Software License & Marketing

SOFTWARE LICENSE AND MARKETING AGREEMENT

This Agreement is entered into as of April ___, 1997 (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 11788- 7000 ("CA") and Exodus Communications, Inc. a California corporation having a place of b usiness at 1605 Wyatt Drive, Santa Clara, CA 95054 ("Exodus").



WHEREAS, CA and Exodus agree to provide for the cooperative marketing, services and support of certain CA computer software programs;



WHEREAS, CA and Exodus agree to provide cooperative marketing services for Exodus' Internet-based Co-location Services; and



NOW, THEREFORE, the parties agree as follows:



1. DEFINITIONS



The following capitalized terms shall have the meaning set forth below for purposes of this Agreement:



"CA" means Computer Associates International, Inc. and any corporation which is now or hereafter owned or controlled, directly or indirectly, by Computer Associates International, Inc.



"CA Product" means CA Unicenter (R) TNG(TM), all generally available versions, current as well as future, on all generally available platforms and with all generally available options, with associated technical manuals and end-user documentation documentation (current products as of the date of this Agreement are listed Appendix A to this Agreement) and Unicenter TNG Software Development Kit ("SDK"). CA shall provide foreign language versions of the CA Product on an as needed basis solely determined within CA's discretion. CA will provid e beta versions of the CA Product on an as needed basis, solely determined within CA's discretion pursuant to CA's standard license agreement and Beta Addendum, attached as Appendix B to this Agreement.



"Cheyenne Products" means Cheyenne's ARCserve(R) and InocuLAN(R) products, all generally available versions, current as well as future, on all generally available platforms and with all generally available options, with associated technical manuals and end-user documentation. CA shall provide foreign langua g e versions of the Cheyenne Products on an as needed basis solely determined within CA's discretion. CA will provide beta versions of the Cheyenne Products on an as needed basis, solely determined within CA's discretion pursuant to CA's standard license ag reement and Beta Addendum, attached as Appendix B to this Agreement.



"Gross revenues" means all actual monies received from Exodus clients and resellers, less rebates, and discounts.



"Internet-based Co-location Services" means Exodus's Network Management, Data Traffic Management, Enterprise-class Security, Telco Line Management, and System Management as described in Appendix C. Such definitions will be updated from time to time.



2. APPOINTMENT



2.1 CA appoints Exodus as a non-exclusive, worldwide marketing representative to promote the CA Product and the Cheyenne Products to prospective clients with rights in accordance with the terms and conditions of this Agreement.



2.2 Exodus appoints CA as a non-exclusive, worldwide marketing representative to promote Internet-based Co-Location Services to prospective clients with rights in accordance with the terms and conditions of this Agreement.



3. GRANT OF LICENSES AND MARKETING RIGHTS



3.1 CA hereby grants to Exodus and Exodus accepts the following non-exclusive,

nontransferable, limited-use, worldwide rights and licenses:



(i) to use, and to copy solely for such use, the CA Product solely

on the designated CPUs at the Exodus Internet Data Sites ("Exodus

Sites") identified in the standard CA Order Form attached as Appendix

D and only for the internal operations of Exodus and processing its

own and such client data necessary to manage client's servers at such

Exodus Sites identified in Appendix E. CA will provide authorization

keys upon receipt of such order form supplying written notification of

the location, make, model, serial number, and other required

information for CA to issue the authorization key.



(ii) to use, copy and distribute CA marketing collateral relating to

the CA Product, including product brochures and presentations for

client demonstration purposes.



(iii) to use and to copy solely for such use, the Cheyenne Products

solely on the designated CPUs at the Exodus Sites identified in the

standard CA Order Form attached as Appendix D and only for the

internal operations of Exodus and processing its own and such client

data necessary to manage client servers at such Exodus Sites

identified in Appendix E. CA will provide authorization keys upon

receipt of such order form supplying written notification of the

location, make, model, serial number, and other required information

for CA to issue the authorization key.



(iv) to use in accordance with this Agreement associated end user

documentation for the CA Product and Cheyenne Products.



(v) to use in accordance with this Agreement and Appendix F, CA

trademarks, tradenames, service marks and logos relating to the CA

Product and Cheyenne Products ("CA Marks") in connection with the

joint marketing efforts as listed in Appendix G. If Exodus uses any CA

Marks, ownership of such CA Marks shall be attributed to the CA.



3.2 Without prior written consent of CA, Exodus shall not:

(a) except as provided in this Agreement, make copies or permit others to

make copies of or reproduce any part of the CA Product or Cheyenne



(b) modify, reverse compile, reverse engineer or reverse assemble all or

any portion of the CA Product or Cheyenne Products.



(c) distribute, market, rent, lease, transfer or sublicense the CA Product

or Cheyenne Products to third parties for the benefit of third parties

except as provided in this Agreement.



(d) unless such client has procured a license from CA or an authorized CA

reseller for such product(s), provide its clients access to or permit its

clients to access the CA Product installation materials or management

stations or the Cheyenne Products code.



(e) make the results of any benchmarking or competitive analysis relating

to the CA Product or Cheyenne Products known to the public, any potential

customer or any existing customer.



3.3 Exodus agrees to keep and maintain installation records and usage records (including SMF records) re lating to the CA Product and Cheyenne Products and to furnish CA copies of such records and access to its facilities as CA may reasonably request from time to time in order to verify compliance with the provisions hereof.



3.4 All CA Marks remain the exc lusive property of CA. Exodus will not register the CA Marks or take any action that jeopardizes CA's proprietary rights in the CA Marks. Exodus agrees to follow CA's instructions and adhere to CA's quality control procedures relating to the CA's Marks an d only use the CA's Marks in unaltered form. CA reserves the right to require Exodus to submit advertising and marketing material referencing CA, CA Marks, the CA Product, or the Cheyenne Products to CA for advance review and approval and upon request to d iscontinue any advertising or marketing material relating to CA, CA Marks, CA Product, or Cheyenne Products.



3.5 Exodus hereby grants to CA the following nonexclusive, filly paid-up, worldwide rights and licenses:



(i) to use, copy and distribute Exodus marketing collateral

relating to its Internet-based Co-location Services, including product

brochures and presentations; and



(ii) to use in accordance with this Agreement and Appendix F the

Exodus trademarks, tradenames, service marks and logos relating to its

Internet-based Co-location Services ("Exodus Marks") in connection

with marketing efforts as listed in Appendix G. CA shall be under no

obligation to use such Exodus Marks. If CA uses any Exodus Marks,

ownership of such Marks shall be attributed to Exodus.



3.6 All Exodus Marks remain the exclusive property of Exodus. CA will not register the Marks or take any action that jeopardizes Exodus's proprietary rights in the Exodus Marks. CA agrees to follow Exodus' instructions and adhere to Exodus' quality control procedures relating to the Exodus Marks and shall only use the Exodus Marks in unaltered form. Exodus reserve s the right to require CA to submit advertising and marketing material referencing Exodus, Exodus' Marks, or Exodus' Internet-based Co-location Services to Exodus for advance review and approval and to discontinue any advertising and marketing material rel ating to Exodus, Exodus' Marks or the Internet-based Co-location Services upon request.



3.7 Exodus agrees not to export or disclose, directly or indirectly, the CA Product, Cheyenne Products or end-user documentation and related technical manuals without the prior written consent, if required, of the US Department of Commerce, Washington, D.C. 20230.



3.8 During the term of this Agreement, the parties agree to cooperate in the joint marketing activities described in Appendix G. Except as otherwise set f orth in Appendix G, each party shall be responsible for its own costs and expenses in connection with such agreed marketing activities. Exodus understands and agrees that CA is not guaranteeing any volume of business or referrals to Exodus as a result of this Agreement. Except for the specific marketing activities in this Agreement, CA retains full freedom and flexibility to determine the nature and extent of its marketing efforts regarding CA Product in CA's own business judgment and discretion.



3.9 Thi s Agreement does not authorize Exodus to distribute or sublicense the CA Product or Cheyenne Products. CA shall remain responsible for the licensing and support of its own proprietary software, and Exodus shall have only the rights and obligations with re s pect to CA's products as described in this Agreement. Exodus is not authorized to quote prices for such software. Any quotations, licenses, contracts or other agreements relating to the licensing or support of such software shall be in the sole discretion of the CA.



3.10 The parties may supplement the Appendixes to this Agreement from time to time, which shall in each instance be incorporated as an Amendment to this Agreement at the time it is signed by an authorized representative of CA and Exodus.



4. EXODUS' RESPONSIBILITIES



4.1 Under a separate agreement with terms to be mutually agreed upon by the parties, Exodus will co-locate CA's hosting servers at sites to be later determined by the parties. For the first 35 hosting servers co-located with E xodus, Exodus agrees to charge CA a co-location price that is the lower of thirty-eight percent (38%) of Exodus' current prices, the most favorable charge Exodus has provided to any other of its commercial or government customers or cost for similar servi c es. For the co-location of hosting servers above 35 and below 200, Exodus agrees to charge CA a price that is the lower of thirty-three percent (33%) of Exodus' current prices, the most favorable charge provided to any other of its commercial and governme n t customers or cost for similar services. For the co-location of servers above 200, Exodus agrees to charge CA a price that is the lower of thirty-five (35%) of Exodus' current prices, the most favorable charge provided to any other of its commercial and g overnment customers or cost for similar services. Upon request, CA shall have the right to request supporting documentation of Exodus' costs and most favorable charge and if such cost and most favorable charge is not reasonably verified by such documentat ion, CA shall have the right to examine Exodus' records and verify such cost and most favorable charge in accordance with Section 7.4.



4.2 Exodus shall use reasonable efforts to perform the joint marketing activities set forth in Appendix B. 4.3 Exodu s shall provide CA access to its Exodus Sites listed in Appendix E for client visits and demonstration of the CA Product. Thirty-three percent (33%) of Exodus's conference room space at each Exodus Sites will be available for CA's use on a commercially re asonable basis. An Exodus employee will be available at all such times to answer questions relating to the Exodus Sites.



4.4 (a) During the term of this Agreement, Exodus agrees that it shall not utilize with its clients computer software programs substantially similar in functionality to or identical in functionality to the CA Product or Cheyenne Products, including sell i ng such substantially similar or identical software into CA's confidential client base. Such programs substantially similar in functionality to or identical to the CA Product or Cheyenne Products shall include, but shall not be limited to, IBM's system ma n agement software, including Tivoli, HP OpenView, Remedy, Cabletron Spectrum and SunNet Manager, and for back-up and antivirus software products generally available from Seagate, Legato, McAfee, Stac, Software Mogul, and Symantec (and such successor softwa r e versions or updates). Exodus and CA agree to discuss each software program, tool or agent used, employed or proposed to be used by Exodus at its Exodus Sites which is substantially similar in functionality to or identical in functionality to the CA Prod u ct or Cheyenne Products. The parties will work together to ascertain whether the proposed product is substantially similar in functionality to or identical in functionality to the CA Product or the Cheyenne Products and can reasonably satisfy Exodus requi r ements as to functionality and compatibility (hereinafter referred to as "substantially similar functionality"). CA agrees to consider any suggested changes to improve, expand or augment the functionality of the CA Product or Cheyenne Products as a result of this functionality assessment.



In accordance with the following Exodus agrees:



(i) to convert within ninety (90) days, from the provision of the

engineer by CA to each Exodus Site, from HP OpenView and Remedy to

Unicenter-TNG .



(ii) to convert within ninety (90) days of the final determination that

Exodus' proposed product is substantially similar to or identical in

functionality to the CA Product or Cheyenne Products for competing

products to generally available CA Product or Cheyenne Products. At

the end of such ninety (90) days, if Exodus has employed its best

efforts to convert to such CA Product or Cheyenne Products and has

been unable to complete such conversion, CA, in its sole discretion,

shall extend the conversion time period by thirty (30) days.



(iii) to become a CA beta test site for beta CA Product or Cheyenne

Products, and to convert from any competing product that has been

determined during the beta test period to be substantially similar

to or identical in functionality to the CA Product or Cheyenne

Products within ninety (90) days of such CA Product or Cheyenne

Products becoming generally available.



This clause shall not prohibit Exodus from licensing computer software programs which the parties mutually decide under this provision are not substantially similar or are not identical in functionality to the CA Product or Cheyenne Products.



(b) During the term of this Agreement, Exodus agrees that it shall not market or provide Intranet or web-based design and development services similar to the services marketed or sold by CA to into CA's co nfidential client base. 4.5 Exodus will provide CA with sales leads and support for appropriate mutual opportunities. Exodus may provide CA with pro-sales support as deemed appropriate in accordance with Exodus's reasonable business judgment and discre tion.



4.6 Exodus represents to CA that it and its clients are parties to a bona fide Co-location Agreement, pursuant to the terms and conditions of Exodus' standard agreements, under which Exodus has undertaken or will undertake the management of client's ser v er on behalf of client. Exodus shall ensure that no client shall be granted access to the management stations or installation materials of the CA Product or Cheyenne Products code installed on their machines unless such client has procured a license from CA or an authorized CA reseller for such product(s).



5. CA RESPONSIBILITIES



5.1 CA will use reasonable efforts to perform the joint marketing activities set forth in Appendix G.



5.2 CA will provide Exodus with one full-time implementation engineer for each Exodus Site listed in Appendix E within forty-five (45) days of such location becoming operational under the terms and conditions of this Agreement. Such personnel shall be managed by CA and shall work with Exodus personnel on the implementation of the integration of the CA-Product and Cheyenne Products with Exodus' Internet-based Co-location Services described in Appendix A. Upon mutual agreement, these engineers will be redeployed to other Exodus locations. For those sites which are operational at the time of execution of this Agreement by both parties, CA will provide Exodus with such engineers within thirty (30) days of such execution.



5.3 CA will provide Exodus with training as reasonably necessary on the CA Product and Cheyenne Products at times and places mutually acceptable to both parties at no charge.



5.4 CA will provide Exodus with sales leads support for appropriate mutual opportunities. CA may provide Exodus with pre-sales support as deemed appropriate in accordance with CA's reasonable business judgment and discretion.



5.5 Under a separate Agreement with terms to be mutually agreed upon by both parties, CA agrees to co-locate and have Exodus host all of its current and proposed web servers at Exodus' Internet Data Site, provide d that CA's client base agrees to such co-location. Notwithstanding the foregoing, CA shall not be obligated to co-locate and host such servers with Exodus if CA's contractually negotiated professional services price is less than Exodus' charge for such s ervices.



5.6 If feasible, CA will offer excess real estate to Exodus to be used as Exodus Sites at CA's cost and under a separate agreement to be negotiated by the parties.



5.7 During the term of this Agreement, CA agrees not to market co-location services into Exodus' confidential customer base.





6. CONFIDENTIAL AND PROPRIETARY INFORMATION 6.1 Each party acknowledges that during the term of this Agreement, the other party may disclose confidential and proprietary business or technical informati on and agrees that it will not use such confidential and proprietary business or technical information except as provided in this Agreement. As used in this Agreement, Confidential and Proprietary Information means any proprietary computer software progra m s, marketing collateral, technical manuals, client list, or documentation or other information that is designated by either party to be confidential (hereinafter referred to as "Confidential Information"). The party who receives such Confidential Informat ion pursuant to this Agreement is referred to as the "Receiving Party" and the party making such information available is referred to as the "Supplying Party."



For the purposes of this Agreement, Confidential Information shall not include such inform ation that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) is made publicly available by the Supplying Party; (iii) becomes known by the Receiving party through lawful disclosure from a third party that is not subject t o a confidentiality duty to the Supplying Party; (iv) is required to be disclosed by law, provided notice is given to the Supplying Party of such requirement as soon as practicable and reasonable assistance is rendered to the Supplying Party, if requested, to prevent such disclosure; (v) was known by the Receiving Party prior to disclosure without an obligation of confidentiality; or (vi) was developed by the Receiving Party independent of any reference to the Confidential Information and independent of the participation of any person who had access to the Confidential Information.



Each Receiving Party agrees that in absence of prior written consent by the Supplying Party, it shall not, directly or indirectly, disclose to a third party, the existence o r contents of the Confidential Information, whether disclosed either orally, in writing or by any other means. Each Receiving Party warrants and agrees to use its best efforts to prevent the disclosure of the Confidential Information by its employees by t aking at least such steps to protect such Confidential Information as it takes to protect its own Confidential Information.



The obligations imposed on each Receiving Party under this Agreement shall expire on the earlier of: (a) the date upon which t he Supplying Party consents in writing to The disclosure of its Confidential Information by the Receiving Party; or (b) the date upon which the disclosing party formally announces, releases, or otherwise discloses its Confidential Information to the publi c or otherwise without an accompanying written undertaking by the Receiving Party to protect the Confidential Information from unauthorized disclosure.



7. ROYALTIES



7.1 During the term and in consideration of the obligations undertaken by CA under this Agreement, Exodus will pay CA one percent (1%) of its gross revenues ("Royalties").



7.2 Within forty-five (45) days of the end of each calendar quarter (March 31, June 30, September 30, and December 31), Exodus agrees to provide CA with a complete reporting statement reflecting accurate records its gross revenues and Royalties owed for the preceding quarter. Such statement shall include any commercially reasonable information, including but not limited to all Internet- based Co-Location Services fees invoiced and collected, and all applicable discounts and rebates during the relevant quarter to address listed above Attn: Sales Accounting.



7.3 Exodus shall include payment of Royalties to CA for such sales with its quarterly report. In the event the client makes payment for the services or products in installments, CA, on a quarterly basis, shall receive its pro-rata Royalty included in the gross revenues as each i nstallment payment is received or such services are performed by Exodus.



7.4 Exodus shall maintain for a period of three (3) years after the date of payment complete and accurate records of business activities relating to the payment of Royalties under t his Agreement, and the calculation of Royalties which shall include, at a minimum, client name, address, total amount of contract, services fees billed, services fees collected, license fees, and services performed, rebates, discounts together with a copy of applicable contracts, and invoices. During this three-year period, CA or its designated representative shall have the right, upon reasonable prior notice, to examine and audit during normal business hours Exodus's records solely to determine the R ...