COMPUTER(R) LICENSE AGREEMENT
ASSOCIATES
Software superior by design.
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COMPUTER ASSOCIATES INTERNATIONAL, INC. XXX XXXXXXXX XXXXXXXXXX XXXXX XXXXXXXX,
XX 00000-0000 (000)000-0000 FAX (000) 000-0000
This License Agreement between I-STORM, INC. ("Licensee") located at 0000
X XX XXXXXX XXXX, XXXXXXXX XXXX, XX 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 Form(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 the 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 to CA the
then applicable upgrade, supplemental, transfer or 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 NEXT PAGE FOR ADDITIONAL IMPORTANT PROVISIONS)
COMPUTER ASSOCIATES INTERNATIONAL, INC. LICENSEE I-STORM, INC.
By:_________________________________ By:____________________________________
(Authorized Signature) (Authorized Signature)
__________________________________ ______________________________________
Name of Person Signing Type or Print Name of Person Signing
__________________________________ ______________________________________
Date Title
__________________________________ ______________________________________
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 such 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 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 properly of CA, unless CA shall have given its prior written consent to the
contrary. Furthermore, any such charges 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 IMPLLIED 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 liner 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, 0000 Xxxxxxxx, Xxx Xxxx, XX 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, 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 it 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 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.
