EXHIBIT 10.10
SOURCE CODE LICENSE AGREEMENT DATED JANUARY 21, 2004 BETWEEN
COMPUTER ASSOCIATES INTERNATIONAL, INC. AND CIROND NETWORKS, INC.
SOURCE CODE LICENSE AGREEMENT
This Source Code License Agreement ("Agreement") is entered into as of January
21, 2004 (the "Effective Date") by and between Computer Associates
International, Inc., a Delaware corporation having a place of business at Xxx
Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 ("CA") and Cirond Networks, Inc.,
a Nevada corporation having a place of business at 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000 ("Licensor").
WHEREAS, Licensor develops and manufactures certain software programs commonly
know as WiNc ManagerTM, WiNcTM, and pocketWiNcTM (the "Software" as more fully
defined below to include both object and source code versions thereof);
WHEREAS, CA wishes to license Software on the terms and conditions of this
Agreement and Licensor wishes to grant such license on the terms and conditions
of this Agreement.
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS
The following capitalized terms shall have the meaning set forth below for
purposes of this Agreement:
"CA" means Computer Associates International, Inc. and any corporation which is
now or hereafter owned or controlled, directly or indirectly, by Computer
Associates International, Inc.
"CA SOFTWARE PRODUCT(S)" means software which is or may be distributed by CA
directly or indirectly through a Distributor which includes all or any portion
of the Object Code, it being understood that a CA Software Product may consist
solely of all or a portion of the functionality comprising the Object Code that
has been modified to comply with CA's standards and requirements in CA's sole
discretion. A CA Software Product does not include Source Code except as
otherwise expressly provided in this Agreement.
"CUSTOMER" means a customer who licenses a CA Software Product for end use and
not for redistribution from either CA or from a Distributor.
"DISTRIBUTOR" means a company that is authorized by CA or another CA Distributor
to market, supply, license and/or distribute the CA Software Products pursuant
to a written distribution agreement.
"DOCUMENTATION" means the end user manuals and other documentation which
accompany the generally available Object Code as distributed by Licensor.
"FUNCTIONAL SPECIFICATION" means the specifications for the Software as set
forth in Exhibit B.
"INTELLECTUAL PROPERTY RIGHTS" with respect to the Software, means all rights in
all U.S. and foreign letters patent and applications for letters patent, patents
issued from pending applications and patents claiming priority to such patents
and applications, rights in copyrights and rights of authorship whether
registered or unregistered, rights in trade secrets under common law, state law,
federal law, and the laws of foreign countries and all other intellectual
property rights therein.
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"OBJECT CODE" means a version of the Software that was generated by a compiler
or an assembler and which can be directly executed by a computer system's
central processing unit. In addition, Object Code shall include the
Documentation and all Object Code to the extent provided pursuant to Section
6.2.
"SOFTWARE" means the software programs set forth in Exhibit B and all of
Licensor's Intellectual Property Rights therein. Software includes Object Code
and Source Code.
"SOURCE CODE" means a version of the Software in machine readable form prior to
compilation and human readable form together with explanatory materials and
documentation, including production tools, programmer's notes and comments,
command files and regression tests and other related technical materials which
are necessary for a complete understanding of the content and structure of the
Software, including, without limitation, the additional deliverables set forth
on Exhibit A (collectively, the "Additional Deliverables") to the extent same
are related to Source Code. In addition, Source Code shall include all Source
Code to the extent provided pursuant to Section 6.2.
2. DELIVERY OF THE SOFTWARE AND DOCUMENTATION.
2.1 As soon as practical, but in not more than 5 days of the execution of this
Agreement, Licensor shall provide CA a master disk containing at least one copy
each of Source Code, Object Code, and Documentation and the Additional
Deliverables for CA's evaluation and acceptance testing purposes to determine
that the Source Code can be compiled into the Object Code and that the Source
Code and the Additional Deliverables are complete. In addition, Licensor shall
make available one qualified engineer available at CA's offices in Islandia, New
York to provide support to CA during normal business hours until completion of
the acceptance testing as set forth in this Section 2.1 and Licensor shall cause
such engineer to comply with CA's rules and regulations while at such offices
and sign and deliver to CA a non-disclosure agreement substantially in the form
of Exhibit F attached hereto prior to entering such premises.
In the event, CA notifies Licensor within 5 days of receipt of such
copies that the Source Code cannot be so compiled or either the Source Code
and/or the Additional Deliverables are incomplete, then Licensor shall promptly
provide CA with any modification and/or Additional Deliverables necessary to
ensure that the Source Code can be so compiled or is complete, as the case may
be. In the event that CA does not contact the Licensor with in such 5-day
period, then in such event, the Software shall be deemed accepted. The license
fees for the Software set forth in this Agreement are contingent upon acceptance
by CA of the Software under this Agreement. In the event that CA does not accept
the Software as set forth above, CA may terminate this Agreement upon written
notice without any further obligation to Licensor and may receive a refund of
any license fees, supports fees or other amounts paid by CA hereunder.
3. GRANT OF LICENSES.
3.1 In consideration of the license fees set forth in Section 5.1 of this
Agreement, Licensor hereby grants to CA the following world-wide, non-exclusive,
perpetual, fully paid up and irrevocable licenses:
(a) to use the Software and Documentation, in whole or in part, for its
own internal use;
(b) to use the Software and Documentation, in whole or in part, for
developing, manufacturing, reproducing, and supporting CA Software Products;
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(c) to use the Software and Documentation, in whole or in part, for
marketing, distributing, sublicensing and demonstrating CA Software Products to
Customers and Distributors;
(d) to merge or combine the Software, in whole or in part, with other
software to create CA Software Products, provided always that the Intellectual
Property Rights in the Software or any portions thereof included in CA Software
Products remains vested in Licensor;
(e) to modify, enhance and create derivative works of the Software in
connection with the licenses granted in clauses (a) through (d) above,
including, without limitation, the addition of new features and functionality
thereto.
(f) to distribute, transfer and sublicense the CA Software Products, in
source code form, directly and indirectly to Distributors, Customers and CA
business partners, it being understood that for a period of twelve (12) months
from the Acceptance Date of the Source Code, CA shall not so distribute the
Source Code without the prior written consent of Licensor and under no
circumstances during the term of this Agreement shall distribution of such
Source Code be made to any entity engaged in the manufacturer of WiFi management
software products without the prior written consent of Licensor.
3.2 Ownership of the Software and Documentation together with all new versions
thereof provided by Licensor to CA shall remain vested in Licensor or its
licensors. All enhancements, modifications and derivative works of the Software
and Documentation developed by or on behalf of CA shall be owned by CA, subject
to Licensor's underlying Intellectual Property Rights in the Software and
Documentation. CA shall also retain ownership of all CA software programs that
may be merged or combined with the Software and nothing in this Agreement shall
be interpreted or constued as granting Licensor any licenses or rights with
respect to any CA or third party software programs that may be merged or
combined with the Software.
3.3 Licensor grants CA and its Distributors the right and license, but not the
obligation, to use in conjunction with the marketing of the Software under this
Agreement any trademarks or tradenames of Licensor. Such trademarks include but
are not limited to WiNc ManagerTM, WiNcTM, and pocketWiNcTM. If CA utilizes a
Licensor trademark or a Licensor tradename, the trademark or tradename shall be
attributed to the Licensor. No right to use any CA trademark or CA tradename is
granted by CA hereunder.
3.4 ALL RIGHTS TO THE SOFTWARE AND DOCUMENTATION NOT EXPRESSLY GRANTED
HEREIN ARE RESERVED BY LICENSOR.
4. LICENSOR'S RESPONSIBILITIES.
4.1 Licensor shall provide CA and its Distributors, at no charge, with a
reasonable number of copies of all marketing collateral and related information
regarding the Software upon request.
4.2 Licensor will provide CA with technical support for the Software as set
forth in Section 6 and Exhibit D of this Agreement.
4.3 Licensor shall provide to CA (a) technical training relating to
installation and system administration of Software for the number of software
engineers set forth on Exhibit B and (b) the number of days of on-site training
and support set forth on Exhibit B at times mutually acceptable to both parties.
Such training and consulting shall be without charge to CA and shall be provided
at up to 5 of CA's offices unless otherwise agreed by the parties in writing
except that Licensor
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shall be entitled to reimbursement for reasonable travel expenses to such
offices so long as such expenses are approved in advance by CA, are in
compliance with CA's standard guidelines for such expenses and any request for
reimbursement is accompanied by the actual receipts for such expenses. .
4.4 Licensor will notify CA within 30 days of any plans to make any new,
enhanced or modified versions containing substantial new functionality of the
Software or any replacements of the Software containing substantial new
functionality. Licensor grants CA the option to license such Software for a
license fee that shall be no more than 15% of the license fee set forth in
Exhibit C and upon such other terms and conditions that will be substantially
the same as those set forth in this Agreement.
5. CONSIDERATION.
5.1 For the rights and licenses granted to CA hereunder, CA shall pay
Licensor the license and support fees set forth on Exhibit C according to the
payment schedule in Exhibit C. Such fees shall also cover technical support for
an initial period of one year commencing upon the CA's acceptance of the
Software under this Agreement (the "Acceptance Date"). After the initial one
year period, CA shall have the option to renew technical support services for
additional one year periods for the fixed fee set forth in Exhibit C, which
option shall be exercised annually by CA providing Licensor with a written
notice to Licensor of CA's intent to so renew no later than thirty days prior to
each anniversary of the Acceptance Date, which notice shall be accompanied by
the renewal fee set forth in Exhibit C.
5.2 All prices are inclusive of all taxes and duties. Licensor shall
arrange, at its expense and risk, shipment to CA of Software and any new
versions thereof supplied hereunder on the appropriate storage medium and in
appropriate packaging. Risk of loss remains with Licensor until received by CA.
6. TECHNICAL SUPPORT
6.1 During each year in which CA elects to acquire support services from
Licensor, Licensor will supply CA with support for the Software in accordance
with the terms of set out in Exhibit D. As part of such support service Licensor
shall use reasonable efforts consistent with industry standards to correct
failure of the Software to comply with the Functional Specification on a
schedule that is consistent with the timeframes based on severity of the problem
set forth in Exhibit D. Licensor shall use reasonable efforts consistent with
industry standards to provide work-arounds to minimize the effects of any such
errors until a fix can be provided.
6.2 Licensor shall provide CA with one copy of the most current copy of all
materials necessary to provide support for the Software. Such materials shall
include, without limitation, the Source Code, necessary documentation and
listings, known error information, amendments and modifications to the Source
Code and documentation and test tools for performing support services. The above
materials shall be provided to CA within 30 days of the Acceptance Date of this
Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Licensor represents and warrants that it has the right to grant the
licenses and rights granted in this Agreement and that it is under no obligation
or restriction, nor will it assume any obligation or restriction, which would in
any way interfere with, be inconsistent with or present a conflict of interest
concerning its obligations under this Agreement.
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7.2 Licensor further represents and warrants that:
(a) except as disclosed on the attached Exhibit E, the Software is an
original work, is not in the public domain, does not embed or incorporate any
third party product or code, including, but not limited to, any so called
"freeware" or "open source" or source code subject to the General Public License
or Lesser General Public License or any similar license; and Licensor is under
no royalty obligation to any third party relating to the Software or CA's
exercise of its rights under this Agreement; and Licensor is not party to any
agreement with a third party the terms and conditions of which will be breached
by Licensor's entering into this Agreement or by the exercise of CA's rights
hereunder;
(b) the Software does not infringe any intellectual property rights
under any patent, copyright or trademark or other intellectual property right
anywhere in the world and the use and distribution of the Software by CA and the
other intellectual property rights granted by Licensor to CA under this
Agreement shall not infringe any patent, copyright, trademark or other
intellectual property right of any third party and
(c) the Software (including all new releases and updates thereto
provided hereunder) shall perform substantially in accordance with the
Functional Specification. Should the Software not operate in the prescribed
manner then Licensor shall use reasonable efforts consistent with industry
standards to ensure that it does so in as short a time as is possible. Licensor
did not include any authorizations strings, "time bombs", license managers or
other devices in the Software.
(d) it does not represent or warrant herein that the Software is free
of errors.
7.3 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS
PROVIDED ON AN "AS IS" BASIS. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
LICENSOR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES TO THE FULL
EXTENT PERMITTED BY LAW, , INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.4 CA acknowledges and agrees that the Source Code constitute proprietary
and confidential information of Licensor.
7.5 Licensor further represents and warrants that as of the Effective Date
it has not determined the U.S. Department of Commerce Export Classification for
the Software. Licensor, from and after the date hereof, shall notify CA promptly
when and if it determines or makes any changes to such Classifications. Licensor
shall cooperate with CA to provide CA with all reasonable information covering
export classification of the Software as necessary to enable CA to comply with
applicable import or export laws and regulations.
8. INDEMNITY
8.1 Licensor shall fully indemnify CA against any and all loss, costs,
expenses and liability in connection with, and defend CA against any claims (i)
that the Software infringes any copyright, patents, trademarks, trade secrets or
other intellectual property rights of third parties; or (ii) which are based on
a failure of Licensor to perform its warranty, maintenance, and support
obligations as set forth in this Agreement; or (iii) arising out of a breach of
the representations and warranties set forth in Section 7 hereof; provided that:
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(a) Licensor is given written notice within 15days from the time that
CA first learns of such claim and CA gives Licensor reasonable assistance in
connection with the defense of the claim (at Licensor's expense); provided,
however, that CA's failure to provide notice within such 15 day period shall not
release Licensor from its indemnification obligations hereunder unless Licensor
can demonstrate that its defense of such claim was materially and adversely
effected by such failure;
(b) Licensor shall have the opportunity to conduct and control of the
claim's settlement or compromise; provided that under any settlement or
compromise CA is granted an unconditional general release without prejudice and
such settlement or compromise does not adversely affect any of CA's rights under
this Agreement; and
(c) such infringement is not caused by the combination by CA of the
Software with other infringing software products.
8.2 In connection with any claim for which indemnification has been sought
by CA pursuant to the above Section 8.1, (i) CA may assume responsibility for
the direction of its own defense at any time upon prior written notice to
Licensor, including the right to settle or compromise any claim against it
without Licensor's consent, provided that in doing so it shall be deemed to have
waived its right to indemnification except in cases where Licensee has declined
to provide a defense of such claim as required by Section 8.1 and (ii) CA may
engage counsel of its own choosing at its sole expense to monitor any defense
being provided by Licensor pursuant to Section 8.1 and Licensor shall cooperate
and cause its counsel to cooperate with any counsel so engaged by CA.
9. TERM AND TERMINATION
9.1 This Agreement shall commence upon its execution and shall continue
until terminated as follows:
(a) By CA by giving at least 30 days notice in the event the Software
fails initial acceptance testing as set forth in Section 2 of this Agreement and
upon such termination CA shall delete all copies of the Software in its
possession, including, without limitation, deleting such copies from its
computer processors;
(b) By either party if the other party commits any material breach of
its obligations hereunder and fails within 30 days after receiving written
notice to cure the same. Any such termination shall be without prejudice to any
other rights which may have accrued to it hereunder;
(c) By either party immediately by written notice if the other party
files a petition in bankruptcy, goes into liquidation, admits that it is
insolvent, makes an assignment for the benefit of creditors, or has a petition
in bankruptcy or receivership filed against it and such petition is not
dismissed with within 30 days following filing.
9.2 In the event of a termination due to a breach by Licensor as set forth
in Sections 9.1 (b) and (c), the licenses granted to CA in Section 3 shall
remain in effect perpetually and CA shall be entitled to retain and continue to
make or obtain copies of the Software (including the Source Code). At the
termination of the Agreement, Licensor's obligation to provide support hereunder
shall at the option of CA continue in accordance with the terms and conditions
contained herein for a period of at least one year following such termination.
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9.3 All licenses properly granted to CA, Customers and Distributors
hereunder shall survive termination or expiration of this Agreement unless the
Agreement is terminated due to CA's material breach under Section 9.1(a) or is
terminated pursuant to Section 9.1(b) due to CA's financial condition.
9.4 In addition to this Section 9, the obligations set forth in Sections 5,
7, 8, 10 and 11 shall survive termination of this Agreement and shall bind the
parties and the legal representatives, successors, heirs and assigns.
10. LIMIT OF LIABILITY
10.1 NEITHER PARTY SHALL IN ANY CIRCUMSTANCES BE LIABLE TO THE OTHER PARTY
FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT LOSS, DAMAGE OR INJURY, COST OR
EXPENSE HOWSOEVER ARISING AND OF WHATSOEVER NATURE INCLUDING (WITHOUT
LIMITATION) LOSS OF PROFIT, LOSS OF CONTRACTS, LOSS OF OPERATION TIME OR LOSS OF
USE OF ANY EQUIPMENT OR PROCESS.
11. CONFIDENTIALITY OBLIGATIONS RELATED TO SOURCE CODE AND DOCUMENTATION
11.1 CA agrees to handle the Source Code with the same degree of care it
takes to safeguard its confidential or secret information of a like nature, but
in no event less than a reasonable degree of care, and will not disclose or make
available, directly or indirectly, Source Code to any third party, except (i)
for disclosure to independent contractors that have entered in non-disclosure
agreements with terms and conditions consistent with CA's confidentiality
obligations hereunder, (ii) as expressly permitted hereunder, (iii) for
disclosure if CA files a petition in bankruptcy, goes into liquidation, admits
that it is insolvent, makes an assignment for the benefit of creditors, or has a
petition in bankruptcy or receivership filed against it and such petition is not
dismissed with within 30 days following filing; or (iv) with the prior written
consent of Licensor, which shall not be unreasonably withheld.
12. GENERAL.
12.1 All notices, consents and other communications required or permitted
under this Agreement shall be in writing and sent by registered or certified
mail, postage pre-paid, transmitted by facsimile transmission confirmed by mail
as set forth above or sent by overnight courier (if delivery is confirmed by the
courier) to the addresses indicated on the first page of this Agreement, or such
other address as either party may indicate by at least 10 days prior notice to
the other party. In the case of CA, all such notices shall be sent to the
attention of Corporate Business Development with a copy to the attention of
General Counsel. In the case of Licensor, all such notices shall be sent to the
attention of President and CEO.
12.2 Both parties agree that the personnel of one party shall not for any
purposes be considered employees or agents of the other party and that the
parties shall be deemed independent contractors. Nothing in this Agreement shall
be construed to constitute either party as an agent, partner or legal
representative of the other party. Both parties assume full responsibility for
the actions of its personnel while performing activities pursuant to this
Agreement. Each party shall bear its own expenses in its performance of this
Agreement unless otherwise specifically indicated in this Agreement.
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12.3 Neither party may assign this Agreement without the prior written
consent of the other party, such consent not to be unreasonably withheld. This
Agreement shall inure to the benefit of and be binding upon each of the parties
and their respective successors and permitted assigns.
12.4 If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, invalid, or unenforceable, the validity or
enforceability of the remainder of this Agreement shall not be affected. The
failure by any party to exercise any of its rights under this Agreement or to
require performance of any term or provision in any one instance shall not
prevent subsequent exercise or enforcement of such rights or be deemed a waiver
of any subsequent breach of the same or any other term or provision of this
Agreement. Any waiver of the performance of any of the terms or conditions of
this Agreement shall be effective only if in writing and signed by the party
against which such waiver is to be enforced.
12.5 The parties agree to keep the specific terms and conditions of this
Agreement in confidence. All press releases relating to this Agreement shall
require the mutual written approval of both parties provided that CA may,
without such approval, issue press releases or other communications that
reference the functionality and features of the Software.
12.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and in the event of any dispute the parties
hereto submit to the jurisdiction of the State and Federal courts of Chicago,
Illinois.
12.7 This Agreement represents the entire agreement between the parties
with respect to the subject matter contained herein and supersedes any and all
written communications, representations and arrangements whether written or oral
(whether given or made before or after the date hereof). No alteration,
modification, waiver or addition to this Agreement shall be valid unless made in
writing and signed by both parties' duly authorized representatives.
12.8 The remedies provided by this Agreement are not intended to be
exclusive. Each shall be cumulative and shall be in addition to all other
remedies available to either party under law or equity.
12.9 This Agreement may be executed in counterparts, all of which together
shall be deemed one and the same License.
COMPUTER ASSOCIATES CIROND NETWORKS, INC.
INTERNATIONAL, INC.
By: By:
------------------------------ -----------------------------------
Name: XXXXX XXXXXXX Name: XXXXXXXX XXXXXX
---------------------------- ---------------------------------
Title: VICE PRESIDENT Title: PRESIDENT AND CEO
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