SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT

 

 

                                                                     Exhibit 4.1

 

                   SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT

 

      This Software License and Distribution Agreement (this "Agreement") is

entered into as of June 30, 2005 (the "Effective Date") by and between Computer

Associates International, Inc., a Delaware corporation having a place of

business at One Computer Associates Plaza, Islandia, NY 11749 ("CA") and

CaminoSoft Corporation, a California corporation having a place of business at

600 Hampshire Blvd., Suite 105, Westlake Village, CA 91361 ("Supplier").

 

      Whereas, CA wishes to acquire rights to use, market and distribute certain

computer software programs and documentation owned by Supplier (as more fully

defined and described below, the "Product"); and

 

      Whereas, Supplier is willing to grant such rights and licenses and to

perform duties with respect to the Product and CA is willing to accept such

licenses on the terms and conditions of this Agreement.

 

       Now Therefore, the parties intending to be legally bound agree as follows:

 

                                    ARTICLE I

 

                                   DEFINITIONS

 

      The following capitalized terms shall have the meaning set forth below for

purposes of this Agreement:

 

      "CA" means Computer Associates International, Inc. and any corporation

which is now or hereafter owned or controlled, directly or indirectly, by

Computer Associates International, Inc.

 

      "Customer" means a customer who orders Product from CA or a Distributor

for end use and not for redistribution.

 

      "Development Project" means the development project to be completed by

Supplier, which is described in Exhibit A, under the heading: "Functional

Specification".

 

       "Distributor" means a company that is authorized by CA or a Distributor to

market, supply, license or distribute the Product pursuant to a written

distribution agreement.

 

      "Documentation" shall mean technical documents provided by the Supplier

generally to its licensees and/or accompanying the Product including functional

specifications and usage instructions.

 

      "Eligible Amounts" shall mean the aggregate license and maintenance fees

received by CA during each calendar quarter pursuant to license agreements

respecting the Product but shall not include amounts collected by CA for

consulting fees, taxes, handling charges, VAT, sales of reference materials and

 

 

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supplies or licenses to other computer software programs licensed with such

Product. In the case of amounts CA collects from Distributors who are

unaffiliated, the "Eligible Amounts" will be net of commissions paid by CA or

retained by such Distributors. With respect to transactions denominated in

currencies other than United States Dollars, the foreign currency amount will be

converted into US Dollars in accordance with CA's generally accepted accounting

practices before determining the resulting Eligible Amounts. If the Product is

licensed with other hardware or software products priced together (a "Bundled

Product Sale"), then the Eligible Amount arising from such Bundled Product Sale

will be the pro rata amount attributable to the Product, with such allocation

being based on CA's standard list price license fees for the products included

in the Bundled Product Sale; provided that the amount attributable to the

Product in any such Bundled Product Sale may not be discounted below list price

more than CA products or services included in such Bundled Sale CA's list

pricing for the Product is set forth in Exhibit B.

 

      "Functional Specification" means the specifications for the Product set

forth at Exhibit A.

 

      "Product" means the software program(s) set forth in Exhibit A in object

code only together with associated technical manuals and other documentation

("Documentation") and all enhancements, updates, fixes, patches, maintenance

releases, new releases, translations and modifications thereof developed and

made generally available by Supplier during the Term of this Agreement.

 

      "Territory" means worldwide.

 

      "Term" means the period set forth in Section 10 of this Agreement.

 

                                   ARTICLE II

 

                        APPOINTMENT AND GRANT OF LICENSES

 

      2.1 Supplier appoints CA as a non-exclusive distributor with rights to

use, market, distribute and sublicense the Product in the Territory pursuant to

the licenses set forth in Section 2.2 below and in accordance with the other

terms and conditions of this Agreement.

 

      2.2 Supplier hereby grants to CA world-wide, non-exclusive licenses:

 

            (a) to use the Product for its own internal use, product support and

for demonstration purposes free of all license fees;

 

            (b) to market, distribute and sublicense the Product as a stand

alone product or bundled, embedded or integrated with other products, in the

Territory directly, and indirectly through Distributors, to Customers subject to

CA's license agreements in consideration for royalties paid to Supplier as set

forth below;

 

            (c) sublicense the Product directly or indirectly through

Distributors to potential Customers for evaluation purposes without payment of

royalty hereunder and pursuant to a trial or evaluation license agreement;

and/or

 

 

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            (d) to manufacture object code versions of the Product for internal

use, marketing and distribution to Distributors and Customers.

 

      2.3 Upon completion of the Development Project, Supplier agrees to provide

CA with at least one copy of the object code version of the Product (including a

comprehensive set of technical documentation) for CA's evaluation and acceptance

testing purposes to determine that the Product complies with the Functional

Specification and can be remarketed by CA in accordance with CA's quality

standards. CA shall undertake appropriate testing and evaluation for acceptance

at CA's facilities or such other location(s) acceptable to both parties. In the

event that CA determines that the Product does not meet the Functional

Specifications or CA's quality standards, then Supplier shall promptly provide

CA with any modifications, new releases, fixes, patches or updates to ensure

that the Product meets the Functional Specifications and such quality standards.

CA will notify Supplier in writing of its acceptance of the Product and the work

product of the Development Project. In the event that CA does not accept the

Product after CA and Supplier have expended all commercially reasonable efforts,

then this Agreement shall automatically terminate and the parties will have no

further obligations to one another except as specifically provided by this

Agreement. In the event that Supplier fails to provide such modifications, new

releases or updates in a timely fashion, CA may terminate this Agreement upon

written notice without any further obligation to Supplier.

 

      2.4 During the Term, Supplier shall continuously enhance and update the

Product to ensure that the Product supplied to CA will include: (i) all new

releases and functionality made available to Supplier's other distributors or

direct customers of the Product including any integrations to complementary

software programs; (ii) any substantially similar software product marketed by

Supplier during the Term; and (iii) all modifications necessary to support new

versions of the hardware and software operating environments on which the

Product is marketed.

 

      2.5 Ownership of the Product shall remain vested in Supplier or its

licensors. Nothing in this Agreement shall be construed as transferring

ownership of any intellectual property rights of Supplier in the Product to CA.

CA may merge or combine the Product with other software programs provided always

that the copyright in the Product or any portions thereof included in such

derivative software remains vested in Supplier and all copyright and all other

intellectual property rights in the Product shall remain vested in Supplier. CA

will not copy, reverse engineer or decompile the Product except as specifically

permitted under this Agreement. CA will not create any copyrightable derivative

works of the Product and waives all rights it may acquire in any such works.

 

      2.6 Supplier grants CA and its Distributors a royalty free license to use

in conjunction with the marketing of the Product under this Agreement any

trademarks or trade names used by the Supplier to identify the Product, subject

to Supplier's reasonable advance notice and consent, which will not be

unreasonably withheld. No right to use any CA trademark or trade name is granted

by CA hereunder.

 

      2.7 Each party acknowledges that during the Term the other party may

disclose confidential and proprietary business or technical information

concerning the subject matter hereof. The receiving party agrees to hold such

information in confidence and employ reasonable precautions, at least as

protective as the precautions it uses to protect its own information, to protect

 

 

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the disclosing party's confidential information from unauthorized copying, use

or disclosure. "Confidential information" subject to these provisions shall not

include information which the receiving party can establish (a) was known to the

receiving party prior to disclosure hereunder without an obligation of

confidentiality; (b) was obtained by the receiving party from a third party

having the right to disclose it; (c) was or became generally available to the

public without violation of this Agreement; (d) was disclosed with the written

authorization of the disclosing party; or (e) was developed by the receiving

party independent of any reference to the information and independent of the

participation of any person who had access to the information.

 

      2.8 Each party agrees to appoint a relationship manager for the duration

of the term of this Agreement. The relationship manager's responsibilities will

include, but not be limited to: planning, scheduling, monitoring, evaluation,

generation of requirements and specifications, coordination of engineering,

marketing, sales and customer support activities, and resolution of differences

before they rise to the level of disputes.

 

                                  ARTICLE III

 

                            SUPPLIER'S RESPONSIBILITIES

 

      3.1 Supplier shall provide CA and its Distributors, at no charge, with a

reasonable number of copies of all marketing collateral and related information

regarding the Product upon request.

 

      3.2 Supplier shall provide to CA (a) technical training relating to

installation and system administration of the Product and (b) the number of days

of on-site training and support set forth on Exhibit B at times mutually

acceptable to both parties. Such training and consulting shall be without charge

to CA and shall be provided at CA's offices unless otherwise agreed by the

parties in writing. In addition, Supplier shall make available one qualified

engineer available to provide telephone support to CA during normal business

hours until completion of the acceptance testing as set forth above in Article

2.

 

      3.3 Supplier shall supply to CA promptly upon request, a golden master of

the Product in form sufficient to permit CA to reproduce the Product for

distribution hereunder. From time to time thereafter, Supplier will provide CA

with updated versions of such golden master containing new releases and other

modifications to ensure that CA is distributing the most current version of the

Product.

 

      3.4 Supplier will notify CA in advance in writing of any plans to produce

new, enhanced or modified versions of the Product or any replacements to the

Product. Supplier agrees to offer to make all such new, enhanced, modified or

replacement version of the Product available to CA subject to the provisions of

this Agreement when the same are first made generally available to other

distributors or licensees of the Product.

 

      3.5 Supplier shall provide CA with a reasonable number of copies of the

Documentation for the Product at no additional charge to enable CA to fulfill

its obligations under the Agreement.

 

 

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                                   ARTICLE IV

 

                               CA RESPONSIBILITIES

 

      4.1 CA will use commercially reasonable efforts to market, sell and

support the Product. CA will obtain a license agreement or distribution

agreement from its Customers and Distributors, as applicable, prior to the

supply of Product to such parties.

 

      4.2 CA will provide first level support for the Product and will refer

second level requests for support to Supplier as set forth below in Section 6.

 

      4.3 CA will make no representations or warranties to Distributors or

Customers regarding the functionality of the Product that are inconsistent with

the Documentation.

 

      4.4 CA's licenses to Customers and Distributors will be no less protective

than the CA End User License Agreement attached hereto as Exhibit C.

 

                                   ARTICLE V

 

                             INVOICING AND PAYMENTS

 

      5.1 As the sole consideration payable by CA for the licenses and rights

granted hereunder, CA shall pay Supplier royalties as set forth in Exhibit B for

copies of the Product licensed by CA or its Distributors to Customers.

Notwithstanding the foregoing, no moneys shall be payable for evaluation copies,

support or marketing copies or for replacement of defective copies. Charges for

maintenance are included in such royalties.

 

      5.2 CA has license agreements with certain entities ("Entities") which are

entitled to receive CA software Product under licenses without the payment of

additional compensation therefor. CA shall not be required to pay Supplier any

royalties related to such license agreements existing as of the date hereof

provided CA is receiving no additional license fees from such agreements. The

number of Entities covered under this section shall not exceed five (5). CA

represents to Supplier that such Entities are not primarily engaged as

distributors, but Supplier acknowledges that CA software products may be

installed and operated by such Entities on behalf of end users in an outsourcing

context. In the event that Supplier's support obligations related to these

pre-existing licenses become unreasonably burdensome relative to Supplier's

royalty revenue, the parties will negotiate a reasonable support payment to be

paid to Supplier for such services. In the event that the parties cannot, in

good faith, reach agreement on such support payment, Supplier may terminate this

Agreement and CA shall have one hundred eighty (180) days to wind down active

sales opportunities in its sales pipeline. Additionally, during such 180-day

period, CA shall be free to accept and fulfill any new orders for the Product

that are placed by such Entities.

 

      5.3 CA shall report Eligible Amounts received from the licensing and

distribution of the Product to Customers within 30 days of the end of each

calendar quarter. CA shall include royalty payments with respect to Eligible

Amounts received during such prior quarter together with its quarterly revenue

report.

 

 

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      5.4 CA shall maintain complete and accurate records of Product licensing

activities and license fees obtained therefrom. Not more frequently than once

per year during the Term, Supplier shall have the right to request an audit by

an independent accounting firm, at Supplier's expense and during normal business

hours, of CA's records solely to determine quantities of Product licensed and

verify related royalty records, subject to reasonable prior written notice.

 

      5.5 Within five (5) days of the Effective Date, CA agrees to remit to

Supplier the non-refundable sum of two hundred and fifty thousand dollars

($250,000) in consideration of its impending performance of the Development

Project.

 

                                   ARTICLE VI

 

                               SUPPORT AND UPDATES

 

      6.1 CA will provide first level support services for the Product to

Customers and Distributors. Customers and Distributors may not contact Supplier

directly for support. CA will complete Supplier's training on the Product in

accordance with Section 3.2..

 

      6.2 Supplier agrees to supply CA with second level support in accordance

with the terms of Exhibit D.

 

      6.3 Supplier shall provide CA with one copy of the most current copy of

all materials necessary to provide support for the Product. Such materials shall

include, without limitation, the object code, necessary Documentation and

listings, known error information, amendments and modifications thereto and

Documentation and test tools for performing support services. The above

materials shall be provided to CA within 30 days of the Effective Date and shall

be periodically updated during the Term to ensure the currency of materials.

 

      6.4 Supplier shall use its best efforts to co