By submitting your application to the CA TechPartner Program (the “Program”) you are entering into a legal agreement with CA, Inc., and its subsidiaries and affiliates, (“CA”), on behalf of your employer, company or affiliated entity (“you”), and agree to the terms and conditions of this CA TechPartner Program Agreement and any additional terms referenced herein (collectively the “Agreement”). This Agreement governs your access to and participation in the Program. If you do not agree to these terms, or do not have the authority to enter into this Agreement, you must not apply to the Program. This Agreement becomes binding upon official notice to you from CA that you have been accepted into the Program (the “Effective Date”). Your acceptance into the Program is at the sole discretion of CA. Notice of your acceptance into the Program will be sent electronically to the e-mail address provided in your application. In the event CA requires more information prior to your acceptance, Section 7 Confidentiality of this Agreement will apply.
You should check these terms often, as this Agreement may be updated, modified or changed from time-to-time with or without notice. CA will make reasonable attempts to notify you via e-mail 30 days prior to material updates or modifications taking affect. Your continued participation in the Program will be deemed your acceptance of the new terms.
1. License Grant
- Upon formal acceptance into the Program, CA grants you a revocable, non-sub licensable, non-exclusive, non-transferable, internal use license to the applicable CA software or SaaS product, including any related materials, libraries, APIs etc., made available to you by CA for use under this Agreement (collectively the “CA Offering”) to create integrations or derivative works (a “Probe”), and/or test, support or demonstrate interoperability with your software or hardware subject to the terms and conditions herein (collectively the “Development Project”). You may only use the CA Offering in object-code format, on computers controlled exclusively by you, at the location indicated on your Program application (the “Development Site”).
- You grant CA a worldwide, royalty-free, perpetual, irrevocable license to utilize and exploit any feedback you provide related to a CA Offering for any commercial purpose without further permission from you.
- Except as expressly set forth herein, no license or right is granted hereunder to you, whether expressly or by implication, estoppel or otherwise, to use, execute, reproduce, display, perform, distribute internally or externally, sell, license, sublicense or otherwise transfer copies of or prepare derivative works based upon any portion of the CA Offering.
2. Your Obligations
- You agree to pay all fees required to participate in the Program. All fees are due and annually payable within 60 days of the date of invoice.
- You may not use the CA Offering in your internal production environment, or for competitive analysis or benchmarking of any kind.
- You must restrict the use of the CA Offering to your employees and contractors that have a genuine need to have such access in accordance with this Agreement. You are responsible for the performance and obligations of all such contractors.
- You must obtain written permission from CA prior to any change of the Development Site. CA may ask you to certify in writing that the CA Offering has been moved to the new Development Site and is no longer in use at the prior Development Site.
- You may make a copy of the CA Offering solely for back-up and archival purposes.
- As it relates to a Probe, you agree to provide CA any Probe proposals prior to creation, marketing or distribution of such Probe.
- You have all necessary rights, permissions and licenses to enter into and perform your obligations under this Agreement.
- You will not directly or indirectly allow, authorize, or assist others to reverse engineer, reverse assemble, reverse compile, or in any other manner attempt to translate or to discover the source code, or to discover the internal logic flow of the CA Offering.
- You are strictly prohibited from using the CA Offering(s) with any technology other than the software or hardware listed on your Program application form and/or indicated in the CA acceptance, as applicable. Under no circumstance shall you use the CA Offering to develop or market any conversion utility or aid specific thereto that would enable users to convert from the CA Offering to an alternative product, nor will you utilize the CA Offering to assist in the development, design or sale of a computer software program that is intended to provide similar functionality as the CA Offering.
3. CA Obligations
- CA will provide support and maintenance for the applicable CA Offering in accordance with the support policy found at support.ca.com.
- CA may, in its sole discretion, provide technical assistance for your Development Project.
- As it relates to Probes, CA will evaluate each Probe proposal in consultation with you and will, in CA’s sole discretion, determine whether you may proceed to create such Probe pursuant to the terms of this Agreement, subject to CA’s rights in the CA Offering and all ancillary CA intellectual property.
4. Use of Marks
- In accordance with these terms and upon acceptance into the Program, CA grants you a non-exclusive, revocable, non-transferable personal right to use the CA trademarks, trade names, service marks and logos provided to you through the Program (the “CA Marks”) in compliance with the guidelines found here. You may only use the CA logo, in accordance with the guidelines, to indicate that you are a member of the Program and/or that CA has validated your Development Project. All other uses of CA Marks are expressly prohibited. You must not use any CA Mark indicating that you have received validation unless CA has formally validated you via email.
- All CA Marks remain the exclusive property of CA. You will not register the CA Marks or take any action that will jeopardize CA’s proprietary rights in the marks. You agree to cooperate with CA’s instructions and quality control procedures in the marks. You agree that you will submit all advertising and marketing material referencing CA, the marks and/or the Program to CA for approval prior to publication. CA, in its sole discretion, reserves the right to terminate your license to use the CA Marks, and/or require you to remove or take down any advertising or marketing materials related to CA. You agree that you will use best efforts to comply with a CA take down request within 24 hours.
- You agree that CA may indicate that you are a member of the Program by publicly displaying your company name and/or logo in print or digital form.
- You shall indemnify CA and defend and hold CA harmless from and against any claims arising from or related to: (i) the actual or alleged infringement by your software, hardware, or Development Project of any third-party intellectual property rights; (ii) statements and representations made by you in advertising, product packaging, documentation and any other marketing collateral regarding the features and functionality of your software, hardware, or Development Project including but not limited to the interoperability and compatibility of your software or hardware with the CA Offering(s); (iii) breach of your obligations hereunder; or (iv) the actual or alleged incompatibility of your software or hardware with the CA Offering(s).
6. Validation Testing
- You agree that upon CA’s request or as required in specific CA Offering documentation,you will submit your Development Project for any and all validation testing required by CA. CA , in its sole discretion, may perform the validation itself or require that your Development Project be validated by a third party to confirm that it is compatible with the version of the CA Offering. The third party testing agency will be designated by CA and may be subject to additional terms and/or fees. You agree to release and hold CA harmless from any liability arising from the performance of validation by a third-party laboratory.
- If required, you agree to submit each major release or version of your Development Project to CA for evaluation. Validation for CA Unified Infrastructure Management Probes will be based on criteria defined in the UIM Program Guide found here.
- Validation by CA is specific to a version and/or release of the CA Offering. CA may update or change the CA Offering at any time and does not guarantee that your Development Project will remain compatible. CA reserves the right to withdraw your validation approval immediately in the event you fail to comply with this Agreement or your Development Project is no longer compatible with the CA Offering.
- The parties acknowledge that during the term of this Agreement one party may disclose to the other party in writing or orally, information that relates to the disclosing party’s software, technology, past, present or future research, development or business activities, including, without limit, confidential, proprietary and technical information hereinafter referred to as “Confidential Information”. The receiving party agrees: (i) to hold such Confidential Information in strict confidence and employ precautions at least as protective as the precautions it uses to protect its own confidential information; (ii) to use such Confidential Information for the sole purpose of the Development Project and in accordance with this Agreement; (iii) to keep such Confidential Information separate and apart from materials not relating to this Agreement; and (iv) to disclose such Confidential Information only to those employees and contractors who have a need to know such information. “Confidential Information” shall not include information which is: (i) independently developed by the receiving party without use of the disclosing party’s Confidential Information; (ii) made available by the disclosing party to the public or to other parties without obligation of confidentiality; (iii) previously known by the receiving party prior to the time of disclosure; or (iv) approved for disclosure by the disclosing party.
- CA shall have the right to use Residuals (as defined below) for any purpose, including but not limited to use in independent development, manufacture, promotion, sale and maintenance of its products and services, without paying any form of compensation to you. “Residuals” means information in a non-tangible form retained in the unaided memories of CA or its employees, contractors or other representatives who have had rightful access to the Development Project(s) and related materials and concepts. A memory is considered unaided if the representative has not intentionally memorized the information for the purpose of retaining and subsequently using or disclosing it. CA, and/or its contractors, may perform the same or similar developments for the benefit of CA, its customers or other third parties without restriction or qualification. Exposure to a Development Project or any related documentation shall not affect a CA employee or contractors ability to work on similar projects.
- CA shall retain all title, copyright, patent, trademark, trade secret and other intellectual property rights in or relating to the CA Offerings and CA Marks, and any related copies, partial copies, compilations, modifications, enhancements, changes, derivative works or translations thereto. You acknowledge and agree that by disclosing CA Confidential Information to you hereunder, CA does not grant any express, implied or other license or right to you under any patent, copyright or other intellectual property right of CA except as expressly set forth herein. CA reserves all rights not expressly granted in this Agreement.
9. Limitation of Liability
- THE CA OFFERINGS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. EXCEPT FOR (i) BREACH OF CONFIDENTIALITY (ii) BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (iii) AS MAY ARISE IN CONNECTION WITH YOUR OBLIGATIONS OF INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO OTHER PARTY OR ANY OTHER PARTY FOR ANY INDIRECT DAMAGE (INCLUDING BUT NOT LIMITED TO, INCIDENTAL, CONSEQUENTIAL AND SPECIAL DAMAGES, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, LOST REVENUES, AND PUNITIVE DAMAGES) WHICH MAY ARISE FROM THE USE, OPERATION, OR MODIFICATION OF THE CA OFFERINGS AND/OR CA MARKS OR OTHERWISE UNDER THIS AGREEMENT. CA’S MAXIMUM LIABILITY FOR ANY DIRECT DAMAGES SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU HEREUNDER.
10. Term & Termination
- Unless provided otherwise, this Agreement will automatically renew on an annual basis on the Effective Date. Either party may terminate this agreement at any time for any reason, provided however, that any payment obligations and Sections 1(b), 1(c), 2, 4(a), 4(b), 5, and 7 through 11 shall survive termination. Upon any termination or expiration, you shall cease use of and destroy all copies of the CA Offering. If requested by CA, you will certify to CA in writing that the CA Offering and all copies thereof have been destroyed and deleted from any computer libraries or storage devices and are no longer in use by you.
11. Term & Termination
You agree that CA may, during normal business hours and without cost to CA, access the machine(s) upon which the CA Offerings are being used to conduct a review of your compliance with the provisions of this Agreement. CA agrees to provide you reasonable notice and comply with the applicable confidentiality and security provisions you provide.
This Agreement shall be governed and interpreted in accordance with the law of the State of New York, excluding its conflicts of law’s provisions. If any provision of this Agreement is invalid under applicable statute or rule of law, it will be deemed omitted and will not render invalid any other provision herein. No delay or failure of either party in exercising any rights hereunder shall be deemed of itself to constitute a waiver of such rights or any rights hereunder. You may not assign or delegate your duties under this Agreement without prior written consent from CA.
Except where otherwise stated, any notices required or permitted to be given under this Agreement shall be deemed sufficiently given if delivered by hand, mailed by registered or certified mail, prepaid postage and return receipt requested or sent by overnight courier (which a confirmation of delivery obtained) to you, with the address you provide when applying to the Program, or to CA at the following address:
Attn: General Counsel, Law Department
520 Madison Ave.
New York, New York, 10022
This Agreement and the information which is incorporated into this Agreement by reference, together with any program guides or CA materials you receive from CA form the entire agreement between you and CA as it pertains to your participation in the Program and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding your membership in the Program. The order of precedence from greatest to least shall be 1) the Program acceptance notice 2) the additional terms referenced herein 3) these terms and conditions.
12. UIM Marketplace @ CA Program
If you are applying to the CA UIM Marketplace @ CA TechPartner Program the following also applies:
The SDK provided to you for purposes of creating a Probe may contain certain components identified as redistributable components. You are hereby granted a worldwide, revocable, royalty-free license to distribute copies of these redistributable components solely as part of or in connection with the Probe. Certain of these redistributable components may be third-party components subject to requirements to provide certain notices, attributions and/or terms to licensees of the Probe should you decide to distribute such third-party components. The SDK redistributable components are identified here. If you use and distribute any of the components, you agree to comply with all governing licenses.
Upon validation of the Probe by CA, and absent a formal distribution agreement between you and CA, you may license the Probe for the limited purpose of distribution, in object code form only, directly to your End User Customers. An “End User Customer” is your licensee that (a) is permitted to use the Probe solely for its own internal data processing; (b) has no right to redistribute the Probe; and (c) has agreed to the terms of your end user license agreement that contains terms no less restrictive than the terms herein. Except as stated herein, you may not distribute or market the Probe in any other manner until a formal distribution agreement with CA has been executed.