, disassemble or otherwise reverse engineer any
Licensed Program.
If Licensee moves its computer installation, the Licensed Program can be
transferred to Licensee's new location for use on the Designated CPU(s) without
a relocation charge to Licensee, but Licensee must give prior written notice to
CA of such move and confirm to CA that the old computer installation has been
closed. If Licensee desires, subject to obtaining CA's prior written consent, to
operate the Licensed Program subsequent to a change of control of Licensee or
other than with the Designated CPU(s) or other than at Licensee's installation
site identified on the Order Form. Licensee will be required to pay CA the then
applicable upgrade, supplemental, transfer and replacement fees of CA. In no
event can the Licensed Program be transferred outside of country boundaries.
If this Agreement should terminate for any reason, Licensee shall certify in
writing to CA that all copies or partial copies of the Licensed Program have
been either returned to CA or otherwise destroyed and deleted from any computer
libraries or storage devices and are no longer in use by Licensee.
ENTIRE AGREEMENT AND MODIFICATIONS
This Agreement, including the reverse side of this Agreement, the Order Form(s)
and any other exhibits attached to this Agreement represents the entire
agreement between CA and Licensee with respect to the Licensed Program, and CA
and Licensee agree that all other agreements, proposals, purchase orders,
representations and other understandings concerning the Licensed Program,
whether oral or written, between the parties are superseded in their entirety by
this Agreement. No alteration 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.
(See Reverse Side For Additional Important Provisions)
COMPUTER ASSOCIATES INTERNATIONAL, INC. LICENSEE:
By:/s/XXXXXXX X. XXXXXX By:/s/XXXX XXXXX
(Authorized Signature) (Authorized Signature)
Xxxxxxx X. Xxxxxx, Sales Acctg. Div. Mgr. Xxxx Xxxxx
(Name of Person Signing) (Name of Person Signing)
December 30, 1992
(Date) (Title)
3 29607 December 30, 1992
(License Agreement No.) (Date)
LIMITED WARRANTY
CA warrants that it can grant the license described in this Agreement and the
Order Form(s) and CA will defend or, at its option, settle any action at law
against Licensee based upon a claim that Licensee's use of the Licensed Program
in accordance with this Agreement infringes any patent, copyright or other
intellectual property right of any third party. CA also represents that the
Licensed Program will operate according to the specifications published by CA
for the Licensed Program. If it is determined that the Licensed Program does not
operate according to specifications, CA's only responsibility will be to use its
best efforts, consistent with industry standards, to cure the defect.
Any warranties made by CA (other than that of noninfringement) will extend and
be in effect only for the period that Licensee is entitled to use the Licensed
Program and for which Licensee shall have paid the Usage and Maintenance Fee, if
applicable. With respect to hardware and equipment supplied by CA, CA will, upon
request, assign to Licensee any warranties which may be made by the original
manufacturer of such hardware equipment.
In the event that Licensee makes any changes or modifications to the Licensed
Program, Licensee agrees that such changes and modifications shall be the
property of CA, unless CA shall have given its prior written consent to the
contrary. Furthermore, any such changes or modifications made by Licensee to a
Licensed Program will mean that the foregoing limited warranty of CA with
respect to such Licensed Program shall no longer apply, and CA shall have the
right to charge Licensee for additional support services at CA's then prevailing
service rate, but CA shall have no obligation to provide such services.
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 AND CA MAKES NO WARRANTIES WITH
RESPECT TO ANY HARDWARE EQUIPMENT WHICH CA MAY SUPPLY TOGETHER WITH THE LICENSED
PROGRAM OR FOR THE IMPLEMENTATION THEREOF. IN NO EVENT WILL CA BE LIABLE TO
LICENSEE OR ANY OTHER PARTY FOR ANY LOSS, INCLUDING TIME, MONEY, GOODWILL AND
CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM THE USE, OPERATION OR MODIFICATION
OF THE LICENSED PROGRAM.
DISASTER RECOVERY
In the event that Licensee certifies in writing to CA that it has a bona fide
disaster recovery plan with respect to the computer software programs used in
its operations, Licensee may make one copy of the Licensed Program for archival
purposes and use such archival copy on a CPU other than the Designated CPU or at
an installation site other than that identified on the Order Form, such other
CPU or installation site to be owned or controlled by Licensee. The use of such
archival copy shall be limited (a) for the purpose of conducting limited testing
of the disaster recovery plan's procedures and effectiveness (which testing
shall not exceed one week in any three month period) and (b) during any period
subsequent to the occurrence of an actual disaster during which the Licensee
cannot operate the Licensed Program on the Designated CPU or at the installation
site identified on the Order Form. Licensee agrees to furnish such further
documentation with respect to its disaster recovery plan and procedures as CA
may request from time to time.
ASSIGNMENT
Licensee may not assign this Agreement, the use of any Licensed Program or its
rights and obligations under this Agreement without the prior written consent of
CA. CA, however, may assign this Agreement to any third party, provided that
such party assumes the obligations of CA under this Agreement. CA may also
assign its right to payment under this Agreement or grant a security interest in
this Agreement or such payment right to any third party without requiring that
such third party be liable for the obligations of CA under this Agreement.
ESCROW OF SOURCE CODE
CA has deposited a copy of the source code of the Licensed Program with
Xxxxxxxxxx, Xxxx, Xxxx & Xxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000. Such
source code will be updated with each new release of the Licensed Program which
will also be deposited with the escrow agent. Such copies of the source code
will be held in escrow and in the event of a final adjudication of CA as
bankrupt, Licensee will, upon payment of the duplication cost and other handling
charges of the escrow agent, be entitled to obtain a copy of such source code
from the escrow agent. Licensee will, however, only use such copy of the source
code internally to support the Licensed Program. The escrow agent's only
responsibility will be to use its good faith efforts to cause a copy of the
source code, in the form as delivered by CA, to be delivered to Licensee at the
appropriate time.
TAXES AND DUTIES
The amounts set forth on any Order Form are exclusive of any tariffs, duties or
taxes imposed or levied by any government or governmental agency including,
without limitation, federal, state and local sales, use, value added and
personal property taxes, and Licensee agrees to pay any such tariffs, duties or
taxes (other than franchise and income taxes for which CA is responsible) upon
presentation of invoices by CA. Any claimed exemption from such tariffs, duties
or taxes must be supported by proper documentary evidence delivered to CA.
BREACH AND TERMINATION
If Licensee breaches any term of this Agreement or any Order Form or fails to
pay when due any valid invoice rendered by CA, or if the Licensee becomes
insolvent or if bankruptcy or receivership proceedings are initiated by or
against Licensee, CA shall have the right to terminate this Agreement
immediately and, in addition to all other rights of CA, all amounts which would
have become due and payable under this Agreement and any Order Form will
immediately become due and payable to CA. Any invoice which is unpaid by
Licensee 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.
