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 ▇▇▇▇ ▇. ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A, ("Legato") and CaminoSoft
Corporation, a California corporation with its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("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.
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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,
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(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.
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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 ▇▇▇▇ 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.
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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.
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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.
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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 ▇▇▇▇, 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".
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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.
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8.2 ▇▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇
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 ▇▇▇▇ who will be the sole and exclusive owner of
such goodwill.
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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 ▇▇▇▇ of the other, such party shall indicate
that such ▇▇▇▇ 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.
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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
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.
12
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).
13
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
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.
15
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 ▇▇▇▇▇ 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
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇
Attention: General Counsel
Telephone: ▇▇▇ ▇▇▇-▇▇▇▇
Facsimile (650) 210 -7800
If to CaminoSoft: CaminoSoft Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. 91361
Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CFO
▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
16
And ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Caillat & Nevis
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇
Attorney for CaminoSoft
408-292-1765
Fax ▇▇▇-▇▇▇-▇▇▇▇
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.
17
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:
--------------------------- -----------------------------
18
Exhibit B
----------------------------------------------
1. SCOPE
1.1 Support shall be provided only to Liaison(s) identified by Legato from
time to time on the form specified in Appendix 1, and consists of
telephone assistance, email, access to self-help and on-line resources,
and Fixes.
1.2 Support will be provided for a maximum of three (3) Liaisons.
1.3 Support is provided for the Software
2. CAMINOSOFT RESPONSIBILITIES
2.1 During the term of this Agreement CAMINOSOFT shall:
2.1.1 Exercise commercially diligent efforts to correct any Problem
reported by Liaison in the current, unmodified release of the
Software in accordance with the Severity level reasonably assigned
to such Problem by Legato. The Severity levels are as defined below:
* ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇: means that a business process is
severely affected and there is no procedural workaround,
End-user cannot recover needed data files. A system workaround
is required immediately;
* SEVERITY LEVEL 2, SERIOUS: means that a business process is
affected, thereby exposing the data to potential loss but
normal business operations are not disrupted;
* SEVERITY ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇: means there is some loss of
functionality, but no immediate business exposure; and
* SEVERITY ▇▇▇▇▇ ▇, ▇▇▇: means a request for information or
enhancement.
19
2.1.2 Receive and track Problems reported by the Liaison via telephone or
e-mail seven (7) days a week, twenty-four (24) hours a day (7x24).
2.1.3 Provide Back-line Technical Support to Liaisons for new Severity 1
cases 7x24. Severity 1 Problems must be reported via telephone.
2.1.4 Provide Back-line Technical Support to Liaisons for Severity 2,
Severity 3 and Severity 4 Problems during regular business hours on
Business Days.
2.1.5 Promptly engage engineering resources, as required for Level 3
Support, with supporting materials for Problems. The technical
support engineer assigned to the Case will act as coordinator
between CAMINOSOFT engineering and Liaison to solicit information
and provide status on the Problem Resolution progress.
2.2 SERVICE LEVEL OBJECTIVES. During the term of this Agreement, CAMINOSOFT
shall use its commercially diligent efforts to meet the following service
level objectives and response times. Legato acknowledges that these are
objectives only and that CAMINOSOFT shall not be held liable for failing
to meet any of the times specified herein.
--------------------------------------------------------------------------------------------------------------
SEVERITY LEVEL I INITIAL CALLBACK CONTACT
TIME STATUS PROBLEM RESOLUTION
FREQUENCY
--------------------------------------------------------------------------------------------------------------
1 30 Minutes Daily Continuous 7x24
--------------------------------------------------------------------------------------------------------------
2 1 Hour Daily Continuous 5x9 Business Days
--------------------------------------------------------------------------------------------------------------
3 4 Hours Weekly As Required (Business Days)
--------------------------------------------------------------------------------------------------------------
4 1 Business Day Monthly As Required (Business Days)
--------------------------------------------------------------------------------------------------------------
2.3 The initial callback is by a technical support engineer.
2.4 Frequency for ongoing communication is between CaminoSoft's technical
support engineer's and Liaison and is intended to drive Problem
Resolution. The frequency may change when jointly agreed to by parties.
2.5 RECLASSIFICATION OF SEVERITY LEVEL. CAMINOSOFT reserves the right to
downgrade the severity of a Case as solutions are provided to lessen the
Problem impact or should Liaison not engage in like resolution efforts.
20
2.6 CASE CLOSURE. Case closure occurs when one of the following conditions has
satisfied the operational requirements of End-user's environment:
2.6.1 A solution or answer provided;
2.6.2 A Bug fix is provided;
2.6.3 A workaround is provided;
2.6.4 Other vendor solution is identified (i.e. Operating System, Network
or Hardware)
2.6.5 Documentation bug submitted;
2.6.6 A Request for Enhancement is submitted.
3. LEGATO'S RESPONSIBILITIES
3.1 During the terms of this agreement the Legato shall:
3.1.1 Complete and keep current, Appendix 1 and return to CAMINOSOFT
within three (3) Business Days of the Effective Date with a minimum
of one (1) Liaison and the Administrative Contact.
3.1.2 Communicate permanent changes or additions to Liaison list at least
two (2) Business Days prior to the new Liaison requesting any
technical assistance by completing a new Appendix 1.
3.1.3 Comply with requirement that all Case activity be opened and managed
by Liaisons.
3.1.4 Provide CAMINOSOFT with a complete and concise Problem description,
all details pertaining to the Problem, Software name and version,
and relevant Operating System or platform information.
3.1.5 To the best of its abilities, read, comprehend and follow operating
instructions and procedures as specified in, but not limited to
documentation and other correspondence related to the Software, and
shall follow procedures and recommendations provided by CAMINOSOFT
support personnel in an effort to correct Problems.
3.1.6 Notify CAMINOSOFT of Problems in accordance with the then-current
CAMINOSOFT problem reporting procedures. If CAMINOSOFT reasonably
believes that a problem reported by Legato may not be due to an
Problem in the Software, CAMINOSOFT will so notify Legato.
3.1.7 Promptly obtain training or certification (where available) on the
use of all Software for Liaisons and keep such Liaisons trained in
all current releases of the Software.
4. WARRANTY AND DISCLAIMER
4.1 LIMITED WARRANTY. CAMINOSOFT warrants that services provided hereunder
will be performed with the same degree of skill and professionalism as is
demonstrated by like professionals performing services of a similar
nature.
21
4.2 WARRANTY DISCLAIMER. THESE TERMS AND CONDITIONS CONSTITUTE A SUPPORT
CONTRACT AND NOT A PRODUCT WARRANTY. ALL SOFTWARE AND MATERIALS RELATED
THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE
APPLICABLE END-USER LICENSE AGREEMENT. All work performed hereunder is "AS
IS" without warranty of any kind. CAMINOSOFT hereby disclaims all
warranties express or implied, statutory, or otherwise, including without
limitation any implied warranties of merchantability, fitness for a
particular purpose, and non-infringement.
4.3 DISCLAIMER. This agreement does not imply any guarantee by CAMINOSOFT to
Fix any reported Problems or provide Fixes within a pre-defined time
frame. CAMINOSOFT actively solicits RFE's from its Resellers and other
partners and customers, however, this in no way commits CAMINOSOFT to
implement any such changes. In addition, Support is limited to assisting
Legato with current production Software and does not include support of
other software (device drivers, shell scripts or special programs) or
hardware (tape drives, Autochanger, etc.) not normally supported or
certified by CaminoSoft.
22
Appendix 1
to
Exhibit B
Legato Information or Modification
----------------------- ---------------------------------------------------------------------------------
LEGATO
----------------------- ---------------------------------------------------------------------------------
Address 1
----------------------- ---------------------------------------------------------------------------------
Address 2
----------------------- ---------------------------------------------------------------------------------
City, State, Zip
----------------------- ---------------------------------------- ----------------------------------------
LIAISON #1 CAMINOSOFT Contact Code:
----------------------- -------------------------- --------------------------- --------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
----------------------- -------------------------- --------------------------- --------------------------
LIAISON #2 CAMINOSOFT Contact Code:
----------------------- -------------------------- --------------------------- --------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
----------------------- -------------------------- --------------------------- --------------------------
LIAISON #3 CAMINOSOFT Contact Code:
----------------------- -------------------------- --------------------------- --------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
---------------------------------------------------------------------------------------------------------
Previous Liaison
----------------------- ---------------------------------------- ----------------------------------------
CAMINOSOFT Contact Code:
PREVIOUS LIAISON
----------------------- -------------------------- --------------------------- --------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
----------------------- ---------------------------------------- ----------------------------------------
NEW LIAISON #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Code:
----------------------- ---------------------------------------- ----------------------------------------
Phone Number FAX Number
E-mail Address Pager Number
----------------------- ---------------------------------------- ----------------------------------------
PREVIOUS LIAISON CAMINOSOFT Contact Code:
----------------------- -------------------------- --------------------------- --------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
----------------------- -------------------------- --------------------------- --------------------------
NEW LIAISON #▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Code:
----------------------- ---------------------------------------- ----------------------------------------
Phone Number FAX Number
----------------------- -------------------------- --------------------------- --------------------------
E-mail Address Pager Number
----------------------- -------------------------- --------------------------- --------------------------
--------------------------------- -----------------------------------
(AUTHORIZED SIGNATURE) (PRINTED NAME)
--------------------------------- -----------------------------------
(Title) (Date)
EXHIBIT C
SITE_IDSITE NAME DESCRIPTION Coverage Level Contract
End Date
11407CITIZENS BANK Availability SnapShotServer for NetWare License Updates 07/31/06
11407CITIZENS BANK Availability SnapShotServer for NetWare License Updates 07/31/06
11407CITIZENS BANK StandbyServer for NetWare per Server License Updates 07/31/06
11407CITIZENS BANK StandbyServer for NetWare per Server License Updates 07/31/06
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ DGGS StandbyServer 24X7 EXTENDED COVERAGE 06/26/05
19316ENRON CORP. StandbyServer 24X7 EXTENDED COVERAGE 08/27/04
19316ENRON CORP. StandbyServer 24X7 EXTENDED COVERAGE 08/27/04
15814DELL COMPUTER CORP StandbyServer for NetWare per Server License Updates 06/30/04
74390DELL COMPUTER CORP StandbyServer for NetWare per Server License Updates 06/30/04
74390DELL COMPUTER CORP StandbyServer for NetWare per Server License Updates 06/30/04