{"id":42816,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-license-and-marketing-agreement-computer-associates.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-license-and-marketing-agreement-computer-associates","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-license-and-marketing-agreement-computer-associates.html","title":{"rendered":"Software License and Marketing Agreement &#8211; Computer Associates International Inc. and Exodus Communications Inc."},"content":{"rendered":"<pre>\n                   SOFTWARE LICENSE AND MARKETING AGREEMENT\n                                        \nThis Agreement is entered into as of April ___, 1997 (the \"Effective Date\") by\nand between Computer Associates International, Inc., a Delaware corporation\nhaving a place of business at One Computer Associates Plaza, Islandia, NY 11788-\n7000 (\"CA\") and Exodus Communications, Inc. a California corporation having a\nplace of business at 1605 Wyatt Drive, Santa Clara, CA 95054 (\"Exodus\").\n\nWHEREAS, CA and Exodus agree to provide for the cooperative marketing, services\nand support of certain CA computer software programs;\n\nWHEREAS, CA and Exodus agree to provide cooperative marketing services for\nExodus' Internet-based Co-location Services; and\n\nNOW, THEREFORE, the parties agree as follows:\n\n1.    DEFINITIONS\n\nThe following capitalized terms shall have the meaning set forth below for\npurposes of this Agreement:\n\n\"CA\" means Computer Associates International, Inc. and any corporation which is\nnow or hereafter owned or controlled, directly or indirectly, by Computer\nAssociates International, Inc.\n\n\"CA Product\" means CA Unicenter(R) TNG(TM), all generally available versions,\ncurrent as well as future, on all generally available platforms and with all\ngenerally available options, with associated technical manuals and end-user\ndocumentation documentation (current products as of the date of this Agreement\nare listed Appendix A to this Agreement) and Unicenter TNG Software Development\nKit (\"SDK\"). CA shall provide foreign language versions of the CA Product on an\nas needed basis solely determined within CA's discretion. CA will provide beta\nversions of the CA Product on an as needed basis, solely determined within CA's\ndiscretion pursuant to CA's standard license agreement and Beta Addendum,\nattached as Appendix B to this Agreement.\n\n\"Cheyenne Products\" means Cheyenne's ARCserve(R) and InocuLAN(R) products, all\ngenerally available versions, current as well as future, on all generally\navailable platforms and with all generally available options, with associated\ntechnical manuals and end-user documentation. CA shall provide foreign language\nversions of the Cheyenne Products on an as needed basis solely determined within\nCA's discretion. CA will provide beta versions of the Cheyenne Products on an as\nneeded basis, solely determined within CA's discretion pursuant to CA's standard\nlicense agreement and Beta Addendum, attached as Appendix B to this Agreement.\n\n\"Gross revenues\" means all actual monies received from Exodus clients and\nresellers, less rebates, and discounts.\n\n\"Internet-based Co-location Services\" means Exodus's Network Management, Data\nTraffic Management, Enterprise-class Security, Telco Line Management, and System\nManagement as described in Appendix C.\n\n \nSuch definitions will be updated from time to time.\n\n2.    APPOINTMENT\n\n2.1   CA appoints Exodus as a non-exclusive, worldwide marketing representative\nto promote the CA Product and the Cheyenne Products to prospective clients with\nrights in accordance with the terms and conditions of this Agreement.\n\n2.2   Exodus appoints CA as a non-exclusive, worldwide marketing representative\nto promote Internet-based Co-Location Services to prospective clients with\nrights in accordance with the terms and conditions of this Agreement.\n\n3.    GRANT OF LICENSES AND MARKETING RIGHTS\n\n3.1   CA hereby grants to Exodus and Exodus accepts the following non-exclusive,\n      nontransferable, limited-use, worldwide rights and licenses:\n\n          (i)    to use, and to copy solely for such use, the CA Product solely\n          on the designated CPUs at the Exodus Internet Data Sites (\"Exodus\n          Sites\") identified in the standard CA Order Form attached as Appendix\n          D and only for the internal operations of Exodus and processing its\n          own and such client data necessary to manage client's servers at such\n          Exodus Sites identified in Appendix E. CA will provide authorization\n          keys upon receipt of such order form supplying written notification of\n          the location, make, model, serial number, and other required\n          information for CA to issue the authorization key.\n\n          (ii)   to use, copy and distribute CA marketing collateral relating to\n          the CA Product, including product brochures and presentations for\n          client demonstration purposes.\n\n          (iii)  to use and to copy solely for such use, the Cheyenne Products\n          solely on the designated CPUs at the Exodus Sites identified in the\n          standard CA Order Form attached as Appendix D and only for the\n          internal operations of Exodus and processing its own and such client\n          data necessary to manage client servers at such Exodus Sites\n          identified in Appendix E. CA will provide authorization keys upon\n          receipt of such order form supplying written notification of the\n          location, make, model, serial number, and other required information\n          for CA to issue the authorization key.\n\n          (iv)   to use in accordance with this Agreement associated end user\n          documentation for the CA Product and Cheyenne Products.\n\n          (v)    to use in accordance with this Agreement and Appendix F, CA\n          trademarks, tradenames, service marks and logos relating to the CA\n          Product and Cheyenne Products (\"CA Marks\") in connection with the\n          joint marketing efforts as listed in Appendix G. If Exodus uses any CA\n          Marks, ownership of such CA Marks shall be attributed to the CA.\n\n3.2   Without prior written consent of CA, Exodus shall not:\n\n \n      (a) except as provided in this Agreement, make copies or permit others to\n      make copies of or reproduce any part of the CA Product or Cheyenne\n      Product.\n\n      (b) modify, reverse compile, reverse engineer or reverse assemble all or\n      any portion of the CA Product or Cheyenne Products.\n\n      (c) distribute, market, rent, lease, transfer or sublicense the CA Product\n      or Cheyenne Products to third parties for the benefit of third parties\n      except as provided in this Agreement.\n\n      (d) unless such client has procured a license from CA or an authorized CA\n      reseller for such product(s), provide its clients access to or permit its\n      clients to access the CA Product installation materials or management\n      stations or the Cheyenne Products code.\n\n      (e) make the results of any benchmarking or competitive analysis relating\n      to the CA Product or Cheyenne Products known to the public, any potential\n      customer or any existing customer.\n\n3.3   Exodus agrees to keep and maintain installation records and usage records\n(including SMF records) relating to the CA Product and Cheyenne Products and to\nfurnish CA copies of such records and access to its facilities as CA may\nreasonably request from time to time in order to verify compliance with the\nprovisions hereof.\n\n3.4   All CA Marks remain the exclusive property of CA. Exodus will not register\nthe CA Marks or take any action that jeopardizes CA's proprietary rights in the\nCA Marks. Exodus agrees to follow CA's instructions and adhere to CA's quality\ncontrol procedures relating to the CA's Marks and only use the CA's Marks in\nunaltered form. CA reserves the right to require Exodus to submit advertising\nand marketing material referencing CA, CA Marks, the CA Product, or the Cheyenne\nProducts to CA for advance review and approval and upon request to discontinue\nany advertising or marketing material relating to CA, CA Marks, CA Product, or\nCheyenne Products.\n\n3.5   Exodus hereby grants to CA the following nonexclusive, filly paid-up,\nworldwide rights and licenses:\n\n          (i)    to use, copy and distribute Exodus marketing collateral\n          relating to its Internet-based Co-location Services, including product\n          brochures and presentations; and\n\n          (ii)   to use in accordance with this Agreement and Appendix F the\n          Exodus trademarks, tradenames, service marks and logos relating to its\n          Internet-based Co-location Services (\"Exodus Marks\") in connection\n          with marketing efforts as listed in Appendix G. CA shall be under no\n          obligation to use such Exodus Marks. If CA uses any Exodus Marks,\n          ownership of such Marks shall be attributed to Exodus.\n\n3.6   All Exodus Marks remain the exclusive property of Exodus. CA will not\nregister the Marks or take any action that jeopardizes Exodus's proprietary\nrights in the Exodus Marks. CA agrees to follow Exodus' instructions and adhere\nto Exodus' quality control procedures relating to\n\n \nthe Exodus Marks and shall only use the Exodus Marks in unaltered form. Exodus\nreserves the right to require CA to submit advertising and marketing material\nreferencing Exodus, Exodus' Marks, or Exodus' Internet-based Co-location\nServices to Exodus for advance review and approval and to discontinue any\nadvertising and marketing material relating to Exodus, Exodus' Marks or the\nInternet-based Co-location Services upon request.\n\n3.7   Exodus agrees not to export or disclose, directly or indirectly, the CA\nProduct, Cheyenne Products or end-user documentation and related technical\nmanuals without the prior written consent, if required, of the US Department of\nCommerce, Washington, D.C. 20230.\n\n3.8   During the term of this Agreement, the parties agree to cooperate in the\njoint marketing activities described in Appendix G. Except as otherwise set\nforth in Appendix G, each party shall be responsible for its own costs and\nexpenses in connection with such agreed marketing activities. Exodus understands\nand agrees that CA is not guaranteeing any volume of business or referrals to\nExodus as a result of this Agreement. Except for the specific marketing\nactivities in this Agreement, CA retains full freedom and flexibility to\ndetermine the nature and extent of its marketing efforts regarding CA Product in\nCA's own business judgment and discretion.\n\n3.9   This Agreement does not authorize Exodus to distribute or sublicense the\nCA Product or Cheyenne Products. CA shall remain responsible for the licensing\nand support of its own proprietary software, and Exodus shall have only the\nrights and obligations with respect to CA's products as described in this\nAgreement. Exodus is not authorized to quote prices for such software. Any\nquotations, licenses, contracts or other agreements relating to the licensing or\nsupport of such software shall be in the sole discretion of the CA.\n\n3.10  The parties may supplement the Appendixes to this Agreement from time to\ntime, which shall in each instance be incorporated as an Amendment to this\nAgreement at the time it is signed by an authorized representative of CA and\nExodus.\n\n4.    EXODUS' RESPONSIBILITIES\n\n4.1   Under a separate agreement with terms to be mutually agreed upon by the\nparties, Exodus will co-locate CA's hosting servers at sites to be later\ndetermined by the parties. For the first 35 hosting servers co-located with\nExodus, Exodus agrees to charge CA a co-location price that is the lower of\nthirty-eight percent (38%) of Exodus' current prices, the most favorable charge\nExodus has provided to any other of its commercial or government customers or\ncost for similar services. For the co-location of hosting servers above 35 and\nbelow 200, Exodus agrees to charge CA a price that is the lower of thirty-three\npercent (33%) of Exodus' current prices, the most favorable charge provided to\nany other of its commercial and government customers or cost for similar\nservices. For the co-location of servers above 200, Exodus agrees to charge CA a\nprice that is the lower of thirty-five (35%) of Exodus' current prices, the most\nfavorable charge provided to any other of its commercial and government\ncustomers or cost for similar services. Upon request, CA shall have the right to\nrequest supporting documentation of Exodus' costs and most favorable charge and\nif such cost and most favorable charge is not reasonably verified by such\ndocumentation, CA shall have the right to examine Exodus' records and verify\nsuch cost and most favorable charge in accordance with Section 7.4.\n\n4.2   Exodus shall use reasonable efforts to perform the joint marketing\nactivities set forth in Appendix B.\n\n \n4.3   Exodus shall provide CA access to its Exodus Sites listed in Appendix E\nfor client visits and demonstration of the CA Product. Thirty-three percent\n(33%) of Exodus's conference room space at each Exodus Sites will be available\nfor CA's use on a commercially reasonable basis. An Exodus employee will be\navailable at all such times to answer questions relating to the Exodus Sites.\n\n4.4 (a)   During the term of this Agreement, Exodus agrees that it shall not\nutilize with its clients computer software programs substantially similar in\nfunctionality to or identical in functionality to the CA Product or Cheyenne\nProducts, including selling such substantially similar or identical software\ninto CA's confidential client base. Such programs substantially similar in\nfunctionality to or identical to the CA Product or Cheyenne Products shall\ninclude, but shall not be limited to, IBM's system management software,\nincluding Tivoli, HP OpenView, Remedy, Cabletron Spectrum and SunNet Manager,\nand for back-up and antivirus software products generally available from\nSeagate, Legato, McAfee, Stac, Software Mogul, and Symantec (and such successor\nsoftware versions or updates). Exodus and CA agree to discuss each software\nprogram, tool or agent used, employed or proposed to be used by Exodus at its\nExodus Sites which is substantially similar in functionality to or identical in\nfunctionality to the CA Product or Cheyenne Products. The parties will work\ntogether to ascertain whether the proposed product is substantially similar in\nfunctionality to or identical in functionality to the CA Product or the Cheyenne\nProducts and can reasonably satisfy Exodus requirements as to functionality and\ncompatibility (hereinafter referred to as \"substantially similar\nfunctionality\"). CA agrees to consider any suggested changes to improve, expand\nor augment the functionality of the CA Product or Cheyenne Products as a result\nof this functionality assessment.\n\n      In accordance with the following Exodus agrees:\n\n      (i)   to convert within ninety (90) days, from the provision of the\n            engineer by CA to each Exodus Site, from HP OpenView and Remedy to\n            Unicenter-TNG .\n\n      (ii)  to convert within ninety (90) days of the final determination that\n            Exodus' proposed product is substantially similar to or identical in\n            functionality to the CA Product or Cheyenne Products for competing\n            products to generally available CA Product or Cheyenne Products. At\n            the end of such ninety (90) days, if Exodus has employed its best\n            efforts to convert to such CA Product or Cheyenne Products and has\n            been unable to complete such conversion, CA, in its sole discretion,\n            shall extend the conversion time period by thirty (30) days.\n\n      (iii) to become a CA beta test site for beta CA Product or Cheyenne\n            Products, and to convert from any competing product that has been\n            determined during the beta test period to be substantially similar\n            to or identical in functionality to the CA Product or Cheyenne\n            Products within ninety (90) days of such CA Product or Cheyenne\n            Products becoming generally available.\n\nThis clause shall not prohibit Exodus from licensing computer software programs\nwhich the parties mutually decide under this provision are not substantially\nsimilar or are not identical in functionality to the CA Product or Cheyenne\nProducts.\n\n      (b) During the term of this Agreement, Exodus agrees that it shall not\nmarket or provide Intranet or web-based design and development services similar\nto the services marketed or sold by CA to into CA's confidential client base.\n\n \n4.5   Exodus will provide CA with sales leads and support for appropriate mutual\nopportunities. Exodus may provide CA with pro-sales support as deemed\nappropriate in accordance with Exodus's reasonable business judgment and\ndiscretion.\n\n4.6   Exodus represents to CA that it and its clients are parties to a bona fide\nCo-location Agreement, pursuant to the terms and conditions of Exodus' standard\nagreements, under which Exodus has undertaken or will undertake the management\nof client's server on behalf of client. Exodus shall ensure that no client shall\nbe granted access to the management stations or installation materials of the CA\nProduct or Cheyenne Products code installed on their machines unless such client\nhas procured a license from CA or an authorized CA reseller for such product(s).\n\n5.    CA RESPONSIBILITIES\n\n5.1   CA will use reasonable efforts to perform the joint marketing activities\nset forth in Appendix G.\n\n5.2   CA will provide Exodus with one full-time implementation engineer for each\nExodus Site listed in Appendix E within forty-five (45) days of such location\nbecoming operational under the terms and conditions of this Agreement. Such\npersonnel shall be managed by CA and shall work with Exodus personnel on the\nimplementation of the integration of the CA-Product and Cheyenne Products with\nExodus' Internet-based Co-location Services described in Appendix A. Upon mutual\nagreement, these engineers will be redeployed to other Exodus locations. For\nthose sites which are operational at the time of execution of this Agreement by\nboth parties, CA will provide Exodus with such engineers within thirty (30) days\nof such execution.\n\n5.3   CA will provide Exodus with training as reasonably necessary on the CA\nProduct and Cheyenne Products at times and places mutually acceptable to both\nparties at no charge.\n\n5.4   CA will provide Exodus with sales leads support for appropriate mutual\nopportunities. CA may provide Exodus with pre-sales support as deemed\nappropriate in accordance with CA's reasonable business judgment and discretion.\n\n5.5   Under a separate Agreement with terms to be mutually agreed upon by both\nparties, CA agrees to co-locate and have Exodus host all of its current and\nproposed web servers at Exodus' Internet Data Site, provided that CA's client\nbase agrees to such co-location. Notwithstanding the foregoing, CA shall not be\nobligated to co-locate and host such servers with Exodus if CA's contractually\nnegotiated professional services price is less than Exodus' charge for such\nservices.\n\n5.6   If feasible, CA will offer excess real estate to Exodus to be used as\nExodus Sites at CA's cost and under a separate agreement to be negotiated by the\nparties.\n\n5.7   During the term of this Agreement, CA agrees not to market co-location\nservices into Exodus' confidential customer base.\n\n\n6.    CONFIDENTIAL AND PROPRIETARY INFORMATION\n\n \n6.1   Each party acknowledges that during the term of this Agreement, the other\nparty may disclose confidential and proprietary business or technical\ninformation and agrees that it will not use such confidential and proprietary\nbusiness or technical information except as provided in this Agreement. As used\nin this Agreement, Confidential and Proprietary Information means any\nproprietary computer software programs, marketing collateral, technical manuals,\nclient list, or documentation or other information that is designated by either\nparty to be confidential (hereinafter referred to as \"Confidential\nInformation\"). The party who receives such Confidential Information pursuant to\nthis Agreement is referred to as the \"Receiving Party\" and the party making such\ninformation available is referred to as the \"Supplying Party.\"\n\n      For the purposes of this Agreement, Confidential Information shall not\ninclude such information that: (i) is or becomes publicly available through no\nfault of the Receiving Party; (ii) is made publicly available by the Supplying\nParty; (iii) becomes known by the Receiving party through lawful disclosure from\na third party that is not subject to a confidentiality duty to the Supplying\nParty; (iv) is required to be disclosed by law, provided notice is given to the\nSupplying Party of such requirement as soon as practicable and reasonable\nassistance is rendered to the Supplying Party, if requested, to prevent such\ndisclosure; (v) was known by the Receiving Party prior to disclosure without an\nobligation of confidentiality; or (vi) was developed by the Receiving Party\nindependent of any reference to the Confidential Information and independent of\nthe participation of any person who had access to the Confidential Information.\n\n      Each Receiving Party agrees that in absence of prior written consent by\nthe Supplying Party, it shall not, directly or indirectly, disclose to a third\nparty, the existence or contents of the Confidential Information, whether\ndisclosed either orally, in writing or by any other means. Each Receiving Party\nwarrants and agrees to use its best efforts to prevent the disclosure of the\nConfidential Information by its employees by taking at least such steps to\nprotect such Confidential Information as it takes to protect its own\nConfidential Information.\n\n      The obligations imposed on each Receiving Party under this Agreement shall\nexpire on the earlier of: (a) the date upon which the Supplying Party consents\nin writing to The disclosure of its Confidential Information by the Receiving\nParty; or (b) the date upon which the disclosing party formally announces,\nreleases, or otherwise discloses its Confidential Information to the public or\notherwise without an accompanying written undertaking by the Receiving Party to\nprotect the Confidential Information from unauthorized disclosure.\n\n7.    ROYALTIES\n\n7.1   During the term and in consideration of the obligations undertaken by CA\nunder this Agreement, Exodus will pay CA one percent (1%) of its gross revenues\n(\"Royalties\").\n\n7.2   Within forty-five (45) days of the end of each calendar quarter (March 31,\nJune 30, September 30, and December 31), Exodus agrees to provide CA with a\ncomplete reporting statement reflecting accurate records its gross revenues and\nRoyalties owed for the preceding quarter. Such statement shall include any\ncommercially reasonable information, including but not limited to all Internet-\nbased Co-Location Services fees invoiced and collected, and all applicable\ndiscounts and rebates during the relevant quarter to address listed above Attn:\nSales Accounting.\n\n7.3   Exodus shall include payment of Royalties to CA for such sales with its\nquarterly report. In the event the client makes payment for the services or\nproducts in installments, CA, on a\n\n \nquarterly basis, shall receive its pro-rata Royalty included in the gross\nrevenues as each installment payment is received or such services are performed\nby Exodus.\n\n7.4   Exodus shall maintain for a period of three (3) years after the date of\npayment complete and accurate records of business activities relating to the\npayment of Royalties under this Agreement, and the calculation of Royalties\nwhich shall include, at a minimum, client name, address, total amount of\ncontract, services fees billed, services fees collected, license fees, and\nservices performed, rebates, discounts together with a copy of applicable\ncontracts, and invoices. During this three-year period, CA or its designated\nrepresentative shall have the right, upon reasonable prior notice, to examine\nand audit during normal business hours Exodus's records solely to determine the\nRoyalties owed to CA. CA's right to examine and audit Exodus' records shall be\nexercised by CA only one time during any twelve month period, except in the\nevent where such audit reveals any discrepancy, exceeding 5%, in the amount of\nRoyalties paid to CA' CA shall have the right under the terms of this section to\naudit Exodus until such discrepancy is resolved or cured. CA shall bear the\nexpenses of such audit; however, in the event any such audit reveals that Exodus\nhas understated the amount of Royalties that it is obligated to pay under this\nAgreement by more than 5% of the amount paid during the applicable period,\nExodus shall pay, in addition to other fees contractually due, all reasonable\ncosts associated with the audit.\n\n8.    SUPPORT AND UPDATES\n\n8.1   CA shall be responsible for all support and maintenance activities\nrelating to the CA Products and Cheyenne Products, unless otherwise agreed by\nthe parties in writing. CA shall provide to Exodus all upgrades and Level 1 and\nLevel 2 support, as described in CA's then current Client Support policies, free\nof charge.\n\n9.    TITLE\n\n9.1   Exodus shall retain all title, trademarks, and other proprietary rights\nfor or relating to the Exodus Marks. All rights not expressly granted herein are\nreserved by Exodus.\n\n9.2   CA shall retain all title, copyright, patent, trademark, trade secret or\nother proprietary rights in or relating to the CA Product or Cheyenne Products\nand related CA Marks. All rights not expressly granted herein are reserved by\nCA. In the event that Exodus makes any changes, translations, or modifications\nto the CA Product or Cheyenne Products such changes, translations, improvements,\nor modifications shall be the property of CA.\n\n10.   REPRESENTATIONS AND WARRANTIES\n\n10.1  Exodus and CA represent and warrant that each has the right to grant the\nlicenses and rights granted in this Agreement.\n\n10.2  CA represents and warrants that it has general liability insurance and\nworker's compensation insurance covering its employees at Exodus Sites and that\nsuch employees shall adhere to Exodus rules and regulations at Exodus Sites, as\nwell as all applicable local laws and regulations, provided that Exodus provides\nits rules and regulations in writing to such employees and to CA.\n\n11.   INDEMNITY\n\n \n11.1  (a) Exodus shall fully indemnify CA against any and all losses, costs,\n      expenses and liability in connection with, and defend CA against any\n      claims (i) that the provision of its Internet based Co-location Services\n      infringes any copyrights, patents, trademarks, trade secrets or other\n      intellectual property rights of third parties; or (ii) which result from a\n      breach of the warranties of Exodus set forth above in Sections 10.1;\n      provided that Exodus is given written notice of such claim and its details\n      by CA, and any claim of infringement is not caused by or contributed to by\n      acts of CA other than in accordance with this Agreement;\n\n      (b) Exodus shall, with CA's prior written consent, have the opportunity to\n      conduct and control solely the claim's settlement or compromise; and\n\n      (c) CA shall give Exodus all reasonable assistance in connection therewith\n      at Exodus's expense.\n\n11.2  (a) CA shall fully indemnify Exodus against any and all losses, costs,\n      expenses and liability m connection with, and defend Exodus against any\n      claims (i) that the CA Product and Cheyenne Products infringe any\n      copyrights, patents, trademarks, trade secrets or other intellectual\n      property rights of third parties; or (ii) which result from a breach of\n      the warranties of CA set forth above in Section 10.1-10.2; provided that\n      CA is given written notice of such claim and its details by Exodus, and\n      any claim of infringement is not caused by or contributed to by acts of\n      Exodus other than in accordance with this Agreement;\n\n      (b) CA shall, with Exodus's prior written consent, have the opportunity to\n      conduct and control solely the claim's settlement or compromise; and\n\n      (c) Exodus shall give CA all reasonable assistance in connection therewith\n      at CA's expense.\n\n\n12.   TERM AND TERMINATION\n\n12.1  This Agreement shall commence upon its Effective Date and shall continue\n      for a period two years and shall thereafter automatically renew for\n      additional one-year periods unless either party notifies the other of its\n      intention to terminate the Agreement at least sixty (60) days prior to the\n      termination date. Notwithstanding the foregoing, this Agreement may be\n      terminated as follows:\n\n      (a) By either party at any time upon sixty (60) days written notice;\n\n      (b) By either party if the other party commits any material breach of its\n      obligations hereunder and fails within sixty (60) days of written notice\n      to cure the same. Any such termination shall be without prejudice to any\n      other rights which may have accrued to it hereunder;\n\n      (c) By either party immediately by written notice if the other party files\n      a petition in bankruptcy, goes into liquidation, admits that it is\n      insolvent, makes an assignment for the\n\n \n      benefit of creditors, or has a petition in bankruptcy or receivership\n      filed against it and such petition is not dismissed with within sixty (60)\n      days following filing; or\n\n      (d) By CA, immediately in the event of a change of control of the majority\n      ownership or interest or transfer to a successor corporation of the\n      ownership interest of Exodus, however in its sole discretion CA may choose\n      not automatically exercise such termination in every change of control\n      situation. This provision may not be invoked by CA if Exodus solely\n      reincorporates under the laws of Delaware.\n\n12.2  In the event of termination of this Agreement, Exodus shall certify in\nwriting to CA that all copies or partial copies of the CA Product or Cheyenne\nProducts have been either returned to CA or otherwise destroyed and deleted from\nany computer libraries or storage devices and are no longer in use by Exodus,\nunless Exodus continues to license such products from CA. In such event CA shall\ngrant Exodus a 40% discount from CA's then prevailing Price Book or published\nlicense fees for the CA Product and the Cheyenne Products, exclusive of usage\nand maintenance, over a five year period. Continued maintenance of the CA\nProduct and Cheyenne Products shall be subject to CA's then prevailing annual\nmaintenance fee. CA shall reduce such license fee by the amount of Royalties\npaid by Exodus to CA, pursuant to Section 7, for the twelve-month period\npreceding the execution of such license agreement.\n\n12.3  In addition to this Section 12, the obligations set forth in Sections 6,\n7.3, 9, 10, 11, 13 and 14 shall survive termination of this Agreement and shall\nbind the parties and the legal representatives, successors, heirs and assigns.\n\n13.   LIMITATION OF LIABILITY\n\n13.1  Except as set forth above in the INDEMNITY and CONFIDENTIAL AND\nPROPRIETARY INFORMATION Sections of this Agreement, IN NO EVENT SHALL EITHER\nPARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY, WHETHER IN CONTRACT OR\nTORT, FOR ANY LOSS INCLUDING TIME, MONEY, GOODWILL, LOST PROFITS, INDIRECT OR\nCONSEQUENTIAL DAMAGES FROM THE USE OF THE CA PRODUCT, CHEYENNE PRODUCTS, CA\nMARKS, EXODUS MARKS OR OTHERWISE UNDER THIS AGREEMENT.\n\n14.   GENERAL\n\n14.1  All notices, consents and other communications required or permitted under\nthis Agreement shall be in writing and sent by registered or certified mail,\npostage pre-paid, to the addresses indicated on the first page of this\nAgreement, or such other address as either party may indicate by at least 10\ndays prior notice to the other party.\n\n14.2  Both parties agree that the personnel of one party shall not for any\npurposes be considered employees or agents of the other party and that the\nparties shall be deemed independent contractors. Nothing in this Agreement shall\nbe construed to constitute either party as an agent, partner or legal\nrepresentative of the other party. Each party will be solely responsible for the\npayment of any compensation and expenses owed to their respective employees, as\nwell as the payment of employment-related taxes and workers' compensation\ninsurance.\n\n14.3  The parties agree to keep the terms and conditions of this Agreement in\nconfidence.\n\n \n14.4  The captions used in this Agreement are for convenience only and are not\nintended to have any legal effect.\n\n14.5  Except in connection with a re-incorporation by Exodus into a Delaware\ncorporation with no change in its majority ownership, interest or a transfer to\na successor corporation of the ownership interest, Exodus may not assign this\nAgreement and the rights and obligations provided herein, without the written\nconsent of CA. CA, however, may assign this Agreement or the obligations\ncontained herein to any third party, provided that such third party assumes the\nobligations of CA under this Agreement.\n\n14.6  If any provision of this Agreement is held by a court of competent\njurisdiction to be illegal, invalid, or unenforceable, the validity or\nenforceability of the remainder of this Agreement shall not be affected.\n\n14.7  This Agreement shall be governed by and construed in accordance with the\nlaws of the State of New York, excluding its conflict of laws principles.\n\n14.8  This Agreement represents the entire agreement between the parties with\nrespect to the subject matter contained herein and supersedes any and all\ncommunications, representations and arrangements whether written or oral. No\nalteration, modification, waiver or addition to this Agreement shall be valid\nunless made in writing and signed by both parties' duly authorized\nrepresentatives. In the event of any conflict between the terms of this\nAgreement and any Appendix, the terms of this Agreement shall prevail.\n\n14.9  In the event either party is delayed or prevented from performing this\nAgreement due to any cause beyond its reasonable control, including but not\nlimited to, strike, labor or civil unrest or dispute, embargo, blockage, work\nstoppage, delay, protest, acts of God, such delay shall be excused during the\ncontinuance of such delay, and the period of performance shall be extended to\nsuch extent as may be reasonable to perform after the cause of delay has been\nremoved.\n\n\nCOMPUTER ASSOCIATES                EXODUS\nINTERNATIONAL\n\nBy: \/s\/ Marc Sokol                 By: \/s\/ Barry James Folsom\n   ---------------------------        -----------------------------\n \nName: Marc Sokol                   Name: Barry James Folsom\n     -------------------------          ---------------------------\n\nTitle: SVP                         Title: SR VP Sales &amp; Marketing\n      ------------------------           --------------------------\n\n \n                                   APPENDIX A\n\n\n                              Advanced Help Desk\n                            Advanced AntiVirus Opt\n                              Advanced DocServer\n                               Advanced Storage\n                               Automation Point\n                                 DASD Manager\n                             Directory Management\n                              MS-SQL Server Agent\n                                 Netware Agent\n                               OpenIngres Agent\n                                 Oracle Agent\n                                Single Sign On\n                                  SNA Manager\n                               Software Delivery\n                                 Sybase Agent\n                                  Unix Agent\n                                 Win 3.1 Agent\n                                 WIN 95 Agent\n                                 WIN NT Agent\n\n \n                                   APPENDIX B\n\n               (CA Standard License Agreement and Beta Addendum)\n\n \nLIMITED WARRANTY\n\n  CA warrants that it can grant the license described in this Agreement and the\nOrder Form(s) and CA will defend or, at its option, settle any action at law\nagainst Licensee based upon a claim that Licensee's use of the Licensed Program\nin accordance with this Agreement infringes any patent, copyright or other\nintellectual property right of any third party. CA also represents that the\nLicensed Program will operate according to the specifications published by CA\nfor the Licensed Program. If it is determined that the Licensed Program does not\noperate according to such Specifications, CA's only responsibility will be to\nuse its best efforts, consistent with industry standards, to cure the defect.\n\n  Any warranties made by CA (other than that of noninfringement) will extend and\nbe in effect only for the period that Licensee is entitled to use the Licensed\nProgram and for which Licensee shall have paid the Usage and Maintenance Fee, if\napplicable. With respect to hardware equipment supplied by CA, CA will, upon\nrequest, assign to Licensee any warranties which may be made by the original\nmanufacturer of such hardware equipment.\n\n  In the event that Licensee makes any changes or modifications to the Licensed\nProgram, Licensee agrees that such changes and modifications shall be the\nproperty of CA, unless CA shall have given its prior written consent to the\ncontrary. Furthermore, any such changes or modifications made by Licensee to a\nLicensed Program will mean that the foregoing limited warranty of CA with\nrespect to such Licensed Program shall no longer apply, and CA shall have the\nright to charge Licensee for additional support services at CA's then prevailing\nservice rate, but CA shall have no obligation to provide such services.\n\nWARRANTY AND LIABILITY LIMITATIONS\n\n  EXCEPT AS SET FORTH ABOVE, NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,\nINCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND\nFITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY CA AND CA MAKES NO WARRANTIES WITH\nRESPECT TO ANY HARDWARE EQUIPMENT WHICH CA MAY SUPPLY TOGETHER WITH THE LICENSED\nPROGRAM OR FOR THE IMPLEMENTATION THEREOF. IN NO EVENT WILL CA BE LIABLE TO\nLICENSEE OR ANY OTHER PARTY FOR ANY LOSS, INCLUDING TIME, MONEY, GOODWILL AND\nCONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM THE USE, OPERATION OR MODIFICATION\nOF THE LICENSED PROGRAM.\n\nDISASTER RECOVERY\n\n  In the event that Licensee certifies in writing to CA that it has a bona fide\ndisaster recovery plan with respect to the computer software programs used in\nits operations, Licensee may make one copy of the Licensed Program for archival\npurposes and use such archival copy on a CPU other than the Designated CPU or at\nan installation site other than that identified on the Order Form, such other\nCPU or installation site to be owned or controlled by Licensee. The use of such\narchival copy shall be limited (a) for the purpose of conducting limited testing\nof the disaster recovery plan's procedures and effectiveness (which testing\nshall not exceed one week in any three month period) and (b) during any period\nsubsequent to the occurrence of an actual disaster during which the Licensee\ncannot operate the Licensed Program on the Designated ___________ or at the\ninstallation site identified on the Order Form. Licensee agrees to furnish such\nfurther documentation with respect to its disaster recovery plan and procedures\nas CA may request from time to time.\n\nASSIGNMENT\n\n  Licensee may not assign this Agreement, the use of any Licensed Program or its\nrights and obligations under this Agreement without the prior written consent of\nCA. CA, however, may assign this Agreement to any third party, provided that\nsuch party assumes the obligations of CA under this Agreement. CA may also\nassign its right to payment under this Agreement or grant a security interest in\nthis Agreement or such payment right to any third party without requiring that\nsuch third party be liable for the obligations of CA under this Agreement.\n\nESCROW OF SOURCE CODE\n\n  CA has deposited a copy of the source code of the Licensed Program with\nMendelsohn, Kary, Bell &amp; Natoli, 666 Fifth Avenue, New York, NY 10103. Such\nsource code will be updated with each new release of the Licensed Program which\nwill also be deposited with the escrow agent. Such copies of the source code\nwill be held in escrow and in the event of a final adjudication of CA as\nbankrupt, Licensee will, upon payment of the duplication cost and other handling\ncharges of the escrow agent, be entitled to obtain a copy of such source code\nfrom the escrow agent. Licensee will, however, only use such copy of the source\ncode internally to support the Licensed Program. The escrow agent's only\nresponsibility will be to use its good faith efforts to cause a copy of the\nsource code, in the form as delivered by CA, to be delivered to Licensee at the\nappropriate time.\n\nTAXES AND DUTIES\n\n  The amounts set forth on any Order Form are exclusive of any tariffs, duties\nor taxes imposed or levied by any government or governmental agency including,\nwithout limitation, federal, state and local sales, use, value added and\npersonal property taxes, and Licensee agrees to pay any such tariffs, duties or\ntaxes (other than franchise and income taxes for which CA is responsible) upon\npresentation of invoices by CA. Any claimed exemption from such tariffs duties\nor taxes must be supported by proper documentary evidence delivered to CA.\n\nBREACH AND TERMINATION\n\n  If Licensee breaches any term of this Agreement or any Order Form or fails to\npay when due any valid invoice rendered by CA, or if the Licensee becomes\ninsolvent or if bankruptcy or receivership proceedings are initiated by or\nagainst Licensee, CA shall have the right to terminate this Agreement\nimmediately and, in addition to all other rights of CA, all amounts which would\nhave become due and payable under this Agreement and any Order Form will\nimmediately become due and payable to CA. Any invoice which is unpaid by\nLicensee when due shall be subject to an interest charge of 2% per month or part\nthereof plus such late payment charge as CA may reasonably require to cover its\nadditional costs of administration and collection.\n\n \nCOMPUTER(R)           Computer Associates International, Inc.     BETA ADDENDUM\nASSOCIATES                 One Computer Associates Plaza\nSoftware superior by          Islandia, NY 11788-7000  \ndesign                       1-516-DIAL CAI (342-5224)\n\n\n\n                                             License Agreement # _______________\n                                                       Site ID # _______________\n                                         Addendum Effective Date _______________\n\n\nAddendum to License Agreement Between_______________________________ (\"Licensee\"\nAnd Computer Associates International, Inc. (\"CA\") For_________________________\n__________________________ (\"Licensed Program\")\n\n  The \"Beta Product\" is a release of the Licensed Program which is not generally\navailable for distribution when shipped to the Licensee. The Beta Product is\nprovided to Licensee for installation in the Licensee's operational environment.\nUse of the Beta Product provides the Licensee early operational experience with\nthe Beta Product and provides CA specific information regarding the Licensee's\nexperiences with the installation and operation of the Beta Product.\n\n  The referenced License Agreement is hereby supplemented and modified by this\nAddendum only as to Licensee's use of the Beta Product. In the event of any\nconflict between the License Agreement and this Addendum, the terms and\nconditions of this Addendum shall prevail.\n\n  Prior to shipment of the Beta Product by CA, Licensee will establish a\nmutually acceptable plan for installation, implementation and reporting. Such\nplan may be modified from time to time upon the mutual written agreement of the\nparties.\n\n  The period of Beta testing and Beta support (the \"Beta Period\") shall commence\nupon the effective date of this Addendum and shall end upon the earlier of (a)\nthe date of General Availability (\"GA\") of the Beta Product, as CA may determine\nin its sole discretion, or (b) the date of termination of this Addendum by\neither party on not less than 15 days prior written notice to the other.\n\nA.  During the Beta Period, CA will provide the following services:\n    --------------------------------------------------------------\n\n1.  Assign a Beta representative to serve as the primary point of contact with\n    the Licensee;\n\n2.  Provide planning assistance for installation and operation of the Beta\n    Product;\n\n3.  Schedule and ship the Beta Product to the Licensee prior to its General\n    Availability;\n\n4.  Provide available publications, education materials and other documentation\n    respecting the Beta Product (the \"Documentation\") to the Licensee: all such\n    Documentation, whether or not marked with a trademark notice, copyright\n    notice or restrictive legend, such as \"CA Confidential,\" shall be considered\n    the confidential and proprietary property of CA and shall be provided to the\n    Licensee subject to the provisions of the referenced License Agreement as\n    amended hereby; and\n\n5.  Provide support and maintenance, including reasonable remote or, when\n    necessary, on-site assistance for the resolution of issues associated with\n    the Beta Product.\n\nB.  During the Beta Period, the Licensee will provide the following services:\n    ------------------------------------------------------------------------\n\n1.  Assign a Beta representative to serve as the primary point of contact with\n    CA;\n\n2.  Staff the Beta project with appropriate personnel to provide planning,\n    implementation, operation and reporting with respect to the Beta Product;\n\n3.  Participate in conversion and installation planning sessions with CA;\n\n4.  Use its reasonable efforts to commence operation of the Beta Product\n    promptly;\n\n5.  Use the Beta Product and Documentation for testing purposes only and report\n    to CA on a weekly basis all errors discovered by Licensee, and not use the\n    Beta Product to perform any production activities during the Beta Period\n    unless CA shall have otherwise approved in writing;\n\n6.  Document its experiences during the Beta Period and participate in\n    conference calls with CA personnel to report on the operational status of\n    the Beta Product and to keep CA advised of experiences and any problems\n    encountered;\n\n7.  Allow CA personnel reasonable access to the Beta Product during the Beta\n    Period for service and observation purposes; and\n\n8.  Furnish to CA at the end of the Beta Period a final written report based on\n    the Licensee's experiences, containing the Licensee's evaluation of the\n    functions, performance and serviceability of the Beta Period and related\n    Documentation.\n\n                                 (over please)\n\n                                     2.150\n\n \n  CA agrees to use its reasonable efforts to correct errors in the Beta Product\nand Documentation within a reasonable time. CA does not guarantee or assume\nresponsibility for any impact of use of the Beta Product on Licensee's existing\nproduction or other environment or on CPU performance. The Documentation may be\nin draft form and will, in many cases, be incomplete. Licensee agrees that the\nBeta Product and Documentation are being delivered \"AS IS\" WITHOUT WARRANTIES OF\nANY KIND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY\nOR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL CA BE LIABLE TO LICENSEE\nOR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY DESCRIPTION OR\nEXPENSES INCURRED BY LICENSEE IN CONNECTION WITH THE USE OF THE BETA PRODUCT.\nLICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THE BETA TEST AND\nTHIS ADDENDUM BY WRITTEN NOTICE TO CA.\n\n  CA cannot guarantee that the generally available release of the Licensed\nProgram will be identical to the Beta Product and therefore a re-installation of\nthe generally available released version may be required. If, at the conclusion\nof the Beta Period, the software and Documentation are not generally released by\nCA to its clients, Licensee shall have the right to receive from CA without any\nadditional charge, a perpetual license to use the Beta Product and Documentation\nfor its internal use only, provided that CA shall have no responsibility or\nliability to Licensee for any further support or maintenance of the Beta Product\nor Documentation.\n\n  Licensee agrees that it will not disclose the Beta Product, the Documentation,\nor any information gained from its use of the Beta Product and Documentation to\nany third party without the prior written consent of CA. CA agrees to maintain\nthe confidentiality of any live customer data utilized at any time during the\nBeta Period which comes into CA's possession. With reasonable notification,\nLicensee agrees to be a positive reference for CA during and after the Beta\nPeriod.\n\n  The Licensee agrees that the reports prepared by the Licensee and delivered to\nCA may be used by CA for all business purposes without any further consent or\naccounting in the development, manufacture, marketing and maintenance of the\nBeta Product and other CA products and services, including reproduction and\npreparation of derivative works based upon such reports, as well as distribution\nof such derivative works.\n\n  Nothing contained herein shall be construed as conferring upon Licensee or CA\nany right to use in advertising, publicity or other marketing activities, any\nname, trade name, trademark, or other designation of the other party or to refer\nto the existence hereof in any promotional activity without the express written\nconsent of such other party.\n\n  This Addendum shall not be construed to prohibit either CA or Licensee from\nentering into a similar agreement with any other party nor from independently\ndeveloping, offering, selling or marketing materials, products or services which\nare similar to the materials, products or services provided hereunder.\n\n  If the Beta Product is a new release of an already Licensed Program, future\nusage and maintenance fees shall be payable in accordance with the terms and\nconditions of the License Agreement for the already Licensed Program.\n\n  If the Beta Product is being newly licensed by the client, then the initial\nlicense fee shall be payable in accordance with the License Agreement and Order\nForm with subsequent usage and maintenance fees payable on each anniversary of\nthe date on which the Licensee shall have received a version of the Licensed\nProgram in General Availability status or received CA's notification that the\nBeta Product has reached General Availability status.\n\n\nCOMPUTER ASSOCIATED INTERNATIONAL, INC       LICENSEE\n \nBy:______________________________________    By:________________________________\n           (Authorized Signature)                     (Authorized Signature)\n \n_________________________________________    ___________________________________\n                 (Name)                                      (Name)\n \n_________________________________________    ___________________________________\n                 (Title)                                     (Title)\n \n_________________________________________    ___________________________________\n                  (Date)                                      (Date)\n\n                                    2.150.1\n\n \n                                  APPENDIX C\n\nExodus's Network Management:\n\nInstallation, line and data center network monitoring, problem management\n(notification and resolution).\n\nSystems Management:\n\nInstallation, monitoring, event management, backup\/restore, software delivery,\nand secure administration.\nProblem Management (notification and resolution)\nReports on systems management services and system performance and health.\n\nEnterprise-class Security:\n\nManaged Firewall protection.\n\nTelco Line Management:\n\nManagement of private data lines in co-located datacenters.\n\n\nData Traffic Management:\n\nUtilization reports\nLine and protocol bandwidth reservation and restriction\nWeb access analysis reports.\n\n \nXY OPTION PLAN DESCRIPTIONS\n\nFive equal annual payments inclusive of usage and maintenance for the five-year \nperiod. Thereafter, continued usage of the Licensed Program and maintenance will\nbe subject to the same UMF as is applicable under option G1 below.\n\nThree equal annual payments inclusive of usage and maintenance for the three-\nyear period. Thereafter, continued usage of the Licensed Program and maintenance\nwill be subject to the same UMF as is applicable under option G1 below.\n\nG1.  One-time fee (\"OTF\") inclusive of usage and maintenance for a one-year \nperiod. Thereafter, continued usage of the Licensed Program and maintenance will\nbe subject to ? usage and maintenance fee (\"UMF\") equal to the then prevailing\nOTF for the Licensed Program multiplied by the then prevailing UMF rate for the\nLicensed Program.\n\nG2.  Thirty-six equal monthly payments inclusive of usage and maintenance for\nthe three-year period. Thereafter, continued usage of the Licensed Program and\nmaintenance will be subject to the same UMF as is applicable under option G1\nabove.\n\nG3.  A single payment for a three-year term license, inclusive of usage and\nmaintenance for the three-year period. Thereafter, the license will be renewed\non the same terms and conditions, but subject to the then prevailing G3 license\nfee.\n\nG4.  A single payment for a two-year term license, inclusive of usage and\nmaintenance for the two-year period. Thereafter, the license will be renewed\non the same terms and conditions, but subject to the then prevailing G4 license\nfee.\n\nG5.  A single payment for a one-year term license inclusive of usage and\nmaintenance for the one-year period. Thereafter, the license will be renewed on\nthe same terms and conditions, but subject to the then prevailing G5 license\nfee.\n\nG6.  Three equal annual payments for a three-year term license, inclusive of\nusage and maintenance for the three-year period. Thereafter, the license will be\nrenewed on the same terms and conditions, but subject to the then prevailing G6\nlicense fee.\n\nG7.  Thirty-six equal monthly payments for a three-year term license, inclusive\nof usage and maintenance for the three-year period. Thereafter, the license will\nbe renewed on the same terms and conditions, but subject to the then prevailing\nG7 license fee.\n\nG8. A single payment for limited purpose(s) set forth on the face of this Order \nForm without effecting any change in any existing license except as specifically\nset forth.\n\nRENEWALS\n\n        All renewals shall be automatic unless either CA or Licensee shall, \nwithin thirty days prior to the expiration of the license period or any renewal \nperiod, give written notice to the other party of its intention not to renew. If\nthe applicable UMF shall be discontinued at any time, reinstatement shall be \nsubject to a reinstatement charge equal to 150% of the then prevailing UMF \nmultiplied by the number of years and part thereof during which usage and \nmaintenance of the Licensed Program shall have been discontinued.\n\nSCHEDULE OF TERMS\n\n        Unless otherwise indicated, license fees, OTFs and UMFs are per CPU and \nare applicable only to Designated CPU(s) and licensed installation sites of \nLicensee. The right to use or benefit from the Licensed Program (if initially \nlicensed after November 1, 1992) extends to any majority-owned subsidiary of \nLicensee (notwithstanding more restrictive provisions which may be found in the \nLicense Agreement referenced by this Order Form) provided such subsidiary \nagrees to comply with the referenced License Agreement and this Order Form. Such\nuse of the Licensed Program is restricted to the internal operations of the \nLicensee and any such subsidiary for the processing of its own data. Any \nproposed change in any of the foregoing, including a change of control of the \nLicensee or Licensee's business, shall be subject to CA's prior written consent \nand payment of all applicable charges. Licensee shall furnish to CA such \ndocumentation and access to its facilities as CA may request from time to time \nto verify compliance with the provisions hereof. All fees and charges are \npayable in advance upon receipt of invoice.\n\nUPGRADE\n\n        License restrictions (such as the Designated CPU limitation) may be \nupgraded or expanded at any time during the term of the Order upon prior written\nnotice to CA. The expiration date of the term of the Order or the then current \nusage and maintenance period for the existing license shall not change, and it \nshall apply to the upgraded or expanded license. All applicable upgrade fees \nand adjustments to the license fees and applicable UMFs for an upgraded or \nexpanded license shall be determined in accordance with CA's policy and prices \nprevailing at the time of the upgrade.\n\nADDITIONAL CPU(s)\n\n        Additional CPU(s) at the same installation site may be licensed to use \nthe Licensed Program. In order to add one or more CPU(s), one copy of the \nLicensed Program at the installation site must either have an existing license\nto run on a CPU in the highest CPU group at the installation site, or be\nupgraded to a CPU in that highest CPU group in accordance with the \"Upgrade\"\npolicy of CA. The license for additional CPU(s) may be an Option G1, G2, A0 or\nA8 only if the license for the Licensed Program in the highest CPU group shall\nbe an Option G1, G2, A0 or A8. Provided that the first CPU has been upgraded to\nor is licensed for use in the highest CPU group at the installation site, the\nlicense fee, and any subsequent UMF, for each additional CPU at the same\ninstallation site shall be the then prevailing license fee or UMF, as the case\nmay be, applicable to the additional CPU. In all cases, such additional CPU\nlicense fee or UMF shall only apply during such time as the Order and UMF for\nthe Licensed Program in the highest CPU group shall be current and in effect.\n\nCONVERSION CREDIT\n\n        A \"Rightsizing Credit\" may be available when Licensee decides to change \nthe hardware platform or operating system for which the Licensed Program was \noriginally licensed to another platform or different operating system such as a \nworkstation or personal computer. In qualifying instances, the Rightsizing \nCredit will be equal to the license fee actually paid for the original Licensed\nProgram on the original hardware platform or operating system (less a usage\ncharge of 2% per month) up to a maximum credit of one-half of the fee otherwise\napplicable. (No cash refunds will be payable under any circumstance.)\nRightsizing Credit are available only in respect to Licensed Programs under\nactive maintenance status and to Licensees that maintain enrollment in CA's\nTotal Client Care Program.\n\nCLIENT SERVICES\n\n        New releases or Licensed Program upgrades are not included as a part of\nannual maintenance and support services for workstation and micro computer \nsoftware. All of the terms and conditions contained in the License Agreement \nreferred to in this Order Form shall apply to the Services ordered hereunder.\nAll programs, documentation, reports, techniques, designs and other materials\nprepared or created by CA shall remain the property of CA and shall not\nconstitute work made for hire under the Copyright Act. The fees set forth in\nthis Order Form for Services, as more fully set forth in the attached\ndescription(s), do not include out-of-pocket expenses (such as transportation,\nlodging, meal per diem, and other expenses) incurred by CA while providing the\nServices ordered, which expenses will be charged to the Licensee from time to\ntime or upon completion of the ordered Services. If performance of the Services\nis delayed due to Licensee's failure to provide required computer access or\npersonnel or similar reasons, Licensee shall pay CA's then prevailing daily\ncharge, plus reimbursement of all such out-of-pocket expenses, for each\nadditional day for each person assigned by CA to provide the Services.\n\nREFERENCED LICENSE AGREEMENT\n\n        The terms and conditions of the License Agreement or prior Order Form, \nas the case may be, referenced by this Order Form shall apply to this Order \nForm. If any provision of the License Agreement or prior Order Form, as the case\nmay be, shall contradict any provision of this Order Form, the provisions of \nthis Order Form shall apply with respect to the Licensed Program(s) described \nherein. If the License Agreement referred to in this Order Form currently\nprovides for a license of Licensed Program(s) for use on an \"installation or\nsite basis,\" then the same shall be amended for purposes of the Licensed\nProgram(s) covered by this Order Form, to a license for use on a \"per CPU\"\nbasis.\n\nNOTICES\n\n        All notices, invoices and other communications hereunder shall be \ndelivered to Licensee and CA at their respective addresses set forth in this \nOrder Form unless changed by similar notice.\n\n \n                                   APPENDIX D\n\n                     (See attached Standard CA Order Form)\n\n \nCOMPUTER ASSOCIATES(R)                                               ORDER FORM\nSoftware superior by design.\n================================================================================\nCOMPUTER ASSOCIATES INTERNATIONAL, INC. ONE COMPUTER ASSOCIATES PLAZA ISLANDIA, \nNY 11788-7000  (516)  342-5224  FAX (516) 342-5329\n\n \n                                                            \nLicensee Name and Address:______________________________________________________________________________________________\n\n________________________________________________________________________________________________________________________\n\nLicense Agreement No.: _____________________________________  If Tax Exempt, Number: ________________(attach certificate)\n\nInstallation\/Service Site Location: (If different from above)___________________________________________________________\n\nInstallation\/Service Site I.D. No.:_____________________________________________________________________________________\n\nLicensee Technical Contact Person: ____________________________________________Phone:___________________________________\n                                                                                    \nLicensee Billing Address: (If different from above)_____________________________________________________________________\n                                                                                    \nLicensee Billing Contact Person: (If different from above)_____________________Phone:___________________________________\n                                                                                    \nLicensee Shipping Address: (If different from above)____________________________________________________________________\n                                                                                    \nLicensee Shipping Contact Person:______________________________________________Phone:___________________________________\n\nInstallation No. ________________________ for password protected products. Licensee P.O. No. (If required) _____________\n\nInitial Media Type (check one): T1600_______ T6250 _______ C3480 _______ Other__________________________________________\n                                                                                            (Describe)\n \n\n\n\n--------------------------------------------------------------------------------------------------------------------------------\nCA Supplement No.   Licensed                         Designated CPU(s) Information                              \nTo be completed     Program(s),                                                                     Maximum     Initial Invoice\nby Sales            Services or                                                                   Power Units        Amount    \nAccounting          Materials     Manufacturer   Model      Operating System     CPU Serial No.    or Users      (Net of Taxes)\n-------------------------------------------------------------------------------------------------------------------------------\n                                                                                           \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n \n-------------------------------------------------------------------------------------------------------------------------------\n\n\nEFFECTIVE DATE OF THIS ORDER: _________________________\n[_] A0: Five equal payments in the amount $_________ per year                 \n[_] A8: Three equal payments in the amount of $______ per year                \n[_] G1: A single payment in the amount of $ ____________                      \n[_] G2: Thirty-six equal payments in the amount of $_________ per month       \n[_] G3: A single payment in the amount of $_______________                    \n[_] G4: A single payment in the amount of $_______________                    \n[_] G5: A single payment in the amount of $_______________                    \n[_] G6: Three equal payments in the amount of $________ per year              \n[_] G7: Thirty-six equal payments in the amount of $__________ per month       \n[_] If applicable, change to Pay Option specified above from Pay Option ______\n    for Licensed Program ______________\n\n[_] G0: A single payment in the amount of $________________ for:      \n    [_] Services (attach description)             \n    [_] Upgrade to CPU designated above \n        from CPU _____________________________________________________________ \n                      Mfg.        Model          Op.Sys          Serial No\n    [_] Maintenance Reinstatement through ____________________________________\n                                                          Date \n    [_] Transfer Fee (attach Description)     \n    [_] Other Supplemental Fee (attach description) \n\n    (SEE REVERSE SIDE FOR A DETAILED DESCRIPTION OF EACH PAY OPTION AND FOR\n                       ADDITIONAL IMPORTANT PROVISIONS.)\n                                        \n\nCOMPUTER ASSOCIATES INTERNATIONAL, INC                 \n\nBy: _______________________________________________\n                 (Authorized Signature)                                 \n                                                       \n___________________________________________________   \n                (Name of Person Signing)                               \n                                                       \nBy: _______________________________________________\n                        Date\n\n\nLICENSEE                       \n\nBy: _______________________________________________\n                 (Authorized Signature)                \n                                                       \n                                                       \n___________________________________________________\n         (Type or Print Name of Person Signing)        \n                                                       \nBy: _______________________________________________\n                        Date   \n\n \n                                  APPENDIX E \n\n                          EXODUS INTERNET DATA SITES\n\n\n\nMega Data Centers:\n\nExodus Communications Inc.\nHarborside Financial Center\n1 Harborside Drive, Plaza iii, Suite 800\nJersey City, NJ 07311-3988\n\nExodus Communications, Inc.\n1605 Wyatt Drive\nSanta Clara 95054\n\nExodus Communications, Inc.\nRegency Plaza, Suite 705\n2350 Mission College Blvd.\nSanta Clara, CA 95054\n\nExodus Communications, Inc.\n1500 Wyatt Drive\nSanta Clara, CA 95054\n\n \n                                  APPENDIX F\n\n\nExodus Software trademarks, tradenames and logos:\n\nEXODUS\nExodus\nExodus\n\nExodus Usage guidelines:\n\n     The Exodus logos and Marks shown above are Marks that may be used by CA\n     only pursuant to the terms of this Agreement, CA may not alter this artwork\n     in any way. CA may not combine Exodus logos with any other feature\n     including, but not limited to, other logos, words, symbols, graphics,\n     photos, slogans, numbers, or design features. CA may not display Exodus\n     logos or other Exodus Marks of packaging, documentation, collateral or\n     advertising in a manner to suggest \"Exodus\", \"Exodus Communications\", or\n     the above logos are part of CA's tradename or product name. The logos\n     cannot be larger or more prominent than CA's product name, trademark, logos\n     or tradename.\n\n \nCA Software trademarks, tradenames and logos\n\n\nUNICENTER(R) TNG(TM)\n\n\n\nCA's Usage guidelines:\n\nThe Computer Associates logos and Marks shown above are Marks that may be used\nby Exodus only pursuant to the terms of this Agreement. You may not alter this\nartwork in any way. You may not combine logos with any other feature including,\nbut not limited to, other logos, words, symbols, graphics, photos, slogans,\nnumbers, design features or symbols. You may not display the CA logos or other\nCA Marks on packaging, documentation, collateral, or advertising manner that\nsuggest \"CA\", \"Computer Associates\", or the above logos are part of your\ntradename or product name. The logos cannot be larger or more prominent than\nyour product name, trademark, logos or tradename.\n\n \n                                  APPENDIX G\n                             JOINT MARKETING TERMS\n\n\n1.   Joint Press Releases\n\n2.   Joint advertising and marketing materials\n\n3.   Participation by Exodus at CA World for the term of this Agreement, free of\ncharge, excluding Exodus' travel and other expenses.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7166,7490],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42816","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-computer-associates-international-inc","corporate_contracts_companies-exodus-communications-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42816","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42816"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42816"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42816"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}