EXHIBIT 10.1
SOURCE CODE LICENSE AGREEMENT
This Source Code License Agreement ("Agreement") is entered as of
December 13th, 2002 (the "Effective Date") by and between Legato Systems, Inc. a
Delaware corporation with its principal place of business at business at 0000 X.
Xx Xxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000, U.S.A, ("Legato") and CaminoSoft
Corporation, a California corporation with its principal place of business at
000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000 ("CaminoSoft").
Legato and CaminoSoft hereby agree as follows:
1. DEFINITIONS.
1.1 CaminoSoft Derivative Works: means all derivative works of the Software
made by CaminoSoft, but does not include any portions thereof which consist
of Source Code and any products or processes embodied in such derivative
works which are derivative works of patents owned or controlled by Legato.
1.2 Confidential Information: means (i) the Source Code and the source code to
CaminoSoft Derivative Works; (ii) either party's business or financial
information and plans, including without limitation customer information;
(iii) the terms of this Agreement; and (iv) any other information, whether
in print, magnetically stored, or in some other form, that Legato
designates as confidential or which, under the circumstances surrounding
the disclosure, should be treated as confidential to Legato. Confidential
Information also includes any information that, as a matter of applicable
law (such as consumer or end-user personal data) must be kept confidential.
"Confidential Information" will not include information that the receiving
party can demonstrate by clear and convincing evidence: (a) it received
rightfully from another party without an obligation of confidentiality
prior to its receipt from the disclosing party, (b) the disclosing party
has generally disclosed to the public without any obligation to maintain
such information in confidence; or (c) the receiving party can establish
and document as being developed independently without access to any
Confidential Information received from the disclosing party.
1.3 Contract For, Contracted For, and Contracting For: shall mean the receipt
by Legato of a purchase order for a product or service, or the submission
by Legato of an invoice for a product or service.
1.4 Customer Names has the meaning assigned to such term in Section 6.3.
1.5 Documentation: means any user documentation, on any media, provided by
Legato for use with the Software.
1.6 End-User: shall mean the person or entity that agrees to the terms of an
End-User License Agreement and is authorized to access and use the
Software.
1.7 Final Payment: shall have the meaning assigned to such term in Section 4.2.
1.8 Legato Product: shall mean the Software and CaminoSoft Derivative Works.
1.9 Novell: means Novell, Inc., a corporation with its principal place of
business in Provo, Utah.
1.10 Product Trademarks has the meaning assigned to such term in Section 2.4.
1.11 Reseller: means any third party with a written agreement with CaminoSoft to
distribute Software, only in object code form to other resellers or
end-users in accordance with the terms of this Agreement.
1.12 Software: The term "Software" shall mean those versions of the following
computer programs which run on the NetWare operating system: "Legato
StandbyServer," "Legato OFFsite Archive and "Legato SnapShotServer".
1.13 Support: means, unless otherwise specified, Level, 1, 2 & 3 Support and
Updates, all as defined in Exhibit B.
1.14 Support Agreement: means an agreement between Legato and an End User
pursuant to which Legato undertakes to provide technical support and/or
updates for one or more Software products to such End User.
1.15 Source Code: means the specified source code of the Software whether in
print, magnetically stored, or in some other form, and related materials
that Legato may provide to CaminoSoft, and any such source code to the
extent included in any CaminoSoft Derivative Work.
1.16 Updates and Upgrades: shall have the meanings set forth in Exhibit D-1
hereof.
2. LICENSE
2.1 Use of Source Code. Legato hereby grants to CaminoSoft a non-exclusive and
(except as provided in Section 19.1 hereof) non-transferable license to use
the Source Code to create CaminoSoft Derivative Works and to support
Resellers and End-Users.
2.2 Grant of Other Rights. Legato grants CaminoSoft a non-exclusive,
non-transferable worldwide :
(i) royalty based right to market, distribute, license and
sublicense the Software and all CaminoSoft Derivative Works;
(ii) license to use and reproduce the Software and CaminoSoft
Derivative Works for solely for the purpose of demonstrating
such products to potential End-Users,
(iii) license to use, reproduce and have reproduced, modify,
display, and distribute the Documentation in any medium; and
(iv) license to use, reproduce and have reproduced, modify,
display and distribute any marketing materials provided to
CaminoSoft pursuant to Section 6.2.
All such Software shall be marketed, licensed or sublicensed in object
code format only, and only for use on the Novell NetWare platform. The
rights granted by this Section 2.2 will include the right of CaminoSoft
to appoint Resellers to achieve the foregoing.
2.3 No Sale The licenses granted under this Agreement do not constitute a sale
of the Software or any portion or copy of it.
2.4 Branding. Legato hereby grants CaminoSoft a non-exclusive license to use
the trademarks "StandbyServer," "SnapShotServer," and"OFFsite Archive ,"
(collectively the "Product Trademarks") in the marketing and distribution
of the Software, CaminoSoft Derivative Works, and Documentation; but only
in conjunction with a reference to the NetWare operating system and
subsequent versions thereof, as in ""StandbyServer Many-To-One for
NetWare," "OFFsite Archive for NetWare," "OFFsite Archive Many-To-One for
NetWare," "SnapShotServer for NetWare", and "StandbyServer One-to-One for
NetWare"". The Product Trademarks may not include or be used with the names
"Legato" or "Vinca" but shall be used with a reference to Legato Systems,
Inc. as owner of the Product Trademarks. Use of the Product Trademarks is
otherwise subject to Section 9 hereof and Legato's trademark guidelines on
the Legato website or as may be delivered to CaminoSoft from time to time.
Legato reserves the right to require at any time that it approve in advance
all documentation, advertising or other public messages by CaminoSoft that
refer to Legato Products. CaminoSoft must delete all Legato or Vinca splash
screens, and other references to Vinca, or Legato (except for the retention
of appropriate copyright, patent or other notices required by Section 3.3)
prior to promoting, marketing, distributing or licensing Legato Product or
Documentation. CaminoSoft acknowledges that Legato uses, and retains the
right to use, the names "StandbyServer", "OFFsite Archive",
"SnapShotServer" and other names licensed hereunder with reference to
software and products that run on other operating systems.
2.5 Customer Names. Legato grants CaminoSoft the right to use the Customer
Names for the purposes of marketing CaminoSoft products and services
including the CaminoSoft Derivative Works. Legato shall not disclose the
Customer Names to any entity which competes with CaminoSoft in the market
for software products running on the NetWare operating system; (i) unless
Legato's obligations hereunder do not become permanent pursuant to Section
2.6); or (2) such disclosure is pursuant to a Non Disclosure Agreement
restricting the use of the Customer Names. Legato may use the Customer
Names in its own marketing programs.
2.6 Exclusive Nature of Rights. Provided that this Agreement has not terminated
and that CaminoSoft is not then in material breach of this Agreement, on
December 31st, 2003: (i) the license set forth above in Section 2.4 with
respect to use of the Product Trademarks shall become exclusive, except
that Legato may use the xxxx SnapShotServer in relation to versions of the
such software bundled with NetWorker for Netware ; and (ii) Legato's
obligation to not disclose the Customer Names pursuant to Section 2.6
hereof shall become permanent.
2.7 License Terms. CaminoSoft shall use a written software license for
marketing and licensing Software under the terms of this Agreement. Such
license shall be executed by CaminoSoft and the End User or CaminoSoft
shall otherwise require the End User to evidence consent to such license by
other appropriate and enforceable means. All such software licenses shall
contain terms and conditions that are substantially similar to Legato's
standard form of software license, as such license is modified from time to
time. Legato's current form of software license is attached hereto as
Exhibit A.
2.8 License to CaminoSoft Derivative Works. CaminoSoft hereby grants to Legato
a non-exclusive, transferable license to reproduce and use the source code
to the CaminoSoft Derivative Works to support End-Users to whom Legato has
delegated its support obligations to CaminoSoft pursuant to Section 8.
3. Ownership and Restrictions
3.1 Ownership and Retention of Rights. CaminoSoft acknowledges that Legato, and
its Licensors, own and shall retain all right, title and interest in and
to: (i) the Software and updates, including all copies, modifications, and
derivative works thereof (subject to Section 3.2), and Documentation,
including all intellectual property rights embodied therein; (ii) all of
the service marks, trademarks, trade names or any other designations
associated with the Software; and (iii) all copyrights, patent rights,
trade secret rights, and other proprietary rights relating to the Software,
the Source Code, the Documentation, or the Confidential Information.
CaminoSoft further acknowledges and agrees that it shall have no rights
with respect to any of the foregoing other than the rights expressly set
forth in this Agreement.
3.2 CaminoSoft Derivative Works. CaminoSoft shall not create any derivative
works based solely upon any patents owned or controlled by Legato which are
embodied in the Software. All CaminoSoft Derivative Works shall be owned by
CaminoSoft except for any portions that express or embody any processes
derived from the Software that are considered tradesecret by Legato. Until
September 30th, 2004, CaminoSoft shall place a copy of source code to all
CaminoSoft Derivative Works, including any Source Code in which they may be
embodied, in escrow with DSI Technology Escrow Services, Inc. pursuant to
its preferred escrow agreement, promptly following the creation thereof.
CaminoSoft shall update all such derivative works at the end of each
calendar quarter. Instructions to the escrow agent shall provide for the
release of source code to Legato upon certification by a Legato executive
that Legato has given any notice of breach required by Section 10 and: (i)
CaminoSoft is or has been in material breach of its obligations hereunder;
or (ii) Legato is undertaking, directly or indirectly, to resume support
obligations that have been delegated to CaminoSoft pursuant to Section 8.4
or 8.5 hereof. Costs of such escrow shall be paid by CaminoSoft.
3.3 Restrictions on Use. CaminoSoft agrees: (i) not to remove any Legato
identification or notices of any proprietary, patent or copyright
restrictions from the Software, CaminoSoft Derivative Work, Documentation
or any support material; (ii) not to provide use of the Legato Product in a
computer service business, rental or commercial timesharing arrangement;
and (iii) not to develop methods to enable unauthorized parties to use
Legato Product.
4. ROYALTY
4.1 Royalty Payments. CaminoSoft shall make royalty payments to Legato for each
copy of the Software or CaminoSoft Derivative Works that CaminoSoft
licenses, sublicenses, or otherwise distributes or sells. In addition,
CaminoSoft shall pay a royalty for each copy of the Software or CaminoSoft
Derivative Work that CaminoSoft uses for its own internal purposes, other
than use solely for purposes of support, demonstrations, or other marketing
activities. All such royalty payments will be the greater of 25% of
CaminoSoft's receipts, or (with respect to each copy of the Software or
CaminoSoft Derivative Works) $200. CaminoSoft's receipts shall mean
CaminoSoft's list price for the Software or CaminoSoft Derivative Work,
less any applicable standard discounts; provided, however, that: i) all
discounts must be consistent with CaminoSoft's standard business practice,
and (ii) if CaminoSoft sells the Software or CaminoSoft Derivative Work
bundled with other products, software or services, the discount that
applies will be the average of the discount applied to the entire bundle of
products licensed by CaminoSoft.
4.2 Final Payment. Once the cumulative royalties paid to Legato under this
Agreement equals Ten Million Dollars (US) ($10,000,000) (such event
being the "Final Payment") no further royalties shall be due to Legato
hereunder.
4.3 Payment Terms. CaminoSoft shall keep an accurate account of the Legato
Product and related services licensed, sublicensed, otherwise distributed
or used internally hereunder and provide Legato with accurate and timely
quarterly reports showing the quantity of all such royalty bearing Legato
Product or services. CaminoSoft shall deliver such quarterly reports to
Legato within thirty (30) days of the end of each calendar quarter, and
shall, within forty five (45) of the end of such quarter pay to the Legato
the amount of the royalties accrued during the corresponding calendar
quarter. Payment may be made net of authorized returns and allowances.
CaminoSoft shall have no obligation to provide royalty reports following
the fiscal quarter in which Final Payment occurs.
A product shall be deemed licensed or sublicensed at the time of first
invoicing, or, if not invoiced, at the time of first shipment, delivery,
or other transfer to other than CaminoSoft. The accounting period shall
be on a calendar quarterly basis for the respective periods ending on
March 31, June 30, September 30 and December 31 of each year, beginning
with the end of the period first following the effective date of this
Agreement.
4.4 Time of Payment. All accrued royalty fees are due and payable to Legato
within forty five (45) days after the end of each calendar quarter.
4.5 Resale Price. CaminoSoft is free to determine its own resale prices for the
Legato Product. No employee or representative of Legato has any authority
to dictate or in any way inhibit CaminoSoft's pricing discretion with
respect to the Legato Product.
4.6 Taxes. CaminoSoft shall bear and be responsible for: (i) the payment of all
taxes associated with the use, or license of any Legato Product, (other
than taxes based on Legato's net income) fees, duties or other amounts,
however designated, including value added and withholding taxes which are
levied or based upon such charges, or upon this Agreement. Taxes related to
Legato Product licensed pursuant to this Agreement shall be paid by
CaminoSoft or CaminoSoft shall present an exemption certificate acceptable
to the taxing authorities; and (ii) keeping all records and/or impounding
or paying all taxes (e.g., national, local, self employment tax, foreign
tax withholding, etc.) and any other charges required by and imposed by any
taxing authority on payments to CaminoSoft's employees or agents.
4.7 Audit Rights. CaminoSoft shall keep accurate books, records and copies
licenses and agreements pursuant to this Agreement, including all
Reseller agreements and to all transactions related to Legato Products.
Legato shall have the right, not more than once in any calendar year, to
examine the books, records and agreements of CaminoSoft to verify the
royalty statements and royalties due Legato pursuant to this Agreement.
If CaminoSoft underpays Legato and that underpayment is equal to or more
than five percent (5%) of the fees due to Legato, in addition to paying
any fees (plus interest) which are overdue, CaminoSoft will pay the
expenses for that audit.
5. CAMINOSOFT RESPONSIBILITIES.
5.1 Promotion of Product. CaminoSoft shall use commercially reasonable
efforts to: (i) successfully promote, and solicit orders for the Legato
Product on a continuing basis; (ii) comply with good business practices
and all applicable laws and regulations; and (iii) diligently perform
all other duties as mutually agreed upon herein.
5.2 Compliance with Laws. CaminoSoft shall be solely responsible for
complying with the laws and regulations applicable in any country, or
political subdivision thereof, in which it engages in business in
performing its responsibilities hereunder. CaminoSoft will bear all
expenses and costs related to compliance with such laws and regulations.
5.3 Reseller Agreements. Prior to the distribution of any Software to a
Reseller, CaminoSoft shall enter into an enforceable written agreement
with such Reseller that is sufficient to ensure that such Reseller is
required to comply with the relevant terms of this Agreement. Without
limiting the generality of the foregoing, each such agreement shall
include terms binding the Reseller to obligations at least as broad as
those of CaminoSoft under this Agreement and restrictions at least as
protective of Legato as those contained in this Agreement, including,
the obligations and provisions pertaining to confidentiality and
proprietary rights protections, software use restrictions, liability
limitations, and warranty disclaimers.
5.4 Proprietary Notices. CaminoSoft must reproduce and include the copyright
notice and any trademark, service xxxx, patent or other proprietary
notices that appear on the original copy of any Legato Product or
Documentation on any copies made by CaminoSoft on any media.
5.5 Protection Against Unauthorized Use. Legato prevents unauthorized use of
Software by employing Enabler Codes and Authorization Codes that enable
the use of the Software. If CaminoSoft modifies such
enabler/authorization code scheme, it must use a scheme or method at
least as effective to prevent unauthorized use of Software or CaminoSoft
Derivative Works.
6. LEGATO RESPONSIBILITIES
6.1 Initial Delivery. Legato shall, deliver to CaminoSoft, FCA Legato's dock
in Palo Alto, California, USA the Source Code on a master CD ROM ,
within fourteen (14) days after the Effective Date.
6.2 Market Materials. Legato shall provide at no cost to CaminoSoft
copies of all marketing materials for the Software to the
extent such materials are available.
6.3 Customer Names. Promptly following the execution of this Agreement,
Legato shall provide to CaminoSoft a list of all customers who, in the
three (3) years preceding the Effective Date, have received final
authorization codes from Legato to use the Software or who, on the
Effective Date, have current support contracts for the Software, the
database of such customer names and software designations being the
"Customer Names".
7. CONFIDENTIAL INFORMATION
7.1 Protection of Confidential Information. Each party will protect the
other's Confidential Information from unauthorized dissemination and use
the same degree of care that such party uses to protect its own like
information, but in no event less than a reasonable degree of care.
Neither party will disclose to third parties the other's Confidential
Information without the prior written consent of the other party.
Neither party will use the other's Confidential Information for purposes
other than those necessary to directly further the purposes of this
Agreement. Notwithstanding the foregoing, either party may use or
disclose Confidential Information to the extent such party is legally
compelled to disclose such Confidential Information provided, however,
that prior to any such compelled disclosure, the disclosing party will
notify the non-disclosing party and will cooperate fully with the
non-disclosing party in protecting against any such disclosure and/or
obtaining a protective order narrowing the scope of such disclosure
and/or use of the Confidential Information. The parties agree that any
breach of this Section would cause irreparable harm to the disclosing
party for which monetary damages would not be adequate and therefore,
the parties agree that in the event of a breach of this Section 7.1, the
disclosing party shall be entitled to equitable relief in addition to
any remedies it may have hereunder or at law.
7.2 Non-disclosure of Source Code. In additional to the provisions of
Section 7.2 above, CaminoSoft acknowledges that the Source Code (and to
the extent containing Legato trade secrets, the CaminoSoft Derivative
Works) constitutes a valuable asset of Legato and therefore agrees that
only the following CaminoSoft employees shall have access to the Source
Code and the source code to the CaminoSoft Derivative Works: those
employees: (i) who have a need for such access to accomplish the
purposes of the distribution rights and license grants specified in
Section 2 above; and (ii) with whom CaminoSoft has a legally enforceable
obligation that precludes disclosure of third-party proprietary
information and is otherwise sufficient to enable CaminoSoft to comply
with all the provisions of this Agreement. CaminoSoft shall not grant
any other individual or entity access to the Source Code.
7.3 Security. CaminoSoft shall implement reasonable security measures to
prevent unauthorized use or disclosure of Source Code. CaminoSoft agrees
to segregate all Source Code and Confidential Information from its own
confidential information and from the confidential information of others
in order to prevent commingling.
7.4 Notification of Employees. Each party agrees to take appropriate action
by instruction, agreement or otherwise with its employees, agents and
contractors allowed access to the Confidential Information to satisfy
its obligations under this Section 7.
8. SUPPORT AND TRANSITION
8.1 Legato Employees. Legato shall use reasonable efforts to assist and
cooperate with CaminoSoft efforts to hire members of Legato's present
engineering and technical support personnel from Legato's facility in
Orem, Utah who have experience with the Source Code to the Software.
Nothing contained herein shall be construed to create any obligation of
CaminoSoft to hire any employees of Legato.
8.2 Xxxxx 0 xxx 0 Xxxxxxx. XxxxxxXxxx shall provide Level 2 and 3 support to
Legato (on behalf of End Users or Legato resellers (including Novell)
whose contracts have not been transferred to CaminoSoft) without cost as
set forth in Exhibit B hereto, through September 30th, 2004. If
CaminoSoft fails to provide adequate Level 2 or 3 Support to Legato, or
fails to provide adequate support in fulfillment of Legato's obligations
to provide Support or Updates to any End-User or Reseller with respect
to which Legato's obligations have been delegated under this Agreement
pursuant to Sections 8.3, 8.4 or 8.5, Legato may: (1) reassume support,
either directly or through a third party, of such End Users and
Resellers; and (2) obtain source code to any CaminoSoft Derivative Work
that has been or should have been delivered to the escrow provided under
Section 3.2. CaminoSoft will reimburse Legato for 150% of its costs
involved in providing all such support.
8.3 Legato Sales: Legato will remove the Software from its price lists and
public e-commerce web sites on or before December 31st, 2002. Legato
shall not send out any quotations for Support and/or Updates to the
Software after the Effective Date Legato shall retain all revenue
derived for the license of the Software, or for Support or Upgrades or
Updates: 1) with respect to its agreement with Novell (The Statement of
Work No. 2 to the Business Development Agreement dated September 1996,
as amended); 2) with respect to Contracts For Support, Upgrades or
Updates prior to the Effective Date. Legato shall remit to CaminoSoft
85% of all revenue derived from Contracts For the license of the
Software or for Support Upgrades or Updates of the Software after the
Effective Date, (except with respect to revenues received from Novell,
Inc.) Legato shall submit a statement to CaminoSoft as to all revenue
received by it which is to be remitted to CaminoSoft within 15 days
following the end of each month and shall remit payment thereof within
30 days of such statement.
8.4 Transfer of Contracts. Legato hereby delegates to CaminoSoft all of its
obligations under existing Support Agreements (excluding any contract
with Novell, Inc.). CaminoSoft shall fulfill Legato's obligations to
provide support thereunder without cost to Legato through the expiration
of the last Support Agreement in existence on the Effective Date. A copy
of Legato's standard forms of Technical Support Agreement for the
Software are attached hereto as Exhibit D -1 and Exhibit D-2. Except as
it may be required by contract to enter into an agreement for support of
End Users with Novell, Legato shall for a period of 12 months following
the date of this Agreement refer all requests for renewal of existing
support contracts to CaminoSoft.
8.5 Transfer of Novell Contract. Legato may enter into a contract with
Novell for support of customers who have purchased Software through
Novell. In such case, Legato shall delegate its obligations to provide
Level 2 and Level 3 Support and Updates under such contract to
CaminoSoft and CaminoSoft hereby undertakes to provide such Support and
Updates Legato shall pay to CaminoSoft 85% of all funds received by it
from Novell for support under such contract.
9. Trademarks and Servicemarks
9.1 Trademarks. Neither party is granted any ownership in or license to the
trademarks, marks, service marks or trade names, or good will associated
with such marks or names (collectively, "Marks") of the other party,
except as provided in Section 2.4. Neither party shall use the Marks or
confusingly similar marks in connection with any goods or services other
than the Legato Product, or in a manner that dilutes, disparages, or
xxxxx the reputation of the party owning such marks. Each party agrees
that any goodwill arising from its use of the Marks shall inure to the
benefit of the party owning such Xxxx who will be the sole and exclusive
owner of such goodwill.
9.2 Use of Marks. CaminoSoft shall include Legato's copyright notice as
required herein. All advertising and other materials in which Legato's
Marks are used shall be subject to the prior written approval of Legato.
Where appropriate, Legato shall grant generic approval for such use.
Whenever a party uses the Xxxx of the other, such party shall indicate
that such Xxxx is the property of the other party.
9.3 Defense of Trademarks. Neither party will at any time contest, or assist
others in contesting, the validity or enforceability of the Marks of the
other party or other proprietary rights, or do, cause to be done, or
tolerate any act or thing contesting or in any way impairing or tending
to impair any said right, title, and interest of such party in such
Marks or other proprietary rights.
10. Term and Termination
10.1 Termination. Prior to Final Payment either party has the right to
terminate this Agreement if the other party breaches or is in default of
any material obligation hereunder (including the failure to make any
payment when due) which defaulting party is incapable of cure or which,
being capable of cure, has not been cured within thirty (30) days after
receipt of written notice from the non-defaulting party or within such
additional cure period as the non-defaulting party may authorize in
writing.
10.2 Additional Cause for Termination. In addition to the aforementioned,
Legato may terminate this Agreement prior to the expiration of one
calendar year following Final Payment upon written notice to CaminoSoft,
if CaminoSoft:
o fails to secure or renew any license, permit authorization or approval
for the conduct of its business;
o challenges or assists a third party in challenging Legato's right,
title or interest in and to any Legato intellectual property asserted
in this Agreement;
o ceases to use commercially reasonable efforts to market Legato
Product,
o ceases to do business or otherwise terminates its business operations.
10.3 Effects of Termination. Upon termination or expiration of this Agreement
for any reason whatsoever, CaminoSoft shall immediately: (i) cease all
use of Legato Product and Documentation; (ii) discontinue any use of the
name, logo, trademarks, service marks or slogans of Legato and the trade
names of any Software; (iii) discontinue all representation or
statements from which it might be inferred that a CaminoSoft
relationship with respect to Legato Product exists between CaminoSoft
and Legato; (iv) cease to promote, solicit orders for or procure orders
for such Legato Product; and (v) return all Software, Source Code,
Documentation, Confidential Information, and the source code to all
CaminoSoft Derivative Works and all related materials and copies thereof
to Legato. In addition to the foregoing, CaminoSoft agrees that it shall
not, following termination of this Agreement, act in any way to damage
the reputation or goodwill of Legato or any Software, CaminoSoft
Derivative Work or other product.
10.4 No Harm Upon Termination. Except as otherwise expressly provided herein,
upon the expiration or termination of this Agreement CaminoSoft shall
not be entitled to, and to the fullest extent permitted by law waives,
any statutorily prescribed or other compensation, reimbursement or
damages for loss of goodwill, clientele, prospective profits,
investments or anticipated sales or commitments of any kind.
10.5 Survival. The following sections of this Agreement shall survive
termination: Section 1 (Definitions); Section 3 (Ownership and
Restrictions); Section 4 (Royalty); Section 7 (Confidential
Information); Section 9 (Trademarks and Servicemarks); Section 11
(Special Protections for Source Code); Section 12 (Warranty and
Disclaimers); Section 13 (Limitation of Liability); Section 14
(Indemnification); Section 17 (Remedies); Section 18 (Notices); Section
19 (General Provisions).
11. Special Protections for Source Code
11.1 Special Nature of Source Code. CaminoSoft agrees and acknowledges that
the Source Code is: (i) proprietary to Legato; (ii) is of significant
value to Legato; (iii) is not publicly available; (iv) contains trade
secrets of Legato; and (v) constitutes Confidential Information of
Legato subject to the requirements of this Section 11. In addition to
the requirements of Section 7, CaminoSoft shall comply with the
following restrictions on use of the Source Code and shall maintain the
Source Code in accordance with the following security procedures.
11.2 Responsible Manager. CaminoSoft shall designate a management-level
CaminoSoft employee (the "Responsible Manager") who shall have
responsibility for preserving the security of the Source Code at all
times.
11.3 Access. No Authorized Person shall have access to the Source Code unless
and until: (i) they have been apprised of and acknowledges the
confidential and proprietary nature of the Source Code; (ii) have been
trained with respect to the procedures designed to preserve its
confidentiality; (iii) and is subject to a binding and enforceable
obligation neither to use such Source Code (other than for purposes
expressly permitted by this Agreement) nor to disclose such Source Code
to any person or entity other than a person similarly authorized to
access the Source Code. CaminoSoft at anytime may change the Authorized
Persons.
11.4 Security for Physical Media. To the extent the Source Code is contained
in physical media, CaminoSoft shall maintain such Source Code in a room
or locker in the Facility to which access may be obtained only through a
key or computerized card-access security system and to which only the
Authorized Persons shall have access. All such Source Code shall be
marked with the restrictive legend "LEGATO CONFIDENTIAL AND PROPRIETARY:
FOR USE BY AUTHORIZED PERSONS ONLY." Before any physical storage media
containing Source Code is released for reuse, it will be degaussed or
completely overwritten. Source Code contained on optical disks shall be
returned to Legato.
11.5 Security for Soft Media. To the extent the Source Code is stored '
electronically on an information processing system, such
system shall meet the following requirements:
o Such system will have password-controlled access. Each user will
have a unique user id and associated password. The Source Code
shall be stored in data sets which shall be separately password
protected and each password will be unique.
o Such system, and the Source Code in particular, shall not be
accessible through dial-up facilities or other form of remote
connection.
o Only Authorized Persons and Legato employees (if required) shall
be issued password access to data sets containing Source Code.
Each such password will be randomly selected, non-obvious, and
nontrivial. Logon passwords will be changed at least every thirty
(30) days. Displaying and printing of passwords will be either
inhibited or masked.
11.6 Records and Investigations. The Responsible Manager shall maintain a
record of all persons who have access to the Source Code and the
computer system shall maintain a record of each time a user accessed the
Source Code and the user id of such user. CaminoSoft shall record and
investigate all unauthorized attempts to gain access to the Source Code
and shall promptly notify Legato of any loss, theft, or unauthorized use
or disclosure of the Source Code. CaminoSoft shall make such records
available to Legato at Legato's reasonable request.
11.7 Security Reviews. CaminoSoft shall conduct periodic reviews to ensure
compliance with the foregoing security requirements. Legato shall have
the right to conduct a review to ensure compliance with the foregoing
security restrictions, including an interview of the Responsible Manager
and inspection the records maintained by CaminoSoft pursuant to
subsection 11.6 above, on three (3) Business Days written notice.
11.8 Activity Restrictions. CaminoSoft shall cause each of its employees who
have access to the Source Code to agree in writing: (i) to notify Legato
if they engage in the development of any software which is in direct
competition with the Software at any time during the two years following
the last such access, and (ii) to execute, prior to any such engagement,
a confidentiality agreement in favor of Legato in form and substance
similar to the confidentiality provisions of Section 7 hereof, including
the restriction on the use of the Source Code and any Confidential
Information.
11.9 Return of Source Code. Upon termination of this Agreement, CaminoSoft
shall immediately return to Legato all Source Code, in whatever form,
including all copies, fragments, excerpts, and any materials containing
Source Code, whether or not such Source Code has been intermingled with
CaminoSoft Derivative Works, or CaminoSoft's own information or
materials, and will certify to Legato that all forms of such Source Code
have been returned.
12. WARRANTY AND DISCLAIMERS.
12.1 Limited Warranty. CaminoSoft warrants that the support services to be
provided to End Users will be performed with the same degree of skill
and professionalism as is demonstrated by like professionals performing
services of a similar nature.
12.2 Outstanding Support Agreements. Legato represents that all of
its current contracts for support of the Software expire on
or before December 31st, 2003, except as set forth in Exhibit C.
12.3 Warranty Disclaimer. LEGATO MAKES NO WARRANTIES WITH RESPECT TO any
Software, license or SERVICE AND DISCLAIMS ALL Statutory or IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, or arising from a course of dealing or
usage of trade and any WARRANTIES OF NONINFRINGEMENT. LEGATO DOES NOT
WARRANT THAT THE Software WILL MEET any REQUIREMENTS or THAT THE
OPERATION OF THE Software WILL BE UNINTERRUPTED OR ERROR FREE.
CAMINOSOFT WILL HANDLE AND BE RESPONSIBLE FOR ALL WARRANTY RETURNS FROM
ITS End-users or Resellers.
12.4 Normal Distribution. Legato warrants that it has not Contracted For
Support and Updates for the Software during the 90 days preceding the
Effective Date in an aggregate amount greater than 30% of its aggregate
Contracts For Support and Updates for the Software for the twelve months
preceding the Effective Date. CaminoSoft's sole remedy for breach of
this warranty shall be to receive 85% of any amounts received in respect
of Contracts For Support and Updates that are in excess of such 30%
limit for such 90 day period.
13. LIMITATION OF LIABILITY.
13.1 Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT
OR OTHERWISE, LEGATO WILL in no event BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, OR OTHER
LEGAL OR EQUITABLE THEORY FOR: (I) ANY Indirect, special, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, however caused and whether or not advised in
advance of the possibility of such damages; or (ii) damages for LOST
profits or lost DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY OR SERVICES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITATION OF
LIABILITY OR LIMITED REMEDY, LEGATO'S ENTIRE AGGREGATE LIABILITY ARISING
FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER
ANY LEGAL THEORY, WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE,
SHALL BE LIMITED TO TWO HUNDERD AND FIFTY THOUSAND DOLLARS ($250,000).
14. INDEMNIFICATION.
14.1 Indemnification by CaminoSoft. CaminoSoft shall defend any action
brought against Legato, its officers, directors, agents and employees,
and shall pay all costs, liabilities, damages and legal fees finally
awarded against Legato in, or paid in settlement of, such action, to the
extent such action is based on a third-party claim: (i) where
CaminoSoft's modification, use or distribution of the Legato Products is
not in strict accordance with this Agreement; (ii) of any
misrepresentation or any breach of any warranty, covenant or agreement
on the part of CaminoSoft; or (iii) such third party claim or action
against Legato is for injuries or damage to persons or property caused
or claimed to have been caused by the negligent acts or omissions of
CaminoSoft personnel while in the course of performing work under this
Agreement; (iv) such claim or proceeding relates to any warranty,
representation, liability limit, remedy, indemnity, or other obligation
stated by CaminoSoft in its license agreement or other agreement between
CaminoSoft and such third party, which has terms that differ from the
provisions set forth in Exhibit A; or (v) involving Support of Novell or
any End-Users or Legato reseller whose support contracts have been
assigned to CaminoSoft pursuant to Section 8.2.
14.2 Indemnification by Legato. Legato shall defend any action brought
against CaminoSoft, its officers, directors, agents and employees, and
shall pay all costs, liabilities, damages and legal fees finally awarded
against CaminoSoft in, or paid in settlement of, such action, to the
extent such action is based on a third-party claim that use or
distribution by CaminoSoft of the Legato Product within the scope of the
licenses granted hereunder directly infringes any United States patent
or trademark issued as of the Effective Date or any copyright or trade
secret, provided that: (i) CaminoSoft promptly notifies Legato of any
and all threats, claims or proceedings potentially implicating the
indemnity obligations set forth in this Section 14.2; and (ii) Legato is
given reasonable assistance and the opportunity to assume sole control
over the defense and all negotiations for a settlement or compromise.
Legato will not be responsible for any settlement it does not approve in
writing.
14.3 Infringement Remedies. If the Legato Product is, or in Legato's opinion
is likely to become, the subject of a valid claim, suit, or proceedings
alleging infringement, Legato may either: (i) procure, at no cost to
CaminoSoft, the right to continue using the Legato Product; (ii) replace
or modify the Legato Product, at no cost to CaminoSoft, to make it
non-infringing, or (iii) terminate the license for the infringing Legato
Product and grant a refund credit thereon as amortized on a
straight-line sixty (60) month basis.
14.4 Disclaimer. THE FOREGOING PROVISIONS STATE THE ENTIRE LIABILITY AND
OBLIGATIONS OF LEGATO WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT
OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCT and IS IN LIEU OF ANY
WARRANTIES OF NONINFRINGEMENT.
14.5 Exceptions. The foregoing indemnity obligation of Legato does not apply
with respect to Legato Product or portions or components thereof: (i)
not supplied by Legato, (ii) made in whole or in part in accordance to
CaminoSoft specifications or that constitute a CaminoSoft Derivative
Work, (iii) which are modified after shipment by Legato, if the alleged
infringement relates to such modification, (iv) combined with other
products, processes or materials where the alleged infringement relates
to such combination, or (v) where CaminoSoft continues allegedly
infringing activity after being notified thereof or after being informed
of modifications that would have avoided the alleged infringement.
15. Compliance with Applicable Laws
Export and Import Controls. CaminoSoft acknowledges that the Software
and the technical data received from Legato in accordance with the
terms hereunder may be subject to United States export and import
controls, and in the performance of its obligations, CaminoSoft shall
at all times strictly comply with all laws, regulations and orders,
and agrees to commit no act which, directly or indirectly, would
violate any United States or other countries', regulations or orders.
16. GOVERNMENT MATTERS.
16.1 Government Restricted Rights. This provision applies to Legato Product
licensed directly or indirectly to or on behalf of any government by
CaminoSoft or a Reseller. The Software or CaminoSoft Derivative Work is
a commercial software product, licensed on the open market at market
prices, and was developed entirely at private expense and without the
use of any government funds. Any use modification, reproduction,
release, performance, display, or disclosure of the Software or
CaminoSoft Derivative Work by any government shall be governed solely by
the terms specified in Exhibit A and shall be prohibited except to the
extent expressly permitted thereto, and no license to the Software or
CaminoSoft Derivative Work is granted to any government requiring
different terms.
16.2 U.S. Government Users. If the Legato Product is acquired directly or
indirectly by or on behalf of the United States Government, then use,
duplication, or disclosure is subject to the restrictions as set forth
in the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 subparagraph (c)(1)(ii), or the Commercial Computer
Software - Restricted Rights at CFR 52.227-19, subparagraphs (c)(1) and
(2), as applicable. Manufacturer is Legato Systems, Inc., Mountain View,
California.
17. REMEDIES
17.1 Governing Law. This Agreement shall be governed by the laws of the State
of California, as applied to agreements entered into and to be performed
entirely within California between California residents, without regard
to the principles of conflict of laws or the United Nations Convention
on Contracts for the International Sale of Goods.
17.2 Jurisdiction. The U.S. federal and state courts of the State of
California located in Santa Xxxxx County shall have sole and exclusive
jurisdiction and venue to adjudicate over any actions relating to the
subject matter of this Agreement. The parties hereto consent to the
exclusive jurisdiction of the courts specified above, and expressly
waive any objection to the jurisdiction, venue, or convenience of such
courts.
17.3 Injunctive Relief. The parties agree that a breach of this Agreement
adversely affecting Legato's intellectual property rights in the Legato
Products or Documentation may cause irreparable injury to Legato for
which monetary damages may not be an adequate remedy and Legato shall be
entitled to equitable relief in addition to any remedies it may have
hereunder or at law.
18. NOTICES
All notices under this Agreement are to be delivered by (i) depositing the
notice in the mail, using registered mail, return receipt requested,
addressed to the address below or to any other address as the party may
designate by providing notice, (ii) telecopying the notice by using the
telephone number set forth below or any other telephone number as the
party may designate by providing notice, (iii) overnight delivery service
addressed to the address below or to any other address as the party may
designate by providing notice, or (iv) hand delivery to the individual
designated below or to any other individual as the party may designate by
providing notice. The notice shall be deemed delivered (i) if by
registered mail, four (4) days after the notice's deposit in the mail,
(ii) if by telecopy, on the date the notice is delivered, (iii) if by
overnight delivery service, on the day of delivery, and (iv) if by hand
delivery, on the date of hand delivery.
If to Legato: Legato Systems, Inc
0000 Xx Xxxxxx Xxxx Xxxxxxxx Xxxx,
Xxxxxxxxxx 00000,
XXX
Attention: General Counsel
Telephone: 000 000-0000
Facsimile (650) 210 -7800
If to CaminoSoft: CaminoSoft Corporation
000 Xxxxxxxxx Xxxx Xxxxx 000
Xxxxxxxx Xxxxxxx, XX. 91361
Attention Xxxxxxx X. Xxxxxxx CFO
000-000-0000
Fax 000-000-0000
And Xxxxx X Xxxxxxxx
Xxxxxx Xxxxxx Caillat & Nevis
00 Xxxx Xxx Xxxxxxxx Xxxxxx Xxxxx 0000
Xxx Xxxx, XX. 00000
Attorney for CaminoSoft
408-292-1765
Fax 000-000-0000
19. GENERAL PROVISIONS
19.1 Assignment. Neither this Agreement nor any rights or obligations hereunder,
in whole or in part, shall be assignable or otherwise transferable by
CaminoSoft, except that In the event of a merger, acquisition,
consolidation, reorganization, or sale of substantially all of its assets
or of its business CaminoSoft, with the prior written consent of Legato
which shall not be unreasonably withheld, may assign its rights and
transfer its obligations hereunder to the surviving corporation. Legato may
assign its rights and transfer its obligations hereunder provided
CaminoSoft is previously notified in writing of such assignment.
19.2 Complete Agreement. The parties agree that this Agreement is the complete
and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings and all other
agreements, oral or written, between the parties relating to this
Agreement.
19.3 Amendment. This Agreement may not be modified, altered or amended except by
written instrument duly executed by both parties.
19.4 Waiver. The waiver or failure of either party to exercise in any respect
any right provided for in this Agreement shall not be deemed a waiver of
any further right under this Agreement.
19.5 Severability. If any provision of this Agreement is invalid, illegal or
unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted. The remainder of the Agreement shall be valid
and enforceable to the maximum extent possible.
19.6 Press Release. Neither party shall issue any press release or any other
public announcement related to this Agreement without the prior written
consent of the other party before to the release thereof.
19.7 Read and Understood. Each party acknowledges that it has read and
understands this Agreement and agrees to be bound by its terms.
IN WITNESS WHEREOF each of the parties hereto have executed this agreement by
their duly authorized representatives.
Legato Systems, Inc. CaminoSoft Corporation
------------------------------------------- ---------------------------
[Signature] [Signature]
Name: _______________________ Name: ______________________
Title: _______________________ Title: ______________________
Address: _______________________ Address: ______________________
Date: _______________________ Date: ______________________
