<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1996
REGISTRATION NO. 333-3842
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
USCS INTERNATIONAL, INC.
(Name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7371 94-1727009
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification
No.)
</TABLE>
2969 PROSPECT PARK DRIVE
RANCHO CORDOVA, CA 95670-6148
(916) 636-4500
(Address and telephone number of principal executive offices)
JAMES C. CASTLE, PH.D.
CHIEF EXECUTIVE OFFICER
USCS INTERNATIONAL, INC.
2969 PROSPECT PARK DRIVE
RANCHO CORDOVA, CA 95670-6184
(916) 636-4500
(Name, address and telephone number, of agent for service)
------------------------
COPIES TO:
<TABLE>
<S> <C>
GILLES S. ATTIA, ESQ. MARK A. BERTELSEN, ESQ.
KEVIN A. COYLE, ESQ. ANN YVONNE WALKER, ESQ.
Graham & James, LLP Wilson Sonsini Goodrich & Rosati
400 Capitol Mall Professional Corporation
Suite 2400 650 Page Mill Road
Sacramento, CA 95814-4411 Palo Alto, CA 94304-1050
(916) 558-6700 (415) 493-9300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE ON OR AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
TITLE OF OFFERING MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT BEING PRICE PER AGGREGATE REGISTRATION
REGISTERED REGISTERED SHARE (1) OFFERING PRICE FEE (2)
<S> <C> <C> <C> <C>
Common Stock, Par Value
$.05 per share.......... 5,520,000 Shares $17.00 $93,840,000 $32,359
Rights to Purchase Series
A Preferred Stock, par
value $.05 per share.... 5,520,000 Rights $0.00 $0.00 $0.00
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee.
(2) Previously paid.
</TABLE>
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT FOR THE SOLE
PURPOSE OF THE ELECTRONIC FILING OF EXHIBITS WHICH WERE PREVIOUSLY FILED IN
PAPER FORMAT PURSUANT TO WHICH THE COMPANY RECEIVED A TEMPORARY HARDSHIP
EXEMPTION PURSUANT TO RULE 201 OF REGULATION S-T. THE PORTIONS OF THE
REGISTRATION STATEMENT OMITTED FROM THIS AMENDMENT AND PREVIOUSLY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION ARE INCORPORATED BY THIS REFERENCE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
THE PORTIONS OF THE REGISTRATION STATEMENT OMITTED FROM PART II IN THIS
AMENDMENT AND PREVIOUSLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ARE
INCORPORATED BY THIS REFERENCE.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO.
- -------------
<C> <S>
1.1 Form of Purchase Agreement.*
2.1 Agreement and Plan of Merger dated April 18, 1996 among USCS International, Inc., a Delaware
corporation, and U.S. Computer Services, a California corporation.*
2.2 Reference exhibits 10.37, 10.38, 10.39 & 10.40.
3.1 First Amended and Restated Certificate of Incorporation of USCS International, Inc.*
3.2 Bylaws of the Company.*
3.3 Certificate of Designation of Rights, Preferences and Privileges of Series A Preferred Stock.*
4.1 Reference Exhibit 3.1.
4.2 Shareholder Rights Agreement dated December 30, 1988 among U.S. Computer Services, Westar
Capital and Enterprise Partners.
4.3 Stockholder Rights Plan.*
5.1 Opinion of Graham & James LLP, Counsel to the Registrant, as to legality of securities being
registered.*
10.1 1988 Incentive Stock Option Plan.*
10.2 The Company's Employee Stock Ownership Plan ("ESOP") as amended and restated as of January 1,
1991, and as amended effective January 1, 1991, January 1, 1992, January 1, 1993, February 19,
1993, January 1, 1994, December 31, 1994, January 1, 1995, March 31, 1995, January 1, 1996 and
March 21, 1996.*
10.3 1993 Incentive Stock Option Plan.*
10.4 1996 Stock Option Plan.*
10.5 1996 Directors' Stock Option Plan.*
10.6 Employee Stock Purchase Plan.*
10.7 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of December 1,
1987 between the Company and Sun Bank, as Trustee.*
10.8 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of
December 1, 1987 between the Company and Sanwa Bank of California.*
10.9 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of June 30, 1989
between the Company and Sun Bank, as Trustee.*
10.10 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of June
30, 1989 between the Company and Sanwa Bank of California.*
10.11 Note Agreement dated as of February 19, 1992 (re: $22,500,000 7.91% Senior Notes due February
19, 1999) between the Company and Great-West Life and Annuity Insurance Company and Phoenix
Mutual Life Insurance Company and as amended as of February 17, 1993, April 30, 1993, August 1,
1994, March 31, 1995 and February 15, 1996.*
10.12 Credit Agreement dated as of February 15, 1996 among IBS, Nationsbank of Texas and the Lender
Parties named therein.*
10.13 Credit Agreement dated as of February 15, 1996 among The Company, Nationsbank of Texas and the
Lender Parties named therein.*
10.14 Form of Standard On/Line Operating and License Agreement.*
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO.
- -------------
<C> <S>
10.15 Form of Standard Equipment Maintenance Agreement.*
10.16 Form of Master Lease, Lease Request and Certificate of Acceptance.*
10.17 Form of Standard Agreement for the Sale and Installation of Equipment.*
10.18 Form of Standard Statement Production Services Agreement.*
10.19 Strategic Business Agreement dated January 19, 1992 between the Company and International
Business Machines Corporation and Addendum Number One to Strategic Business Agreement dated
June 4, 1993 between the Company and International Business Machines Corporation.+
10.20 Business Alliance Program Agreement between Oracle Corporation and CableData.+
10.21 Development Agreement dated December 5, 1994 between the Company and Tandem Computers
Incorporated.+
10.22 Porting Agreement dated January 25, 1996 between CableData and Hewlett-Packard Company.+
10.23 [Intentionally omitted]
10.24 On/Line Operating and License Agreement dated June 7, 1996 between CableData, Inc. and TCI Cable
Management Corporation.+
10.25 Master Lease Agreement No. DO4347 dated as of April 16, 1993 between the Company and First
Equipment Company.*
10.26 On/Line Operating and Licensing Agreement dated December 17, 1993 between the Company dba
CableData and Continental Cablevision.+
10.27 Statement Production Services Agreement dated August 20, 1993 between the Company dba
International Billing Services and Ameritech Corporation.* ***+
10.28 Software Development Agreement dated December 27, 1995 between CableData and BellSouth
Interactive Media Services.+
10.29 CableData's Intelecable-TM- Operating and License Agreement dated December 27, 1995 between
CableData. and BellSouth Interactive Media Services, Inc.+
10.30 Software License and Service Agreement and Network User License Addendum dated May 18, 1994
between the Company and Oracle Corporation.+
10.31 Statement Production Services Agreement dated October 9, 1990 between the Company and CBIS and
First Addendum to Statement Production Services Agreement dated July 17, 1991 between the
Company and CBIS.+
10.32 Tandem Alliance Agreement dated January 1, 1995, between Tandem and CableData.+
10.33 Contract for Computer Software (Postalsoft Software License Agreement) dated February 13, 1996
between IBS and Postalsoft, Inc.+
10.34 Employment Agreement dated August 10, 1992 between the Company and James C. Castle.*
10.35 Employment Agreement dated June 29, 1995 with Michael McGrail.*
10.36 Form of Severance Agreement.*
10.37 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and CableData.*
10.38 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and IBS.*
10.39 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing
and CableLease, Inc.*
10.40 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing
and RPA, Inc.*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO.
- -------------
<C> <S>
10.41 Building Lease for property located at 2969 Prospect Park Drive between the Company and F.I.A.
Profile Fund I dated January 19, 1994.*
10.42 Alternate Mailing System Agreement dated March 28, 1996 between the United States Postal Service
and IBS.+
10.43 Alternate Mailing Systems Agreement dated April 18, 1996 between the United Postal Service and
International Billing Services, Inc.*
10.44 Form of Directors' Indemnification Agreement.*
10.45 Form of Custody and Escrow Agreement for Selling Stockholders.*
10.46 Form of Selling Stockholders' Irrevocable Power of Attorney.*
10.47 Amendment No. 11 to the ESOP.*
21.1 List of Subsidiaries.*
23.1 Consent of Graham & James LLP (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.*
24.1 Powers of Attorney.*
27.1 Financial Data Schedule.*
</TABLE>
- ------------------------
* Indicates Exhibit previously filed.
*** Indicates Exhibit was filed in paper format pursuant to a continuing
hardship exemption under Rule 202 of Regulation S-T.
+ Portions omitted pursuant to a request for confidential treatment pursuant
to Rule 406 of the Securities Act.
(b) Financial Statement Schedules
None.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Rancho Cordova, State of
California, on the 8th day of July, 1996.
USCS INTERNATIONAL, INC.
By /S/ DOUGLAS L. SHURTLEFF
------------------------------------
Douglas L. Shurtleff,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C>
Dated: July 8, 1996 *
-------------------------------------------
James C. Castle
Chief Executive Officer and Chairman of the
Board of Directors (Principal Executive
Officer)
Dated: July 8, 1996 *
-------------------------------------------
George L. Argyros, Sr.
Director
Dated: July 8, 1996 *
-------------------------------------------
George M. Crandell, Jr.
Director
Dated: July 8, 1996 *
-------------------------------------------
Charles D. Martin
Director
*By /S/ DOUGLAS L. SHURTLEFF
- -------------------------------------------
Douglas L. Shurtleff
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C>
Dated: July 8, 1996 *
-------------------------------------------
Michael F. McGrail
Director
Dated: July 8, 1996 *
-------------------------------------------
Larry W. Wangberg
Director
Dated: July 8, 1996 /S/ DOUGLAS L. SHURTLEFF
-------------------------------------------
Douglas L. Shurtleff
Senior Vice-President of Finance and Chief
Financial Officer (Principal Financial
Officer)
Dated: July 8, 1996 /S/ ARTHUR O. HAWKINS
-------------------------------------------
Arthur O. Hawkins
Vice-President and Treasurer (Principal
Accounting Officer)
*By /S/ DOUGLAS L. SHURTLEFF
- -------------------------------------------
Douglas L. Shurtleff
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Purchase Agreement.
2.1 Agreement and Plan of Merger dated April 18, 1996 among USCS International, Inc., a Delaware
corporation, and U.S. Computer Services, a California corporation.*
2.2 Reference exhibits 10.37, 10.38, 10.39 & 10.40.
3.1 First Amended and Restated Certificate of Incorporation of USCS International, Inc.*
3.2 Bylaws of the Company.*
3.3 Certificate of Designation of Rights, Preferences and Privileges of Series A Preferred Stock.*
4.1 Reference Exhibit 3.1.
4.2 Shareholder Rights Agreement dated December 30, 1988 among U.S. Computer Services, Westar Capital and
Enterprise Partners.
4.3 Stockholder Rights Plan.*
5.1 Opinion of Graham & James LLP, Counsel to the Registrant, as to legality of securities being
registered.*
10.1 1988 Incentive Stock Option Plan.*
10.2 The Company's Employee Stock Ownership Plan ("ESOP") as amended and restated as of January 1, 1991, and
as amended effective January 1, 1991, January 1, 1992, January 1, 1993, February 19, 1993, January 1,
1994, December 31, 1994, January 1, 1995, March 31, 1995, January 1, 1996 and March 21, 1996.*
10.3 1993 Incentive Stock Option Plan.*
10.4 1996 Stock Option Plan.*
10.5 1996 Directors' Stock Option Plan.*
10.6 Employee Stock Purchase Plan.*
10.7 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of December 1, 1987
between the Company and Sun Bank, as Trustee.*
10.8 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of December 1,
1987 between the Company and Sanwa Bank of California.*
10.9 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of June 30, 1989 between
the Company and Sun Bank, as Trustee.*
10.10 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of June 30, 1989
between the Company and Sanwa Bank of California.*
10.11 Note Agreement dated as of February 19, 1992 (re: $22,500,000 7.91% Senior Notes due February 19, 1999)
between the Company and Great-West Life and Annuity Insurance Company and Phoenix Mutual Life Insurance
Company and as amended as of February 17, 1993, April 30, 1993, August 1, 1994, March 31, 1995 and
February 15, 1996.*
10.12 Credit Agreement dated as of February 15, 1996 among IBS, Nationsbank of Texas and the Lender Parties
named therein.*
10.13 Credit Agreement dated as of February 15, 1996 among The Company, Nationsbank of Texas and the Lender
Parties named therein.*
10.14 Form of Standard On/Line Operating and License Agreement.*
10.15 Form of Standard Equipment Maintenance Agreement.*
10.16 Form of Master Lease, Lease Request and Certificate of Acceptance.*
10.17 Form of Standard Agreement for the Sale and Installation of Equipment.*
10.18 Form of Standard Statement Production Services Agreement.*
10.19 Strategic Business Agreement dated January 19, 1992 between the Company and International Business
Machines Corporation and Addendum Number One to Strategic Business Agreement dated June 4, 1993 between
the Company and International Business Machines Corporation.+
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
10.20 Business Alliance Program Agreement between Oracle Corporation and CableData.+
<C> <S>
10.21 Development Agreement dated December 5, 1994 between the Company and Tandem Computers Incorporated.+
10.22 Porting Agreement dated January 25, 1996 between CableData and Hewlett-Packard Company.+
10.23 [Intentionally omitted]
10.24 On/Line Operating and License Agreement dated June 7, 1996 between CableData, Inc. and TCI Cable
Management Corporation.+
10.25 Master Lease Agreement No. DO4347 dated as of April 16, 1993 between the Company and First Equipment
Company.*
10.26 On/Line Operating and Licensing Agreement dated December 17, 1993 between the Company dba CableData and
Continental Cablevision.+
10.27 Statement Production Services Agreement dated August 20, 1993 between the Company dba International
Billing Services and Ameritech Corporation.* ***+
10.28 Software Development Agreement dated December 27, 1995 between CableData and BellSouth Interactive Media
Services.+
10.29 CableData's Intelecable-TM- Operating and License Agreement dated December 27, 1995 between CableData.
and BellSouth Interactive Media Services, Inc.+
10.30 Software License and Service Agreement and Network User License Addendum dated May 18, 1994 between the
Company and Oracle Corporation.+
10.31 Statement Production Services Agreement dated October 9, 1990 between the Company and CBIS and First
Addendum to Statement Production Services Agreement dated July 17, 1991 between the Company and CBIS.+
10.32 Tandem Alliance Agreement dated January 1, 1995, between Tandem and CableData.+
10.33 Contract for Computer Software (Postalsoft Software License Agreement) dated February 13, 1996 between
IBS and Postalsoft, Inc.+
10.34 Employment Agreement dated August 10, 1992 between the Company and James C. Castle.*
10.35 Employment Agreement dated June 29, 1995 with Michael McGrail.*
10.36 Form of Severance Agreement.*
10.37 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and CableData.*
10.38 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and IBS.*
10.39 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and
CableLease, Inc.*
10.40 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and RPA,
Inc.*
10.41 Building Lease for property located at 2969 Prospect Park Drive between the Company and F.I.A. Profile
Fund I dated January 19, 1994.*
10.42 Alternate Mailing System Agreement dated March 28, 1996 between the United States Postal Service and
IBS.+
10.43 Alternate Mailing Systems Agreement dated April 18, 1996 between the United Postal Service and
International Billing Services, Inc.*
10.44 Form of Directors' Indemnification Agreement.*
10.45 Form of Custody and Escrow Agreement for Selling Stockholders.*
10.46 Form of Selling Stockholders' Irrevocable Power of Attorney.*
10.47 Amendment No. 11 to the ESOP.*
21.1 List of Subsidiaries.*
23.1 Consent of Graham & James LLP (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- --------------------------------------------------------------------------------------------------------
24.1 Powers of Attorney.*
<C> <S>
27.1 Financial Data Schedule.*
</TABLE>
- ------------------------
* Indicates Exhibit previously filed.
*** Indicates Exhibit was filed in paper format pursuant to a continuing
hardship exemption under Rule 202 of Regulation S-T.
+ Portions omitted pursuant to a request for confidential treatment pursuant
to Rule 406 of the Securities Act.
<PAGE>
EXHIBIT 4.2
<PAGE>
SHAREHOLDER RIGHTS AGREEMENT
THIS SHAREHOLDER RIGHTS AGREEMENT (the "Agreement") is entered into as
of December 30, 1988, by and among U.S. Computer Systems, a California
corporation (dba "Cable Data") (the "Company"), Westar Capital, a California
limited partnership and Enterprise Partners, a California limited partnership
(Westar Capital and Enterprise Partners are hereinafter collectively referred
to as "Westar" for purposes of this Agreement) and solely for the purposes of
paragraphs 2.1(c), 2.1(d) and applicable portions of Section 7, Gerald S.
Knapp and Susan A. Mathews as Trustees of the Company's Fixed Contribution
Employee Stock Ownership Plan (the "Fixed Contribution Plan") and the
Company's Discretionary Contribution Employee Stock Ownership Plan (the
"Discretionary Contribution Plan" and, together with the Fixed Contribution
Plan, the "Plans").
RECITALS
A. Westar is proposing to purchase shares of the Company's Common
Stock from certain shareholders of the Company pursuant to a stock purchase
agreement of even date herewith.
B. Westar and the Company desire to set forth certain rights to be
granted to and covenants to be made with Westar in connection with its
purchase of such shares and with respect to its status as a shareholder
of the Company.
C. Concurrently with the execution of this Agreement, the Company,
Westar and the Estate of Robert J. Mathews (the "Estate") are entering into a
Shareholders' Agreement providing for certain agreements regarding the
transfer and voting of securities of the Company (the "Shareholders'
Agreement").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth in this
Agreement, the parties mutually agree as follows:
1
<PAGE>
SECTION 1
PAYMENT
1.1 PAYMENT BY WESTAR. On the Effective Date (as defined below),
Westar shall deliver to the Company a certified check in the amount of
Sixty-Three Thousand Five Hundred Ninety Dollars ($63,590), payable to the
order of the Company, in consideration for the rights granted to Westar, and
the obligations incurred by the Company, pursuant to this Agreement. The
"Effective Date" shall mean the date which is the later to occur of (i) the
date on which Westar consummates the purchase from Susan J. Teasley of all of
the shares of the Company's Common Stock held by her for a purchase price not
to exceed $93 per share and (ii) the date on which the parties to that
certain litigation SUSAN J. TEASLEY V. SUSAN A. MATHEWS ET AL. (Case No.
330791) and SUSAN J. TEASLEY V. SUSAN A. MATHEWS (Case No. 355005) enter into
a settlement agreement or agreements providing for a full mutual release of
all claims and a contribution by the Company to such settlement of not more
than Four Hundred Twenty-Two Thousand Five Hundred Dollars ($422,500);
provided, however, that if the Effective Date has not occurred on or before
January 13, 1989, this agreement shall be null and void.
SECTION 2
COVENANTS OF THE COMPANY
2.1 EMPLOYEE STOCK OWNERSHIP PLANS.
(a) Subject to employee stock ownership plan qualification
requirements, including but not limited to Section 4975(e)(7) of the Internal
Revenue Code, the Company shall not without the written consent of Westar
contribute or sell any shares of capital stock to the Plans other than shares
of its nonvoting Common Stock for allocation to the accounts of employee
participants in the Plans.
(b) The Company shall not without the written Consent of Westar
contribute or sell to the Plans more than 5,000 shares of its nonvoting
Common Stock during any calendar year, and in no event shall the Company
without the written consent of Westar contribute or sell to the Plans during
any calendar year shares having an aggregate value, as determined pursuant to
the provisions of Section 3.05 of the Fixed Contribution Plan, in excess of
fifty percent (50%) of the contributions required to be made by the Company
to the Fixed Contribution Plan (or which would have been required to have
been made had such Plan remained in effect) during such calendar year
pursuant to the provisions of Section 3.01 of such Plan.
2
<PAGE>
(c) Neither the Fixed Contribution Plan nor the Discretionary
Contribution Plan shall acquire or purchase any shares of the Company's
capital stock from the Company or any other person or entity without the
written consent of Westar except for (i) purchases of shares from Plan
participants pursuant to the distribution and repurchase provisions of each
Plan, (ii) acquisitions of shares pursuant to contributions or sales by the
Company as permitted by subsection (b) above, and (iii) purchases of shares
from other shareholders of the Company; provided, however, that in no event
shall the Plans collectively purchase from any one shareholder during any
calendar year shares having an aggregate value in excess of $100,000; and
provided further that in no event shall the Plans collectively acquire or
purchase more than 5,000 shares in the aggregate during any calendar year
(exclusive of purchases described in clause (i) above) pursuant to the
provisions of this Section 2.1.
(d) Subject to compliance with applicable law, the Company and the
Plans shall use their best efforts to cause the consolidation of the Plans
into a single discretionary contribution stock ownership plan for the benefit
of the Company's employees by June 30, 1989.
2.2 RECAPITALIZATIONS. The Company shall not engage in any
recapitalization, stock dividend or stock split, or other transaction in
respect of its capital stock which would have the effect of converting any of
its issued and outstanding shares of nonvoting Common Stock to voting Common
Stock or which would alter, change or otherwise affect the voting rights of
its nonvoting or voting Common Stock.
2.3 REPURCHASE OF SHARES. The Company shall not purchase any shares of
its capital stock from any shareholder of the Company except as expressly
provided in Sections 2.1(c), 3 and 5.2 hereof and except as otherwise
expressly provided in that certain Buy-Sell Agreement dated April 26, 1988
between Susan A. Mathews and the Company (as amended as contemplated in the
Shareholders' Agreement).
2.4 BOARD OF DIRECTORS; REINCORPORATION. Upon the Effective Date of
this Agreement, the Company shall take corporate action to increase the
number of directors of the Company to seven (7) and shall immediately name
George Crandell as a director to fill one of the vacancies created thereby.
The Company shall not take any corporate action to change the authorized
number of directors of the Company to a number other than seven (7) or change
the Company's state of incorporation without the written consent of Westar.
3
<PAGE>
SECTION 3
SALE PROVISIONS
3.1 PURCHASE REQUEST. The Company hereby grants to Westar the right
and option to request that the Company purchase from time to time after the
sixth (6th) anniversary of the Effective Date (hereinafter referred to as the
"Request") all or any portion of the shares of capital stock of the Company
which Westar then holds (the "Shares") at a purchase price per Share equal to
the greater of (i) the fair market value per share of the Company's Common
Stock in the Plans as determined by the last independent appraisal performed
for the Plans as of the year end of the year immediately preceding the year
during which the Shares are purchased by the Company pursuant to Section 3.2
below for purposes of valuing the Company's Common Stock in connection with
the administration of the Company's Plans, or, if no such appraisal has been
performed within the twelve (12) month period immediately preceding the date
on which the Shares are purchased by the Company, the fair market value per
share of the Company's Common Stock as determined by an independent appraisal
performed by the appraiser that had performed the then most recent appraisal
for the Plans, the cost of which shall be borne by the Company, or (ii) a
price per share equal to that price which would yield to Westar an annual
compounded rate of return on its investment in the Shares, based on the cost
of such investment to Westar (which cost shall include the amount paid to the
Company pursuant to Section 1.1 hereof and the amount paid to the Estate
pursuant to Section 1.1 of the Shareholders' Agreement) and the period for
which the Shares are held, of twenty percent (20%). Such price shall be
determined as of the date of the closing of the purchase pursuant to such
Request (hereinafter the "Purchase Price").
3.2 REQUEST AND PURCHASE OF SHARES.
(a) Subject to the provisions of subsection (b) below, Westar may
request the purchase of all or any portion of the Shares and, the Company
shall have the right but not an obligation to purchase from Westar, all of
the Shares as to which the Request is exercised. Westar's Request shall
commence upon written notice from Westar to the Company specifying the number
of Shares as to which the Request is exercised. If the Company accepts the
Request, the Company shall, within one hundred eighty (180) days of the
notice from Westar of its Request pay to Westar, by certified check payable
to the order of Westar, the aggregate Purchase Price of the Shares as to
which the Request has been exercised as determined pursuant to Section 3.1
above, subject to adjustment as provided in Section 3.3 below, plus all
accumulated dividends, if any, for each Share and
4
<PAGE>
purchased by the Company. In exchange therefor, Westar shall deliver to the
Company a stock certificate or certificates representing the total number of
Shares being purchased, duly endorsed in blank by Westar or having attached
thereto a stock power duly executed by Westar in proper form for transfer.
(b) In the event that any payment to be made by the Company is
prohibited by provisions of any applicable law, then such payment shall be
immediately made by the Company at the next earliest time, and to the extent
possible, when compliance with said law may be effected, and the Company
agrees that it will use its best efforts to expedite and effectuate to the
extent possible such compliance.
(c) The Company may, in its sole discretion, assign its right to
purchase any Shares as to which the Request has been exercised to any person
or entity selected by the Company's Board of Directors, including, without
limitation, the Plans or one or more other shareholders of the Company.
Notwithstanding the provisions of Section 2.1 above, the Plans may accept
such assignment and purchase such shares.
3.3 ADJUSTMENT OF PURCHASE PRICE. In the event of any stock dividend,
stock split, combination of shares, subdivision or other recapitalization of
the Shares between the time any Request is exercised and the time the Shares
as to which such Request has been exercised are purchased by the Company,
then the number of Shares and the purchase price per Share as to which such
Request has been exercised shall be proportionately adjusted to take into
account each of any such events, so that Westar shall be entitled to sell
such number of Shares and to receive such purchase price per Share, as it
would have been entitled to do or receive had such event occurred immediately
prior to the time such Request was exercised.
3.4 MISCELLANEOUS. The right to Request shall terminate, whether or
not it has then become exercisable, upon the earlier to occur of (i) the
first closing of the first firmly underwritten public offering by the Company
of its Common Stock, pursuant to registration statement filed with, and
declared effective by, the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933 as amended (the "Act"), covering the offer
and sale of Common Stock to the public at a per share price (prior to
underwriter commissions and expenses) of at least $275 (as adjusted for any
combinations, consolidations, stock splits or stock dividends with the
respect to such stock) and at an aggregate offering price of not less than
$10,000,000 or (ii) the closing of a public offering of the Company's Common
Stock
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pursuant to the exercise by Westar of its demand registration right under
Section 4.2 hereof.
SECTION 4
REGISTRATION RIGHTS
4.1 DEFINITIONS. For purposes of this Section 4:
(a) The term "register", "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering
of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means all shares of the
Company's Common Stock held by Westar from time to time.
4.2 REQUEST FOR REGISTRATION.
(a) In the event the Company (or its assignee as provided in
Section 3.2(c) does not purchase all of the Shares as to which a Request has
been exercised pursuant to the provisions of Section 3 hereof within the 180 day
period set forth in Section 3.2, Westar may request in writing that the Company
file a registration statement under the Act covering the registration of all or
any portion of the Registrable Securities then outstanding (or a lesser percent
if the anticipated aggregate offering price, net of underwriting discounts and
commissions, would exceed $5,000,000). If such Request is made by Westar,
the Company shall use its best efforts to effect the registration under the Act
of all Registrable Securities which Westar requests to be registered and use its
best efforts to effect such registration within one hundred eighty (180) days of
the receipt of such Request.
(b) If Westar intends to distribute the Registrable Securities
covered by its request by means of an underwriting, it shall so advise the
Company as a part of its request made pursuant to this Section 4.2. The
underwriter will be selected by Westar and shall be reasonably acceptable to
the Company.
(c) The Company is obligated to effect only one (1) such
registration pursuant to this Section 4.2.
(d) If the underwriter has not limited the number of Registrable
Securities to be underwritten, the Company may include its securities for its
own account in such registration and underwriting if the underwriter so
agrees and if the number of Registrable Securities which would otherwise
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have been included in such registration and underwriting will not thereby be
limited.
4.3 COMPANY REGISTRATION. If the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than Westar) any of its stock or other securities under
the Act in connection with the public offering of such securities solely for
cash (other than a registration relating solely to the sale of securities to
participants in a Company stock plan, or a registration on any form which
does not include substantially the same information as would be required to
be included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give Westar written
notice of such registration. Upon the written request of Westar given within
twenty (20) days after mailing of such notice by the Company the Company
shall, subject to the provisions of Section 4.8, cause to be registered under
the Act all of the Registrable Securities that Westar has requested to be
registered at the same time as its stock is registered.
4.4 OBLIGATIONS TO THE COMPANY. Whenever required under this Section 4
to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts (i) to cause
such registration statement to become effective, and, (ii) upon the request
of Westar, keep such registration statement effective for up to one hundred
twenty (120) days.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with
such registration statement as may be reasonably necessary to comply with the
provisions of the Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to Westar such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Westar may reasonably request in order
to facilitate the disposition of Registrable Securities.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue
Sky laws of such jurisdictions as shall be reasonably requested by Westar
(not to exceed twenty (20) states unless agreed to by the Company),
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provided that the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
(f) Notify Westar at any time when a prospectus relating thereto
is required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
4.5 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 4 with
respect to the Registrable Securities that Westar shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of Westar's Registrable Securities.
4.6 EXPENSES OF DEMAND REGISTRATION. All expenses incurred in
connection with registrations, filings or qualifications pursuant to
Section 4.2, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for Westar and any other selling shareholders participating in such
registration shall be borne by Westar; provided however that if the Company,
or any other shareholders of the Company, participate in such registration,
such costs shall be borne by Westar, the Company, and any other shareholders
in proportion to the number of securities sought to be included in such
registration by Westar, the Company and such other selling shareholders.
4.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 4.3 for Westar, including (without limitation) all
registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto but excluding the fees and disbursements of
counsel for Westar and
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any other selling shareholders participating in such registration, and also
excluding underwriting discounts and commissions relating to Registrable
Securities.
4.8 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 4.3 to include any of Westar's Registrable
Securities in such underwriting unless Westar accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters), and then only in
such quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by shareholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling shareholders according to
the number of securities sought to be included therein by each selling
shareholder or in such other proportions as shall mutually be agreed to by such
selling shareholders) but in no event shall (i) the amount of Registrable
Securities included in the offering be reduced below thirty percent (30%) of the
total amount of Registrable Securities which Westar requested be included in
such offering, unless such offering is the initial public offering of the
Company's securities in which case Westar's Registrable Securities may be
excluded if the underwriters make the determination described above and no other
shareholder's securities are included or (ii) notwithstanding (i) above, any
shares being sold by Westar pursuant to its exercise of its demand registration
right granted in Section 4.2 be excluded from such offering.
4.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 4:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless Westar, any underwriter (as defined in the Act) for Westar and
each person, if any, who controls Westar or such underwriter within the
meaning of the Act or the Securities Exchange Act of 1934,
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as amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Act, the 1934 Act or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission
to state therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation or
alleged violation by the Company of the Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Act, the 1934
Act or any state securities law; and the Company will pay to Westar or any
such underwriter or controlling person, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 4.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by Westar or any such
underwriter or controlling person.
(b) To the extent permitted by law, Westar will indemnify and
hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other shareholder
selling securities in such registration statement and any controlling person
of any such underwriter or other shareholder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by
Westar as a selling shareholder expressly for use in connection with such
registration or relating to actions or inactions required of Westar as a
selling shareholder in connection with such registration; and Westar will pay
any
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legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 4.9(b), in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 4.9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of Westar, which consent shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party under this
Section 4.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 4.9,
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties which may
be represented without conflict by one counsel) shall have the right to
retain one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding, The failure
to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action, if prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any liability
to the indemnified party under this Section 4,9, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 4.9.
(d) The obligations of the Company and Westar under this Section
4.9 shall survive the completion of any offering of Registrable Securities in
a registration statement under this Section 4.
4.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to
making available to Westar the benefits of Rule 144 promulgated under the Act
and any other rule or regulation of the SEC that may at any time permit
Westar to sell securities of the Company to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to:
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(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at all
times after ninety (90) days after the effective date of the first
registration statement filed by the Company for the offering of its
securities to the general public;
(b) use its reasonable efforts, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, to enable
Westar to utilize Form S-3 for the sale of its Registrable Securities, such
action to be taken as soon as practicable after the end of the fiscal year in
which the first registration statement filed by the Company for the offering
of its securities to the general public is declare effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the 1934 Act; and
(d) furnish to Westar, so long as Westar owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144 (at any
time.after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements), or that
it qualifies as a registrant whose securities may be resold pursuant to Form
S-3 (at any time after it so qualifies), (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing Westar of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
4.11 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written
consent of Westar, enter into any agreement with any holder or prospective
holder of any securities of the Company which would allow such holder or
prospective holder (a) to include such securities in any registration filed
under Section 4.2 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of Westar's Registrable Securities which is included or (b)
to make a demand registration.
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4.12 MARKET STAND-OFF. Westar hereby agrees that, if so requested by
the Company and the underwriter (if any), Westar shall not sell or otherwise
transfer any shares or other securities of the Company during the 90-day
period following the effective date of a Registration Statement of the
Company filed under the Act; provided that:
(a) such restriction shall only apply to the first Registration
Statement of the Company to become effective which include securities to be sold
on behalf of the Company to the public in an underwritten offering; and
(b) all officers, directors and holders of the Company's Common
Stock on the effective date of such registration statement shall have agreed
to the same limitation with respect to the Registration to which this Section
4.12 is applied. The Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restriction until the end of
such 90-day period.
SECTION 5
RIGHTS OF FIRST REFUSAL
5.1 WESTAR RIGHT OF FIRST REFUSAL. The Company hereby grants to Westar
the right of first refusal to purchase its pro rata share of all New
Securities (as defined in subsection (d) below) that the Company may, from
time to time, propose to sell and issue. Westar's pro rata share of New
Securities, for purposes of this right of-first refusal, shall, in the case
of each such proposed sale and issuance, be that number of New Securities
which are sufficient to enable Westar to continue to hold the same percentage
of the equity securities of the Company and the same percentage of the voting
securities of the Company after giving effect to such sale and issuance as it
held immediately prior to such sale and issuance (in all cases calculated on
a fully diluted basis). Westar's right of first refusal shall be subject to
the following provisions:
(a) In the event that the Company proposes to undertake an
issuance of New Securities, it shall give Westar written notice of its
intention, describing the type of New Securities, the price, and the general
terms upon which the Company proposes to issue the same. Westar shall have
30 days from the date such notice is given (as provided in Section 7.7
hereof) to irrevocably agree to purchase up to its pro rata share of such New
Securities for the price and upon the general terms specified in the notice
by giving written notice to the Company and stating therein the quantity of
New Securities to be purchased.
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(b) In the event that Westar fails to exercise in full its right
of first refusal within said 30-day period, the Company shall have 60 days
thereafter to sell the New Securities in respect of which Westar's rights
were not exercised, at a price and upon general terms no more favorable to
the purchasers thereof than specified in the Company's notice. In the event
the Company has not sold the New Securities within such 60-day period, the
Company shall not thereafter issue or sell any New Securities, without first
offering such securities to Westar in the manner provided above.
(c) Westar's right of first refusal granted under this Section 5.1
shall expire upon the first closing of the first firmly underwritten public
offering of Common Stock of the Company that is pursuant to a registration
statement filed with, and declared effective by, the SEC under the Act,
covering the offer and sale of Common Stock to the public at a per share
price (prior to underwriter commissions and expenses) of at least $275 (as
adjusted for any combinations, consolidations, stock splits or stock
dividends with the respect to such stock) and at an aggregate offering price
of not less than $10,000,000.
(d) For purposes of this Section 5.1, the term "New Securities"
shall mean any capital stock of the Company, whether now authorized or not,
and rights, options, or warrants to purchase said capital stock, and
securities of any type whatsoever that are, or may become, convertible into
said capital stock; provided, however, that "New Securities" does not include
(i) securities offered to the public pursuant to a registration statement
filed under the Act; (ii) securities issued pursuant to the acquisition of
another corporation by the Company by merger, purchase of substantially all
of the assets, or other reorganization whereby the Company owns not less than
fifty-one percent (51%) of the voting power of such corporation; (iii) up to
15,000 shares of the Company's Common Stock (or related options) issued to
employees, officers or directors of or consultants to the Company during the
five (5) year period ending on the fifth (5th) anniversary of the Effective
Date and up to an additional 15,000 shares of the Company's Common Stock (or
related options) issued to employees, officers of directors of or consultants
to the Company during the five (5) year period ending on the tenth (10th)
anniversary of the Effective Date, in each case pursuant to an employee stock
purchase or option plan approved by the Board of Directors or the holders of
a majority of the outstanding voting shares of the Company (as may be
adjusted for any combinations, consolidations or stock splits); (iv) shares
of the Company's Common Stock issued in connection with any stock split or
stock dividend by the Company; or
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(v) shares contributed or sold to the Plans as permitted by Section 2.1(b)
hereof.
5.2 COMPANY RIGHT OF FIRST REFUSAL. Westar hereby grants to the
Company the right of first refusal to purchase any and all Registrable
Securities that Westar may, from time to time, propose to sell. The
Company's right of first refusal shall be subject to the following provisions:
(a) In the event that Westar proposes to sell any Registrable
Securities, it shall give the Company written notice of its intention,
describing the price and the general terms upon which Westar proposes to sell
the same. The Company shall have 30 days from the date of mailing of any such
notice to irrevocably agree to purchase all of such Registrable Securities
for the price and upon the general terms specified in the notice by giving
written notice to Westar to that effect.
(b) In the event that the Company fails to exercise in full its
right of first refusal within said 30-day period, Westar shall have 60 days
thereafter to sell the Registrable Securities in respect of which the
Company's rights were not exercised, at a price and upon general terms no
more favorable to the purchasers thereof than specified in Westar's notice.
In the event Westar has not sold such Registrable Securities within such
60-day period, Westar shall not thereafter issue or sell any Registrable
Securities, without first offering such securities to the Company in the
manner provided above.
(c) The Company's right of first refusal granted under this
Section 5.2 shall expire at 12:00 A.M. on the third (3rd) anniversary of the
Effective Date.
(d) For purposes of this Section 5.2, the term "Registrable
Securities" shall have the meaning set forth in Section 4.1 hereof.
(e) The Company may, in its sole discretion, assign its right to
purchase any Registrable Securities pursuant to this Section 5.2 to any
person or entity selected by the Company's Board of Directors, including,
without limitation, the Plans or other shareholders of the Company.
Notwithstanding the provisions of Section 2.1 above, the Plans may accept
such assignment and purchase such shares.
(f) The Company's right of first refusal granted under this Section
5.2 shall not be applicable to (i) any sale of Registrable Securities pursuant
to the exercise by Westar of its demand or piggyback registration rights under
Section 4 hereof or (ii) any sale or transfer of Registrable Securities by
Westar to any affiliate of Westar.
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For purposes of this subsection (f), the term 'affiliate" shall mean any
person or entity which controls, is controlled by, or is under common control
with Westar.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants that:
(a) ORGANIZATION, STANDING, ETC. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of California. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement,
(b) AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the performance
of all obligations of the Company hereunder has been taken and this Agreement
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms.
(c) NO CONFLICT. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not result in any violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, a material default under
any provision of the Company's Articles of Incorporation or Bylaws or any
instrument, judgment, order, writ, decree or contract to which it is a party
or by which it is bound. If the execution, delivery and performance of this
Agreement is in conflict with any provision of the Company's Articles of
Incorporation or Bylaws or any instrument or contract to which it is a party
or by which it is bound, the Company shall use its best efforts to amend,
modify or waive such provision to eliminate such conflict to the extent
permitted by applicable law.
6.2 REPRESENTATION AND WARRANTIES OF WESTAR. Westar hereby represents
and warrants that:
(a) AUTHORIZATION. All action on the part of Westar and its
partners necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of Westar hereunder has been
taken and this Agreement constitutes a valid and legally binding obligation
of Westar, enforceable in accordance with its terms. Westar
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has all requisite power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) NO CONFLICT. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will
not result in any violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, a material default under
any provision of any instrument judgment, order, writ, decree or contract to
which it is a party or by which it is bound.
SECTION 7
MISCELLANEOUS
7.1 TERM. This Agreement shall commence on the Effective Date and shall
terminate upon the earlier to occur of (a) December 31, 1998 and (b) such
time as Westar owns less than 5% of the Company's outstanding voting stock.
7.2 SURVIVAL OF WARRANTIES. The warranties, representations and
covenants of the Company and Westar contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and
shall in no way be affected by any investigation of the subject matter
thereof made by or on behalf of Westar or the Company.
7.3 SUCCESSORS AND ASSIGNS. Except as expressly provided in Section
3.2(c) and 5.2(e) hereof, neither this Agreement nor any of the rights
hereunder are assignable, by operation of law of otherwise, without the other
party's prior written consent. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
7.4 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
7.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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7.6 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
7.7 NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or three
(3) days following deposit with the United States Post Office, by registered
or certified mail, postage prepaid and addressed to the party to be notified
(or one (1) day following timely deposit with a reputable overnight courier
with next day delivery instructions) at the address indicated for such party
on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
7.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Westar.
7.9 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance
with its terms.
7.10 AGGREGATION OF STOCK. All shares of Common Stock held or acquired
by affiliated entities or persons of Westar shall be aggregated together for
the purpose of determining the availability of any rights under this
Agreement.
7.11 CONFIDENTIALITY. The Company and the Fixed Contribution and
Discretionary Contribution Plans on the one hand and Westar on the other each
hereby agree that it will not, except as otherwise required by law, disclose
or divulge to any third party the nature or contents of this Agreement except
to the extent permitted by the other in writing.
7.12 LEGENDS. All certificates representing any Registrable Securities
shall have endorsed thereon the following legends:
(a) The shares represented by this certificate are subject to a
right of first refusal of this
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corporation set forth in an agreement dated as of December 30, 1988, between
this corporation and the registered holder, or his predecessor in interest, a
copy of which is on file at the principal office of this corporation.
(b) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (B) IN COMPLIANCE WITH RULE 144 UNDER
SUCH ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION
STATEMENT IS REQUIRED BY SUCH TRANSFER."
19
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
U.S. COMPUTER SYSTEMS
By: /s/ Gerald S. Knapp
-------------------------------
Title: President
----------------------------
Address: 2969 Prospect Park Drive
Rancho Cordova, California 95670
Attention: President
U.S. COMPUTER SYSTEMS FIXED
CONTRIBUTION AND DISCRETIONARY
CONTRIBUTION STOCK OWNERSHIP PLANS
/s/ Gerald S. Knapp
-----------------------------------
Gerald S. Knapp, Trustee
Susan A. Mathews
-----------------------------------
Trustee
WESTAR CAPITAL,
a California limited Partnership
By: /s/
-------------------------------
Title: General Partner
Address: 5000 Birch Street, Suite 3000
Newport Beach, California 92660
Attention: General Partner
ENTERPRISE PARTNERS,
a California Limited Partnership
By: /s/
-------------------------------
Title: General Partner
Address: 5000 Birch Street, Suite 6200
Newport Beach, California 92660
Attention: General Partner
<PAGE>
Exhibit 10.19
------------------------------------
STRATEGIC BUSINESS AGREEMENT
------------------------------------
by and between
U.S. COMPUTER SERVICES
a California corporation doing business as CableData
("CableData")
and
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation
("IBM")
Dated as of January 19, 1992
<PAGE>
TABLE OF CONTENTS
Page
----
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II DEVELOPMENT OF DDP/I . . . . . . . . . . . . . . . . . . 3
Section 2.1 Mutual Cooperation . . . . . . . . . . . . 3
Section 2.2 [*]. . . . . . . . . . . . . . . . . . . . 3
Section 2.3 [*]. . . . . . . . . . . . . . . . . . . . 4
Section 2.4 [*]. . . . . . . . . . . . . . . . . . . . 4
Section 2.5 [*]. . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Joint Planning Committee . . . . . . . . . 5
Section 2.7 Training . . . . . . . . . . . . . . . . . 5
Section 2.8 Expected Results . . . . . . . . . . . . . 5
Section 2.9 Freedom of Action. . . . . . . . . . . . . 6
ARTICLE III FINANCIAL MATTERS. . . . . . . . . . . . . . . . . . . . 6
Section 3.1 Development Financing. . . . . . . . . . . 6
Section 3.2 [*] from International Revenues. . . . . . 6
Section 3.3 [*]. . . . . . . . . . . . . . . . . . . . 7
Section 3.4 Commissions to be Paid by IBM to
CableData . . . . . . . . . . . . . . . . 7
ARTICLE IV OTHER AREAS OF COOPERATION . . . . . . . . . . . . . . . 9
Section 4.1 Provision of Equipment and Software. . . . 9
Section 4.2 Technical Direction and Information. . . . 9
Section 4.3 Training and Information . . . . . . . . . 9
Section 4.4 Marketing Support. . . . . . . . . . . . . 10
ARTICLE V PROPRIETARY RIGHTS . . . . . . . . . . . . . . . . . . . 11
Section 5.1 Ownership of DDP/I, DDP/IT and DDP/SQL . . 11
Section 5.2 Licenses . . . . . . . . . . . . . . . . . 12
Section 5.3 Confidentiality. . . . . . . . . . . . . . 12
Section 5.4 Use of Trademark, Name . . . . . . . . . . 12
Section 5.5 Inventions . . . . . . . . . . . . . . . . 12
ARTICLE VI TERM AND TERMINATION . . . . . . . . . . . . . . . . . . 13
Section 6.1 Term . . . . . . . . . . . . . . . . . . . 13
Section 6.2 Termination. . . . . . . . . . . . . . . . 13
Section 6.3 Effect of Termination. . . . . . . . . . . 13
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- i -
<PAGE>
ARTICLE VII GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.1 Independent Contractors. . . . . . . . . . 14
Section 7.2 Counterparts . . . . . . . . . . . . . . . 14
Section 7.3 Assignment . . . . . . . . . . . . . . . . 14
Section 7.4 Notices and Other Communication. . . . . . 14
Section 7.5 Law to Govern; Consent to Jurisdiction . . 15
Section 7.6 Subject Headings . . . . . . . . . . . . . 15
Section 7.7 No Waiver of Rights. . . . . . . . . . . . 15
Section 7.8 Settlement of Disputes . . . . . . . . . . 15
Section 7.9 Limitation of Liability. . . . . . . . . . 16
Section 7.10 Limitation of Actions. . . . . . . . . . . 16
Section 7.11 Entire Agreement . . . . . . . . . . . . . 16
Section 7.12 Expenses . . . . . . . . . . . . . . . . . 16
Section 7.13 Amendments . . . . . . . . . . . . . . . . 16
Section 7.14 Incorporation by Reference . . . . . . . . 16
Section 7.15 Severability . . . . . . . . . . . . . . . 16
Section 7.16 Licenses . . . . . . . . . . . . . . . . . 17
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EXHIBITS: Section Reference
Exhibit A List of IBM Products Section 1.1(e)
Exhibit B Schedule for Porting System Libraries Section 2.2(a)
Exhibit C Schedule for National Language Support Section 2.3(a)
Exhibit D Description of SQL Porting Section 2.4(a)
Exhibit E Schedule for Other Internationalization Tasks Section 2.5(a)
Exhibit F-1 Equipment and Program Loan Agreement Section 4.1
Exhibit F-2 RISC System/6000 Discount Section 4.1(b)
Exhibit G List of Countries, Base Percentages and Tasks Section 4.4(c)
Exhibit H Agreement for the Exchange of
Confidential Information Section 5.3
- ii -
<PAGE>
STRATEGIC BUSINESS AGREEMENT
THIS STRATEGIC BUSINESS AGREEMENT ("Agreement") is entered into as of
January 19, 1992, by and between U.S. COMPUTER SERVICES, a California
corporation doing business as CableData and having its principal place of
business at 2969 Prospect Park Drive, Rancho Cordova, California 95670
("CableData"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
corporation having a place of business at 520 Capitol Mall, Sacramento,
California 95814 ("IBM").
RECITALS
A. CableData has rights to and currently licenses and distributes certain
computer application software products used in market segments of the cable
television industry, such market segments including without limitation DTH
(Direct to Home), DBS (Direct Broadcast Satellite), SMATV (Single Master
Antennae Television), MDS (Microwave Distribution System), MMDS (Multipoint
Microwave Distribution System), CATV (Cable Television) and TVRO (Television
Receiving Only), and in segments of the telephony industry, (such segments
include without limitation local telephone, personal communication network,
cellular, paging and land lines), including products that are designed to
operate on the Tandem Guardian operating system.
B. IBM and CableData wish to cooperate in the development by CableData of
certain revised versions of CableData's products that will be compatible with
designated IBM operating systems and hardware, including IBM's UNIX-based and
POSIX-based AIX operating systems, and will be primarily suitable for use by
customers outside the United States. Specifically, the parties wish to permit
CableData to develop a set of CableData-owned system libraries and a separate
CableData-owned application software product which can be operated on IBM
equipment and which are appropriate for international customers. Therefore, as
further described in SECTION 2.1, the parties wish to cooperate to assist
CableData to internationalize and develop new versions of DDP/SQL (as defined
below) that are ported to certain IBM products, with a goal of developing a
single set of system libraries that can be conditionally compiled to supply
object code that can be linked either to the existing DDP/SQL for use with the
Tandem Guardian operating system or to DDP/I (as defined below) for use with IBM
operating systems, in accordance with the terms and conditions of this
Agreement. As set forth in SECTION 4.4(c), CableData will maintain exclusive
rights to determine the countries, markets and customers to which its products
will be offered, subject to reasonable advance notice to IBM under certain
circumstances.
C. IBM and CableData also wish to cooperate in the provision of technical
assistance by IBM to CableData in connection with the activities described in
RECITAL B above. Such assistance will include sharing personnel and technical
expertise to facilitate the development process. The parties have agreed that
IBM will provide certain financial, technical and other assistance specified in
this Agreement to support CableData's development of DDP/I (as defined below),
and to assist in resolving issues (performance and others) prior to CableData's
release of new products, in accordance with the terms and conditions of this
Agreement. Specifically, the parties have agreed that IBM shall provide
reasonable technical advice, support, consulting or other assistance to
CableData in the development of DDP/I in accordance with the terms and
conditions of this Agreement.
D. IBM and CableData also wish to cooperate in certain other areas related
to the activities described above, to permit CableData to support a variety of
foreign languages/countries on the versions of DDP/I to be developed, and to
facilitate CableData's marketing of such revised products in certain respects.
- 1 -
<PAGE>
NOW, THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Agreement, IBM and CableData hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 AS USED IN THIS AGREEMENT:
(a) "AIX" means IBM's UNIX-based computer operating system.
(b) "DDP/I" means (i) a product to be developed pursuant to this Agreement
based on DDP/SQL (as defined below), and (ii) such modified versions of such
product as may be developed from time to time.
(c) "DDP/IT" means a product to be developed from DDP/I, incorporating
enhancements to features and parameterization that facilitate subscriber
management for telephony and cable subscribers. DDP/IT may include interfaces
to another telephony application software system.
(d) "DDP/SQL" means Release 1.0 (as of December 2, 1991) of CableData's
existing proprietary cable television subscriber management applications
software.
(e) "Eligible Products" means proprietary computer hardware and computer
software operating systems of IBM, and other computer hardware and software
compatible with such hardware and operating systems as mutually agreed to and
identified on the list attached to this Agreement as EXHIBIT A, as amended from
time to time.
(f) "Internationalize" means to adapt DDP/I to allow for use with various
human languages, character code sets, and local legal, government and
business practices. In the context of this Agreement it means specifically:
(i) To implement an NLS (as defined below) mechanism in DDP/I;
(ii) To modify DDP/I so that it can accommodate differences in
name, phone number and address data elements for the purposes of storage, access
and display;
(iii) To create a charging, statement generation and financial
reporting module that can be parameterized or otherwise adapted to function in
multiple countries including consideration for monetary formats, rounding,
taxation, and statement formats;
(iv) To create interfaces or interface specifications that allow
for the exchange of data between DDP/I and external entities: financial
institutions, demographic information systems, cable network design systems, and
cable service authorization (addressable) systems; and
(v) To create documentation in English that can be translated to
foreign languages.
(g) "Localize" means adapt DDP/I or DDP/IT to make it specific to a
particular human language, character code set, and local legal, government and
business practices. In the context of this Agreement it means specifically:
(i) To translate all constant DDP/I user interface messages,
screen displays and print products to the local language.
(ii) To parameterize DDP/I to exhibit the appropriate operating
characteristics in a given country with respect to the differences in language,
character sets, collating sequences, "yes" and "no" answers, and date, time,
numeric, and monetary formats.
- 2 -
<PAGE>
(iii) To parameterize DDP/I to conform to local business practices,
legal and government requirements.
(iv) To create interfaces or interface specifications that allow
for the exchange of data between DDP/I and external entities in a given
country: financial institutions, demographic information systems, cable
network design systems, and cable service authorization (addressable)
systems.
(v) To translate DDP/I documentation from English to the local
language.
(h) "NLS" means adapting DDP/I to support multiple languages, character
code sets, collation sequences, monetary formats, numeric formats, time
formats, and "yes/no" response formats.
(i) "System Libraries" means the code libraries that interface DDP/SQL
and DDP/I with the Guardian operating system on Tandem hardware and the IBM
AIX operating system on IBM hardware.
(j) "Subscriber" means, for purposes of this Agreement, each active
subscriber on DDP/I software during any month. A month, for purposes of this
definition, is the period between successive final month-end cutoffs for
CableData's or its distributors' or agents' invoicing purposes. An active
subscriber, for purposes of this definition, is a residential or business
entity subscribing to one or more services in the CATV, DTH, DBS, MDS, MMDS
or TVRO market segments set forth in RECITAL A of this Agreement.
(k) "United States" or "U.S." means the United States of America, Puerto
Rico and Guam; provided, however, that references to United States Dollars or
U.S. Dollars shall have their normal commercial meaning.
ARTICLE II
DEVELOPMENT OF DDP/I
Section 2.1 MUTUAL COOPERATION.
The parties' respective obligations under this Agreement shall commence
on the date first written above. Each party shall use all reasonable efforts
to facilitate the completion of the development projects contemplated by this
Agreement, and to cooperate in good faith with the other party to achieve the
development, technical and marketing objectives described in the Recitals.
Without limitation, each party shall use its reasonable efforts to
facilitate the development of DDP/I as set forth in this Agreement. It is
also the parties' intention that when DDP/I and Eligible Products are
configured in a single system, that system will perform within agreed and
commercially reasonable specifications and parameters. If the parties
disagree on a technical issue during the development process, or if when
DDP/I and any Eligible Products are configured in a single system, that
system does not perform within agreed and commercially reasonable
specifications and parameters, then the parties shall confer in good faith
concerning such issue or failure to perform, and shall negotiate in good
faith to agree on joint action to resolve such issue or failure. Such joint
action may include additional development efforts on terms and conditions
acceptable to the parties, in their discretion.
Section 2.2 PORTING OF SYSTEM LIBRARIES.
(a) Both parties shall cooperate as specified in this Agreement to port
the System Libraries to be capable of operating on the Eligible Products,
initially porting them to be capable of operating on IBM's AIX system. In
such porting work, the parties will also maintain POSIX compliance of the
System Libraries with either international standards or draft international
standards. For the term of this Agreement, the parties agree to cooperate in
future modification of
- 3 -
<PAGE>
the ported System Libraries. It is the intent of the parties that such
System Libraries will work with the Open System Foundation (OSF) capabilities
of IBM's AIX operating system, if and when such OSF capabilities are
available in production release on the AIX operating system. The parties'
efforts under this SECTION 2.2(a) shall be conducted in accordance with the
schedule attached to this Agreement as EXHIBIT B.
(b) IBM shall use reasonable efforts to code the porting of the System
Libraries as described in SECTION 2.2(a), at IBM's porting center in San
Jose, California; however, CableData will retain final authority for all
design and implementation decisions during the porting process. The porting
activity under this SECTION 2.2 shall use only standard constructs and
operating system calls available to AIX licensees. IBM shall not commence
such porting efforts until CableData has reviewed and approved the porting
plan. If IBM does not perform the porting process in accordance with the
approved porting plan, and has not corrected such failure to perform within
(30) days after notice from CableData to IBM, then CableData shall be
entitled to retain a third party to perform such porting work, and IBM shall
reimburse CableData for the actual costs of retaining such third party up to
a maximum of $350,000.
(c) In addition, during the porting process and thereafter to the
extent reasonably necessary, IBM shall as it deems appropriate in its sole
discretion provide the services of an adequate number of appropriate skill
level software engineers with compiler, operating system and database
development experience on AIX-based Eligible Products, experience in
application and system software development using AIX tools and utilities, to
meet its responsibilities under this Agreement. The principal assignment of
such engineers shall be to consult with CableData on architecture-related
issues and modify and create software for use in the System Libraries. These
activities shall be done under the guidance and acceptance of CableData.
Upon mutual agreement of the parties, some or all of such engineers shall be
assigned to work at CableData's research facilities in El Dorado Hills,
California during a portion of the System Libraries porting phase.
(d) IBM shall provide technical information with respect to IBM's AIX
operating system, including all AIX external call information made publicly
available.
(e) With respect to porting System Libraries, CableData shall make its
technical personnel available to IBM as CableData deems appropriate through
CableData's El Dorado Hills, California research facility to respond to IBM's
technical inquiries.
Section 2.3 NLS PORTING.
(a) CableData shall use reasonable efforts to complete NLS for DDP/I by
creating an architecture and code as required for all screen prompts, error
messages, print file headers, instructions, and other literals that will use
English as its default language, but can be utilized with other Western
European languages using the Latin alphabet on the schedule set forth in
EXHIBIT C.
(b) With respect to CableData's efforts in developing NLS tools, IBM
shall make technical personnel with internationalization expertise reasonably
available as IBM deems appropriate for CableData to meet the agreed upon
schedule set forth in EXHIBIT C to provide training and consulting in
response to CableData's questions, in particular (and not by way of
limitation) with respect to defining and organizing this phase.
Section 2.4 APPLICATION LAYER PORTING. CableData shall use reasonable
efforts to port the application layer of DDP/I as set forth on EXHIBIT D
including necessary modifications to its database definition and SQL
statements embedded in DDP/I, to be capable of operating on Eligible
Products, porting them to be capable of operating on the AIX operating system
and the POSIX standards.
- 4 -
<PAGE>
Section 2.5 INTERNATIONALIZATION FEATURES.
(a) CableData shall use reasonable efforts to complete such work on
Internationalizing DDP/I as it may identify that will facilitate its use by
customers outside the U.S., in accordance with the schedule set forth in
EXHIBIT E attached to this Agreement.
(b) CableData shall use reasonable efforts to create a new charging
run/billing software for use by customers outside the U.S.
(c) CableData shall use reasonable efforts to develop interface
templates specifications, application program interfaces, and documentation
and training materials, as CableData deems appropriate, for use by
international distributors and developers in accordance with DDP/I.
(d) With respect to the completion of Internationalization tasks
relating DDP/I as described above, IBM shall make its technical personnel
available as IBM deems appropriate through the IBM Sacramento Branch office
to respond to CableData's technical inquiries.
Section 2.6 JOINT PLANNING COMMITTEE. The parties shall consult with
each other on at least a quarterly basis regarding progress in [*] DDP/I. To
facilitate such consultations and to support their mutual efforts under this
Agreement, the parties shall establish a Joint Planning Committee composed of
representatives designated by each party. This body shall meet at least once
per calendar quarter during the term of this Agreement, and more frequently
as deemed necessary by the parties. The Joint Planning Committee shall
consult on the [*] projects for DDP/I, [*] schedules, or other aspects of
cooperation between the parties as contemplated by this Agreement. Among the
representatives to the Joint Planning Committee designated by each party, one
(1) person shall be a [*] to speak for that party with respect to [*]
matters. The designated [*] representative for CableData shall be its [*].
IBM shall notify CableData in writing of the name of the designated [*]
representative for IBM within fourteen (14) days following the execution of
this Agreement by both parties. The parties' designated representatives to
the Joint Planning Committee may be replaced at any time, by written notice
of the designating party to the other party. The Joint Planning Committee
shall meet in locations and at times reasonably acceptable to both parties.
Each party shall be reasonable for its own costs and expenses in attending
and participating in meetings of the Joint Planning Committee.
Section 2.7 TRAINING.
(a) During the [*] process, IBM shall provide a reasonable amount of
comprehensive training to provide the curriculum agreed to by the [*]
representatives of both parties to a reasonable number of CableData
personnel, to be designated by CableData, with respect to [*] DDP/I, [*].
(b) During the [*] process, CableData shall provide a reasonable amount
of DDP/SQL product familiarization sessions to a reasonable number of IBM
personnel, to be designated by IBM, at CableData's facilities in Rancho
Cordova or El Dorado Hills.
Section 2.8 EXPECTED RESULTS. The parties acknowledge that upon
completion of the development work described above, it is the parties'
intention that DDP/I shall perform within commercially reasonable and
acceptable parameters and specifications, consistent with the terms of this
Agreement and subsequent mutual decisions of the designated technical
representatives of the parties. If DDP/I fails to perform as described in
the preceding sentence, each party shall use reasonable efforts to perform
further development work as outlined in this Agreement to cause
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
DDP/I to operate within such parameters and specifications, and to cooperate
with the other party to achieve this objective. The parties understand that
development of DDP/I under this Agreement does not include development of any
Localized version of DDP/I and does not include development of DDP/IT.
Section 2.9 FREEDOM OF ACTION. The parties agree that the
relationship contemplated by this Agreement is not an exclusive arrangement.
The parties understand that as of the date of this Agreement CableData has
no plans for releasing a DDP product on an IBM platform in the U.S. Each
party is free to enter into similar agreements with others and develop and
offer competitive products and services.
ARTICLE III
FINANCIAL STATEMENTS
Section 3.1 DEVELOPMENT FINANCING. To assist CableData in financing a
portion of the costs and expenses to be incurred by CableData in developing
DDP/I as contemplated by this Agreement, IBM shall advance to CableData on a
non-recourse basis (i.e., CableData shall have no liability for the repayment
of any funds so advanced, except as expressly stated otherwise in this
Agreement) an aggregate amount of [*], payable as follows:
(a) IBM shall pay CableData an initial installment of [*]
concurrently with IBM's execution and delivery of this Agreement.
(b) IBM shall pay CableData five (5) further installments of [*]
each, on the first business day of each calendar quarter, commencing on April
1, 1992.
(c) All payments to CableData shall be paid by check, unless otherwise
agreed by the parties in writing.
Section 3.2 PROFIT SHARING FROM INTERNATIONAL REVENUES.
(a) Except as otherwise provided in this Agreement, beginning on
January 1, 1995, and continuing until termination of this Agreement, CableData
shall pay fees to IBM as follows: For each customer (other than non-paying Beta
site customers) running DDP/I, CableData shall pay IBM a fee at the rate of
[*]; provided, however, that CableData shall have no further obligations to
pay fees to IBM after the aggregate fees received by IBM under this SECTION
3.2 are equal to [*]. CableData shall pay such fees to IBM by check at IBM's
office at 520 Capitol Mall, Sacramento, California 95814, unless otherwise
agreed by the parties in writing. Payments under this SECTION 3.2 shall be
made quarterly in arrears for the prior quarter.
However, notwithstanding the foregoing sentences of this SECTION 3.2 or
anything to the contrary in this Agreement, upon CableData and IBM entering
into a written agreement regarding CableData marketing in the United States
DDP/I or another CableData subscriber management software product comparable
in function to DDP/I on an IBM platform, all payments under this SECTION 3.2
due subsequent to the date of execution of such agreement shall be suspended
but shall continue to accrue (up to a maximum of [*] less payments
previously made under this Section to IBM) until the earlier of (i) the date
on which IBM has invoiced an aggregate of [*] of equipment sold or
leased by IBM (excluding IBM's leasing subsidiary) in the United States for
use with such DDP/I or other CableData subscriber management software product
comparable in function to DDP/I on an IBM platform or (ii) the date this
Agreement terminates. If (i) is the earlier date, CableData shall not be
required to pay to IBM the amount in suspense or any other remaining amounts
due under this SECTION 3.2 If (ii) is the earlier date, CableData shall pay
to IBM the total amount of the suspended payments, except that if the
Agreement is terminated pursuant to SECTION 6.2(a) due to breach by IBM,
then CableData shall not be required to pay to IBM the amount of the
suspended payments.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
<PAGE>
(b) CableData shall keep such records of DDP/I subscribers adequate to
meet CableData's responsibilities under this Agreement. Not more than once
per calendar quarter, within thirty (30) days after written request to
CableData, IBM shall be entitled to conduct an audit and review of the
financial records of CableData available to CableData through its on-line
database at a CableData location in Rancho Cordova, California, relating to
DDP/I license fees, to verify the proper amounts of fees due to IBM for that
quarter under this SECTION 3.2. The request shall specify the countries or
markets for which records are to be provided. The audit shall occur within
normal business hours, at a location in Rancho Cordova, California mutually
acceptable to IBM and CableData. IBM shall be entitled to retain an
independent certified public accounting firm to assist it with the audit.
The parties shall be responsible for their own costs and expenses in
connection with the audit.
SECTION 3.3 [*] If, at any time during the term of this Agreement, IBM
enters into a Cooperative Marketing Agreement (as defined below) [*] of
CableData (including without limitation [*] provides subscriber management
products or services similar or equivalent to DDP/I to the market segments
described in Recital A), in a country in which [*] under this Agreement, [*]
the terms or conditions provided to CableData in this Agreement, then:
(a) Within ten (10) days of such event or of CableData providing notice
to IBM pursuant to SECTION 4.4(c) that CableData intends to [*], IBM shall
notify CableData in writing, providing CableData with reasonably complete
information about [*]; and
(b) Concurrent with such notice, IBM [*] Cooperative Marketing
Agreement [*]. Within thirty (30) days after receiving the notice, CableData
shall be entitled [*] Cooperative Marketing Agreement by written notice to
IBM, if CableData wishes. If CableData does not [*] Cooperative Marketing
Agreement within such thirty (30) days, CableData has waived its right to
assert a violation of this SECTION 3.3 as to that agreement.
(c) As used herein, a "Cooperative Marketing Agreement" means an
agreement for resale of IBM products with a specified software product and an
agreement providing commissions based on the installation of a specified
software product on IBM products. "Cooperative Marketing Agreement" shall
not include, but not by way of limitation, equity or other investment
relationships.
Section 3.4 COMMISSIONS TO BE PAID BY IBM TO CABLEDATA.
(a) In return for CableData's performance of the applicable tasks set
forth in EXHIBIT G, within thirty (30) days after the end of each calendar
quarter, IBM shall pay CableData Commissions (as defined in SECTION 3.4(b)
below) on the Invoice Price of Commissionable Products invoiced by IBM during
such quarter, less withholding required by law in the applicable
jurisdiction. IBM shall pay such Commissions to CableData by check at
CableData's office at 2969 Prospect Park Drive, Rancho Cordova, CA 95670.
Where payments to CableData under this SECTION 3.4 are based on amounts
denominated in a currency other than United States Dollars, IBM shall
calculate and pay the Commission to CableData in United States Dollars, using
the exchange rate set forth in the "Exchange Rates" column of the "Currency
Trading" section of THE WALL STREET JOURNAL for the last day of the calendar
quarter for which payment is being made (or, if not available, on the last
preceding day on which such rate was published in such column); if such
column does not publish the applicable exchange rate, then the prevailing
exchange rate offered by Citibank, N.A., at its main office in New York, New
York, for that date shall apply. At the time of payment of Commission, IBM
will provide CableData an analysis supporting the amount of payment of the
Commission, which shall contain the following information: customer name,
IBM customer's number, location, type of transaction, description of
applicable Commissionable Products, date of invoices and invoice numbers,
Invoice Price (as defined below), with the summation of aggregate
Invoice Prices times
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
applicable Base Percentage specified in EXHIBIT G (less withholding, if
applicable) equating to the payment of Commission. This information shall be
treated as Confidential under the terms of the Agreement for Exchange of
Confidential Information set forth in EXHIBIT H without the need for further
designation on any further supplement to that agreement. In addition, IBM
shall promptly supply to CableData adequate detail of withholding deducted
from the Commission by IBM and withholding tax receipts.
(b) In this SECTION 3.4, the following definitions shall apply:
(i) "Commissionable Products" means Eligible Products marketed by IBM or
its wholly-owned subsidiaries, provided that such Products are or will be
used primarily with DDP/I and CableData has performed the applicable tasks
set forth in EXHIBIT G. Not all tasks are applicable to each transaction.
(ii) "Invoice Price" means the price, charge, fee, or other
consideration invoiced by IBM or IBM wholly-owned subsidiary to the end-user
customer for Commissionable Products, except that, for Commissionable
Products which are being invoiced as a periodic charge, the "Invoice Price"
shall be deemed to be the periodic charge times the total number of periods
for the charges committed by the end-user customer under the applicable
agreement or three (3) years, whichever is longer.
(iii) "Commission" means the amount determined by multiplying the
relevant Base Percentage set forth in EXHIBIT G times the relevant aggregate
Invoice Prices for Commissionable Products. Calculation of Base Commission
shall be done separately for each country specified in EXHIBIT G. The tasks
associated with the Commission for each group are specified in EXHIBIT G. To
the extent that CableData wishes to qualify for commissions greater than the
Base Percentages described in EXHIBIT G, CableData may enter into an
agreement or agreements with individual IBM wholly-owned subsidiaries
specifying such other commissions and associated tasks as the parties may
mutually agree.
(c) IBM shall keep records of the sale of Commissionable Products
adequate to meet IBM's responsibilities under this Agreement. Not more than
once per calendar quarter, within thirty (30) days after written request to
IBM, CableData shall be entitled to conduct an audit and review of the
financial records of IBM available to IBM through its on-line database at an
IBM location in Sacramento, California, relating to Commissionable Products,
as described in SECTION 3.4(a) above, to verify the proper amounts of
Commissions due to CableData for that quarter under this SECTION 3.4. The
request shall specify the countries or markets for which records are to be
provided. The audit shall occur within normal business hours, at a location
in Sacramento, California mutually acceptable to CableData and IBM. CableData
shall be entitled to retain an independent certified public accounting firm
to assist it with the audit. The parties shall be responsible for their own
costs and expenses in connection with the audit.
(d) IBM is acting as a collection agent for CableData in obtaining
Commissions from its wholly-subsidiaries in connection with this Agreement.
CableData shall be entitled to any Foreign Tax Credit under United States law
associated with amounts withheld by IBM for CableData on the Commissions for
CableData hereunder in foreign countries. IBM agrees to enter an agreement
with each of its affected wholly-owned subsidiaries regarding its collection
activities for the Commissions due hereunder. IBM will notify CableData if
and when the appropriate taxing authority notifies IBM that such withheld
amounts are not due and payable to such taxing authority.
(e) As to each DDP/I customer, Commissions shall be payable under this
SECTION 3.4 for a period of five (5) years after the date of termination of
this Agreement, except in the case of termination by IBM pursuant to SECTION
6.2(a) for breach by CableData (in which case Commissions shall cease on the
date of such termination). CableData must continue to perform its obligations
describing in EXHIBIT G to qualify for Commissions and the terms of this
Agreement apply to both
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parties' obligations under this SECTION 3.4(e). This SECTION 3.4 shall
survive the expiration or earlier termination of this Agreement as described
in this SECTION 3.4(e).
ARTICLE IV
OTHER AREAS OF COOPERATION
Section 4.1 PROVISION FOR LOAN EQUIPMENT AND SOFTWARE.
(a) For the term of this Agreement, IBM agrees to loan to CableData
under the terms of Exhibit F-1 IBM hardware and software for use by CableData
in development of IBM-approved CableData application software; such loaned
IBM hardware/software shall include at least one (1) CPU and twelve (12)
workstations for each IBM-approved CableData application package to be
developed and such other loaned IBM hardware/software proportionate to the
development task as the parties may mutually agree.
Within ten (10) days following the execution of this Agreement, IBM
shall loan to CableData free of charge the hardware and software listed in,
and on the terms and conditions set forth in, EXHIBIT F-1 (which is the IBM
Equipment and Program Loan Agreement). Additional Loaned Hardware and
Software specified at a later date will be supplied under the terms of such
agreement. The duration of the loan shall be the term of this Agreement
except in the event of termination of the Agreement by CableData, pursuant to
SECTION 6.1(a) for breach by IBM or terminated by IBM pursuant to SECTION
6.2(c), in which case the loan shall continue on the terms and conditions set
forth in Exhibit F-1 until the earlier of (i) two years from the date of
termination, or (ii) January 19, 1998. CableData shall have ninety (90) days
after delivery in which to elect to accept such hardware and software, and
may inspect, test and use such items during the ninety (90)-day period.
Thereafter, IBM shall provide free upgrades to such hardware and software
under the terms and conditions of EXHIBIT F-1 as and when they become
available and, in addition, IBM shall provide hardware and software for new
platforms as IBM and CableData shall mutually agree.
(b) CableData may purchase or license development hardware and license
development software from IBM during the term of this Agreement on the terms
and conditions set forth in EXHIBIT F-2 (which is the IBM Customer Agreement
and its Attachment for IBM RISC System/6000 Development Discount). Such terms
and conditions shall only apply to such purchase or license.
Section 4.2 TECHNICAL DIRECTION AND INFORMATION. Each party shall
provide to the other party advance notices of new product developments and
releases that its technical representative under this Agreement has
determined has applicability and appropriateness to DDP/I as soon as
practical but in no event later than such information is publicly disclosed
by the party providing such information. The receiving party shall keep such
information confidential under the terms of EXHIBIT H without the necessity
of adding such information as a supplement to said EXHIBIT H until such
public disclosure by the party providing such information. At least once per
calendar quarter each party shall provide to the other party a forecast of 12
to 18-month trends and directions (excluding pricing) within such party's own
company and applicable industry(ies) as it applies to the IBM platform and
CableData application software as each party deems appropriate.
Section 4.3 TRAINING AND INFORMATION.
(a) IBM shall use reasonable efforts to optimize the performance of
DDP/I in its initial release. These efforts shall include training of
CableData personnel in the techniques used. CableData will retain final
authority for all design and implementation decisions regarding DDP/I.
(b) With respect to the tasks described in ARTICLE II, IBM shall also
make available to CableData the personnel and facilities of its Benchmark
Center located in Austin, Texas as IBM deems appropriate to meet the agreed
upon schedules set forth in EXHIBITS B THROUGH E.
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(c) As and when IBM releases or makes available or in any country in
which CableData or its distributors are marketing DDP/I any new software
products for use on the RISC System/6000, then IBM's Sacramento Branch office
and CableData shall jointly evaluate such products for applicability to
DDP/I, and in the event that they reasonably determine such products are
applicable to DDP/I, then IBM's Sacramento Branch office shall make an
evaluation copy of each such new product applicable to CableData at no cost
to CableData. The terms of the Equipment and Program Loan Agreement set forth
as EXHIBIT F-1 shall govern CableData's rights to use such evaluation copy.
Section 4.4 MARKETING SUPPORT.
(a) INTERNATIONAL MARKETING MANAGER. Within thirty (30) days following
the date of this Agreement, IBM shall appoint, for a minimum of two (2) years
and thereafter shall have on its staff during the term of this Agreement for
such time as CableData continues marketing activity for DDP/I on Eligible
Products, an international marketing manager located in Sacramento,
California, with primary responsibilities for managing and facilitating, as
required, IBM's cooperation with CableData in marketing DDP/I and related
Eligible Products.
(b) JOINT MARKETING EFFORTS AND PUBLICITY. IBM and CableData shall
cooperate in preparing and disseminating an initial press release describing
their relationship pursuant to this Agreement, and subsequent press releases
concerning the development and release of DDP/I and other products and
services pursuant to this Agreement, as appropriate. Each of CableData and
IBM shall appoint a designated representative to coordinate the parties'
joint participation in business and trade shows, exhibitions, and similar
events, cooperative marketing and communications with distributors and
customers as mutually agreed between the parties. Each party shall advise the
other in writing of the name (and any change) of its designated
representative. Neither party shall release a press release mentioning the
relationship or activities under this Agreement during the term of this
Agreement without the prior written approval of the designated representative
of the other.
(c) MARKETING DISCRETION. Notwithstanding anything to the contrary in
this Agreement, CableData shall be entitled to market its products, including
DDP/I and DDP/IT, in jurisdictions and markets directly, through
subsidiaries, through local distributors selected by CableData, or through
other means selected by CableData. CableData will consider IBM and/or its
wholly-owned subsidiaries when selecting a distributor or distributors for a
country. CableData shall retain complete discretion with respect to the
selection of markets in which its products will be marketed and sold, and in
the appointment of local distributors for such markets, choice of its
marketing mechanisms, and similar matters. Upon the request of CableData or
any designated local distributor of CableData, IBM will provide reasonable
marketing assistance (subject to availability of personnel) to CableData or
such distributor, as the case may be, with respect to marketing efforts in
such marekts. Upon the request of IBM or IBM wholly-owned subsidiaries in those
countries designated as "EMEA-A" in EXHIBIT G, CableData will provide reasonable
marketing assistance (subject to availability of personnel) to IBM or such
distributor, as the case may be, with respect to marketing efforts in such
markets. Attached to this Agreement as EXHIBIT G is a list of countries in which
CableData contemplates marketing DDP/I and in which IBM's RISC System/6000 is
marketed; the parties understand that CableData makes no commitment to market
DDP/I in any or all of the countries listed in EXHIBIT G or any other country.
CableData will give IBM reasonable advance written notice prior to marketing
DDP/I in any of the countries listed in EXHIBIT G (as the same may be amended
from time to time by agreement of the parties).
IBM and CableData will agree to a list of IBM products applicable to
their joint marketing efforts in a specific country. The list may be revised
at any time by mutual agreement.
IBM shall have the right to offer, at its sole discretion, any products
or services in any country or countries.
IBM shall have the right, at its sole discretion, to market or to
withdraw from marketing IBM products, in any country at any time. However, in
the event of IBM's withdrawal of an IBM
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hardware product (A) IBM and CableData will make all reasonable efforts to
identify a substitute IBM product and include such substitute IBM product in
the applicable list; and (B) if such withdrawn IBM product is currently in
use, or is currently committed to a specific customer(s) for use, in that
country, with DDP/I, IBM will commit to such customer(s) that such withdrawn
IBM product will be supported by IBM for a minimum of five (5) years
following its withdrawal from marketing in such country. "Support" shall mean
routine corrective maintenance to the extent available for the product prior
to withdrawal.
In the event of withdrawal of an IBM software product, and such
withdrawn IBM product is in use, or is on the date of withdrawal committed to
a specific customer(s) for use, in that country with DDP/I, IBM will commit
to such customer(s) that such withdrawn IBM product will be supported by IBM
for the remaining period, if any, of its program currency.
ARTICLE V
PROPRIETARY RIGHTS
Section 5.1
(a) OWNERSHIP OF DDP/I, DDP/IT AND DDP/SQL. CableData shall retain
exclusive ownership of all right, title and interest in and to DDP/SQL,
DDP/I, and DDP/IT and all portions thereof (including, but not limited to,
applications and systems libraries) now existing or to be developed or
adapted pursuant to this Agreement by CableData, IBM, any third party or
parties, or their respective employees, representatives, agents, consultants,
independent contractors, successors and assigns pursuant to this Agreement,
in any and all forms (including but not limited to source code and
machine-executable code), all derivative works thereof and enhancements
thereto developed pursuant to this Agreement or otherwise, all documentation,
work papers or written materials relating to any of the foregoing, and all
Intellectual Property Rights in any of the foregoing; and IBM hereby assigns
to CableData all right, title, and interest in and to any of the foregoing
(including but not limited to, assignment of any copyrights it may have to the
porting code prepared pursuant to SECTION 2.2 of this Agreement) which it may
otherwise have or be deemed to acquire, subject to IBM's ownership of and
license to certain patent rights under SECTION 5.5 of this Agreement. Upon
CableData's request, IBM agrees to assist CableData as may be required to
perfect CableData's rights as described in this SECTION 5.1, which assistance
shall include the execution of any and all instruments or documents that may be
necessary or convenient to establish, evidence, maintain, defend or enforce
CableData's rights as described in this SECTION 5.1. "Intellectual Property
Rights" means all rights, title and interest in and to patents, patent
applications, copyrights, mask work rights, trademarks, trade names and trade
secrets. The assignment to CableData of trade secret rights in this SECTION
5.1(a) shall not, and shall not be construed to, preclude IBM from using, or
require IBM to keep confidential, any ideas, concepts, know-how, or
techniques (Knowledge) related to information handling, including use in
creation or offering of products to its customers.
(b) This Agreement shall not be construed or interpreted to grant to IBM
any right or license, by implication, estoppel or otherwise, to sell,
transfer, assign, develop, or make any use of DDP/SQL, DDP/I, or DDP/IT,
except as expressly provided in this Agreement. Without limitation to the
generality of the foregoing sentence, IBM shall have no rights to adapt,
alter, Localize, license or sublicense to third parties any of the foregoing
items, without the prior written consent of CableData, which may be granted
or withheld in CableData's sole discretion. IBM shall not employ, retain, or
subcontract with any third party or parties to perform any obligations or
exercise any rights of IBM under this Agreement, unless IBM has first
obtained the prior written consent of CableData to such action.
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Section 5.2 LICENSES.
(a) For the term of this Agreement, CableData grants to IBM a
nonexclusive and nontransferable license to use one (1) copy of DDP/I in
machine-executable code only, for IBM's internal purposes only in connection
with this Agreement and to make one (1) archival copy for back-up purposes.
(b) IBM hereby grants to CableData, its subsidiaries and distributors,
and its and their respective customers, mediate and immediate, an
irrevocable, non-exclusive, worldwide, non-transferrable, paid-up license
under all present and future IBM patents to make, have made, use, have used,
lease, license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT,
including derivative works thereof, either alone or in combination with
equipment, insofar as any infringement of such patents would otherwise arise
in whole or in part from the performance of IBM's obligations under this
Agreement.
(c) Each party grants the other only the licenses specified. No other
licenses, including licenses under patents, are granted.
Section 5.3 CONFIDENTIALITY.
(a) The parties hereby agree to be bound by the terms of the Agreement
for the Exchange of Confidential Information set forth as EXHIBIT H. Unless
specifically identified in this Agreement or the supplement to the Agreement
for Exchange of Confidential Information as confidential, all information
exchanged is non-confidential.
(b) Neither party shall disclose the existence of this Agreement until
such time as the parties shall mutually agree upon and implement a public
announcement; thereafter, either party may disclose the existence of this
Agreement, but neither party shall disclose the specifics of the Agreement to
third parties without the prior written consent of the other party, except as
may be required by law or to its auditors in the internal operations of its
business.
Section 5.4 USE OF TRADEMARK, NAME. Each party agrees not to use the
other's name, trade name, trademark, service mark, or other designation
without such other party's prior written consent.
Section 5.5 INVENTIONS.
(a) In the event employees of IBM conceive or reduce to practice a
patentable invention in the course of performing this Agreement, and not
jointly with any employees of CableData, and IBM applies for and is issued a
patent thereon, all ownership rights in the patent shall belong solely to
IBM, subject to CableData's rights under SECTION 5.2(b).
(b) In the event employees of IBM and CableData jointly conceive or
reduce to practice a patentable invention in the course of performing this
Agreement, and either CableData or IBM elects to apply for and is issued a
patent thereon, all ownership rights in the patent shall belong to IBM and
CableData jointly and each party shall have the right to grant licenses to
third parties or assign its rights therein without accounting to the other
party; provided, however, that CableData shall have the sole and exclusive
right under any such patent to make, have made, use, have used, lease,
license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT products,
including derivative works thereof, either alone or in combination with
equipment.
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ARTICLE VI
TERM AND TERMINATION
Section 6.1 TERM. This Agreement shall become effective on the date
first written above and shall continue in effect thereafter for a period of
six (6) years unless sooner terminated pursuant to this ARTICLE VI. After
such six (6)-year period, the term of this Agreement shall be automatically
renewed for successive periods of one (1) year each, unless written notice of
one party's desire to terminate this Agreement is given to the other party at
least three (3) months prior to the end of the then-current period.
Termination at the end of the initial six (6) year period or any subsequent
one (1) year period is hereinafter referred to as the "Natural Termination
Date." Termination on the Natural Termination Date shall not be deemed to be
a termination under SECTION 6.2(a), (b) or (c).
Section 6.2 TERMINATION.
(a) TERMINATION FOR BREACH. Either party may terminate this Agreement,
effective upon dispatch of written notice of termination to the other party,
upon breach by such other party of any of its material obligations under this
Agreement and failure to cure such breach within ninety (90) days after
receipt of notice specifying the breach. This right to terminate shall be in
addition to any remedies available in law or equity, which remedies are
expressly retained.
If IBM terminates this Agreement for breach of this Agreement by
CableData, then, on the effective date of termination under this
SECTION 6.2(a), CableData shall refund to [*] under SECTION 3.1, less
payments previously made by CableData to IBM pursuant to SECTION 3.2 and less
any fees forgiven pursuant to SECTION 3.2 prior to termination.
If CableData terminates this Agreement for breach of this Agreement by
IBM, on the effective date of termination under this SECTION 6.2(a), IBM
shall pay to CableData (1) any remaining scheduled installments that would
have been due to CableData in subsequent months under SECTION 3.1 if the
termination had not occurred, up to a total of [*] and (2) reimbursement
pursuant to SECTION 2.2(b) if incurred. Additionally, CableData shall recover
the actual amount of Commissions earned as of date of termination.
(b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH.
CableData may in its sole discretion, upon ninety (90) days' prior written
notice to IBM, terminate this Agreement at any time, without breach by IBM.
[*]
(c) TERMINATION BY IBM FOR REASON OTHER THAN CABLEDATA BREACH. IBM may
in its sole discretion, upon ninety (90) days' prior written notice to
CableData, terminate this Agreement at any time, without breach by CableData.
[*]
Section 6.3 EFFECT OF TERMINATION. Except as otherwise expressly
stated in SECTION 6.2(a), (b) or (c) or in the following sentence, upon any
termination of this Agreement all rights and obligations of each party in
this Agreement shall expire and be of no further force or effect, and each
party shall be entitled to retain all funds, fees and payments that it has
received from the other party under this Agreement and prior to the effective
date of termination. Notwithstanding the foregoing, no expiration or earlier
termination of this Agreement shall relieve either party of its rights or
obligations as described in SECTION 3.4(e) or ARTICLE V of this Agreement,
which rights and obligations are expressly intended to survive any such
expiration or termination.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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ARTICLE VII
GENERAL
Section 7.1 INDEPENDENT CONTRACTORS.
(a) No provision of this Agreement shall make, or be construed to make,
either party an agent, servant, employee, partner, or joint venturer of the
other party. The parties to this Agreement are and shall remain independent
contractors. Each party shall retain exclusive management, direction, and
control of its employees and the work to be performed by it hereunder.
(b) Without limitation, each party shall provide the personnel,
products, training and other support described in this Agreement at its own
cost and expense, and at no charge to the other party. All personnel assigned
by one party to work with the other party pursuant to this Agreement shall
remain employees of the assigning party, and shall possess suitable technical
skills and expertise consistent with the requirements of their respective
assignments. Each party shall cause any of its employees assigned to provide
services at the other party's facilities to comply with all reasonable
regulations and instructions while at such facilities. Each party shall have
the right to exclude from its premises any persons.
Section 7.2 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute only one and the same instrument.
Section 7.3 ASSIGNMENT. Neither this Agreement nor any right or
obligation hereunder is assignable in whole or in part, whether by operation
of law or otherwise, except (a) upon prior written consent of the other
party, which consent shall not be unreasonably withheld, (b) by a party to
its wholly-owned subsidiary following notice to the other party, which
consent shall not be unreasonably withheld, or (c) as otherwise expressly
provided in this Agreement. Notwithstanding the foregoing, this Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto
and their respective successors and assigns. The successor or assign of a
party hereto shall execute and deliver all documents and instruments
reasonably requested by the other party to evidence and confirm its
obligations under this Agreement.
Section 7.4 NOTICES AND OTHER COMMUNICATION. Every notice or other
communication required or contemplated by this Agreement to be given by any
party shall be delivered either by (i) personal delivery, (ii) postage
prepaid, return receipt requested, registered or certified mail (airmail if
available), or the equivalent of registered or certified mail under the laws
of the country where mailed, (iii) nationally recognized overnight courier,
such as Federal Express or UPS, or (iv) facsimile with a confirmation copy
sent simultaneously by postage prepaid, return receipt requested, registered
or certified mail, in each case addressed to the party for whom intended at
the following address:
To CableData: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: Sr. Vice President-General Manager
of CableData
Facsimile: (916) 636-5628
With a copy to: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, California 95670
Attn: General Counsel
Facsimile: (916) 636-5628
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To IBM: International Business Machines
Corporation
520 Capitol Mall
Sacramento, California 95814
Attn: General Manager
Facsimile: (916) 326-5068
or at such other address as the intended recipient previously shall have
designated by written notice to the other party. Notice by registered or
certified mail shall be effective on the date it is officially recorded as
delivered to the intended recipient by return receipt or equivalent, and in
the absence of such record of delivery, the effective date shall be presumed
to have been the tenth (10th) business day after it was deposited in the
mail. All notices and other communications required or contemplated by this
Agreement to be delivered in person or sent by courier shall be deemed to
have been delivered to and received by the addressee and shall be effective
on the date of personal delivery; notices delivered by facsimile with
simultaneous confirmation copy by registered or certified mail shall be
deemed delivered to and received by the addressee and effective on the first
business day in the location where received after the date received. Notice
not given in writing shall be effective only if acknowledged in writing by a
duly authorized representative of the party to whom it was given.
Section 7.5 LAW TO GOVERN; CONSENT TO JURISDICTION. The validity,
construction and enforceability of this Agreement shall be governed in all
respects by the laws of California applicable to agreements negotiated,
executed and performed in California between California corporations whether
or not one or more of the parties shall now be or hereafter become a resident
of another state or country. Each party hereby consents to the personal
jurisdiction of the state and federal courts in Sacramento, California for
the purposes of any litigation commenced in such court by CableData to
enforce its rights under this Agreement, and each party hereby waives any
rights it may otherwise have to request a change of venue from such court.
Each party hereby further consents and agrees that service of any process
necessary or convenient with respect to any such litigation may be made on it
by registered mail, postage prepaid, at its address as set forth in
SECTION 7.4, which service of process shall be fully effective in all
respects upon receipt. The parties agree that this Agreement shall be deemed
to be executed and performed in the County of Sacramento, California.
Section 7.6 SUBJECT HEADINGS. The subject headings of the Articles and
Sections of this Agreement are included for the purpose of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
Section 7.7 NO WAIVER OF RIGHTS. All waivers hereunder must be made in
writing, and failure at any time to require any other party's performance of
any obligation under this Agreement shall not affect the right subsequently
to require performance of that obligation. Any waiver of any breach of any
provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision or a waiver or modification
of the provision.
Section 7.8 SETTLEMENT OF DISPUTES.
(a) Any controversy or claim between the parties arising out of this
Agreement shall be resolved as follows. Within thirty (30) days of the time
that such dispute or controversy arises, the General Manager of each party
shall confer in good faith for a period of not less than thirty (30) days in
an attempt to resolve it. No judicial proceeding may be commenced until the
end of such thirty (30)-day period.
(b) If any judicial proceedings shall be commenced to enforce this
Agreement or any provision of this Agreement, the prevailing party or parties
in such proceedings shall be entitled to recover the reasonable attorneys'
fees, costs and expenses incurred by such prevailing party or parties in
connection with such proceedings.
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Section 7.9 LIMITATION OF LIABILITY
(a) Circumstances may arise where because of default on IBM's part or
other liability, CableData is entitled to recover damages from IBM. In each
such instance, regardless of the basis on which CableData is entitled to
claim damages from IBM, IBM is liable only for: (1) bodily injury (including
death), and damage to real property and tangible personal property; and
(2) the amount of any other actual loss or damage, up to the greater of
(i) $100,000, or (ii) the amount set forth in SECTION 6.2(c) of this
Agreement and the actual amount of Commissions earned as of the date of
termination, if IBM has not yet paid these amounts to CableData. Under no
circumstances shall IBM liable for any of the following: third-party claims
against CableData for losses or damages (other than those listed in the first
item above); loss of, or damage to, CableData's records or data; or economic
consequential damages (including lost profits or savings) or incidental
damages, even if IBM is informed of their possibility. actual amount of
Commissions earned as of the date of termination.
(b) Circumstances may arise where because of default on CableData's
part or other liability, IBM is entitled to recover damages from CableData.
In each such instance, regardless of the basis on which IBM is entitled to
claim damages from CableData, CableData is liable only for: (1) bodily injury
(including death), and damage to real property and tangible personal
property; and (2) the amount of any other actual loss or damage, up to the
greater of [*] or the amount set forth in SECTION 6.2(c) of this
Agreement if CableData has not yet paid that amount to IBM. Under no
circumstances shall CableData liable for any of the following: third-party
claims against IBM for losses or damages (other than those listed in the
first item above); loss of, or damage to, IBM's records or data; or economic
consequential damages (including lost profits or savings) or incidental
damages, even if CableData is informed of their possibility.
Section 7.10 LIMITATION OF ACTIONS. Neither party will bring a legal
action under or related to this Agreement more than four (4) years after the
cause of action arose.
Section 7.11 ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties concerning the subject matter
hereof and supersedes any and all prior negotiations, understandings or
agreements in regard thereto, oral or written.
Section 7.12 EXPENSES. Except as expressly provided herein to the
contrary, each party to this Agreement shall be solely responsible for its
expenses incurred in connection with the negotiation, preparation, execution,
delivery and performance of this Agreement.
Section 7.13 AMENDMENTS. This Agreement or the Exhibits hereto may not
be modified except by an instrument or instruments in writing signed by the
party or parties against whom enforcement of such modification is sought.
Section 7.14 INCORPORATION BY REFERENCE. EXHIBITS A THROUGH H attached
to this Agreement and referred to herein are hereby incorporated by reference
into this Agreement.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 16 -
<PAGE>
Section 7.15 SEVERABILITY. Whenever possible, this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement should be prohibited or invalid
under applicable law, such provision shall be construed as ineffective to the
extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
"CableData" "IBM"
U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS
a California corporation MACHINES CORPORATION,
a New York corporation
By: /s/ By: /s/
------------------------- ------------------------
Title: SR VP & GM Title: General Manager
----------------------- -----------------------
By: By:
------------------------- ------------------------
Title: Title:
----------------------- -----------------------
- 17 -
<PAGE>
EXHIBIT A
LIST OF ELIGIBLE PRODUCTS
-18-
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
EXHIBIT B
SCHEDULE FOR PORTING SYSTEM LIBRARIES*
Start: First quarter 1992
End: Second quarter 1992
Note: Primarily IBM activity with
assistance from CableData
*Assuming that the Agreement is executed on or before January 19, 1992
- 19 -
<PAGE>
EXHIBIT C
SCHEDULE FOR NATIONAL LANGUAGE SUPPORT*
Start: Fourth quarter 1991
End: First quarter 1993
Note: Primarily CableData activity with assistance from IBM
*Assuming that the Agreement is executed on or before January 19, 1992
- 20 -
<PAGE>
EXHIBIT D
SCHEDULE FOR APPLICATION LAYER*
Start: First quarter 1992
End: Second quarter 1992
Note: Primarily CableData activity with assistance from
database vendor
*Assuming that the Agreement is executed on or before January 19, 1992
- 21 -
<PAGE>
EXHIBIT E
SCHEDULE FOR OTHER INTERNATIONALIZATION TASKS*
Start: Second quarter 1992
End: First quarter 1993
Note: Primarily CableData activity; Beta group of programs
*Assuming that the Agreement is executed on or before January 19, 1992
- 22 -
<PAGE>
[LOGO]
EXHIBIT F-I
EQUIPMENT AND PROGRAM LOAN AGREEMENT
- --------------------------------------------------------------------------------
IF YOU HAVE SIGNED THE IBM CUSTOMER AGREEMENT, ITS ATTACHMENT FOR TRIAL OR
LOAN OF PRODUCTS SHOULD BE USED IN PLACE OF THIS AGREEMENT.
The Recipient (you) and International Business Machines Corporation (IBM) agree
that the following terms and conditions apply when IBM loans you equipment and
programs including associated user manuals and similar documentation (Loaned
Items). Loaned Items may also be referred to as Loaned Equipment or Loaned
Programs, as applicable.
1. ASSOCIATED CONTRACT DOCUMENTS
The Attachment to this Agreement (Attachment) lists the Loaned Items and
specifies any additional terms and conditions. A revised Attachment sets forth
any additions or deletions to the listed Loaned Items and any changes to the
terms and conditions. Your continued use of the Loaned Items or acceptance of
additional Loaned Items after your receipt of a revised Attachment will
constitute your acceptance of such revised Attachment.
When the loan is made in conjunction with a referenced Agreement, IBM will
specify the Reference Agreement Number. In this event, the referenced Agreement
will describe the purpose of the loan. Otherwise, the purpose of the loan is
specified below (Purpose of Loan).
2. TERM AND TERMINATION
This Agreement ends on the earliest of 1) the specified Agreement
Expiration Date, 2) the date this Agreement is terminated in accordance with
this Section, or 3) the date the referenced Agreement, if any, is terminated.
The Agreement Expiration Date may only be extended by IBM's issuance and your
acceptance of a revised Attachment specifying such later Date.
You may terminate this Agreement by providing written notice to IBM. If
you fail to meet any of your obligations under this Agreement or the referenced
Agreement, IBM may terminate this Agreement by giving written notice to you,
indicating the effective date of termination.
3. LOAN PERIOD
IBM will provide the Loaned Items to you on or about the Estimated Delivery
Date(s) specified in the Attachment. IBM provides the Estimated Delivery
Date(s) to you for planning purposes only. The Loan Period for each Loaned Item
will extend from the actual date IBM delivers the Loaned Item(s) to you, until
the earliest of:
a) the applicable Return Date specified in the Attachment or revised
Return Date specified in a revised Attachment;
- --------------------------------------------------------------------------------
PAGES 2 AND 3 AND 1 ATTACHMENT PAGE(S) ARE ALSO PART OF THIS AGREEMENT. The
parties acknowledge that they have read this Agreement, understand it, and agree
to be bound by its terms and conditions. Further, they agree that the complete
and exclusive statement of the agreement between the parties relating to the
Loaned Items provided hereunder consists of 1) this Agreement, 2) its
Attachment(s) and 3) the referenced Agreement, if any, including those effective
in the future. This statement of the agreement supersedes all proposals or
other prior agreements, oral or written, and all other communications between
the parties relating to the Loaned Items provided hereunder.
International Business Machines Recipient's name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
---------------------------------- -----------------------------------
Authorized Signature Authorized Signature
Name (type or print): Name (type or print):
Date: January 10, 1992 Date: January 10, 1992
This Agreement number: Reference Agreement number:
Strategic Alliance Agreement
IBM Office number: Recipient's Customer number:
IBM Office address: Recipient's address:
520 Capitol Mall 2969 Prospect Park Drive
Sacramento, CA 95814 Rancho Cordova, CA 95670
Agreement Expiration Date:
January 10, 1998, subject to year to year renewals
Purpose of Loan (TO BE COMPLETED ONLY IF NO REFERENCED AGREEMENT):
Page 1 of 3
<PAGE>
b) the date you acquire i) title to the Loaned Equipment or ii) a
continuing license to the Loaned Program, should such acquisition or
licensing be available to you under Section 13; or
c) the date this Agreement ends.
4. AUTHORIZED USE
IBM provides Loaned Items to you solely for use in accordance with the
terms of this Agreement and for the purpose(s) described either in this
Agreement or in the referenced Agreement (Authorized Use). There are no charges
for Authorized Use of the Loaned Items. You may not use the Loaned Items for
any other purposes.
5. OWNERSHIP AND LICENSE
IBM or a third party retains title to all Loaned Items. You may not
transfer Loaned Items to anyone else. For Loaned Programs which are not subject
to another supplier's or publisher's license agreement, IBM grants you a
license to use, store, modify and make sufficient copies to support your
Authorized Use under this Agreement. Such copies will be deemed to be Loaned
Items. For Loaned Programs which are subject to another supplier's or
publisher's license agreement, however, the terms and conditions of that
supplier or publisher are passed to you through IBM. Such terms and conditions
will be shipped with the Loaned Program. Any authorized copies made by you will
be deemed to be Loaned Items.
6. LICENSED INTERNAL CODE
If the Loaned Equipment contains Licensed Internal Code (Code), so
identified by IBM, IBM grants you a license only to execute such Code to enable
the Loaned Equipment to perform in accordance with IBM's official published
specifications. You may not reverse assemble, reverse compile, decode,
translate, or make any other copies of the Code. You must return the original
copy of the Code to IBM at the conclusion of the Loan Period.
7. DELIVERY AND INSTALLATION
IBM will deliver the Loaned Items to the location(s) specified in the
Attachment.
You will 1) set-up all Loaned Equipment IBM designates as Customer Set-Up,
2) install all non-IBM equipment and 3) install all Loaned Programs.
IBM will be responsible for the installation of all other Loaned Items.
Installation by IBM will be during IBM's normal business hours.
8. RISK OF LOSS OR DAMAGE
IBM relieves you of the risk of loss of, or damage to, all Loaned Items,
except for loss or damage resulting from your breach of this Agreement
including use other than Authorized Use.
9. SECURITY
You will provide, at no cost to IBM, adequate security to protect the
Loaned Items from theft, damage or misuse.
You will use reasonable care in the use of all Loaned Items. You will
provide an operating environment for the Loaned Items consistent with the
related user documentation.
You will keep the Loaned Items at the location(s) specified in the
Attachment. You will not move the Loaned Items to another location without
IBM's prior written approval.
10. SERVICE AND SUPPORT
IBM will use reasonable efforts to provide or arrange for service and
support to cause the Loaned Items to operate in accordance with applicable
published specifications. Such service and support will be without charge.
You will permit IBM personnel full, free and safe access to your
facilities, during normal business hours, for the purpose of inspection,
preventive maintenance service or remedial maintenance service.
11. ALTERATIONS AND ATTACHMENTS
An alteration to Loaned Equipment may be made only upon IBM'S prior written
approval. An attachment to Loaned Equipment may be made without notice to IBM.
You will remove any alteration or attachment and restore Loaned Equipment
to its unaltered condition before its return to IBM or upon IBM's notice to you
that the alteration or attachment creates a safety hazard or renders maintenance
of the Loaned Equipment impractical.
12. CHANGES
IBM may make substitutions for Loaned Items or may provide additional items
to you during the term of the Agreement. Such additions or deletions will be
specified in a revised Attachment.
13. DISPOSITION OF LOANED ITEMS
RETURN TO IBM
You will return the Loaned Equipment to IBM at the end of Loan Period,
except as may be provided for in this Section. You will return the Loaned
Equipment to IBM in the same condition as when delivered to you, reasonable wear
and tear excepted.
You will return the original and all copies of the Loaned Programs at the
end of the Loan Period, except as may be provided for in this Section.
You will permit IBM personnel access during IBM's normal business hours to
allow IBM to remove the Loaned Items.
ACQUISITION AND CONTINUED LICENSING
IBM will determine the availability of Loaned Equipment for your
acquisition and Loaned Programs for your continued licensing beyond the
applicable Loan Period. You must inform IBM, prior to the end of the applicable
Loan Period, of your interest in the acquisition of specific Loaned Equipment
or the continued licensing of specific Loaned Programs. IBM will then notify you
in writing either 1) of the terms and conditions under which you may acquire
such Loaned Equipment or continue to license such Loaned Programs or 2) that the
Loaned Items are not available for acquisition or continued licensing.
Purchase of Loaned Equipment will be governed by the provisions of the IBM
Customer Agreement and its applicable Attachments (or any equivalent agreement
signed by both of us).
Continued licensing of Loaned Programs will be governed by the provisions
of the applicable IBM license agreement or another supplier's or publisher's
Page 2 of 3
<PAGE>
license agreement. IBM will identify to you the applicable agreement which
governs such licensing.
14. DISCLAIMER OF WARRANTY
IBM PROVIDES LOANED ITEMS ON AN "AS IS" BASIS. IBM MAKES NO WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO SUCH ITEMS, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. PATENTS AND COPYRIGHTS
If the operation of a Loaned Item becomes, or IBM believes is likely to
become, the subject of a claim that it infringes a patent or copyright in the
United States or Puerto Rico, you will permit IBM, at its option and expense,
either to secure the right for you to continue using the Loaned Item or to
replace or modify it so that it becomes noninfringing. However, if neither of
the foregoing alternatives is available on terms which are reasonable in
IBM's judgement, you will return the Loaned Item upon IBM's written request.
IBM will have no obligation with respect to any such claim based upon your
modification of IBM equipment, programs or programming or their combination,
operation or use with any non-IBM apparatus, data or programs.
IBM will not have any liability regarding patent or copyright infringement
for non-IBM Loaned Items.
This Section states IBM's entire obligation to you regarding infringement
or the like.
16. CONFIDENTIAL INFORMATION
The parties agree that all information exchanged hereunder will be
nonconfidential. If the loan requires the exchange of confidential
information or includes an unannounced IBM product, such loan will also
require that you and IBM enter into a separate confidentiality agreement.
17. LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy for actual damages from
any cause whatsoever relating to the subject matter of this Agreement will be
limited to the amount of $25,000. This limitation will apply, except as
otherwise stated in this Section, regardless of the form of action, whether
in contract or in tort, including negligence. This limitation will not apply
to claims by you for bodily injury or damage to real property or tangible
personal property for which IBM is legally liable.
In no event will IBM be liable for any lost profits, lost savings,
incidental damages, or other economic consequential damages, even if IBM has
been advised of the possibility of such damages. In addition, IBM will not be
liable for any damages claimed by you based on any third party claim.
In no event will IBM be liable for any damages caused by your failure to
perform your responsibilities.
18. GENERAL
You may not assign this Agreement without IBM's prior written consent. Any
attempted assignment without such consent is void.
Loaned items are to be installed only in the United States or Puerto Rico.
IBM will pay destination charges, both from and to IBM-designated
locations, for each Loaned Item shipped in accordance with IBM's then current
shipping practice. You will pay any rigging charges. You will furnish all
labor for unpacking and packing except as IBM otherwise specifies or when
performed at an IBM-designated location.
IBM may provide services described in this Agreement by using IBM-selected
independent contractors.
Neither party is responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control.
Neither party may bring an action, regardless of form, arising out of this
Agreement more than two years after the cause of action arose.
In the event of the termination or expiration of this Agreement, the
provisions of this Agreement which by their nature extend beyond the
expiration or termination of this Agreement shall remain in effect beyond such
expiration or termination until fulfilled.
If there is a conflict between this Agreement and an Attachment, the terms
and conditions of the Attachment will prevail. Except as modified by an
Attachment, the terms of this Agreement remain in full force and effect. The
terms of any Attachment not inconsistent with a subsequent Attachment remain
in full force and effect.
The laws of the State of New York govern this Agreement.
Page 3 of 3
<PAGE>
Attachment to
Equipment and Program Loan Agreement
Equipment to be covered by Agreement:
(i) One IBM RISC System/6000 Model 540 server configured with 64MB of
RAM, 3GB of disk, one 6250 BPI 9-track tape drive, one 8mm
cartridge tape, 24 async ports, one async terminal as a system
console, one dot matrix printer as a system logger, a CD-ROM
player, a 10Base-T ethernet connection and two 8PPM laser printers
for use in El Dorado Hills, California.
(ii) Four IBM RISC System/6000 Model 320H systems, each configured with
64MB of RAM, 1GB of disk, a CD-ROM player, a 100MB cartridge tape,
a 10Base-T ethernet connection, and a 19-inch monochrome display
with keyboard and mouse. One of these machines is for use in Leeds,
UK, the remaining three are for use in El Dorado Hills, California.
(iii) Eleven X-terminals, each with a 19-inch monochrome display,
keyboard, mouse, a 10Base-T ethernet connection, and 4MB of RAM
for use in El Dorado Hills, California.
(iv) Thirteen X-terminal emulator software packages for DOS PCs to
connect to the servers. Two of these emulators are for PCs in
Leeds, UK, the remaining eleven are for use in El Dorado Hills,
California.
(v) Software for items (i) and (ii) above to allow full C and SQL
development in a networked X windows environment.
(vi) Addresses for delivery and installation (at IBM's sole expense) of
above equipment.
El Dorado Hills address:
5272 Robert J. Mathews Parkway
El Dorado Hills, CA 95630
Leeds, UK address:
Arlington Business Centre
Millshaw Park
Leeds LS11 OLT England, UK
(vii) IBM will provide upgrades to system software and hardware as new
versions become available.
-23-
<PAGE>
EXHIBIT F-2
DATA BASE: ALET - Page: 1
- -------------------------------------------------------------------------------
NUMBER 391-068
DATE 910514
CATEGORY GD70, GD00
TYPE Marketing
TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM
ABSTRACT The IBM RISC System/6000 (TM) Developer Discount Program (formerly
the RISC System/6000 Software Development Program, described in
Marketing Announcement 390-016, dated February 15, 1990) now
includes selected hardware developers. The new program also updates
the list of IBM hardware and software products eligible for the
Developer Discount Program.
This program provides eligible customers with the opportunity
to acquire workstations, AIX (R) Development Toolkits, selected
peripherals, and licensed RISC System/6000 programs at a
substantial discount. Eligible customers include selected hardware
and software developers, and selected IBM Academic Information
Systems (ACIS) application authors.
IBM reserves the right to modify or withdraw this offering at
any time. No other discount or promotional offering can be combined
with this program.
(TM) Trademark of International Business Machines Corporation.
(R) Registered trademark of International Business Machines
Corporation.
<PAGE>
DATA BASE: ALET - IBM Internal Use Only Page: 2
IMKTG MARKETING INFORMATION
MARKETING CHANNELS
o IBM US Market Operations -- Direct
MARKETING STRATEGY
This program is intended to increase the availability of quality
products by providing an attractively priced RISC System/6000
development offering to selected hardware and software developers,
and selected ACIS application authors.
MARKETING ACTION REQUIRED
Marketing representatives should become familiar with this
program and encourage the participation of qualifying developers.
IADMIN ADMINISTRATIVE INFORMATION
PROGRAM ELIGIBILITY: Customers must be approved by Software Vendor
Operations. Approvals will be limited to US-based developers who
agree to develop and market (or make available) RISC System/6000
hardware or software products.
To initiate a request for a Developer Discount, submit a
completed SVDDPNOM form, which is available on EZFORMS. For
additional information, send a PROFS (R) note to ATLVMS/SVDDP.
(R) Registered trademark of International Business Machines
Corporation.
CONTRACT ADMINISTRATION: Each new approved developer must sign the
IBM Customer Agreement Attachment for IBM RISC System/600 Developer
Discount (Z125-4740), and the IBM Customer Agreement Addendum for the
IBM RISC System/6000 Developer Discount (Z125-4741). Upon completion
of development, the developer must sign the IBM Customer Agreement
Certification of Compatibility with the IBM RISC System/6000
(Z125-4743).
ORDERING INFORMATION
When ordering the eligible products under this program, follow
the normal ordering instructions and use Contract Number 44871.
This special contract number will enable the program orders to be
processed at the stated discount. If the special contract number
was omitted at order entry, add it by using MODIFY prior to
shipment or PURPREP after shipment but prior to installation.
Eligible products are listed in the Exhibit for IBM RISC
System/6000 Developer Discount (Z125-4742) and orders are based on
a completed Addendum for IBM RISC System/6000 Developer Discount
(Z125-4741) that is signed by the customer.
ATTACHMENT INFORMATION
The following are related to this announcement letter:
- 391-068-1A* Z125-4740 IBM Customer Agreement Attachment for IBM
RISC System/6000 Developer Discount
- 391-068-1B* Z125-4741 IBM Customer Agreement Addendum for IBM
RISC System/6000 Developer Discount
- 391-068-1C* Z125-4742 IBM Customer Agreement Exhibit for IBM RISC
System/6000 Developer Discount
- 391-068-1D* Z125-4743 IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000
* This item may be printed on your DAWN printer via either of the
following two methods:
1. While browsing this announcement letter on HONE, enter the
<PAGE>
DATA BASE: ALET - IBM Internal Use Only Page: 3
fastpath name "DAWNHOST LIST" (to allow selective printing from
list) or "DAWNHOST ALL" (to print all asterisked items for this
letter) at the HONE entry prompt arrow.
2. Go to the DAWN system in your branch and choose the menu option
for Announcement Letter attachments.
<PAGE>
DATA BASE : ALET - Page: 4
OVERVIEW DESCRIPTION
Selected hardware and software developers, and selected
ACIS-approved faculty/researcher application authors may acquire with
selected peripherals and licensed RISC System/6000 programs, under
the terms and conditions of the IBM Customer Agreement Attachment for
IBM RISC System/6000 Developer Discount at a 50% discount.
For each development machine purchased, the developer may select
RISC System/6000 peripherals at a 50% discount. In addition, for
each machine obtained, one copy of each RISC System/6000 program on
the attached list may be acquired at a 50% discount.
Components of the RISC System/6000 family eligible for this
program are provided in the attached IBM RISC System/6000 Developer
Discount Program Machines and Licensed Programs List, which has
been updated to include the following products:
- Additional RISC System/6000 processors: Models 32H, 550 and 950
- Upgrade RISC System/6000 processors: Model 320 to 32E, Model 520
to 530, Model 540 to 55S and Model 930 to 95E
- Additional peripherals: IBM 7202 Model 900 Expansion Rack, and
IBM 7235 Models 1 and 2 POWERgraphics GTO
- IBM 9334 Model 10 Drawer Expansion Unit
- IBM 9334 Model 500 Deskside Expansion Unit
- IBM 7010 Model 130 Xstation
- IBM 8515 Model 1 Color Display, and IBM 8507 Model 1 Monochrome
Display
- Additional programs, including:
- Selected modules of PROFESSIONAL CADAM (1) Version 3
- AIX XL FORTRAN Compiler/6000 Version 2 and AIX XL FORTRAN Run
Time Environment/6000 Version 2.
To obtain additional information regarding program eligibility,
contact your marketing representative.
ACIS reserves the right to select, from a nominated pool of
candidate applications, only those applications that ACIS wants
supported, and thereby selectively offer the faculty/researcher
application author the opportunity to participate in the RISC
System/6000 Developer Discount Program.
Hardware vendors will be selected based on their ability to
provide products that enhance the overall marketability of the RISC
System/6000 product family, with emphasis on products not currently
part of the RISC System/6000 offering.
(1) Registered trademark of CADAM, INC.
CUSTINFO PUBLICATIONS
Please refer to the individual announcements for publications
concerning the hardware, licensed programs, and peripherals in this
offering.
EDUCATION SUPPORT
Developers wishing to subscribe to a technical quarterly
publication, THE AIXPERT, should call 800-627-8363.
Other users may subscribe by ordering bill-of-forms number
GBOF-1199 from the Systems Library Subscription Service (SLSS).
Users without electronic access to SLSS may subscribe using SLSS
order number G120-1816 and specify GBOF-1199 as the publication
<PAGE>
DATA BASE : ALET - Page: 5
number.
ORDERING TERMS AND CONDITIONS
- The developer must agree to use the products acquired for each
development system to develop, test, demonstrate and/or maintain
hardware and software products developed under this program for a
period of 12 months following the shipment of the IBM products.
- Upon completion of such development, the developer will provide to
IBM the IBM Customer Agreement Certification of Compatibility with
the IBM RISC System/6000 (Z125-4743), and announce and make
available a product that is compatible with the RISC System/6000.
- Products acquired under this development program are intended
primarily for development purposes and not for resale, sub-lease, or
rental for a period of 12 months following the shipment of the IBM
product.
- Up to ten Xstation terminals may be purchased with each system.
IBM reserves the right to limit the number of RISC System/6000
systems available to each development establishment.
CONTRACT INFORMATION: The RISC System/6000 Software Developer's
Agreement has been replaced with a new IBM Customer Agreement
Attachment for IBM RISC System/6000 Developer Discount, to
accommodate program changes. This new contract applies to
approved hardware and software vendors, and approved ACIS customers.
The new documents are:
- (Z125-4740) IBM Customer Agreement Attachment for IBM RISC
System/6000 Developer Discount
- (Z125-4741) IBM Customer Agreement Addendum for IBM RISC
System/6000 Developer Discount
- (Z125-4742) IBM Customer Agreement Exhibit for IBM RISC
System/6000 Developer Discount
- (Z125-4743) IBM Customer Agreement Certification of Compatibility
with the IBM RISC System/6000.
Customers currently under the terms of the Software Developer's
Discount Agreement (Z125-4505) will not be required to migrate to
the new format unless they apply and are approved for the new
hardware terms and conditions.
On request by the developer, products newly added to the RISC
System/6000 Developer Machines and Licensed Programs List may be
added to a current contract.
The following contracts are withdrawn with this announcement:
- (Z125-4505) IBM RISC SYSTEM/6000 Software Developer's Discount
Agreement
- (Z125-4506) Schedule, IBM RISC System/6000 Software Development
Program
- (Z125-4507) Attachment I, Certification of Compatibility with the
IBM RISC System/6000
- (Z125-4527) IBM RISC System/6000 Higher Education Software
Developer's Discount Agreement
<PAGE>
DATA BASE : ALET - Page: 6
- (Z125-4528) Attachment I, Certification of Compatibility with the
IBM RISC System/6000
- (Z125-4529) IBM RISC System/6000 Software Development System
Schedule.
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MACHINES AND LICENSED
PROGRAMS LIST
Eligible Hardware - 50% Discount
IBM RISC System/6000 7012 Model 320
IBM RISC System/6000 7012 Model 32H
IBM RISC System/6000 7013 Model 520
IBM RISC System/6000 7013 Model 530
IBM RISC System/6000 7013 Model 540
IBM RISC System/6000 7013 Model 550
IBM RISC System/6000 7015 Model 930
IBM RISC System/6000 7015 Model 950
IBM RISC System/6000 7016 Model 730
Eligible Model Upgrades - 50% Discount
IBM RISC System/6000 7012 Model 320 to 32E
IBM RISC System/6000 7013 Model 520 to 530
IBM RISC System/6000 7013 Model 540 to 55S
IBM RISC System/6000 7015 Model 930 to 95E
Eligible Peripherals - 50% Discount
IBM 5081 Model 16 Graphics Display
IBM 5081 Model 19 Graphics Display
IBM 6091 Model 19 Color Display
IBM 6091 Model 23 Color Display
IBM 6094 Model 10 Dials
IBM 6094 Model 20 Lighted Programmable Functional Keyboard
IBM 7202 Model 900 Expansion Rack
IBM 7203 Model 001 External Portable Disk Drive
IBM 7204 External Disk Drive Model 320
IBM 7207 Model 001 150MB External 1/4-Inch Cartridge Tape Drive
IBM 7208 Model 001 2.3GB External 8mm Tape Drive
IBM 7210 Model 001 External CD-ROM Drive
IBM 7235 Models 001, 002 POWERgraphics GTO
IBM 8503 Model 001 Personal System/2 (R) Monochrome Display
IBM 8507 Model 001 Personal System/2 Monochrome Display
IBM 8508 Model 001 Personal System/2 Monochrome Display
IBM 8512 Model 001 Personal System/2 Color Display
IBM 8513 Model 001 Personal System/2 Color Display
IBM 8514 Model 001 Personal System/2 Color Display
IBM 8515 Model 001 Personal System/2 Color Display
IBM 9334 Model 10 Drawer Expansion Unit
IBM 9334 Model 500 Deskside Expansion Unit
IBM 9348 Model 012 External 1/2-Inch 9-Track Tape Drive
IBM 7010 Model 120 Xstation
IBM 7010 Model 130 Xstation
Eligible Licensed Programs - 50% Discount
AIX Version 3 for RISC System/6000 (5756-030)
AIX Personal graPHIGS (TM) Programming Interface/6000 Version 2
(5601-230)
AIX XL FORTRAN Compiler/6000 (5601-248)
<PAGE>
DATA BASE : ALET - Page: 7
AIX XL Pascal Run Time Environment/6000 (5601-251)
AIX Network Management/6000 (5601-253)
AIX XL Pascal Compiler/6000 (5601-254)
AIX 3278/79 Emulation/6000 (5601-256)
AIXwindows (TM) Environment/6000 (5601-257)
AIX VS COBOL Compiler/6000 (5601-258)
AIX VS COBOL Run Time Environment/6000 (5601-259)
AIX 3270 Host Connection Program/6000 (5601-260)
AIX Personal Computer Simulator/6000 (5601-263)
AIX XL FORTRAN Run Time Environment/6000 (5601-266)
AIX System Network Architecture Services/6000 (5601-287)
AIX Computer Graphics Interface Toolkit/6000 (5601-386)
AIX Xstation Manager (TM)/6000 (5601-457)
AIX Ada/6000 (5706-291)
AIX Ada Run Time Environment/6000 (5706-294)
PROFESSIONAL CADAM (1) 3D Surface Design (5756-091)
PROFESSIONAL CADAM Manufacturing System (5756-092)
PROFESSIONAL CADAM Machining Center (5756-093)
PROFESSIONAL CADAM Interactive Design (5756-094)
PROFESSIONAL CADAM Access IUE (5756-095)
PROFESSIONAL CADAM Interactive Solids Design (5756-096)
AIX XL FORTRAN Compiler/6000 Version 2 (5765-018)
AIX XL FORTRAN Run Time Environment/6000 Version 2 (5765-019)
Notes:
Developers may purchase a maximum of one of each unique
peripheral per development system. However, with Xstation
terminals, a maximum of ten per system may be purchased, and a
maximum of one display per Xstation may be purchased.
Development discounts will be applied to the eligible hardware,
licensed programs, and peripherals ordered as part of the initial
installation. Within the limitations described, peripherals,
licensed programs and hardware MESs may be ordered after the
initial purchase and receive the developer discount. However, these
additional purchases will be restricted to the terms of the
Attachment for IBM RISC System/6000 Developer Discount for a period
of 12 months.
For programs licensed under the primary license charge/annual
license charge option, the 50% discount applies to the primary
license charge only. Recurring charges, such as ESS and annual
license charge, do not qualify for the 50% discount.
Software MESs are not eligible for the 50% discount.
(1) Registered trademark of CADAM, INC.
(TM) Trademark of International Business Machines Corporation.
(R) Registered trademark of International Business Machines
Corporation.
- - - END OF PRINTOUT - - -
<PAGE>
SOFTWARE VENDOR DEV. DISCOUNT PROG.
NOMINATION FORM DATE: ___/___/___
SYSTEM TYPE: _______________ (9370 or AS/400 or RS/6000)
For RS/6000: _______________ (ACIS or CASE or SV)
I. NOMINATING BRANCH OFFICE DATA
B/O Name and Number ___________________________________ / _______________
Address _____________________________________________________
_____________________________________________________
_____________________________________________________
Rep Name _____________________________________________________
Rep Telephone (____) ____ - _____ T/L... 8/___ - _____
Rep Node/UserID ________ / ______ Rep Serial No ______
AA Name _____________________________________________________
AA Telephone Number (____) ____ - _____ T/L... 8/___ - _____
AA Node(Userid) ________ / ______
Who from IBM is answering these questions (name, title, tele/tie,
Node/UserID?) ___________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
II. SOFTWARE VENDOR DATA
Organization Name ______________________________________________________
Address ______________________________________________________
______________________________________________________
______________________________________________________
Contact ______________________________________________________
Title ______________________________________________________
Tel. No. ______________________________________________________
Establishment no. _________________ Customer no. ____________________
Current IBM Marketing Relationship: _____________________________________
(CUSTOMER, AS, IAS, IR, NONE, ETC.)
Competitive Marketing Relationship: _____________________________________
(Competitive IR, MAP, etc.)
Industry Code: __________________ SIC Code: ___________________________
End User Industry (For what industry is the application code written?)
__________________________________________________________________________
Any dispute or litigation with IBM? _____________________________________
__________________________________________________________________________
How long has this organization been in the software development
business? _______________________________________________________________
Number of employees? ____________________________________________________
Does this organization have a Marketing Staff? __________________________
How many? _____________________
Does this organization have a Support/Development staff? ________________
How many? _________________
How is support delivered (Hotlines, Info. Data Bases,
Customer Calls, Electronic Mail etc.)? __________________________________
Is there a charge for Software Maintenance Support? _____________________
<PAGE>
How is it calculated (straight charge, % of revenue, etc.)?
----------------------------------------------------------------------------
Organization of revenue for the last two years: 1989
----------------------
1990
----------------------
Today, what % of revenue is from:
selling APPLICATION PACKAGES?
---------------------
what % from INSTALLATION SERVICES?
---------------------
what % from MODIFYING/CUSTOMIZING?
---------------------
what % from MAINTENANCE/SUPPORT?
---------------------
What is the total install base (how many customers)?
----------------------
What other business activity is the organization engaged in?
---------------------------------------------------------------------------
What % of revenue does the activity produce?
------------------------------
III. VENDOR PRODUCT DATA
Provide the name and a brief description of the available software
application(s) currently being sold or distributed by this organization:
APPLICATION NAME DESCRIPTION
------------------------- ---------------------------------------------
------------------------- ---------------------------------------------
------------------------- ---------------------------------------------
Provide the last 12 months' sales or installations and the total customer
installed base for each application described above:
APPLICATION NAME LAST 12 MOS. TOTAL INSTALLED BASE
-------------------- ------------------ -------------------------
-------------------- ------------------ -------------------------
-------------------- ------------------ -------------------------
What is the current hardware platform(s)?
---------------------------------
What is the current operating system(s)?
---------------------------------
How many systems (IBM or Competitive) have been sold in 1988/89 as a result
of this application software being available?
-----------------------------
Explain the length of the conversion schedule.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
If this is an ACIS RS/6000 nomination, described the planned distribution
method and end user support that will be provided.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Hardware and Software required for conversion effort (specify System Type
and Model)
-----------------------------------------------------------------
---------------------------------------------------------------------------
If RS/6000, How many systems are required (MAXIMUM 10?)
-------------------
<PAGE>
In addition to submitting a signed hardcopy of this nomination form, please
provide a development plan for the application(s) that this Vendor intends
to port and/or develop for the IBM platform. Include the following:
- Functional description of the application and a brief discussion about
this application(s) offering uniqueness.
- Estimated size of the application(s) in the lines of code.
- Hardware and software to be ordered, include HONE configurator
printout.
- Development schedule to include:
-start date
-design period
-coding period
-testing period
-finish date
-date application commercially available
- Please attach a copy of the software vendors marketing literature with
this nomination and mail to:
IBM Corporation -- HO9R1
Software Vendor Operations
4111 Northside Parkway
Atlanta, GA 30327-3098
<PAGE>
IBM CUSTOMER AGREEMENT
ADDENDUM FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
- --------------------------------------------------------------------------------
Revised Addendum (1) yes no Page of
----- ----- --- ---
Education Institution
-----
Date Attachment accepted: Hardware/Software Vendor
-----
Development Location address: IBM Customer Agreement number:
IBM Office address: Addendum number:
IBM Office number:
Number of Development Systems Customer number:
Previously Ordered (2):
-----
Type/Model or
Program Number Description Quantity Discount
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) IF THIS IS A REVISED ADDENDUM, (2) YOU MAY ONLY ORDER A MAXIMUM OF 10
YOU MAY ONLY ORDER DEVELOPMENT DEVELOPMENT SYSTEMS PER DEVELOPMENT
SYSTEMS DURING THE TWELVE MONTHS LOCATION. A SYSTEM CONSISTS OF AN
AFTER WE ACCEPT YOUR SIGNED IBM RISC SYSTEM/6000 PROCESSOR AND
ATTACHMENT. ELIGIBLE PRODUCTS.
Both of us agree that the complete agreement between us about this transaction
consists of 1) this Transaction Document and 2) the IBM Customer Agreement and
its Attachment for IBM RISC System/6000 Developer Discount (or any equivalent
agreement signed by both of us).
AGREED TO: AGREED TO:
Customer name: International Business Machines
Corporation
Armonk, New York 10504
By ___________________________________ By ___________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
Z125-4741-00 5/91
<PAGE>
IBM CUSTOMER AGREEMENT
EXHIBIT FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
- --------------------------------------------------------------------------------
ELIGIBLE HARDWARE DISCOUNT
PROCESSORS:
IBM RISC System/6000 7012 Model 320 [*]
IBM RISC System/6000 7012 Model 32H [*]
IBM RISC System/6000 7013 Model 520 [*]
IBM RISC System/6000 7013 Model 530 [*]
IBM RISC System/6000 7013 Model 53H [*]
IBM RISC System/6000 7013 Model 540 [*]
IBM RISC System/6000 7013 Model 550 [*]
IBM RISC System/6000 7015 Model 930 [*]
IBM RISC System/6000 7015 Model 950 [*]
IBM RISC System/6000 7016 Model 730 [*]
MODEL CONVERSIONS:
IBM RISC System/6000 7012 Model 320 to 32E [*]
IBM RISC System/6000 7013 Model 520 to 530 [*]
IBM RISC System/6000 7013 Model 520 to 53E [*]
IBM RISC System/6000 7013 Model 520 to 55E [*]
IBM RISC System/6000 7013 Model 530 to 55E [*]
IBM RISC System/6000 7013 Model 53H to 55E [*]
IBM RISC System/6000 7013 Model 540 to 55S [*]
IBM RISC System/6000 7015 Model 930 to 95E [*]
DISPLAYS:
IBM 5081 Model 16 Graphics Display [*]
IBM 5081 Model 19 Graphics Display [*]
IBM 6091 Model 19 Color Display [*]
IBM 6091 Model 23 Color Display [*]
IBM 8503 Model 001 Personal System/2 Monochrome Display [*]
IBM 8507 Model 001 Personal System/2 Monochrome Display [*]
IBM 8508 Model 001 Personal System/2 Monochrome Display [*]
IBM 8512 Model 001 Personal System/2 Color Display [*]
IBM 8513 Model 001 Personal System/2 Color Display [*]
IBM 8514 Model 001 Personal System/2 Color Display [*]
IBM 8515 Model 001 Personal System/2 Color Display [*]
MAXIMUM QUANTITY = ONE DISPLAY UNIT PER PROCESSOR.
STORAGE MEDIA:
IBM 7203 Model 001 External Portable Disk Drive [*]
IBM 7204 External Disk Drive Model 320 [*]
IBM 7207 Model 001 150 MB External [*]
1/4-inch Cartridge Tape Drive
IBM 7208 Model 001 2.3 GB External 8mm Tape Drive [*]
IBM 7210 Model 001 External CD-ROM Drive [*]
IBM 9333 Model 10 High Performance Disk Subsystem [*]
IBM 9333 Model 500 High Performance Disk Subsystem [*]
IBM 9334 Model 10 Drawer Expansion Unit [*]
IBM 9334 Model 500 Deskside Expansion Unit [*]
IBM 9348 Model 012 External 1/2-inch 9-Track Tape Drive [*]
MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Z125-4742-01 11/91 Page 1 of 2
<PAGE>
ELIGIBLE HARDWARE DISCOUNT
PERIPHERALS:
IBM 6094 Model 10 Dials [*]
IBM 8094 Model 20 Lighted Programmable [*]
Functional Keyboard
IBM 7202 Model 900 Expansion Rack [*]
IBM 7235 Model 1 POWERgraphics GTO [*]
IBM 7235 Model 2 POWERgraphics GTO [*]
MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR
X-STATION:
IBM 7010 Model 120 Xstation [*]
IBM 7010 Model 130 Xstation [*]
MAXIMUM QUANTITY = 10 XSTATIONS PER PROCESSOR.
FEATURES:
All features for eligible hardware [*]
ELIGIBLE PROGRAMS DISCOUNT
5601-230 AIX Personal graPHIGS Programming Interface/6000 [*]
5601-248 AIX XL FORTRAN Compiler/6000 [*]
5601-251 AIX XL Pascal Run Time Environment/6000 [*]
5601-253 AIX Network Management/6000 [*]
5601-254 AIX XL Pascal Compiler/6000 [*]
5601-256 AIX 3278/79 Emulation/6000 [*]
5601-257 AIXwindows Environment/6000 [*]
5601-258 AIX VS COBOL Compiler/6000 [*]
5601-259 AIX VS COBOL Run Time Environment/6000 [*]
5601-260 AIX 3270 Host Connection Program/6000 [*]
5601-263 AIX Personal Computer Simulator/6000 [*]
5601-266 AIX XL FORTRAN Run Time Environment/6000 [*]
5601-287 AIX System Network Architecture Services/6000 [*]
5601-386 AIX Computer Graphics Interface Toolkit/6000 [*]
5601-457 AIX Xstation Manager/6000 [*]
5706-291 AIX Ada/6000 [*]
5706-294 AIX Ada Run Time Environment/6000 [*]
5756-011 AIX X-Windows 3270 Emulator Version 1 [*]
5756-030 AIX Version 3 for RISC System/6000 [*]
5756-091 Professional CADAM 3D Surface Design [*]
5756-092 Professional CADAM Manufacturing System [*]
5756-093 Professional CADAM Machining Center [*]
5756-094 Professional CADAM Interactive Design [*]
5756-095 Professional CADAM Access IUE [*]
5756-096 Professional CADAM Interactive Soldis Design [*]
5765-018 AIX XL FORTRAN Compiler/6000 [*]
5765-019 AIX XL FORTRAN Run Time Environment/6000 [*]
MAXIMUM QUANTITY = ONE OF EACH LICENSED PROGRAM LISTED PER PROCESSOR.
Z125-4742-01 11/91 Page 2 of 2
<PAGE>
IBM CUSTOMER AGREEMENT
CERTIFICATION OF COMPATABILITY WITH THE IBM RISC SYSTEM/6000
______________________________________________________________________________
Name & Brief Description of Product:
Target End User Description:
Machines Required:
Programs Required:
Storage Required:
Memory ____________ Disk ____________
Commercial Availability Date:
Contact Address & Telephone Number for Prospective User:
I certify that the above product will execute on, or attach to, the IBM RISC
System/6000-TM- with the Machines, Programs, and storage requirements listed
above. I grant IBM permission to publish this information in any form.
____________________________________ ___________________________________
CUSTOMER NAME SIGNATURE
____________________________________ ___________________________________
DATE NAME & TITLE
- -TM- Trademark of International Business Machines Corporation
Z125-4743-00 5/91
<PAGE>
IV. REVIEW & SIGNOFF
This electronic form will automatically transmit to Software Vendor
Operations (SVO). Before this nomination will be considered, this form
must be reviewed and signed by the Branch Manager and a hardcopy must be
submitted, with the above mentioned development plan and marketing
literature.
By signing the nomination form, the Branch Manager will certify that
this organization or individual is a legitimate software vendor.
The Complementary Resources Marketing Manager (CRMM) must be informed of
this nomination and acknowledges this notification by signing this
nomination form.
____________________________________ ______________________________
CRMM (Signature) Date
____________________________________
Print/Type Name
____________________________________ ______________________________
Branch Manager (Signature) Date
____________________________________
Print/Type Name
____________________________________ ______________________________
SVDDP Approval (Signature) Date
C. M. Ellet
Manager, Vendor Loan Programs
Software Vendor Operations, Atlanta, GA
03/26/1991 IBM Internal Use Only Page 4
<PAGE>
IBM CUSTOMER AGREEMENT [Logo]
______________________________________________________________________________
Thank you for doing business with us. We are committed to providing you with
the highest quality Products and Services. If, at any time, you have any
questions or problems, or are not completely satisfied, please let us know.
Our goal is to do our best for you.
This IBM Customer Agreement (called the "Agreement") covers the major
business transactions we may do with you, including:
(A) sale of Machines;
(B) license of Programs; and
(C) provision of Services.
We also make several Options available to you concerning the Products and
Services we provide under this Agreement, such as volume discounts.
This Agreement and its applicable Attachments and Transaction Documents are
the complete agreement regarding these transactions, and replace any prior
oral or written communications between us.
By signing below for our respective Enterprises, each of us agrees to the
terms of this Agreement. Once signed, 1) any reproduction of this Agreement,
an Attachment, or Transaction Document made by reliable means (for example,
photocopy or facsimile) is considered an original and 2) all Products and
Services you order under this Agreement are subject to it.
AGREED TO: AGREED TO:
Enterprise name: INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
By ___________________________ By ___________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
Enterprise number: Agreement number:
Enterprise address: IBM Office number:
IBM Office address:
Z125-4575-00 1/91 Page 1 of 23
<PAGE>
IBM CUSTOMER AGREEMENT
TABLE OF CONTENTS
______________________________________________________________________________
SECTION TITLE PAGE SECTION TITLE PAGE
PART 1 - GENERAL......................3 PART 4 - PROGRAMS..................14
1.1 Definitions....................3 4.1 Grant of License............14
1.2 Agreement Structure............4 4.2 License Details.............14
1.3 Delivery.......................4 4.3 Distributed Features........15
1.4 Electronic Communications......5 4.4 Additional License Copies...15
1.5 Prices and Price Changes.......5 4.5 Program Testing.............15
1.6 Invoicing, Payment, and Taxes..6 4.6 Program Packages............15
1.7 Additional Charges.............6 4.7 Program Protection..........16
1.8 Types of Service for Machines..6 4.8 Program Services............16
1.9 Patents and Copyrights.........7 4.9 Variable-Charge Programs....16
1.10 Limitation of Liability........7 4.10 License Termination.........16
1.11 Mutual Responsibilities........8
1.12 Your Other Responsibilities....8 PART 5 - SERVICES..................17
1.13 Your Additional Rights.........9
1.14 IBM Business Partners..........9 5.1 Maintenance Services........17
1.15 Changes to the Agreement Terms.9 5.2 Continuing Support Services.18
1.16 Agreement Termination..........9 5.3 Project Support Services....18
1.17 Geographic Scope...............9 5.4 IBM Information Network and
1.18 Governing Law..................9 Other Services..............20
PART 2 - WARRANTIES..................10 PART 6 - OPTIONS...................21
2.1 The IBM Warranties............10 6.1 Volume Discounts............21
2.2 Extent of Warranty............11 6.2 Maintenance Service Options.22
2.3 Items Not Covered by Warranty.11 6.3 Payment Options.............22
6.4 Special Options.............23
PART 3 - MACHINES....................12
3.1 Title.........................12
3.2 Risk of Loss..................12
3.3 Production Status.............12
3.4 Installation..................12
3.5 Licensed Internal Code........13
Z125-4575-00 1/91 Page 2 of 23
<PAGE>
IBM CUSTOMER AGREEMENT
PART 1 - GENERAL
______________________________________________________________________________
1.1 DEFINITIONS
CUSTOMER-SET-UP MACHINE is an IBM Machine that you set up according to
our instructions.
DATE OF INSTALLATION is the following:
1. for a Machine --
a. the business day after the day we install it or, if you defer
installation, make it available to you for installation;
b. the second business day after the end of a Customer-set-up
Machine's standard transit allowance period. We will allocate a
reasonable transit allowance period; or
c. the second business day after the arrival of a non-IBM Machine.
2. for a Program, the latest of --
a. the day after its testing period ends (this does not apply to
Program Packages);
b. 10 days after we ship it; or
c. the day, specified in a Transaction Document, on which we
authorize you to make an Additional License Copy or a copy
of a Distributed Feature.
DESIGNATED MACHINE is the Machine, that you identify to us by type/model
and serial (or plant order) number, on which you intend to use a Program
for processing. When we specify that you do not have to provide this
identification to us, the term "Designated Machine" means the single
Machine on which you may use the Program at any one time.
ENTERPRISE is any legal entity (such as a corporation) and the
subsidiaries it owns by more than 50 percent. The term "Enterprise"
applies only to the portion of the enterprise located in the United
States or Puerto Rico.
MACHINE is a machine, its features, conversions, upgrades, elements, or
accessories, or any combination of them. The term "Machine" includes an
IBM Machine and any non-IBM Machine (including other equipment) that we
may provide to you.
PRODUCT is a Machine or a Program.
PROGRAM is the following, including features and any whole or partial
copies:
1. machine-readable instructions;
2. a collection of machine-readable data, such as a data base; and
3. related materials, including documentation and listings, in any form.
The term "Program" includes an IBM Program and any non-IBM Program that
we may provide to you. The term does not include Licensed Internal Code
or Materials.
SERVICE is assistance or use of a resource (such as a network) we make
available to you.
SPECIFICATIONS is a document that provides information specific to a
Product. For a Machine, we call the document "Official Published
Specifications." For a Program, we call it "Licensed Program
Specifications" or "License Information."
SPECIFIED OPERATING ENVIRONMENT is the Machines and Programs with which
a Program is designed to operate, as described in the Program's
Specifications.
Z125-4575-00 1/91 Page 3 of 23
<PAGE>
1.2 AGREEMENT STRUCTURE
ATTACHMENTS
Some Products and Services have terms in addition to those we specify in
this Agreement. We provide the additional terms in documents called
"Attachments" which are also part of this Agreement. For example, we
describe the additional terms of IBM Information Network Services in an
Attachment. We make the Attachments available to you for signature.
TRANSACTION DOCUMENTS
For each order you place, we will provide to you the appropriate
"Transaction Documents" that confirm the specific details of your order.
The following are examples of Transaction Documents, with examples of the
information they may contain:
1. supplements (Machine quantity and type ordered, price, estimated
shipment date, and warranty period);
2. exhibits (eligible Products by category, discount schedules, and
available contract periods);
3. addenda (selected contract-period duration, start date, and total
quantity or revenue committed);
4. statements of work (project schedule, responsibilities, and charges);
and
5. invoices (item, quantity, price, amount due, and other typical invoice
information).
CONFLICTING TERMS
If there is a conflict among the terms in the various documents those of an
Attachment prevail over those of this Agreement. The terms of a Transaction
Document prevail over those of both of these documents.
OUR ACCEPTANCE OF YOUR ORDER
A Product or Service becomes subject to this Agreement when we accept your
order. We accept your order by doing any of the following:
1. sending you a Transaction Document;
2. shipping the Product; or
3. providing the Service.
YOUR ACCEPTANCE OF ADDITIONAL TERMS
You accept the additional terms in an Attachment or Transaction Document by
doing any of the following:
1. signing the Attachment or Transaction Document;
2. using the Product or Service, or allowing others to do so; or
3. making any payment for the Product or Service.
1.3 DELIVERY
We will use our best efforts to meet your delivery requirements for
Products and Services you order, and will inform you of their status. We
pay normal transportation charges for Products we ship to you.
Z125-4575-00 1/91 Page 4 of 23
<PAGE>
1.4 ELECTRONIC COMMUNICATIONS
Each of us may communicate with the other by electronic means. Both of us
agree to the following for all electronic communications:
1. an identification code (called a "USERID") contained in an electronic
document is legally sufficient to verify the sender's identity and the
document's authenticity;
2. an electronic document that contains a USERID is a signed writing; and
3. an electronic document, or any computer printout of it, is an original
when maintained in the normal course of business.
ELECTRONIC DATA INTERCHANGE
We may provide Electronic Data Interchange (call"EDI") Options to you.
Electronic invoicing and electronic payment are examples of these Options.
When using EDI Options, each of us agrees:
1. when a bank is involved, to pay our respective bank charges and to
promptly notify the other of any changes to the bank payment process;
and
2. to promptly notify the other of any changes to the technology, process,
or information upon which the EDI transactions are based.
We will specify respective responsibilities for the EDI Option you choose.
1.5 PRICES AND PRICE CHANGES
The following are the bases on which we may require the amount payable
for a Product or Service to be paid, with an example of each:
1. one-time (the price of a Machine);
2. recurring (a monthly charge for Maintenance Services); or
3. a combination of both (an initial charge and a monthly license charge
for a Program).
We will specify the amount and basis for the particular Product or Service.
PRICE INCREASES
We may increase recurring charges by giving you three months' written
notice. An increase applies on the first day of the applicable invoice
period on or after the effective date we specify in the notice.
We may increase one-time charges and hourly rates without notice.
However, an increase to one-time charges does not apply to you if 1) we
receive your order before the announcement date of the increase and 2)
one of the following occurs within three months after the announcement:
1. we ship you the Product;
2. with our authorization, you make an Additional License Copy of a
Program or a copy of a Distributed Feature; or
3. a Program's group-upgrade charge becomes due.
PRICE DECREASES
You receive the benefit of a decrease in charges for amounts which become
due on or after the effective date of the decrease.
Z125-4575-00 1/91 Page 5 of 23
<PAGE>
1.6 INVOICING, PAYMENT, AND TAXES
We invoice:
1. recurring charges (other than usage charges) for a Program and for
Maintenance Services in advance for the applicable invoice period;
2. usage charges following the period in which you incur them; and
3. all other charges when or after you incur them.
For a Product with a one-time charge, payment is due on its Date of
Installation. Recurring charges for a Product begin on its Date of
Installation.
You agree to pay as we specify in the invoice. You also agree to pay
amounts equal to any applicable taxes resulting from any transaction under
this Agreement. This does not include taxes based on our net income. You
are responsible for personal property taxes for each Product from the date
we ship it to you.
1.7 ADDITIONAL CHARGES
Depending on the particular Product, Service, or circumstances, additional
charges may apply. For example, if we are required to use other than
private automobile or scheduled public transportation to provide
Maintenance Services to you, we charge an additional amount. We will notify
you in advance if these charges apply.
1.8 TYPES OF SERVICE FOR MACHINES
We provide certain types of service for a Machine to keep it in, or restore
it to, good working order during its warranty period or while it is under
Maintenance Services. The following terms apply to both warranty service
and Maintenance Services.
Depending on the Machine, the service may be 1) a "Repair" service at your
location (called "On-site") or at one of our service locations (called
"Carry-in") or 2) an "Exchange" service, either On-site or Carry-in. We
will inform you of the available types of service for a Machine.
Under Maintenance Services, you may select the type of service from those
available for the Machine. We require that a Machine and its features have
the same type of service.
We offer On-site types of service 24 hours a day, seven days a week.
Carry-in types of service are available during the normal business hours of
our service locations.
When a type of service involves the exchange of a Machine or part, the item
we replace becomes our property and the replacement becomes yours. The
replacement may not be new, but will be in good working order.
Under Carry-in service, instead of delivering the failing Machine to us, if
you prefer, you may ship it (prepaid and suitably packaged) to a location
we designate. After we have repaired or exchanged the Machine, we will
return it to you at our expense.
Under On-site Exchange service, depending on the nature of the failure, we
may repair the failing Machine at your site instead of exchanging it.
We are responsible for loss of, or damage to, your Machine while it is 1)
in our possession or 2) in transit in those cases where we are responsible
for the transportation charges.
Z125-4575-00 1/91 Page 6 of 23
<PAGE>
You agree to:
1. obtain authorization from the owner to have us service a Machine that
you do not own;
2. where applicable, before we provide service --
a. follow the problem determination, problem analysis, and service
request procedures that we provide.
b. secure all programs, data, and funds contained in a Machine.
c. inform us of changes in a Machine's location, and
d. for a Machine with Exchange service, remove all features, parts,
options, alterations, and attachments not under our service. You
also agree to ensure that the Machine is free of any legal
obligations or restrictions that prevent its exchange;
3. be responsible for loss of, or damage to, a Machine in transit in those
cases where you are responsible for the transportation charges; and
4. on completion of Carry-in Repair service, connect a repaired Machine and
verify its operation.
1.9 PATENTS AND COPYRIGHTS
If a third party claims that a Product we provide infringes a patent or
copyright, we will defend you against that claim at our expense and pay all
costs, damages, and attorney's fees that a court finally awards, provided
that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to permit
us to enable you to continue to use the Product, or to modify or replace
it. If we determine that none of these alternatives is reasonably
available, you agree to return the Product to us on our written request.
We will then give you a credit equal to your net book value for the
Product, provided you have followed generally-accepted accounting
principles.
This is our entire obligation to you regarding any claim of infringement.
CLAIMS FOR WHICH WE ARE NOT RESPONSIBLE
We have no obligation regarding any claim based on any of the following:
1. your modification of a Product, or a Program's use in other than its
Specified Operating Environment;
2. the combination, operation, or use of a Product with any product, data,
or apparatus that we did not provide; or
3. infringement by a non-IBM Product alone, as opposed to its combination,
operation, or use as part of a system of Products that we provide to
you.
1.10 LIMITATION OF LIABILITY
Circumstances may arise where, because of a default on our part or other
liability, you are entitled to recover damages from us. In each such
instance, regardless of the basis on which you are entitled to claim
damages from us, we are liable only for:
1. payments referred to in our patent and copyright terms described above;
2. bodily injury (including death), and damage to real property and
tangible personal property; and
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3. the amount of any other actual loss or damage, up to the greater of
$100,000 or the charges (if recurring, 12 months' charges apply) for
the Product or Service that is the subject of the claim.
This limit also applies to any of our subcontractors and Program
developers. It is the maximum for which we are collectively responsible.
ITEMS FOR WHICH WE ARE NOT LIABLE
Under no circumstances are we liable for any of the following:
1. third-party claims against you for losses or damages (other than those
under the first two items listed above);
2. loss of, or damage to, your records or data; or
3. economic consequential damages (including lost profits or savings) or
incidental damages, even if we are informed of their possibility.
1.11 MUTUAL RESPONSIBILITIES
Both of us agree that under this Agreement:
1. neither of us will use the other's trademark, trade name, or other
designation in any promotion or publication without prior written
consent;
2. all information exchanged is nonconfidential. If either of us requires
the exchange of confidential information, it will be made under a
signed confidentiality agreement;
3. each is free to enter into similar agreements with others;
4. each grants the other only the licenses specified. No other licenses
(including licenses under patents) are granted;
5. each will allow the other reasonable opportunity to comply before it
claims that the other has not met its obligations; and
6. neither of us will bring a legal action more than two years after the
cause of action arose.
1.12 YOUR OTHER RESPONSIBILITIES
You agree:
1. not to assign this Agreement or your rights under it, delegate your
obligations, or resell any Service without prior written consent. Any
attempt to do so is void;
2. to acquire Machines with the intent to use them within your Enterprise
and not for reselling, leasing, or transferring to a third party, unless
either of the following applies --
a. you are arranging lease-back financing for the Machines, or
b. you purchase them without any discount or allowance, and do not
remarket them in competition with our authorized remarketers;
3. to allow us to install mandatory engineering changes (such as those
required for safety) on a Machine. Any parts we remove become our
property;
4. that you are responsible for the results obtained from the Products and
Services;
5. to comply with all applicable government export laws and regulations;
and
6. to provide us with full, free, and safe access to your facilities for us
to fulfill our obligations. If you become aware of any unsafe conditions
or hazardous materials to which our personnel would be exposed at any of
your facilities, you agree to promptly notify us.
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1.13 YOUR ADDITIONAL RIGHTS
You may have additional rights under certain laws (such as consumer
laws) which do not allow the exclusion of implied warranties, or the
exclusion or limitation of certain damages. If these laws apply, our
exclusions or limitations may not apply to you.
1.14 IBM BUSINESS PARTNERS
We have signed agreements with certain organizations (called "IBM
Business Partners") to promote, market, and support some of our
Products and Services. We have chosen these organizations because
of their skills and experience in a particular field.
When you order our Products or Services (marketed to you by these
organizations) under this Agreement, we confirm that we are
responsible for providing them to you under the warranties and other
terms of this Agreement. We are not responsible for 1) the actions of
these organizations, 2) any additional obligations they may have to
you, or 3) any products or services that they (and not us) may supply
to you.
1.15 CHANGES TO THE AGREEMENT TERMS
In order to maintain flexibility in our Products, Services, and
Options, we may change the terms of this Agreement by giving you
three months' written notice. However, these changes are not
retroactive. They apply, as of the effective date we specify in the
notice, only to new orders (those we receive on or after the date
of the notice) and to on-going transactions, such as licenses and
Services.
Otherwise, for a change to be valid, both of us must sign it.
Additional or different terms in any order or written communication
from you are void.
1.16 AGREEMENT TERMINATION
You may terminate this Agreement on written notice to us following the
expiration or termination of all your obligations.
Either of us may terminate this Agreement if the other does not comply
with any of its terms, provided the one who is not complying is given
written notice and reasonable time to comply.
Any terms of this Agreement which by their nature extend beyond its
termination remain in effect until fulfilled, and apply to respective
successors and assignees.
1.17 GEOGRAPHIC SCOPE
All your rights, all our obligations, and all licenses (except for
Licensed Internal Code and as specifically granted) are valid only in
the United States and Puerto Rico.
1.18 GOVERNING LAW
The laws of the State of New York govern this Agreement.
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IBM CUSTOMER AGREEMENT
PART 2 - WARRANTIES
- --------------------------------------------------------------------------------
2.1 THE IBM WARRANTIES
WARRANTY FOR IBM MACHINES
For each IBM Machine, we warrant that it:
1. is free from defects in materials and workmanship; and
2. conforms to its Specifications.
The warranty period for a Machine is a specified, fixed period. We
calculate its expiration from the Machine's Date of Installation.
During the warranty period, we provide warranty service under the
type of service we designate for the Machine or under the alternative
service you select under Maintenance Services.
For us to provide warranty service for a feature, conversion or upgrade,
we require that the Machine on which it is installed be 1) the
designated, serial-numbered Machine and 2) at an engineering-change
level compatible with the feature, conversion, or upgrade.
During the warranty period, we manage and install engineering changes
that apply to the Machine.
If a Machine does not function as warranted during the warranty period,
we will repair or replace it without charge. If we are unable to do so,
you may return it to us and we will refund your money.
WARRANTY FOR IBM PROGRAMS
For each warranted IBM Program, we warrant that:
1. we have the right to license it; and
2. it conforms to its Specifications.
The warranty period for a Program expires when its Program Services are
no longer available.
During the warranty period, we provide warranty service, without charge,
for a Program through Program Services. Program Services are available
for a warranted Program for at least one year following its general
availability. Therefore, the duration of warranty service depends on when
you obtain your license. If, during the first year after you obtain your
license, we are unable to make the Program function as warranted, you
may return it to us and we will refund your money.
WARRANTY FOR IBM SERVICES
For each IBM Service, we warrant that we perform it:
1. in a workmanlike manner; and
2. according to its current description contained in this Agreement, an
Attachment, or a Transaction Document.
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WARRANTY FOR SYSTEMS
Where we provide Products to you as a system, we warrant that they are
compatible and can operate with one another.
WARRANTY FOR INTEGRATED SYSTEMS
For each integrated system we deliver to you under a Statement of Work
for Systems Integration Services, we warrant that it meets its Completion
Criteria as specified in the Statement of Work.
The warranty period for an integrated system is a fixed period as
specified in the Statement of Work. It begins on the date we deliver the
system to you.
If an integrated system does not function as warranted during the
warranty period, we will correct the deficiency without charge. If we
are unable to do so, you may return the system to us and we will refund
your money.
2.2 EXTENT OF WARRANTY
If a Machine is subject to federal or state consumer warranty laws, our
statement of limited warranty included with the Machine applies in place
of these Machine warranties.
Misuse, accident, modification, unsuitable physical or operating
environment, operation in other than the Specified Operating Environment,
improper maintenance by you, or failure caused by a product for which
we are not responsible may void the warranties.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
2.3 ITEMS NOT COVERED BY WARRANTY
We do not warrant uninterrupted or error-free operation of a Product or
Service.
We will identify IBM Products and Services that we do not warrant.
We provide non-IBM Products and Services on an "AS IS" basis. However,
non-IBM manufacturers, suppliers, or publishers may provide their own
warranties to you.
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IBM CUSTOMER AGREEMENT
PART 3 - MACHINES
- --------------------------------------------------------------------------------
3.1 TITLE
When we accept your order, we agree to sell you the Machine described in
a Transaction Document. We transfer title to you or, if you choose, your
lessor when we ship the Machine. However, we reserve a purchase money
security interest in the Machine until we receive the amounts due. For
a feature, conversion, or upgrade involving the removal of parts which
become our property, we reserve the security interest until we receive
the amounts due and the removed parts. You agree to sign an appropriate
document to permit us to perfect our purchase money security interest.
3.2 RISK OF LOSS
We bear the risk of loss for the Machine through its Date of
Installation. Thereafter, you assume the risk.
3.3 PRODUCTION STATUS
Each Machine is manufactured from new parts, or new serviceable used
parts (which perform like new parts). In some cases, the Machine may
not be new and may have been previously installed. Regardless of the
Machine's production status, our warranty terms apply.
3.4 INSTALLATION
For the Machine to function properly, it must be installed in a suitable
physical environment. You agree to provide an environment meeting our
specified requirements for the Machine.
We design our standard installation procedures to ensure that each
Machine we install is in good working order and meets its Specifications.
We will successfully complete these procedures before we consider the
Machine installed.
You are responsible for setting up a Customer-set-up Machine (we provide
instructions to enable you to do so) and for the installation of a non-IBM
Machine.
MACHINE FEATURES, CONVERSIONS, AND UPGRADES
We sell features, conversions, and upgrades for installation only on
designated, serial-numbered Machines. You represent that you have the
permission of the owner (if you are not the owner of the Machine) and
any lien holders to 1) install features, conversions, and upgrades and
2) transfer removed parts to us.
Some of these transactions (called "Net-Priced" transactions) include
associated replacement parts. We provide these parts on an exchange
basis. All removed parts in a Net-Priced transaction become our property.
For a Net-Priced transaction, you agree to allow us to install it within
30 days of its delivery and to recover the removed parts. Otherwise, we
may terminate the transaction and you must return the feature,
conversion, or upgrade to us at your expense.
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3.5 LICENSED INTERNAL CODE
Certain Machines we specify (called "Specific Machines") use Licensed
Internal Code (called "Code"). We own copyrights in Code. We own all
copies of Code, including all copies made from them.
We will identify each Specific Machine in a Transaction Document. If you
are the rightful possessor of a Specific Machine, we grant you a license
to use the Code (or any replacement we provide) on, or in conjunction
with, only the Specific Machine, designated by serial number, for which
the Code is provided. We license the Code to only one rightful possessor
at a time.
Under each license, we authorize you to do only the following:
1. execute the Code to enable the Specific Machine to function according
to its Specifications;
2. make a backup or archival copy of the Code (unless we make one
available for your use), provided you reproduce the copyright notice
and any other legend of ownership on the copy. You may use the
copy only to replace the original, when necessary; and
3. execute and display the Code as necessary to maintain the Specific
Machine.
You agree to acquire any replacement for, or additional copy of, Code
directly from us in accordance with our standard policies and practices.
You also agree to use that Code under these terms.
You may transfer possession of the Code to another party only with the
transfer of the Specific Machine. If you do so, you must 1) either give
the other party all your copies of the Code or destroy them, and 2) give
the other party a copy of this page with the Specific Machine's
identification information filled in below. We license the other party
when it accepts these terms by initial use of the Code. These terms
apply to all Code you acquire from any source.
Your license terminates when you no longer rightfully possess the
Specific Machine.
ACTIONS YOU MAY NOT TAKE
You agree to use the Code only as authorized above. You may not do, for
example, any of the following:
1. otherwise copy, display, transfer, adapt, modify, or distribute the
Code (electronically or otherwise), except as we may authorize in
the Specific Machine's Specifications or in writing to you;
2. reverse assemble, reverse compile, or otherwise translate the Code;
3. sublicense or assign the license for the Code; or
4. lease the Code or any copy of it.
----------------------------------------------------------------------
INFORMATION FOR SUBSEQUENT LICENSEE OF LICENSED INTERNAL CODE
This page is copied from the IBM Customer Agreement and is
provided to the subsequent licensee when Code is transferred.
The Specific Machine being transferred is identified as:
Type/Model____________ Serial Number ________________
The following definitions are provided for the subsequent
licensee of the Code:
1. "We" means International Business Machines Corporation (IBM);
2. "Transaction Document" does not apply to you. The above
Type/Model and Serial Number identify the Specific Machine
to you;
3. "You" means the subsequent licensee of the Code; and
4. "Specifications" means IBM's Official Published Specifications.
----------------------------------------------------------------------
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[IBM LOGO] CUSTOMER AGREEMENT
PART 4 - PROGRAMS
- --------------------------------------------------------------------------------
4.1 GRANT OF LICENSE
When we accept your order, we grant you a license for the Program.
Programs are copyrighted and licensed (not sold). We do not transfer title to
Programs to you.
4.2 LICENSE DETAILS
Under each license, we authorize you to:
1. use the Program's machine-readable portion on only the Designated
Machine, unless --
a. the Designated Machine is inoperable. You may then use the
Program on a backup Machine,
b. the Designated Machine cannot assemble or compile the Program.
You may then assemble or compile it on another Machine,
c. we grant an "Installation License." You may then use the Program
on any other Machine in the same or adjoining rooms as the
Designated Machine, or
d. we grant a "Location License." You may then use the Program
on any other Machine in the same building with the same mailing
address as the Designated Machine.
If you change the Designated Machine, you agree to notify us of the
change and its date;
2. store the Program's machine-readable portion in, transmit it through,
and display it on, Machines associated with the Designated Machine;
3. do the following to support your authorized use as described above --
a. modify the Program's machine-readable instructions or data, or
merge them into another Program, and
b. make copies of the Program, provided you reproduce the copyright
notice and any other legend of ownership on each copy or partial
copy; and
4. use any portion of the Program we mark restricted (for example,
"Restricted Materials of IBM") only to --
a. resolve problems related to the use of the Program, and
b. modify the Program so that it will work together with other
products.
You agree to comply with any additional terms (for example, a usage
restriction) that a Program's Specifications may contain. We provide the
Specifications to you with the Program. For an "AS IS" Program, any
additional terms are contained in a document called "Notice of
Availability."
ACTIONS YOU MAY NOT TAKE
You agree not to do any of the following:
1. sublicense, assign, or transfer the license for any Program;
2. distribute any Program to any third party; or
3. reverse assemble, reverse compile, or otherwise translate any
Program.
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4.3 DISTRIBUTED FEATURES
Some Programs have features (called "Distributed Features") that are
designed to work with those Programs (called "Associated Programs").
After we accept your order for a Distributed Feature, we authorize you to:
1. make a copy of the Distributed Feature and its documentation; and
2. distribute the copy to, and use it on, a machine other than the
Designated Machine of the Associated Program. You may use the copy on
only one Machine at a time. Persons using a Machine outside of your
Enterprise may use the copy only to access the Associated Program.
4.4 ADDITIONAL LICENSE COPIES
You may order additional licenses for Programs. If you prefer, for each
license we grant, rather than shipping you another copy of the Program,
we will authorize you to make an additional copy (called an "Additional
License Copy").
For some Programs, you may make a copy under a Distributed System
License Option (called a "DSLO" license). We charge less for a DSLO
license than we do for the original license (called the "Basic"
license). In return for the lesser charge, you agree to do the following
while licensed under a DSLO:
1. have a Basic license for the Program;
2. provide problem documentation and receive Program Services (if any)
only through the location of the Basic license; and
3. distribute to, and install on, the DSLO's Designated Machine, any
release, correction, or bypass that we provide for the Basic license.
4.5 PROGRAM TESTING
We provide a testing period for certain Programs to help you evaluate if
they meet your needs. The testing period for a Program starts 1) 10 days
after we ship it or 2) on the day we authorize you to make an Additional
License Copy. We will inform you of the duration of the Program's testing
period.
For the first order for each Distributed Feature, the testing period is
the same as its Associated Program.
We do not provide a testing period for a Program under a DSLO license.
4.6 PROGRAM PACKAGES
We provide certain Programs together with their own license agreements.
These Programs (called "Program Packages") are licensed under the terms
of the agreements provided with them. This Agreement's patent and
copyright terms apply to IBM Program Packages.
For a Program Package, we may specify that:
1. Additional License Copies apply. If so, these copies are subject to
the terms of the Program Package's agreement, except that you may not
transfer them; and
2. a testing period applies. If so, and you return the Program Package
to us before the end of the testing period, we will refund your
money.
If a Program Package has Distributed Features, this Agreement's terms
regarding Distributed Features apply.
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4.7 PROGRAM PROTECTION
For each Program, you agree to:
1. if it is a data base, allow access to it only to your employees;
2. ensure that anyone who uses it (accessed either locally or remotely)
does so only for your authorized use and complies with our terms
regarding Programs; and
3. maintain records of all copies.
4.8 PROGRAM SERVICES
We provide Program Services for warranted Programs and for selected other
Programs. If we can reproduce your reported problem in the Specified
Operating Environment, we will issue defect correction information, a
restriction, or a bypass. We provide Program Services for only the
unmodified portion of a current release of a Program.
We provide Program Services 1) on an on-going basis (with at least six
months' written notice before we terminate services for a Program), 2)
until the date we specify, or 3) for a period we specify.
4.9 VARIABLE-CHARGE PROGRAMS
We may place a Machine in a Machine group. The charges for some Program
licenses depend on the group of the Designated Machine. We call these
Programs "Variable-Charge" Programs. Variable charges include graduated
charges and processor-based charges. We will specify the group for a
Machine and will inform you of any changes.
For these licenses, the following apply:
1. if you change (including upgrade or downgrade) a Designated Machine
to a Machine in another group, you may incur a group-upgrade charge
or a changed recurring charge. You agree to promptly notify us of the
date of such a change;
2. if we reassign a Designated Machine to a Machine group with different
charges, Program licenses with one-time charges due or paid before
the reassignment are not affected. Otherwise, our price change terms
apply; and
3. if a change or reassignment results in a lower charge, we do not give
credits or refunds for one-time charges already due or paid.
4.10 LICENSE TERMINATION
You may terminate the license for a Program on one month's written notice
or at any time during the Program's testing period. For some Programs, if
you terminate the license and replace that Program with another we specify,
we only require you to pay an upgrade charge.
We may terminate any license we grant in this Part if you do not meet your
obligations regarding Programs.
You agree to destroy all copies of the Program within three months after
license termination. However, you may keep a copy in your archives.
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[IBM LOGO] CUSTOMER AGREEMENT
PART 5 - SERVICES
- --------------------------------------------------------------------------------
5.1 MAINTENANCE SERVICES
You may select the type of service from those available for the Machine.
When we accept your order, we agree to service the Machine described in
a Transaction Document. Based on the type of service, we will restore
the Machine to good working order or exchange it. We may also perform
preventive maintenance, including lubrication, adjustments, and
replacement of parts. We manage and install engineering changes that
apply to the Machine.
We will inform you of the date on which Maintenance Services begin. We
may inspect the Machine within one month following that date. If the
Machine is not in an acceptable condition for service, you may 1) have
us restore it for a charge or 2) withdraw your request for Maintenance
Services and we will refund any amounts you have paid to us for its
service.
For a Machine under a usage plan, you agree to provide us with the meter
reading as of the last working day of the period that the minimum
maintenance charge covers.
We provide Maintenance Services for selected non-IBM Machines only when
they are connected to certain IBM Machines. When a type of service
involves the exchange of a non-IBM Machine, the replacement may not be
identical.
Maintenance Services do not cover accessories and certain parts, such as
frames and covers. In addition, Maintenance Services do not cover
service of a Machine damaged by misuse, accident, modification,
unsuitable physical or operating environment, improper maintenance by
you, or failure caused by a product for which we are not responsible.
ALTERNATIVE SERVICE DURING WARRANTY
For certain Machines, at any time during the warranty period, you may
select a different type of service from that which we designate for the
Machine. For example, if you prefer On-site service to Carry-in, it may
be available. We will inform you of the available types of service for
the Machine and the available alternative service periods. We provide
the alternative type of service for an additional charge. When the
alternative service ends, we will continue Maintenance Services for the
Machine under the same type of service you selected.
MAINTENANCE SERVICES TERMINATION
You may terminate Maintenance Services for a Machine on one month's
written notice to us under any of the following circumstances:
1. after it has been under Maintenance Services for at least six
months;
2. if you remove it from productive use within your Enterprise;
3. as of the effective date of an increase in Maintenance Services
charges; or
4. if you terminate coverage for a Maintenance Service Option under
our terms for 1) removal of Machine type from eligibility or 2)
increased total adjusted charges for Maintenance Services.
We may terminate Maintenance Services for a Machine on three months'
written notice, provided it has been under Maintenance Services for at
least one year.
Either of us may terminate service for any Machine if the other does not
meet its obligations concerning Maintenance Services. On termination of
service for a Machine, we will give you any applicable credit.
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5.2 CONTINUING SUPPORT SERVICES
We provide Continuing Support Services on a contract-period basis to
assist you in such areas as improving the availability of your systems
and improving your productivity. We provide the terms specific to a
Service in an Attachment. If we make a change to the terms of an
Attachment that 1) affects your current contract period and 2) you
consider unfavorable, on your request, we will defer it until the end of
that contract period.
We will specify the eligible Products, applicable prerequisites and
minimum commitments, exit-option percents, and available contract
periods for a Service. We will also inform you periodically of any
changes. These changes apply only to orders that we confirm on or after
the effective date of the change.
When we accept your order, we will confirm the specific details of the
Service in a Transaction Document. You may select a start date for the
Service that is within three months following the effective date we
specify in the Transaction Document.
During a contract period, we may increase charges. An increase becomes
effective on the next anniversary of the start of a contract period,
following the effective date we specify in the notice. When an increase
results in a change to your total monthly charge for a Service of more
than the exit-option percent we specify, you may terminate that Service
on the effective date of the increase. Adjustment or termination charges
do not apply in this case.
You may request a change to the Services you have selected on one
month's notice. If we agree, we will confirm the change to you with
applicable adjustments in charges.
Each of us agrees to notify the other (before your current contract
period expires) if they do not intend to renew.
CONTINUING SUPPORT SERVICES TERMINATION
You may terminate a Continuing Support Service by providing us one
month's written notice upon fulfillment of any minimum commitments.
The termination of Services with contract periods longer than one year
results in adjustment charges. In this case, you agree to pay the lesser
of:
1. the difference between the total charges you paid through the
termination date and those you would have paid for the shorter
contract period;
2. the monthly charge multiplied by the applicable adjustment charge
factor; or
3. the total charges remaining to complete the contract period.
5.3 PROJECT SUPPORT SERVICES
The Project Support Services we make available to you include providing
general assistance on a technical task (such as writing programs),
providing consulting services, acting as a prime contractor to deliver
an information handling function, and providing Systems Integration
Services.
When we accept your order, we agree to provide the Services described in
the Statement of Work. We require a separate Statement of Work, signed
by both of us, for each project.
We manage the project unless the Statement of Work specifies that you
manage it. If you are responsible, then we only provide Services to
assist you.
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<PAGE>
The Statement of Work includes:
1. our respective responsibilities;
2. an estimated schedule which we provide for planning purposes;
3. the specific conditions, if any, (called the "Completion Criteria")
that we are required to meet to fullfill our obligations; and
4. applicable charges and any other terms.
Each of us agrees to make reasonable efforts to carry out our respective
responsibilities according to the estimated schedule. However, if
Completion Criteria are applicable, then the project is complete when we
meet those criteria.
CHANGES TO THE STATEMENT OF WORK
When both of us agree to change a Statement of Work, we will prepare a
written description of the change (called a "Change Authorization"). The
Change Authorization becomes effective when we provide it to you. It need
not be signed, unless either of us requests signature.
Any change in the Statement of Work may affect the charges, estimated
schedule, or other terms. Depending on the scope of the requested change,
we may charge you for our effort to analyze it. We will then give you a
written estimate of the charges for the analysis. We will perform the
analysis only on your written authorization.
PERSONNEL
Each of us will authorize a person to represent us during the project.
Each will 1) address all notices to the other's representative and
2) promptly notify the other in writing if this person is replaced.
Each of us is responsible for supervising and controlling only our own
personnel.
We will try to honor your requests regarding the assignment of our
personnel to your project. However, we reserve the right to determine
the assignment of our personnel.
OWNERSHIP AND LICENSE
During a project, we may deliver to you work product (called
"Materials"), such as programs, program listings, programming
tools, documentation, reports, and drawings.
The Statement of Work will specify if Materials are applicable
to the project. It will identify them as being "Type I Materials,"
"Type II Materials," or otherwise as we both agree.
Type I Materials are those, created during the project, in which you will
have all right, title, and interest (including ownership of copyright).
We will retain one copy of the Materials. You grant us 1) an irrevocable,
nonexclusive, worldwide, paid-up license to use, execute, reproduce,
display, perform, distribute (internally and externally) copies of, and
prepare derivative works based on Type I Materials and 2) the right
to authorize others to do any of the former.
Type II Materials are those in which we or third parties have all right,
title, and interest (including ownership of copyright). We will deliver
one copy of the Materials to you. We grant you an irrevocable,
nonexclusive, worldwide, paid-up license to use, execute, reproduce,
display, perform, and distribute (internally only) copies of Type II
Materials.
Each of us agrees to reproduce the copyright notice and any other
legend of ownership on any copies made under the licenses granted in
this Part.
Z125-4575-00 1/91 Page 19 of 23
<PAGE>
PROJECT SUPPORT SERVICES TERMINATION
You may terminate a project on written notice to us. We may terminate a
project if you do not meet your obligations concerning it. Upon
termination, we will stop our work in an orderly manner as soon as
practical.
You agree to pay us for all Services we provide and any Materials we
deliver though the project's termination. Payment includes any charges
we incur in terminating subcontracts.
ADDITIONAL TERMS FOR SYSTEMS INTEGRATION SERVICES
When the Statement of Work specifies Systems Integration Services, we
provide you with an integrated system that may consist of a combination
of Products, Services, Materials, and other items. We design, develop,
deliver, install, and support the system as described in the Statement
of Work.
The Statement of Work contains the Completion Criteria. We will inform
you when we meet each of them. You then have 10 days to inform us if
you believe that we have not met the Completion Criteria.
5.4 IBM INFORMATION NETWORK AND OTHER SERVICES
IBM INFORMATION NETWORK SERVICES
The IBM Information Network (called "IBM IN") Services we make available
to you include access to, and use of, IBM IN machines, programs,
networking facilities, and associated communications and support
services. We provide the terms specific to IBM IN Services in an
Attachment.
ON-LINE SERVICES
We make on-line Services available to you, including access to certain
of our information data bases. We provide these Services to you through
a connection to IBM IN. We provide the terms specific to an on-line
Service in an Attachment. We may specify that you accept the terms of
IBM IN Services as a prerequisite to an on-line Service.
OTHER SERVICES
We make other Services available to you that are not associated with the
Services described in this Part. For these Services, we provide all the
additional terms in Attachments.
Z125-4575-00 1/91 Page 20 of 23
<PAGE>
IBM CUSTOMER AGREEMENT
PART 6 - OPTIONS
- --------------------------------------------------------------------------------
6.1 VOLUME DISCOUNTS
We provide discounts for certain Products based on the volume of
business you agree to do with us (called your "Commitment") during
a contract period. You may make a Commitment based on either Product
quantity or revenue. Revenue for a Product is its single-unit charge,
less any discounts or allowances.
We will specify the eligible Products, their categories, available
contract periods, upper-limit percents, and adjustment charge factors.
We will inform you periodically of any changes. An unfavorable change
(and all changes related to it) applies to an existing Commitment only
if you accept it in writing. Related changes become effective at the
same time. We will also inform you if we withdraw eligible Products from
marketing. We then accept orders you place for these Products subject to
their availability.
Unless we specify otherwise, we do not discount Program upgrades,
Program features ordered separately from Programs, accessories, or
field-installed Machine features, conversions, or upgrades.
END USER CERTIFICATION
You agree to acquire the Products for use only within your Enterprise
and not for remarketing. We call this representation "End User
Certification." We provide the discounts to you based on End User
Certification.
HOW YOU MAY OBTAIN THE DISCOUNTS
If you wish to obtain the discounts, you agree to sign an Addendum
specifying your Commitment, and selected contract-period start date and
duration.
During the contract period, you may increase your Commitment or extend
the contract period (subject to our approval) by signing a revised
Addendum. If you extend, you agree to increase your Commitment so that
the new discount precent is at lease equal to your current discount
percent. Any increased discount percent applies to all eligible Products
for which Date of Installation is on or after the date we receive your
signed Addendum.
HOW WE APPLY THE DISCOUNTS
We apply the discount to the single-unit charges of eligible Products
that you acquire from us during the contract period. The charges are the
lesser of 1) those generally available at the time of acquisition or 2)
the announced charges in effect on the date we receive the initial
Addendum, subject to our price change terms described below.
We count specified Products that you acquire from our authorized
remarketers when we receive the require certification. Adjustment
charges do not apply to these Products.
We may place some Products in a dependent category with an associated
controlling category. To determine the discount percent applicable to
either category, we count quantities or revenue for only those Products
in the controlling category.
PRICE CHANGES
During a contract period, we may increase or decrease charges. We apply
your discount to the new charges as follows:
1. we establish a maximum charge (called an "Upper Limit") for each
Product in a committed category for each year of a contract period.
We determine the Upper Limit by increasing the announced charge in
effect, as of the date we receive the initial Addendum,
Z125-4575-00 1/91 Page 21 of 23
<PAGE>
by a certain amount. We calculate this amount by multiplying that
charge by the upper-limit percent we specify at the time of your
Commitment;
2. for an increase, we apply the discount to either the increased charge
or the Upper Limit, whichever is less; and
3. for a decrease, we apply the discount to the decreased charge,
provided you accept any related changes in terms we may have made after
your Commitment. Otherwise, you may select 1) the decreased charge
without discount or 2) the discounted charge available to you before
the decrease.
ADJUSTMENT CHARGES
If you have not met your Commitment by the end of the contract period,
you agree to pay adjustment charges. The adjustment charge for each
Product is either:
1. the difference between the discounted amount we charged you and the
discounted amount which you were entitled to receive; or
2. the result of multiplying the adjustment charge factor by the number
of discount percentage points between what we gave you and what you
were entitled to receive.
We will inform you which method we use for a particular Product.
For a revenue-based Commitment, the total of the adjustment charges will
not be more than the difference between your Commitment and the actual
revenue you attained.
INTERNATIONAL DISCOUNTS
For our international customers, we provide volume discounts based
on worldwide Commitments. To allow you to participate in such a
Commitment, this Agreement may be modified by a signed international
agreement. You, your international enterprise coordinator, and we will sign
the relevant Transaction Document, unless the coordinator exempts you from
signing. That Transaction Document becomes part of this Agreement.
6.2 MAINTENANCE SERVICE OPTIONS
We provide Maintenance Service Options for certain Machines. If you wish
to obtain the benefit of lower charges available under an Option, you
agree to assume additional, specified responsibilities. We provide the
terms specific to an Option in an Attachment.
We will specify the eligible Machine types, eligible types of service,
available disount percents and contract periods, exit-option percents, and
notice requirements for termination of each contract period, as
applicable to each Option. We will also inform you periodically of any
changes. We will defer an unfavorable change (and all changes related to
it) until the end of your contract period, if you request it in writing
before the effective date of the change. Related changes become effective
at the same time.
6.3 PAYMENT OPTIONS
EXTENDED MAINTENANCE OPTION
You may select the Extended Maintenance Option (called the "EMO") for
certain Machines. Under this Option, we adjust your Maintenance Services
charges based on your prepayment of those charges during an available
contract period.
We will specify the eligible Machine types and available contract
periods. We will also inform you periodically of any changes. A change
applies only to Machines you add under this Option on or after the
effective date of the change.
2125-4575-00 1/91 Page 22 of 23
<PAGE>
The Transaction Document will list the Machines covered and the dates of
coverage for the contract period you have selected for each Machine.
You may select EMO in addition to other Maintenance Service Options. We
then adjust the machine's EMO charge based on the applicable discounts
which you are entitled to receive under those Options. While under this
Option, you agree to maintain coverage under all the Services and other
Options on which we base the Machine's EMO charge.
For a machine not yet installed or set up, coverage starts on its Date
of Installation. For an installed Machine, coverage starts on a
mutually-agreed-to date. If applicable, the contract period includes the
machine's warranty period.
We calculate the EMO charge for a Machine using the announced Maintenance
Services charges and any applicable discounts in effect for the Machine
when coverage begins. EMO charges are not refundable after coverage has
started for the Machine.
Both of us agree that if a feature, conversion, or upgrade is installed
on a machine while it is under this Option 1) an additional charge may
apply and 2) the feature, conversion, or upgrade is subject to the
remaining portion of the contract period.
If we increase the EMO charge, the increase does not apply to a Machine
not yet installed or set up, unless we give you at least three months'
notice before its scheduled date of shipment. If we decrease the EMO charge
before coverage has begun for a Machine, you receive the benefit of the
decrease.
We will give you at least three months' notice of a machine's eligibility
for renewal. At the end of your contract period, we will continue
Maintenance Services for the Machine (if available), unless you request us
not to do so.
If you transfer coverage for a Machine to a third party, you agree to
inform that party 1) of the applicable terms of this Agreement and 2) that
it must notify us in writing of the transfer, the location of the Machine,
and acceptance of coverage. If that party does not wish to maintain
coverage under all the Services and other Options on which we base the
Machine's EMO charge, you agree to pay the transfer charge that we specify.
INVOICING OPTIONS
We make Invoicing Options available to you for certain Products and
Services to provide flexibility in payment terms. We provide the terms
specific to an Option in an Attachment.
We will specify the eligible Products, Services, and charges, and the
available contract periods, invoicing schedules, and environments which
may be covered by an Option. We will also inform you periodically of any
changes.
Together, we will estimate your requirements for the applicable Products
and Services. We use this estimate to determine the total charges that we
will invoice, distributed according to the schedule you select. These
invoiced amounts replace the applicable charges otherwise due. Depending
on the Option, the total charges may be subject to adjustments.
The Transaction Document, signed by both of us, will list the date from
which we provide the selected Option to you and its other details.
6.4 SPECIAL OPTIONS
In order to meet your specific requirements, we may provide Special
Options to you. Under these Options, we are willing to provide special
terms and tailor our processes for you. We will describe our mutual
commitments under a Special Option in a Transaction Document.
Z125-4575-00 1/91 Page 23 of 23
<PAGE>
EXHIBIT G
BASE PERCENTAGE
FOR COMMISSIONS FOR
GROUP COUNTRIES IN GROUP COUNTRIES IN GROUP
- ----- ------------------ ------------------
- ----------------------------------------------------------------------------
CANADA [*]
- ------
Canada
EMEA-A [*]
- ------
United Kingdom
Sweden
Norway
France
Finland
Denmark
Spain
Germany
EMEA-B TO BE DETERMINED
- ------ ----------------
Italy
Hungary
Russia
Poland
ASIA/PACIFIC-A [*] ([*] if no customer set up)
- --------------
Hong Kong
Taiwan
Singapore
Thailand
Turkey
New Zealand
Australia
Malaysia
Japan
ASIA/PACIFIC-B TO BE DETERMINED
- -------------- ----------------
South Korea
* For Sales Per Project up to [*], Percentage is [*]; for amounts
between US$1-2 million, Percentage is [*]; for amounts over [*],
Percentage is [*]
If Invoiced Amounts reach the upper limit of the range of Base Percentage,
the Commissions will be calculated by applying the higher percentage to
the portion of the Invoiced Amount below such limit and the lower
percentage of the balance.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 24 -
<PAGE>
TASKS FOR ELIGIBILITY* FOR COMMISSIONS WITH RESPECT TO EACH COUNTRY LISTED IN
THIS EXHIBIT G:
CableData (or its subsidiaries or in-country distributors) shall:
A. GENERAL ACTIVITIES:
1. promote customer acquisition of CableData/IBM products and services;
2. monitor worldwide cable television market activity in the country;
3. develop a market and product strategy for CableData DDP/I products
used with IBM products and services in the country;
4. provide DDP/I advertising, sales brochures and participate in cable
television trade shows in the relevant country;
5. set up hardware and install software Eligible Products** (perform the
work necessary for installation of Commissionable Products such that
installation can be achieved in accordance with the delivery schedule);
6. provide marketing education on DDP/I products to its in-country
representatives and in-country IBM personnel;
7. provide, subject to availability of personnel, marketing assistance
to IBM for DDP/I cable television accounts (for countries in EMEA-A
group only);
8. identify cable television market opportunity(ies) in the relevant
country(ies);
B. ACCOUNT-SPECIFIC ACTIVITIES:
1. provide, as CableData deems appropriate, relevant marketing activity,
such as--
- responding to issued RFP/RFB/RFQ for DDP/I products used with IBM
products;
- monitoring and follow-up on sales leads;
- actively participating in initial and follow-on DDP/I sales calls;
- handling all contract negotiations for DDP/I products;
- monitoring country and account activity for customer requirements
for DDP/I;
- advising IBM of customer's requirements for additional IBM products
as CableData becomes aware of such requirements; and
* IBM-Sacramento (not IBM Subsidiary within the country) is responsible
for determining CableData's compliance with the tasks to maintain
eligibility for payment of Commission.
** This task not required for Commission in Canada
- 25 -
<PAGE>
IBM [LOGO]
EXHIBIT H
AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- -------------------------------------------------------------------------------
The Customer (you) and International Business Machines Corporation (IBM)
agree that the following terms and conditions apply when one of the parties
(Discloser) discloses Confidential Information (Information) to the other
(Recipient) under this Agreement. You and IBM agree that our mutual objective
under this Agreement is to provide appropriate protection for information
while maintaining our ability to conduct our respective business activities.
1. ASSOCIATED CONTRACT DOCUMENTS
Each time one of the parties wishes to disclose specific information to
the other, the Discloser will issue a Supplement to this Agreement
(Supplement) before disclosure.
The Supplement will identify the Recipient's person designated to be its
Point of Contact for the disclosure and will contain the Initial and Final
Disclosure Dates. If either of these dates is omitted from the Supplement,
such date will be deemed to be the actual date of disclosure. Information
becomes subject to this Agreement on the Initial Disclosure Date. The
Supplement will also contain a nonconfidential description of the specific
information to be disclosed and any additional terms and conditions for that
Information.
The only time you and IBM are required to sign the Supplement is when it
contains additional terms and conditions. When signatures are not required,
the Recipient indicates acceptance of Information under the terms and
conditions of this Agreement by participating in the disclosure, after
receipt of the Supplement.
2. DISCLOSURE
The Discloser and the Recipient's Point of Contact will coordinate and
control the disclosure. Information will be disclosed either:
a) in writing;
b) by delivery of items;
c) by initiation of access to Information, such as may be contained in a
data base; or
d) by oral and/or visual presentation.
Information should be marked with a restrictive legend of the Discloser.
If Information is not marked with such legend or is disclosed orally, 1) the
Information will be identified as confidential at the time of disclosure and
2) the Discloser will promptly provide the Recipient with written
confirmation.
- -------------------------------------------------------------------------------
PAGE 2 IS ALSO PART OF THIS AGREEMENT. The parties acknowledge that they
have read this Agreement, understand it, and agree to be bound by its terms
and conditions. Further, they agree that the complete and exclusive statement
of the agreement between the parties relating to this subject shall consist
of this Agreement and its Supplements. This statement of the agreement
supersedes all proposals or other prior agreements, oral or written, and all
other communications between the parties relating to this subject. Any
reproduction of this Agreement by reliable means will be considered an
original of this document.
International Business Machines Customer name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
----------------------------------- -----------------------------------
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: January 19, 1992 Date: January 19, 1992
Agreement number: Customer number:
Strategic Alliance Agreement
IBM Branch Office number: Customer address:
2969 Prospect Park Drive
IBM Branch Office address: Rancho Cordova, CA 95670
520 Capitol Mall
Sacramento, CA 95814
Page 1 of 2
<PAGE>
3. OBLIGATION OF CONFIDENTIALITY
The Recipient will use the same care and discretion to avoid disclosure,
publication or dissemination of information as its uses with its own similar
information that it does not wish to disclose, publish or disseminate. The
Recipient may use Information for any purpose which does not violate such
obligation of confidentiality.
The Recipient may disclose Information to:
a) its employees and employees of its parent and subsidiary companies
who have a need to know; and
b) any other party with the Discloser's prior written consent.
Before disclosure to any of the above parties, the Recipient will have a
written agreement with such party sufficient to require that party to treat
Information in accordance with this Agreement.
The Recipient may disclose Information to the extent required by law.
However, the Recipient must give the Discloser prompt notice and make a
reasonable effort to obtain a protective order.
4. CONFIDENTIALITY PERIOD
Disclosed Information continues to be subject to this Agreement for two
years following the Final Disclosure Date.
5. EXCEPTIONS
No obligation of confidentiality applies to any Information that the
Recipient:
a) already possesses without obligation of confidentiality;
b) develops independently; or
c) rightfully receives without obligation of confidentiality from a third
party.
No obligation of confidentiality applies to any Information that is, or
becomes, publicly available without breach of this Agreement.
In addition, no obligation of confidentiality applies to any ideas, concepts,
know-how, or techniques contained in Information that are related to the
Recipient's business activities (Knowledge). However, this does not give the
Recipient the right to disclose, except as set forth elsewhere in this
Agreement, 1) the source of Knowledge, 2) any financial, statistical or
personnel data or 3) the business plans of the Discloser.
Neither this Agreement nor any disclosure of Information grants the Recipient
any license under any patents or copyrights.
6. DISCLAIMERS
THE DISCLOSER PROVIDES INFORMATION ON AN "AS IS" BASIS.
The Discloser will not be liable for any damages arising out of use of
Information.
Disclosure of Information containing business plans is for planning
purposes only. The Discloser may change or cancel its plans at any time.
Therefore, use of such information is at the Recipient's own risk.
7. GENERAL
This Agreement does not require either party to disclose or to receive
Information.
Neither party may assign its rights or delegate its duties or obligations
under this Agreement without prior written consent. Any attempt to do so is
void.
The Recipient will comply with all applicable United States and foreign
export laws and regulations.
IBM may modify the terms and conditions of this Agreement by giving you
three months' written notice. Any such modification will apply only to
Information for which the Initial Disclosure Date is on or after the
effective date specified in the notice. Otherwise, only a written agreement
signed by you and IBM can modify this Agreement.
Either party may terminate this Agreement by providing one month's written
notice to the other. Any provisions of this Agreement which by their nature
extend beyond its termination will remain in effect beyond such termination
until fulfilled and will apply to either party's successors and assigns.
If there is a conflict between the terms and conditions of this Agreement
and a Supplement, those of the Supplement prevail. Except as modified by a
Supplement, the terms and conditions of this Agreement remain in full force
and effect.
The laws of the State of New York govern this Agreement.
Page 2 of 2
<PAGE>
IBM [LOGO]
SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- -------------------------------------------------------------------------------
Customer name and address: Reference Agreement number:
U.S. Computer Services Strategic Alliance Agreement
d/b/a CableData
2969 Prospect Park Drive Supplement number:
Rancho Cordova, CA 95670
IBM Branch Office address: IBM Branch Office number:
520 Capitol Mall
Sacramento, CA 95814 Customer number:
- -------------------------------------------------------------------------------
Discloser: Name and Address of Recipient's Point
of Contact:
IBM
-------
You
X
-------
Initial Disclosure Final Disclosure
Date: [*] Date: Termination of Strategic
------------- Alliance Agreement
------------------------------
USE THE ACTUAL DATE OF DISCLOSURE OR USE THE DATE ON WHICH THE DISCLOSURE
THE DATE ON WHICH ACCESS TO INFORMATION, IS TO BE COMPLETED OR THE DATE ON
SUCH AS MAY BE CONTAINED IN A DATA BASE, WHICH ACCESS TO INFORMATION WILL BE
IS TO BE INITIATED. INFORMATION BECOMES TERMINATED. THE CONFIDENTIALITY
SUBJECT TO THIS SUPPLEMENT AND THE PERIOD FOR INFORMATION EXTENDS FROM
REFERENCED AGREEMENT ON THIS DATE. THIS DATE.
NOTE: BOTH DATES MUST BE PROVIDED, EVEN IF THEY ARE THE SAME.
- -------------------------------------------------------------------------------
REMINDER: THE DISCLOSER MUST PROVIDE THE RECIPIENT WRITTEN CONFIRMATION
PROMPTLY AFTER A DISCLOSURE THAT 1) IS AN ORAL PRESENTATION, 2) CONSISTS OF
THE DELIVERY OF ITEMS THAT ARE NOT MARKED WITH A RESTRICTIVE LEGEND OF THE
DISCLOSER OR 3) CONSISTS OF ACCESS TO INFORMATION THAT IS NOT MARKED WITH A
RESTRICTIVE LEGEND OF THE DISCLOSER.
PAGE 2 AND 1 CONTINUATION PAGE(S) ARE ALSO PART OF THIS SUPPLEMENT. The
parties acknowledge that they have read this Supplement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that this
Supplement and the referenced Agreement are the complete and exclusive
statement of the agreement between the parties, superseding all proposals or
other prior agreements, oral or written, and all communications between the
parties relating to this subject. Any reproduction of this Supplement by
reliable means will be considered an original of this document.
The only time you and IBM are required to sign this Supplement is when it
contains additional terms and conditions.
International Business Machines Customer Name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
Name (type or print): Name (type or print):
Date: January 10, 1992 Date: January 10, 1992
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 1
<PAGE>
IBM [LOGO]
SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- --------------------------------------------------------------------------------
REFERENCE AGREEMENT NUMBER: SUPPLEMENT NUMBER:
Strategic Alliance Agreement 1
- --------------------------------------------------------------------------------
CONFIDENTIAL INFORMATION:
THE FOLLOWING IS A NONCONFIDENTIAL DESCRIPTION OF INFORMATION THE DISCLOSER
WISHES TO DISCLOSE.
U.S. Computer Services' DDP/SQL and DDP/I source code, object code,
documentation, anticipated strategic business plans, anticipated targeted market
countries
ADDITIONAL TERMS AND CONDITIONS, IF ANY:
All of the above shall be held in confidence (except where information is
subject to an Exception as set forth in Paragraph 4 of the Agreement for
Exchange of Confidential Information) whether or not they are marked with a
restrictive legend.
The Recipient may use information solely for the purpose of fulfilling its
obligations under the Strategic Business Agreement between IBM and Customer
dated as of January 18, 1992.
- --------------------------------------------------------------------------------
/ / Check this box if there are continuation pages, including attached
additional terms and conditions. Also, enter the number of "Continuation
Page(s)" on page 1 of this Supplement.
- --------------------------------------------------------------------------------
Z125-4323-00 3/90 Page 2
<PAGE>
ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT
THIS ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT (the "Addendum")
is made and entered into as of June 4, 1993 by and between U.S. COMPUTER
SERVICES, a California corporation doing business as CableData and having its
principal place of business at 2969 Prospect Park Drive, Rancho Cordova,
California 95670-6006 ("CableData"), and INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation having a place of business at 400 Capitol
Mall, Sacramento, California 95814 ("IBM").
RECITALS
A. CableData and IBM are the parties to that certain Strategic Business
Agreement dated as of January 19, 1992 (the "Strategic Business Agreement")
pursuant to which they were to cooperate in the development by CableData of
certain revised versions of CableData's products that were to be compatible with
designated IBM operating systems and hardware, including IBM's UNIX-based and
POSIX-based AIX operating systems, and were to be primarily suitable for use by
customers outside the U.S. It is CableData's intent to limit the number of
platforms for its products.
B. CableData and IBM now wish to modify the Strategic Business Agreement
in order to provide for the development by CableData of certain further revised
versions of CableData's products that will be compatible with IBM RISC
System/6000 and IBM's UNIX-based and POSIX-based AIX operating systems
("Designated IBM Products"), but which are suitable for use by domestic
customers within the U.S.
NOW THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Addendum, IBM and CableData hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Except as otherwise provided herein, all
capitalized terms used in this Addendum shall have the meaning given to them in
the Strategic Business Agreement. Notwithstanding the foregoing, when used in
this Addendum, the following terms shall have the meanings provided below:
- 1 -
<PAGE>
(a) "DDP/SQL" means Release 2.7 or lower number release of
CableData's existing proprietary cable television subscriber management
applications software.
ARTICLE II
DEVELOPMENT OF DOMESTIC DDP/SQL
Section 2.1 MUTUAL COOPERATION. The parties' respective obligations under
this Addendum shall commence on the date first written above. Each party shall
use all reasonable efforts to facilitate the completion of the development by
CableData of a version of DDP/SQL that will be compatible with Designated IBM
operating systems and hardware, including IBM's UNIX-based and POSIX-based
AIX operating systems, and will be primarily suitable for use by CableData
customers within the U.S. Specifically, the parties wish to permit CableData
to develop a set of CableData-owned system libraries and a separate
CableData-owned application software product (DDP/SQL) which can be operated on
Designated IBM Products and which is appropriate for CableData customers in the
U.S. It is also the parties' intention that when DDP/SQL and Designated IBM
Products are configured in a single system, that system will perform within
agreed and commercially reasonable specifications and parameters. If the parties
disagree on a technical issue during the development process, or if, when
DDP/SQL and any Designated IBM Products are configured in a single system, that
system does not perform within agreed and commercially reasonable specifications
and parameters, then the parties shall confer in good faith concerning such
issue or failure to perform, and shall negotiate in good faith to agree on joint
action to resolve such issue or failure. Such joint action may include
additional development efforts on terms and conditions acceptable to the
parties, in their discretion. Each party shall further use all reasonable
efforts to cooperate in good faith with the other party to achieve the
[*] objectives described herein.
Section 2.2 PORTING OF SYSTEM LIBRARIES.
(a) Both parties shall cooperate as specified in this Addendum and in
the Strategic Business Agreement to [*]. In such [*] work, the parties will
also maintain [*] Libraries with domestic standards. For the term of this
Addendum, the parties agree to cooperate in future modification of the [*].
(The parties understand that such cooperation for future matters does not
include [*].) It is the intent of the parties that such [*] will work [*]
capabilities of [*].
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
<PAGE>
(b) CableData shall [*] as described in Section 2.2(a) of this
Addendum. During the [*] process and thereafter to the extent reasonably
necessary, IBM shall in its sole discretion provide the services of an
adequate number of [*] to assist CableData [*]. All such [*] shall have
appropriate skill levels with [*] experience on [*] and experience in [*]
using [*] for such purposes. The assignment of such engineers shall be to
consult with CableData on [*] issues. These activities shall be done under
the guidance and acceptance of CableData. Upon mutual agreement of the
parties, some or all of such [*] shall be assigned to work at [*] during a
portion of the [*] phase.
(c) IBM shall provide technical information with respect to [*],
including all [*] call information made publicly available.
Section 2.3 [*]. CableData shall use reasonable efforts to [*] DDP/SQL,
including necessary modifications to [*] and [*] DDP/SQL, to be capable of [*]
to be capable of operating [*] and the [*] standards using an [*].
Section 2.4 JOINT PLANNING COMMITTEE. The parties shall consult with
other on at least a quarterly basis regarding progress [*] DDP/SQL in
accordance with an agree-to [*] schedule prepared by CableData. To
facilitate such consultations and to support their mutual efforts under this
Agreement, the parties shall establish a Joint Planning Committee composed of
representatives designated by each party. This body shall meet at least once
per calendar quarter during the term of this Agreement, and more frequently
as deemed necessary by the parties. The Joint Planning Committee shall consult
on the [*] DDP/SQL [*] schedules, or other aspects of cooperation between the
parties as contemplated by this Agreement. Among the representatives to the
Joint Planning Committee designated by each party, one (1) person shall be a
[*] to speak for that party with respect to [*] matters. The designated
technical representative for CableData shall be its [*]. IBM shall notify
CableData in writing of the name of the designated technical representative
for IBM within fourteen (14) days following the execution of this Addendum by
both parties. The parties' designated representatives to the Joint Planning
Committee may be replaced at any time, by written notice of the designating
party to the other
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 3 -
<PAGE>
party. The Joint Planning Committee shall meet in locations and at times
reasonably acceptable to both parties. Each party shall be responsible for its
own costs and expenses in attending and participating in meetings of the Joint
Planning Committee.
ARTICLE III
FINANCIAL MATTERS
Section 3.1 [*]. To assist CableData in financing a
portion of the costs and expenses to be incurred by CableData [*] DDP/SQL
as contemplated by this Addendum, [*]:
(a) IBM shall pay CableData an initial installment of [*] on
July 1, 1993.
(b) IBM shall pay CableData [*] each, on the first business day of
each calendar quarter, commencing on October 1, 1993, provided, however, that
IBM will continue to pay such installments only so long as the [*] referenced
in Section 2.4 is substantially being met.
(c) In the event that the parties do not enter into the further
business relationship contemplated in Section 4.1 by January 1, 1994, then
further installment payments shall be held in abeyance until such business
relationship is entered into. If no such relationship is entered into by
February 1, 1994, CableData shall repay to IBM installments previously received
under this Addendum and shall not be entitled to the remaining installments, if
any.
(d) In the event that CableData does not make an Initial Public
Disclosure (as defined Section 4.5(b)) by January 1, 1994, then further
installment payments shall be held in abeyance until such Initial Public
Disclosure is made. If such Initial Public Disclosure is not made by February
1, 1994, CableData shall repay to IBM installments previously received under
this Addendum and shall not be entitled to the remaining installments, if any.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 4 -
<PAGE>
Section 3.2 (a) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THE
STRATEGIC BUSINESS AGREEMENT. The parties acknowledge that, for purposes of
Section 3.2 of the Strategic Business Agreement, this Addendum constitutes an
agreement regarding CableData marketing in the United States of a CableData
subscriber management software product comparable in function to DDP/I on an IBM
platform and that, accordingly, pursuant to Section 3.2(a) of the Strategic
Business Agreement, all payments that would otherwise be due under Section
3.2 of the Strategic Business Agreement after the date of this Addendum are
hereby suspended. In accordance with Section 3.2 of the Strategic Business
Agreement as now modified, such payments shall continue to accrue (up to a
maximum of [*] less payments previously made under such Section 3.2 to
IBM) until the earlier of (i) the date on which IBM has invoiced an aggregate of
[*] of equipment sold (excluding sales by IBM to IBM's leasing
subsidiary and excluding sales of IBM PCs and associated software licenses for
which the IBM Central California Trading Area does not receive credit by IBM and
excluding used equipment sales by any entity) or leased, software licensed or
services provided by IBM in the United States for use with DDP/SQL on an IBM
platform or (ii) the date this Addendum or the Strategic Business Agreement
expires or terminates. If (i) is the earlier date, CableData shall not be
required to pay to IBM any amounts suspended hereunder or any other remaining
amounts due under this Addendum or Section 3.2 of the Strategic Business
Agreement. If (ii) is the earlier date, CableData shall pay to IBM the total
amount of the suspended payments hereunder; provided, however, that if this
Addendum or the Strategic Business Agreement are terminated pursuant to Section
6.2(a) due to breach by IBM, then CableData shall not be required to pay to IBM
any such amounts.
(b) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THIS ADDENDUM.
If this Addendum terminates or expires prior to the date that on which IBM has
invoiced an aggregate of [*] of equipment sold (excluding sales by IBM
to IBM's leasing subsidiary and excluding sales of IBM PCs for which the IBM
Central California Trading Area does not receive credit by IBM and excluding
used equipment sales by any entity) or leased, software licensed or services
provided by IBM in the United States for use with DDP/SQL on an IBM platform in
addition to the [*] referenced in Section 3.2(a) above, then CableData
shall pay to IBM a prorated portion of [*], which proration shall be
a percentage that is equal to the percentage by which the additional amounts
invoiced in excess of those set forth in Section 3.2(a) were short of
[*], provided, however, that if this Addendum or the Strategic Business
Agreement are terminated pursuant to Section 6.2(a) due to breach by IBM, then
CableData shall not be required to pay to IBM any such amounts.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
(c) REPORTING UNDER SECTION 3.2(a)(i) AND 3.2(b). The parties
understand that sale, lease, license or service amounts in Sections 3.2 (a)(i)
and 3.2(b) are for software, hardware or services provided to the end user by
any entity, except as specifically excluded above, to the extent that IBM
invoices some entity at some point for such hardware, software or services
provided to the end-user. CableData shall periodically during the term of this
Agreement provide reports to IBM setting forth sales, leases, licenses and
services for which CableData determines should be credited under Section
3.2(a)(i) or 3.2(b). IBM shall have thirty (30) days to correct, verify or
dispute in good faith the report and the amount claimed therein.
ARTICLE IV
OTHER AREAS OF COOPERATION
Section 4.1 (a) ADDITIONAL BUSINESS RELATIONSHIP. Following the signature
of this addendum by both parties, CableData and IBM shall begin good faith
discussions for the purpose entering into, on or before December 31, 1993, an
additional business relationship applicable to the marketing of IBM products for
use with DDP/SQL.
It is expected that this business relationship will incorporate the form
and substance of an existing IBM alternate marketing channel. The choice of
such channel is at the election CableData. CableData's election is subject to
CableData's acceptance of the applicable alternate marketing channel's terms
and conditions and IBM's approval of CableData for such channel.
(b) [*]. If, at any time during the term of the Strategic Business
Agreement, IBM enters into [*] business relationship to that entered into by
the parties pursuant to Section 4.1(a) [*] (specifically, without limiting
the generality of the foregoing, any person or entity that provides
subscriber management products or [*], which is [*] the terms or conditions
provided to CableData under its business relationship with IBM, [*].
Section 4.2 IBM [*] CENTER IN SACRAMENTO. CableData shall cooperate in
assisting IBM to develop understanding of [*] in Sacramento, California.
Such cooperation by CableData shall include [*]. In addition, CableData
shall assist, [*],
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
<PAGE>
[*] to customers of CableData who are actual or prospective users of DDP/SQL
by sales leads, introductions, references and such other assistance as
CableData shall determine from time to time in its discretion. In the event
IBM successfully markets such selected services and software for which
CableData is eligible to receive a fee under an additional business
relationship with IBM, IBM will still pay such fee to CableData.
Section 4.3 TECHNICAL DIRECTION AND INFORMATION. The advance notices of
new product developments and releases and forecasts of 12 to 18-month trends and
directions required pursuant to Section 4.2 of the Strategic Business Agreement
shall after the date of this Addendum also be required with respect to new
product developments and releases, and to such forecasts, by each party that its
technical representative under the Strategic Business Agreement has determined
have applicability and appropriateness to DDP/SQL. All such notices and
forecasts shall be subject to the same restrictions as otherwise apply under
Section 4.2 of the Strategic Business Agreement.
Section 4.4 INFORMATION. The evaluation of [*] with respect to
DDP/I required pursuant to Section 4.3(c) of the Strategic Business Agreement
shall after the date of this Addendum also be provided by IBM with respect to
DDP/SQL [*].
Section 4.5 MARKETING SUPPORT.
(a) [*] MARKETING MANAGER (CLIENT EXECUTIVE). Within thirty (30)
days following the date of this Addendum, either (i) IBM shall add the
primary responsibility for managing and facilitating, as required, IBM's
cooperation with CableData in marketing DDP/SQL [*] (ii) IBM shall appoint,
for a minimum of two (2) years and thereafter shall have on its staff in
local IBM offices in the Sacramento, California area during the term of this
Addendum for such time as CableData [*] DDP/SQL [*].
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 7 -
<PAGE>
(b) JOINT MARKETING EFFORTS AND PUBLICITY. The parties agree that
there shall be no public dissemination or release of information regarding this
Addendum or their relationship pursuant to this Addendum until such time as
CableData shall deem appropriate. It is CableData's intent to disclose to its
User's Group at a meeting on [*] at the National Cable Television Convention
in [*], CableData's intention [*], and to disclose to such Users Group that
disclosure of the UNIX-based alternate platform vendor shall be available
within 45-60 days. It is CableData's further intention that, no later than
[*], it will disclose that the [*] (the "Initial Public Disclosure"). IBM
understands that premature release of information could be extremely
injurious to CableData. At such time as CableData shall deem appropriate for
release of information, IBM and CableData shall cooperate in preparing and
disseminating an initial press release describing their relationship pursuant
to this Addendum, and subsequent press releases concerning [*] DDP/SQL [*]
pursuant to this Addendum, as appropriate. The designated representative
appointed by each of CableData and IBM pursuant to Section 4.4(b) of the
Strategic Business Agreement to coordinate the parties' joint participation
in business and trade shows, exhibitions, and similar events, cooperative
marketing and communications with distributors and customers, shall also
coordinate such joint participation by the parties with respect to DDP/SQL.
Notwithstanding the foregoing or any other provision of this Addendum or the
Strategic Business Agreement to the contrary, neither party shall release any
press release mentioning the relationship or activities under this Addendum
during the term of the Strategic Business Agreement without the prior written
approval of the designated representative of the other. Without limiting the
generality of the foregoing sentence, IBM shall not, without the prior
written consent of CableData's designated representative, disclose the
existence or terms of the domestic relationship or activities within the U.S.
under this Addendum to any party, including without limitation any employee
or agent of CableData, not identified in writing by CableData to IBM.
Section 4.6 SALES SUPPORT.
(a) IBM shall provide reasonable training and assistance to
CableData's direct sales force in selling [*] products at
IBM's then-current list prices for such training.
(b) IBM shall further provide [*] information to
CableData from IBM's [*] Center in Sacramento.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 8 -
<PAGE>
Section 4.7 EQUIPMENT UNDER IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
PROGRAM. CableData shall be entitled to purchase [*] systems at a discount of
[*] pursuant to the terms and conditions set forth in Attachment A to this
Addendum.
Section 4.8 CURE FOR FAILURE TO ENTER INTO ADDITIONAL BUSINESS
RELATIONSHIP. Notwithstanding the provisions of Section 3.1(c), if the business
relationship is not entered into by January 1, 1994, the parties shall continue
to negotiate in good faith for up to one (1) additional month. If, during this
period, the business relationship is entered into, the payment that would have
been made on January 1, 1994, shall be paid immediately to CableData and further
installments shall be paid in accordance to the original schedule.
Section 4.9 CLONES. CableData is free to sell clones of the RISC
System/6000 not manufactured by IBM for use with DDP/SQL provided that it
mutually agrees with IBM on a structure for allowing IBM to participate in these
opportunities to a degree which is similar to IBM's participation in the porting
of DDP/SQL.
ARTICLE V
PROPRIETARY RIGHTS
Section 5.1 INCORPORATION BY REFERENCE. The terms of Sections 5.1, 5.4 and
5.5 of the Strategic Business Agreement shall apply fully to the activity
contemplated by this addendum.
Section 5.2 LICENSES.
(a) For the term of the Strategic Business Agreement, CableData
grants to IBM a non-exclusive and nontransferable license to use one (1) copy of
DDP/SQL in machine-executable code only, for IBM's internal purposes only in
connection with this Addendum and to make one (1) archival copy for back-up
purposes.
(b) IBM hereby grants to CableData, its subsidiaries and
distributors, and its and their respective customers, mediate and immediate, an
irrevocable, non-exclusive, worldwide, nontransferable, paid-up license under
all present and future IBM patents to make, have made, use, have used, lease,
license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT, including
derivative works thereof, either alone or in combinations with equipment,
insofar as any
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 9 -
<PAGE>
infringement of such patents would otherwise arise in whole or in part from
the performance of IBM's obligations under this Addendum.
(c) Each party grants the other party only the licenses specified. No
other licenses, including licenses under patents, are granted.
Section 5.3 CONFIDENTIALITY. The existence and terms of this Addendum
shall be deemed to be confidential and subject to the restrictions applicable
to confidential information as set forth in Section 5.3 of the Strategic
Business Agreement, which shall apply fully to the activity contemplated by
this Addendum.
ARTICLE VI
TERM AND TERMINATION
Section 6.1 TERM AND TERMINATION. This Addendum shall become effective
on the date first written above and shall continue in effect thereafter until
January 19, 1998, on which date it shall expire. Any termination of the
Strategic Business Agreement in accordance with its terms shall be deemed not
to effect a simultaneous termination of this Addendum and any termination of
this Addendum in accordance with its terms shall be deemed not to effect a
simultaneous termination of the Strategic Business Agreement, unless either
party elects otherwise.
Section 6.2 TERMINATION.
(a) TERMINATION FOR BREACH. Either party may terminate this Addendum,
effective upon dispatch of written notice of termination to the other party,
upon the breach by such other party of any of its material obligations under
this Addendum and failure to cure such breach within ninety (90) days after
receipt of notice specifying the breach. The right to terminate shall be in
addition to any other remedies available in law or equity, which remedies are
expressly retained.
If IBM terminates this Addendum under this Section 6.2(a) for breach of
this Addendum by CableData, then, on the effective date of such termination,
the provisions of Section 3.2(b) of this Addendum shall apply.
- 10 -
<PAGE>
If CableData terminates this Addendum under this Section 6.2(a) for
breach of this Addendum by IBM, then, on the effective date of such
termination, IBM shall pay to CableData any remaining scheduled installments
that would have been due to CableData in subsequent months under Section 3.1
of this Addendum if the termination had not occurred, up to a total of
[*]. This is IBM's sole responsibility for breach.
(b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH.
CableData may in its sole discretion, upon ninety (90) days' prior written
notice to IBM, terminate this Addendum at any time, without breach by IBM. On
the effective date of termination under this Section 6.2(b), CableData shall
refund to IBM all funds advanced to CableData under Section 3.1 of this
Addendum.
(c) TERMINATION BY IBM FOR REASONS OTHER THAN CABLEDATA BREACH. IBM may
in its sole discretion, upon ninety (90) days' prior written notice to
CableData, terminate this Addendum at any time, without breach by CableData.
On the effective date of termination under this Section 6.2(c), IBM shall pay
to CableData any remaining scheduled installments that would have been due to
CableData in subsequent months under Section 3.1 of this Addendum if the
termination had not occurred.
Section 6.3 EFFECT OF EXPIRATION OR TERMINATION. Except as otherwise
expressly stated in Section 6.2 of this Addendum or in the following
sentence, upon any expiration or termination of this Addendum all rights and
obligations of each party in this Addendum shall expire and be of no further
force or effect, and each party shall be entitled to retain all funds, fees
and payments that it has received from the other party under this Addendum
and prior to the effective date of such expiration or termination.
Notwithstanding the foregoing, no expiration or earlier termination of this
Agreement shall relieve either party of its rights or obligations as
described in Article V of this Addendum, which rights and obligations are
expressly intended to survive any such expiration or termination.
ARTICLE VII
GENERAL
Section 7.1 BALANCE OF STRATEGIC BUSINESS AGREEMENT UNCHANGED. Except
as expressly provided in this Addendum, all provisions, terms and conditions
of the Strategic Business Agreement shall remain unchanged and in full force
and effect.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 11 -
<PAGE>
Section 7.2 INCORPORATION BY REFERENCE. The terms of Articles V and VII
of the Strategic Business Agreement are incorporated by reference herein and
shall be deemed a part of this Addendum as fully as if set forth in their
entirety herein.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
date and year first written above.
"CABLEDATA" "IBM"
U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS
a California corporation MACHINES CORPORATION,
a New York corporation
By: /s/ James C. Castle By: /s/ W. Bernard Bowler
-------------------------- -----------------------------
James C. Castle W. Bernard Bowler
Chief Executive Officer Central California Trading Area
General Manager
- 12 -
<PAGE>
ATTACHMENT A TO ADDENDUM
DATA BASE : ALET - PAGE: 1
- ------------------------------------------------------------------------------
NUMBER 392-216
DATE 920922
CATEGORY GD00, GD70
TYPE Marketing
TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MODIFICATION
CORRECTN (CORRECTED ON SEPTEMBER 25, 1992)
In the title, the word "Promotion" has been changed to
"Program".
ABSTRACT The IBM RISC System/6000 (R) Developer Discount Program
has been modified again. This document supersedes the
following IBM Marketing Announcements:
- 391-068, dated May 14, 1991
- 391-156, dated October 2, 1991
- 391-201, dated November 26, 1991
- 392-017, dated January 21, 1992
- 392-055, dated March 17, 1992
- 392-081, dated April 21, 1992.
Effective immediately, the IBM Customer Agreement (ICA)
Exhibit for the IBM RISC System/6000 Developer Discount
(Z125-4742) has been withdrawn.
Products eligible under this program are listed in the
attached IBM RISC System/6000 Developer Discount Program's
Machines and Licensed Programs list, which has been updated to
include the following products:
Processors:
- IBM RISC System/6000 7013 Model 580
- IBM RISC System/6000 7015 Model 980
- IBM 7245 Power Visualization System Models 001, 002, 003,
and 004.
Model Conversions:
- IBM RISC System/6000 Model 7013 Model 53H to 58F
- IBM RISC System/6000 Model 7013 Model 550 to 58F
- IBM RISC System/6000 Model 7013 Model 560 to 58F
- IBM RISC System/6000 Model 7015 Model 930 to 98E
- IBM RISC System/6000 Model 7015 Model 950 to 98E
- IBM RISC System/6000 Model 7015 Model 95E to 98E
- IBM RISC System/6000 Model 7015 Model 970 to 98E
- IBM RISC System/6000 Model 7015 Model 97E to 98E
Displays:
- IBM 1091 Model O51 Display.
Storage Media:
- IBM 7204 Model 001 SCSI Disk Drive
- IBM 7206 Model 001 Tape Drive
- IBM 7207 Model 012 Tape Drive
- IBM 7208 Model 011 Tape Drive
- IBM 7209 Model 001 Optical Disk Drive.
Peripherals:
- IBM 7246 Model 001 Video Controller
Eligible Programs:
<PAGE>
DATA BASE : ALET - PAGE: 2
- Encina Server for AIX/6000 (TM) (5696-240)
- Encina Structured File Service for AIX/6000 (5696-237)
- Encina Monitor for AIX/6000 (5696-239)
- Encina Peer-to-Peer Executive for AIX/6000 (5696-238)
- Encina Peer-to-Peer Gateway for AIX/6000 (5696-347)
- AIX (R) Visualization Data Explorer/6000 (5756-057)
- AIX High-Availability Cluster Multi-Processing/6000
(5765-111)
- AIX DCE Base/6000 (5765-117)
- AIX DCE Security Server/6000 (5765-118)
- AIX DCE Cell Directory Server/6000 (5765-119)
- AIX DCE Enhanced File Server/6000 (5765-121).
This will be the last dedicated IBM Marketing
Announcement to modify the list of products available through
this program. In the future, customers should contact
marketing representatives to determine new product eligibility.
No other changes have been made to the existing terms
and conditions of this program, which is described below in
its entirety.
The RISC System/6000 Developer Discount Program
provides eligible customers with the opportunity to acquire
workstations, AIX Development Toolkits, selected peripherals,
and licensed RISC System/6000 programs at a substantial
discount. Eligible customers include selected hardware and
software vendors, and selected IBM Academic Information
Systems (ACIS) application authors.
No other discount or promotional offering can be
combined with this program. IBM reservers the right to modify
or withdraw this offering at any time.
(R) Registered trademark of International Business Machines
Corporation.
(TM) Trademark of International Business Machines Corporation.
PRODNO 7013 7208 5696-240 5696-347 5765-118
7015 7209 5696-237 5756-057 5765-119
7204 1091 5696-239 5765-111 5765-121
7206 7246 5696-238 5765-117
<PAGE>
DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 3
IMKTG MARKETING INFORMATION
This program is intended to increase the availability of quality
products by providing an attractively priced RISC System/6000
development offering to selected hardware and software vendors, and
selected ACIS application authors.
In the future, products will be added to the program based on the
following guidelines:
- The product must be eligible for a Demonstration Discount of [*];
application programs eligible for a Demonstration Discount,
however, do not qualify for the Developer Discount.
- A hardware product must attach to the RISC System/6000. A
software product must be able to run on the RISC System/6000.
MARKETING CHANNELS
- IBM US -- Direct
MARKETING ACTION REQUIRED
Marketing representatives should become familiar with this
program and encourage the participation of qualifying developers.
Only products that can be ordered under contract number 44871 are
eligible for a developer's discount.
If you have questions on information contained in this document,
send a PROFS (R) note to ATLVM1(SVDDP).
IADMIN ADMINISTRATIVE INFORMATION
PROGRAM ELIGIBILITY
Customers must be approved by Software Vendor Operations. Approvals
will be limited to US-based developers who agree to develop and market
(or make available) RISC System/6000 hardware or software products.
To initiate a request for a Developer Discount, submit a
completed RS6000SV form, which is available on AEFORMS. For
additional information, send a PROFS note to ATLVM1(SVDDP).
CONTRACT ADMINISTRATION
Each new approved developer must sign the IBM Customer Agreement
Attachment for IBM RISC System/6000 Developer Discount (Z125-4740),
and the IBM Customer Agreement Addendum for the IBM RISC System/6000
Developer Discount (Z125-4741). Upon completion of development, the
developer must sign the IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000 (Z125-4743).
ORDERING INFORMATION
When ordering the eligible products under this program, follow
the normal ordering instructions and use contract number 44871.
This special contract number will enable the program orders to be
processed at the stated discount. If the special contract number was
omitted at order entry, add it by using MODIFY prior to shipment or
PURPREP after shipment but prior to installation.
Orders are based on a completed Addendum for IBM RISC System/6000
Developer Discount (Z125-4741) that is signed by the customer.
ATTACHMENT INFORMATION
The following are related to this announcement letter:
- 392-216-1A* Z125-4740, IBM Customer Agreement Attachment for IBM
RISC System/6000 Developer Discount
- 392-216-1B* Z125-4741, IBM Customer Agreement Addendum for IBM
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 4
RISC System/6000 Developer Discount
- 392-216-1C* Z125-4743, IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000
* This item may be printed on your 3820 printer via the
following method:
- While browsing this announcement letter on HONE, enter the
fastpath name "DAWNHOST LIST" (to allow selective printing from
list) or "DAWNHOST ALL" (to print all asterisked items for this
letter) at the HONE entry prompt arrow.
<PAGE>
DATA BASE : ALET - PAGE: 5
OVERVIEW ADDITIONAL INFORMATION
For each development machine purchased, the developer may select RISC
System/6000 peripherals at a 50% discount. In addition, for each
machine obtained, one copy of each RISC System/6000 program on the
attached list may be acquired at a 50% discount.
ACIS reserves the right to select, from a nominated pool of
candidate applications, only those applications that ACIS wants
supported, and thereby selectively offers the faculty/researcher
application author the opportunity to participate in the RISC
System/6000 Developer Discount Program.
Hardware vendors will be selected based on their ability to
provide products that enhance the overall marketability of the RISC
System/6000 product family, with emphasis on products not currently
part of the RISC System/6000 offering.
CUSTINFO PUBLICATIONS
Refer to the individual announcements for publications concerning
the hardware, licensed programs, and peripherals in this offering.
EDUCATION SUPPORT
Developers wishing to subscribe to a technical quarterly
publication, THE AIXPERT, should call 800-627-8363.
Other users may subscribe by ordering bill-of-forms number
GBOF-1199 from the Systems Library Subscription Service (SLSS). Users
without electronic access to SLSS may subscribe using SLSS order
number G120-1816 and specify GBOF-1199 as the publication number.
ORDERING TERMS AND CONDITIONS
- An approved developer must sign the ICA and its Attachment for
IBM RISC System/6000 Developer Discount (Z125-4740), along with
the ICA Addendum for the IBM RISC System/6000 Developer Discount
(Z125-4741).
- The developer must agree to use the products acquired for each
development system to develop, test, demonstrate and/or maintain
hardware and software products developed under this program for a
period of 12 months following the shipment of the IBM products.
- Upon completion of such development, the developer will provide
to IBM the IBM Customer Agreement Certification of Compatibility
with the IBM RISC System/6000 (Z125-4743), and announce and make
available a product that is compatible with the RISC System/6000.
- Developers who have completed development of their RISC
System/6000-compatible product and have submitted the required
Certification of Compatibility (Z125-4743) to IBM have an
additional 12 months to acquire eligible products at a discount
for their installed development systems. These products include
only model conversions, peripherals and programs eligible for a
developer discount.
- Products acquired under this development program are intended
primarily for development purposes and not for resale, sub-lease,
or rental for a period of 12 months following the shipment of the
IBM product.
- A purchase limit of ten RISC System/6000 systems exists per
development establishment. Up to ten Xstation terminals may be
<PAGE>
DATA BASE : ALET - PAGE: 6
purchased with each system.
- On request by the developer, newly announced products eligible
for a developer's discount may be added to a current contract.
- IBM reserves the right to limit the number of RISC System/6000
systems available to each development establishment.
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED
PROGRAMS
The following hardware and licensed programs are eligible for a 50%
discount:
ELIGIBLE HARDWARE
Processors:
IBM RISC System/6000 7011 Model 220
IBM RISC System/6000 7011 Model 22G
IBM RISC System/6000 7011 Model 22W
IBM RISC System/6000 7012 Model 32H
IBM RISC System/6000 7012 Model 340
IBM RISC System/6000 7012 Model 350
IBM RISC System/6000 7013 Model 52H
IBM RISC System/6000 7013 Model 53H
IBM RISC System/6000 7013 Model 550
IBM RISC System/6000 7013 Model 560
IBM RISC System/6000 7013 Model 580
IBM RISC System/6000 7015 Model 950
IBM RISC System/6000 7015 Model 970
IBM RISC System/6000 7015 Model 980
IBM 7245 Power Visualization System Models 001,
002, 003, and 004
Model Conversions:
IBM RISC System/6000 7012 Model 320 to 32E
IBM RISC System/6000 7013 Model 520 to 530
IBM RISC System/6000 7013 Model 520 to 53E
IBM RISC System/6000 7013 Model 520 to 55E
IBM RISC System/6000 7013 Model 530 to 55E
IBM RISC System/6000 7013 Model 530 to 56F
IBM RISC System/6000 7013 Model 53H to 55E
IBM RISC System/6000 7013 Model 53H to 56F
IBM RISC System/6000 7013 Model 53H to 58F
IBM RISC System/6000 7013 Model 540 to 55S
IBM RISC System/6000 7013 Model 550 to 56F
ELIGIBLE HARDWARE
Model Conversions:
IBM RISC System/6000 7013 Model 550 to 58F
IBM RISC System/6000 7013 Model 560 to 58F
IBM RISC System/6000 7015 Model 930 to 97E
IBM RISC System/6000 7015 Model 930 to 98E
IBM RISC System/6000 7015 Model 950 to 97E
IBM RISC System/6000 7015 Model 950 to 98E
IBM RISC System/6000 7015 Model 95E to 97E
IBM RISC System/6000 7015 Model 95E to 98E
IBM RISC System/6000 7015 Model 970 to 98E
IBM RISC System/6000 7015 Model 97E to 98E
Displays:
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DATA BASE : ALET - PAGE: 7
IBM 1091 Model 051 Display
IBM 5081 Model 16 Graphics Display
IBM 5081 Model 19 Graphics Display
IBM 6091 Model 19 Color Display
IBM 6091 Model 16 Color Display
IBM 6091 Model 23 Color Display
IBM 8507 Model 001 Personal System/2 (R)
Monochrome Display
IBM 8508 Model 001 Personal System/2 Monochrome
Display
IBM 8512 Model 001 Personal System/2 Color
Display
IBM 8513 Model 001 Personal System/2 Color
Display
IBM 8514 Model 001 Personal System/2 Color
Display
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED
PROGRAMS
CONT'D.
ELIGIBLE HARDWARE
Displays:
IBM 8515 Model 021 Personal System/2 Color
Display
IBM 8517 Model 001 Color Display
IBM 8518 Model 001 Color Display
Maximum Quantity = one display unit per processor.
Storage Media:
IBM 7203 Model 001 External Portable Disk Drive
IBM 7204 Model 001 SCSI Disk Drive
IBM 7204 External Disk Drive Model 320
IBM 7206 Model 001 Tape Drive
IBM 7207 Model 001 150 MB External 1/4-Inch
Cartridge Tape Drive
IBM 7207 Model 011 525 MB External 1/4-Inch
Cartridge Tape Drive
IBM 7207 Model 012 Tape Drive
IBM 7208 Model 001 2.3 GB External 8mm Tape Drive
IBM 7208 Model 011 Tape Drive
IBM 7209 Model 001 Optical Disk Drive
IBM 7210 Model 001 External CD-ROM Drive
IBM 9333 Model 10 High-Performance Disk
Subsystem
IBM 9333 Model 500 High-Performance Disk
Subsystem
IBM 9334 Model 10 Drawer Expansion Unit
IBM 9334 Model 500 Deskside Expansion Unit
IBM 9348 Model 012 External 1/2-Inch, 9-Track Tape
Drive
Maximum Quantity = one of each item listed per processor.
Peripherals:
IBM 6093 Model 11 Cursorpad
IBM 6093 Model 12 Tablet
<PAGE>
DATA BASE : ALET - PAGE: 8
IBM 6094 Model 10 Dials
IBM 6094 Model 20 Lighted Programmable
Functional Keyboard
IBM 6097 Model 2A Screen Printer
IBM 6097 Model 2B Screen Printer
IBM 6180 Model 1 Color Plotter
IBM 6180 Model 2 Color Plotter
IBM 6184 Model 1 Color Plotter
IBM 6185 Model 1 Color Plotter
IBM 6185 Model 2 Color Plotter
IBM 7202 Model 900 Expansion Rack
IBM 7235 Model 1 POWERgraphics GTO
IBM 7235 Model 2 POWERgraphics GTO
IBM 7246 Model 001 Video Controller
Maximum Quantity = one of each item listed per processor.
Xstation:
IBM 7010 Model 120 Xstation
IBM 7010 Model 130 Xstation
Maximum Quantity = 10 Xstations per processor.
Features:
All features for eligible hardware
ELIGIBLE LICENSED PROGRAMS
Program
Number Program Name
5601-230 AIX Personal graPHIGS (TM) Programming
Interface/6000
5601-248 AIX XL FORTRAN Compiler/6000
5601-251 AIX XL Pascal Run Time Environment/6000
5601-253 AIX Network Management/6000
5601-254 AIX XL Pascal Compiler/6000
5601-256 AIX 3278/79 Emulation/6000
5601-257 AIXwindows (R) Environment/6000
5601-258 AIX VS COBOL Compiler/6000
5601-259 AIX VS COBOL Run Time Environment/6000
5601-260 AIX 3270 Host Connection Program/6000
5601-263 AIX Personal Computer Simulator/6000
5601-266 AIX XL FORTRAN Run Time Environment/6000
5601-287 AIX System Network Architecture Services/6000
5601-386 AIX Computer Graphics Interface Toolkit/6000
5601-457 AIX Xstation Manager (TM)/6000
5696-037 AIX Software Development Environment (SDE)
Workbench/6000
5696-108 AIX InfoCrafter (TM) Composer/6000
5696-137 AIX Software Development Environment (SDE)
Integrator/6000
5696-236 NetWare for AIX/6000 from IBM v3.11
5696-237 Encina Structured File Service for AIX/6000
5696-238 Encina Peer-to-Peer Executive for AIX/6000
5696-239 Encina Monitor for AIX/6000
5696-240 Encina Server for AIX/6000
5696-347 Encina Peer-to-Peer Gateway for AIX/6000
5706-291 AIX Ada/6000
<PAGE>
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5706-294 AIX Ada Run Time Environment/6000
5756-011 AIX X-Windows 3270 Emulator Version 1
5756-027 AIXwindows Interface Composer/6000
5756-030 AIX Version 3 for RISC System/6000
5756-057 AIX Visualization Data Explorer/6000
5756-091 Professional CADAM (1) 3D Surface Design
5756-092 Professional CADAM Manufacturing System
5756-093 Professional CADAM Machining Center
5756-094 Professional CADAM Interactive Design
5756-095 Professional CADAM Access IUE (2)
5756-096 Professional CADAM Interactive Solids Design (2)
5765-004 AIX Graphics Plotting System/6000
5765-005 AIX Graphics File Translator/6000
5765-018 AIX XL FORTRAN Compiler/6000
5765-019 AIX XL FORTRAN Run Time Environment/6000
5765-035 AIX XL C+ +Compiler/6000
5765-037 AIX MVS Library Connector/6000
5765-039 AIX Configuration Management Version Control
Server/6000
5765-069 AIX Configuration Management Version Control
Client/6000
5765-077 AIX NetView (R)/6000
5765-111 AIX High-Availability Cluster
Multi-Processing/6000 (HACMP/6000)
5765-117 AIX DCE Base/6000
5765-118 AIX DCE Security Server/6000
5765-119 AIX DCE Cell Directory Server/6000
5765-121 AIX DCE Enhanced File Server/6000
(1) PROFESSIONAL CADAM is a trademark of Dassault Systemes of
America licensed to IBM Corporation.
(2) IUE and Interactive Solids Design are trademarks of
Dassault Systemes of America.
Maximum Quantity = one of each licensed program listed per
processor.
Notes: Developers may purchase a maximum of
one of each unique peripheral per development system. However,
with Xstation terminals, a maximum of ten per system may be
purchased, and a maximum of one display per Xstation may be
purchased.
Development discounts will be applied to the eligible
hardware, licensed programs, and peripherals ordered as part of
the initial installation. Within the limitations described,
peripherals, licensed programs and hardware MESs may be ordered
after the initial purchase and receive the developer discount.
However, these additional purchases will be restricted to the
terms of the Attachment for IBM RISC System/6000 Developer
Discount.
For programs licensed under the primary license
charge/annual license charge option, the 50% discount applies
to the primary license charge only. Recurring charges, such as
ESS and annual license charge, do not qualify for the 50%
discount.
Software MESs are not eligible for the 50% discount.
- - - END OF PRINTOUT - - -
<PAGE>
[LETTERHEAD]
June 4, 1993
Mr. W. Bernard Bowler
Central California Trading Area
General Manager
International Business Machines Corporation
400 Capitol Mall
Sacramento, California 95814
Dear Bernard,
In connection with the Addendum Number One to Strategic Business Agreement by
and between International Business Machines Corporation ("IBM") and U.S.
Computer Services ("CableData") entered into on the date of this letter (the
"Addendum"), this letter confirms that for the term of the Addendum [*].
Please confirm that this letter correctly sets forth the agreement between us
on this subject by signing the enclosed copy of this letter where indicated
below and returning it to me.
Sincerely,
/s/ James C. Castle
ACCEPTED AND AGREED TO BY:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ W. Bernard Bowler
---------------------------------
W. Bernard Bowler
Central California Trading Area
General Manager
Date:
-------------------------------
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EXHIBIT A TO LETTER DATED JUNE 4, 1993
[*]
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[LETTERHEAD]
January 19, 1992
Mr. Eric Jungemann
Senior Vice President
U.S. COMPUTER SERVICES
d/b/a CABLEDATA
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Dear Eric:
Re: RISC System/6000 Developer Discount and
RISC System/6000 Internal Use Discount
---------------------------------------
This is to confirm and agree that, in order to qualify for the RISC System/6000
Developer Discount Program set forth in Attachment F-2 of the Strategic Business
Agreement dated January 19, 1992 between our companies, [*].
In addition, we agree that the terms and conditions set forth in such Attachment
F-2 of the Strategic Business Agreement will, as to CableData, not be modified
by IBM for a [*].
This is to further confirm and agree that, for a period of [*] from
today's date, IBM will offer to sell to CableData for CableData internal
use, [*].
Sincerely,
/s/John R. Poland
John R. Poland
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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<PAGE>
[LETTERHEAD]
January 19, 1992
Mr. Jerry Knapp
President
U.S. COMPUTER SERVICES
d/b/a CABLEDATA
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Dear Jerry:
This is to confirm and agree that the business relationship contemplated by the
Strategic Business Agreement between IBM and CableData is for the international
market and that we understand CableData has no current plans for releasing a DDP
product in the U.S. on an IBM platform. You have informed us and IBM
understands that significant harm to the relationship between CableData and IBM
may result if its sales force solicits CableData's U.S. customers to put
pressure on CableData to release a DDP/I or similar product on an IBM platform
in the U.S., and we will conduct ourselves accordingly.
Sincerely,
/s/John R. Poland
John R. Poland
<PAGE>
[LETTERHEAD]
January 19, 1992
Mr. John R. Poland
General Manager
INTERNATIONAL BUSINESS MACHINES CORPORATION
520 Capitol Mall
Sacramento, CA 95814
Dear John,
Re: STRATEGIC BUSINESS AGREEMENT
In connection with the Strategic Business Agreement between International
Business Machines Corporation (IBM) and U.S. Computer Services (CableData)
entered into on the date of this letter (the "Agreement"), this letter
confirms [*]. The governing law and consent to jurisdiction provisions of
Section 7.4 of the Agreement are incorporated into and apply to this letter
agreement as if set forth herein in their entirety. Please confirm that this
letter correctly sets forth the agreement between us on this subject by
signing the enclosed copy of this letter where indicated below and returning
it to me.
Sincerely,
/s/Eric Jungemann
Eric Jungemann
ACCEPTED AND AGREED TO BY:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/Eric Jungemann /s/John R. Poland
----------------------------------------
Title: Sr. VP General Manager
-------------------------------------
Date: 1-19-92
--------------------------------------
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EXHIBIT 10.20
ORACLE-Registered Trademark-
BUSINESS ALLIANCE PROGRAM AGREEMENT
This Business Alliance Program Agreement (the "Agreement") is between Oracle
Corporation with its principal place of business at 500 Oracle Parkway,
Redwood City, California 94065 ("Oracle") and CableData, Inc. (legal name)
with its principal place of business at 11020 Sun Center Drive, Rancho
Cordova, CA 95670 (the "Alliance Member"). The terms of this Agreement shall
apply to each Program license granted and to all services provided by Oracle
under this Agreement. When completed and executed by both parties, an Order
Form shall evidence the Program licenses granted and the services that are to
be provided.
1. DEFINITIONS
1.1 "COMMENCEMENT DATE" shall mean the date on which the Programs are
delivered by Oracle, or if no delivery is necessary, the Effective
Date set forth on the relevant Order Form.
1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system
designated on the relevant Order Form or Sublicense report for use in
conjunction with a Sublicensed Program, Development License, or Marketing
Support License.
1.3 "ORDER FORM" shall mean the document by which the Alliance Member
orders Program licenses, Sublicenses, and services, and which is agreed
to by the parties. The Order Form shall reference the Effective Date
of this Agreement.
1.4 "PRICE LIST" shall mean Oracle's standard commercial fee schedule that
is in effect when a Program license, Sublicense, or services are ordered
by the Alliance Member.
1.5 "PROGRAM" shall mean the computer software in object code form owned or
distributed by Oracle for which the Alliance Member is granted a license
or grants a Sublicense pursuant to this Agreement; the user guides and
manuals for use of the software ("Documentation"); and Updates. "LIMITED
PRODUCTION PROGRAM" shall mean a Program not specified on the Price List
or which is designated as Limited Production by Oracle.
1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying
additional Sublicense terms and Sublicense rates and fees for the various
types of Sublicenses which may be granted by the Alliance Member.
1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by
or through the Alliance Member to an end user to use an object code copy
of the Programs with the Value-Added Package under authority of a
Sublicense Addendum. "Sublicensee" shall mean a third party who is granted
a Sublicense of the Programs with the Value-Added Package for such party's
own internal data processing purposes and not for purposes of any
further distribution.
1.8 "SUPPORTED PROGRAM LICENSE" shall mean a Development License or Marketing
Support License for which the Alliance Member has ordered Technical
Support for the relevant time period. "TECHNICAL SUPPORT" shall mean
Program support provided under Oracle's policies in effect on the date
Technical Support is ordered.
1.9 "UPDATE" shall mean a subsequent release of a Program which is generally
made available for Supported Program Licenses at no additional charge,
other than media and handling charges. Update shall not include any
release, option or future product which Oracle licenses separately.
1.10 "USER," unless otherwise specified in the Order Form or Sublicense report
for a user type specified in the Price List in effect when the Program
is Sublicensed, shall mean a specific individual employed by the Alliance
Member or Sublicensee (as the case may be) who is authorized by such
party to use the Programs, regardless of whether the individual is
actively using the Programs at any given time.
1.11 "VALUE-ADDED PACKAGE" shall mean the hardware or software products or
services having added value which are developed, sold, and/or licensed
with the Programs to a Sublicensee by the Alliance Member, as provided
under the applicable Sublicense Addenda.
2. LICENSES GRANTED
2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES
A. Oracle giants to the Alliance Member a nonexclusive license to
use the Development Licenses the Alliance Member obtains under this
Agreeement and applicable Sublicense Addenda, as follows:
1. to develop or prototype the Value-Added Package on the Designated
System or on a backup system if the Designated System is inoperative,
up to any applicable maximum number of designated Users or other such
limitation as may be applicable;
2. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value Added Package;
3. to provide training and technical support to employees and to
customers solely in conjunction with the Value-Added Package;
4. to use the Documentation provided with the Programs in support of
the Alliance Member's authorized use of the Programs; and
5. to copy the Programs for archival or backup purposes; no other
copies shall be made without Oracle's prior written consent. All
titles, trademarks, and copyright and restricted rights notices shall
be reproduced in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement.
B. The Alliance Member may order temporary trial licenses ("Trial
Licenses") for its evaluation purposes only, and not for development
or prototype purposes, for use during a period specified in the Order
Form. Each Order Form for Trial Licenses shall clearly state
<PAGE>
the trial period and shall identify that the order is for a Trial
License.
2.2 MARKETING SUPPORT LICENSES
Oracle grants to the Alliance Member a nonexclusive license to use
the Marketing Support Licenses the Alliance Member obtains under this
Agreement and applicable Sublicense Addenda, as follows:
A. to demonstrate the Programs to potential Sublicensees solely in
conjunction with the Value-Added Package, up to any applicable maximum
number of designated Users or other such limitation as may be
applicable;
B. to develop customized prototypes of the Value-Added Package for
prospective Sublicensees on the Designated System if the Alliance Member
does not receive any fees related to the development of such
customized prototypes;
C. to use the Documentation provided with the Programs in support of the
Alliance Member's authorized use of the Programs; and
D. to copy the Programs for archival or backup purposes; no other copies
shall be made without Oracle's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement.
2.3 SUBLICENSING
A. LICENSE TO SUBLICENSE PROGRAMS
As further set forth in the applicable Sublicense Addenda, Oracle
hereby grants the Alliance Member a nonexclusive, nontransferable license
to market and grant Sublicenses as set forth in such Sublicense Addenda
and at the rates and fees set forth in such Sublicense Addenda.
The Alliance Member shall only have the right to Sublicense Programs
pursuant to an effective Sublicense Addendum between the parties hereto.
The Alliance Member shall Sublicense the Programs solely through a
written Sublicense agreement as provided under Section 2.3.B. Upon
Oracle's request, the Alliance Member shall provide Oracle with a copy
of the Alliance Members standard Sublicense agreement.
B. SUBLICENSE AGREEMENT
Every Sublicense agreement shall include, at a minimum, contractual
provisions which:
1. Restrict use of the Programs to object code, subject to the
restrictions provided under the applicable Sublicense Addenda and
consistent with the Sublicense fees payable to Oracle;
2. Prohibit (a) transfer of the Programs except for temporary transfer
in the event of computer malfunction; (b) assignment, timesharing
and rental of the Programs; and (c) title to the Programs from passing
to the Sublicensee or any other party;
3. Prohibit the reverse engineering, disassembly or decompilation of the
Programs and prohibit duplication of the Programs except for a single
backup or archival copy;
4. Disclaim, to the extent permitted by applicable law, Oracle's
liability for any damages, whether direct, indirect, incidental or
consequential, arising from the use of the Programs;
5. Require the Sublicensee, at the termination of the Sublicense, to
discontinue use and destroy or return to the Alliance Member all
copies of the Programs and Documentation;
6. Prohibit publication of any results of benchmark tests run on the
Programs;
7. Require the Sublicensee to comply fully with all relevant export
laws and regulations of the United States to assure that neither
the Programs, nor any direct product thereof, are exported, directly
or indirectly, in violation of United States law; and
8. Specify Oracle as a third party beneficiary of the Sublicense
agreement to the extent permitted by applicable law.
C. MARKETING/SUBLICENSING PRACTICES
In marketing and Sublicensing the Programs, the Alliance Member shall:
1. Not engage in any deceptive, misleading, illegal, or unethical
practices that may be detrimental to Oracle or to the Programs;
2. Not make any representations, warranties, or guarantees to
Sublicensees concerning the Programs the are inconsistent with or in
addition to those made in this Agreement or by Oracle; and
3. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the Programs.
2.4 ACCEPTANCE OF PROGRAMS
For each Program license for which delivery from Oracle is required
under this Agreement, the Alliance Member shall have a 15 day Acceptance
Period, beginning on the Commencement Date, in which to evaluate the
Program. During the Acceptance Period, the Alliance Member may cancel
the license by giving written notice to Oracle and returning the Program
in accordance with Section 6.6 below. Unless such cancellation notice is
given, the license will be deemed to have been accepted by the Alliance
Member at the end of the Acceptance Period.
2.5 LIMITATIONS ON USE
The Alliance Member shall not use or duplicate the Programs (including
the Documentation) for any purpose other than as specified in this
Agreement or make the Programs available to unauthorized third parties.
The Alliance Member shall not (a) use the Programs for its internal data
processing or for processing customer data; (b) rent, electronically
distribute, or timeshare the Programs or market the Programs by
interactive cable or remote processing services or otherwise distribute
the Programs other than as specified in this Agreement; or (c) cause
or permit the reverse engineering, disassembly, or decompilation of
the Programs.
2.6 TITLE
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Oracle shall retain all title, copyright, and other proprietary rights
in the Programs and any modifications or translations thereof. The Alliance
Member and its Sublicensees do not acquire any rights in the Programs
other than those specified in this Agreement.
2.7 TRANSFER OF PROGRAMS
The Alliance Member may transfer a Development License or Marketing
Support License within its organization upon notice to Oracle; transfers
are subject to the terms and fees specified in Oracle's transfer policy
in effect at the time of the transfer.
2.8 USE OF PROGRAMS BY AGENTS
The Alliance Member and each Sublicensee (as the case may be) shall
have the right to allow each such party's own third party agents to use
each such party's licensed Programs as licensed or Sublicensed under
this Agreement so long as the applicable party ensures that its agents
use the Programs in accordance with the terms of this Agreement or the
applicable Sublicense agreement.
2.9 PRE-PRODUCTION PROGRAMS
As an accommodation to the Alliance Member, Oracle may supply the
Alliance Member with pre-production releases of Programs (which may be
labeled "Alpha" or "Beta"). These products are not suitable for
production use.
3. TECHNICAL SERVICES
3.1 TECHNICAL SUPPORT SERVICES
Oracle shall provide Technical Support services ordered by the
Alliance Member under Oracle's Technical Support policies in effect on
the date Technical Support is ordered, subject to the payment by the
Alliance Member of the applicable fees. Reinstatement of lapsed
Technical Support services is subject to Oracle's Technical Support
reinstatement fees in effect on the date Technical Support is reordered.
The Alliance Member may obtain Technical Support services for Limited
Production Programs and pre-production releases of Programs on a time
and materials basis.
3.2 TRAINING SERVICES
Oracle will provide training services agreed to by the parties under
the terms of this Agreement. For any on-site services requested by the
Alliance Member, the Alliance Member shall reimburse Oracle for actual,
reasonable travel and out-of-pocket expenses incurred.
4. FEES AND PAYMENTS
4.1 LICENSE FEES AND SUBLICENSE FEES
The Alliance Member may order Development Licenses or Marketing
Support Licenses at the standard Program license fees set forth in the
Price List or at the fees otherwise provided in a Sublicense Addendum.
For each Sublicense granted by the Alliance Member, the Alliance Member
agrees to pay Oracle a Sublicense fee as set forth in the applicable
Sublicense Addenda. The Alliance Member shall not be relieved of its
obligation to pay Sublicense fees owed to Oracle by the nonpayment of
such fees by the Sublicensee.
The Alliance Member is free to determine unilaterally its own
license fees to its Sublicensees. If the Alliance Member or a
Sublicensee upgrades the Programs to a larger computer, transfers
the Programs outside the United States and/or to another operating
system, or increases the licensed number of Users, the Alliance Member
will pay additional Sublicense fees to Oracle as provided under Oracle's
transfer policies and rates in effect at the time the Program is upgraded
or transferred.
4.2 TECHNICAL SUPPORT FEES
Technical Support services ordered by the Alliance Member for
Development Licenses and Marketing Support Licenses will be provided under
Oracle's Technical Support policies and rates in effect on the date
Technical Support is ordered.
4.3 GENERAL PAYMENT TERMS
Except as otherwise provided in a Sublicense Addendum, invoices for
payment of license fees shall be payable 30 days from the Commencement
Date. Technical Support fees for Sublicenses shall be payable as
specified in the applicable Sublicense Addendum. Technical Support fees
for Development Licenses and Marketing Support Licenses shall be payable
annually in advance, net 30 days from the renewal date; such fees will be
those in effect at the beginning of the period for which the fees are
paid. Fees due by the Alliance Member shall not be subject to set off for
any claims against Oracle. All payments made shall be in United States
currency and shall be made without deductions based on any taxes or
withholdings, except where such deduction is based on gross income.
Any amounts payable by the Alliance Member hereunder which remain unpaid
after the due date shall be subject to a late charge equal to 1.5% per
month from the due date until such amount is paid. The Alliance Member
agrees to pay applicable media and shipping charges. The Alliance
Member shall issue a purchase order, or alternative document acceptable
to Oracle, on or before the Effective Date of the applicable Order Form.
4.4 TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added, or other federal,
state or local taxes based on the licenses granted under this Agreement,
or the Sublicenses granted by the Alliance Member, then such taxes shall
be billed to and paid by the Alliance Member. This shall not apply to
taxes based on Oracle's income.
5. RECORDS
5.1 RECORDS INSPECTION
The Alliance Member shall maintain adequate books and records in
connection with activity under this Agreement. Such records shall
include, without limitation, executed Sublicense agreements, the
information required in or related to the Sublicense reports required
under a Sublicense Addendum, the number of copies of Programs used or
Sublicensed by the Alliance Member, the computers on which the Programs
are installed, and the number of Users
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using the Programs. Oracle may audit the relevant books and records of
the Alliance Member to ensure compliance with the terms of this Agreement
upon reasonable notice to the Alliance Member. Any such audit shall be
conducted during regular business hours at the Alliance Member's offices
and shall not interfere unreasonably with the Alliance Member's business
activities. If an audit reveals that the Alliance Member has underpaid
fees to Oracle, the Alliance Member shall be invoiced for such
underpaid fees based on the Price List in effect at the time the audit
is completed. If the underpaid fees exceed five percent (5%) of the
applicable license fees or Sublicense fees paid, then the Alliance Member
shall pay Oracle's reasonable costs of conducting the audit.
Audits shall be made no more than once annually.
5.2 NOTICE OF CLAIM
The Alliance Member will notify the Oracle legal department promptly
in writing of: (a) any claim or proceeding involving the Programs that
comes to its attention; and (b) any material change in the management or
control of the Alliance Member.
6. TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective on the Effective Date and
shall be valid until the expiration or termination of all Sublicense
Addenda hereunder, unless terminated earlier as set forth herein. If not
otherwise specified on the Order Form, each Program license granted
under this Agreement shall remain in effect perpetually under the terms
of this Agreement unless the license or this Agreement is terminated as
provided in this Article 6 below. The term of each Sublicense Addendum
hereunder shall be as set forth in each such Addendum.
6.2 TERMINATION BY THE ALLIANCE MEMBER
The Alliance Member may terminate any Program license, any Sublicense
Addenda, or this Agreement at any time; however, termination shall not
relieve the Alliance Member's obligations specified in Sections 6.5 and
6.6.
6.3 TERMINATION BY ORACLE
Oracle may terminate any Program license, any Sublicense Addenda,
or this Agreement upon written notice if the Alliance Member breaches
this Agreement and fails to correct the breach within 30 days following
written notice specifying the breach.
6.4 FORCE MAJEURE
Neither party shall be liable to the other for failure or delay in
the performance of a required obligation if such failure or delay is
caused by strike, riot, fire, flood, natural disaster, or other similar
cause beyond such party's control, provided that such party gives
prompt written notice of such condition and resumes its performance as
soon as possible, and provided further that the other party may terminate
this Agreement if such condition continues for a period of one hundred
eighty (180) days.
6.5 EFFECT OF TERMINATION
Upon expiration or termination of a Sublicense Addendum or this
Agreement, all the Alliance Member's rights to market and Sublicense the
Programs as set forth in such Sublicense Addendum or this Agreement shall
cease.
The termination of this Agreement, a Sublicense Addendum, or any
license shall not limit either party from pursuing any other remedies
available to it, including injunctive relief, nor shall such termination
relieve the Alliance Member's obligation to pay all fees that have
accrued or that the Alliance Member has agreed to pay under a
Sublicense Addendum or any Order Form, other similar ordering document
under this Agreement, or that appear in a Sublicense report. The
parties' rights and obligations under Sections 2.5, 2.6, 2.7 and
Articles 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
6.6 HANDLING OF PROGRAMS UPON TERMINATION
If a license granted under this Agreement expires or otherwise
terminates, the Alliance Member shall: (a) cease using the applicable
Programs; and (b) certify to Oracle within one month after expiration or
termination that the Alliance Member has destroyed or has returned
to Oracle the Programs and all copies. This requirement applies to
copies in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other
materials. Before returning Programs to Oracle, the Alliance Member
shall acquire a Return Material Authorization ("RMA") number from Oracle.
7. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY
Oracle will defend and indemnify the Alliance Member against a claim
that Programs infringe a copyright or patent, provided that: (a) the
Alliance Member notifies Oracle in writing within 30 days of the claim;
(b) Oracle has sole control of the defense and all related settlement
negotiations; and (c) the Alliance Member provides Oracle with the
assistance, information and authority necessary to perform Oracle's
obligations under this Section. Reasonable out-of-pocket expenses
incurred by the Alliance Member in providing such assistance will be
reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based on
use of a superseded or altered release of Programs if the infringement
would have been avoided by the use of a current unaltered release of the
Programs which Oracle provides to the Alliance Member.
In the event the Programs are held or are believed by Oracle to
infringe, Oracle shall have the option, at its expense, to (a) modify
the Programs to be noninfringing; (b) obtain for the Alliance Member a
license to continue using the Programs; or (c) terminate the license
for the infringing Programs and refund the license fees paid for those
Programs, prorated over a five year term from the Commencement Date.
This Section 7.1 states Oracle's entire liability and the Alliance
Member's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS
A. PROGRAM WARRANTY
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Oracle warrants for a period of one year from the Commencement Date
that each unmodified Program for which the Alliance Member has a
Supported Program License will perform the functions described in the
Documentation provided by Oracle when operated on the Designated
System.
B. MEDIA WARRANTY
Oracle warrants the tapes, diskettes or other media to be free of
defects in materials and workmanship under normal use for 90 days
from the Commencement Date.
C. SERVICES WARRANTY
Oracle warrants that its Technical Support and training services will
be performed consistent with generally accepted industry standards.
This warranty shall be valid for 90 days from performance of service.
D. DISCLAIMERS
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL RUN PROPERTY ON ALL
HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF THE ALLIANCE
MEMBER OR THE SUBLICENSEES OR OPERATE IN THE COMBINATIONS WHICH MAY
BE SELECTED FOR USE BY THE ALLIANCE MEMBER OR THE SUBLICENSEES, THAT THE
OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT
ALL PROGRAM ERRORS WILL BE CORRECTED. LIMITED PRODUCTION PROGRAMS,
PRE-PRODUCTION RELEASES OF PROGRAMS, AND COMPUTER-BASED TRAINING,
PRODUCTS ARE DISTRIBUTED "AS IS."
The Alliance Member shall not make any warranty on Oracle's behalf.
7.3 EXCLUSIVE REMEDIES
For any breach of the warranties contained in Section 7.2 above, the
Alliance Member's exclusive remedy, and Oracle's entire liability, shall
be:
A. FOR PROGRAMS
The correction of Program errors that cause breach of the warranty,
or if Oracle is unable to make the Program operate as warranted,
the Alliance Member shall be entitled to recover the fees paid to Oracle
for the Program license.
B. FOR MEDIA
The replacement of defective media returned within 90 days of the
Commencement Date.
C. FOR SERVICES
The reperformance of the services, or if Oracle is unable to perform
the services as warranted, the Alliance Member shall be entitled to
recover the fees paid to Oracle for the unsatisfactory services.
7.4 INDEMNIFICATION OF ORACLE
The Alliance Member agrees to enforce the terms of its Sublicense
agreements required by this Agreement and to notify Oracle of any known
breach of such terms. The Alliance Member will defend and indemnify
Oracle against:
A. All claims and damages to Oracle arising from any use by the Alliance
Member or its Sublicensees of any product not provided by Oracle but used
in combination with the Programs if such claim would have been avoided
by the exclusive use of the Programs;
B. All claims and damages to Oracle caused by the Alliance Member's
failure to include the required contractual terms set forth in
Section 2.3.B hereof in each Sublicense agreement; and
C. All claims and damages to Oracle caused by Sublicensees' breach of
any of the applicable provisions required by Section 2.3 hereof.
7.5 EQUITABLE RELIEF
The Alliance Member acknowledges that any breach of its obligations
with respect to proprietary rights of Oracle will cause Oracle
irreparable injury for which there are inadequate remedies at law and
that Oracle shall be entitled to equitable relief in addition to all
other remedies available to it.
8. GENERAL TERMS AND CONDITIONS
8.1 NONDISCLOSURE
Neither party shall, without first obtaining the written consent of
the other party disclose the terms and conditions of this Agreement,
except as may be required to implement and enforce the terms of this
Agreement, or as may be required by legal procedures or by law.
No other information exchanged between the parties shall be deemed
confidential unless the parties otherwise agree in writing. The
Alliance Member shall not disclose the results of benchmark tests or
other evaluation of the Programs to any third party without Oracle's prior
written approval.
8.2 COPYRIGHTS
The Programs are copyrighted by Oracle. The Alliance Member shall
retain all Oracle copyright notices on the Programs used by the Alliance
Member under its Development Licenses or Marketing Support Licenses.
The Alliance Member shall include the following on all copies of the
Programs in software Value-Added Packages incorporating the Programs
distributed by the Alliance Member:
A. A reproduction of Oracle's copyright notice; or
B. A copyright notice indicating that the copyright is
vested in the Alliance Member containing the following
1. A "c" in a circle and the word "copyright";
2. The Alliance Member's name;
3. The date of copyright; and
4. The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on
screen for any software Value-Added Package incorporating the Programs,
and the diskette or tape labels. Notwithstanding any copyright notice by
the Alliance Member to the contrary, the copyright to the Program
included in any such application package shall remain in Oracle.
Other than as specified above, on any reproduction or translation of
any Programs, Documentation, or
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promotional material, the Alliance Member agrees to reproduce Oracle's
copyright notices intact.
8.3 TRADEMARKS
"0racle" and any other trademarks and service marks adopted by Oracle to
identify the Programs and other Oracle products and services belong to
Oracle; the Alliance Member will have no rights in such marks except as
expressly set forth herein and as specified in writing from time to
time. The Alliance Member's use of Oracle's trademarks shall be under
Oracle's trademark policies and procedures in effect from time-to-time.
The Alliance Member agrees not to use the trademark "ORACLE," or any
mark beginning with the letters "Ora" or any other mark likely to cause
confusion with the trademark "ORACLE" as any portion of the Alliance
Member's tradename, trademark for the Alliance Member's Value-Added
Package, or trademark for any other products of the Alliance Member.
The Alliance Member shall have the right to use the trademark "ORACLE"
and other Oracle trademarks solely to refer to Oracle's Programs,
products and services.
The Alliance Member agrees with respect to each registered trademark
of Oracle, to include in each advertisement, brochure, or other such use
of the trademark, the trademark symbol "circle R" and the following
statement:
_____________ is a registered trademark of Oracle Corporation,
Redwood City, California
Unless otherwise notified in writing by Oracle, the Alliance Member
agrees, with respect to every other trademark of Oracle, to include in
each advertisement, brochure, or other such use of the trademark,
the symbol "TM" and the following statement:
_____________ is a trademark of Oracle Corporation, Redwood City,
California
The Alliance Member shall not market the Oracle Programs in any way
which implies that the Oracle Programs are the proprietary product of the
Alliance Member or of any party other than Oracle. Oracle shall not have
any liability to the Alliance Member for any claims made by third parties
relating to the Alliance Member's use of Oracle's trademarks.
8.4 RELATIONSHIPS BETWEEN PARTIES
In all matters relating to this Agreement, the Alliance Member will
act as an independent contractor. The relationship between Oracle and
the Alliance Member is that of licensor/licensee. Neither party will
represent that it has any authority to assume or create any obligation,
express or implied, on behalf of the other party, nor to represent the
other party as agent, employee, franchisee, or in any other capacity.
Nothing in this Agreement shall be construed to limit either party's
right to independently develop or distribute software which is
functionally similar to the other party's product, so long as proprietary
information of the other party is not included in such software.
8.5 ASSIGNMENT
The Alliance Member may not assign or otherwise transfer any rights
under this Agreement without Oracle's prior written consent.
8.6 NOTICE
All notices, including notices of address change, required to be
sent hereunder, shall be in writing and shall be deemed to have been given
when deposited in first class mail to the first address listed in the
relevant Order Form (if to the Alliance Member) or to the Oracle
address on the Order Form (if to Oracle).
To expedite order processing, the Alliance Member agrees that Oracle
may treat documents faxed by the Alliance Member to Oracle as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 GOVERNING LAW/JURISDICTION
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the substantive and procedural laws of the
State of California and shall be deemed to be executed in Redwood City,
California. The parties agree that any legal action or proceeding
relating to this Agreement shall be instituted in any state or
federal court in San Francisco or San Mateo County, California.
Oracle and the Alliance Member agree to submit to the jurisdiction of,
and agree that venue is proper in, these courts in any such legal action
or proceeding.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force and effect.
8.9 EXPORT
The Alliance Member agrees to comply fully with all relevant export
laws and regulations of the United States ("Export Law") to assure that
neither the Programs, nor any direct product thereof, are (a) exported,
directly or indirectly, in violation of Export Laws; or (b) are intended to
be used for any purposes prohibited by the Export Laws, including, without
limitation, nuclear, chemical, or biological weapons proliferation.
8.10 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY
FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FARE PAID BY
THE ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM
THE ALLIANCE MEMBER'S USE OF THE PROGRAM OR SERVICES, SUCH LIABILITY SHALL
BE LIMITED TO FEES PAID FOR THE RELEVANT PROGRAM OR SERVICES GIVING RISE
TO THE LIABILITY, PRORATED OVER A FIVE-YEAR TERM FROM THE COMMENCEMENT
DATE OF THE APPLICABLE LICENSE OR THE DATE OF PERFORMANCE OF THE APPLICABLE
SERVICES.
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The provisions of this Agreement allocate the risks between Oracle and
the Alliance Member. Oracle's pricing reflects this allocation of risk and
the limitation of liability specified herein.
8.11 FEDERAL GOVERNMENT SUBLICENSES
If the Alliance Member grants a Sublicense to the United States
government, the Programs shall be provided with "Restricted Rights" and the
Alliance Member will place a legend, in addition to applicable copyright
notices, on the documentation, and on the tape or diskette label,
substantially similar to the following:
RESTRICTED RIGHTS LEGEND
"Use, duplication or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the Department of
Defense Regulations Supplement ("DFARS") 252.227-7013, Rights in Technical
Data and Computer Software (October 1988) and Federal Acquisition
Regulation ("FAR") 52.227-14, Rights in Data-General, including Alternate
III (June 1987), as applicable. Oracle Corporation, 500 Oracle Parkway,
Redwood City, CA 94065."
8.12 WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or breach.
Except for actions for non-payment or breach of Oracle's proprietary rights
in the Programs, no action, regardless of form, arising out of this
Agreement may be brought by either party more than one year after the cause
of action has accrued.
8.13 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document, usage
or custom shall be deemed to amend or modify this Agreement. This
Agreement may be executed in any number of counterparts, each of which
shall be an original and all of which shall constitute together but one and
the same document.
It is expressly agreed that the terms of this Agreement and any Order
Form shall supersede the terms in any Alliance Member purchase order or
other ordering document. This Agreement shall also supersede the terms of
any shrinkwrap or break-the-seal license agreement included in any package
for Oracle-furnished software, except terms contained in such license
agreement that grant specific use rights for the Programs.
The Effective Date of this Agreement shall be________________________________.
EXECUTED BY CABLEDATA, INC. EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael McGrail Authorized Signature:___________
Name: Michael McGrail Name:___________________________
Title: President Title:__________________________
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
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AMENDMENT ONE
TO THE
BUSINESS ALLIANCE PROGRAM AGREEMENT
BETWEEN
CABLEDATA, INC.
AND
ORACLE CORPORATION
This Amendment One shall serve to amend the Business Alliance Program Agreement,
and any amendments thereto, between CableData, Inc. (the "Alliance Member") and
Oracle Corporation ("Oracle") dated ___________________ (the "Agreement").
The Agreement is amended as follows:
1. The following shall be inserted at the end of the introductory paragraph
of the Agreement:
"The term "Alliance Member" for purposes of this Agreement shall include
the Alliance Member and the Alliance Member's wholly or majority owned
subsidiaries which are specified on the attached Subsidiary Exhibit as
of the Effective Date. Each Subsidiary must agree in writing to be
bound by the terms of the Agreement."
2. In Section 6.5, delete the first paragraph and replace it with the
following:
"Each Sublicensee of the Alliance Member effective at the time of
expiration or termination of this Agreement shall upon execution of a
Sofware License and Services Agreement (the "SLSA"), have the ability
to place orders for additional Programs directly with Oracle. All orders
placed by the Sublicensee shall be placed pursuant to the Terms and
Conditions of the SLSA between Oracle and such Sublicense."
Other than the modification set forth above, the terms and conditions of the
Agreement remain unchanged, and in full force and effect.
The Effective Date of this Amendment One is_______________________, 1996.
CABLEDATA, INC. ORACLE CORPORATION
By: /s/ Michael McGrail By:
--------------------------------- -----------------------------
Name: Michael McGrail Name:
------------------------------- ---------------------------
Title: President Title:
------------------------------ --------------------------
<PAGE>
SUBSIDIARY EXHIBIT
CUO, Inc.
CableData International Ltd.
CableLease, Inc.
<PAGE>
ORACLE-Registered Trademark-
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
This document (the "Addendum") is between Oracle Corporation ("Oracle") and
CableData, Inc. (the "Alliance Member") and shall be governed by the terms of
the Business Alliance Program Agreement between the Alliance Member and Oracle
effective __________, 19__ (the "Agreement") and the terms set forth below.
1. PROGRAM DISTRIBUTION
1.1 SUBLICENSE OF PROGRAMS AND TERMS
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs which are
available in production release and listed on Oracle's Price List in
effect at the time the Programs are ordered from Oracle to Sublicense to a
Sublicensee; provided, however, the Alliance Member shall have no right to
Sublicense any Programs designated as Oracle Applications Programs, Oracle
Express Programs, Limited Production Programs, or other Programs specified
by Oracle from time-to-time without the prior written consent of Oracle.
The Alliance Member shall have the right to market and grant Sublicenses
of Full Use or Deployment Programs for use on Designated Systems in
conjunction with the Integrated System to Sublicensees. Each copy of the
Full Use or Deployment Programs distributed shall be for the Sublicensee's
own internal use in the Territory only on a single Designated System
limited to a maximum number of Users.
To acquire Programs for Sublicensing to Sublicensees, the Alliance
Member shall order such Programs from Oracle. Each order shall specify
the applicable Programs, maximum number of Users, computer/operating
system configuration, fees, shipping location, and any other information
required by Oracle for processing the order. Orders for Trial Sublicenses
shall be clearly marked on the face of the Order Form.
1.2 DISTRIBUTION UNDER ORACLE AGREEMENT
In addition to the Sublicense rights specified in Section 2.3.A of
the Agreement and notwithstanding the terms of such Section and
Section 3.2.B of the Agreement, the Alliance Member shall have the right
to market and grant Sublicenses of Full Use Programs and Deployment
Programs in conjunction with the Integrated System to Sublicensees under a
standard Oracle Software License and Services Agreement in lieu of
Sublicensing the Programs under a written Sublicense agreement.
The Alliance Member may submit orders for Sublicenses to Oracle for
its acceptance.
With each such order, the Alliance Member shall submit a standard
Oracle Software License and Services Agreement executed by the applicable
Sublicensee, or shall reference on such order that the Programs will be
licensed to the Sublicensee subject to an existing license agreement
effective between the Sublicensee and Oracle (the "Oracle Agreement"). In
addition, as part of the Oracle Agreement, the Alliance Member shall
obtain the Sublicensee's written agreement that the ordered Programs and
services are subject to the terms and conditions of the Oracle Agreement.
If the Sublicensee is a federal agency, the Alliance Member shall
submit with each such order a written document executed by an authorized
Sublicensee contracting officer which contains the following provision:
"This is an open market order placed pursuant to terms identical to the
terms and conditions of Oracle's General Services Administration (GSA)
Schedule A Contract for Oracle Programs current as of the order date, with
the exception of the maximum order lineations, discounts, maintenance,
training units and other discounts specific to the applicable Oracle GSA
Schedule. No other pre-printed or reference terms and conditions shall
apply." This written document shall be deemed the applicable Oracle
Agreement.
For orders which include only shrinkwrapped Oracle Programs, the
Oracle Agreement may consist of a written obligation by the Sublicensee to
use the Programs under the terms of the shrinkwrap license agreement.
The Alliance Member shall indemnify Oracle for any claims, damages,
or losses arising from failure to obtain any Oracle Agreement.
If the order specifies that the Programs are to be delivered to the
Alliance Member, the Alliance Member shall have the right to re-deliver
the Programs with their original packaging to the applicable Sublicensee.
1.3 FULL USE AND DEPLOYMENT PROGRAMS
For the purposes of this Addendum, "Full Use Programs" shall mean
unaltered versions of the Programs with all functions intact. "Deployment
Programs" shall mean Programs which are limited to use solely for the
purpose of running applications, and may not be used to create or alter
tables or reports except as necessary for operating the applications.
1.4 VALUE-ADDED PACKAGE
For the purposes of this Addendum, "Integrated System" shall mean the
hardware and software products having Value-Added which are developed,
sold, and/or licensed with the Programs to a Sublicensee by the Alliance
Member to satisfy such Sublicensee's internal business requirements and
objectives. For purposes of the Agreement, the Integrated System will be
regarded as the Alliance
<PAGE>
Member's Value-Added Package which is described in the attached Value-
Added Attachment. The Integrated System shall be regarded as "Value-Added"
if the following materials are provided as part of the Integrated System
by the Alliance Member: (a) non-Oracle developed software; (b) customized
programming or customized consulting; and (c) other computer products or
components.
1.5 TRIAL SUBLICENSES
The Alliance Member shall be entitled to grant, at no charge, up to
ten (10) temporary Trial Sublicenses of the Programs at any one time.
Such Sublicenses shall be for evaluation purposes only and shall be for a
period not to exceed thirty (30) days. The Alliance Member shall pay
Oracle Sublicense fees for any Trial Sublicenses in excess of thirty (30)
days. Each such Trial Sublicense shall be Sublicensed under a Sublicense
agreement which provides for such trial use or under an Oracle Trial
License Agreement, as the applicable Oracle Agreement.
1.6 NO DISTRIBUTORS
The Alliance Member's right to market and grant Sublicenses of Full
Use Programs or Deployment Programs hereunder shall be limited to the
Alliance Member only. The Alliance Member shall not appoint any third
party to distribute the Programs without Oracle's prior written
consent.
1.7 DOCUMENTATION
Oracle shall deliver one copy of the applicable Documentation with
each order of Programs for Sublicensing to Sublicensees.
2. SUBLICENSE FEES
2.1 SUBLICENSE FEES AND RATE
For each copy of the Programs Sublicensed by the Alliance Member, the
Alliance Member agrees to pay Oracle a Sublicense fee equal to [*]
of the applicable license fee for each such Program, as
specified in the applicable Price List and Alliance Member Price List
supplement to such Price List in effect at the time the applicable
Programs are Sublicensed to a Sublicensee. The Sublicense fee shall
be calculated effective on the date of the Sublicense, which shall be
the date the Programs are shipped by Oracle or the effective date of
the order to Oracle for such Programs, if no shipment is required.
Fees for Sublicense of Programs shall be due and payable on the date
that Oracle ships the applicable Programs and shall be deemed overdue if
not paid within thirty-one (31) days of the due date. The Alliance Member
shall not be relieved of its obligation to pay Sublicense fees owed to
Oracle by the nonpayment of such fees by the Sublicensee.
2.2 PRICE LIST
As set forth in the Agreement, the applicable Price List for
determining Sublicense fees shall be the standard Price List in effect at
the time the Program is Sublicensed to a Sublicensee. However, pricing
for any federal agency, pursuant to terms and conditions identical to the
terms and conditions of Oracle's GSA Schedule A Contract for Oracle
Programs current as of the order date, shall be based on Oracle's
published GSA Price List.
Notwithstanding any other provision of this Agreement, if the
Alliance Member issues a written Sublicense quote and such quote is
accepted by the applicable Sublicensee, for a period of ninety (90) days
after the date of submission of the quote to the Sublicensee, the fee
applicable to the Programs identified in the quote shall be based on the
Price List in effect on such date.
2.3 USERS
The fees for Sublicense of a Program shall be based and priced on the
applicable User Level for the maximum number of Users for such Program, as
specified in the Price List. The Alliance Member shall have the right to
Sublicense on any User basis specified in the Price List in effect at the
time the applicable Program is Sublicensed to a Sublicensee.
3. TERM
This Addendum shall become effective on the Effective Date of this
Addendum and shall be valid for one (1) year (the "Term"), unless
terminated as provided in the Agreement. Any renewal of this Addendum
shall be subject to renegotiation of terms and fees.
4. TERRITORY
The Alliance Member shall have the right to market and grant
Sublicenses of Full Use Programs or Deployment Programs in the United
States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT FOR SUBLICENSEES
A Sublicensee may acquire Technical Support services for Full Use
Programs or Deployment Programs Sublicensed under this Addendum from
Oracle at Oracle's standard rates and fee in effect at the time such
Technical Support services are ordered under an Oracle Technical Support
Services Agreement or Oracle Agreement, as applicable.
5.2 TECHNICAL SUPPORT FEES
Oracle agrees that the Alliance Member shall have the right to offer
Oracle annual Technical Support services to Sublicensees in the United
States that are currently acquiring Full Use Programs or Deployment
Programs. The Alliance Member shall only offer Oracle Technical Support
services with respect to the initial first year of Technical Support for a
Sublicensed Program. The Alliance Member shall only offer Oracle annual
Technical Support services to a Sublicensee provided that:
A. Oracle receives from the Sublicensee an executed, standard Oracle
Technical Support Services Agreement, Oracle Agreement, or other terms to
govern the Technical Support services as agreed to in writing by Oracle
and the Sublicensee;
B. The Full-Use or Deployment Programs are currently Sublicensed by the
Alliance Member;
C. The Alliance Member pays Oracle its required Sublicense fee for the
applicable Sublicensed Programs as provided under the Agreement, and the
Alliance Member pays Oracle the applicable
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
2
<PAGE>
Technical Support services fees as set forth herein in advance;
D. The Alliance Member's Sublicense of the Full Use Programs or
Deployment Programs coincides with the agreement to provide Technical
Support Services for such Programs; and
E. The net Technical Support services fees represent new Technical Support
revenue to Oracle.
The Technical Support services fees payable by Alliance Member as
provided above shall be Oracle's standard rates for such services as
provided under the Price List in effect at the time the Technical Support
services are ordered, discounted by ten percent (10%).
6. SUBLICENSE REPORTS
With each order for Programs for Sublicense to a Sublicensee, the
Alliance Member shall send Oracle a report detailing for each Sublicensed
Full Use Program or Deployment Program: Sublicensee name, address,
make/model and operating system of the Designated System. Full Use or
Deployment Programs, maximum number of licensed Users, whether the
Sublicense is a Trial Sublicense, total Program fees and Technical Support
Fees due to Oracle, and specific descriptions of the Integrated System and
Value-Added.
7. ADDITIONAL LICENSES
During the Term, the Alliance Member may order production release
versions of Oracle off-the-shelf Programs available as production release
as of the Effective Date of this Addendum and listed on the Price List in
effect as of such date. The license fee for Development Licenses shall be
equal to Oracle's standard list license fees in effect when an order is
placed. The Alliance Member shall have the right to order Programs for
use as Marketing Support Licenses at no further charge to the Alliance
Member. The Alliance Member may obtain Technical Support services from
Oracle for such Programs under Oracle's applicable Technical Support fees
and policies in effect when such services are ordered.
The Effective Date of this Addendum shall be________________________.
EXECUTED BY CABLEDATA, INC.: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: /s/ Michael McGrail Authorized Signature:
------------------- -------------
Name: Michael McGrail Name:
------------------------------------ -----------------------------
Title: President Title:
----------------------------------- ----------------------------
ORACLE
Oracle Corporation
500 Oracle Parkway
Redwood Shores, CA 94065
(415) 506-7000
Oracle is a registered trademark of Oracle Corporation.
8-95
3
<PAGE>
VALUE-ADDED ATTACHMENT
DESCRIPTION OF INTEGRATED SYSTEM:
CableData's Intelecable Solution
HARDWARE COMPONENTS:
IBM RS6000, SP platforms
Tandem Integrity NR platform
Tandem OSS/Non Stop platform
SOFTWARE PRODUCTS OTHER THAN PROGRAMS:
BEA Tuxedo TP monitor middleware products
other 3rd party software programs that may be necessary
SERVICES TO BE PROVIDED BY THE ALLIANCE MEMBER:
Professional services; installation, implementation, support
custom software integration projects
<PAGE>
AMENDMENT ONE
TO THE
FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM
BETWEEN
CABLEDATA, INC.
AND
ORACLE CORPORATION
This Amendment One shall serve to amend the Full Use and Deployment
Sublicense Addendum dated ______________ (the "Addendum") between CableData,
Inc. (the "Alliance Member") and Oracle Corporation ("Oracle").
The Addendum is amended as follows:
1. In Section 1.5, delete the words "ten (10)" and replace them with the
words "twenty (20)."
Also, delete the words "thirty (30)" in each instance in which they appear
in such Section and replace them with the words "ninety (90)."
2. After Section 1.2, add the following new Section:
"1.2.A Pass-Through Order
As set forth in Section 1.2 above, the Alliance Member shall have the
right to distribute Full Use Programs and Deployment Programs under a
standard Oracle Software License and Services Agreement. In addition to
the procedure set forth in Section 1.2 above, if elected by the parties,
Oracle shall issue an Oracle Order Form documenting (i) that the end user
shall receive a license for the applicable Programs under the terms and
conditions of the applicable Software License and Services Agreement
between Oracle and the end user, and (ii) that the Alliance Member shall
be responsible for paying Oracle for the Oracle products and services
provided by Oracle to the end user under the Order Form ("Pass-Through
Order"). All three parties will be required to execute the Pass-Through
Order in order for such order to be effective. Also, the Alliance Member
shall provide its purchase order with such Pass-Through Order. The Pass-
Through Order shall constitute the end user's written agreement that the
ordered products and services are ordered subject to the terms and
conditions of the Oracle Agreement. The fees due to Oracle by the
Alliance Member under such Pass-Through Order shall be equal to the total
amount as set forth on the Pass-Through Order less ten percent (10%) of
the net license fees on the Pass-Through Order."
3. After Section 1.2A, add the following new Section:
"1.2B. COMMISSIONS
During the Term of this Addendum, Oracle agrees to pay the Alliance Member
a fee ("Commission") equal to [*] of the net license fees
Oracle receives from Programs licensed by Oracle to end-users in the
Territory, as a direct result of the Alliance Member's marketing efforts.
Unless otherwise mutually agreed to in writing by the Alliance Member and
Oracle, Commissions shall only be paid provided that:
A. Oracle obtains from the end-user an Oracle Software License and
Services Agreement, or other terms to govern the applicable software
license as agreed to in writing by Oracle and the end-user;
B. The Alliance Member provides to Oracle a completed Commission Request
Form which is accepted in writing by Oracle at least five (5) days prior
to the date of license of the applicable Programs, and the end user pays
Oracle directly for all required license fees;
C. The Alliance Member's marketing efforts precede the license grant from
Oracle; and
D. The net license fees represent new revenue to Oracle.
The Alliance Member's Commission shall be calculated on fees for perpetual
software licenses only. The Alliance Member shall not earn a Commission
based on Technical Support fees or fees for other services or products
provided to the end-user by Oracle. Commissions shall not be paid with
respect to any distribution transactions under Sections 1.2 and 1.2.A of
this Addendum, unless otherwise agreed to in writing by Oracle. Oracle
reserves the right to withhold payment of the Commissions due to
noncollectability of revenues from the end-user or if the Alliance Member
employs marketing practices not approved by Oracle. Commissions shall be
paid for Program licenses installed in the Territory. If one or
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
more other Alliance Members seek to obtain Commission for a Program
license for which the Alliance Member is seeking Commission, Oracle shall
reasonably reduce or adjust the Commission rate specified above to
apportion payment of commissions between all Alliance Members which in
Oracle's reasonable judgement are entitled to payment of commissions. A
copy of the Commission Request Form is attached hereto as Exhibit A."
4. In Section 2.1, add the following new paragraph at the end of such
Section:
"Notwithstanding any other provision of this Section, if Oracle confirms
in writing that the Sublicensee is a party to an existing and effective
agreement with Oracle which allows such Sublicensee to acquire the
Programs to be Sublicensed to such Sublicensee at a greater discount than
the discount provided in this Section, the Sublicense Fee for the
Sublicense of such Programs to such Sublicensee shall be equal to the
Oracle standard Program license fee for such Program as specified in the
applicable Price List specified in the applicable agreement with Oracle,
discounted by the applicable discount for such Program licenses as
specified in such agreement. In order to allow Oracle to verify that such
discount is applicable, Oracle may require the Alliance Member to attach a
copy of the applicable agreement to the Alliance Member's Order Form for
such Programs."
5. In Section 2.2, add the following new sentence to the end of such Section:
"All Sublicense fees for Sublicenses installed outside the United States
shall be based on the Oracle Global Price List in effect at the time the
Programs are Sublicensed."
6. In Section 4, delete the body of such Section in its entirety and replace
it with the following:
"4. TERRITORY
The Alliance Member shall have the right to market and grant Sublicenses
of Programs in the Application Package in all countries worldwide, (the
"Territory"), subject to the terms of this Section. Oracle may from time
to time deny the Alliance Member the right to Sublicense in certain
countries in the Territory in order to protect Oracle's interests if, in
the reasonable opinion of Oracle's counsel, such countries (i) do not
provide adequate protection for Oracle's proprietary rights through
copyright, trade secret, patent, or other laws; or (ii) have laws or
regulations or the government has committed acts which in the opinion of
Oracle's counsel, are injurious to Oracle's interests in the Programs.
The Alliance Member acknowledges that the Programs are subject to export
controls imposed on Oracle and the Alliance Member by the U.S. Export
Administration Act, United States Departments of Commerce, Treasury, and
State regulations and directives, and other United States law ("Export
laws"). The Alliance Member certifies that neither the Programs nor any
direct product thereof are (i) exported, directly or indirectly, in
violation of Export laws; or (ii) are intended to be used for any purposes
prohibited by the Export laws, including, without limitation, nuclear,
chemical, or biological weapons proliferation. Furthermore, the Alliance
Member shall not transfer the Programs outside of the territory for which
the Alliance Member has Sublicense rights under this Agreement.
The Alliance Member warrants that it will not grant Sublicenses in or
ship any Programs to a country until it has completed all necessary
government formalities in such country and upon reasonable request by
Oracle, the Alliance Member provides evidence of completion of such
formalities to Oracle. The Alliance Member will indemnify Oracle for any
losses, costs, liability, and damages incurred by Oracle as a result of a
failure by the Alliance Member to comply with the necessary government
requirements in any country. The obligations under this Section shall
survive the expiration or termination of this Addendum. Upon Oracle's
reasonable request, the Alliance Member shall make records available to
Oracle to allow to confirm the Alliance Member's compliance with this
Section."
7. In Section 7, delete the second sentence of such Section and replace it
with the following:
"The license fee for Development Licenses shall be at a discount of
[*] off Oracle's standard list license fees in effect as of the
Effective Date of this Addendum."
Other than the modifications set forth above, the terms and conditions of the
Addendum remain unchanged, and in full force and effect.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
The Effective Date of this Amendment One is_________________________, 1996.
CABLEDATA, INC. ORACLE CORPORATION
By: By:
------------------------------------ -----------------------------
Name: Michael McGrail Name:
------------------------------------ -----------------------------
Title: President Title:
----------------------------------- ----------------------------
<PAGE>
EXHIBIT A
COMMISSION REQUEST FORM
Alliance Member Name:__________________________________________________________
Company Name:__________________________________________________________________
Address:_______________________________________________________________________
City:____________________________ State:__________________________ Zip:________
Contact Name/Title:________________________ Phone Number:______________________
Type of Business Organization:_________________________________________________
Annual Revenue $:___________________________ # of Employees:___________________
Existing Software:_____________________________________________________________
Proposed Software Solution:____________________________________________________
Hardware Platform/Operating System:____________________________________________
Oracle Programs:_______________________________________________________________
Projected Order Date:__________________________________________________________
Projected Dollar amount of Order:______________________________________________
Amount of Commission requested:________________________________________________
Alliance Member direct marketing efforts:______________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Additional Information:________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Any Commission payable under this Commission Request Form shall be specific to
the license of Programs as specified above to the end user set forth above. The
amount of Commission specified above shall not be applicable to any other
Program licenses by Oracle.
The Effective Date of this Commission Request Form shall be__________________.
EXECUTED BY THE ALLIANCE MEMBER: EXECUTED BY ORACLE CORPORATION:
Authorized Signature: Authorized Signature:
---------------- ----------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
<PAGE>
EXHIBIT 10.21
<PAGE>
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of
__________________, 1994 (the "Effective Date"), by and between U.S. COMPUTER
SERVICES, a California corporation doing business as CableData and having its
principal place of business at 2969 Prospect Park Drive, Rancho Cordova, CA
95670 ("CableData"), and TANDEM COMPUTERS INCORPORATED, a Delaware corporation
having a place of business at 19333 Vallco Parkway, Cupertino, CA 95014
("Tandem").
RECITALS
A. CableData owns, or has rights to, and currently licenses and
distributes, certain computer application software products used in market
segments of the cable television and telephony industries, including without
limitation, DTH (Direct to Home), DBS (Direct Broadcast Satellite), SMATV
(Single Master Antennae Television), MDS (Microwave Distribution System),
MMDS (Multipoint Microwave Distribution System), CATV (Cable Television) and
TVRO (Television Receiving Only). The telephony industry includes, without
limitation, local telephone, personal communication networks, cellular, paging
and land lines. Such products include those that are designed to operate on the
Tandem Non-Stop Kernel operating system and the IBM RS6000 AIX operating system
and other UNIX systems. One of these CableData products is CableData's
Intelecable, which CableData owns all rights, title and interest in and to, and
which currently operates only on IBM's RS6000 AIX ("CableData's Intelecable").
B. In accordance with this Agreement, CableData now wishes to develop a
separate version of CableData's Intelecable to operate on Tandem's Non-Stop
Kernel and Integrity NR computer platforms and to enhance it for the domestic
convergence market (the "Product"), and to market, support and maintain the
Product in the above referenced market segments within selected countries once
it is developed.
C. Tandem wishes to assist CableData in its development of the Product by
providing certain [*] support specified in this Agreement.
D. Tandem and CableData intend to enter into a separate Tandem Alliance
Agreement (the "Alliance Agreement") on or about the Effective Date to (a)
further govern CableData's marketing, sale, maintenance and support of the
Product on Tandem platforms once it has been developed and (b) to govern
CableData's value added reselling or system integration of certain Tandem
NonStop Kernel and Integrity NR hardware and software products in the designated
market segments and countries.
NOW, THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Agreement, Tandem and CableData hereby
agree as follows:
1. DEFINITIONS.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-1
<PAGE>
1.1 "Acceptance Criteria" are the mutually agreed upon written technical
and operational performance and functional criteria and Documentation standards
set forth in the Development Plan attached as Exhibit A. The Acceptance Criteria
will be reviewed from time to time and mutually agreed upon changes made as
appropriate.
1.2 "Acceptance Date" means the date Tandem accepts the completed Product
in accordance with the Development Plan and this Agreement.
1.3 "Deliverable" is a deliverable under the Development Plan, including,
but not limited to, object code, Specifications or Documentation.
1.4 "Development Plan" is the written development plan for the Product
mutually agreed to by the parties to be set forth in Exhibit A, which includes,
but is not limited to, the Acceptance Criteria, Deliverables, Documentation,
Milestones and Specifications.
1.5 "Documentation" is the documents, manuals, product descriptions and
other written materials for the Product, referred to, indicated or described in
the Development Plan, including, but not limited to, any user manuals, operating
materials or Specifications.
1.6 "Eligible Products" means Tandem's Non-Stop Kernel and Integrity NR
hardware and software products described in Exhibit B attached hereto.
1.7 "Milestone" is the completion of all of the Deliverables included in a
phase as described in the Development Plan.
1.8 "Specifications" are the functional specifications, external and
internal design specifications, product descriptions and other Documentation
prepared by CableData and approved by Tandem, which define the purpose,
functions, features and performance of the Product set forth in the Development
Plan.
1.9 "Subscriber" means, for purposes of this Agreement, each active
subscriber on CableData's Product during any month. A month, for purposes of
this definition, is the period between successive final month-end cutoffs for
CableData's or its subsidiaries' distributors' or agents' invoicing purposes. An
"active" subscriber, for purposes of this definition, is a residential,
business, educational or governmental entity subscribing to one or more services
in the Target Market.
1.10 "System Libraries" means the code libraries described in the
Development Plan that interface CableData's Intelecable with the Tandem
Platforms.
1.11 "The Tandem Platforms" are Tandem's NonStop Kernel and Integrity NR
computer systems and their successor systems, however designated, so long as the
successor platforms are binary compatible with the NonStop Kernel and Integrity
NR operating systems, whichever the case may be.
1.12 "Target Market" means the CATV, DTH, DBS, MDS, MMDS, SMATV, TVRO,
telephony or convergence market segments in the countries set forth in attached
Exhibit C. The parties may agree from time-to-time to add certain market
segments or countries to, or delete them from, the Target Market.
CableData Port of Intelecable-2
<PAGE>
2. DEVELOPMENT OF PRODUCT.
2.1 GENERALLY CableData will complete the development of the Product in
accordance with the Development Plan, including, but not limited to, porting the
System Libraries to be capable of operating on the Tandem Platforms. All
personnel assigned by CableData to the development of the Product shall possess
suitable technical skills and expertise consistent with the requirements of
their respective assignments under the Development Plan. Except for the "Tandem
Payment" described in Section 3.1 and the Tandem support described in Section
2.2, CableData will be responsible for all costs, facilities, equipment and
support related to the development of the Product and its other obligations
under this Agreement.
2.2 TANDEM SUPPORT. In addition to the Tandem Payment, Tandem will assist
CableData in developing the Product by providing CableData with a combined
credit for up to [*] to be applied solely towards (a) Eligible Products
purchased or licensed from Tandem and (b) Tandem technical and professional
services referred to in the Development Plan ("Professional Services"). Tandem
may use subcontractors to provide Professional Services under this Agreement.
Each time CableData acquires such Eligible Products and Professional Services,
Tandem will debit the [*] credit based on the discounted price Tandem then
customarily charges its Alliance Partners for the applicable Eligible Product or
Professional Service (the "Discount Price"). If CableData has not exhausted the
entire credit by the Acceptance Date, it will expire and unused credit amounts
will be retained by Tandem. The credit will apply only to Eligible Products
developed, owned and manufactured by Tandem and not to Eligible Products
acquired by Tandem from third parties. CableData may purchase or license a
reasonable quantity of such third party Eligible Products from Tandem at its
then-current cost. If CableData exhausts the entire credit, it must pay for any
additional Eligible Products and Tandem Professional Services it acquires at the
Discount Price. Eligible Products acquired by CableData under this Section 2.2
will be used solely by CableData to satisfy its obligations under this Agreement
and will be subject to Tandem's then-current Development System Policies and
Guidelines and its then-current local standard agreement(s) for the purchase and
the license of Tandem Eligible Products and the acquisition of Professional
Services. The Eligible Product purchase agreement(s) and the Professional
Services agreement will be mutually agreed to and entered into by the parties
during the course of the development of the Product (the "Product Purchase
Agreement" or the "Professional Services Agreement").
2.3 DEVELOPMENT DEPENDENCIES. Tandem recognizes that the Product will
utilize the Tuxedo transaction processing system. Tandem will use reasonable
efforts to make a version of Tuxedo which is suitable for Product acceptance
testing hereunder available on its Non-Stop Kernel platform no later than the
third calendar quarter of 1995. Tandem also recognizes that the Product must
utilize Sun Microsystems' ONC RPC protocol in order for it to be ported to the
Integrity NR platform. Therefore, Tandem will use reasonable best efforts to
make a version of such protocol available on the Integrity NR platform for
Product acceptance testing hereunder. Tandem further agrees to use reasonable
best efforts to make its D30 version of its NonStop Kernel operating system (a)
POSIX 1003.1 (v. 1990) compliant in accordance with release 1 under Tandem's
NonStop Kernel Open System Services (OSS) Product API implementation document
dated May 13, 1994, (b) POSIX 1003.2 compliant in accordance with release 1
under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities
implementation document
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-3
<PAGE>
dated September 15, 1994 and (c) National Language Support ("NLS") XPG4-I18.N
compliant, in each case for Product acceptance testing hereunder. If Tandem does
not (i) make Tuxedo available, (ii) achieve POSIX 1003.1 and POSIX 1003.2
compliance, or (iii) achieve NLS XPG4-I18.N compliance, in each case as and when
set forth above, then CableData's obligation to deliver the completed NonStop
Kernel or Integrity NR version of the Product, whichever the case may be, on the
date set forth in the Development Plan will be extended for a period of time
equal to the period of time that such availability or compliance is delayed, or
for such other period of time as the parties may otherwise agree upon in
writing, and the parties will revise relevant Milestone due dates accordingly.
2.4 ACCEPTANCE TESTING.
2.4.1 Each Deliverable will be created by CableData in accordance
with the Specifications and Development Plan to meet the Acceptance Criteria and
will be subject to Tandem's approval, also in accordance with the Acceptance
Criteria. Acceptance tests shall be run in the presence of representatives
designated by Tandem and CableData, respectively, using mutually agreed to test
data and cases corresponding to mutually agreed upon test procedures. The
acceptance tests shall establish whether each Milestone satisfies the Acceptance
Criteria and conforms to the Specifications applicable to such Milestone.
2.4.2 Tandem shall notify CableData in writing within five (5)
business days of any failure(s) or deviation(s) of a Deliverable discovered in
acceptance testing. CableData shall submit to Tandem, as soon as possible, but
in any event within five (5) business days after receipt of notification of a
failure, a proposed plan of action to correct such failure which shall have a
reasonable opportunity for success. CableData will amend its proposed plan of
action as reasonably required by Tandem, and will promptly and diligently
implement the same upon Tandem's approval thereof.
2.5 PROJECT CHANGE ORDERS AND SCHEDULE CHANGES. From time to time during
the development phase of this Agreement, either party may submit requests which
alter, amend, enhance, add to, or reduce the other party's obligations under the
Development Plan. Each party shall evaluate such requests and promptly respond
to the other party, within fourteen (14) days, or such other period of time as
the Project Managers may mutually agree to, with a description of the technical,
price, schedule, and Deliverable impacts of the requested change for current and
subsequent phases of the development. Any additions, deletions, modifications,
or changes which affect any obligation of either party shall be documented in
project change orders issued hereunder ("Change Orders"). Such Change Orders
will include, but not be limited to, the agreed upon changes in Specifications,
the impact on the development schedule and the impact, if any, on the cost of
the development of the Product. Change Orders will be incorporated herein upon
acceptance in writing by both parties as if attached hereto.
2.6 PROJECT MANAGEMENT.
2.6.1 TANDEM PROJECT MANAGER. Tandem shall designate a Project
Manager (the "Tandem Project Manager") who shall have overall responsibility for
the: (i) coordination of the development of the Product; (ii) acceptance of
Deliverables; and (iii) approval of Change Orders. The
CableData Port of Intelecable-4
<PAGE>
Tandem Project Manager shall be CableData's point of contact within Tandem for
the resolution of any problems that may arise in connection herewith.
2.6.2 CABLEDATA PROJECT MANAGER. CableData shall designate a Project
Manager (the "CableData Project Manager"), who shall have overall responsibility
for the: (i) direction and coordination of the development of the Product; and
(ii) approval of Change Orders. The CableData Project Manager shall be Tandem's
point of contact within CableData for the resolution of problems which may arise
in connection herewith.
2.6.3 MANAGEMENT PROCEDURES. The CableData Project Manager and
Tandem Project Manager shall establish and implement reasonable project
management procedures. Such project management procedures shall include, without
limitation, the following: (a) regularly scheduled project status meetings
occurring at least once a quarter during the development of the Product and
thereafter during the term of this Agreement to discuss the overall status of
the development of the Product and each party's ongoing obligations and efforts
under this Agreement (the "Quarterly Meetings"); (b) product design review
meetings in the development of the Specifications; (c) Change Order procedures;
(d) payment certification procedures; (e) acceptance testing; and (f) all other
management procedures reasonably deemed necessary by the CableData Project
Manager and Tandem Project Manager. The CableData Project Manager will provide a
project status report which will be generated upon CableData's completion of
each Milestone. In addition to the Quarterly Meetings, each Manager will meet
with the other Manager at his or her reasonable request to coordinate with
respect to any dispute which may arise relating to the scope, direction or
performance of the development of the Product.
2.6.4 MEETINGS AND SCHEDULES. In addition to the Project Manager,
each party will designate one (1) person to attend each Quarterly Meeting to be
a technical specialist to speak for that party with respect to technical
matters. The parties' Project Managers and technical representatives may be
replaced at any time, by written notice of the designating party to the other
party. Each party will cause its Project Manager and representative to attend
the Quarterly Meetings in locations and at times reasonably acceptable to both
parties. Each party shall be responsible for its own costs and expenses in
attending and participating in such meetings. The CableData Project Manager
shall also develop internal time and responsibility schedules as are necessary
to accomplish the development of the Product in accordance with this Agreement
and shall take appropriate action to maintain such schedules and to promptly
resolve development problems and Specification issues as they arise. The
CableData Project Manager shall supply copies of all such schedules to the
Tandem Project Manager, upon its reasonable request.
2.7 PRODUCT MARKETING, MAINTENANCE AND SUPPORT.
2.7.1 MARKETING. CableData will actively, diligently and
competitively market the Product on the Tandem Platforms in all countries within
the Target Market in accordance with the Marketing Plan referred to below in
Section 2.7.2. On a case-by-case basis, the parties may agree to expand the
Target Market to other market segments or non-English speaking countries on
mutually agreeable terms. CableData may market the Product directly, through
subsidiaries, through local distributors selected by CableData, or through other
means or mechanisms selected by CableData, and
CableData Port of Intelecable-5
<PAGE>
CableData shall retain complete discretion in the appointment and use of such
distributors, means or mechanism, subject to its marketing obligations set forth
in Section 2.7 and the Alliance Agreement. CableData's use of distributors,
subsidiaries or agents to market the Product will not release it from any of its
obligations under this Agreement.
2.7.2 MARKETING PLAN. The Alliance Agreement will include a mutually
agreed to Marketing Plan for the Product. The Marketing Plan may provide for
joint participation in business and trade shows, exhibitions, and similar
events, cooperative marketing and communications with distributors and customers
and appointment of a marketing representative for each party. In accordance with
the Alliance Agreement, each party will cause its employees to cooperate with
the other party's employees in such joint or cooperative marketing efforts
agreed to under the Marketing Plan. If marketing representatives are provided
for, each party may change its representative upon notice to the other party.
2.7.3 MAINTENANCE OF FUNCTIONALITY AND FEATURES. During the term
of this Agreement, CableData will ensure that the Product's functionality and
features are available on each Tandem Platform and are equivalent to the
highest level of functionality and features CableData provides for other
versions of CableData's Intelecable, or its similar software products, which
operate on non-Tandem computer platforms. This will include, without
limitation, assuring that the System Libraries, and the Product as a whole,
comply with (a) POSIX 1003.1 (v. 1990) in accordance with release 1 under
Tandem's NonStop Kernel Open System Services (OSS) Product API implementation
document dated May 13, 1994, (b) POSIX 1003.2 in accordance with release 1
under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities
implementation document dated September 15, 1994 and (c) those portions of
National Language Support XPG4-I18.N which are material to the full and
proper operation of the Product in the language of any non-English speaking
country that the parties may agree to add to the Target Market from
time-to-time so that CableData is able to market such version of the Product
in such country promptly after the parties have agreed to such addition.
CableData will announce that such functionality and features will be
available on the applicable Tandem Platform at the same time and to the same
extent as it announces that the functionality and features are or will be
available on any non-Tandem platform. CableData will provide such
functionality and features on the applicable Tandem Platform no later than
ninety (90) days after the date it first provides such functionality on any
non-Tandem platform. Notwithstanding the foregoing, if an end-user customer
dictates that the Product include third party software functionality or
features that are not then available on either Tandem Platform, and CableData
reasonably determines that it is not technically feasible to make such
functionality or features available on either Tandem Platform under this
Section 2.7.3, then before or promptly after making the functionality or
features available on the non-Tandem platform CableData will give Tandem
notice of that fact and the parties will thereafter promptly meet to review
CableData's determination. If Tandem reasonably agrees that making such
functionality or features available is technically unfeasible, then CableData
need not make such functionality or features available on either Tandem
Platform or the parties may agree to attempt to make the functionality or
features available on mutually acceptable terms, which may include further
Tandem monetary and/or technical support. On the other hand, if the parties
do not agree on the technical feasibility of making such third party
functionality or features available, then the dispute will be resolved in
CableData Port of Intelecable-6
<PAGE>
accordance with the dispute resolution provisions of Section 12.9 below and
CableData's obligation to make the functionality or features available on the
Tandem Platforms will be deferred until the dispute is resolved. If the
maintenance of the functionality and features of the Product under this
Section 2.7.3 results in any modifications or enhancements to or derivative
works of the Product, such modifications, enhancements or derivative works
will be considered part of the Product.
2.7.4 ALLIANCE AGREEMENT. Tandem and CableData will enter into the
Alliance Agreement. When entered into, the Alliance Agreement will govern the
marketing, sale, maintenance and support of the Product to and for Tandem
customers for use with Eligible Products, as modified or supplemented by any
additional or different terms in this Section 2.7, if any. The Alliance
Agreement will also govern any mutually agreed to discounts or fees provided to
CableData in connection with CableData acting as a value added reseller or
system integrator of Eligible Products or a Tandem Alliance software house.
3. FUNDING OF THE DEVELOPMENT.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-7
<PAGE>
[*]
4. COOPERATION. Each party shall cooperate with the other party during the
term of the Agreement as follows:
4.1 TECHNICAL DIRECTION AND INFORMATION. Each party will use good faith
efforts to provide the other party with advance notices of new product
developments and releases that its technical representative under this Agreement
has determined have applicability and appropriateness to the Product and
Eligible Products as soon as practical, but in no event later than such
information is publicly disclosed by the party providing such information. The
receiving party shall treat such advance notices as confidential and proprietary
information of the other party in accordance with Section 7.4.
4.2 NEW PRODUCTS. As and when Tandem releases or makes available in a
country within the Target Market any new software products for use with Eligible
Products, Tandem and CableData may jointly evaluate such products for
applicability to the Product, and in the event that they reasonably agree that
such products are applicable to the Product, then Tandem may provide CableData
with a machine-executable copy of the product free of charge solely for
evaluation purposes in accordance with the terms of the Product Purchase or Loan
Agreement.
4.3 EXISTENCE OF AGREEMENT. Neither party shall disclose the existence of
this Agreement until such time as the parties shall mutually agree upon and
implement a public announcement, except to its employees, contractors or agents
who have a strict need to know about it in order for such party to meet its
obligations under this Agreement; thereafter, either party may disclose the
existence of this Agreement, but neither party shall disclose the specifics of
the Agreement to third parties without the prior written consent of the other
party, except to its employees, contractors or agents as set forth above, as may
be required by law or to its auditors in the internal operations of its
business.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-8
<PAGE>
5.1 RETAINED DISCOUNTS AND INFLUENCE FEES. Beginning on the first day of
the first calendar quarter following the Effective Date and for the remaining
portion of a (5) year period commencing as of the Effective Date, Tandem will
retain [*] during the first year of such period, [*] during the second year
of such period and [*] during the third, fourth and fifth years of such
period, of (a) any and all "Discounts" (defined in the Alliance Agreement)
CableData receives under the Alliance Agreement for purchases, licenses or
leases of any Tandem products, including, but not limited to, Eligible
Products, for value added resale, system integration, internal use, service
bureau or any other purpose, except for use as a Tandem development system
("Retained Discounts"), and (b) any and all software house "Revenue Influence
Fees" (defined in the Alliance Agreement), or any other fees CableData
receives under the Alliance Agreement on revenue Tandem obtains from a
customer's purchase or lease of Tandem hardware, which result from any and
all CableData application or other software packages covered by the
Agreement, including, but not limited to, the Product ("Retained Fees"). For
example, if CableData is acting as a Tandem value added reseller in the
second year of the retention period and is receiving a [*] Discount, then
Tandem will retain [*] points of the Discount leaving CableData with a [*]
percent [*] net Discount; and if in the third year of the retention period
CableData then becomes a software house instead of a value added reseller and
is receiving a [*] percent [*] Revenue Influence Fee, then Tandem will retain
[*] percentage points of the Fee leaving CableData with a net Fee of [*]
percent [*]. Cumulative Retained Discounts and Retained Fees during the
retention period will be capped at [*].
5.2 SUBSCRIBER FEE. Beginning on the Effective Date and for a period of
five (5) years thereafter, CableData will accrue for Tandem's benefit a
Subscriber count fee as follows: For each customer of CableData providing
Subscriber services in the Target Market (other than non-paying Beta site
customers) who uses the Product on or with any Eligible Product in any manner
(including, without limitation, via licensing or in a service bureau
arrangement), no matter who owns, leases, possesses, operates or controls the
Eligible Product itself, Tandem shall earn a fee of [*] per month per
subscriber (the "Subscriber Fee"). Cumulative Subscriber Fees during the five
(5) year Subscriber Fee period will be capped at [*].
5.3 FEE OFFSETS. Within thirty (30) days after Tandem receives each
monthly Subscriber Fee report from CableData described in Section 5.5 below, it
will, for CableData's benefit, (a) offset accrued and previously unoffset
Retained Discounts and Retained Fees against all accrued Subscriber Fees which
have not been previously offset against and (b) provide CableData with a written
report of the offset. For example, if at the end of the first month there are
[*] in Retained Discounts and Retained Fees and CableData's Subscriber Fee
report shows [*] in Subscriber Fees, the offset will leave no remaining
unoffset Retained Discounts and Retained Fees to carry forward for the next
month and [*] in remaining accrued Subscriber Fees. If in the next month
there are [*] in new Retained Discounts and Retained Fees and [*] in
new Subscriber Fees, then the [*] in newly accrued Retained Discounts and
Retained Fees will be offset against a total of $100,000 in new and previously
accrued and unoffset Subscriber Fees leaving a zero balance in both the accrued
Retained Discount and Retained Fees account and the accrued Subscriber Fee
account to carry forward for the next month.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-9
<PAGE>
5.4 FINAL RECONCILIATION OF FEES. At the end of the five (5) year period
described in Sections 5.1 and 5.2 above, if there are any remaining unoffset
Subscriber Fees CableData will pay this amount to Tandem by check at Tandem's
office at 19333 Vallco Parkway, Cupertino, CA 95014 within thirty (30) days
after the end of the (5) year period. If at the end of the five (5) year period
the cumulative amount of all accrued Subscriber Fees, including those which have
received an offset, does not equal [*] CableData does not have to pay
Tandem the difference between such cumulative amount and [*]. If at the
end of the five (5) year period, all remaining Retained Discounts and Retained
Fees exceed all remaining Subscriber Fees, CableData will not be entitled to the
excess which will be retained by Tandem.
5.5 RECORDS AND REPORTS. CableData shall keep complete and accurate
written records of Subscriber Fees and Tandem will keep complete and accurate
written records of Retained Discounts and Retained Fees. Beginning with the
second month following the Effective Date, for each calendar month during the
five (5) year period referred to in Section 5.1 and 5.2 above, CableData will
provide, within fifteen (15) days after the end of each month, a written report
so that Tandem can determine the Fees offset for that month. Not more than once
per calendar quarter, within thirty (30) days after written request to the other
party, Tandem or CableData shall, through an independent third party, be
entitled to conduct an audit and review of the financial records and reports of
the other party relating to Subscriber Fees and counts or Retained Discounts and
Retained Fees in order to verify the proper amounts of accrued Subscriber Fees
and offsets. The audit shall occur within normal business hours, at the
corporate headquarters in California of the party being audited. The auditing
party shall be entitled to retain an independent certified public accounting
firm to assist it with the audit. The parties shall be responsible for their own
costs and expenses in connection with the audit, unless the independent auditor
determines that the audited party's financial records were materially incomplete
or inaccurate by at least [*] percent [*], in which case it will bear the
other party's costs and expenses of that audit.
5.6 TAXES. All taxes, duties, fees and other governmental charges of any
kind, including withholding taxes (except based on Tandem's net income), which
are levied, assessed, or otherwise imposed by or under the authority of any
government or any political subdivision thereof, on revenues derived by
CableData, its subsidiaries, distributors or agents in connection with licenses
of the Product or Retained Discounts and Retained Fees and Subscriber Fees, will
not be considered a part of, deducted from, or offset against any Subscriber
Fees payable to or Discounts and Fees retained by Tandem under this Section 5.
6. NON-EXCLUSIVITY. The parties agree that the relationship between them set
forth in this Agreement is non-exclusive and each party is free to enter into
similar or other agreements with third parties.
7. PROPRIETARY RIGHTS.
7.1 OWNERSHIP OF THE PRODUCT. CableData shall retain exclusive ownership
of all right, title and interest in and to the Product, and all portions thereof
(including, but not limited to System Libraries), now existing or to be
developed or adapted pursuant to this Agreement by
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-10
<PAGE>
CableData, Tandem, any third party or parties, or their respective employees,
representatives, agents, consultants, independent contractors, successors and
assigns, in any and all forms (including but not limited to source code and
machine-executable code), all derivative works thereof and enhancements thereto,
all Product documentation, work papers or written development materials relating
to any of the foregoing developed pursuant to this Agreement, and all
Intellectual Property Rights in any of the foregoing; and Tandem hereby assigns
to CableData all right, title, and interest in and to any of the foregoing
(including but not limited to, assignment of any copyrights it may have to the
System Libraries), which it may otherwise have or be deemed to acquire in the
Product. Upon CableData's request, Tandem agrees to assist CableData at
CableData's sole expense as may be reasonably required to perfect CableData's
rights as described in this Section 7.1, which assistance shall include the
execution of any and all instruments or documents that may be necessary or
convenient to establish, evidence, maintain, defend or enforce CableData's
rights as described in this Section 7.1. "Intellectual Property Rights" means
all right, title and interest in and to patents, patent applications,
copyrights, mask work rights, trademarks, trade names and trade secrets.
7.2 OWNERSHIP OF ORIGINAL WORKS OF TANDEM. CableData does not claim any
rights to original works created or owned by Tandem which are not part of the
Product, including but not limited to any Eligible Products. All Intellectual
Property produced by Tandem created prior to the effective date of this
Agreement or which is not part of the Product will be owned by Tandem, except to
the extent such work contains any portion of the Product or any other original
work of CableData. CableData recognizes and agrees that Tandem has and retains
any and all know-how, ideas, design concepts or techniques employed by Tandem in
rendering Professional Services to CableData under this Agreement which are not
covered by Section 8.1, including all Intellectual Property rights therein, and
may provide similar services to third parties.
7.3 NO IMPLIED LICENSES. This Agreement shall not be construed or
interpreted to grant to either party any right or license, by implication,
estoppel or otherwise, to sell, transfer, assign, develop, or make any use of
this Product or any of the Eligible Products, except as expressly provided in
this Agreement or in the Alliance Agreement. Without limiting the generality of
the foregoing sentence, except as set forth in the Alliance Agreement, neither
party shall have any rights to adapt, alter, localize, license or sublicense to
third parties any of the foregoing items, without the prior written consent of
the other party, which may be granted or withheld in the other party's sole
discretion. Except as expressly set forth in this Agreement or the Alliance
Agreement, neither party shall employ, retain, or subcontract with any third
party or parties to perform any obligations or exercise any rights it may have
under this Agreement, unless such party has first obtained the prior written
consent of the other party to such action, which consent will not be
unreasonably denied.
7.4 CONFIDENTIALITY.
7.4.1 PROTECTION OF CONFIDENTIAL INFORMATION. Should either party
disclose any of its confidential information for any purpose in connection with
this Agreement, the party receiving the information shall maintain the
information in confidence, shall use at least the same degree of
CableData Port of Intelecable-11
<PAGE>
care to maintain the secrecy of the information as it uses in maintaining the
secrecy of its own proprietary, confidential and trade secret information, shall
always use at least a reasonable degree of care in maintaining the secrecy of
the information, shall use the information only for the purpose of performing
its obligations under this Agreement unless hereafter agreed in writing by the
other party. Neither party shall disclose any such information to any person
except those of its employees, agents and contractors having a need to know in
order to accomplish the sole purpose stated above, and shall require each
employee, agent and contractor before he or she receives direct or indirect
access to the information, to acknowledge the confidential, proprietary and
trade secret nature of the information and to agree to be bound by this Section
7.4. Each party shall deliver to the other party, in accordance with any request
from the other party, all copies, notes, packages, diagrams, computer memory
media and all other materials containing any portion of the other party's
confidential information.
7.4.2 LIMITATION ON OBLIGATIONS. Neither party shall have an
obligation with respect to any portion of such information which (i) was known
to it prior to receipt from the other party, (ii) is lawfully obtained by either
party from a third party under no obligation of confidentiality or (iii) is or
becomes publicly available other than as a result of any act or failure to act
of either party. Confidential Information must be marked or otherwise clearly
designated as such in writing by the disclosing party prior to disclosure or
within five (5) days of disclosure if provided orally.
7.4.3 INCLUDED WITHIN CONFIDENTIAL INFORMATION. For purposes of this
Section 7.4, confidential information made available to Tandem by CableData may
include, without limitation, the Product and other CableData software
application products made available to Tandem in the course of performance of
this Agreement, and all documentation and code relating thereto, and
confidential information made available to CableData by Tandem may include
without limitation all information relating to the Eligible Products and any
other hardware or software Products Tandem provides CableData in the course of
performance of this Agreement, and all documentation and code related thereto.
Confidential information shall also include, but is not limited to, either
party's proprietary, technical, developmental, marketing, sales, operating
performance, cost, know-how, business and process information, computer
programming techniques, and all record-bearing media containing or disclosing
such information and techniques, as well as any samples, models or prototypes,
or parts thereof.
7.5 USE OF TRADEMARK, NAME. Except as set forth in the Alliance
Agreement, each party agrees not to use the other's name, trade name, trademark,
service mark, or other designation without such other party's prior written
consent.
8. WARRANTY. CableData represents and warrants that (a) it owns all right,
title and interest in and to CableData's Intelecable and in and to all of the
Intellectual Property it will use to develop the Product and perform its
obligations under this Agreement or (b) it has the authority to do so without
infringing the rights of any third party or creating any financial obligation to
any third party.
9. INDEMNIFICATION. CableData will defend or settle any claim against Tandem
(a) resulting from the performance or use of the Product and any information
CableData supplies about the same, or (b) that the Product
CableData Port of Intelecable-12
<PAGE>
infringes any patent, utility model, industrial design, copyright, trade secret,
mask work, trademark or servicemark, provided Tandem promptly notifies CableData
in writing of the claim and cooperates with CableData in and grants it sole
authority to control the defense and any related settlement. CableData will pay
the costs of such defense and settlement and any costs and damages finally
awarded against Tandem. THE ABOVE STATES TANDEM'S EXCLUSIVE REMEDY AND
CABLEDATA'S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT BY THE PRODUCT.
10. NO CONSEQUENTIALS. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT
FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY IS INFORMED OF THEIR POSSIBILITY,
INCLUDING, BUT NOT LIMITED TO, LOSS OF RECORDS OR DATA, GOODWILL, PROFITS, USE
OF MONEY OR PRODUCTS, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS, ARISING
OUT OF CONTRACT OR TORT.
11. TERM AND TERMINATION.
11.1 TERM. This Agreement shall become effective on the date first
written above and shall continue in effect thereafter for a period of five (5)
years unless sooner terminated pursuant to this Section 11.
11.2 TERMINATION.
11.2.1 TERMINATION FOR BREACH OR INSOLVENCY. A party may terminate
this Agreement, effective upon dispatch of written notice of termination to the
other party, without judicial notice or resolution, if: (a) the other party
breaches any of its material obligations under this Agreement and fails to cure
such breach within thirty (30) days after receipt of notice specifying the
breach; or (b) the other party ceases to conduct business in the normal course;
becomes insolvent; enters into suspension of payments, moratorium,
reorganization or bankruptcy; makes a general assignment for the benefit of
creditors; admits in writing its inability to pay debts as they mature; suffers
or permits the appointment of a receiver for its business or assets; or avails
itself of or becomes subject to any other judicial or administrative proceeding
that relates to insolvency or protection of creditors' rights.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-13
<PAGE>
[*]
11.2.2 TERMINATION OTHER THAN FOR BREACH.
11.2.2.1 ELECTION TO TERMINATE. Notwithstanding anything to the
contrary in this Agreement, prior to Tandem's acceptance of both the final
Development Plan and the final Marketing Plan referred to in Section 3.1(b)
above, if for any reason whatsoever, Tandem or CableData decides in its sole and
absolute discretion not to agree (a) to the preliminary Development Plan, or any
part thereof, (b) to the final Development Plan, or any part thereof, (c) to the
final Marketing Plan, or any part thereof or (d) to enter into the Alliance
Agreement, then either party (the "Terminating Party") may provide the other
party (the "Non-Terminating Party") with notice that it elects to end its
participation in the development of the Product and terminate the Agreement.
However, within five (5) business days of the date of the Non-Terminating
Party's receipt of such notice, the Non-Terminating Party may provide the
Terminating Party with notice requesting that a Vice President designated by
each party jointly meet with all Project Managers and technical representatives
at an agreed upon date and time within five (5) business days of the Terminating
Party's receipt of such notice to confer regarding the Terminating Party's
election to terminate. If the meeting is requested, each party will cause such
persons to attend the meeting. If the parties have not agreed in writing within
five (5) days from the date of the meeting to continue the Agreement it will be
considered terminated at the end of such (five) 5 day period. Each party may
change its designated Vice President with notice to the other party and the
decisions of the Vice Presidents will bind the respective party. If the Non-
Terminating Party does not request the above described meeting in the time
provided for above, then the Agreement will be deemed terminated as of the date
of the Terminating Party's notice of election to terminate. [*]
11.2.2.2 REMEDY FOR ELECTION TO TERMINATE. If the Agreement is
terminated by either party in the manner set forth in Section 11.2.2.1 above, a
party's election to terminate will not be considered a breach of this Agreement
by such party. In addition, no matter which party elects to terminate the
Agreement, within thirty (30) days of the date of termination, [*] and
notwithstanding anything to the contrary in this Agreement, neither party
will have any further liability of any kind to the other party in connection
with this Agreement and the development of the Product, except for liability
for any breach of the Agreement which occurred prior to such termination and
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-14
<PAGE>
any liability in connection with rights and obligations under this Agreement
which survive its termination under Section 12.18 or survive under the relevant
provisions of a Product Purchase Agreement or a Professional Services Agreement.
11.3 EFFECT OF TERMINATION. Except as otherwise expressly stated in this
Section 11.2 or in Section 12.18 below (Survival), upon any termination of this
Agreement all rights and obligations of each party to this Agreement shall
expire and be of no further force or effect. Upon the termination of this
Agreement for any reason, each party will promptly deliver to the other party
all of the other party's Confidential Information in its possession or control.
11.4 EXCLUSIVE REMEDY. THE REMEDIES PROVIDED FOR IN SECTIONS 11.2.1.1,
11.2.1.2 AND 11.2.2.2, AND ANY REMEDIES EXPRESSLY PROVIDED FOR ELSEWHERE IN THIS
AGREEMENT, STATE THE ENTIRE LIABILITY OF A PARTY, AND THE SOLE AND EXCLUSIVE
REMEDY OF THE OTHER PARTY, FOR THE ACTS OR OMISSIONS OF A PARTY WHICH GIVE RISE
TO SUCH REMEDIES, EXCEPT FOR ANY REMEDIES PROVIDED FOR BREACH OF THE
CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT.
[*]
12. MISCELLANEOUS PROVISIONS.
12.1 INDEPENDENT CONTRACTORS.
12.1.1 No provision of this Agreement shall be construed to
constitute either party as the agent, servant, employee, partner, or joint
venturer of the other party. The parties to this Agreement are and shall remain
independent contractors. Each party shall retain exclusive management,
direction, and control of its employees and the work to be performed by it
hereunder.
12.1.2 All personnel assigned by one party to work with the other
party pursuant to this Agreement shall remain employees of the assigning party,
and shall possess suitable technical skills and expertise consistent with the
requirements of their respective assignments. Each party shall cause any of its
employees assigned to provide services at the other party's facilities to comply
with all reasonable regulations and instructions while at such facilities, which
were previously provided to the other party or the employee. Each party shall
have the right to exclude from its premises any persons who refuse to
individually sign a nondisclosure and confidentiality agreement substantially in
the form of and no more restrictive than the provision of Section 7.4 herein.
The assigning party shall indemnify and hold the other party harmless from any
and all damages and losses finally awarded for any claims, suits or liability
for bodily injury, death, or damage to real property or tangible personal
property, which results from any failure by such personnel to comply with such
regulations and instructions (other than the negligence of the party to whom the
personnel were assigned). The indemnifying party shall have sole control of any
litigation and/or settlement and the indemnified party will promptly
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-15
<PAGE>
notify the indemnifying party when it first learns of such suit, claim or
action. The indemnified party will provide the indemnifying party with
reasonably requested assistance in the defense or settlement of the suit, claim
or action.
12.2 NO ENDORSEMENT. TANDEM DOES NOT APPROVE, ENDORSE, WARRANT OR
GUARANTEE THE PRODUCT. CABLEDATA WILL NOT REPRESENT TO ANY THIRD PARTY THAT
TANDEM HAS APPROVED, ENDORSED, WARRANTED OR GUARANTEED THE PRODUCT WITHOUT THE
SPECIFIC PRIOR WRITTEN CONSENT OF TANDEM.
12.3 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original instrument, but both of which together
shall constitute only one and the same instrument.
12.4 ASSIGNMENT. Neither this Agreement nor any right or obligation
hereunder is assignable or delegatable in whole or in part, whether by operation
of law or otherwise, except (a) as otherwise expressly set forth in this
Agreement or (b) upon prior written consent of the other party, which consent
will not be unreasonably withheld. Any assignment or delegation which violates
this Section is void. Notwithstanding the foregoing, this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. The successor or assign of a party hereto
shall execute and deliver all documents and instruments reasonably requested by
the other party to evidence and confirm its obligations under this Agreement.
12.5 NOTICES AND OTHER COMMUNICATION. Every notice or other communication
required or contemplated by this Agreement to be given by any party shall be
delivered either by (i) personal delivery, (ii) postage prepaid, return receipt
requested, registered or certified mail (airmail if available), or the
equivalent of registered or certified mail under the laws of the country where
mailed, (iii) nationally recognized overnight courier, such as Federal Express
or UPS, or (iv) facsimile with a confirmation copy sent simultaneously by
postage prepaid, return receipt requested, registered or certified mail, in each
case addressed to the party for whom intended at the following address:
To CableData: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: Bob Crowley, VP Marketing
Division
Facsimile: (916) 636-5750
With a copy to: General Counsel
Facsimile: (916) 636-4561
To Tandem: Tandem Computers Incorporated
19191 Vallco Parkway
Cupertino, CA 95014
Attn: Vice President & General Manager Communications
Division
Facsimile: (408) 285-5458
or at such other address as a party previously shall have designated by written
notice to the other party. Notice by registered or certified mail
CableData Port of Intelecable-16
<PAGE>
shall be effective on the date it is officially recorded as delivered to the
intended recipient by return receipt or equivalent, and in the absence of such
record of delivery, the effective date shall be presumed to have been the 5th
business day after it was deposited in the mail. All notices and other
communications required or contemplated by this Agreement to be delivered in
person or sent by courier shall be deemed to have been delivered to and received
by the addressee and shall be effective on the date of personal delivery;
notices delivered by "tested" telex or by facsimile with simultaneous
confirmation copy by registered or certified mail shall be deemed delivered to
and received by the addressee and effective on the first business day in the
location where the facsimile was received after the date sent. Notice not given
in writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.
12.6 LAW TO GOVERN. The validity, construction and enforceability of this
Agreement shall be governed in all respects by the laws of California, except
its choice of law provisions, whether or not one or more of the parties shall
now be or hereafter become a resident of another state or country.
12.7 SUBJECT HEADINGS. The subject headings of the Articles and Sections
of this Agreement are included for the purpose of convenience only, and shall
not affect the construction or interpretation of any of its provisions.
12.8 NO WAIVER OF RIGHTS. All waivers hereunder must be made in writing,
and failure at any time to require any other party's performance of any
obligation under this Agreement shall not affect the right subsequently to
require performance of that obligation or any other obligation under this
Agreement. Any waiver of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision or a waiver of modification of the provision or any other provision of
this Agreement.
12.9 SETTLEMENT OF DISPUTES. Any controversy or claim between the parties
arising out of or in connection with this Agreement shall first be submitted for
resolution as follows. Within thirty (30) days of the time that such dispute or
controversy arises, a Vice President of each party shall confer in good faith in
an attempt to resolve the controversy or claim. The decisions of the Vice
Presidents will be final and binding on the parties. Either party may change its
representative at any time with prior notice to the other party. A party's
election to terminate this Agreement under Section 11.2.1.1 or 11.2.1.2 is not
subject to the foregoing. A party's election to terminate this Agreement under
Sections 11.2.2 and 12.19 will be resolved solely in the manner described in
those Sections.
12.10 STATUTE OF LIMITATIONS. Neither party will bring a legal action
related to this Agreement more than four (4) years after the cause of action
arose. Nothing in this Agreement will affect the limitation period applicable to
any action or proceeding for (i) unauthorized use or disclosure of confidential
information provided under this Agreement or (ii) infringement of proprietary
rights.
12.11 ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties concerning the subject matter
CableData Port of Intelecable-17
<PAGE>
hereof and supersedes any and all prior negotiations, understandings or
agreements in regard thereto, oral or written.
12.12 EXPENSES. Except as expressly provided herein to the contrary, each
party to this Agreement shall be solely responsible for its expenses incurred in
connection with the negotiation, preparation, execution, delivery and
performance of this Agreement.
12.13 AMENDMENTS. This Agreement or the Exhibits hereto may not be
modified except by an instrument or instruments in writing signed by the party
or parties against whom enforcement of such modification is sought.
12.14 INCORPORATION BY REFERENCE. Exhibits A through F attached to this
Agreement and referred to herein are hereby incorporated by reference into this
Agreement.
12.15 SEVERABILITY. Whenever possible, this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement should be prohibited or invalid under
applicable law, such provision shall be construed as ineffective to the extent
of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
12.16 EXPORT CONTROLS. CableData acknowledges that the Eligible Products,
and all related confidential and technical information, documents and materials,
are subject to export controls under the U.S. Export Administration Regulations.
CableData will, cause its subsidiaries, affiliates, agents, distributors, and
customers to: (i) comply strictly with all legal requirements established under
these controls; (ii) cooperate fully with Tandem in any official or unofficial
audit or inspection that relates to these controls and (iii) not export, re-
export, divert, transfer or disclose, directly or indirectly, any Eligible
Products, or related confidential or technical information, document or
material, or any direct product thereof, to any of the countries currently or
subsequently listed in the U.S. Export Administration Regulations, or to any
national or resident thereof, without obtaining the prior written authorization
of Tandem and the U.S. Commerce Department.
12.17 UNLAWFUL PAYMENTS. Neither CableData nor Tandem will use any
payment or other benefit derived from the other to offer, promise or pay any
money, gift or any other thing of value to any person for the purpose of
influencing official actions or decisions affecting this Agreement, while
knowing or having reason to know that any portion of this money, gift or thing
will, directly or indirectly, be given, offered or promised to (i) any person
acting in an official capacity for any government or its instrumentalities
(including government-owned or controlled corporations) or any non-governmental
client or prospective client or (ii) any political party, party official or
candidate for political office.
12.18 SURVIVAL. Each party's rights and obligations under Sections 5
(Recoupment of Tandem Payment) and Section 12.19 (Export Controls) are expressly
intended to survive the expiration or termination of this Agreement. However, if
the Agreement is terminated in accordance with Sections 11.2.1.1 or 11.2.1.2 of
Section 11.2.1, then each party's rights and obligations under Section 5 will
not survive, except with respect to the Integrity NR version of the Product if
it is completed before termination and
CableData Port of Intelecable-18
<PAGE>
[*] In addition, no expiration or earlier termination of this Agreement shall
relieve either party of its rights or obligations under Section 7 of this
Agreement (Proprietary Rights), which rights and obligations are expressly
intended to survive any such expiration or termination.
12.19 FORCE MAJEURE. Neither party will be liable for any failure or
delay in performing an obligation that is due to causes beyond its reasonable
control, such as natural catastrophes, governmental acts or omissions, laws or
regulations or labor strikes. If any such cause continuously prevents or delays
performance of this Agreement for more than sixty (60) days, the party awaiting
performance may elect to terminate this Agreement by providing notice to the
other party in the manner set forth in Section 11.2.2.1, and the other party may
invoke the request for meeting procedures set forth in such Section. In the
event a force majeure event occurs prior to Tandem's acceptance of the completed
Product and Tandem is the party awaiting performance, if Tandem thereafter
terminates this Agreement as provided for above, [*].
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute this Agreement in each party's name as of the
Effective Date.
"CableData" "Tandem"
U.S. COMPUTER SERVICES, TANDEM COMPUTERS INCORPORATED
a California corporation
By: /s/ Robert D. Crowey By: /s/ John Sims
--------------------------- --------------------------
Name: Robert D. Crowey Name: John Sims
------------------------- ------------------------
Title: Senior Vice President Title: Vice President
_____________________________ ___________________________
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
CableData Port of Intelecable-19
<PAGE>
EXHIBIT A
Development Plan
CableData Port of Intelecable-20
<PAGE>
EXHIBIT B
Eligible Tandem Products
The following Tandem hardware and software products described in Tandem's
published Price List as of the Effective Date:
1. All servers running the Guardian operating system and all associated
attached peripheral devices.
2. Himalaya series servers (currently K100, K1000 and K10000) running the
NonStop Kernel operating system and all associated attached peripheral devices,
including systems designated by Tandem as their successors.
3. Integrity NR servers (NR4401, NR4412, NR4436 designations) running UNIX
operating system 5.4 (IRIX or Tandem based UNIX operating systems) and all
associated attached peripheral devices, including systems designated by Tandem
as their successors.
CableData Port of Intelecable-21
<PAGE>
EXHIBIT C
Target Market Countries
United States of America; Guam; Puerto Rico; Canada; United Kingdom of Great
Britain and Northern Ireland; Australia
CableData Port of Intelecable-22
<PAGE>
EXHIBIT 10.22
<PAGE>
[LOGO] HEWLETT
PACKARD PORTING AGREEMENT
This Porting Agreement ("Agreement") is made effective JANUARY 25, 1996 (the
----------------
"Effective Date"), between CABLEDATA INC., ("Supplier"),
---------------
a CALIFORNIA CORPORATION, and HEWLETT-PACKARD COMPANY ("HP"), a California
----------------------
Corporation.
1. PORT AND ENHANCEMENTS
1.1. Supplier has developed TELECOM APPLICATION software that facilitates
SUBSCRIBER MANAGEMENT FOR INTEGRATED CABLE AND TELEPHONY as more
particularly described in Exhibit A ("Programs').
1.2. HP and Supplier desire to have the Programs ported to run on the
HP 9000 computer systems in all their supported configurations and with
all associated peripherals ("HP Products").
1.3. Supplier shall port the Programs to the HP Products in accordance with
the deliverables, specifications, development schedule, and other
requirements contained in Exhibit A.
1.4. In order to assist Supplier in its porting obligations under this
Agreement, HP shall provide access to HP Products in accordance with
Exhibit B.
1.5. Any versions, releases, modifications. updates, upgrades, error
corrections, new features, or new functionalities developed by Supplier
for the Programs ("Enhancements") shall be made commercially available
by Supplier on the HP Products no later than the date by which each
such Enhancement is commercially available on Supplier's development
platform.
1.6. Except to the extent of any performance limiting features of an HP
Product, all ported Programs and Enhancements shall perform on the HP
Products with features, functionality, and speed no less than that of
the performance of the Programs and Enhancements on IBM & TANDEM
platforms.
1.7. Supplier shall adapt all Programs and Enhancements to operate on object
code compatible revisions, releases and successors to the HP Products.
1.8. Supplier shall conduct performance tests on each ported Program or
Enhancement consistent with the criteria and procedures specified in
Exhibit C. When a Program or Enhancement successfully passes those
tests, Supplier shall deliver to HP a copy of the Program or
Enhancement, together with the test results and all other deliverables
required under this Agreement.
1.9. A port shall be complete when the ported Program or Enhancement
operates on the HP Products in accordance with sections 1.3, 1.6, and
1.8 above.
1.10. Except as provided in section 1.4 above and in Exhibit B&E Supplier
shall bear all costs and expenses with respect to performing its
obligations under this Agreement.
2. MARKETING
2.1. Supplier shall be solely responsible for all marketing and
distribution of Programs and Enhancements. Supplier shall market and
distribute all Programs and Enhancements on the HP Products to the
same extent and for the same duration as on comparable non-HP
platforms.
2.2. Supplier shall promote all Programs and Enhancements on the HP Products
in a commercially reasonable fashion. Such promotion shall include a
statement in Supplier's literature of the availability of the Programs
and Enhancements on the HP Products.
2.3. Except as expressly provided in this Agreement, neither HP nor
Supplier has made any promise or other representation regarding any
Program or Enhancement, including with respect to the success of any
Program or Enhancement in the marketplace.
2.4. Upon completion of the port of the Programs initially ported pursuant
to sections 1.3, 1.8, and 1.9 above, HP may assist Supplier in
becoming a U.S. Value Added Business in accordance with HP's standard
programs and agreements.
2.5. Supplier shall provide HP with 0 (ZERO) free copies of each Program and
Enhancement. including all associated documentation. Such copies shall
be for demonstration, benchmarking, support, and training purposes.
2.6. In addition to the free copies specified above, Supplier shall grant
HP a N/A percent discount from its standard published price list for
all Programs and Enhancements purchased by HP.
3. SUPPORT
3.1. Supplier shall be solely responsible for all maintenance and support
of Programs and Enhancements on the HP Products, which maintenance and
support shall be at least equal to that which Supplier provides on IBM
& TANDEM platforrns. At a minimum, Supplier shall:
(a) Cure defects in the Programs. Enhancements, and associated
documentation pursuant to the requirements set forth in Exhibit C;
(b) Maintain a telephone number for HP and end-users to call during
Supplier's business hours to report defects and to otherwise
receive assistance; and
(c) Coordinate problem resolution with HP when operational problems
appear traceable to HP Products.
<PAGE>
3.2. Supplier and HP have designated, in Exhibit D. Account Managers to
facilitate communication between Supplier and HP. The Account Managers
may be changed by either party upon notice to the other.
3.3. Supplier shall support each Program and Enhancement for five years
after the date that Supplier discontinues distributing the Program or
Enhancement on the HP Products.
4. WARRANTY AND INDEMNITY
4.1 Supplier warrants that:
(a) It has all rights necessary to perform this Agreement, without
restriction; and
(b) The Programs, Enhancements, and associated documentation and
intellectual property do not violate or infringe any third party's
intellectual property rights.
4.2. As used in this Agreement, the term "intellectual property" means all
patents, tradenames, trade secrets, trademarks, service marks,
copyrights, and other similar proprietary rights.
4.3. Supplier shall defend at its sole expense any claim, suit, or
proceeding brought against HP or end-users that any Program,
Enhancement, or associated documentation violates or infringes any
third party's intellectual property right (collectively "Infringement
Action"). HP shall give Supplier the authority, information, and
assistance (at Supplier's expense) to defend the Infringement Action.
Supplier shall pay all damages and costs awarded in any Infringement
Action against HP or end-users.
4.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
(INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY
PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS AND
OBJECTIVES OF THIS AGREEMENT. THE FOREGOING EXCLUSION OF DAMAGES SHALL
APPLY REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY,
CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
5. PROGRAMMING MATERIALS
5.1 Supplier hereby grants HP and its subsidiaries a present, worldwide,
non-exclusive, fully paid-up license to use the Programming Materials
to support and maintain the Programs on the HP Products. HP's
license shall be exercisable only in the event Supplier ceases to do
business in the normal course or enters into any proceeding in
bankruptcy, whether voluntary or involuntary.
5.2 The term "Programming Materials" includes the source code version of
each Program and Enhancement, in a format acceptable to HP, together
with all associated printouts, listings, programmers' notes, technical
documentation, custom compilers, utilities, libraries, test suites,
build scripts, and other materials necessary for HP to exercise its
license.
5.3. Supplier shall provide all Programming Materials to HP on request at
any time after exercise of the license by HP.
5.4. Except as provided in this article 5, this Agreement grants no license
in the Programs or Enhancements to HP.
6. MISCELLANEOUS
6.1. All notices under this Agreement shall be in writing and shall be
considered given as of twenty-four hours after sending by electronic
means (such as telecopy) or by air courier service, or as of forty-
eight hours after deposit in the U.S. Mail (certified, return receipt
requested). All notices shall be sent to the respective Account
Manager at the address listed on Exhibit D.
6.2. Neither party may, without the prior written consent of the other
party, publicize or otherwise disclose the terms or existence of this
Agreement to any third party.
6.3. Neither party shall assign or otherwise transfer any rights or
responsibilities set forth in this Agreement.
6.4. The following Exhibits are fully incorporated in this Agreement by
the first reference in this Agreement to each such Exhibit:
(a) Exhibit A, the Programs, Program Specifications, and Deliverables;
(b) Exhibit B, Access to HP Products;
(c) Exhibit C, Performance Criteria and Error Definitions;
(d) Ecxhibit D, Account Managers; and
(e) Exhibit E, PAYMENT MILESTONES
6.5. The remedies contained in this Agreement are in addition to any other
remedies available at law or in equity.
6.6. Neither party's failure to exercise any right under this Agreement
shall be deemed a waiver of such right.
6.7. This Agreement represents the entire understanding and agreement
between the parties as to the matters set forth. Any representation,
promise, or condition not explicitly set forth in this Agreement
shall not be binding on either party.
6.8. This Agreement may only modified by a writing signed by authorized
representatives of both Supplier and HP.
CableData, Inc. HEWLETT-PACKARD COMPANY
- -------------------------------------
By: /s/ Jerry Johnson By: /s/ Nancy Burgess
---------------------------------- ------------------------------------
Typed Name: Jerry Johnson Typed Name: Nancy Burgess
-------------------------- ----------------------------
Title: Chief Technology Officer Title: Industry Marketing Manager
------------------------------ ---------------------------------
<PAGE>
EXHIBIT A
1 Programs to be Ported:
All programs associated with the market release of Intelecable 2.61.
Release 2.61 will include all programs and system libraries currently in
the full version of the Intelecable product.
2. Program Specifications:
All features, functional and performance criteria that are associated
with Intelecable 2.61.
3. Deliverables:
Deliverables will include all Intelecable 2.61 executables and product
documentation. Intelecable executables will be provided on HP-UX
acceptable media and format. User and system documentation will be
provided to HP in hard copy form.
[*]
Any changes in the development schedule shall be mutually agreed upon in
writing by both parties.
Additionally, the next available release after Intelecable 2.61 supporting
the HP platform will be Intelecable 2.91, since the porting project
duration extends beyond the Intelecable 2.71 release date.
5. Supplier and HP will enter into an Independent Software Vendor (ISV)
agreement for computer products under HP's Channel Partner program. In
order to qualify for demo/development discounts, a demo/development
agreement or a PA-RISC Developer agreement will also be required.
6. Supplier agrees to provide HP with an annual business plan and quarterly
sales forecasts on an ongoing basis.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
EXHIBIT B
ACCESS TO HP PRODUCTS
---------------------
1. To assist Supplier in its porting obligations under the Agreement, HP will
load Supplier the following HP Products- HP 9000 SERIES 800 MODEL K400 AND
MODEL E55 (CONFIGURATIONS ATTACHED) TO BE USED AT SUPPLIER SOFTWARE
DEVELOPMENT CENTER (the "Loaner Products"). The description of the Loaner
Products is subject to any changes evidenced in miscellaneous shippers
issued from time to time by HP. HP retains title and ownership to the
Loaner Products, although Supplier shall be responsible for all risk of
loss or damage to the Loaner Products until returned to HP.
2. The Loaner Products will be loaned to Supplier UNTIL 24 MONTHS FOLLOWING
RECEIPT OF EQUIPMENT (the "Loan Period"). If Supplier does not purchase
the Loaner Products from HP pursuant to section 7 below, the Loaner
Products shall be returned to HP immediately upon the expiration of the
Loan Period, at Supplier expense.
3. Subject to availability, HP shall ship the Loaner Products to Supplier as
soon as practical after all necessary documents to evidence and perfect
HP's security interests in the Loaner Products, as required by applicable
law and as elected by HP, are recorded or filed. Supplier hereby
irrevocable appoints HP as its attorney-in-fact to execute any document
necessary for HP to protect its right, title, and interest in the Loaner
Products.
4. During the Loan Period, HP will provide, at no charge to Supplier, remedial
hardware maintenance on the Loaner Products on an as-needed basis to cover
equipment failures. Support for HP software on the Loaner Products
throughout the Loan Period shall be handled as follows: CABLEDATA WILL
PURCHASE SOFTWARE SUPPORT FOR THEIR ENVIRONMENT FOR A PERIOD COVERING THE
LOAN.
5. Supplier's right to user the Loaner Products is non-transferable, and
Supplier shall not encumber the Loaner Products in any manner. Supplier
shall use the Loaner Products only at Supplier's principal office and
primarily for porting and testing purposed incident to this Agreement.
6. All software in the Loaner Products shall be licensed from HP under HP's
standard software license terms.
7. Upon completion of the Loan Period, Supplier may purchase the Loaner
Products for $ FAIR MARKET VALUE AS DETERMINED BY HP.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
EXHIBIT B
K-Series Loaner Configuration for CableData, Inc.
<TABLE>
<CAPTION>
QTY PRODUCT/OPTION DESCRIPTION
--- -------------- -----------
<S> <C> <C>
1 A3181A Model K400, one 100MHz PA7200 CPU, 128MB
1 A2993A Additional 100 MHz PA7200 CPU
4 A3027A OD1 128MB High Density ECC Memory Module
1 A2992A OD1 Memory Carrier (Increase capacity to 32 SIMM Slots)
2 A3145A ODZ 2GB disk Drive,Fast/Wide SCSI-2,Half-Height
1 A3184A ODS CD-ROM Drive, 650MB,SCSI-2(Complementary)
1 A3183A ODZ 4-8GB DDS DAT Drive SCSI-2
1 C1064GX ABA 700/96 System Console, Green Screen
1 28696A ODZ 20MB/Sec Fast/Wide SCSI-2 Interface Card
1 J2092AZ ABA 16-Port RS-232 Direct Connect Mux (RJ45)
1 A2440A APS,ABA,OD1 HP-UX10.0,2-user license,Instant Ignition
1 B3897A AJG+AGM HP-UX 10.0, CD-ROM Media
1 B3921AA OBC HP C/ANSI C Developer's Bundle License
1 B3901AA APS,ODI,AAU HP C/ANSI C Media & Doc on CD-ROM
1 B3651DA X Terminal Software & Documentation
1 Glance Plus (up to 1-year time bomb)
1 C5264RZ lx4GB F/W Disc
1 002 800 Series Option
2 C5266U 4GB upgrade/add on
2 002 800 Series Option
2 OS4 Factory Install
1 A1897A 1.6 Meter Cabinet
1 ABA US Power
- ------------
Note:
Base system includes 802.3 LAN (Ethernet) with auto-sensing twisted pair
and AUI connect
</TABLE>
<PAGE>
EXHIBIT B
E-Class Loaner Configuration for CableData
<TABLE>
<CAPTION>
QTY PRODUCT/OPTION DESCRIPTION
--- -------------- -----------
<S> <C> <C>
1 A2959AW HP9000 E Class Server Package
1 A3194AW Model E55 Processor
4 A3131A ODZ 128MB Memory Module
1 A2442A ODU MUX Personality Card For Base System I/O
2 A3304A OD1 2GB SE SCSI-2 Disk Drive
1 A3184A ODZ 650MB CD-ROM Drive
1 A3183A ODZ 4GB DDS DATA Drive with Data Compression
1 C1064WX ABA System Console, White Screen, US Version
1 28696A ODZ BP-PB FWD SCSI-2 Host Adapter
1 A2943A ODZ Upgrade from 2 to 4 HP-PB slots in E-class server
1 A2962AZ Rackmount kit for E-class server
1 A2440A APS,ABA,0D1 HP-UX 2 User license & manuals
1 B3897A AJG HP9000 Server HP-UX licenses and Media for all levels
1 A1897A 021 1.6 Meter Standard 19" EIA rack
1 A2997A ODZ,017 1.8 kVA Rackmounted BP PowerThrust UPS
1 A3196A 5 Meter Power Cord
1 C526ORZ Factory racked 5x2 FWD SCSI-2 Disk Storage System
1 C5258R 002 2 GB FWD SCSI-2 Disk in rack enclosure
1 B3921AA OBE,OBC HP-UX 10.0 Server Documentation
- -------------
Note:
Base system includes EtherTwist LAN and AU1 connector
</TABLE>
<PAGE>
EXHIBIT C
1. Performance Criteria:
The same procedures and criteria will be used for the ported deliverables
as for other Intelecable supported platforms. CableData uses performance
benchmarks as capacity and reliability guidelines for system performance.
Capacity involves transaction rates, and reliability relates to the
availability of the Intelecable software without interruption. The
guidelines are used as a guide for determining whether or not analysis and
corrective action are indicated.
2. Test Procedures:
CableData's automated performance test lab will be used for all feature and
performance regression testing.
3. Error Definitions:
<TABLE>
<CAPTION>
Problem Solution Objectives
- ---------------------------------------------------------------------------------------------
CABLEDATA DEFECT ISOLATION,
SEVERITY LEVEL DESCRIPTION CONFIRMATION AND FIX
<S> <C> <C> <C>
1. System Down System Down, Immediate
Cannot Do Business
2. High Impact, No Business Functions Cannot ASAP - Between
Workaround Be Performed Maintenance Releases
3. High Impact, Workaround Heavily Impacted, Can Do Next Maintenance Release
Daily Business
4. Low Impact, Workaround Slightly Impacted, Can Do Deferred; Future
Daily Business Maintenance Release
5. No Impact No Impact On Daily Business Possible, Future Maintenance
Release
- ----------------------------------------------------------------------------------------------
</TABLE>
4. CableData procedures for remedying errors in the Intelecable product will
be followed.
<PAGE>
EXHIBIT D
ACCOUNT MANAGERS
----------------
Supplier Hewlett-Packard
Name Mark R. Breunig Name Patricia C. Wilcox
Title Product Manager Title Manager, Business Support Systems
Address 11020 Sun Center Drive Address 19091 Pruneridge Ave.
Rancho Cordova, CA 95670 Cupertino, CA 95014
Telephone Number 916-636-4709 Telephone Number 408-447-1319
Fax Number 916-636-5808 Fax Number 408-447-6452
<PAGE>
EXHIBIT E
PAYMENT MILESTONES
------------------
1. In consideration for Supplier's performance of the Agreement, HP shall pay
Supplier the amounts specified below:
[*]
2. Supplier shall repay to HP the sum of [*] in accordance with the following
formula:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Such payments shall be due within N/A after the end of each calendar quarter,
and shall be sent to
-----------------------------------------------------------
- -------------------------------------------------------------------------------
3. In the event Supplier fails to perform its obligations under Exhibit A of
this Agreement by [*] AFTER THE HP HARDWARE/SOFTWARE IS DELIVERED AND
OPERATIONAL, Supplier shall immediately refund to HP all sums paid by HP
pursuant to this Agreement.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
AMENDMENT TO
PORTING AGREEMENT
WHEREAS, CABLEDATA, INC., a California corporation (hereinafter "Supplier"), and
HEWLETT-PACKARD COMPANY (hereinafter "HP") have entered into that Porting
Agreement (hereinafter called the "Agreement") dated of an even date herewith;
and
WHEREAS, Supplier and HP desire to modify the Agreement such that wherever
language contained in this Amendment conflicts with the terms of the Agreement,
the language contained in this Amendment shall control;
NOW, THEREFORE, the parties agree as follows:
1. Paragraph 1.5 of the Agreement is deleted in its entirety, and the
following is substituted therefor:
1.5 Any versions, releases, modifications, updates, upgrades, error
corrections, new features, or new functionalities developed by
Supplier for the Programs ("Enhancements") shall be made
commercially available by Supplier on the HP Products no later
than [*] from the date by which each such Enhancement is
commerically available on Supplier's development platform.
2. Paragraph 1.7 of the Agreement is amended by adding the following language
at the end thereof:
", provided these are made available to Supplier."
3. The second sentence of Paragraph 2.1 of the Agreement is deleted in its
entirety, and the following is substituted therefor:
[*]
4. Paragraph 2.5 of the Agreement is deleted in its entirety, and the
following is substituted therefor:
2.5 Supplier shall provide HP with one (1) free copy of each Program and
Enhancement, including all associated documentation. Such copies
shall be for demonstration, benchmarking, support and training
purposes. HP's use of such Program and Enhancement shall be subject
to Supplier's standard license terms.
5. Paragraph 3.3 of the Agreement is deleted in its entirety, and the
following is substituted therefor:
3.3 Supplier shall support each Program and Enhancement for the remaining
support life of the Program or Enhancement following the date that
Supplier discontinues distributing the Program or Enhancement on
the HP Products.
6. New Paragraphs 6.9 and 6.10 are added to the Agreement as follows:
6.9 This Agreement shall be governed by the laws of the State of
California.
6.10 The term of Supplier's obligations under Section 2 of this
Agreement shall be for
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
All other terms and conditions of the Agreement shall remain in full force and
effect unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
31st day of January, 1996
HEWLETT-PACKARD COMPANY CABLEDATA, INC.
By: /s/ Nancy Burgess By: /s/ Jerry Johnson
----------------------------------- ---------------------------------
Nancy Burgess Jerry Johnson
----------------------------------- ---------------------------------
(Print Name) (Print Name)
Industry Marketing Manager Vice President
----------------------------------- ---------------------------------
(Title) (Title)
January 31, 1996 January 30, 1996
----------------------------------- ---------------------------------
(Date) (Date)
<PAGE>
EXHIBIT 10.26
<PAGE>
ON/LINE OPERATING & LICENSE AGREEMENT
between
U.S. COMPUTER SERVICES
dba CABLEDATA
2969 Prospect Park Drive
Rancho Cordova, California 95670
and
Customer Continental Cablevision
---------------------------------------------------------------------
Principal Office Address The Pilot House, Lewis Wharf
------------------------------------------------------
City Boston State MA Zip 02110
---------------------- ------------- -------------------
U.S. Computer Services (hereinafter called "USCS"), a California corporation
doing business as CableData, agrees to provide Customer and Customer agrees to
subscribe exclusively to the services and products offered through USCS'
proprietary DDP FINANCIALS AND ON/LINE APPLICATIONS SOFTWARE (hereinafter
collectively called "Software") and the constituent Software, products and
services (hereinafter individually called "Product" and collectively called
"Products") for all Customer Cable Systems listed in Attachment A, subject to
the following terms and conditions:
1. TERM OF AGREEMENT
1.1 The initial term of this Agreement shall be for a period of [*]
commencing on the date of full execution of this Agreement. After
the initial term, this Agreement shall be automatically renewed
for one (1) year periods unless either party hereto provides to
the other written notice of intent not to renew at least one
hundred eighty (180) days prior to the expiration date of the
initial term or succeeding terms, if any.
2. LICENSE
2.1 For each Software Product requested by Customer, USCS grants to
Customer a non-exclusive, nontransferable license, without right of
sublicense, to use, perform, or execute such Product or portions
thereof solely for Customer's own use at the Computer Facilities or
Remote Sites designated in Attachment A of this Agreement. Customer
may, at its option from time to time by giving USCS prior notice,
request to add new Computer Facilities, Remote Sites, or Products and
services; USCS may then add such new sites to Attachment A and such
Products and services and the prices therefor to Attachment B.
2.2 Any use of the Product at other than the designated installation
address(es) set forth in Attachment A will require the extension of
the licenses herein granted for each additional installation address.
Such extension(s) shall be made by amendment to Attachment A upon
written request by Customer and approval by USCS of the additional
installation address(es), which approval shall not be unreasonably
withheld. If Customer temporarily is unable to use the Product at the
designated Computer Facility or Remote Site because of conditions
beyond Customer's control, the affected license may be temporarily
extended, upon prior approval by USCS, to permit Customer to use the
Product at another designated Computer Facility.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
2.3 The license granted herein for each Product specified in Attachment B
shall be effective on the installation date of, or conversion date to,
the Product and shall continue through the end of the term, including
any renewal terms as set forth in Paragraph 1.1, subject to the
provisions of Sections 12 and 19.
2.4 THIS AGREEMENT COVERS USCS' APPLICATIONS SOFTWARE AND DOES NOT COVER
COMPUTER OPERATING SYSTEM SOFTWARE. NO WARRANTY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO TANDEM OR OTHER
OPERATING SYSTEM SOFTWARE.
3. PRE-CONVERSION TRAINING
3.1 USCS will provide the standard initial training program for Customer's
employees at a USCS regional service center. The initial training is
included in the Conversion Fee and will consist of the classes
required by USCS. Equipment and materials used in the instruction are
provided by USCS.
3.2 Customer is responsible for all transportation to and from the
regional service center, lodging and food for Customer's employees
that attend the USCS training.
3.3 Customer agrees to send qualified employees who will be fulfilling
System-related job roles to those classes designed for their job roles
before the conversion, in accordance with the job roles and the
required classes defined by USCS. In the event the employee does not
fulfill the requirements of the class, Customer agrees to provide a
replacement and said replacement will attend the required class(es)
before conversion.
4. CONVERSION TO THE SOFTWARE
4.1 USCS will install the Software Products requested by Customer on
Customer's equipment in consideration of Customer's payment of the
relevant conversion fee and reasonable travel and expenses
reimbursement.
4.2 USCS will provide, at time of conversion, a standard on-site training
program for Customer's employees at the designated Computer
Facility(ies) as set forth in Attachment A. The on-site training is
included in the Conversion Fee. In the event Customer requests on-
site training at Remote Sites, such additional training will be
provided at then current prices.
4.3 USCS will convert Customer's data and initialize data on the Software.
In the event data is not in a defined computer format and available on
magnetic tape, 9-track 800/1600 bpi, then an additional charge is
applicable. USCS' services to convert and initialize Customer's data
shall include all reasonable actions necessary to make such data
compatible with the Software and the Product, including reformatting
of such data if needed.
4.4 USCS will provide one complete set of documentation at no charge.
Customer can purchase additional copies at then current prices.
5. USCS' CUSTOMER SUPPORT FOR USCS APPLICATIONS SOFTWARE
5.1 USCS will provide telephone Software support for Customer for the
duration of this Agreement.
5.2 Customer support telephone calls to a USCS regional service center
will be handled immediately or returned within sixty (60) minutes by a
qualified USCS employee. Customer must provide qualified individuals
in Customer's Cable System(s) who have attended USCS' relevant
classes, with whom USCS will deal. Customer will be required to
maintain a level of expertise to properly utilize the Software during
the term of this Agreement.
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<PAGE>
5.3 Excluded from Software support under this Agreement are (a)
operational procedures for loading and shutting down the computer
system; (b) setting computer operating system command parameters; (c)
nightly procedures for database backup and file maintenance, (d)
defining whether any problems are hardware or Software-based; (e)
database recovery necessitated by an operating system software or
operational problem; (f) balancing file allocation and disk space
management; (g) operational procedures to support lockbox, cutoff, and
Transmit-X; and (h) conducting performance analysis of the computer
system. These operational support services are available at USCS'
then current prices.
5.4 The telephone Software support provided under this Agreement covers
only USCS applications Software licensed hereunder and does not
include support of any computer operating system software (such as
Tandem's Guardian software).
6. USE OF THE SOFTWARE BY CUSTOMER
6.1 Customer will be responsible for determining the appropriate uses to be
made of the Products and establishing the features through the setting
of Product parameters.
6.2 Customer will utilize the Software as set forth in the Software
documentation.
6.3 Customer is not authorized to make modifications to the Software.
Should Customer make such modifications, USCS will not be responsible
for support of any Software as modified, nor for the compatibility of
such modified Software with any equipment, with the unmodified
Software or with any future Software releases.
7. ON-GOING TRAINING
7.1 Customer can purchase additional instruction at then current prices
for all classes taught at the regional service center. Customer can
also purchase customized on-site training at then current prices.
Customer is responsible for all transportation to and from the
regional service center, lodging and food for Customer's employees
that attend the USCS training.
8. CHANGES TO THE SOFTWARE BY USCS
8.1 USCS reserves the right to make changes, updates and enhancements to
the existing Software as determined by developments in the Cable TV
industry. USCS may modify its charges to Customer to reflect the new
services, updates and enhancements and the cost thereof. It is
understood that Customer shall not, without its prior written
approval, be obligated to convert to such modified Product if such
conversion would substantially increase Customer's obligations under
this Agreement.
8.2 USCS may, during the term of this Agreement, add new Products at
prices to be published at the time of introduction. Customer may
elect such new Products as set forth in Section 2.
8.3 USCS is not responsible for the inability of any software or other
product purchased or licensed from third parties to function because
of changes to USCS Software.
8.4 At Customer's request, custom modifications to the Software will be
made by USCS at the discretion of USCS and at Customer's expense.
Such custom modifications shall belong exclusively to USCS. If such
modification(s) increases USCS' processing costs, Customer agrees that
the prices for the Products may be increased because of such
modification(s).
8.5 Customer agrees that USCS will have the right to levy charges for
services resulting from Customer's modification of the Software or for
Customer's failure to utilize current procedures.
8.6 CUSTOMER AGREES THAT USCS WILL HAVE THE RIGHT TO LEVY A SOFTWARE
SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT CUSTOMER IS TWO OR
MORE MAJOR SOFTWARE RELEASES BEHIND THE CURRENT SOFTWARE RELEASE. As
used herein, a "Major Software Release" means release by USCS to its
customer
-3-
<PAGE>
base of a version of the Software which contains (i) a major revision
in database structure or design; or (ii) modifications of more than 50
application programs; or (iii) changes made pursuant to 100 or more
SARs (Software Assistance Requests) or DCRs (Database Change
Requests); or (iv) addition or modification of two or more major
components or schemes (i.e. rate codes, collections).
9. DATA PROCESSING, REPORTS AND STATEMENT PRODUCTION SERVICES
9.1 WITHIN THIRTY (30) DAYS OF EXECUTION OF THIS AGREEMENT, CUSTOMER MUST
PROVIDE TO USCS A CUTOFF SCHEDULE AGREEABLE TO USCS FOR THE NEXT
SUCCEEDING TWELVE (12) MONTH PERIOD FOR EACH CUSTOMER CABLE SYSTEM
UNDER THIS AGREEMENT, AND CUSTOMER MUST UPDATE SUCH SCHEDULE(S) EACH
NOVEMBER FOR THE NEXT SUCCEEDING CALENDAR YEAR.
9.2 Transmission of all data to and from USCS shall be via
telecommunications (including, but not limited to Transmit-X) or
shipment of tape(s) and shall be at Customer's expense.
9.3 The normal turnaround time for a processing cycle of any file update
at USCS' International Billing Services facility, defined as the
elapsed time between USCS' complete receipt of usable data
transmission, or tape(s), and the return transmission of processed
data, disk pack(s) or tape(s), is an average of sixty (60) hours over
twelve (12) consecutive processing cycles.
Statement production will be completed within twenty-four (24) hours
of the successful completion of the cycle update and transmission of
processed data back to customer and the approval to proceed with
statement production by the customer.
9.4 In the event Customer requests special processing, USCS may, at its
discretion, increase this turnaround time by an additional twenty-four
(24) to forty-eight (48) hours. In no event should turnaround time
exceed one hundred eight (108) hours except in the case of force
majeure or delays caused by Customer.
9.5 Customer reports and Customer billing statements and other products
shall be provided in accordance with options selected by Customer.
10. PRICE
10.1 The Price Schedule for utilizing the Software and Products selected by
Customer is set forth in Attachment B. Such prices shall be subject
to increase upon forty-five (45) days' prior notice, provided however
that the percentage of such increase or increases shall not exceed the
percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the U.S. Department of Labor (a) from
the date of last general price increase prior to the effective date of
this Agreement (b) to the date of price increase under this Agreement.
Prices for all USCS products and services ordered and used by Customer
but not set forth in Attachment B shall be the prices in effect on the
date of use of the product or service.
10.2 In order to be eligible for Inclusive Bundled Price and Inclusive
Package Bundled Price, the Cable System must have not less than 20,000
Subscribers.
10.3 The following definitions are applicable to, and incorporated in,
Attachment B:
a. "Computer Facility" means a single Customer cable property
location where the Processor(s) is located.
b. "Remote Site" means a Customer cable system(s) operating by
telecommunications from Customer's or USCS' Computer Facility.
c. "Corp(s)" means Customer cable system(s) identified by a unique
corp-city number as set forth in Attachment B.
d. "Subscribers" or "Subs" means the number of historical ledger
records produced (including all active and inactive subscribers
with a balance or a transaction.)
e. "Update" means the processing of Customer's DDP Financials master
file for the purpose of updating some or all of the Subscriber
records on that master file.
-4-
<PAGE>
f. "Processor" means the central processing unit, memory and
addressable peripherals on which the Software functions.
g. "Multiple System Operator" or "MSO" means a cable operator owning
or managing not less than four (4) cable systems using USCS with
an aggregate Subscriber count on USCS in excess of one hundred
thousand (100,000).
10.4 Printing and graphics, inserts, supplies and other materials and
services not listed in Attachment B shall be available at then current
USCS prices. Said prices are subject to change without notice.
Customer may purchase such forms, supplies, and materials from other
vendors, provided materials which impact the statement production
process (including inserts) or the Software meet USCS' reasonable
specifications necessary to ensure proper operation.
10.5 Customer agrees that USCS will have the right to charge in accordance
with USCS' then current prices for special projects requested by
Customer and performed for Customer by USCS that are outside the scope
of day-to-day customer service.
11. TAXES
11.1 Customer will pay, or reimburse, USCS for all taxes and charges
imposed on Customer or USCS on any interest in or use of any service,
Software, or tangible good provided hereunder, or upon this Agreement,
excluding, however, all taxes on or measured by USCS' income.
12. PAYMENT TERMS
12.1 USCS shall invoice Customer monthly for services and products, postage
prepayment, taxes and other charges. The monthly charges in Attachment
B for all software license fees will be billed one (1) month in
advance. Postage prepayment will be billed as set forth in Section
13. All other fees and charges for products and services, unless
otherwise noted, shall be billed in arrears.
12.2 Standard payment terms are net cash, without discount, due and payable
within thirty (30) days from the date of the invoice. In the event
that Customer does not render full payment of all undisputed amounts
within thirty (30) days of the date payable, USCS may, after notifying
Customer, cease any and all services until such account is brought to
a current status.
12.3 If Customer fails to pay any charges when due and payable, Customer
agrees that USCS will have the right to invoice and Customer will pay
a late payment service charge of 1.5 percent per month, but not in
excess of the lawful maximum, on the past due balance.
12.4 In the event that Customer should dispute a particular charge,
Customer will, within fifteen (15) days of the USCS invoice, notify
USCS in writing of the disputed charge and the reason for the dispute.
USCS will attempt to resolve such dispute as soon as possible. In all
events, Customer is obligated to pay all undisputed charges on each
invoice when due. Charges not disputed by Customer within three (3)
months of invoice date shall be final and non-disputable.
13. POSTAGE
13.1 Customer agrees to prepay Customer's postage for billing statements no
later than one (1) week prior to Customer's cutoff date. Customer
shall remit to USCS an amount equal to the number of Customer's
current month Subscribers multiplied by an average postage rate. This
amount will be adjusted to actual postage on the following month's
invoice. This amount will be indicated on the postage invoice mailed
to Customer at least fifteen (15) days prior to the due date. In the
event Customer does not prepay postage, as set forth above, USCS
reserves the right to hold Customer's billing statements until
sufficient postage prepayment is received.
13.2 In the event of an increase in U.S. postage rates, postage prepayment
shall be increased by the amount of such postage rate increase.
-5-
<PAGE>
14. NON-DISCLOSURE OBLIGATIONS
14.1 USCS agrees that all information disclosed by Customer during
performance of this Agreement shall be considered proprietary, to be
held in confidence and used only in performance of this Agreement. No
information provided by Customer under this Agreement shall be
duplicated or furnished to another party without prior written consent
of Customer except as required by law. USCS will exercise the same
standard of care to protect Customer's proprietary data as is used to
protect its own proprietary data from unauthorized disclosure.
14.2 Customer understands the proprietary nature of the Software designed
and developed solely by USCS. Customer agrees to exercise similar
care to prevent unauthorized disclosure of any information that could
be injurious to the business operations and welfare of USCS and/or
third parties, including Tandem. Customer further acknowledges that
the Software and Products of USCS are provided in confidence and are
trade secrets of USCS and will be so protected by Customer. Customer
agrees to maintain the Products in confidence and not to disclose any
portion of the Products to any third party, and to utilize its best
efforts to protect the contents of the Products or any part thereof
from unauthorized disclosure by its agents, employees or
representatives. Customer agrees to take appropriate action, by
notice to its employees and all others who are permitted access to the
Products, to satisfy its obligations under this Agreement.
15. TITLE
15.1 Customer recognizes and agrees that, during the term of this Agreement
and thereafter, title to, ownership of, and all proprietary and
intellectual property rights in the Products licensed under this
Agreement, and all copies and derivative works thereof, will at all
times remain in USCS. Customer agrees to use the Products only as
provided in this Agreement. The existence of a copyright notice
shall not cause, or be construed as causing, a Product to be a
published copyrighted work or to be in the public domain. Customer
agrees that it will not make or have made any more copies of the
Products or any part(s) thereof than are necessary for the use
hereunder by Customer and that it will cause such copies upon
reproduction to have the same copyright or proprietary legends that
appear on the Products or any part(s) thereof. Customer recognizes
that certain parts of the Products may have been copyrighted by USCS
or by third parties. Customer agrees that it will affix to any and
all reproductions of those parts of the Products which are
copyrighted, the form of copyright notice indicated by USCS and/or
third parties.
16.LIMITATION OF REMEDY
16.1 USCS agrees that it will maintain, in machine readable form, in off-
site premises, a duplicate copy of Customer's master file as most
recently updated, to enable regeneration of the DDP Financials
master file data in the event of loss of such items due to machine
failure, conduct of USCS' employees, fire or other calamity at USCS'
International Billing Services facility. Customer agrees to maintain
duplicate backup disk packs and/or tapes as provided for in the
Software in the event of loss of such items due to the reasons stated
above.
16.2 USCS' liability for loss of any Software data or materials shall be
limited to the replacement or regeneration of the lost items by the
method or means deemed most suitable by USCS.
16.3 Neither USCS nor Customer shall be considered in default due to any
failure in performance of this Agreement, in accordance with its
terms, should such failure arise out of causes beyond their control and
without their fault or negligence.
16.4 In the event of an error or omission, whether human or mechanical, on
the part of USCS or its employees, USCS may elect to reprocess the
data at no extra cost to Customer to correct said error or omission.
USCS' liability to Customer for any losses or damages, direct or
indirect, arising out of this Agreement shall not exceed the total
amount billed or billable to Customer for the performance of the
particular task which gave rise to the loss or damage. USCS shall not
be liable for any special or consequential damages in any event.
- 6 -
<PAGE>
16.5 EXCEPT AS PROVIDED IN THIS SECTION 16, NO WARRANTY, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO THE PRODUCTS
AND SERVICES PROVIDED HEREUNDER.
17. INSPECTION
17.1 It is understood that Customer may inspect all work being performed
under this Agreement to the extent practical at all reasonable times
and places. However, it is also understood that such inspections by
Customer shall not be performed in any way that shall unduly delay the
work being performed. Reasonable facilities and assistance shall be
provided for Customer's inspection if any inspection is made by
Customer on the premises of USCS. Such facilities and assistance shall
be provided without extra charge. However, should Customer perform
inspection at a place other than the premises of USCS, such inspection
shall be at the expense of Customer.
18. INFRINGEMENT
18.1 USCS warrants that the Products and all components thereof, and their
use in the manner contemplated by this Agreement, do not and will not
infringe any United States patent or copyright.
18.2 If any action is instituted against Customer based upon a claim that
the Products or any component or use thereof infringe a United States
patent or copyright, USCS shall, for and on behalf of Customer, defend
and indemnify such action at USCS' expense, provided Customer promptly
notifies USCS in writing of said action and USCS has sole control of
the defense and any settlement negotiations.
18.3 USCS shall have no liability to Customer for any infringement action
or claim which is based upon or arises out of:
a. Any modification of the Products by Customer without the express
written permission of USCS; or
b. Any use of the Products in combination with any other system,
equipment or software which is not furnished by USCS or approved
by USCS in writing.
19. TERMINATION
19.1 Notwithstanding any other provision herein, USCS will have the right
to terminate this Agreement or all or any licenses granted herein if
Customer fails to comply with any of its material obligations under
this Agreement. Should USCS elect to exercise this right to terminate
for nonperformance, it must be done in writing specifically setting
forth those items of nonperformance. Customer will then have fifteen
(15) days from receipt of notification to remedy the items of
nonperformance. Should Customer fail to correct these items of
nonperformance, then USCS shall have the right to enter upon
Customer's premises to repossess and remove any USCS-owned or licensed
Products. In addition, USCS' termination of this Agreement or such
taking of possession shall be without prejudice to any other remedies
USCS may have, including, without limitation, all remedies with
respect to the unperformed balance of this Agreement; provided,
however, that if Customer has not made payment of the fees or charges
due hereunder and such nonpayment continues after thirty (30) days'
prior written notice by USCS, USCS may then terminate this Agreement
or any license granted herein.
19.2 Upon expiration of the term (including any extensions thereof) of this
Agreement or upon the termination of this Agreement or of any license
granted hereunder for any reason, all rights of Customer to use the
Products will cease and Customer will immediately (i) grant to USCS
access to its business premises and the Products and allow USCS to
remove the Products (ii) purge all copies of all Products from all
computer processors or storage media on which Customer has installed
or permitted others to install such Products, and (iii) when requested
by USCS, certify to USCS in writing, signed by an officer of Customer,
that all copies of the Products have been returned to USCS or
destroyed and that no copy or any Product remains in Customer's
possession or under its control.
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<PAGE>
19.3 USCS will, within ten (10)days after termination of this Agreement,
return Customer's most recent fixed master(s), provided Customer has
paid in full the fee for the fixed master(s) and all outstanding
monies owed. In the event there are outstanding balances due, USCS
may withhold master file data until said balances are paid in full.
19.4 Any termination pursuant to this Section 19 shall be in writing to the
address of the other party as indicated on the first page of this
Agreement or to such other address as the other party may, by prior
written notice, have specified.
20. GENERAL
20.1 The parties agree that in the event it is necessary to employ attorneys
to enforce the terms of this Agreement, the prevailing party in any
lawsuit shall be entitled to an award of reasonable attorneys' fees and
court costs.
20.2 This Agreement may not be assigned without prior written mutual
consent of Customer and USCS.
20.3 This Agreement may be amended only by an instrument in writing,
executed by Customer and USCS.
20.4 This Agreement will be governed in all respects by the laws of the
State of California.
20.5 This Agreement and Attachments represent the entire agreement between
the parties and supersede and replace all prior oral and written
proposals, communications and agreements with regard to the subject
matter hereof between Customer and USCS.
20.6 SECTION 14 (Nondisclosure) and SECTION 13 (Title), and Paragraph 16.4
(Limitation of Remedies) shall survive the termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
__________ day of ____________, 19____.
U.S. Computer Services
CONTINENTAL CABLEVISION dba CableData
------------------------------
(Customer Name)
By: /s/ J.T. Delorme By: /s/ Arthur O. Hawkins
- ------------------------------------- --------------------------------
J.T. Delorme Arthur O. Hawkins
- ------------------------------------- ---------------------------------
(typed name) (typed name)
EVP
- ------------------------------------- ----------------------------------
(title-must be an officer) (title-must be an officer)
11/22/93
- ------------------------------------- ----------------------------------
(date) (date)
- 8 -
<PAGE>
AMENDMENT
TO
OPERATING AND LICENSE AGREEMENT
WHEREAS, U.S. COMPUTER SERVICES, a California corporation doing business as
CableData (hereinafter "USCS"), and CONTINENTAL CABLEVISION (hereinafter
"Continental") have entered into that OPERATING AND LICENSE AGREEMENT
(hereinafter called the "Agreement") of an even date herewith; and
WHEREAS, USCS and Continental desire to modify the Agreement such that wherever
language contained in this Amendment conflicts with the terms of the Agreement,
the language contained in this Amendment shall control;
NOW, THEREFORE, the parties agree as follows:
1. TERM OF AGREEMENT: Paragraph 1.1 of the Agreement is deleted in its
entirety and the following is replaced therefor:
1.1 The initial term of this Agreement shall commence eighteen (18) weeks
after the date on which this Agreement is signed by both parties, and
shall extend until the expiration date of [*]. Notwithstanding the
foregoing, Continental may, upon written notice to USCS, begin to
deconvert its systems from USCS' DDP/SQL product to another vendor's
product as early as ninety (90) days prior to the expiration date of
the initial term of this Agreement and may continue such deconversion
for a period of up to ninety (90) days after the expiration date of
the initial term of this Agreement. Upon deconversion, Continental
will no longer be required to pay USCS for use of its software. This
Agreement may be extended beyond [*] as set forth in Paragraph 10.7
below.
1.2 Continental may convert Continental's St. Paul, Minnesota system from
another vendor to USCS' DDP/SQL products in July 1994 upon the
termination of the current contract with the vendor and may add said
system to Attachment A for the then remaining term of the Agreement.
2. REPLACEMENT OF PRIOR AGREEMENT: Upon commencement of this Agreement, the
Master Agreement--On/Line Exclusive System Operating and License Agreement
between USCS and Continental dated June 29, 1989 shall be deleted in its
entirety and replaced with this Agreement.
3. CONVERSION/MIGRATION PLAN: Paragraphs 4.5 and 4.6 are added to the
Agreement as follows:
4.5 Continental has agreed to migrate its Cable Systems listed in
Attachment A from USCS' DDP/TBOL product to USCS' DDP/SQL product;
Continental and USCS will mutually agree on a pre-conversion training
and migration schedule. Continental recognizes that migration cannot
take place until telephone lines are installed at its Cable Systems,
and that installation of telephone lines may take up to forty-five
(45) days. No fees will be charged to Continental for conversion
pursuant to Paragraph 1.2 above or migration pursuant to this
Paragraph 4.5.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-1-
<PAGE>
4.6 The roles and responsibilities of each party in connection with
migrations are set forth in Appendix 4 to this Agreement, which
appendix is incorporated herein by this reference.
4. QUARTERLY SENIOR MANAGEMENT MEETINGS: USCS agrees that its senior
management will meet with Customer on a quarterly or more often basis
throughout the term of this Agreement.
5. ON-GOING TRAINING: Paragraph 7.1 of the Agreement is deleted in its
entirety, and the following is substituted therefor:
7.1 USCS shall provide Continental with [*] days of training at each of
Continental's three data centers, or at a USCS regional service center
on a space-available basis, during each twelve (12) months of this
Agreement. Continental may, subject to space availability at a USCS
regional service center, choose the location of such training and may
aggregate and allocate the training as it chooses for a total of [*]
days in each twelve (12) month period. USCS will bear all costs of
such training at Continental's data centers, including transportation,
lodging and food expenses for USCS personnel; Continental will be
responsible for transportation, lodging and food for its personnel
attending training at a USCS regional service center. In addition to
such training, USCS will provide Continental with one copy per data
center of each self-directed learning and, when available, each
computer-based training module requested by Continental. Continental
can purchase additional instruction at then current prices for all
classes taught at the regional service center. Continental can also
purchase additional customized on-site training at then current
prices. Continental is responsible for all transportation to and from
the regional service center, lodging and food for Continental's
employees that attend the USCS training.
6. CHANGES TO THE SOFTWARE BY USCS: Paragraph 8.1 of the Agreement is
amended by adding the following language at the end thereof:
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-2-
<PAGE>
Paragraph 8.3 of the Agreement is deleted in its entirety, and the following
is substituted therefor:
8.3 USCS is not responsible for the inability of any software or other
product purchased or licensed from third parties to function because of
changes to USCS Software. USCS will, however, ensure that third-party
software for which USCS has developed an interface will continue to work
with future versions of the DDP/SQL product provided that (a)
Continental has informed USCS in writing of its intent to use the third-
party product; (b) USCS has approved the specifications of the third-
party product; and (c) there have been no changes to the third-party
product.
7. SOFTWARE SUPPORT SURCHARGE: The first sentence of Paragraph 8.6 of the
Agreement is deleted in its entirety, and the following language is
substituted therefor:
"During the initial term of this Agreement, there will be no
additional charge for software support in the event Continental is two
or more major software releases behind the current software release.
THEREAFTER, CONTINENTAL AGREES THAT USCS WILL HAVE THE RIGHT TO LEVY A
SOFTWARE SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT
CONTINENTAL IS TWO OR MORE MAJOR SOFTWARE RELEASES BEHIND THE CURRENT
SOFTWARE RELEASE."
8. FUNCTIONALITIES; PROGRAMMING "CREDITS": Paragraphs 8.7, 8.8, 8.9 and 8.10
are added to the Agreement as follows:
8.7 Except for those items marked "third party" and "separate FSN
product," USCS commits to developing and delivering the DDP/SQL
software functionalities set forth in Appendix 1 in accordance with
the schedules set forth therein, subject to the following conditions:
(a) For those functionalities that USCS is to develop exclusively or
primarily for Continental ("Custom Programs"), such delivery is
contingent on the parties mutually agreeing to contents in a
timely manner. Mutual agreement must be in writing signed by
both parties, specifically describing the contents of the
functionality. Both parties agree to take all reasonable steps
necessary to ensure timely agreement on contents. USCS further
agrees that if, in its opinion, a scheduled delivery date will be
missed because of lack of agreement on contents, it will promptly
notify Continental of such possibility.
(b) For those functionalities that USCS is to deliver to Continental
and to other USCS customers as part of USCS' general software
development process ("Core Programs"), the provisions of this
Paragraph 8.7 pertaining to mutual agreement shall not apply.
-3-
<PAGE>
Delivery dates in Appendix 1 refer to beta first site test. USCS will
provide Continental with at least fifteen (15) days' notice of its
intention to deliver each software functionality. Promptly after the
delivery of each software functionality, Continental shall test such
functionality. Within fifteen (15) days after such delivery,
Continental shall notify USCS in writing, specifically identifying the
basis of nonacceptance, if, in Continental's sole reasonable
discretion, a Custom Program functionality does not perform in
accordance with the contents mutually agreed to by Continental and
USCS. In addition to such written notification, Continental shall, no
later than five (5) days after the notification date, return the
Custom Program to USCS. Failure to so notify USCS within such period
or to return the program to USCS shall be deemed acceptance of the
software functionality in question.
In the event Continental notifies USCS that a Custom Program is not
acceptable, such software shall not be deemed delivered or available
for purposes of this Paragraph 8.7 and Appendix 1 and USCS shall have
thirty (30) days to continue to develop such functionality. If USCS
fails to deliver a Core Program on the originally scheduled delivery
date or a Custom Program within thirty (30) days after notification of
unacceptability then Continental's sole and exclusive remedies shall
be as set forth in Paragraph 8.10 below.
8.8 Continental understands that certain functionalities in Appendix 1
will require additional hardware acquisition by Continental and that
additional charges may be applicable for those items marked "custom
module" and for acceleration of delivery dates where noted. USCS will
provide Continental with its best estimate of the costs of any
additional hardware required to support specific functionalities or
combinations of functionalities upon Continental's initial request for
those functionalities, provided that the parties have reached
agreement on specifications. Such estimate, as well as any hardware
estimates included in Appendix 1, is intended merely to assist
Continental with its own internal planning and may be relied on only
for such purpose. All estimates are subject to change and will not be
binding on the parties. Upon disclosure of USCS' estimate,
Continental may elect to withdraw its request or to modify it so that
it better satisfies Continental's objectives. The additional hardware
requirements and the parties' responsibilities in connection therewith
are further detailed below:
(a) For those functionalities identified in Class A of Appendix 1, no
additional hardware will be required;
(b) For those functionalities identified in Class B of Appendix 1,
some additional hardware may be required, depending on
Continental's actual use of the software. In the event
additional hardware is required, the parties will share equally
USCS' purchase costs of such additional hardware;
(c) For those functionalities identified in Class C of Appendix 1,
significant additional hardware may be required. The selection,
acquisition, installation and all associated costs of such
additional hardware will be the sole responsibility of
Continental.
-4-
<PAGE>
8.9 [*]
8.10 [*]
9. MERGE PROGRAM: New Paragraph 8.11 is added to the Agreement as follows:
8.11 USCS will use its best efforts to have a DDP/SQL merge program ready
for beta testing in January of 1994. Corp merges may be performed
during the migration process; however, merging Corps will be required
to use paper backlog, and the expected additional backlog time will
be two to three days. A normalization program will be available when
the merge program is ready for beta testing.
10. Paragraph 9.3 of the Agreement is deleted in its entirety, and the
following is substituted therefor:
9.3 Over twelve (12) consecutive processing cycles, the normal turnaround
time for a processing cycle of any file update at USCS' International
Billing Services facility, defined as the elapsed time between USCS'
complete receipt of usable data transmission, or tape(s), and the
return transmission of processed data, disk pack(s) or tape(s), is a
pre-Hold average of forty-eight (48) hours and the normal turnaround
time for statement mailing, defined as the elapsed time between USCS'
complete receipt of usable data transmission, or tape(s), and the
entry of the USPS tray containing the individual statement into the
U.S. Postal system, is a pre-Hold average of seventy-two (72) hours.
Except in the case of causes beyond the reasonable control of USCS,
in the event either average is not maintained over any twelve (12)
consecutive processing cycles, Continental may deliver written notice
of nonperformance to USCS; whereupon USCS will have sixty (60) days
to cure the problem. If the problem is not cured within that time,
Continental may give USCS thirty (30) days' written notice of intent
to terminate.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
11. PRICE: Paragraph 10.1 of the Agreement is deleted in its entirety, and the
following is substituted therefor:
10.1 The Price Schedule for utilizing the Software and Products selected
by Continental is set forth in Attachment B. Such prices shall not
be subject to increase during the initial [*] of this Agreement.
Thereafter, such prices shall be subject, in addition to any price
increase that may be applicable at such time, to a percentage
increase upon forty-five (45) days' prior notice not to exceed the
percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the U.S. Department of Labor (a) from
the date of last general price increase prior to the effective date
of this Agreement (b) to the date of price increase under this
Agreement. Prices for all USCS products and services ordered and
used by Continental but not set forth in Attachment B shall be the
prices in effect on the date of use of the product or service.
Notwithstanding the foregoing, USCS will provide Continental with
Esprit SQL prom upgrades at no additional charge for the equipment
or its installation.
12. MERGES AND SPLITS: New Paragraph 10.6 is added to the Agreement as follows:
[*]
13. EXTENSION BEYOND INITIAL TERM: New Paragraph 10.7 is added to the Agreement
as follows:
10.7 Following the initial twenty-four (24) month term of this Agreement,
Continental may elect to extend the Agreement for an additional
period of twelve (12), twenty-four (24) or thirty-six (36) months.
Such extension is contingent on a corresponding extension of the term
of the lease agreement between Continental and U.S. Computer Systems
Leasing, if applicable. Upon Continental's election of an extension
term, Continental's DDP/SQL Exclusive Bundle price for software
processing will be increased, in addition to any applicable CPI-U
increase, as follows: (a) twelve (12) month extension - [*] per
Subscriber; (b) twenty-four (24) month extension - [*] per
Subscriber; (c) thirty-six (36) month extension - [*] per Subscriber.
Prices for Products and Services not included in the Bundle will be
USCS' then-current standard prices.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
<PAGE>
14. PAYMENT TERMS: Paragraph 12.3 of the Agreement is deleted in its entirety,
and the following is substituted therefor:
12.3 If Continental fails to pay any charges when due and payable,
Continental agrees that USCS will have the right to invoice and
Continental will pay a late payment service charge of [*] per month,
but not in excess of the lawful maximum, on the past due balance.
15. USCS' LIABILITY: Paragraph 16.2 is amended by adding the following
language at the end thereof:
"In any event, Continental shall not be required to pay for any work
or service not actually received, whatever the reason for
nonreceipt."
16. STANDARDS OF WORK: New Paragraph 16.6 is added to the Agreement as follows:
16.6 USCS warrants that the performance of work and services provided to
Continental under this Agreement shall be in conformance with the
requirements of this Agreement and with high industry standards.
17. TERMINATION: The third sentence of Paragraph 19.1 of the Agreement is
deleted in its entirety, and the following is substituted therefor:
"Continental will then have thirty (30) days from receipt of
notification to remedy the items of nonperformance."
18. TERMINATION BY CONTINENTAL FOR BREACH; CO-OPERATION IN CONVERSION TO
ANOTHER VENDOR AFTER TERMINATION: The following is added to the Agreement
as Paragraphs 19.5, 19.6 and 19.7:
19.5 Except as otherwise provided in this Agreement, Continental will have
the right to terminate this Agreement if USCS fails to comply with
any of its material obligations under this Agreement. Should
Continental elect to exercise this right to terminate for
nonperformance, it must be done in writing specifically setting forth
those items of nonperformance. USCS will then have thirty (30) days
(sixty (60) days in the event of a performance deficiency pursuant to
Section 21 hereof) from receipt of notification to remedy the items
of nonperformance. Should USCS fail to correct these items of
nonperformance, then Continental shall have the right to terminate
this Agreement. In addition, Continental's termination of this
Agreement shall be without prejudice to any other remedies Continental
may have under this Agreement.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 7 -
<PAGE>
19.6 In the event Continental terminates this Agreement for breach as set
forth in Paragraph 19.5 or upon the natural termination of this
Agreement at the end of the term set forth in Paragraph 1.1, USCS
agrees to fully cooperate in good faith with Continental and
Continental's new vendor with regard to Continental's conversion to
the new vendor for a period of up to ninety (90) days following such
termination. Continental understands that Continental will be
responsible for paying for Fixed Masters, at a cost of [*] per Fixed
Master for single Corps and [*] per Fixed Master for multiple Corps
where the Fixed Masters are being sent to the same vendor, and that
any use of USCS software or billing services by Continental during
the ninety (90) day period will be subject to the terms and
conditions of this Agreement, including pricing.
19.7 USCS agrees to deposit and maintain in the possession of Capitol Bank
Sacramento as escrow agent (or other mutually agreed-upon qualified
escrow agent in Sacramento, California) a copy of all versions of
USCS software currently used by the Continental (including source
code, compilers, interpreters, utilities, documentation, operating
system code) necessary for Continental to assume maintenance of USCS
Systems and Programs. In the event that USCS is in default as set
forth in Paragraph 19.5, Continental shall be allowed to obtain these
materials to continue operating the USCS System and Program until the
later of (1) the end of the term of the Agreement or any extensions
thereto or (2) for twelve (12) months. Continental agrees that in
the event it obtains these materials from the escrow agent, it shall
pay USCS for possession and use of the materials at the times and
in the amounts provided in this Agreement, and the use of the
materials shall be further governed by Sections 2 (License), 14 (Non-
Disclosure Obligations), 15 (Title), 16 (Limitation of Remedy), and
18 (Infringement) of this Agreement.
19. PERFORMANCE STANDARDS: New Section 21 is added to the Agreement as follows:
21. EXCLUSIVE SYSTEM PERFORMANCE STANDARDS
21.1 In conjunction with Continental's use of the Exclusive On/Line
system, USCS will commit to performance criteria set forth
below, provided Continental maintains all related system
components, provides necessary staff, and adheres to Operating
Limitations set forth in Appendix 2 and Hardware Configuration
Criteria set forth in Appendix 3.
21.2 Terminal response time for a new customer install processed
will be [*] cursor movement will be [*] provided
Continental adheres to local system maintenance criteria
determined by USCS and further provided that Continental is
not running any of the batch jobs listed in Appendix 2, does
not run non-USCS applications and does not perform any ad
hoc queries during the relevant measurement period. Response
time and cursor movement will be measured using a
USCS-supplied measurement tool, or such other measurement
tools as USCS determines to be satisfactory, on a PC (at
least a 486) at Continental's data center.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 8 -
<PAGE>
21.3 [*]
21.4 The above performance standards are based upon the following
assumptions:
a. Continental's Subscriber base will not have grown
appreciably as of the effective date of the
Agreement and will grow only moderately (no more than
5% Subscriber growth/no more than 10% PPV growth per
data center) over the remaining term of the Agreement;
b. Continental complies in all material respects with the
limitations set forth in Appendix 2 and the equipment
configurations set forth in Appendix 3;
c. Continental adheres to the estimations of future usage
provided to USCS, upon which the Hardware Configuration
Criteria in Appendix 3 are based; and
d. Continental will provide USCS with raw data on a semi-
annual basis for review with Continental and for
determination of adherence to the above criteria.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 9 -
<PAGE>
The standards set forth above do not take into account
currently unreleased USCS software, including versions of
DDP/SQL beyond Release 2.9, third-party software,
acquisitions by Continental of additional systems, or
abnormal Subscriber growth (beyond 5% Subscriber growth/10%
PPV growth per data center). Should Continental desire to
move onto a currently unreleased version of USCS software,
USCS will share with Continental any projected changes in
these performance standards prior to such transition. If
additional hardware is required to enable Continental to
realize the performance standards set forth above given the
criteria set forth in this Section 21 and allowing for
Subscriber growth up to 5% and not more than 3 million
Subscribers, then, upon request from Continental, [*]. For
purposes of this Section 21, Subscriber and PPV growth
measurements will be based on figures in effect on the
execution date of this Agreement.
21.5 In the event that Continental's growth exceeds 5% Subscriber
base/10% for its PPV, as set forth in Paragraph 21.4 (a),
and its Subscriber base is less than 3 million Subscribers,
then USCS agrees to sell to Continental, at [*] the equipment
necessary to continue to meet the response time obligations
set forth in Paragraph 21.1.
21.6 USCS will use its best efforts to assist Continental's
efforts through third parties to develop an off-line
reporting system. "Best efforts" means that USCS will
cooperate with Continental's systems integrator to the best
of USCS' ability, including making available USCS personnel
in Sacramento to assist with development of the off-line
system. If necessary and agreed to by the parties, USCS
will be reimbursed by Continental or its integrator for
reasonable travel and lodging expenses for USCS personnel
required to travel to one of Continental's sites in
connection with development of the off-line system. It is
Continental's desire that implementation of the off-line
system be accomplished prior to migration of Continental's
Cable Systems; however, in no way will development of an
off-line system delay the effective date of this Agreement
as set forth in Paragraph 1.1. [*]
20. New Section 22 is added to the Agreement as follows:
22. DISPUTE RESOLUTION
22.1 In the event of any disagreement, controversy or dispute
regarding performance under or interpretation of this
Agreement, the parties agree to attempt to reach a
negotiated resolution. If a dispute remains unresolved for
a period of thirty (30) days after one party has provided
written notice of such dispute to the other, then each party
shall designate an officer to meet to endeavor to resolve
the dispute. Arbitration in accordance with this section
may not be commenced by either party until such officers
determine in good faith that a negotiated resolution is
unlikely, provided, however, that if one or both parties
refuse to meet within ninety (90) days of the original
written notice of the dispute set forth above, then
arbitration may be instituted by either party.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-10-
<PAGE>
22.2 In the event that a negotiated resolution is not reached,
the disagreement, controversy or dispute shall be settled by
binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association
and judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. The
arbitration shall be conducted in Sacramento, California by
three arbitrators. One arbitrator shall be selected by
Continental, one arbitrator shall be selected by USCS
and the third arbitrator shall be selected by the American
Arbitration Association and shall be subject to approval by
both Continental and USCS.
21. CUSTOMER SERVICE SUPPORT: New Section 23 is added to the
Agreement as follows:
23. QUALIFICATIONS FOR DISCOUNT INCLUDED IN ATTACHMENT B BUNDLED
PRICE FOR CUSTOMER SUPPORT
23.1 The DDP/SQL Exclusive Bundle pricing in Attachment B
includes [*] per Subscriber per month discount. This
[*] per Subscriber per month discount shall be in effect
for each Continental Cable System only so long as each of
Continental's divisions has, upon written notification to USCS,
agreed to provide customer service support to each of
Continental's Cable System offices within the division, so
that USCS will then support Continental only through
Continental's division data processing staff.
23.2 All of Continental's existing Cable Systems are eligible for
the customer service support program. In order for a
division to qualify as "providing customer service support,"
it must meet the following criteria:
a. Maintain at least three (3) people on its software
support staff who have successfully completed relevant
USCS training. USCS agrees to provide the additional
training, at no charge, except for travel related
expenses, to the division.
b. Provide front-line telephone customer service support
to all Cable System offices and remote sites on a
twenty-four (24) hour basis; and
c. Review all requested DDP/F Type 30 changes from the
individual systems for completeness and accuracy prior
to forwarding the completed paperwork to USCS for
processing; and
d. Complete all Rate Increase/Prorate Run projects for the
individual systems by preparing a letter to USCS
defining the proposed project, filling out and
submitting to USCS all of the necessary paperwork for
Type 30 changes, message selects, and/or insert plans.
Make all changes to the DDP/SQL Director file at the
appropriate time, run the program(s), review the results
on DDP/SQL and send the files to
DDP/F at the time of cutoff. Review, complete USCS-
provided checklist and sign off on the DDP/F Reports
prior to releasing the bills and running the DDP/SQL
update program; and
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-11-
<PAGE>
e. Review all requests for message selects, alters, or
other special DDP/F projects from the individual
systems. Prepare a letter to USCS defining the project
and include paperwork for all required changes on
DDP/F. If DDP/SQL is involved, make any necessary
changes to the Director file parameters, run the
appropriate program(s), review the results, and forward
the files to DDP/F at the time of cutoff; and
f. Forward all requests for inserts or special statements
to USCS Insert Control for handling; and
g. Handle customer service support conversion as well as
splits and merges for all Software functions including
addressability for all systems with USCS assisting in
problem solving. USCS will assume responsibility for
any and all problems requiring use of the Dump
Modification or Move Group programs except for those
specific problems for which USCS has given Continental
written permission to fix. Continental will perform
file diagnostics, history purges, and customer purges
on a regular basis; and
h. The Continental division will perform all system
maintenance and database management functions, including
proper database back-up procedures, disk free space
maintenance, SQL table partitioning, CPU balancing, and
port configurations. Perform disk defrags, file purges
and table reorganizations regularly.
i. Continental also agrees that, should a division fail to
comply with all of the above requirements, and such
failure requires USCS to provide support for repair of
database discrepancies, Continental shall pay [*] per man
hour as well as any additional expenses which may be
incurred. USCS shall do all database repair.
23.3 USCS agrees to continually review each division's ability to
qualify for the discount described above and reserves the
right to discontinue the discount of [*] if three (3) violations
to the above terms and conditions occur in one (1) month or if
there are any violations in three (3) consecutive months to
any of the above terms and conditions set forth in Paragraph
23.2 of this Agreement. The discount may be reinstated
after one (1) month with no violations. In the event a
division ceases to qualify as providing customer service
support, then the DDP/SQL Exclusive Bundle shall increase by [*]
per Subscriber per month for those Continental Cable Systems
that no longer are eligible for the discount as set forth in
Paragraph 23.1.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-12-
<PAGE>
22. The following is added to the Agreement as Paragraph 24.1:
[*]
23. The following Appendices are a part of this Amendment:
Appendix 1: Function Matrix
Appendix 2: Operating Limitations for Performance Standards
Appendix 3: Hardware Configuration Requirements for
Performance Standards
Appendix 4: Migration Roles and Responsibilities; Key
Personnel
All other terms and conditions of the Agreement shall remain in
full force and effect unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the _____ day of October, 1993.
CONTINENTAL CABLEVISION U.S. COMPUTER SERVICES
By: /s/ Jeffrey T. Delorme By: /s/ Arthur O. Hawkins
---------------------- ------------------------
Jeffrey T. Delorme
- --------------------------- ------------------------
(Print Name) (Print Name)
Executive Vice President
- --------------------------- ------------------------
(Title) (Title)
December 17, 1993
- --------------------------- ------------------------
(Date) (Date)
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-13-
<PAGE>
ON/LINE OPERATING & LICENSE AGREEMENT
ATTACHMENT A
CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES
PRIMARY SITE
- ------------
Corp Number 250-32
------
Installation Address 3443 DEER PARK DRIVE
--------------------
City STOCKTON State CA County Zip 95219
-------- -- -----
REMOTE SITE
- -----------
Corp Number 222-35
------
Installation Address 550 N. CONTINENTAL BOULEVARD
----------------------------
City EL SEGUNDO State CA County Zip 90245
---------- -- -----
REMOTE SITE
- -----------
Corp Number 222-19
------
Installation Address 2808 METROPOLITAN PLACE
-----------------------
City POMONA State CA County Zip 91767
------ -- -----
REMOTE SITE
- -----------
Corp Number 222-20
-------------------------
Installation Address ONE CABLE PLACE
---------------
City INGLEWOOD State CA County Zip 90302
--------- -- -----
Page 1
<PAGE>
REMOTE SITE
- -----------
Corp Number 222-21
------
Installation Address 20930 E. BONITA
---------------
City CARSON State CA County Zip 90746
------ -- -----
REMOTE SITE
- -----------
Corp Number 222-26
------
Installation Address 13325 BECH AVENUE
-----------------
City MARINA DEL RAY State CA County Zip 90746
-------------- -- -----
REMOTE SITE
- -----------
Corp Number 222-27
------
Installation Address 10839 LA REINA AVENUE
---------------------
City DOWNEY State CA County Zip 90241
------ -- -----
REMOTE SITE
- -----------
Corp Number 222-28
------
Installation Address 2204 N. LONG BEACH
------------------
City COMPTON State CA County Zip 90221
------- -- -----
REMOTE SITE
- -----------
Corp Number 222-29
------
Installation Address 2900 CRENSHAW BOULEVARD
-----------------------
City LOS ANGELES State CA County Zip 90016
----------- -- -----
Page 2
<PAGE>
REMOTE SITE
Corp Number 222-33
Installation Address 550 N. CONTINENTAL #115
City EL SEGUNDO State CA County Zip 90245
REMOTE SITE
Corp Number 250-20
Installation Address 6505 TAM O'SHANTER
City STOCKTON State CA County Zip 95210
REMOTE SITE
Corp Number 250-28
Installation Address 16006 S. VIRGINIA
City RENO State NV County Zip 89511
REMOTE SITE
Corp Number 250-29
Installation Address 111 N. MOONEY BOULEVARD
City TULARE State CA County Zip 93274
REMOTE SITE
Corp Number 250-30
Installation Address 1945 N. HELM AVENUE
City FRESNO State CA County Zip 93727
Page 3
<PAGE>
REMOTE SITE
Corp Number 250-31
Installation Address 311 B STREET
City YUBA CITY State CA County Zip 95991
REMOTE SITE
Corp Number 250-49
Installation Address 1945 NORTH HELM
City FRESNO State CA County Zip 93727
REMOTE SITE
Corp Number 259-04
Installation Address 189 BUSINESS CENTER DRIVE
City CORONA State CA County Zip 91720
REMOTE SITE
Corp Number 259-05
Installation Address 13816 RED HILL ROAD
City TUSTIN State CA County Zip 92680
REMOTE SITE
Corp Number 259-06
Installation Address 302 E. ROWLAND
City COVINA State CA County Zip 91723
Page 4
<PAGE>
REMOTE SITE
Corp Number 250-16
Installation Address 27800 FRANKLIN ROAD
City SOUTHFIELD State MI County Zip 48034
REMOTE SITE
Corp Number 250-15
Installation Address PRINCETON & GULLEY ROAD
City DEARBORN HEIGHTS State MI County Zip 48127
REMOTE SITE
Corp Number 250-18
Installation Address 27432 GROESBECK HIGHWAY
City ROSEVILLE State MI County Zip 48066
REMOTE SITE
Corp Number 250-97
Installation Address 1575 ROHLWING ROAD
City ROLLING MEADOWS State IL County Zip 60008
REMOTE SITE
Corp Number 250-37
Installation Address 1575 ROHLWING ROAD
City ROLLING MEADOWS State IL County Zip 60008
Page 5
<PAGE>
REMOTE SITE
Corp Number 250-22
Installation Address 688 INDUSTRIAL DRIVE
City ELHURST State IL County Zip 60126
REMOTE SITE
Corp Number 250-41
Installation Address 8101 AUSTIN AVENUE
City MORTON GROVE State IL County Zip 60053
REMOTE SITE
Corp Number 250-23
Installation Address 14150 CHICAGO ROAD
City DOLTON State IL County Zip 60419
PRIMARY SITE
Corp Number 250-00
Installation Address 335 MAIN STREET
City READING State MA County Zip 01867
REMOTE SITE
Corp Number 222-03
Installation Address 81 MYSTIC STREET
City ARLINGTON State MA County Zip 02174
Page 6
<PAGE>
REMOTE SITE
Corp Number 222-04
Installation Address 27 HALE STREET
City NEWBURYPORT State MA County Zip 01950
REMOTE SITE
Corp Number 222-05
Installation Address 81 SCHOOL STREET
City QUINCY State MA County Zip 02169
REMOTE SITE
Corp Number 222-07
Installation Address 149 WAREHAM ROAD
City MARION State MA County Zip 02738
REMOTE SITE
Corp Number 222-08
Installation Address 15 FARRAR FARM ROAD
City NORWELL State MA County Zip 02061
REMOTE SITE
Corp Number 222-10
Installation Address 15 LOCUST ROAD
City ORLEANS State MA County Zip 02653
Page 7
<PAGE>
REMOTE SITE
Corp Number 222-12
Installation Address ONE VAN CORTLANDT AVENUE
City OSSINING State NY County Zip 10562
REMOTE SITE
Corp Number 222-13
Installation Address 12 SAMSONDALE AVENUE
City W. HAVERSTRAW State NY County Zip 10993
REMOTE SITE
Corp Number 222-17
Installation Address 88 SHERMAN STREET
City CAMBRIDGE State MA County Zip 02141
REMOTE SITE
Corp Number 222-23
Installation Address 26 WILLIAMS STREET
City CLINTON State MA County Zip 01510
REMOTE SITE
Corp Number 250-01
Installation Address 8 COMMERCIAL STREET
City CONCORD State NH County Zip 03301
Page 8
<PAGE>
REMOTE SITE
Corp Number 250-02
Installation Address 4 FRANKLIN STREET
City BROCKTON State MA County Zip 02401
REMOTE SITE
Corp Number 250-04
Installation Address 1123 MAIN STREET
City SPRINGFIELD State MA County Zip 01103
REMOTE SITE
Corp Number 250-05
Installation Address 116 MAIN STREET
City WATERTOWN State MA County Zip 02172
REMOTE SITE
Corp Number 250-07
Installation Address 55 JACKSON STREET
City SAUGUS State MA County Zip 01906
REMOTE SITE
Corp Number 250-08
Installation Address NIBLICK ROAD
City ENFIELD State CT County Zip 06082
Page 9
<PAGE>
REMOTE SITE
Corp Number 250-09
Installation Address 360 WASHINGTON STREET
City STOUGHTON State MA County Zip 02072
REMOTE SITE
Corp Number 250-10
Installation Address 150 GREENLEAF AVENUE
City PORTSMOUTH State NH County Zip 03801
REMOTE SITE
Corp Number 250-11
Installation Address 1 DELAWARE DRIVE
City SALEM State NH County Zip 03079
REMOTE SITE
Corp Number 250-12
Installation Address 186 MAIN STREET
City N. HAMPTON State MA County Zip 01060
REMOTE SITE
Corp Number 250-13
Installation Address 335 MAIN STREET
City READING State MA County Zip 01867
Page 10
<PAGE>
REMOTE SITE
Corp Number 250-14
Installation Address 294 MAIN STREET
City SACO State ME County Zip 04072
REMOTE SITE
Corp Number 250-15
Installation Address PRINCETON & GULLEY ROAD
City DEARBORN HEIGHTS State MI County Zip 48127
REMOTE SITE
Corp Number 250-24
Installation Address 1110 E. MOUNTAIN
City WESTFIELD State MA County Zip 01086
REMOTE SITE
Corp Number 250-25
Installation Address 159 EAST GROVE STREET
City MIDDLEBORO State MA County Zip 02346
REMOTE SITE
Corp Number 250-27
Installation Address WEST CENTRAL
City NATICK State MA County Zip 01760
Page 11
<PAGE>
REMOTE SITE
Corp Number 250-33
Installation Address 7 B WHEELING AVENUE
City WOBURN State MA County Zip 01801
REMOTE SITE
Corp Number 250-34
Installation Address 115 EPPING ROAD
City EXETER State NH County Zip 03833
REMOTE SITE
Corp Number 250-44
Installation Address 681 FALMOUTH ROAD, BUILDING C
City MASHPEE State MA County Zip 02649
REMOTE SITE
Corp Number 250-45
Installation Address 172 CENTRAL STREET
City MILFORD State MA County Zip 01757
REMOTE SITE
Corp Number 250-46
Installation Address 41 MARBLE STREET
City REVERE State MA County Zip 02151
Page 12
<PAGE>
REMOTE SITE
Corp Number 250-50
Installation Address 100 BRADY DRIVE
City PORTSMOUTH State NH County Zip 03801
REMOTE SITE
Corp Number 058-29
Installation Address 5934 RICHARD STREET
City JACKSONVILLE State FL County Zip 32216
REMOTE SITE
Corp Number 170-01
Installation Address 141 N.W. 16TH STREET
City POMPANO BEACH State FL County Zip 33060
REMOTE SITE
Corp Number 170-02
Installation Address 6781 W. SUNRISE BOULEVARD
City PLANTATION State FL County Zip 33313
REMOTE SITE
Corp Number 250-38
Installation Address 5934 RICHARD STREET
City JACKSONVILLE State FL County Zip 32216
Page 13
<PAGE>
REMOTE SITE
Corp Number 250-39
Installation Address 5934 RICHARD STREET
City JACKSONVILLE State FL County Zip 32216
REMOTE SITE
Corp Number 250-42
Installation Address 5934 RICHARD STREET
City JACKSONVILLE State FL County Zip 32216
REMOTE SITE
Corp Number 250-51
Installation Address 5934 RICHARD STREET
City JACKSONVILLE State FL County Zip 32216
Page 14
<PAGE>
ON/LINE OPERATING & LICENSE AGREEMENT
ATTACHMENT A
CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES
PRIMARY SITE
Corp Number 250-00
Installation Address 335 Main Street
City Reading State ma County Zip 1867
REMOTE SITE
Corp Number 250-19
Installation Address 100 Main Street
City Dover State NH County Zip 3820
REMOTE SITE
Corp Number 222-30
Installation Address 8 N. Main Street
City Attleboro State MA County Zip 2703
<PAGE>
ON/LINE OPERATING & LICENSE AGREEMENT
ATTACHMENT A
CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES
PRIMARY SITE
Corp Number 250-97
Installation Address 1575 Rohlwing Road
City Rolling Meadows State IL County Zip 60008
REMOTE SITE
Corp Number 250-40
Installation Address 1304 Marquette Dr.
City Romeoville State IL County Zip 60441
<PAGE>
ON/LINE OPERATING & LICENSE AGREEMENT
ATTACHMENT B
SELECTED PRODUCTS AND SERVICES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 1 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2-
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 3 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 4 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 7 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 8 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 9 -
<PAGE>
ATTACHMENT B
ON/LINE OPERATING AND LICENSE AGREEMENT
BENCHMARK STATEMENTS
DISCOUNT LEVEL
<TABLE>
<CAPTION>
PRODUCT STANDARD 1ST 2ND 3RD 4TH 5TH 6TH 7TH 8TH
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
Benchmark Statement
Benchmark Statement
(100% MSO) [*]
Benchmark Statement
(100% Division)
</TABLE>
DISCOUNT LEVEL MSO SUBSCRIBERS
-------------- ---------------
1st 100,000 - 249,999
2nd 250,000 - 499,999
3rd 500,000 - 999,999
4th 1,000,000 - 1,499,999
5th 1,500,000 - 1,999,999
6th 2,000,000 - 2,999,999
7th 3,000,000 - 3,999,999
8th 4,000,000 - and up
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-10-
<PAGE>
APPENDIX 1
FUNCTION MATRIX
NOTE: All functionality that has not been moved forward
to Continental requested dates is "core" to DDP/SQL
and therefore, the USCS available dates are our
best delivery date.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
1
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
2
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
3
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
4
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
5
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
6
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
7
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
8
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
9
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
10
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
11
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
14
<PAGE>
APPENDIX 1
FUNCTION MATRIX
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
15
<PAGE>
ON/LINE OPERATING AND LICENSE AGREEMENT
APPENDIX 2
OPERATING LIMITATIONS
1) The Programs listed below, and no others, can be run at any time; however,
these Programs are to be run primarily during normal business hours
(response measurement period).
Program # Description
--------- -----------
100 Order Entry
250 Dispatch
260 Check-in
600 Pay/Adjust
607 Lockbox Processing
200 Select CDW File
224 Route Cards
211 Route/Assign
220 Work Orders
130 Director File Maintenance
140 Personnel File Maintenance
110 Quota File Maintenance
160 Forms Writer
900 Keyboard Training
025 Customer Repair
300 Box File Maintenance
350 Addressable Box Driver (ARU/ANI)
370-375 ANI Drivers
342,345 ARU Drivers
Terminal In-Truck Driver
700 Print Spooler
150 Complex File Maintenance
610 Post/Print Batches
-1-
<PAGE>
2) The following batch jobs should only be run after normal business hours.
In the event any of these batch jobs are running, the response time
criteria will no longer be applicable.
Description
-----------
Daily Performance
Unreturned Converter
Capitalized Drops
Month-End Performance
Print Cost by Aging
Print Customer Products
Rate Increase Run
M/T Builder
Customer Purge
Change Group Events
Hot Move/Disc Reports
Customer Labels
EFTS Processing
Inst/Tech/Equip Report
Refunds Run
Write-offs
Not Dones/Cancels
Program Log Maintenance
Collection Summary
Supplier Activity
Sales Commission
Mass Correction-Print
Box Select
Status Summary
Event Select
WIP File Select
Unreturned Converters
Universal Select-when avail.
Mass Correction-Key-in
Collections Run
House/Customer Select
-2-
<PAGE>
APPENDIX 3
HARDWARE CONFIGURATION REQUIREMENTS
PERFORMANCE STANDARDS
READING DATA CENTER
POMPANO - K1010 JACKSONVILLE - B SYSTEM
484 PORTS
375K ACTIVE SUBSCRIBERS
Description Qty
- ----------- ---
K1008, Scal Parallel Srvr Pkg, 8 proc 1
Base System Cabinet 4
Processors (32mb Mem) 8
Multifunction Controllers 8
RMI Modem 1
I/O Expansion Cabinet, Dual Row 5
Substitute 96MB for 32MB Pr. 4
Non-Stop Kernel - Per Proc 8
Run-Time SQL 1
Pathway 1
Exchange - RJE 1
X.25 Access Method 1
Expand 1
Measure 1
C Compiler 1
Additional Hardware Components
- ------------------------------
Scal Parallel Srvr Add-on, 2 Proc 1
Substitute 95mb for 32mb, Pair 1
Non-Stop Kernel 2
3650 Communications Subsystem 1
Fiber Optic Cable, 25m 2
4 Port Async LIU 10
Comm Stacking Pedestal 3
Cable Mgmt Kit 5
Dual Row Configuration Base Kit 1
Disk Drive, 1.038gb Internal 4
4510 12 Pak 2gb Disk Drive 1
4510 4 Pak 2gb Disk Drive 1
3128 Controllers 6
5175 Tape Drive 1
517-025W 25' Tape Cable Subst. 3
Pedestal, Modular Storage Sys 1
Enable Placement Kit 1
SCSI BIC 1
3214 Tape Controller 3
DISC SPACE ANALYSIS SHOWED 890MB OF NON-CABLEDATA, NON-TANDEM
SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO
ACCOMMODATE THIS DATA. 30 OF 60 I/O SLOTS ARE POPULATED
USE (4) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY
CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER ASYNCHRONOUS CABLING
TO BE INCLUDED IN HARDWARE CONFIGURATION
<PAGE>
APPENDIX 3
HARDWARE CONFIGURATION REQUIREMENTS
PERFORMANCE STANDARDS
READING DATA CENTER
K1014
READING - SPRINGFIELD - A SYSTEM
861 PORTS
825K ACTIVE SUBSCRIBERS
Description Qty
- ----------- ---
K1012, Scal Parallel Srvr Pkg, 12 proc 1
Base System Cabinet 6
Processors (32mb Mem) 12
Multifunction Controllers 12
RMI Modem 1
Substitute 96MB for 32MB Pr. 6
Non-Stop Kernel - Per Proc 12
Run-Time SQL 1
Pathway 1
Exchange - RJE 1
X.25 Access Method 1
Expand 1
Measure 1
C Compiler 1
Scal Parallel Srvr, Add-on, 2 Proc 1
Substitute 96mb for 32mb, Pair 1
Non-Stop Kernel 2
1038mb Disk Drives 4
4510 30 Pack 2GB Disk Drives 1
4510 4 Pak 2gb disk 1
3128 Controllers 12
I/O Expansion Cabinet, Dual Row 7
5175 Tape Drive 1
517-025W 25' Tape Cable Subst. 3
Enable Placement Kit 2
Pedestal, Modular Storage Sys 2
3850 Comm Subsystem 15
Fiber Optic Cables 30
Cable Management Kit 10
Comm Pedestal 5
4 Port Async LIU 216
3214 Tape Controller 3
SCSI BIC 1
Dual Row Base Configuration Kit 1
Cable, 10156-01 2
DISC SPACE ANALYSIS SHOWED 890MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE.
NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA.
49 OF 84 I/O SLOTS ARE POPULATED
USE (5) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY
CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER
ASYCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION
<PAGE>
APPENDIX 3
HARDWARE CONFIGURATION REQUIREMENTS
PERFORMANCE REQUIREMENTS
ROLLING MEADOWS DATA CENTER
K1000 6 PROCESSOR
ROLLING MEADOWS
256 PORTS
245K ACTIVE SUBSCRIBERS
Description Qty
- ----------- ---
K1006, Scallable Parallel Srvr Pkg. 1
System Cabinet 3
Processor (32MB) 6
Multifunction Controllers 6
RMI Modem 1
Substitute 96MB for 32MB Pr. 3
NonStop Kernel (per CPU) 6
NonStop SQL Runtime 1
Expand 1
Pathway NonStop Systems 1
C Compiler 1
Measure 1
X.25 Access Method 1
Exchange 1
I/O Expansion Cabinet 3
4510 12 Pack 2gb Disk Drive 1
3128 Controllers 4
5175 Tape Drive 1
517-025W 25' Tape Cable Subst. 3
Internal 1.038gb Disk Drive 4
Pedestal, Modular Storage Sys 1
Enable Placement Kit 1
Async Controllers (3606) 16
Sync Controllers (3605) 1
Universal Printer Controller 1
Cable, 10156-01 1
3214 Tape Controller 3
SCSI BIC 1
DISC SPACE ANALYSIS SHOWED 155MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE.
NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA.
26 OF 36 I/O SLOTS ARE POPULATED
USE (4) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY
CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER
ASYNCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION
<PAGE>
APPENDIX 3
HARDWARE CONFIGURATION REQUIREMENTS
PERFORMANCE REQUIREMENTS
STOCKTON DATA CENTER
K1000 2 PROCESSOR
SOUTHFIELD
118 PORTS
141K ACTIVE SUBSCRIBERS
Description Qty
- ----------- ---
K1002 Scalable Parallel Srvr Pkg 1
System Cabinet 1
Processor (32MB) 2
Multifunction Controllers 2
RMI Modem 1
Substitute 96MB for 32MB Pr. 1
NonStop Kernel (per CPU) 2
NonStop SQL Runtime 1
Expand 1
Pathway NonStop Systems 1
C Compiler 1
Measure 1
X.25 Access Method 1
Exchange 1
4510 6 Pak 2gb Disk Drive 1
Enable Placement Kit 1
Pedestal, Modular Storage Sys 1
3128 Controllers 2
Internal 1.038gb Disk Drive 4
Universal Printer Controller 1
System Printer Conversion Kit 1
3214 Tape Controller 1
5175 Tape Drive, 6250bpl 1
517-025W 25' Tape Cable Subst. 2
I/O Expansion Cabinet 1
Cables 10156 (system printer) 1
3650 Communications Subsystem 2
4 Port Async LIU 30
Fiber Optic Cable,25m 4
Comm. Stacking Pedestal 1
SCSI BIC 1
Cable Mgmt. Kit 1
USE (2) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY
CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER
10 OF 12 I/O SLOTS ARE POPULATED
DISC SPACE ANALYSIS SHOWED 193MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE.
NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA.
7 ASYNCS FROM SOUTHFIELD CAN'T BE USED DUE TO I/O SLOT LIMITATIONS. SEND TO
STOCKTON FOR EL SEGUNDO
(1) SCSI BIC FROM EL SEGUNDO
ASYNCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION
<PAGE>
APPENDIX 3
HARDWARE CONFIGURATION REQUIREMENTS
PERFORMANCE STANDARDS
STOCKTON DATA CENTER
STOCKTON & EL SEGUNDO
656 PORTS
621K ACTIVE SUBSCRIBERS
Description Qty
- ----------- ---
K1012 Scalable Parallel Srvr Pkg 1
System Cabinet 6
Processor (32MB) 12
Multifunction Controllers 12
RMI Modem 1
Substitute 96MB for 32MB Pr. 6
NonStop Kernal (per CPU) 12
NonStop SQL Runtime 1
Expand 1
Pathway NonStop Systems 1
C Compiler 1
Measure 1
X.25 Access Method 1
Exchange 1
Additional Hardware Components
- ------------------------------
4510 24 Pak 2gb Disk Drive 1
4510 2 Pak 2gb Disk Drive 1
Enable Placement Kit 2
Pedestal, Modular Storage Sys 2
3128 Controllers 10
5175 Tape Drive 1
517-025W 25' Tape Cable Subst. 3
Internal 1.038gb Disk 4
Async Controllers (3606) 3
Universal Printer Controller 1
System Printer Conversion Kit 1
SCSI BIC 1
3214 Tape Controller 3
I/O Expansion Cabinet, Dual Row 6
Dual-Row Config. Base Kit 1
Cables 10156 (system printer) 1
USE (5) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY
CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER
57 OF 72 I/O SLOTS ARE POPULATED
DISC SPACE ANALYSIS SHOWED 959MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE.
NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA.
(7) ASYNCS FROM SOUTHFIELD, (4) ASYNCS FROM FRESNO, (27) ASYNCS FROM EL SEGUNDO
ASYCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION
<PAGE>
APPENDIX 4
MIGRATION RESPONSIBILITIES
CABLEDATA
- - 1 on-site migration rep for every 50,000 active subscribers
- - Migration rep(s) on site at 9:00 a.m. on the day files are loaded down.
Rep(s) leave site 2 days later at 5:00 p.m. after corp is "live" for 2 days.
- - ABL Prep and Extract Programs to be run by Data Center on-site migration
coordinator
- - Data Center on-site migration coordinator to remain on-site for 5 Days after
Data Center has completed migrations
- - 24 hour support provided during migration period
- - A set of 7 training videos with workbooks will be provided to each corp and
Data Center
- - A playcorp will be provided for each Data Center for training purposes
- - Test files created for each corp 1 month prior to migration
- - QSP upgrade kit installation to be done by Computerland or corp,
coordinated by migration coordinator
- - Database administrator to be on-site at Data Centers to load down corp files
- - Programmer on site in Reading, MA; Jacksonville, FL, and Pompano, FL for
1 to 2 days to assess what effort will be needed to convert Continental's
custom programs
CONTINENTAL CABLEVISION
- - Corp employees need to be trained utilizing the training videos before
migration rep(s) arrive on site.
- - At least 1 crt at each corp will need to be upgraded to Quick Screen Plus for
training(or 1 pc upgraded with the QSP emulator)
- - Non-CableData reports will need to be provided to CableData for
conversion if desired
- - All corps must be on DDP Release 8.11 in order to be migrated to SQL
Release 2.5
- - Data Center must save each corp's Manager, Event, and Batch files the
night that ABL is started and backed up to tape
- - Data Center must run a PPV charging run and reformat the Manager file the
night prior to the backup for live files
- - Data Center must run special rev "V" TBOL programs during migration
period
- - Data Center must have at least 1 upgraded crt in order to run ABL programs
- - Bank needs to be notified of sequence number change
- - Corps and Data Centers need to have management representative on-site
at all times while CableData personnel are on-site
- - If any corp is using ANI, it must be converted to OLVQ before the migration
- - Corps must not cutoff during migration period
- - Backup for live files must not be done during twilight period
<PAGE>
USCS
KEY PLAYERS
Migration Department Manager Jill Grant
Migration Scheduling Manager Larry Alsbrook
Database Administrator (Chicago) Sallia Bandy
Data Center Coordinator (Chicago) Debbie Persram
Database Administrator (Stockton) Mike Staahl
Data Center Coordinator (Stockton) Diana Oatis
Database Administrator (Reading) Ed Hewett
Data Center Coordinator (Reading) Linda Lorusso
CONTINENTAL CABLEVISION
KEY PLAYERS
Data Center Coordinator (Chicago) Joan Polaski
Data Center Coordinator (Stockton) Glen Calloway
Data Center Coordinator (Reading) Bob Gatesy
<PAGE>
EXHIBIT 10.28
SOFTWARE DEVELOPMENT AGREEMENT
THIS SOFTWARE DEVELOPMENT AGREEMENT ("Agreement") is made and entered into
this 27th day of December, 1995 by and between BellSouth Interactive Media
Services, Inc., a California corporation ("BIMS"), and CableData, Inc., a
California corporation ("CableData").
WHEREAS, BIMS is in the process of establishing a network for the provision
of interactive media and other services to consumers and other entities, and has
determined the need for an integrated subscriber management system (i.e., to
handle billings, various customer support functions, etc.) as an integral part
of such network;
WHEREAS, CableData is in the business of developing and providing
integrated subscriber management and billing systems to customers, and has
responded to BIMS' request for proposals by the submission of a proposal which
it has represented will meet BIMS' requirements through the use of CableData's
standard product, CableData's Intelecable -TM- (which is the subject of a
separate, but related, Operating and License Agreement), and various
enhancements and customizations thereto;
WHEREAS, based upon CableData's proposal, BIMS desires to have CableData
develop and furnish to BIMS such an integrated subscriber management system in
accordance with specifications mutually agreed upon by BIMS and CableData and as
documented in various agreements entered into by and between BIMS and CableData,
including, without limitation, this Agreement and the Operating and License
Agreement entered into concurrently herewith;
WHEREAS, part of the integrated subscriber management system includes
custom software and certain enhancements and other features to be developed by
CableData and licensed on an unrestricted basis to BIMS, all of which will
operate in concert with, among other things, the CableData's Intelecable -TM-
software program to be provided by CableData and certain additional software
programs to be provided by third parties;
WHEREAS, it was previously the parties' intention to have assigned to BIMS
ownership of the custom software and the enhancements and other features
referenced in the preceding
-1-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
paragraph on either an exclusive basis or on a joint basis with CableData,
and BIMS has agreed, for certain consideration described further herein the
sufficiency of which is hereby acknowledged, to forego such ownership in
favor of CableData;
WHEREAS, CableData's parent company, U.S. Computer Services ("USCS"), and
BIMS have previously entered into an Interim Services Agreement, dated December
5, 1994, pursuant to which CableData has commenced the development of specific
features of an integrated subscriber management system for BIMS, and which the
parties agreed would be superseded and replaced by a more definitive agreement;
WHEREAS, CableData and BIMS agree that the terms and conditions set forth
herein shall constitute such definitive agreement and shall govern and determine
the rights and obligations of the parties with respect to the services described
herein, whether such services are rendered after the date of this Agreement or
were rendered prior to the date of this Agreement under the auspices of the
Interim Services Agreement; and
WHEREAS, CableData is ready, willing and able to continue the provision to
BIMS, and BIMS is ready, willing and able to accept, the software development
and related provided for herein, pursuant to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, as well as the
obligations herein made and undertaken, the parties, intending to be legally
bound, do hereby agree as follows:
1. DEFINITIONS.
(a) "Acceptance" means the completion of the Work Order whereby BIMS
has completed its Acceptance Testing and CableData has corrected any defects
reported relating to the applicable Software Release. BIMS shall notify
CableData in writing upon Acceptance of each Software Release.
(b) "Acceptance Testing" means the process used by BIMS to verify
that the Software Release provided to BIMS by CableData meets the
specifications contained in the Business Requirement Specification and in the
Detailed Design Specifications.
(c) "Affiliate" means, with respect to BIMS, any entity designated by
BIMS for inclusion under this Agreement which controls, is controlled by or is
under common control with BIMS, or any other entity in which BIMS or its
Affiliates have any material form of ownership or managerial interest, as
further described and qualified in the License Agreement.
-2-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(d) "Application Program Interfaces", or "APIs", and "Remote
Procedure Calls", or "RPCs", mean those portions of the Interface Software
required to enable external third party applications to interface with the Core
Software and the Custom Software for purposes of passing transactions and data
to and from the Core Software and Custom Software. References herein to APIs
and/or RPCs shall be deemed to include the APIs and/or RPCs developed under the
Interim Services Agreement.
(e) "Business Day" means (i) with respect to any time period within
which BIMS must respond, Monday through Friday, excluding any holidays
recognized by BIMS as company-wide holidays; and (ii) with respect to any time
period within which CableData must respond, Monday through Friday, excluding any
holidays recognized by CableData as company-wide holidays.
(f) "Business Requirement Specification" means mutually approved
business specifications for features and functionality to be contained in the
Software Release.
(g) "Confidential Information" means any data or information, other
than Trade Secrets, that is of value to BIMS and is not generally known to
competitors of BIMS. To the extent consistent with the foregoing, Confidential
Information includes, but is not limited to, lists of any information about
BIMS' or its Affiliates' executives and employees, marketing techniques, price
lists, pricing policies, business methods, and contracts and contractual
relations with customers and suppliers. Confidential Information also includes
any information described in this paragraph which may be obtained from another
party which BIMS treats as proprietary or designates as confidential
information, whether or not owned or developed by BIMS. Unless otherwise agreed
by the parties in connection with an individual Work Order (s), the Deliverables
to be provided by CableData under this Agreement shall not be considered to be
Confidential Information.
(h) "Content Providers" mean the content providers which are
delivering their products and/or services over BIMS' broadband network.
(i) "Core Software" is the existing CableData's Intelecable -TM-
subscriber management information system, as such may be modified, updated and
upgraded from time to time on BIMS' System, to be provided by CableData pursuant
to the terms of the License Agreement and as more particularly described in that
License Agreement.
-3-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(j) "Custom Software" means the software which performs the functions
described in and complies with the Business Requirement Specification and the
Detailed Design Specifications. The Custom Software shall be deemed to include
the "Custom Work Product", as defined in the Interim Services Agreement, and the
Enhancements to the Core Software.
[*]
(l) "Deliverables" mean all deliverables which CableData is required
to provide to BIMS pursuant to this Agreement and/or any Work Order hereunder,
and shall include, without limitation, the Custom Software, the Interface
Software and the Documentation.
(m) "Detailed Design Specifications" means the written plan for
building the applicable Software Release code based upon the Business
Requirement Specification.
(n) "Documentation" means all operator and user manuals, guides,
listings, specifications, data dictionaries, logical data models, entity
relationship models, and other materials necessary for the complete
understanding and utilization of the functionality of the Custom Software,
including materials necessary for the complete understanding and utilization of
the functionality of the Custom Software, including materials useful for
design (e.g., logic manuals, flow diagrams and principles of operation) and
machine-readable text or graphic files subject to display or print-out.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-4-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(o) "Enhancements" mean those portions of the Custom Software which
represent new functionality, capabilities and table changes made to or within
the pre-existing code of the Core Software. References herein to Enhancements
shall be deemed to include the Enhancements made under the Interim Services
Agreement.
(p) "Fixed Development Fee and Incentive Pricing" means a mutually
agreed single price with an incentive to CableData for early delivery of the
defined Software Release associated with a specific Work Order.
(q) "Implementation Schedule" means a document that sets forth the
timing of the Deliverables specified in the Work Order.
(r) "Information" means technical information, computer or other
specifications, documentation, works of authorship or other creative works,
ideas, knowledge, or data, written, oral or otherwise expressed (i.e., other
than in connection with the APIs, RPCs or Enhancements), originated by CableData
or any of its employees, consultants, representatives or agents as a result of
work performed under or in anticipation of this Agreement.
(s) "Interface Software" means the software necessary to provide
interfaces and interoperability between and among the Custom Software delivered
under this Agreement, the Core Software provided pursuant to the License
Agreement, and other foreign and ancillary systems existing at BIMS and/or being
provided to BIMS by third parties. The Interface Software shall be deemed to
include the APIs and RPCs.
(t) "Interim Services Agreement" means the Interim Services Agreement
between BIMS and USCS, dated December 5, 1994, pursuant to which CableData has
commenced the provision of software development and related services to BIMS,
and which the parties agreed would be superseded and replaced by a more
definitive agreement.
(u) "Inventions" mean inventions, discoveries, or improvements which
are conceived, first reduced to practice, made or developed in anticipation of,
or in the course of, work performed under this Agreement by CableData or by one
or more of CableData's employees, consultants, representatives or agents.
(v) "License Agreement" means the Operating and License Agreement
between BIMS and CableData of even date herewith pursuant to which CableData
licenses the Core Software to BIMS.
-5-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(w) "Proposal" means USCS' Initial Response to BIMS' Request for an
Intelecable/Oracle Interface dated August 29, 1994, as modified by the facsimile
transmission from Dave H. Williams to Larry E. Ryan dated September 1, 1994, the
letter from Robert Crowley to Larry E. Ryan dated September 23, 1994 and the
Memorandum of Understanding dated December 5, 1994, between USCS and BIMS.
(x) "Self-Help Code" means any back door, time bomb, drop dead
device, or other software routine designed to disable a computer program
automatically with the passage of time or under the positive control of any
person or entity other than BIMS. Self-Help Code does not include software
routines in the Custom Software, Interface Software or Core Software, if any
designed to permit BIMS (or a third party authorized by BIMS) to obtain access
to the System (e.g., remote access via modem) for purposes of maintenance or
technical support.
(y) "Software Change Management Plan" means the procedure to manage
requests for changes after approval of the Business Requirement Specification
and/or the Detailed Design Specifications, as set forth in Exhibit "A" attached
hereto.
(z) "Software Release" means the software to be provided to BIMS by
CableData pursuant to any Work Order hereunder.
(aa) "Source Code" shall mean the source code corresponding to the
applicable software, plus any pertinent commentary or explanation that may be
necessary to render the Source Code understandable and usable by highly-trained
computer programmers who are generally familiar with Oracle database products
and the C and C++ programming languages. The Source Code shall be in a format
and on a storage medium suitable for loading into BIMS' computer equipment, and
shall not be encrypted. The Source Code shall include system documentation and
schematics, all as necessary or useful for the effective understanding and use
of the Source Code. Insofar as the "development environment" employed by
CableData for the development, maintenance and implementation of the Source Code
includes any device, programming, or documentation not commercially available to
BIMS on reasonable terms through readily known sources other than CableData, the
Source Code shall include all such devices, programming and documentation;
provided, however, that IBM's obligation to provide such devices and/or
programming shall only extend to the object code form of such devices and/or
programming. The foregoing reference to such "development environment" is
intended to apply to any programs, including compilers, "workbenches," tools,
and higher-level (or)
-6-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
"proprietary") languages, used by CableData for the development, maintenance and
implementation of the Source Code.
(bb) "System" shall consist of the Custom Software and Interface
Software provided to BIMS hereunder, the Core Software (as defined in the
License Agreement) provided to BIMS pursuant to the License Agreement, and the
computer hardware and software identified or described in the Operating
Environment Attachment to the License Agreement, as supplemented by Work Orders
agreed to by the parties in accordance with the terms of this Agreement.
(cc) "Time and Materials" means development fees based upon actual
time spent on the Software Release and based on hourly rates established in this
Agreement and cost of travel and materials required to create the Deliverable(s)
associated with the Work Order.
(dd) "Trade Secrets" mean any information of BIMS, including but not
limited to technical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers,
without regard to the form of such information regarding actual or potential
customers or suppliers, which (i) derives economic value, actual or potential,
from not being generally known to and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure or use
and (ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. Trade Secrets shall include, but are not limited to ,
unpatented information relating to the development, manufacture or servicing of
products, information concerning proposed new products, market feasibility
studies, proposed or existing marketing techniques or plans, and computer
software, including, without limitation, source and object codes, flow charts,
algorithms, coding sheets, doctrines, sub-routines, compilers, assemblers,
design concepts and related documentation and manuals. Trade Secrets also
include any information of the type described above which BIMS obtains from
another party and which BIMS treats as a Trade Secret, whether or not owned or
developed by BIMS. Unless otherwise agreed by the parties in connection with an
individual Work Order(s), the Deliverables to be provided by CableData under
this Agreement shall not be considered to be Trade Secrets.
(ee) "Unauthorized Code" means any virus, Trojan horse, worm, or other
software routines designed to permit unauthorized access, or to disable, erase,
or otherwise harm software, hardware,
-7-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
or data. The term Unauthorized Code does not include Self-Help Code.
(ff) "Walk-thru" means a technical presentation prepared by CableData
and presented to BIMS for review, understanding and BIMS inputs relating to the
Business Requirement Specification and the Detailed Design Specifications.
(gg) "Work Order" means the statement of work relating to a BIMS
initiated request for Deliverables.
2. BUSINESS REQUIREMENT SPECIFICATION.
(a) The Business Requirement Specification sets forth the functional,
performance and operational features and characteristics of a Software Release,
and of the services to be rendered by CableData hereunder, as set forth or
identified in Work Orders agreed to by the parties in accordance with the terms
of this Agreement.
(b) CableData will arrange and request BIMS' presence at a
requirements review meeting. At this meeting, CableData will conduct a
Walk-thru for BIMS of the proposed Business Requirement Specification. BIMS
shall make modifications as appropriate. Upon agreement by both parties to
the final Business Requirement Specification, CableData will prepare the
document for approval by both parties. The development by CableData of the
Business Requirement Specification shall be at no cost to BIMS unless
otherwise expressly provided for in a Work Order signed by both parties.
(c) Once signed by both parties in connection with the execution of a
Work Order, the Business Requirement Specification becomes the preliminary
specification upon which CableData shall build the Software Release under the
Work Order provisions of this Agreement.
(d) BIMS and CableData hereby acknowledge and agree that Exhibit "C"
attached hereto and incorporated herein by this reference sets forth BIMS'
initial Work Order pursuant to this Agreement (the "Initial Work Order"). The
parties further acknowledge that they have mutually agreed to the Business
Requirement Specification, the Implementation Schedule, the Fixed Development
Fee and all other information identified or set forth therein. CableData will
develop the Deliverables identified in Exhibit "C" hereto and deliver same to
BIMS in accordance with Exhibit "C" and the terms and conditions of this
Agreement. The
-8-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Custom Software and Interface Software will be furnished in Source Code and
machine-readable object code form.
3. SOFTWARE CHANGE MANAGEMENT PLAN.
All changes to the Business Requirement Specification and/or the Detailed
Design Specifications must be requested in writing and require mutual agreement,
in accordance with the procedure set forth in the Software Change Management
Plan (Exhibit "A") attached hereto and by this reference made a part hereof.
Evaluation and/or implementation of requested changes may or may not result in
any modification to CableData's price, Implementation Schedule or other terms of
this Agreement. CableData assumes the risk of any work performed or action
taken by CableData based upon oral statements, or on documents or notations, not
in accordance with the Business Requirement Specification, the Detailed Design
Specifications, this Section 3 and Exhibit "A" hereto.
4. DETAILED DESIGN SPECIFICATIONS.
CableData shall, with BIMS' cooperation and joint participation, develop
and deliver to BIMS a set of Detailed Design Specifications based upon the
Business Requirement Specification. The Detailed Design Specifications shall
include, as appropriate, system flow chats, program descriptions, file layouts,
database structures, report layouts and screen layouts, data dictionaries,
logical data models, entity relationship models, interface requirements and
layouts, conversion requirements and layouts and refined equipment requirements
for the Custom Software. In addition, the Detailed Design Specifications shall
specifically address the program specifications for the Interface Software.
CableData will arrange and request BIMS' presence at a product design and
architecture meeting(s). At this meeting(s), all known architecture and design
alternatives for the product(s) will be discussed and agreed upon by both
parties. If the parties cannot reach agreement on the Detailed Design
Specifications within ten (10) Business Days of the initial product design and
architecture meeting referred to above, BIMS shall have the right to terminate
this Agreement and/or the applicable Work Order pursuant to Section 18 herein.
Once accepted by BIMS, the Detailed Design Specifications shall supplement the
Business Requirement Specification, and CableData shall commence programming for
the Custom Software and the Interface Software.
-9-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
5. DEVELOPMENT FEES AND COMPENSATION.
The parties contemplate the need for flexibility in the development fees
for Software Releases created by CableData for BIMS. Time and Materials and
Fixed Development Fee and Incentive Pricing are two methods the parties agree to
follow with Fixed Development Fee as the preferred method. The parties will
mutually agree upon the appropriate Development Fee method for each Work Order.
a. ALTERNATIVE PRICE DETERMINATION METHODS
(i) FIXED DEVELOPMENT FEE AND INCENTIVE PRICING can be used when the
parties have sufficiently detailed requirements for CableData sizing and quoting
of a fixed price. CableData will evaluate the Business Requirement
Specification, and size the effort to build the Custom Software and/or Interface
Software. CableData will then produce a schedule based on the amount of
development and testing required to satisfy the Business Requirement
Specification. Where applicable to a particular Work Order, the parties shall
specify in such Work Order the Fixed Development Fee and Implementation
Schedule. CableData agrees to invoice BIMS for services provided to BIMS by
CableData under each Work Order which specifies that services performed
thereunder are to be performed on a Fixed Development Fee basis, in accordance
with the schedule of payments set forth in such Work Order.
(ii) TIME AND MATERIALS can be used when the parties do not have
sufficiently detailed requirements upon which CableData can appropriately size
the Software Release and quote a fixed price to BIMS. Upon written agreement of
both parties, CableData will bill BIMS based on actual Time and Materials.
Price ceilings and other controls shall be as set forth herein and as specified
by the parties and contained in the specific Work Order, and BIMS shall not be
liable for any charges and/or expenses thereunder in excess of the price
ceilings specified or incurred by CableData other than in accordance with the
applicable controls established. Time and Materials rates will be based on the
rates contained in Exhibit "B" attached hereto and incorporated herein by
reference, which Time and Materials rates shall be in no event more than the
lower of (1) the rates set fort in the Pricing Attachment to the License
Agreement, or (2) the rates which CableData charges to its other customers for
comparable work. CableData agrees to invoice BIMS, upon achieving each
milestone set forth in the associated Implementation Schedule, for services
provided to BIMS by CableData under each Work Order which specifies that
services performed thereunder are to be performed on a Time and Materials basis,
in accordance with the applicable Time and Materials rates. CableData
-10-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
shall submit with each invoice, copies of time reports which relate to the
services being invoiced. In addition to the foregoing, the requirements and
procedures set forth below shall apply to services performed under any Work
Order on Time and Materials basis:
(A) CableData shall invoice BIMS, monthly in arrears, for expenses
incurred as a result of performing services in accordance with
any Work Order. Such expenses shall be limited to reasonable
out-of-pocket expenses necessarily and actually incurred by
CableData in the performance of its services hereunder, provided
that: (1) such expenses have been estimated in the Work Order
and BIMS has given its prior written consent for any such
expenses; (2) the expenses have been detailed on a form
acceptable to BIMS and submitted to the appropriate BIMS Project
Manager for review and approval; and (3) if reasonably requested
by BIMS, CableData submits supporting documentation in addition
to the approved expense form. It is understood that BIMS shall
not reimburse CableData for commutation expenses under any
circumstances. It is also understood that any air transportation
reimbursable hereunder shall be coach-economy and that
entertainment by or on behalf of CableData shall be at no cost to
BIMS.
(B) CableData will submit the charges and/or expenses to be invoiced
for services performed and the applicable time reports or
documentation under any Work Order to the BIMS Project Manager
for that Work Order, for review and comment prior to actual
invoicing. BIMS will have five (5) days to review all such
documentation, following which CableData will issue and invoice
for payment. Subject to Section 5(b) below, the charges and/or
expenses invoiced in accordance with this Section, except for any
amounts disputed by BIMS, shall be payable by BIMS within thirty
(30) days of BIMS's receipt of each invoice. Any disputed
charges and/or expenses shall not affect payment of non-disputed
charges and/or expenses, in accordance with the terms of this
Agreement.
(C) CableData shall maintain complete and accurate accounting
records, in a form in accordance with generally accepted
accounting principles, to substantiate CableData's charges and
expenses
-11-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
hereunder and CableData shall retain such records for a period of
three (3) years from the date of final payment under any Work
Order.
(D) BIMS shall have the right to have audited through an independent
certified public accountant the books and records of CableData
relating to the amounts invoiced to BIMS hereunder (other than
for services performed on a Fixed Development Fee basis), for
the purpose of verifying the amounts due and payable hereunder,
upon at least five (5) Business Days' notice to CableData. The
cost of such audit shall normally be at BIMS' expense; provided,
however, that CableData will bear the cost of the audit if the
audit reveals any overpayment which, in the aggregate, is greater
than three percent (3%) of the amount which was actually due for
the period being audited.
b. RETAINAGE
Notwithstanding any amount invoiced by CableData hereunder, BIMS shall
be obligated to pay only eighty percent (80%) of the undisputed amounts of each
invoice and the remainder shall constitute retainage, which shall be retained by
BIMS and shall not be payable until Acceptance of the Deliverables under the
applicable Work Order(s) and delivery to BIMS of all Documentation with respect
to the System or the Software Release, as applicable, together with the Source
Code corresponding to such Software Release. Upon Acceptance of the
Deliverables under the applicable Work Order(s), BIMS shall pay fifty percent
(50%) of the retainage under such Work Order(s) to CableData within thirty (30)
days of receipt by BIMS of a request for such payment. Upon delivery to BIMS of
all final Documentation with respect to the System or the Software Release, as
applicable, together with the Source Code corresponding to such Software
Release, BIMS shall pay the remaining fifty percent (50%) of the retainage under
such Work Order(s) to CableData within thirty (30) days of receipt by BIMS of a
request for such payment.
c. INCENTIVE PAYMENTS ON FIXED DEVELOPMENT FEE QUOTES
Should the Deliverables associated with a particular Fixed Development
Fee Work Order be provided ahead of schedule, provided that such Deliverables
are capable of Acceptance by BIMS pursuant to Section 7 herein and/or in the
applicable Work Order without modification by CableData during the course of
such Acceptance Testing, BIMS shall pay CableData the Fixed Development
-12-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Fee plus an incentive amount to be mutually agreed upon by the parties in
connection with such Work Order. Should CableData fail to provide the
Deliverables on schedule due to causes other than the acts or omissions of BIMS
or causes beyond CableData's control, such as delays attributable to third
parties providing products or services directly to BIMS under contract with BIMS
(i.e., as opposed to CableData's suppliers and/or subcontractors), all as
identified to BIMS by CableData in the appropriate progress report at such time
as required pursuant to Section 9(b) herein, BIMS shall pay CableData the
Development Fee less a Delay Damages amount to be mutually agreed upon by the
parties in connection with each such Work Order, as provided for in subsection
(d) below. In the event the Deliverables associated with a particular Work
Order are not acceptable in accordance with Section 7 herein and/or as provided
in the applicable Work Order, no incentive payments will be due, regardless of
delivery time.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-13-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
[*]
E. DEVELOPMENT FEE DISCOUNTS
As consideration for BIMS's commitment to engage CableData for
future development of Custom Software and/or Interface Software, and in
consideration for BIMS' agreement that CableData will own all Custom Software
and Interface Software created pursuant to the Interim Services Agreement, as
included in the Initial Work Order hereunder, and in recognition of the value
of the ownership of such Custom Software and Interface Software by CableData,
CableData hereby agrees to grant to BIMS discounts off of the Development
Fees associated with the Initial Work Order, as well as with certain
subsequent Work Orders, whether such Development Fees are on a Fixed
Development Fee basis or are on a Time and Materials basis. The discounts
shall be calculated as follows:
(i) BIMS shall receive a discount of [*] off of the Development Fees
associated with any and all Work Orders issued by BIMS and
accepted by CableData on or before December 31, 1996 (collectively,
the "1996 Work Orders"), until such time as the discounts under
this Section 5(e)(i) reach a total of [*].
(ii) Thereafter, BIMS shall receive a discount off of the Development
Fees associated with all 1996 Work Orders based upon the level of
commitment made by BIMS with respect to such 1996 Work Orders,
which commitment shall be made by BIMS within forty-five (45)
days of BIMS' receipt of an estimate from CableData of the
Development Fees anticipated for such 1996 Work Orders. The
discounts shall be as follows: (A) in the event that BIMS'
aggregate commitment for 1996 Work Orders is less than or equal
to [*] then BIMS
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-14-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
shall receive a discount of [*] off of the Development Fees
associated with all 1996 Work Orders; (B) in the event that
BIMS' aggregate commitment for 1996 Work Orders is more than [*]
but less than [*], then BIMS shall receive a discount of [*]
percent [*] off of the Development Fees associated with all
1996 Work Orders; and (C) in the event that BIMS' aggregate
commitment for 1996 Work Orders exceeds [*], then BIMS shall
receive a discount of [*] off of the Development Fees
associated with all 1996 Work Orders. In the event that BIMS
fails to achieve the level of commitment it had made with
respect to the 1996 Work Orders, the Development Fees for such
1996 Work Orders shall be adjusted at the end of the year to
reflect the lower discount, if one would have been applicable
under this Section 5(e)(ii), applied to the actual undiscounted
Development Fees payable by BIMS for such 1996 Work Orders.
Conversely, in the event that BIMS attains the threshold amount
of Development Fees for a higher level of discount under this
Section 5(e)(ii) than was applicable to the level of commitment
which BIMS had made with respect to the 1996 Work Orders, then
BIMS shall receive the higher discount off of the Development
Fees for all 1996 Work Orders from and after the Work Order
submitted by BIMS which causes the undiscounted Development
Fees to exceed the threshold for the higher level of discount
under this Section 5(e)(ii).
By way of example, but not by way of limitation, in
the event that BIMS' aggregate commitment for 1996 Work Orders
is [*], and BIMS actually achieves undiscounted Development
Fees of [*] with respect to the 1996 Work Orders, the followng
will apply: (x) during the year, BIMS would have received a
discount of [*] off of the Development Fees associated with the
1996 Work Orders, such that it would have paid [*] (i.e., [*]
of [*] during the course of the year (note that, for ease of
illustration only, the discount
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-15-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
provided for in Section 5(e)(i) has not been reflected in this
example); and (y) based upon the actual undiscounted
Development Fees of [*], the actual discounted Development Fees
would be recomputed to reflect the lower [*] discount (i.e., [*]
and BIMS will be obligated to pay to CableData the difference
of [*]. Conversely, assuming the same level of commitment of [*]
if BIMS issues (and CableData accepts) a 1996 Work Order which
would cause the Development Fees for all 1996 Work Orders to
exceed [*], then BIMS shall receive a discount of thirty
percent [*] off of the Development Fees associated with such
1996 Work Order and for all subsequent 1996 Work Orders, but
such event shall not result in a price adjustment (e.g., in the
form of invoice credits or otherwise) for Development Fees
previously paid to CableData under prior 1996 Work Orders.
(iii) Following 1996, BIMS will be granted discounts as negotiated
between the parties on the basis of BIMS's commitment to certain
levels of
f. PAYMENT TERMS
CableData's standard payment terms are net cash, without discount,
set-off or deferment, due and payable within thirty (30) days of the date of
invoice, or the date of postmark if the postmark date is more than one (1)
Business Day after the invoice date (collectively, the "Invoice Date"); payment
of all undisputed charges is due in U.S. dollars. In the event that BIMS does
not render full payment of all undisputed charges within sixty (60) days of the
date payable, CableData may, after notifying BIMS, cease any and all services
hereunder until such account is brought current. In addition, if BIMS fails to
pay all undisputed charges within thirty (30) days of the Invoice Date, BIMS
agrees that upon the expiration of a fifteen (15) day cure period following
the effective date of written notice from CableData of such failure
to pay, CableData will have the right to invoice and BIMS will pay a late
payment service charge of one and one half percent (1.5%) per month, but not in
excess of the lawful maximum interest allowed, on the past due balance from and
after the expiration of such fifteen (15) day cure period. Should BIMS in good
faith dispute any
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-16-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
portion of an invoice submitted by CableData, BIMS shall advise CableData in
writing within thirty (30) days of the Invoice Date of such dispute and pay,
when due, all non-disputed charges. CableData will consider BIMS' dispute in
good faith.
g. TAXES
BIMS agrees to pay CableData all legally due sales, use or similar
taxes in connection with the purchase of any services or tangible personal
property pursuant to the terms of this Agreement. CableData shall separately
state all applicable sales, use or similar taxes on each invoice as prescribed
by the applicable terms of this Agreement or legal authority. CableData shall
be legally responsible for remitting all taxes collected for BIMS to the proper
taxing authority. In the event the taxability of any purchase under this
Agreement is disputed by a taxing authority as the result of an audit or
otherwise, CableData shall provide timely written notice to BIMS of this dispute
prior to any settlement or action on this dispute. Notwithstanding the
foregoing, any fines, penalties or interest imposed on BIMS or CableData, unless
such fines, penalties or interest result from the actions taken by CableData at
the written direction of BIMS. BIMS shall not be responsible for paying or
reimbursing CableData for any corporate franchise tax, capital tax, net worth
tax or taxes measured by reference to CableData's net income.
6. IMPLEMENTATION SCHEDULE.
(a) The Implementation Schedule sets forth the time(s) for
delivery of Deliverables specified in the Work Order. Unless otherwise
specified in any individual Work Order, CableData recognizes that time and
timely performance are of the essence in this Agreement and of each Work Order
hereunder.
(b) Both parties will agree upon appropriate delivery dates for
the Deliverables and other milestone events including but not limited to the
estimated date for the software architecture and design Walk-thru, schedule for
conference calls initiated by CableData to provide Software Release progress and
status (in addition to those required pursuant to Section 9 (b) herein),
delivery of the Software Release Installation Plan and the date for installation
of the Software Release at BIMS' site, and the Acceptance Testing period at
BIMS' site.
(c) If CableData is delayed at any time during the course of its
performance under any Work Order due to acts of God or causes beyond its
reasonable control, then CableData may request
-17-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
that the affected Implementation Schedule date(s) be extended. BIMS shall
review such request and grant an extension of time commensurate with the
circumstances, subject to the following conditions:
(i) The cause of the delay (A) is beyond CableData's control and
arises without its, or any of its subcontractors' or suppliers',
fault or negligence, and (B) arises or becomes known after the
date of execution of the applicable Work Order;
(ii) CableData demonstrates that the affected Implementation Schedule
date(s) is reasonable certain to be delayed; and
(iii) CableData provides a written request to BIMS within five (5)
Business Days after the time CableData knows or reasonably should
have known of any cause or circumstances which might, under
reasonably foreseeable circumstances, result in a delay for which
CableData may claim an extension of time. If CableData shall
fail to give the foregoing notice, the right to request an
extension for such cause may be waived.
A delay meeting all of the foregoing conditions shall be deemed an "Excusable
Delay".
The period of any extension of time shall be only that which is
necessary to make up the time actually lost. BIMS reserves the right to rescind
or shorten any extension previously granted if BIMS subsequently determines that
any information provided by CableData in support of its request for an extension
of time was erroneous or that there has been a material change in the facts
stated; provided, however, that such information or facts, if known, would have
resulted in a denial of the request for an Excusable Delay. In the event of a
delay, CableData shall proceed continuously and diligently with the performance
of the unaffected portions of the applicable Work Order and/or other Work
Order(s) not affected by the delay.
7. ACCEPTANCE TESTING
(a) After CableData has certified to BIMS in writing that all of
the Deliverables associated with each Work Order have been delivered and
installed in the facility specified by BIMS for purposes of Acceptance Testing,
and that such Deliverables meet the operational, performance and integration
specifications contained herein, in the Business Requirement Specification, in
the Detailed Design Specifications, and in any applicable change request
-18-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
documents, BIMS shall conduct Acceptance Testing of the System at its location
pursuant to this Section 7. BIMS shall prepare an Acceptance Test Plan for the
Initial Work Order and shall submit such plan to CableData for approval, which
approval shall not be unreasonably withheld. For purposes of Acceptance
Testing, performance of the Deliverable will be measured on the basis of a
commercially reasonable standard unless some other standard or specific
performance criteria are specified in the applicable Work Order. "Acceptance"
shall be deemed to occur at the earlier of (i) that point in time at which BIMS
notifies CableData of the successful completion of the acceptance test period
provided for in this Section 7, or (ii) that point in time at which BIMS places
the Deliverables into productive use in connection with paying Subscribers (as
defined in the License Agreement).
(b) BIMS shall conduct its Acceptance Testing of the
Deliverables under each Work Order for a period of forty-five (45) days (the
"Initial Acceptance Test Period"), commencing (i) with respect to the
Deliverables under the Initial Work Order, as set forth in Exhibit "C" attached
hereto, upon the last to occur of (A) receipt by BIMS of CableData's
certification, as provided in subsection (a) above, with respect to such
Deliverables, or (B) November 8, 1995, and (ii) with respect to Deliverables
under Work Order(s) other than the Initial Work Order, upon receipt by BIMS of
CableData's certification with respect to each such Work Order. Notwithstanding
the previous sentence, BIMS shall have the right to toll the running of the
forty-five (45) day Initial Acceptance Test Period at any time, and from time to
time, in connection with each Work Order hereunder, pending the delivery and
installation of third party products with which BIMS desires to test the
Deliverables hereunder; provided, however, that in no event will the running of
the Initial Acceptance Test Period under any Work Order be tolled by more
than sixty (60) days, cumulatively. The Initial Acceptance Test Period shall
be successfully completed, and Acceptance shall be deemed to have occurred
with respect to the applicable Deliverables, upon notice from BIMS to
CableData that BIMS has determined that all of the functions of the
Deliverables have been provided and perform in accordance with the Business
Requirement Specification, as referenced or set forth in the applicable Work
Order, and the Detailed Design Specifications, as provided for in Section 4
of this Agreement, including without limitation, that all reliability and
performance standards set for herein and in the Business Requirement
Specification and Detailed Design Specifications have been met or exceeded.
If any of the Deliverables under a particular Work Order fail to pass the
Initial Acceptance Test Period, BIMS shall so notify CableData in writing
specifying the nature of such failure(s) in reasonable detail and CableData
shall correct the specified failure(s) within
-19-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
the ten (10) day period following BIMS' notice to CableData. The parties
acknowledge and agree that BIMS' identification of failure(s) of the
Deliverables, and CableData's correction of such failures, shall be an ongoing
process throughout the Acceptance Test Period (hereinafter defined).
Accordingly, BIMS shall notify CableData periodically during the course of the
Acceptance Test Period of failure(s) of the Deliverables to conform to the
Business Requirement Specification and Detailed Design Specifications therefor,
and shall not, by any such notification, waive its right to notify CableData of
subsequent failure(s) identified during the Acceptance Test Period.
(c) Following CableData's certification that it has corrected all
failures specified by BIMS to date during the Acceptance Test Period, BIMS
shall commence another acceptance test period ("Re-Test Period") which will
expire upon the later of (i) the expiration of the forty-five (45) day
Initial Acceptance Test Period, or (ii) twenty (20) days after the
commencement of the Re-Test Period. The Initial Acceptance Test Period and
each Re-Test Period hereunder are referred to individually as an "Acceptance
Test Period," and collectively (with respect to each Work Order) as the
"Acceptance Test Period". The Acceptance Test Period shall be successfully
completed, and Acceptance shall be deemed to have occurred with respect to
the applicable Deliverables, upon notice from BIMS to CableData that BIMS has
determined that all of the functions of the Deliverables have been provided
and perform in accordance with the Business Requirement Specification and
Detailed Design Specifications, including without limitation, that all
reliability and performance standards set forth herein and therein have been
met or exceeded.
(d) In the event that any of the Deliverables under a Work Order fail
to pass the third or any subsequent Re-Test Period, as provided for in
subsection (c) above, CableData acknowledges that BIMS shall have the option,
upon written notice to CableData, to either (i) extend CableData's right to
continue attempting to cure the failure(s) for a specified period of time, upon
the completion of which BIMS shall commence another Re-Test Period, or
(ii) terminate:
(A) for Acceptance Testing associated with Work Order(s) entered into
pursuant to this Agreement other than the Initial Work Order set forth
in Exhibit "C" hereto, any or all Work Order(s) issued under this
Agreement which are then in progress. Upon such termination, BIMS
shall have the right to return the Deliverables provided for in such
terminated Work Order(s) and receive a refund of all amounts paid under
such terminated Work Order(s), with no
-20-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
liability on the part of BIMS to CableData for any portion of such Work
Order(s), whether or not already ordered, performed or developed on
BIMS' behalf; or
this entire Agreement and the License Agreement, for (x) Acceptance
Testing involving the Initial Work Order set forth in Exhibit "C"
hereto and/or (y) the acceptance testing of the Core Software provided
pursuant to the License Agreement, in the event that the failure of the
Core Software to pass such acceptance testing involves Severity Level 1
or 2 Defects, as defined in the Maintenance/Support Attachment to the
License Agreement. Upon such termination, BIMS shall have the right to
return all Deliverables provided for hereunder and under the License
Agreement, including without limitation, the Core Software, and receive
a refund of all amounts paid under this Agreement and the License
Agreement, with no liability on the part of BIMS to CableData for any
portion of the Deliverables hereunder or thereunder, whether or not
already ordered, performed or developed on BIMS' behalf.
In any event, BIMS shall be entitled to receive such damages and remedies as
BIMS might have pursuant to this Agreement and/or the License Agreement, or at
law or in equity, including without limitation, Delay Damages pursuant to
Section 5(d) of this Agreement.
(e) For efficiency and project management purposes, informal testing,
in addition to the Acceptance Testing provided for herein and/or in any Work
Order(s), may be conducted on a component basis at various times as the work
progresses, but neither such informal testing nor any provisional acceptance of
the results thereof by BIMS shall constitute acceptance of any aspect of the
System or any Software Release, as applicable, by BIMS or relieve CableData of
the responsibility to ensure that the System and/or such Software Release, as
a whole, successfully completes Acceptance Testing as a precondition to its
entitlement to certain payments under this Agreement.
8. WORK ORDERS.
It is contemplated that BIMS will desire to have CableData develop and
furnish to BIMS, and that CableData will agree to provide to BIMS, periodic
Software Releases and other Deliverables during the term of this Agreement.
BIMS and CableData will use Work Orders, signed by both parties, as the primary
method of initiating software development and other services by CableData.
-21-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
The terms and conditions of this Agreement shall apply to each such Work Order
proposed by BIMS which is accepted by CableData for the furnishing of such
software development and other services. Separate Work Orders will be created
for each Software Release. The Work Orders may include the following
information:
1. Business Requirement Specification
a. Descriptions and specifications for all custom Software
Deliverables, including all features, functions and performance
and integration requirements therefor. The Initial Work Order
include a description of all Custom Work Products created pursuant
to the Interim Services Agreement.
i. The foregoing description includes identification of all
Enhancements to be made to the Core Software.
b. Descriptions and specifications for all Interface Software
Deliverables.
c. Identification of Documentation to be provided.
d. Identification of any and all other Deliverables to be provided by
CableData.
2. Implementation Schedule, including without limitation, estimated dates
for the software architecture and design Walk-thrus (i,e., resulting in
the Detailed Design Specifications), schedule for conference calls to
be initiated by CableData to provide Software Release progress and
status, delivery of the Software Release Installation Plan and the
dates for installation of the Software Release(s) at BIMS' site, and
the Acceptance Testing periods at BIMS' site.
3. Designation of whether work is to be performed on a Time and Materials
basis or pursuant to a Fixed Development Fee (with Incentive Pricing).
a. If Fixed Development Fee, a Milestone Payment Schedule (reflecting
a hold-back of twenty percent (20%) pending CableData's correction
of all defects identified during BIMS Acceptance Testing).
-22-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
b. If Fixed Development Fee, incentive amounts for early delivery and
Delay Damages amounts and schedules, if applicable.
c. If Time and Materials, Delay Damages amounts and schedules, if
applicable.
d. If Time and Materials, overall price ceilings for Work Order, plus
additional project management controls, if any, on fees and
charges to be submitted by CableData.
e. Estimation of allowable expenses to be incurred by CableData, if
any (e,g., number of trips to Atlanta, together with estimates for
airfare, lodging, meals, etc. for each trip).
4. Number of days to be allocated to BIMS' Acceptance Testing of the
System upon completion of the Deliverables associated with the Work
Order.
5. Acceptance Criteria and Schedule.
Upon both parties' approval of the Work Order, the Work Order becomes
incorporated into this Agreement as an Exhibit hereto.
9. PROJECT MANAGEMENT; DELIVERY.
(a) DESIGNATION OF PROJECT COORDINATORS. CableData shall designate a
Technical Project Manager and a Program Manager (together, the "CableData
Project Coordinators"), each of whom shall be acceptable to BIMS and assigned
by CableData to supervise the provision of the Deliverables. BIMS shall
designate a Project Manager and a Program Manager (together, the "BIMS Project
Coordinators"), each of whom shall be, assigned by BIMS to coordinate BIMS'
involvement in the work hereunder. The BIMS Project Manager shall serve as
CableData's primary point of contact for the resolution of problems. Each
Program Manager shall be responsible for obtaining the express authority
necessary to carry out his or her obligations and responsibilities hereunder,
and may assume that the other Program Manager is acting within the scope of his
or her authority. CableData and BIMS may change their Project Coordinators from
time to time upon prior written notice to the other party, subject to subsection
(d) below.
(b) REVIEW MEETINGS AND PROGRESS REPORTS. Every two (2) weeks, or as
often as the parties mutually agree, during the period in which CableData is
performing services hereunder, the BIMS
-23-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Project Coordinators and CableData Project Coordinators, as well as appropriate
additional personnel involved in the particular tasks under way, shall meet at
a mutually agreed upon site or arrange a conference call to discuss the progress
made by CableData and BIMS. In order to facilitate proper project management,
CableData shall provide BIMS and BIMS shall provide CableData, at each such
meeting or conference call with a progress report specifying:
(i) Any "critical issue" (defined as a problem that may delay the
timely achievement of a milestone event) encountered by CableData or BIMS during
the preceding two (2) week period, including without limitation, the failure of
either party or a third party to perform, any delay of either party or a third
party in performing or the inadequate performance of either party or a third
party, which may prevent or tend to prevent CableData from completing any task
by the completion date;
(ii) An estimated length of any delay which may result from any
critical issues; and
(iii) The cause of any critical issue and the specific steps taken or
proposed to be taken by CableData or BIMS as appropriate to remedy such critical
issue.
Each progress report provided by CableData and BIMS pursuant to this Section
9(b) shall include critical issues discussed and dealt with during the preceding
two (2) week period. In any event, critical issues shall be discussed and dealt
with as soon as possible after identification by CableData, BIMS or a third
party partner. In the event CableData, BIMS or any such third party partner
fails to specify in writing any critical issue with respect to a given two (2)
week period in the appropriate progress report and in such manner and at such
time as required pursuant to this Section 9(b), it shall be presumed that no
critical issue arose during such two (2) week period,
(c) USE OF THIRD PARTY CONTRACTORS. CableData shall have the right to
retain third parties to furnish services to it in connection with its provision
of the Deliverables and/or to provide services to BIMS on behalf of CableData;
provided, however, that all third parties who perform work in furtherance of
CableData's obligations hereunder shall execute appropriate documents consistent
with the provisions of this Agreement undertaking obligations of confidentiality
respecting such work.
(d) REMOVAL OF PERSONNEL. In the event that any CableData employee
performing services hereunder is found to be unacceptable to BIMS, BIMS shall
notify CableData of such fact and
-24-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
CableData shall remove said employee from performing services for BIMS and
provide a qualified replacement no later than thirty (30) days thereafter.
Except as provided for in the preceding sentence, CableData agrees to use best
efforts to ensure the continuity of CableData personnel assigned to perform
services under this Agreement. Except as provided for in the first sentence of
this subsection (d), any reassignment by CableData of those of its key employees
assigned to perform services under any Work Order must be with BIMS' prior
written consent, which consent shall not be unreasonably withheld. In the event
CableData reassigns any of its personnel assigned to perform services under this
Agreement, CableData shall promptly provide a qualified replacement acceptable
to BIMS.
(e) ON-SITE SUPPORT. In addition to the provision of maintenance and
support services pursuant to Sections 15 and 16 herein, upon request by BIMS,
CableData shall identify and assign the number of CableData representatives
requested by BIMS to be on site at BIMS' facilities and shall require such
representatives to devote all of their business time during such assignment to
the technical support of the Custom Software and Interface Software and to
facilitate the support of the Core Software through CableData's customer service
and support organization. As consideration for the provision of such on-site
support, BIMS shall pay CableData pursuant to the fully-loaded rates set forth
in Exhibit "B" hereto. All such payments due hereunder shall be invoiced by
CableData to BIMS on a monthly basis.
10. INVENTIONS.
(a) In the event that the parties specifically agree in a particular
Work Order that BIMS will own the Deliverable(s) to be provided by CableData in
connection with such Work Order, CableData hereby assigns and agrees to assign
to BIMS all of CableData's and each of its employees', consultants',
representatives' and agents' ("Associates") entire right, title and interest in
and to all Inventions created in connection with such Work Order ("BIMS-Owned
Inventions"), and any and all patents that may be granted thereon in any country
of the world. In the event that the parties fail to so designate the ownership
of the Deliverable(s) in connection with a particular Work Order, such
Deliverable(s) shall be deemed to be wholly owned by CableData.
(b) CableData shall promptly share with BIMS all information relating
to any BIMS-Owned Inventions. With respect to such BIMS-Owned Inventions,
CableData will promptly have its Associates sign all papers and, without charge
to BIMS, do all acts which may be necessary, desirable or convenient to enable
BIMS at
-25-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
its expense to file and prosecute applications for patents on such BIMS-Owned
Inventions, and to maintain patents granted thereon. CableData also agrees to
acquire from its Associates who perform work in connection with the applicable
Work Order, such assignments, rights and covenants as to assure that BIMS shall
receive the rights provided for in this Section 10. The expenses and fees for
preparing, filing and prosecuting each application or patent for a BIMS-Owned
Invention shall be borne by BIMS; provided, however, that CableData will, at its
expense, furnish BIMS with all documents, information, or other assistance, that
may be necessary for the filing and prosecution of each such application.
11. DEVELOPED INFORMATION.
(a) CableData agrees to disclose and promptly furnish to BIMS any and
all Information. In tho event that the parties specifically agree in a
particular Work Order that BIMS will own the Deliverable(s) to be provided by
CableData in connection with such Work Order, BIMS shall own all right, title
and interest in and to the Information created under such Work Order ("BIMS-
Owned Information"), including all copyrights and proprietary rights therein.
CableData expressly acknowledges that the parties have agreed that all aspects
of the BIMS-Owned Information and all work in process in connection therewith
are to be considered "works made for hire" within the meaning of the Copyright
Act of 1976, as amended (the "Act"), and that BIMS is to be the "author" of such
BIMS-Owned Information within the meaning of such Act. All such copyrightable
BIMS-Owned Information, as well as all copies of such BIMS-Owned Information in
whatever medium fixed or embodied, shall be owned exclusively by BIMS as its
creation, and CableData hereby expressly disclaims any interest in any of them.
(b) In the event (and to the extent) that any BIMS-Owned Information
created by CableData hereunder or any part or element thereof is found as a
matter of law not to be a "work made for hire" within the meaning of the Act,
CableData hereby conveys and assigns to BIMS the sole and exclusive right, title
and interest in the ownership to all such BIMS-Owned Information, and all
copies of any of them, without further consideration, and agrees to assist BIMS
to register, and from time to time to enforce, all copyrights and other rights
and protections relating to the BIMS-Owned Information created hereunder in any
and all countries. CableData shall place a copyright notice in favor of BIMS on
the BIMS-Owned Information at BIMS' request.
(c) With respect to BIMS-Owned Information, CableData agrees to
execute and deliver all documents requested by BIMS in connection with the
foregoing assignments, and irrevocably
-26-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
designates and appoints BIMS its agent and attorney-in-fact to act for and in
its behalf and stead to execute, register and file any such copyright
applications, and to do all other lawfully permitted acts to further the
registration of copyrights or similar protections with the same legal force and
effect as if executed by CableData.
12. UNRESTRICTED LICENSE.
(a) In conjuction with the parties' agreement to the Business
Requirement Specifications for all software Deliverables to be provided by
CableData in connection with the applicable Work Order as modified by the
parties in conjunction with their agreement to the Detailed Design
Specifications therefor, and as part of the consideration for BIMS's payment
of Development Fees hereunder, CableData hereby grants and agrees to grant to
BIMS an unrestricted, paid-up, perpetual, irrevocable, non-exclusive license
to use, distribute, copy, display, modify, enhance and create derivative
works based upon the Information and Inventions associated with such
Deliverables. Such license in favor of BIMS shall include the royalty-free
right to sublicense any or all aspects of the Information and Inventions
(including derivative works thereof) to third parties, without any duty on
the part of BIMS to account to CableData for any income or compensation BIMS
receives for any such sublicensing or distribution to third parties. The
foregoing license in this subsection (a) shall not apply to CableData's
pre-existing application libraries, pre-existing system libraries, third
party libraries, source code to pre-existing application programs, or the
development environment used to create "Pre-existing Materials" (hereinafter
defined).
(b) In furtherance of CableData's grant to BIMS of the license
described above, CableData shall provide to BIMS Source Code for the Software
Deliverables, together with the program executables which are derived from
the linking of the software Deliverables and CableData's pre-existing
application libraries, pre-existing system libraries and various third party
libraries. CableData shall not be required to make available to BIMS, as a
separate deliverable hereunder, a copy of CableData's pre-existing
application libraries, pre-existing system libraries or any third party
libraries. CableData hereby grants and agrees to grant to BIMS an
unrestricted, royalty-free, run-time license to use, copy, distribute,
display and perform the program executables which are derived from the
linking of the software Deliverables and CableData's pre-existing application
libraries, pre-existing system libraries and various third party libraries.
The license so granted to BIMS includes the right to grant to BellSouth
Corporation and any subsidiary or other affiliate to BellSouth
-27-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Corporation, unrestricted, royalty-free licenses to use, copy, distribute,
display and perform the program executables which are derived from the
linking of the software Deliverables and CableData's pre-existing application
libraries, pre-existing system libraries and various third party libraries.
(c) In addition to the foregoing, CableData shall provide to BIMS,
and to any third party designated by BIMS, at no additional charge to BIMS or
any such third parties, copies of that object library specially created for
BIMS pursuant to this Agreement, or derived from the APIs created for BIMS
pursuant to this Agreement, which contains the necessary APIs for BIMS' and
such third parties' applications to interface and interact with the System,
including without limitation, the Core Software. CableData grants and agrees
to grant to BIMS, and to any third party designated by BIMS, an unrestricted,
royalty-free license to use, copy, distribute, display and perform such
library. The parties understand and acknowledge that this libary was created
by CableData to operate BIMS' Operating Environment (as defined in the
License Agreement) and may not work in a third party's environment without
modifications. Any such modifications would be subject to a Work Order to be
mutually agreed to by the parties. In no event shall CableData be required to
provide to BIMS or any third parties designated by BIMS libraries for APIs
that have not been developed specifically for BIMS under this Agreement, or
derived from APIs created for BIMS under this Agreement.
(d) If the exercise of BIMS' rights under the licenses granted in
Sections 12(a), (b) and (c) above requires the use of inventions or materials
previously made, developed or copyrighted by CableData or others, and not
originated or developed hereunder (the "Pre-existing Materials"), then
CableData, to the extent that it has the right to do so, shall also make
available to BIMS such Pre-existing Materials, in object code or other form,
as may be required, but only to the extent necessary for BIMS to exercise
such rights. CableData shall not be required to make available to BIMS, as a
separate deliverable, a copy of CableData's pre-existing application
libraries, pre-existing system libraries, third party libraries, source code
to pre-existing application programs, or the development environment used to
create Pre-existing Materials. CableData grants and agrees to grant to BIMS
an unrestricted, royalty-free license to use, copy, modify, distribute,
display and perform the inventions, information or other aspects of the
Pre-existing Materials, as described above. The license so granted to BIMS
includes the right to grant to BellSouth Corporation and any subsidiary or
other affiliate of BellSouth Corporation unrestricted, royalty-free licenses
to use, copy, modify, distribute, display and perform the inventions,
information and
-28-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
other aspects of the Pre-existing Materials, but only to the extent necessary
to use, copy, modify, distribute, display and perform the software
Deliverables. Nothwithstanding the foregoing, BIMS' use of the Core Software
will be governed by and subject to the terms and conditions of the License
Agreement between the parties.
13. CONFIDENTIALITY.
(a) CableData acknowledges that in the course of providing the
Deliverables it may have access to BIMS's Trade Secrets and Confidential
Information. Accordingly, CableData agrees that (i) during the term of this
Agreement and after the termination or expiration hereof, CableData will not,
except as expressly authorized or directed by BIMS, use, copy, or disclose, or
permit any unauthorized person access to, any Trade Secrets, and (ii) during the
term hereof and for a period of three (3) years after the termination or
expiration of this Agreement, CableData will not use, copy, or disclose, or
permit any unauthorized person access to, any Confidential Information.
(b) Upon BIMS' request and in any event upon the termination or
expiration of this Agreement, CableData will deliver to BIMS all memoranda,
notes, records, tapes, documentation, disks, manuals, files or other documents,
and all copies thereof, concerning or containing Confidential Information or
Trade Secrets that are in CableData's possession. Further, CableData shall
ensure that upon the termination or expiration of this Agreement all Trade
Secrets and Confidential Information are purged from CableData's computer
memory.
(c) BIMS acknowledges that the Core Software is provided in confidence
and is a trade secret of CableData and will be so protected by BIMS, as required
by the License Agreement between BIMS and CableData.
14. WARRANTIES AND REPRESENTATIONS.
CableData hereby warrants and represents to BIMS as follows:
(a) The content of the Proposal, which was relied upon by BIMS in
entering into this Agreement, was true and accurate and contained no material
omissions or misrepresentations as of the date of the Proposal and, except for
changes that have been made to the software components, estimated costs of
software development and professional fees, and except as otherwise expressly
set forth herein, remains true and accurate and contains no material omissions
or misrepresentations as of the date hereof. The Proposal is hereby incorporated
herein by this reference and shall
-29-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
constitute part of this Agreement as if fully set forth herein. To the extent of
any conflict between the terms and conditions of this Agreement, including the
Exhibits attached hereto, and the terms and conditions of the Proposal, the
terms and conditions of this Agreement shall control.
(b) The work to be performed hereunder shall conform to generally
accepted standards for software in the software development field. Any services
performed by CableData which are determined by BIMS to be of less than these
standards or which contain errors or defects shall be corrected by CableData
without additional charge during the Warranty Period (hereinafter defined).
(c) The Deliverables will contain only (i) original material created
by CableData or (ii) material which has been properly licensed from third
parties and has been used by CableData in accordance with the licenses for such
materials, provided that the inclusion of all such third party materials shall
have been agreed to by BIMS.
(d) The Deliverables are original works, and CableData has not entered
into any contract or agreement which would prohibit or affect this Agreement to
BIMS' detriment.
(e) The Custom Software has not been nor will it be assigned,
transferred or otherwise encumbered, and none of the Deliverables, and no
portion thereof, infringes any patents, copyrights, trade secrets, or other
proprietary rights of any third party, and CableData has no reason to believe
that any such infringement or claims thereof could be made by anyone.
(f) CableData has obtained all necessary rights and licenses to
third party materials included in the Deliverables to enable BIMS to use the
Deliverables for any purpose and for no additional charge beyond the amounts
expressly set forth in this Agreement or in the License Agreement, and has
provided, or will upon BIMS' request provide, to BIMS copies of documents
granting all such rights and licenses.
(g) CableData is aware that BIMS is relying on its skill and
judgment in providing the Deliverables. CableData believes that it has been
made generally aware of BIMS' documented business requirements and intended
uses for the Deliverables, as more clearly described in the Business
Requirement Specification, and, based upon such belief, CableData warrants
that the Deliverables shall satisfy such requirements and will be fit for
such intended uses.
-30-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(h) Neither the Custom Software nor the Interface Software contains
nor will contain any Self-Help Code or any Unauthorized Code, and CableData
agrees to ensure against any data lost as a result of same.
(i) If the Custom Software or Interface Software contains
authorization codes allowing access to a database or other software system,
CableData warrants that such codes shall be perpetual and non-expiring.
(j) For a period commencing upon Acceptance, pursuant to Section 7
hereof and/or the associated Work Order(s), as applicable, and ending ninety
(90) days thereafter (the "Warranty Period"), and for the period during which
CableData is providing continuing support for the Custom Software and the
Interface Software pursuant to Section 16 below and the License Agreement (the
"Support Period"), the Custom Software and Interface Software shall perform as
described in the Business Requirement Specification and in the Detailed Design
Specifications when operated within the operating environment identified or
described in the Operating Environment Attachment to the License Agreement, as
supplemented by Work Orders agreed to by the parties in accordance with the
terms of this Agreement. Except as otherwise provided herein, CableData does not
warrant:
(i) that the Custom Software and Interface Software will run properly
on all hardware,
(ii) that the Custom Software and the Interface Software will operate
in the combination of hardware/software which may be independently
selected by BIMS, or
(iii) that the use of the Custom Software and Interface Software will be
uninterrupted or error-free.
During the Warranty Period, CableData shall correct such defects identified by
BIMS at no additional cost to BIMS, and shall respond to and resolve problems
with the Custom Software and Interface Software in accordance with the
procedures set forth in the License Agreement, at no additional cost to BIMS.
(k) During the Warranty Period and subsequent Support Period, the Core
Software and the Custom Software shall be compatible with each other without
degraded System response time, except as set forth in the Work Order and the
License Agreement. CableData further warrants that during the Warranty Period
and subsequent Support Period, the Custom Software will interface with
-31-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
all foreign and ancillary systems existing at BIMS and/or being provided to BIMS
by third parties (including Sybase, Inc.), as identified in the Business
Requirement Specification, without degrading response time and without breaching
any of the warranties set forth in this Agreement.
(l) Each of CableData's employees, agents, representatives or
subcontractors assigned to perform any work hereunder shall have the proper
skill, training and background so as to be able to perform in a competent and
professional manner, and all work will be so performed.
(m) The Warranties set forth in this Section 14 will not apply if
malfunctions of Custom Software occur as a result of (i) natural disasters,
including fire, flood or lightning, (ii) armed conflict or civil disturbance,
(iii) electrical fluctuations or failures, (iv) gross neglect or intentional
misuse of the Custom Software products, (v) corrections or modifications to the
Custom Software not provided by or approved in writing by CableData or (vi) the
failure to install promptly a correction provided by CableData.
(n) EXCEPT AS PROVIDED IN THIS AGREEMENT OR IN THE LICENSE AGREEMENT,
NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO
THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE WARRANTIES SET FORTH HEREIN
APPLY ONLY TO THE CUSTOM SOFTWARE AND INTERFACE SOFTWARE AS PROVIDED TO BIMS BY
CABLEDATA OR AS SUCH CUSTOM SOFTWARE AND/OR INTERFACE SOFTWARE IS MODIFIED BY
CABLEDATA, AND DO NOT EXTEND TO THE CUSTOM SOFTWARE AS MODIFIED BY BIMS OR A
THIRD PARTY WITHOUT CABLEDATA'S WRITTEN APPROVAL.
15. CUSTOM SOFTWARE SUPPORT. During the Warranty Period, CableData shall do
the following without additional charge to BIMS:
(a) Promptly notify BIMS of any defects or malfunctions in the Custom
Software and/or Interface Software of which it learns from any source, correct
any such defects or malfunctions and provide BIMS with corrected copies of same;
(b) Promptly provide to BIMS copies of the Custom Software and/or
Interface Software revised to reflect any enhancements to the Core Software made
by CableData, or to any other software or systems with which the Custom
Software interfaces (e,g., software provided to BIMS by Sybase, Inc.), as
identified in the Business Requirement Specification;
-32-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(c) Twenty-four (24) hours per day, seven (7) days per week, provide
to BIMS all telephone (toll-free in the United States) or written consultation
requested by BIMS in connection with its use and operation of the Core Software,
Custom Software and Interface Software, or any problems therewith;
(d) Remedy any services performed by CableData which are determined by
BIMS to be of less than the highest professional quality; and
(e) Respond to and resolve problems with the Custom Software and/or
Interface Software identified by BIMS in accordance with the response time
hierarchy included in the License Agreement.
16. CONTINUING SUPPORT OF CUSTOM SOFTWARE.
Effective upon the expiration of the Warranty Period, CableData shall
provide maintenance, additional support and enhancements in connection with the
Custom Software and the Interface Software pursuant to the terms of the License
Agreement at no cost to BIMS for a period of [*]. At the end of such [*]
CableData will provide BIMS a price quote for continued support of the Custom
Software and Interface Software. Post-Warranty support shall include, but not
be limited to, revisions to the Custom Software and/or Interface Software
which are necessary to enable the Custom Software and/or Interface Software to
continue to operate with the enhancements, updates or revisions to the Core
Software and to the other software and systems with which the Custom Software
interfaces (e.g., software provided to BIMS by Sybase, Inc.), as identified in
the Business Requirement Specification. In addition, such post-warranty support
shall include the provision by CableData to BIMS, upon request by BIMS, of
revisions to the Custom Software and Interface Software, in both Source Code
and object code form, as necessary to enable BIMS to fully utilize new features
and functionality that may have been added to the Core Software. The
Unrestricted License, as provided for in Section 12 above, shall apply to all
revisions to the Custom Software and Interface Software provided to BIMS
hereunder.
17. INDEMNITY.
(a) CableData shall indemnify, defend and hold BIMS and its
Affiliates, and their respective officers, directors, agents and employees,
harmless from and against any and all liabilities, damages, losses, expenses,
claims, demands, suits, fines or judgments, including reasonable attorneys'
fees, and costs and expenses incidental thereto, which may be suffered by,
accrued
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-33-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
against, charged to or recoverable from BIMS or any of its Affiliates, or any of
their respective officers, directors, agents or employees, arising out of a
claim that any Deliverable or any portion thereof infringes or misappropriates
any United States or foreign patent, copyright, trade secret or other
proprietary right. CableData shall have no liability to BIMS for any
infringement action or claim which is based upon or arises out of: (i) any
modification of the Deliverables by BIMS without the express written permission
of CableData; or (ii) any use of the Deliverables in combination with any other
system, equipment or software which is not furnished by CableData or approved by
CableData in writing.
(b) CableData shall indemnify, defend and hold BIMS and its
Affiliates, and their respective officers, directors, agents and employees,
harmless from and against any and all liabilities, damages, losses, expenses,
claims, demands, suits, fines or judgments, including reasonable attorneys'
fees, and costs and expenses incidental thereto, which may be suffered by,
accrued against, charged to or recoverable from BIMS or any of its Affiliates,
or any of their respective officers, directors, agents or employees, arising out
of or resulting from (i) claims of bodily injury, including death, or loss or
damage to property or physical destruction of property arising out of or in
connection with any act, error or omission of CableData or any of its officers,
directors, agents, representatives, employees and subcontractors, during the
performance of this Agreement; (ii) intentional acts or gross negligence on the
part of CableData or any of its agents, representatives, employees or
subcontractors in the course of its performance under this Agreement, or (iii) a
reclassification or attempt to reclassify CableData or any of CableData's
employees, agents, representatives or subcontractors as an employee of BIMS or
any of its Affiliates, including, without limitation, any tax liability
(including interest and penalty) resulting from BIMS' or any of its Affiliates'
failure to pay, deduct or withhold income taxes, Federal Insurance Contribution
Act taxes, or Federal Unemployment Tax Act taxes with respect to CableData or
any of its employees, agents, representatives or subcontractors.
(c) CableData's duty to indemnify BIMS hereunder shall include all
attorneys' fees which BIMS reasonably incurs in connection with the defense of
any claims covered by this Section 17 and all settlement costs, except as
otherwise provided in this Section 17. Promptly after receipt by BIMS of a
threat of any action, or a notice of the commencement or filing of any action
against which BIMS may be indemnified hereunder, BIMS shall give notice thereof
to CableData, provided that failure to give or delay in giving such notice to
CableData shall not relieve CableData of
-34-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
any liability it may have to BIMS hereunder except to the extent that CableData
demonstrates that the defense of such action is prejudiced thereby. CableData or
CableData's attorney(s) shall keep BIMS reasonably apprised of the continuing
status of the claims covered by this Section 17, including any lawsuits
resulting therefrom, and shall permit BIMS, upon BIMS' written request, to
participate in the defense or settlement of any such claim, provided that
CableData shall have no obligation to indemnify for, be bound by or otherwise
incur any liability with respect to, any settlement terms to which it has not
agreed. CableData shall assume the cost of defending against any such claim and
shall select the attorney(s) to defend them against such claim subject to BIMS'
approval, which shall not be unreasonably withheld.
18. TERMINATION.
(a) Either party may terminate this Agreement at any time in the event
of a material breach of the terms hereof by the other party if such party shall
fail to cure such material breach within thirty (30) calendar days of receipt of
written notice thereof.
(b) BIMS may terminate this Agreement:
(i) upon written notice to CableData in the event that:
(A) BIMS terminates the License Agreement pursuant to the
terms thereof;
(B) BIMS reasonably rejects the Detailed Design
Specifications prepared pursuant to Section 4 hereof, for
the Initial Work Order set forth in Exhibit "C" hereto;
(C) CableData fails to deliver the version of the System
which includes the Software Releases prepared in
connection with the Initial Work Order set forth in
Exhibit "C" hereto within sixty (60) days of the delivery
date set forth in the Implementation Schedule; or
(D) the version of the System which includes the Software
Releases prepared in connection with the Initial Work
Order set forth in Exhibit "C" hereto fail to pass
Acceptance Testing, as more
-35-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
particularly described in Section 7 hereof; or
(ii) without cause upon seven (7) calendar days prior written
notice to CableData, in which event BIMS shall pay CableData
for CableData's development work hereunder through the
effective date of termination on a Time and Materials basis,
to be determined in accordance with Exhibit "B," up to the
amount of the unpaid portion of the Development Fee
associated with the development work performed through the
effective date of termination.
(c) BIMS may terminate any Work Order entered into pursuant to this
Agreement:
(i) upon written notice to CableData in the event that:
(A) BIMS reasonably rejects the Detailed Design
Specifications prepared pursuant to Section 4 hereof with
respect to such Work Order;
(B) CableData fails to deliver the version of the System
which includes the Software Release prepared in
connection with such Work Order within sixty (60) days of
the delivery date set forth in the Implementation
Schedule set forth in the Work Order; or
(C) the version of the System which includes the Software
Release prepared in connection with such Work Order fails
to pass Acceptance Testing, as more particularly
described in Section 7 hereof and/or in such Work Order.
(d) In the event of termination pursuant to subparagraph (b)(i)(B) or
(b)(i)(C) of this Section, then BIMS shall have the option to either (i) return
to CableData all Deliverables under the Initial Work Order, upon reimbursement
by CableData of all amounts paid by BIMS in connection with such terminated
System or Work Order, or (ii) retain all such Deliverables in lieu of any
reimbursement by CableData of any amounts paid by BIMS in connection with the
Initial Work Order, and pursue such other
-36-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
damages and remedies as BIMS might have pursuant to this Agreement and/or the
License Agreement, or at law or in equity, including without limitation, Delay
Damages pursuant to Section 5(d) of this Agreement. In the event of termination
pursuant to subparagraph (c)(i)(A) or (c)(i)(B) of this Section, then BIMS shall
have the option to either (i) return to CableData all Deliverables related to
the terminated Work Order, upon reimbursement by CableData of all amounts paid
by BIMS in connection with such terminated Work Order, or (ii) retain all such
Deliverables in lieu of any reimbursement by CableData of any amounts paid by
BIMS in connection with such terminated Work Order, and pursue such other
damages and remedies as BIMS might have pursuant to this Agreement, or at law or
in equity, including without limitation, Delay Damages pursuant to Section 5(d)
of this Agreement. In the event of termination pursuant to subparagraph
(b)(i)(D) or (c)(i)(C) of this Section, then BIMS shall have the rights set
forth in Section 7(d) of this Agreement.
(e) Any termination of this Agreement or any Work Order by BIMS shall
be in addition to any and all other legal or equitable remedies which may be
available to BIMS.
19. COORDINATION AND COOPERATION WITH OTHER CONTRACTORS/CONTENT PROVIDERS.
(a) Throughout the term of this Agreement, other contractors and
persons (including personnel of BIMS) may be required to render services in or
install equipment or software at BIMS' facilities, including, but not limited
to, Sybase, Inc., Hewlett-Packard Company and Scientific-Atlanta Inc. BIMS
reserves the right to permit and put such other contractors and persons to work
and to afford them access to such facilities at such times and under such
conditions as do not unreasonably interfere with CableData. CableData shall
perform continuously and diligently and shall so conduct and coordinate its
aspects of this Agreement so as to minimize interference with such other work.
Upon CableData's receipt from BIMS of written notification as set forth in the
License Agreement, CableData shall also cooperate with BIMS in providing such
information and assistance as requested by BIMS for such coordination in a
timely manner, subject to the provisions of Paragraph 6(b) of the License
Agreement. If BIMS determines that CableData is failing to coordinate its work
with the work of other contractors engaged by BIMS or is failing to cooperate
with such contractors, then CableData shall be responsible for all damages,
costs and expenses suffered or incurred by BIMS by reason of CableData's
failure.
-37-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(b) Throughout the term of this Agreement, certain Content Providers
and other third party contractors and/or providers of related products and
services will be required to configure and/or develop the necessary software in
order to deliver their products and services over BIMS's broadband network, the
usage of which products and services may be tracked by and/or maintained within
the System. Upon written notification from BIMS, CableData shall cooperate with
the Content Providers and such third parties in providing such information and
assistance as is necessary for such persons or entities to configure and/or
develop the necessary software in a timely manner, subject to the provisions of
Paragraph 6(b) of the License Agreement. CableData acknowledges and agrees that
the injury that BIMS will suffer in the event of CableData's breach of the
foregoing covenant cannot be compensated by monetary damages alone, and
CableData therefore agrees that BIMS, in addition to and without limiting any
other remedies or rights which it may have either under this Agreement or
otherwise, shall have the right to obtain injunctive or other equitable relief
against CableData, from any court of competent jurisdiction, enjoining any such
breach.
20. RELATIONSHIP OF PARTIES.
CableData acknowledges, agrees, represents and warrants that it is and has
been engaged as an independent contractor, and not as an employee, of BIMS, and
nothing in this Agreement shall be construed as creating an employer-employee
relationship or any partnership or joint venture between BIMS and CableData.
CableData shall be responsible for payment of all federal, state and local taxes
arising out of CableData's and its agents', representatives' and subcontractors'
activities, including by way of illustration, but not limited to, federal and
state income taxes, social security taxes, unemployment insurance taxes, where
applicable, and business license fees, where required. CableData shall not incur
any liability on behalf of BIMS or in any way represent or bind BIMS in any
manner or thing whatsoever and nothing herein shall be deemed to make either
party the agent or legal representative of the other.
21. REGULATORY AUTHORITY.
BIMS' provision of services in connection with the broadband trial will be
subject to the provisions of the order(s) of the Federal Communications
Commission ("FCC") approving BellSouth Telecommunications Inc.'s application for
authority to conduct the trial. ("214 Application") and applicable tariffs. BIMS
and its affiliates shall use reasonable efforts to pursue any regulatory and
local authority required to perform the broadband trial. BIMS
-38-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
may terminate this Agreement if it or its affiliates are unable to obtain the
required approvals and authority. Any such termination shall be as set forth in
this Agreement, and shall be without any further charge, obligation and/or
liability on the part of BIMS to CableData.
22. ASSIGNMENT TO VANGUARD.
In addition to BIMS' assignment rights under this Agreement, including
without limitation, BIMS' right to assign this Agreement to one or more
Affiliates, BIMS shall have the right to assign its rights and delegate its
duties under this Agreement either in whole or in part, at any time and without
CableData's consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give
CableData written notice of such assignment or delegation. Upon the written
notice to CableData and receipt by CableData of Vanguard's written assumption of
rights and obligations under this Agreement, BIMS shall be released and
discharged, to the extent of the assignment, from further duties under this
Agreement.
23. GENERAL.
(a) INSURANCE. CableData shall procure and maintain for itself and its
employees all insurance coverages as required by federal or state law, including
worker's compensation insurance. CableData also agrees to maintain (a) insurance
in the minimum amount of [*] comprehensive general liability coverage,
including blanket contractual liability, broad form property damage, and
products completed operations coverage, and naming BIMS as an additional
insured, and (b) insurance in the minimum amount of [*] coverage of
software errors and omissions, including services rendered and intellectual
property infringement claims, with respect to the computer software developed
hereunder. CableData shall furnish to BIMS a certificate of insurance evidencing
such coverage. Said certificate will include a provision whereby fifteen (15)
calendar days notice must be received by BIMS prior to coverage change or
cancellation by either CableData or the insurer. CableData waives its rights of
subrogation against BIMS.
(b) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia. The parties agree that the
exclusive jurisdiction for any action relating to this Agreement shall be a
federal or state court in Atlanta, Georgia and the parties hereby consent to
such jurisdiction.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-39-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(c) ANNOUNCEMENTS. CableData shall not use the name of or refer to
BIMS, BellSouth or any of their affiliates directly or indirectly in any
advertisement, press release or professional or trade publication without
receiving prior written approval from BIMS.
(d) NOTICES. Any notice given pursuant to this Agreement shall be in
writing and shall be given by personal service, express courier (such as UPS),
telecopy, or by United States certified mail, return receipt requested, postage
prepaid to the addresses set forth below, or such other address as changed
through written notice to the other party.
If to BIMS:
BellSouth Interactive Media Services
1100 Abernathy Road, Suite 414
500 NorthPark Town Center
Atlanta, Georgia 30328
Attn: Larry E. Ryan
Telecopy: (770) 481-2959
With a copy to BIMS General Counsel (same address)
Telecopy: (770) 673-2886
If to CableData:
CableData, Inc.
2969 Prospect Park Drive
Rancho Cordova, California 95670-6006
Attn: Barry Madrid and Bob Archibald
Telecopy: (916) 636-5750
With a copy to CableData's General Counsel (same address)
Telecopy: (916) 636-4561
Notice given by personal service shall be deemed effective on the date it is
delivered, notice sent by express courier shall be deemed effective one
Business Day after dispatch, notice given by telecopy shall be deemed effective
on the date of transmission, and notice mailed shall be deemed effective on the
third Business Day following its placement in the mail.
(e) CAPTIONS. The Captions appearing in this Agreement have been
inserted as a matter of convenience and in no way define, limit or enlarge the
scope of this Agreement or any of the Sections hereto.
-40-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
(f) NO WAIVER. The failure of either party at any time to require
performance by the other party of any provision of this Agreement shall in no
way affect that party's right to enforce such provisions, nor shall the waiver
by either party of any breach of any provision of this Agreement be taken or
held to be a waiver of any further breach of the same provision.
(g) SEVERABILITY. In the event that any one or more of the provisions
of this Agreement is determined by a court of competent jurisdiction to be
invalid, unenforceable or illegal, such invalidity, unenforceable or illegality
shall not affect any other provisions of this Agreement and the Agreement shall
be construed as if the challenged provision had never been contained herein.
The parties further agree that in the event such provision is an essential part
of this Agreement, they will immediately begin negotiations for a suitable
replacement provision.
(h) ASSIGNMENT. It is understood and agreed by the parties that the
services of CableData are unique and personal in nature and CableData shall not
delegate or assign all or any portion of its required performance to any other
individual, firm or entity without the express written consent of BIMS.
(i) SURVIVAL. The provisions of Sections 10, 11, 12, 13, 17 and 20,
of this A Agreement shall survive the expiration or other termination of this
Agreement.
(j) REMEDIES. The rights and remedies of BIMS set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
(k) BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto, their respective
successors-in-interest, legal representatives, heirs and assigns.
(1) AMENDMENT OR MODIFICATION. No amendment to or modification of
this Agreement shall be binding upon any party unless such amendment or
modification is reduced to writing, dated and executed by the parties to this
Agreement.
(m) MULTIPLE COUNTERPARTS. This Agreement may be executed, in
counterparts, all of which taken together shall constitute one single agreement
between the parties.
(n) PERSONNEL RULES AND REGULATIONS. While on BIMS" premises,
CableData representatives will comply with all security practices and procedures
generally prescribed by BIMS. In
-41-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
addition, unless otherwise agreed to by the parties, CableData representatives
shall observe the working hours, working rules, holiday schedules and policies
of BINS while working on BIMS' premises.
(o) ENTIRE AGREEMENT. This Agreement constitutes and expresses the
entire agreement and understanding between the parties in reference to all
matters referred to herein, and any and all previous agreements, discussions,
promises, representations, and understandings between the parties relative
thereto, including without limitation, the Interim Services Agreement, are
merged herein and superseded hereby, except that BIMS shall continue to have the
benefit of all provisions of prior agreements protecting the confidentiality of
and the proprietary rights of BIMS in and to
its materials.
(p) EXHIBITS. The following exhibits are attached to
this Agreement and incorporated herein by reference:
Exhibit "A" - Software Change Management Plan
Exhibit "B" - CableData Development and Consulting
Fee Schedule
Exhibit "C" - Initial Work Order
Exhibit "D" - Work Order No. 2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
:_______________________________________
BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. CABLEDATA, INC.
BY: /S/ JAMES R. GADD BY: /S/ JERRY JOHNSON
-------------- -------------
NAME PRINTED: JAMES R. GADD NAME PRINTED: JERRY JOHNSON
-------------- -------------
TITLE: PRESIDENT TITLE: VICE PRESIDENT
--------- --------------
DATE: DECEMBER 22, 1995 DATE: DECEMBER 27, 1995
----------------- -----------------
-42-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
EXHIBIT A
BELLSOUTH - CABLEDATA
SOFTWARE CHANGE MANAGEMENT PLAN
SCOPE
The Software Change Management Plan ("SCM") covers changes to the Business
Requirement Specification and Detail Design Documents. Managing and correcting
trouble reports are out of the scope of this document.
SOFTWARE CHANGE MANAGEMENT OBJECTIVES
- Control, manage and evaluate changes to the various development phases
of the project (requirements, design, development) that occur after
baseline requirements are approved.
- Establish responsibilities for carrying out change management
functions.
- Identify requirements that will be controlled.
- Establish change management procedures.
- Manage approved changes into specific release schedules.
- Develop a status reporting procedure.
- Have only one official requirements document.
- Control, manage and evaluate maintenance changes in production.
DEFINITION OF TERMS
Change Control means the ability to manage change, (to specifications and
systems), in an ordered means. Change Control is a procedure which will be
adhered to rigorously, to ensure changes are not lost, or inappropriate or
disruptive to current schedules.
Configuration management means the ability to hold different versions of the
system simultaneously, and reproduce a version at a moments notice. It also
refers to controlling the version upon which new coding appropriately take
place.
Control procedures means written processes that Control how change is introduced
into the project.
VERSION CONTROL
A baseline is established on documentation when a document has been approved.
The approved baseline version for all documents is 1.0. Subsequent versions of
Business Requirement Specification and Detail Design Documents will be numbered
and dated, e.g., 1.1 (2-1-95). The Project Director at CABLEDATA will maintain
these documents.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
To become an official request, a Requirement/Design Change Request and
Evaluation Form (DCR) (see attached) must be completed and sent to the Review
Team. Informal change requests, such as those made in meetings or between users
and CABLEDATA staff, must be followed up and documented by completing a
Requirements/Design Change Request and Evaluation Form. BIMS will have
responsibility for initiating and managing the Software Change Management
Process.
CHANGE REQUEST CLASSIFICATION-ENHANCEMENTS AND NEW DEVELOPMENT
1. Mandatory.
Change must be made to accommodate regulatory requirements, correct a system
design failure, implement a BellSouth corporate policy, etc.
2. New Market or Functional Necessity
Change is required for system to meet existing or anticipated marketing
requirements or represent a successful competitive entry in the market. System
technical design contains elements that are inconsistent, new products (HW/SW)
are being added require system modifications, etc. Change will improve
productivity, profitability, etc.
3. Discretionary development and enhancements
Change is desirable for system consistency, appearance, performance,
reliability, or other reason - but is not necessary immediately.
4. Administrative/wish list
Typos, document structure, "wish lists" to be recorded for future consideration,
etc.
CONTROL PROCEDURES
a) BIMS AND CABLEDATA PROJECT MANAGERS WILL EXAMINE THE NEED FOR NEW OR CHANGED
REQUIREMENTS OR DESIGN.
Contact likely effected paws about the desired change and the resulting scope of
ramifications.
b) IF THE CHANGE IS DETERMINED TO BE DESIRABLE, BIMS PROJECT MANAGER WILL
COMPLETE A REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM (DCR).
Fill out a softcopy version of the DCR form, including all descriptive, category
and classification elements. Fill out list of effected vendors/components, if
known. Consider what & who the proposed change will effect.
d) SUBMIT THE DCR TO THE BELLSOUTH REQUIREMENTS COORDINATOR ("GATEKEEPER")
Print a hardcopy version, and provide both hardcopy and softcopy to the
BellSouth Requirements Coordinator ("Gatekeeper").
e) GATEKEEPER WILL LOG REQUEST AND BEGIN REVIEW PROCESS
Gatekeeper will assign a log number for tracking and add the item to the DCR
database.
f) GATEKEEPER WILL EXAMINE PRIORITY AND EVALUATE WHEN THE DCR MUST BE REVIEWED
BASED ON THAT PRIORITY.
g) GATEKEEPER WILL COORDINATE AND SCHEDULE REVIEW MEETINGS AS NECESSARY.
Reviews will likely be with team members and vendors to ensure that the review
is adequate and all necessary estimates are completed. This process will
include clarifications and acquisition of more detailed information if
necessary.
h) GATEKEEPER WILL MAKE OR OBTAIN A DECISION (REJECT/APPROVE) AS NECESSARY.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
If approved, the Gatekeeper will ensure that all necessary signatures are
acquired from project leaders and executives.
i) GATEKEEPER AND PROJECT DIRECTORS WILL OBTAIN ESTIMATES FOR RAMIFICATIONS OF
CONTRACT CHANGES NECESSARY.
If the request involves any contract changes, the Gatekeeper will obtain
estimates for the ramifications of those contract changes, and will forward with
justifications and impacts, the request to premier BellSouth and vendor
executive teams. This may involve legal, financial and other resource
participation.
j) THE GATEKEEPER WILL DETERMINE AND ARRANGE SCHEDULING FOR IMPLEMENTATION.
After approval, if the change results in an impact to current development costs,
schedules or resources, the BIMS and CableData Project Managers will create a
Work Order using the Work Order concept detailed in the Software Development
Agreement. If the change does not impact costs, schedules or resources, a Work
Order is not necessary. However, a copy of the DCR should be attached to any
affected Work Orders.
k) CABLEDATA WILL UPDATE ALL NECESSARY BUSINESS REQUIREMENT SPECIFICATION AND
DETAIL DESIGN DOCUMENTS.
Approved DCRs will effect at least one of the current documents. CableData will
reissue the changed documents, with new version numbers and dates.
l) THE GATEKEEPER WILL ARRANGE FOR AN UPDATE OF ALL NECESSARY REQUIREMENTS AND
DESIGN DOCUMENTS.
Approved DCRs will effect at least one of the current documents. Therefore,
some republishing of those documents may be necessary, depending on the scope of
change.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
BELLSOUTH RBB TRIAL
REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM
Log Number: Final Decision: Accept/Reject
Abstract (one line):
Requester: Submission Date:
Organization: Telephone Number:
Component: Subcomponent: Version:
Type of Request:
Requirements: Clarification Modification New Remove
Design/Specifications: Clarification Modification New Remove
Priority: 1 2 3 4
Change Will Result In:
Requirements Document only (Yes No)
Internal component implementation (Yes No)
External API Modification (Yes No)
User Interfaces (Yes No)
Other (specify) (Yes No)
Status: Submitted Accepted Implemented Does Complete
Summary:
Justification:
Proposed Changes: (wording, page #, Requirement ID, etc. desired)
APPROVALS AND CONCURRENCES (AS NECESSARY) SIGNATURE DATE
BELLSOUTH PROJECT MGR.
BELLSOUTH COMPUTER TECHNICAL TEAM LEAD
BELLSOUTH QA & TEST MGR.
Vendor Project Mgr.
BellSouth Executive (If Contract Change Required)
Vendor Executive (If Contract Change Required)
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Anticipated Effects Headcount Hours
Required Required
Related Requirements/Design (all vendors and components)
Software/Hardware Development (All vendors & components)
Documentation (User & System)
System Integrator
Testing (Unit & System)
BellSouth/Vendor Contract Ramification Evaluation (To be completed by BellSouth)
Net Effects on Trial Service Delivery (To be completed by BellSouth)
PRIORITY DESCRIPTIONS:
1. Mandatory.
Change must be made to accommodate regulatory requirements, correct a system
design failure, implement a BellSouth corporate policy, etc.
2. New Market or Functional Necessity.
Change is required for system to meet existing marketing requirements or
represent a successful competitive entry in the market. System technical design
contains elements that are inconsistent, new products (HW/SW) are being added
require system modifications, etc. Change will improve productivity,
profitability, etc.
3. Discretionary development and enhancements
Change is desirable for system consistency, appearance, performance,
reliability, or other reason - but is not necessary immediately.
4. Administrative/wish list
Typos, document structure, "wish lists" to be recorded for future consideration,
etc.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Exhibit B CableData Development and Consulting Fee Schedule
Project Director/Project Manager [*]
Member of the Technical Staff [*]
Manager [*]
Staff member/On-site [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
EXHIBIT C
CABLEDATA WORK ORDER
FOR
BELLSOUTH INTERACTIVE MEDIA SERVICES
This Work Order is a part of the Software Development Agreement dated December
_____, 1995, between BellSouth Interactive Media Services, Inc., a Georgia
corporation ("BIMS"), and CableData, Inc., a California corporation
("CableData"). All work performed under this Work Order is subject to the terms
and conditions of the Software Development Agreement.
1. GENERAL
Date of Work Order: 8/18/95 Work Order Number: 1
This work order is referred elsewhere to be the "Initial Work Order"
2. DESCRIPTION OF WORK
Installation of Intelecable -TM- Version 2.5 pursuant to the Operating and
License Agreement.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-2-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
[*]
3.SERVICE BILLING METHOD: COMBINATION FIXED PRICE AND TIME AND MATERIAL
METHOD(REF. PARAGRAPH 5.A OF DEVELOPMENT AGREEMENT)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-3-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
a. MILESTONE PAYMENT SCHEDULE (Ref. paragraph 5.a.i of development agreement)
The following amounts will be withheld until completion of acceptance testing
and acceptance of software. This is in lieu of a normally withheld 20% of a
workorder amount, with 1 0% paid upon acceptance, and final 10% upon delivery of
final documentation.
Milestone Event(s) Amount(s)
[*]
Final Payments made upon delivery and acceptance of all documentation:
[*]
B. INCENTIVE PAYMENT SCHEDULE (Ref. paragraph 5.c of development agreement)
Deliverable Item(s) Milestone #days Incentive
Date(s) early Amount(s)
NONE
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-4-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-5-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
d. Additional Allowable Expenses To Be Incurred (Ref. paragraph 5.a.ii.A of
DEVELOPMENT agreement) (Note: this item covers all expenses to be incurred such
as trip expenses, etc.)
[*]
4. OPERATING ENVIRONMENT (Ref. paragraph 7g of Operating and License Agreement)
(NOTE: this section is to describe changes that may be necessary to the
operating environment to accommodate this WORK Order.)
No changes are necessary to the operating environment established for this
work order.
5, DELIVERABLES/SOFTWARE RELEASE (Ref. paragraph 6.b of development AGREEMENT)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-6-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
a. OWNERSHIP (Ref. paragraphs 10 and 11 of the development agreement)
Ownership falls into these categories:
1. CableData retains full ownership
2. BIMS retains full ownership
3. Joint ownership between BIMS and CableData
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-7-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
[*]
6. IMPLEMENTATION SCHEDULE (Ref. paragraph 6 of development agreement)
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-8-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
Item(s) Date(s)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-9-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
7.ACCEPTANCE TEST CRITERIA:
Acceptance test criteria for the core software will be the Documentation, i.e.
CableData supplied Reference Manuals and Release notes. For the custom
software, acceptance test criteria will be Business Functionality Specification
and Detail design documents, attached to this work order.
-10-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
8. ATTACHMENTS:
Attachment A Approved Requirements of Business Functionality
documents
Attachment B Detailed design documents
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PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
8. APPROVALS
All of the terms, covenants and conditions set forth in the Software Development
Agreement are incorporated herein by reference as if the same had been set forth
herein in full.
CABLEDATA, INC. BELLSOUTH INTERACTIVE
MEDIA SERVICES, INC.
Jerry Johnson James R. Gadd
- ------------- -------------
Name Name
Vice President Vice President
- -------------- --------------
Title Title
/s/Jerry Johnson /s/James R. Gadd
------------- -------------
Signature Signature
December 27, 1995 December 22, 1995
- ----------------- -----------------
Date Date
-12-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
<PAGE>
EXHIBIT 10.29
<PAGE>
CABLEDATA'S INTELECABLE -TM
OPERATING AND LICENSE AGREEMENT
THIS AGREEMENT IS BETWEEN CABLEDATA, INC. (hereinafter called "CableData"), a
California corporation located at 2969 Prospect Park Drive, Rancho Cordova, CA
95670, and BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. (hereinafter called
"BIMS"), a Georgia corporation located at 1100 Abernathy Road, Suite 414,
Building 500, Atlanta, GA 30328.
BIMS and CableData, by their execution of this Operating and License Agreement,
hereby agree that CableData shall provide and BIMS shall utilize CableData's
Intelecable proprietary subscriber management software (hereinafter called "Core
Software") and Services, throughout the period of this Agreement.
1. PERIOD OF AGREEMENT
This Agreement shall be for a period of [*] months, commencing on the date of
full execution of this Agreement ("the Effective Date"). BIMS shall have the
right to extend the Agreement for up to [*] following the expiration of the
initial term, subject to the adjusted pricing set forth in the Pricing
Attachment. Thereafter, the parties may agree to extend the Agreement for an
additional period to be mutually agreed upon.
2. DEFINITIONS
The following definitions are applicable to this Agreement:
a. Affiliate - with respect to BIMS, any entity designated by BIMS for
inclusion under this Agreement which controls, is controlled by or is under
common control with BIMS, or any partnership or other such entity in which
BIMS or its Affiliates have any material form of ownership, and for entities
having 100,000 or more Subscribers, which CableData has consented to be
included under this Agreement. For purposes of this definition of Affiliate,
"material form of ownership" shall be deemed to mean partnerships or other
entities in which BellSouth Corp. or a BellSouth subsidiary has in excess of
a fifty percent (50%) ownership interest. BIMS shall submit to CableData's
Project Manager the names of all entities having 100,000 or more Subscribers
that it wishes to include within the definition of Affiliate, and CableData
shall have fifteen (15) days thereafter to notify BIMS in writing if, in its
sole reasonable discretion, it objects to the inclusion of such entity under
this Agreement, in which case the entity will not be included within the
definition of Affiliate under this Agreement. If CableData fails to give
such notice, the entity will be deemed to be added to this Agreement as an
Affiliate. Entities with fewer than 100,000 Subscribers will be added to the
list of Affiliates at BIMS's sole discretion. In no event shall an entity be
deemed to be an Affiliate if it offers Subscriber Management Software
products or services in the open market in direct or indirect competition
with CableData's Software. All references to BIMS in this Agreement will be
deemed to include Affiliates.
b. Agreement - CableData's Intelecable Operating and License Agreement
and the Attachments thereto between BIMS and CableData, as the same may be
amended from time to time.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 1 -
<PAGE>
c. Authorized Parties -- third parties who provide services over BIMS's
facilities and network and who have been approved by CableData to use the Core
Software, which approval shall not be unreasonably withheld. For purposes of
this definition, CableData consents to the inclusion of Vanguard Cable Corp. as
an Authorized Party. Additional third parties may be approved by CableData as
follows: upon receipt of written notice from BIMS, CableData shall have fifteen
(15) days thereafter to notify BIMS in writing if, in its sole reasonable
discretion, based on an assessment of the third party's competitive position
relative to CableData, CableData objects to the inclusion of such entity as an
Authorized Party. If CableData does not respond within such time period, the
third party will be deemed to be approved by CableData.
d. BIMS's Computer -- the equipment made available by BIMS, or an
Authorized Party, that has been configured to conform to the processing
requirements of the Core Software, as set forth in the Operating Environment
Attachment hereto.
e. BIMS's Site -- a location at which BIMS's Computer is or is to be
located for the purpose of using the Core Software by or on behalf of BIMS or
any of its Affiliates or Authorized Parties.
f. Business Day -- (i) with respect to any time period within which
BIMS must respond, Monday through Friday, excluding any holidays recognized
by BIMS as company-wide holidays; and (ii) with respect to any time period
within which CableData must respond, Monday through Friday, excluding any
holidays recognized by CableData as company-wide holidays. All time period
references in this Agreement to "days" other than Business Days shall be
deemed to refer to calendar days.
g. Custom Software -- the software, including any enhancements,
modifications and additions to the Core Software, developed by CableData
pursuant to the terms of the Software Development Agreement. The Custom
Software shall include, without limitation, the "Custom Software" and the
"Interface Software," as those terms are defined and used in the Software
Development Agreement.
h. Documentation -- all detailed User and operational manuals,
instructions and other materials required to fully utilize the Core Software,
and all training manuals and routines designed to train Users in the
operation of the Core Software. The term "User(s)" includes both the
user/operators of any server-based portions of the Core Software as well as
the end-users of any terminal-based portions of the Core Software. The term
"Documentation" shall also include any and all reference documentation and
release documentation, to the extent provided or otherwise available to be
provided to any of CableData's other customers, defining the operation and/or
performance of the Core Software and/or any releases of the Core Software
made available by CableData. The initial delivery of Documentation hereunder
shall include, without limitation, release documentation for all releases of
the Core Software through and including Version 2.5 of the Core Software.
All Documentation supplied on disks will be in machine readable form.
i. Laboratory System -- a System used by BIMS and/or Authorized Parties
other than for processing transactions and records for Subscribers. A
Laboratory System is used primarily for testing, training and back-up purposes.
j. License -- the license set forth in Section 3 of this Agreement
providing BIMS and Authorized Parties with permission to use the Core Software.
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<PAGE>
k. Maintenance -- the software maintenance which CableData provides BIMS
for the on-going maintenance of the Software.
l. Production System -- a System used by BIMS and/or Authorized Parties
for processing transactions and records for Subscribers.
m. Products -- all products provided by CableData to BIMS pursuant to
this Agreement, including Core Software and Documentation.
n. Proposal - U.S. Computer Services (predecessor in interest to
CableData) Initial Response to BIMS's Request for an Intelecable/Oracle
Interface dated August 29, 1994, as modified by the facsimile transmission from
Dave H. Williams to Larry E. Ryan dated September 1, 1994, the letter from
Robert Crowley to Larry E. Ryan dated September 23, 1994 and the Memorandum of
Understanding dated December 5, 1994, between USCS and BIMS, all of which
documents are attached hereto as Exhibit and incorporated herein by reference
except as specified in Paragraph 7.a.
o. Self-Help Code -- any back door, time bomb, drop dead device, or
other software routine designed to disable a computer program automatically
with the passage of time or under the positive control of any person or
entity other than BIMS. Self-Help Code does not include software routines in
the Core Software, if any, designed to permit BIMS (or a third party
authorized by BIMS) to obtain access to the System (e.g., remote access via
modem) for purposes of maintenance or technical support.
p. Services -- all work performed by CableData for BIMS pursuant to this
Agreement including, but not limited to, Maintenance and Support.
q. Software -- the Core Software, the Documentation and the Custom
Software.
r. Software Compatibility Matrix -- the then current version of
CableData's "Software Vendors, Configurations, Versions Supported by the
Center," the current version of which is attached hereto as Attachment E.
CableData acknowledges and agrees that none of the third party product(s)
listed on the Software Compatibility Matrix will be removed from any
subsequent versions of the Software Compatibility Matrix, but that only the
versions (i.e., identified by release number) for such third party product(s)
may change.
s. Software Development Agreement -- the Software Development Agreement
between BIMS and CableData of even date herewith pursuant to which CableData is
to provide the Custom Software to BIMS.
t. Source Code -- the source code corresponding to the applicable
software, including all updates, upgrades and revisions thereto, plus any
pertinent commentary or explanation that may be necessary to render the Source
Code understandable and usable by trained computer programmers who are generally
familiar with Oracle database products and the C and C++ programming languages.
u. Subscriber -- active subscribers having a balance or a transaction
posted on BIMS's Computer as of a specific date during any given month,
excluding subscribers who are not subject to collection activity. A month, for
purposes of this definition, is the period between successive final month-end
cutoffs for BIMS's invoicing purposes.
- 3 -
<PAGE>
v. Support - software support services provided by telephone by CableData
employees who are trained customer service representatives from the Support
Facility.
w. Support Facility - CableData's office in Sacramento, California or
such other office as CableData shall from time to time designate for the purpose
of providing BIMS Support.
x. System - the Core Software, the Custom Software, the Third Party
Software and the computer equipment on which the Core Software, Custom Software
and Third Party Software will be installed, as described in the Operating
Environment Attachment hereto.
y. Third Party Software - the computer programs which are (i) owned by
third parties, (ii) provided by CableData to BIMS hereunder or licensed by BIMS
from a third party, and (iii) listed in the Third Party Software Attachment
hereto.
z. Unauthorized Code - any virus, Trojan horse, worm, or other software
routines designed to permit unauthorized access; to disable, erase, or otherwise
harm software, hardware, or data; or to perform any other such actions. The
term Unauthorized Code does not include Self-Help Code.
3. LICENSE GRANT
a. CableData hereby grants BIMS non-transferable (except as otherwise
provided herein) non-exclusive Licenses, without right of sublicense, to use
the Core Software and associated Documentation listed in the Pricing
Attachment solely for BIMS's own internal use at BIMS Sites, sites at which
BIMS's customer contact personnel have remote access to BIMS's Computer and
sites operated by Authorized Parties designated in the Site Attachment of
this Agreement, as well as for the use of such Authorized Parties, in
accordance with the terms and conditions of this Agreement. Such Licenses
shall be for use in connection with BIMS's Production System and for use in
connection with BIMS's Laboratory System. No more than one License will be
required for any single BIMS Corp (as "Corp" is further defined in Paragraph
9(c)). BIMS may, at its option from time to time by giving CableData prior
notice, add new BIMS Sites or Products or Services; CableData will then add
such new sites to the Site Attachment and such Products and Services to the
Products/Services Attachment.
b. BIMS shall have the right to use the Core Software and Documentation
on BIMS's Computer(s) and to make copies of the Core Software (object code
version only) and Documentation for backup, archival and testing purposes only;
provided, however, that BIMS shall have the right to make copies of
insubstantial portions of Documentation, subject to the limitations and
obligations set forth in the last sentence of the Paragraph 3(b). BIMS agrees
to maintain appropriate records of the number and location of all such copies of
the Core Software and to make the records available to CableData upon request.
With respect to Documentation, BIMS shall use due care to protect such
Documentation from unauthorized disclosure and to ensure that copies made for
BIMS's own internal use, and for use by Authorized Parties, shall not be
substantial portions of the Documentation and shall be appropriately protected.
c. Except as otherwise permitted hereunder, BIMS agrees not to modify the
Core Software of attempt to de-compile or reverse engineer the Core Software.
BIMS understands that upon termination of this License, neither BIMS nor anyone
acting under BIMS may make any use whatsoever of the Core Software or any part
thereof.
- 4 -
<PAGE>
d. CableData shall deliver to and install the initial copy of the Core
Software at the initial BIMS Site designated by BIMS in the Site Attachment
hereto, together with the required Documentation. As soon as reasonably
possible after installation of the Core Software and implementation of the
Custom Software, BIMS shall conduct the acceptance testing procedures for the
Software set forth in Section 7 of the Software Development Agreement.
e. Interface Disclosures. CableData will make available for purchase
to third parties on a non-discriminatory basis descriptive documentation
concerning the use of CableData's application program interfaces (APIs),
communication protocols and interface specifications (a current list of which
is contained in the Interface Attachment) necessary to enable third party
developers to write applications which interface/communicate with the Core
Software. Licenses for all such software, with the exception of software
developed by CableData for BIMS pursuant to the Software Development
Agreement, will be available at the prices set forth in CableData's standard
Interface Specification Fee and Non-Disclosure Agreement, a copy of which is
attached hereto as part of the Interface Attachment and incorporated herein
by reference. If no price is included in the attachment for a particular
interface, the license will be made available at CableData's then-current
prices, which will be quoted to BIMS no later than five (5) business days
after BIMS's request therefor.
4. PRICES
a. The prices for the Core Software and Services under this Agreement
are set forth in the Pricing Attachment.
b. Pricing for the Core Software Basic System and the associated modules
is inclusive of an unlimited site license for the DOS Windows version of
CableData's Intelecable Emulator (inclusive of maintenance).
c. All prices are F.O.B. (freight on board) Sacramento, California, USA;
and are exclusive of transportation charges, which, if applicable, will be
invoiced separately. CableData will arrange for insurance on the Software and
Products while in transit at BIMS's expense.
d. The Price Schedule for utilizing the Software and Products selected by
Customer shall be subject to increase upon forty-five (45) days' prior notice
commencing eighteen (18) months from the effective date of this Agreement,
provided however, that the percentage of such increase or increases shall not
exceed the percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the U.S. Department of Labor (a) from the date of
last general price increase upon which the following pricing were based (b) to
the date of price increase under this Agreement. Prices for all CableData
products and services ordered and used by BIMS but not set forth in the Pricing
Attachment shall be the prices in effect on the date the product or service is
ordered by BIMS.
e. In the event that CableData provides new Core Software or Services,
CableData may modify the Pricing Attachment to reflect the new services and
options and the prices thereof which are available to be ordered by BIMS
hereunder. This may include new releases of existing software that contain
significant enhancements and functions that increase the value of the
solution to BIMS, and are offered by CableData to its other customers for an
additional charge, as well as new Core Software modules that are made
available to CableData customers at an additional charge. New "Major Software
Releases" (as defined in Paragraph 15(d) below) that are made available to
Cable Data customers as part of standard Maintenance will be made available
to BIMS at no cost beyond the cost of periodic Maintenance hereunder.
- 5 -
<PAGE>
f. If BIMS elects to obtain a paid-up License for the Core Software,
BIMS will be charged a one-time fee for the License (which fee includes basic
Support), or will pay the fee in periodic installments. BIMS may elect to
obtain a paid-up License for the Core Software at or any time after the
one-year anniversary of this Agreement. Cable Data will provide BIMS with a
price quote for a paid-up License for the Core Software at least thirty (30)
days prior to the one year anniversary of this Agreement. Following the
Warranty Period (hereinafter defined), BIMS will be required to pay annually
for on-going Maintenance. In the event that BIMS elects to pay its License
fees on a monthly per-Subscriber basis, it agrees to pay a monthly minimum
charge, as set forth in the Pricing Attachment, for both the License and the
ongoing Maintenance; provided, however, that the obligation to pay such
monthly License fees under this Agreement shall commence. [*]
g. CableData represents that the prices provided hereunder are equivalent
to or better than the prices being offered by CableData to its other similarly
situated customers of comparable size for comparable orders of similar products
and services, subject to substantially similar terms and conditions. Annually,
on the anniversary date of this Agreement, CableData will review its prices to
all other customers. If CableData has entered into agreement with other
customer(s) of comparable size for substantially similar products and services
subject to substantially similar terms and conditions and has extended to such
customer(s) more favorable pricing for such products and services, this
Agreement shall be deemed amended to extend such pricing to BIMS.
5. PAYMENT
a. CableData shall invoice BIMS annually for all Products and Services
that are billable on an annual basis and monthly for Products and Services
that are billable on a monthly basis, in accordance with the Pricing
Attachment and other applicable Attachments. One-time charges will be billed
by CableData in advance. Standard payment terms are net cash, without
discount, set-off or deferment, due and payable within thirty (30) days from
the Invoice Date (hereinafter defined); payment of all undisputed charges is
due in U.S. dollars. In the event that BIMS does not render full payment of
all undisputed charges within sixty (60) days of the date payable, CableData
may, after notifying BIMS, cease any and all Services until such account is
brought current.
b. If BIMS fails to pay all undisputed charges within thirty (30) days of
the date of invoice, or the date of postmark if the postmark date is more than
one (1) Business Day after the invoice date (collectively, the "Invoice Date"),
BIMS agrees that upon the expiration of a fifteen (15) day cure period following
the effective date of written notice from CableData of such failure to pay,
CableData will have the right to invoice and BIMS will pay a late payment
service charge of one and one half percent (1.5%) per month, but not in excess
of the lawful maximum interest allowed, on the past due balance from and after
the expiration of such fifteen (15) day cure period.
c. BIMS agrees to pay CableData all legally due sales, use or similar
taxes in connection with the purchase of any services or tangible personal
property pursuant to the terms of this Agreement. CableData shall separately
state all applicable sales, use or similar taxes on each invoice as
prescribed by the applicable terms of this Agreement or legal authority.
CableData shall be legally responsible for remitting all taxes collected from
BIMS to the proper taxing authority. In the event the taxability of any
purchase under this Agreement is disputed by a taxing authority as the result
of an audit or otherwise, CableData shall provide timely written notice to
BIMS of this dispute prior to any settlement or action on this dispute.
Notwithstanding the foregoing, any fines, penalties or interest imposed on
BIMS or CableData because of late payment by CableData shall be borne by
CableData, unless such fines, penalties or interest result from the actions
taken by CableData at the written direction of BIMS. BIMS shall not be
responsible for paying or
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
<PAGE>
reimbursing CableData for any corporate franchise tax, capital tax, net worth
tax, or taxes measured by reference to CableData's net income.
d. Should BIMS in good faith dispute any portion of the invoice submitted
by CableData, BIMS must advise CableData in writing within thirty (30) days of
Invoice Date of such dispute and pay, when due, all non-disputed charges.
CableData will consider BIMS's dispute in good faith. Any charges not disputed
or corrected by either party within six (6) months of the Invoice Date will be
deemed to be final an nondisputable unless the party disputing the charge can
provide the other with satisfactory proof that it could not have known of the
existence of a dispute within that period. Except as otherwise provided herein,
in no event will any amounts be refundable more than one (1) year after payment
was made.
6. CONFIDENTIALITY AND TITLE
a. CableData agrees that all confidential information disclosed to it
by BIMS, or otherwise obtained by CableData, during performance of this
Agreement shall be considered proprietary and shall be held in confidence by
CableData and used by it only in performance of this Agreement. Such
confidential information of BIMS shall include, without limitation, any and
all information regarding the identity of, or in any way relating to, BIMS's
customers, including without limitation, Subscribers. No confidential
information provided by BIMS under this Agreement, or otherwise obtained by
CableData, shall be duplicated or furnished to another party without the
prior written consent of BIMS. CableData will exercise the same standard of
care to protect BIMS's proprietary data disclosed hereunder as is used to
protect CableData's own proprietary data from unauthorized disclosure;
provided, however, that CableData will comply, at a minimum, with any and all
rules, regulations and orders of the Federal Communications Commission, or of
any other applicable federal or state regulatory agency, relating to the
confidentiality of customer information.
b. BIMS recognizes and agrees that, during the term of this Agreement and
thereafter, title to, ownership of, and all proprietary rights to the Core
Software (and the Custom Software except as may otherwise be agreed to between
the parties), and all copies thereof will at all times remain the property of
CableData or its licensors, as the case may be. BIMS agrees to maintain the
confidentiality of the Core Software and not to disclose any portion of the Core
Software to any third party other than to BIMS's employees and to third parties
who are subject to a nondisclosure agreement with BIMS. Nothing herein shall
preclude BIMS from sharing with third parties, including prospective CableData
customers, general information about the features and functionality of the Core
Software, general information about BIMS's actual and intended uses of the Core
Software , or information concerning the existence and nature of the
relationship between CableData and BIMS; provided, however, that BIMS shall not
permit any unauthorized third party to copy any part of the Core Software of
Documentation. BIMS will exercise the same standard of care to protect
CableData's proprietary data disclosed hereunder (exclusive of the Custom
Software), as well as confidential information such as CableData's pricing,
prospective customers and CableData-owned development tools and system libraries
disclosed under the Software Development Agreement, as is used to protect BIMS's
own proprietary data from unauthorized disclosure.
c. CableData recognizes and agrees that, notwithstanding the foregoing,
title to, ownership of, and all proprietary rights to the data processed by the
Core Software pursuant to this Agreement will at all times remain the property
of BIMS.
d. Nothing herein shall prohibit either party from using or disclosing
any information which is or comes into the public domain through no fault of
that party or which that party in good
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<PAGE>
faith receives from a third party entitled to disclose the same without
restriction, or which that party proves was already known to it prior to
disclosure by the disclosing party.
7. LIMITED WARRANTY; LIMITATION OF REMEDIES
a. Proposal. CableData warrants that the content of the Proposal, which
was relied upon by BIMS in entering into this Agreement, was true and accurate
and contained no material omissions or misrepresentations as of the date of the
Proposal and, except as otherwise expressly set forth herein, remains true and
accurate and contains no material omissions or misrepresentations as of the date
hereof. Exceptions to the Proposal are changes from the Proposal to the
Agreement to the new software components, estimated costs of software
development and professional fees. The Proposal is hereby incorporated herein
by this reference and shall constitute part of this Agreement as if fully set
forth herein. To the extent of any conflict between the terms and conditions of
this Agreement, including the Attachments attached hereto, and the terms and
conditions of the Proposal, the terms and conditions of this Agreement shall
control.
b. Ownership. CableData warrants that it is the owner of the Core
Software or otherwise has the right to grant to BIMS the License to use the Core
Software granted hereunder without violating or infringing any law, rule, or
regulation, or any United States or foreign copyright, patent, trade secret or
other proprietary right of any third party.
c. BIMS's Reliance. CableData warrants that it is aware that BIMS is
relying on its skill and judgment in providing the Software. CableData believes
that it has been made generally aware of BIMS's documented business requirements
and intended uses for the Software, and based on such belief CableData warrants
that the Software shall satisfy such requirements and is fit for such intended
uses. The Core Software is at the current release level.
d. Warranty Period. CableData warrants that, for a period of ninety (90)
days from the date of Acceptance of the Software pursuant to the Software
Development Agreement, the Core Software provided to BIMS will perform as
described in the Documentation and will be capable of operating on BIMS's
network in conformity with such Documentation. In the event that the
Documentation includes any disclaimer of warranty or liability which conflicts
with any of the terms and conditions of this Agreement, or otherwise purports to
reduce or limit CableData's obligations under this Agreement, the terms and
conditions of this Agreement shall control and such disclaimers and limitations
shall not apply.
e. Performance Assurances. The benchmarks set forth in the Capacity
Reference Guidelines Attachment are provided as capacity and reliability
guidelines and are not a warranty of System performance. Capacity involves
transaction rates, and reliability relates to the availability of the Core
Software without interruption. The guidelines are offered to BIMS as a guide
for determining whether or not analysis and corrective action are indicated.
Such corrective action might include adding hardware or software or
reconfiguring the operating system or the RDBMS. In the event System
performance falls below the benchmarks set forth in the attachment, CableData
will consult with BIMS, at BIMS's request, on the most cost-effective course of
action for BIMS to pursue to achieve the desired System performance. Nothing
contained in this paragraph diminishes or otherwise undermines the other
warranties set forth in this Section 7.
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<PAGE>
f. Compatibility.
i. Core Software. CableData warrants that all updates, upgrades and
revisions to the Core Software furnished hereunder will be implemented in such a
manner as to maintain backward compatibility with previous versions or releases
of the Core Software furnished hereunder so that such previous versions or
releases shall continue to be operable with the Core Software as updated,
upgraded, or revised, in materially the same manner and with materially
equivalent performance. The addition of new features and functions to the Core
Software may result in degradation of performance that will require additional
system resources to overcome. CableData will make reasonable efforts through
quality assurance and performance analysis to minimize any degradation of
performance due to the addition of new features and functions to the Core
Software and will assist BIMS in identifying and defining any additional
resources that may be necessary, both prior to and after the delivery of the
update, upgrade or revision.
ii. Custom Software. In addition, CableData will continue to
preserve the APIs so as to ensure that applications written to the API within
earlier versions of the Core Software and Custom Software will work with all
subsequent updates, upgrades and revisions to the Core Software and Customer
Software in materially the same manner and with materially equivalent
performance.
iii. Third Party Software and Operating Environment. CableData
further warrants that it will continue to preserve the APIs so as to ensure that
the following items will work with all subsequent updates, upgrades and
revisions to the Software, in materially the same manner and with materially
equivalent performance; (i) Third Party Software specifically identified in the
then current version of CableData's Software Compatibility Matrix, and (ii) the
hardware/software identified in the Operating Environment Attachment hereto.
g. Operating Environment. CableData warrants that the Software as
delivered to BIMS by CableData in connection with the Initial Work Order and
Work Order Number 2 under the Software Development Agreement, and each module or
component and function thereof, will be capable of operating fully and correctly
on the computer equipment and within the Operating Environment specified in the
Operating Environment Attachment hereto. Any and all compilers or other
computer programs which must be present in order for such Software to function
fully are also specified in the Operating Environment Attachment. CableData
will ensure that future releases of the Core Software will operate properly with
versions of the products identified in CableData's then-current Software
Compatibility Matrix.
h. Self-Help Code. The Software neither contains nor will contain any
Self-Help Code nor any Unauthorized Code, and CableData agrees to ensure against
any data lost as a result of same.
i. Software Support Personnel. CableData warrants that each of
CableData's employees, agents, or subcontractors assigned to perform any work
hereunder shall have the proper skill, training and background so as to be able
to perform in a competent and professional manner and that all work will be so
performed.
j. Limited Warranty. CableData does not warrant that (i) the Core
Software will run properly on all hardware, (ii) the Core Software products
will operate in the combination of hardware/software which may be
independently selected by BIMS, (iii) the use of the Core Software products
will be uninterrupted or error-free, or (iv) all Core Software product
program errors will be corrected.
- 9 -
<PAGE>
k. Defects. In the event of a material (Severity Level 1 or 2, as
defined in the Maintenance/Support Attachment) defect in any Core Software
product commencing upon delivery of Custom Software pursuant to the Initial Work
Order under the Software Development Agreement, CableData will, at its option
(at no additional charge) during the Warranty Period; thereafter, subject to the
payment of the periodic Maintenance fees) correct or replace it. If a defective
Core Software product cannot be corrected to BIMS's reasonable satisfaction or
replaced within a reasonable amount of time, BIMS may return the defective Core
Software product [*]
[*]
m. Exclusions. The warranties and remedies specified in this Section 7
will not apply if the malfunctions of the Core Software products are due to (i)
natural disasters, including fire, flood, or lightning, (ii) armed conflict or
civil disturbance, (iii) electrical fluctuations or failures, (iv) gross neglect
or intentional misuse of the Core Software products or other failure to comply
with the instructions set forth in the most current Documentation provided by
CableData, (v) corrections or modifications to the Core Software solution or its
operating environment not provided by or approved in writing by CableData
through the change control procedures described in the Software Development
Agreement executed concurrently herewith, or (vi) the failure to install
promptly a correction provided by CableData.
n. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN
THE SOFTWARE DEVELOPMENT AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS,
INDEMNITIES AND GUARANTEES WITH RESPECT TO CABLEDATA'S CORE SOFTWARE PRODUCTS,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENT BY CABLEDATA OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY
OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AS TO
SKILL AND CARE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
o. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER OR UNDER THE SOFTWARE DEVELOPMENT AGREEMENT, UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 10 -
<PAGE>
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES
OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF BREACH OR
FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EXCEPT ONLY IN THE CASE OF
DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES
SUCH LIABILITY. EXCEPT AS OTHERWISE PROVIDED, CABLEDATA'S LIABILITY TO BIMS FOR
ANY LOSSES OR DAMAGES, DIRECT OR INDIRECT, ARISING OUT OF THIS AGREEMENT SHALL
NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT BILLED OR BILLABLE FOR THE SPECIFIC
PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.
p. BIMS acknowledges that (i) the prices for the Core Software
contemplated under this Agreement are based on the limited warranties,
disclaimers and exclusions specified in this Section 7 and (ii) such prices
would be substantially higher if any of these provisions were unenforceable.
q. EXCEPT AS SET FORTH HEREIN, THIS AGREEMENT COVERS CABLEDATA'S SOFTWARE
AND DOES NOT COVER THIRD PARTY OR COMPUTER OPERATING SYSTEM SOFTWARE. NO
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO
OPERATING SYSTEM SOFTWARE.
8. TRAINING
a. CableData will provide pre-installation Core Software training
programs for BIMS's employees at CableData's Education Center. The Core
Software training courses are available at the prices set forth in the Pricing
Attachment and will consist of the classes required by CableData. Equipment and
materials used in the instruction are provided by CableData.
b. BIMS is responsible for all transportation to and from CableData's
Education Center, lodging and food for BIMS's employees that attend CableData's
training.
c. BIMS can purchase additional instruction at the prices specified in
the Pricing Attachment for all classes taught at CableData's Education Center.
BIMS can also purchase customized on-site training at the daily rates specified
in the Pricing Attachment.
d. In addition to the provision of Maintenance and Support services
pursuant to Section 9 herein, upon request by BIMS, CableData shall identify and
assign the number of CableData professional services employees requested by BIMS
to be on-site at BIMS's facilities and devote all of their business time during
such assignment to the technical support of the Software and to facilitate the
support of the Software through CableData's customer service and support
organization. As consideration for the provision of such on-site support, BIMS
shall pay CableData pursuant to the rates set forth in the Pricing Attachment.
All such payments due hereunder shall be invoiced by CableData to BIMS on a
monthly basis.
9. SOFTWARE MAINTENANCE AND SUPPORT
a. Maintenance. Maintenance, as further defined in the
Maintenance/Support Attachment, is required for all CableData-provided Core
Software components. Breach by BIMS of its obligation to pay a Maintenance fee
component of its monthly License fees following the Warranty Period will render
the Licenses granted hereunder immediately null and void, except in
- 11 -
<PAGE>
the event that CableData is in material breach of the Agreement and BIMS elects
to maintain the Core Software pursuant to Section 17 herein. As provided for in
the Software Development Agreement, CableData shall provide Maintenance for the
Custom Software, pursuant to the terms of this Section 9 and the
Maintenance/Support Attachment, at no charge to BIMS during the term of this
Agreement until the earlier of the date on which BIMS ceases to use the Custom
Software, or [*] following the expiration of the Warranty Period for the Custom
Software, as provided for in Section 14 of the Software Development Agreement.
At no additional charge during the Warranty Period and thereafter as part of the
monthly License fees or periodic Maintenance fees, as applicable, set forth in
the Pricing Attachment, CableData shall provide BIMS with the following
Maintenance Services:
(i) CableData shall notify BIMS of any defects or
malfunctions in the Software or Documentation that could
impact BIMS's ability to operate the Software in a not
insignificant manner and shall correct any such defects
or malfunctions in accordance with the
Maintenance/Support Attachment and provide BIMS with
corrected copies of same in accordance with the
Maintenance/Support Attachment;
(ii) CableData shall provide BIMS with copies of the
Core Software and, as soon as reasonably available,
Documentation revised to reflect any upgrades of the Core
Software released by CableData and/or enhancements to the
Core Software made by CableData, including, without
limitation, modifications to the Core Software which can
increase the speed, efficiency or ease of operation of
the Core Software or add additional functionality or
capabilities to or otherwise improve the functions of the
Core Software, and modifications to the Core Software
which support new releases of the operating systems and
other third party software with which the Core Software
is designed to operate or interface; and
[*]
b. Support. Twenty-four (24) hours per day, seven (7) days per week
during the Warranty Period and during Business Hours (hereinafter defined)
during the Post-Warranty Period, CableData shall provide to BIMS Telephone
Support (toll-free in the United States) as defined in the Maintenance/Support
Attachment, or written consultation as requested by BIMS, in connection with its
use and operation of the Software or any problems therewith. CableData will
respond to and resolve problems with the Software in accordance with the
following procedures:
(i) With respect to any problem involving the
Software whereby BIMS's use of the Software is adversely
affected (Severity Level 1 or 2 in the
Maintenance/Support Attachment), CableData will respond
to BIMS's request for service by telephone response by a
qualified and knowledgeable representative within one (1)
hour from the time CableData receives BIMS's call and
will complete such repairs within [*] of receipt of the
call for a Severity Level 1 problem, and within [*] of
receipt of the call for a Severity Level 2 problem. For
purposes of this Section 9(b)(i), CableData will be
deemed to have remedied the problem if it provides BIMS
with a reasonable work-around that enables BIMS to
continue to operate the Software or to perform the
affected function for a reasonable period of time until a
more permanent correction can be effected, as long as
CableData is rendering continuous effort to effect the
permanent correction. CableData repair personnel shall
render continuous effort with respect to such problems.
With respect to each Severity Level 1 or 2
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
problem, CableData will provide progress status reports
to BIMS at least twice daily until a remedy for each such
problem can be provided. [*]
(ii) With respect to any other problem involving the
Software (i.e., Severity Levels 3,4 or 5 in the
Maintenance/Support Attachment), CableData will respond
during Business Hours to BIMS's request for service by
telephone response by a qualified and knowledgeable
representative within four (4) Business Hours from the
time CableData receives BIMS's call. [*]
(iii) Unless and until a software support
surcharge is levied upon BIMS by CableData, as provided
for in Paragraph 15(d) hereof, CableData will have no
obligation to provide Support for defects that have
been corrected in releases of the Core Software
(exclusive of the Custom Software) that have not been
installed by BIMS within six (6) months of release to
BIMS of the version of the Software which represents the
computer code merged from the Customer Software
provided pursuant to the Software Development Agreement
into the applicable Core Software release then under
general release by CableData; provided, however, that
CableData will provide Support for such defects on a time
and materials basis until the surcharge commences.
c. Exclusions. Notwithstanding the provisions of Paragraphs 9(a) and
(b) above, unless and until a software support surcharge is levied upon BIMS
by CableData, as provided for in Paragraph 15(d) hereof, CableData shall have
no obligation to notify BIMS of, or to provide timely resolution of, defects
that have been effectively remedied in a subsequent Core Software release
(exclusive of the Custom Software) made available to BIMS as part of its
standard Maintenance which BIMS has elected not to install within six (6)
months of release to BIMS of the version of the Software which represents the
computer code merged from the Custom Software provided pursuant to the
Software Development Agreement into the applicable Core Software release then
under general release by CableData; provided, however, that CableData will
provide timely resolution of such defects on a time and materials basis. In
addition, CableData will provide Support to BIMS for only one production Corp
(a "Corp" is a BIMS System identified by a BIMS-requested unique corp number
and having a single database) and one Playcorp (a "Playcorp" is used for
utility purposes such as training, testing, development and studies) for each
Core Software License granted hereunder; provided however that Support for
additional production Corps will be provided to BIMS at no additional charge
until such time as (i) expanded features of the Core Software have been added
by CableData which are capable of handling expanded services groups and tax
jurisdictions; and (ii) BIMS shall have had a reasonable period of time to
convert data in multiple Corps into a single database. Thereafter, if BIMS
chooses to continue the use of multiple Corps (other than those provided for
above), CableData will charge BIMS an annual Support charge, as set forth in
Attachment A, for each additional Corp. CableData will advise BIMS of
appropriate methods to use in setting up additional production Corps. These
methods are intended to make the subsequent conversion process less costly
than it would otherwise be. In addition, CableData will perform the
conversion at no charge for a period of ninety (90) days
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
following the general release of the version of the Core Software having the
aforementioned capabilities; provided, however, that BIMS shall comply with
CableData's reasonable recommendations regarding the setting up of Corps to
facilitate conversion. Should BIMS choose to implement conversion any time
after such ninety (90) day period, the conversion will be performed at
CableData's then-current time and materials rates.
10. USE OF THE SOFTWARE BY BIMS
a. BIMS will be responsible for determining the appropriate uses to be
made of the Products based on the relevant Product Documentation and
specifications, as well as on its own unique business requirements, and should
establish those features that will enable it to meet its business requirements
through the setting of its own selected Product parameters.
b. BIMS will utilize the Core Software as set forth in the Documentation.
c. Except as otherwise provided herein, BIMS is not authorized to make
modifications to the Core Software. To the extent that BIMS or a third party
not authorized by CableData make such modifications, CableData will not be
responsible for repair of database impacted by the modifications, for support
of any Core Software as modified, or for the compatibility of such modified
Core Software with any equipment, with the unmodified Core Software or with
any future Core Software releases.
d. CableData is not responsible for any changes to BIMS's database caused
by BIMS or any third party not authorized by CableData. Any repair or
regeneration of database damaged by BIMS or an unauthorized third party will be
undertaken by CableData upon request at CableData's then-current rates, but
CableData does not warrant that such repair or regeneration will be successful.
11. FORCE MAJEURE
a. Neither party to this Agreement shall be in default hereunder by
reason of its delay in the performance of or failure to perform, in whole or in
part, any of its obligations hereunder if such delay or failure resulted from
acts of God or other occurrences beyond its reasonable control and without its
fault or negligence. Such acts or occurrences shall include, but not be limited
to, earthquakes, floods, fire, power failures, communications failures,
epidemics, strikes, lockouts, war, terrorist activity or government or other
applicable authority regulations which went into effect after the effect date of
this Agreement.
12. INDEMNITY
a. CableData shall indemnify, defend and hold BIMS and its Affiliates,
and their respective officers, directors, agents and employees, harmless from
and against any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines or judgments, including reasonable attorneys' fees, and costs and
expenses incidental thereto, which may be suffered by, accrued against, charged
to or recoverable from BIMS or any of its Affiliates, or any of their
respective officers, directors, agents or employees, arising out of a claim that
the Core Software or any portion thereof infringes or misappropriates any United
States or foreign patent, copyright, trade secret or other proprietary right.
In the event that the Core Software or any portion thereof is held in suit or
proceeding to infringe any rights of any other third party, and the use of the
Core Software or portion thereof is enjoined, CableData shall, at its sole cost
and expense, either (i) procure for BIMS and its Affiliates the right to
continue using the Core Software, or (ii) replace the same with non-infringing
software or materials of equivalent functionality and performance.
- 14 -
<PAGE>
CableData shall have no liability to BIMS for any infringement action or claim
which is based upon or arises out of: (i) any modification of the Core Software
by BIMS without the express written permission of CableData; (ii) any use of the
Core Software in combination with any other system, equipment or software which
is not furnished by CableData or approved by CableData in writing; or (iii) use
of other than a current unaltered release of the Core Software.
b. CableData shall indemnify, defend and hold BIMS and its Affiliates,
and their respective officers, directors, agents and employees, harmless from
and against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines or judgments, including reasonable attorneys' fees, and
costs and expenses incidental thereto, which may be suffered by, accrued
against, charged to or recoverable from BIMS or any of its Affiliates, or any
of their respective officers, directors, agents or employees, arising out of
or resulting from (i) claims of bodily injury, including death, or loss or
damage to property or physical destruction of property arising out of or in
connection with any act, error or omission of CableData or any of its
officers, directors, agents, employees and subcontractors, during the term of
this Agreement; (ii) intentional acts or gross negligence on the part of
CableData in the course of its performance under this Agreement; or (iii) a
reclassification or attempt to reclassify any of CableData's employees as an
employee of BIMs, including, without limitation, any tax liability (including
interest and penalties) resulting from BIMS's failure to pay, deduct or
withhold income taxes, Federal Insurance Contribution Act taxes, or Federal
Unemployment Tax Act taxes with respect to any of CableData's employees.
c. CableData's duty to indemnify BIMS hereunder shall include all
attorneys' fees which BIMS reasonably incurs in connection with the defense
of any claims covered by this Section 12 and all settlement costs, except as
otherwise provided in this Section 12. Promptly after receipt by BIMS of a
threat of any action, or a notice of the commencement or filing of any action
against which BIMS may be indemnified hereunder, BIMS shall give notice
thereof to CableData, provided that failure to give or delay in giving such
notice to CableData shall not relieve CableData of any liability it any have
to BIMS hereunder except to the extent that CableData demonstrates that the
defense of such action is prejudiced thereby. CableData or CableData's
attorney(s) shall keep BIMS reasonably apprised of the continuing status of
the claims covered by this Section 12, including any lawsuits resulting
therefrom, and shall permit BIMS, upon BIMS's written request, to participate
in the defense or settlement of any such claim, provided that CableData shall
have no obligation to indemnify for, be bound by or otherwise incur any
liability with respect to, any settlement terms to which it has not agreed.
CableData shall assume the cost of defending against any such claim and shall
select the attorney(s) to defend them against such claim subject to BIMS's
approval, which shall not be unreasonably withheld.
13. DISPUTE RESOLUTION
a. Each party agrees that any disagreement, controversy or dispute
between the parties relating to performance under or interpretation of this
Agreement will first be submitted in writing by one party to the other. If a
dispute remains unresolved for a period of fifteen (15) days after such notice,
then it shall be submitted in writing to a panel of two senior executives, one
from each party, who shall promptly meet and confer in an effort to resolve such
dispute. Each party's executives shall be identified by notice to the other
party, and may be changed at any time thereafter by notice to the other. The
executives shall each hold the position of president or above within their
respective organizations. Any decisions of the executives must be in a writing
signed by both executives and will be final and binding on the parties. In the
event the executives are unable to resolve any dispute within fifteen (15) days
after submission to them, either party may then refer such dispute to
arbitration in accordance with subsection b. of this Section. Arbitration in
accordance with this section may not be commenced by either party until such
executives determine
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<PAGE>
in good faith that a negotiated resolution is unlikely; provided, however,
that if one or both parties refuse to meet within fifteen (15) days of the
original written notice of the dispute set forth above, then arbitration may
be instituted by either party. Nothing herein shall prevent either party
from exercising its right to terminate the Agreement pursuant to the
provisions hereof.
b. In the event that a negotiated resolution is not reached as set forth
in subsection (a) above, the disagreement, controversy or dispute shall be
settled by binding arbitration administered by the American Arbitration
Association ("AAA") in accordance with its Commercial Rules, and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The arbitration shall be conducted in Atlanta, Georgia,
before a panel of three (3) neutral arbitrators selected by the AAA, at least
two (2) of whom shall have experience with and knowledge of the customer care
and cable service billing industry, and at least one (1) of whom will be an
attorney, who shall be the chair of the arbitration panel. The arbitrators will
have no authority to award punitive or any other damages not measured by the
prevailing party's actual damages, and may not, in any event make any ruling,
finding or award that does not conform to the terms and conditions of this
Agreement. In addition, neither party nor any of the arbitrators may disclose
the existence, content or results of any arbitration hereunder without the
consent of both parties. The award of the arbitrators shall be accompanied by a
reasoned opinion.
Both parties shall allow and participate in discovery in accordance with
the Federal Rules of Civil Procedure for a period of ninety (90) days after the
filing of the Answer or other responsive pleading. Unresolved discovery
disputes may be brought to the attention of the chair of the arbitration panel,
and may be disposed of by the chair of the panel.
c. Notwithstanding the foregoing, either party shall have the right to
seek immediate legal redress in the event of breach of the provisions of Section
6 or Section 12 or Section 17 hereof.
14. TERMINATION
a. CableData acknowledges and agrees that the Core Software to be
provided to BIMS by CableData hereunder may be of no value to BIMS without the
Custom Software to be provided pursuant to the Software Development Agreement.
Accordingly, in the event that the System fails to pass the acceptance testing
procedures set forth in the Software Development Agreement, CableData shall
refund to BIMS all monies paid by BIMS hereunder and under the Software
Development Agreement, which remedy shall be in addition to any other remedies
available to BIMs hereunder, under the Software Development Agreement or
otherwise available at law or in equity. The parties agree that for purposes of
this section, the Software will be deemed to have passed the acceptance testing
procedures in the Software Development Agreement upon BIMS's acceptance of the
Custom Software as delivered by CableData pursuant to the Initial Work Order
under the Software Development Agreement.
b. Notwithstanding any other provision herein, either party will have
the right to terminate this Agreement if the other party fails to comply with
any of its material obligations under this Agreement. Should a party elect
to exercise this right to terminate for nonperformance, it must be done in
writing specifically setting forth these items of nonperformance. The other
party will then have thirty (30) days from the receipt of notification to
cure the default. Should the defaulting party fail to correct these items of
nonperformance, then the notifying party shall have the right to terminate
this Agreement. Termination of this Agreement pursuant to this provision
shall be without prejudice to any other remedies either party may have.
c. Within thirty (30) days after termination of any License for any
reason, BIMS shall
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<PAGE>
immediately cease using the Core Software and shall return or destroy the
Core Software and Documentation. CableData represents that BIMS will be
capable of accessing its data following the return or destruction of the Core
Software so long as it maintains a license to use Third Party Software as
identified by CableData as required for access in the Third Party Software
Attachment. Nothing contained herein shall require BIMS to deliver to
CableData any of BIMS's proprietary data.
d. In addition to BIMS's right to terminate this Agreement for breach by
CableData, BIMS shall have the right to terminate this Agreement without
incurring any early termination charges by giving CableData at least thirty (30)
days' prior written notice and certification signed by and officer of BIMS of:
(i) the termination/cancellation of all broadband trials by BIMS, for
any reason, and not plans by BIMs for any trials for at least twelve (12)
months from the date of termination/cancellation; or
[*]
Unless otherwise specified herein, BIMS's sole and exclusive liability to
CableData with respect to
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
such termination shall be limited to payment of all fees due hereunder and under
the Software Development Agreement through the effective date of the
termination. In the event that BIMS terminates the Agreement prior to the
natural expiration of the initial term or any renewal term for any reason
other than breach by CableData, as provided for in this Agreement, or for either
of the occurrences set forth above in this Paragraph 14(d), BIMS agrees that, if
it is subject to monthly or annual License fees, it shall pay to CableData, as
an early termination fee (liquidated damages) and not as a penalty, an amount
equal to what CableData would have received under the Agreement until the end of
the term. All payments made pursuant to this Paragraph 14 (d) shall be in the
nature of liquidated damages and shall be accepted by CableData in full
satisfaction of all claims, including but not limited to, lost profits, overhead
and other consequential damages, against BIMS arising out of termination.
e. Should BIMS terminate this Agreement due to material breach by
CableData, then it shall be entitled to exercise the rights provided in Section
17, Escrow, and shall be deemed to have a license to use the Core Software
without a corresponding obligation to pay periodic Maintenance.
15. CHANGES TO THE SYSTEM
a. BIMS may at any time request CableData to change the design of the
Core Software, but CableData shall not be obligated to accede to any request of
BIMS unless, in the opinion of CableData, such changes represent a significant
benefit.
b. Contemporaneously with the execution of this Agreement, the parties
shall execute the Software Development Agreement. That Agreement sets forth the
terms and conditions upon which all software development for BIMS shall be
undertaken.
c. CableData shall be entitled to make changes to the Software from time
to time as CableData in its discretion considers warranted by developments in
the industry in which it is used. Subject to CableData's obligations pursuant
to Paragraph 7(e) hereof, CableData is not responsible for the inability of any
software or other products purchased or licensed from third parties, other than
software or products approved by CableData in writing, to function because of
changes to the Software. CableData will provide to BIMS, on a periodic basis,
Software Compatibility Matrices that details any associated changes to third
party software that are part of the Operating Environment Specification that may
be required.
d. BIMS AGREES THAT CABLEDATA WILL HAVE THE RIGHT TO LEVY A SOFTWARE
SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT BIMS FALLS AT LEAST EIGHTEEN
(18) MONTHS BEHIND THE RELEASE TO BIMS OF THE VERSION OF THE SOFTWARE WHICH
REPRESENTS THE COMPUTER CODE MERGED FROM THE CUSTOM SOFTWARE PROVIDED PURSUANT
TO THE SOFTWARE DEVELOPMENT AGREEMENT INTO THE THEN CURRENT MAJOR CORE SOFTWARE
RELEASE PROVIDED PURSUANT TO THE MAINTENANCE (i.e., at no cost beyond the cost
of periodic Maintenance hereunder). As used herein, a "Major Core Software
Release" means release by CableData to its customer base of a version of the
Software which contains (i) a major revision in database structure or design; or
(ii) modification of more than 15 application programs; or (iii) changes made
pursuant to 30 or more SARs (Software Assistance Requests) or DCRs (Database
Change Requests); or (iv) in addition or modification of two or more major
components or schemes (i.e. rate codes, collections).
16. DATA TRANSMISSION AND REMOTE FILE ACCESS
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<PAGE>
a. Transmission of all data to and from CableData when requested by BIMS
shall be via telecommunications or tape(s), at CableData's discretion, and at
BIMS's expense.
b. BIMS is responsible for the installation and cost of at least one
(1) business grade telephone line which is to be placed at the location of
the BIMS's Computer. The telephone lines are to be on separate trunk lines
not running through BIMS's switchboard or other such devices. These
telephone lines will be used solely for the transmission of data between any
Support Facility and BIMS for Maintenance and Support purposes, and for
running routines or subroutines within the Core Software, at the end of each
month, to count the number of BIMS's Subscribers. BIMS is responsible for
the expense of BIMS's data communication. It is also highly recommended that
a telephone be installed near BIMS's Computer for purposes of Support.
17. SOURCE CODE ESCROW
a. BIMS shall be entitled to a copy of the Source Code for the Core
Software, including system libraries and other pre-existing materials needed
to fully maintain and support the Software, and may use same for its own
benefit (i) upon expiration of the License term and all extension terms
provided for in Section 1 hereof, at an annual fee, to be negotiated by the
parties, if CableData ceases to market and/or support the Core Software and
such marketing/support is not continued by another corporation or entity, or
is continued by another corporation or entity which BIMS for reasonable cause
deems unsatisfactory; (ii) prior to expiration of the License term and any
extension terms provided for in Section 1 hereof, at no additional charge if
CableData ceases to maintain and/or support the Core Software and such
maintenance/support is not continued by another corporation or entity, or is
continued by another corporation or entity which BIMS for reasonable cause
deems unsatisfactory; (iii) at no additional charge if CableData becomes
insolvent or party to any bankruptcy or receivership proceedings or makes an
assignment for the benefit of creditors; or (iv) should BIMS terminate this
Agreement due to material breach by CableData.
b. No later than the time of CableData's delivery of the Core Software to
BIMS, CableData shall place the Source Code in escrow pursuant to an escrow
agreement to be mutually agreed and entered into prior to the date of such
delivery (the "Escrow Agreement"). The parties shall share equally all charges
incurred in establishing and maintaining such escrow account; provided, however,
that in the event the escrow account is maintained for other CableData customers
in addition to BIMS, then CableData shall bear all costs associated with such
account. For purposes of payment under the Agreement, delivery of the Core
Software shall be deemed to include and require delivery of the copy of the
Source Code pursuant to the Escrow Agreement. BIMS shall be entitled to receive
a copy of such Source Code under the circumstances set forth in Section 17(a)
above and pursuant to the procedures set forth in the Escrow Agreement, and may
use same for its own benefit. If CableData corrects any defects in, or
provides any revision to, the Core Software under this Agreement or under any
software maintenance agreement between the parties, CableData shall
simultaneously furnish the escrow agent with a corrected or revised copy of the
Source Code for the Core Software.
c. BIMS may periodically, but not more frequently than once per year,
trigger fresh escrow deposits. BIMS shall reimburse CableData and the escrow
agent under the Escrow Agreement for the reasonable expenses incurred in the
preparation of such fresh escrow deposits. In addition to triggering fresh
deposits, BIMS shall have the right, either itself or through a third party
designated by BIMS, to validate the materials on deposit upon thirty (30)
calendar days prior written notice to and in the presence of CableData, but no
more frequently than two (2) times per year. Any third Party designated by BIMs
to validate the materials on deposit shall be required to execute a
nondisclosure agreement with CableData, in a form reasonably satisfactory to
CableData,
- 19 -
<PAGE>
which nondisclosure agreement shall require that such third party's report to
BIMS contain only a non-confidential description of the results of such
validation. Verification shall take place at CableData's convenience during
normal business hours on mutually-designated hardware. Such verification shall
be at BIMS's expense unless the materials on deposit are not current, in which
event CableData shall bear all costs associated therewith.
d. The Source Code shall be in a format and on a storage medium suitable
for loading into the computer equipment described in the Operating Environment
Attachment hereto, and shall not be encrypted. The Source Code shall include
system documentation, statements of principles of operations, and schematics,
all as necessary or useful for the effective understanding and use of the Source
Code. Insofar as the "development environment" employed by CableData for the
development, maintenance and implementation of the Source Code includes any
device, programming, or documentation not commercially available to BIMS on
reasonable terms through readily known sources other than CableData, the Source
Code shall include all such devices, programming and documentation. The fore-
going reference to such "development environment" is intended to apply to any
programs, including compilers, "workbenches," tools, and higher-level (or
"proprietary") languages, used by CableData for the development, maintenance,
and implementation of the Source Code.
e. In the event that the Source Code is released to BIMS pursuant to this
Section 17, any and all modifications to such Source Code made by or on behalf
of BIMS shall be the sole property of BIMS.
18. TRANSFER AND ASSIGNMENT
a. Except as otherwise provided herein, neither party shall have the
right to assign or otherwise transfer its rights or obligations under this
Agreement, by operation of law or otherwise, except with the written consent of
the other party, except that CableData shall have the right to assign to its
parent or to any wholly-owned subsidiary without such consent. Prohibited
assignment shall be null and void.
b. BIMS may assign or Transfer this Agreement and its rights hereunder,
without the payment of any transfer fees or additional license fees, (i) to any
entity controlling, controlled by or under common control with BIMS, or (ii)
upon the prior written consent of CableData, which consent shall not be
unreasonably withheld, to any one or more of BIMS's other Affiliates, or (iii)
to any entity which acquires all or substantially all of BIMS's business or
Subscriber base; provided, however, that the use of the Core Software by any
such transferee(s) under this Paragraph 18(b) shall be subject to the terms of
this Agreement.
c. In addition to BIMS's assignment rights under this Agreement, BIMS
shall have the right to assign its rights and delegate its duties under this
Agreement either in whole or in part, at any time and without CableData's
consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give CableData
written notice of such assignment or delegation. Upon the written notice to
CableData, BIMS shall be released and discharged, to the extent of the
assignment, from all further duties under this Agreement.
19. MISCELLANEOUS PROVISIONS
a. BIMS and/or its Affiliates may, at their option from time to time, by
giving CableData prior written notice, add new or additional Computer Facilities
and Remote BIMS Sites at the prices set forth in the Pricing Attachment hereto.
- 20 -
<PAGE>
b. BIMS agrees not to remove any Core Software from the location at which
it is originally installed, except in an emergency (and then only for the period
of the emergency), without prior written notice to CableData. BIMS will not,
during or after the term of this Agreement, re-export or otherwise transfer the
Core Software or related technical data, or any direct products thereof, other
than in compliance with the U.S. Export Administration Regulations or other
applicable law.
c. This Agreement shall not be modified, amended, rescinded, canceled or
waived, in whole or in part, except by written amendment signed by both parties.
d. Should any clause, provision, or portion of this Agreement be ruled
invalid, void, illegal or otherwise unenforceable by any court, it shall be
deemed to be deleted and the remainder of this Agreement shall continue to be in
effect and fully enforceable.
e. This Agreement supersedes all prior proposals, oral or written, and
all negotiations, conversations or discussions between the parties related to
the Core Software or Services (excepting the Software Development Agreement
executed concurrently herewith). BIMS acknowledges that it has not been induced
to enter into this Agreement by any representations or statements, oral or
written, not expressly referred to herein. The terms and conditions of this
Agreement shall prevail, notwithstanding any variance with the terms and
conditions of any order or other instrument submitted by BIMS.
f. References herein to this Agreement include the Attachments, and the
headings in this Agreement are for convenience only and do not affect the
interpretation hereof.
g. The parties agree that in the event it is necessary to employ attorneys
to enforce the terms of this Agreement, the prevailing party in any lawsuit
shall be entitled to an award of reasonable attorneys' fees and court costs.
h. This Agreement will be governed in all respects by the laws of the
State of Georgia.
i. Regulatory Authority. BIMS's provision of residential broadband
services will be subject to the provisions of the applicable order(s) of the
Federal Communications Commission ("FCC") and applicable tariffs. S and its
Affiliates shall use reasonable efforts to pursue any regulatory and local
authority required to provide residential broadband services. BIMS may
terminate this Agreement if it or its Affiliates are unable to obtain the
required approvals and authority. Any such termination shall be as set forth in
this Agreement, and shall be without any further charge, obligation and/or
liability on the part of BIMS to CableData.
j. Coordination and Cooperation with other Contractors. Throughout the
term of this Agreement, other contractors and third parties (including personnel
of BIMS) may be required to render services in or install equipment or software
at BIMS's facilities, including, but not limited to, Sybase, Inc., Scientific-
Atlanta, Inc. and Hewlett-Packard Company. BIMS reserves the right to permit
and put such other contractors and third parties to work and to afford them
access to such facilities at such times and under such conditions as do not
unreasonably interfere with CableData. CableData shall perform continuously and
diligently and shall so conduct and coordinate its aspects of the Agreement so
as to minimize interference with such other work. Upon CableData's receipt from
BIMS of written notice identifying contractors or other third parties with whom
CableData shall be required to cooperate (i.e., in addition to those listed
above in this Section 19(j)), together with any information and/or assistance
requested, CableData shall cooperate with BIMS in providing such information and
assistance as requested by BIMS for such coordination and cooperation in a
timely manner. If BIMS determines that CableData is failing to coordinate its
- 21 -
<PAGE>
work with the work of other contractors engaged by BIMS or is failing to
cooperate with such contractors as required by BIMS's notice, then CableData
shall be responsible for all damages, costs and expenses suffered or incurred by
BIMS directly by reason of CableData's failure.
k. Insurance. CableData shall procure and maintain for itself and its
employees all insurance coverages as required by federal or state law,
including worker's compensation insurance. CableData also agrees to maintain
(a) insurance in the minimum amount of [*], for comprehensive general
liability coverage, including blanket contractual liability, broad form
property damage, and products and completed operations coverage, and naming
BIMS as an additional insured, and (b) insurance in the minimum amount of [*]
for coverage of software errors and omissions, including services rendered
and intellectual property infringement claims, with respect to the computer
software provided hereunder. CableData shall furnish to BIMS a certificate
of insurance evidencing such coverage. Said certificate will include a
provision whereby fifteen (15) calendar days notice must be received by BIMS
prior to coverage change or cancellation by either CableData or the insurer.
CableData waives its rights of subrogation against BIMS.
l. Notices. Except as otherwise provided herein, and except for
notices of failures, errors or other problems with the Software, which may be
delivered by phone and confirmed in writing, all notices, requests, demands
or other communications required or permitted to be given or made under this
Agreement shall be in writing and shall be given by personal service, express
courier (such as UPS), telecopy, or by United States certified mail, return
receipt requested, postage prepaid to the addresses set forth below, or such
other address as changed through written notice to the other party.
If to BIMS:
BellSouth Interactive Media Services, Inc.
1100 Abernathy Road
Suite 414, Building 500
Atlanta, Georgia, 30328
Attn: Mr. Larry E. Ryan
Telecopy: (770) 481-2959
With a copy to BIMS's General Counsel (same address); Telecopy: (770) 392-
4575
If to CableData:
CableData, Inc.
2969 Prospect Park Drive
Rancho Cordova, California 95670
Attn: Barry Madrid
Telecopy: (916) 636-5750
With a copy to CableData's General Counsel (same address); Telecopy: (916)
636-4561
Notice given by personal service shall be deemed effective on the date it is
delivered, notice sent by express courier shall be deemed effective one Business
Day after dispatch, notice given by telecopy shall be deemed effective on the
date of transmission, and notice mailed shall be deemed effective on the third
Business Day following its placement in the mail.
m. Counterparts. This Agreement may be executed in any number of
counterparts,
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 22 -
<PAGE>
each of which, when so executed and delivered, shall be deemed an original, and
all of which shall constitute one and the same Agreement.
n. Remedies. The rights and remedies of the parties set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to them at law or in equity.
o. Personnel Rules and Regulations. While on BIMS's premises, CableData,
personnel will comply with all security practices and procedures generally
prescribed by BIMS. In addition, unless otherwise instructed by BIMS, CableData
personnel shall observe the working hours, working rules, holiday schedules and
policies of BIMS while working on BIMS' premises.
THE FOLLOWING ATTACHMENTS ARE INTEGRAL PARTS OF THIS AGREEMENT AND ARE
INCORPORATED BY REFERENCE:
Att A Pricing Attachment
Att B Product/Services Attachment
Att C Maintenance/Support Attachment
Att D Site Attachment
Att E Intelecable Software Compatibility Matrix
Att F Capacity Reference Guidelines Attachment
Att G Operating Environment Attachment
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date last set forth below.
BELLSOUTH INTERACTIVE MEDIA CABLEDATA, INC.
SERVICES, INC.
By: /s/ James R. Gadd By: /s/ Michael McGrail
--------------------- -------------------------
James Gadd Michael F. McGrail
------------------------- -----------------------------
Print Name Print Name
President President
------------------------- -----------------------------
Title Title
December 22, 1995 December 27, 1995
------------------------- -----------------------------
Date Date
- 23 -
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95
A-1 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95
A-2 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-3 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-5 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-6 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-7 Confidential
<PAGE>
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-8 Confidential
<PAGE>
PRODUCT/SERVICES ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Intelecable Basic System Content
12/8/95 CableData Confidential 1
<PAGE>
PRODUCT/SERVICES ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Intelecable Optional ModuleContent
12/8/95 CableData Confidential 2
<PAGE>
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
These Maintenance and Support provisions are in addition to Section 9 of the
License Agreement and Sections 15 and 16 of the Software Development Agreement.
In the event of a conflict between this attachment and either the License
Agreement or the Software Development Agreement, the License Agreement or the
Software Development Agreement as applicable will apply.
DEFINITIONS
1. MAINTENANCE: Bug fixes, correction of defects, including those that impede
the ability to access files or perform routine operations using the
Software, and periodic issuance of Maintenance Releases. Excluded from
Maintenance are (a) operational procedures for loading and shutting down
the computer system; (b) setting computer operating system command
parameters; (c) nightly procedures for database backup and file
maintenance; (d) defining whether any problems are hardware or Software-
based; (e) database recovery necessitated by an operating system software
or operational problem; (f) balancing file allocation and disk space
management; (g) conducting performance analysis of the computer system.
These operational support services are available at CableData's then
current prices.
2. SUPPORT: Telephone Support for problems encountered in the use of the
Software, as defined and described in the Agreement. Support services
beyond the scope of normal Telephone Support are:
- Assistance on the general usage of any or all components in the
Software where adequate assistance is provided by the Documentation.
- Assistance on the administration and management of any or all
components in the Software where adequate assistance is provided by
the Documentation.
- Assistance in performing problem determination, isolation and
resolution of problems unrelated to the Software.
- Customized training programs.
PROBLEM SOLUTION OBJECTIVES
SEVERITY LEVELS DESCRIPTION CABLEDATA DEFECT ISOLATION,
CONFIRMATION, AND FIX
- -------------------------------------------------------------------------------
1. System Down System Down, Cannot Do Immediately
Business
- -------------------------------------------------------------------------------
2. High Impact, No Business Function Cannot ASAP-Between Maintenance
Workaround Be Performed Releases
- -------------------------------------------------------------------------------
3. High Impact, Heavily Impacted, Can Next Maintenance Release
Workaround Do Daily Business
- -------------------------------------------------------------------------------
4. Low Impact, Slightly Impacted, Can Deferred; Future Maintenance
Workaround Do Daily Business Release
- -------------------------------------------------------------------------------
5. No Impact No Impact On Daily Possible; Future Maintenance
Business Release
COVERAGE
- - SOFTWARE: BIMS has elected to purchase 24 hours per day x 7 days/week x 365
day/year Telephone Support for the Software as defined in the Agreement.
Telephone Support calls to the Support Facility will be handled,
immediately or returned within an average of sixty (60) minutes by a
qualified CableData employee.
- - CableData will support the current release of Intelecable Core Software, as
well as the prior major release. Maintenance for older releases will be
provided by CableData subject to the limitations set forth in the
Agreement.
Telephone Support covers the Core and Custom Software licensed under this
Agreement and the Software Development Agreement and does not include
support of any computer operating system software.
12/8/95 C-1
<PAGE>
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
- - Third-Party Software: Third-party software (i.e., Oracle-Registered
Trademark - and Tuxedo-Registered Trademark-)should be licensed directly
from the licensor, who will be primarily responsible for supporting the
licensed product. Telephone support may be provided by CableData, however,
if Customer actually licenses the third-party software from CableData and
contracts for CableData to provide support for such software.
CUSTOMER RESPONSIBILITIES
- - Customer is responsible for performing problem determination and isolation
procedures to determine whether the problem is attributed to a component
covered by CableData Maintenance or Support. Customers may be charged for
Maintenance and Support, on a time and materials basis, if a problem is
logged by CableData and found to be attributable to a component NOT covered
by CableData Maintenance or Support. Such charges will be assessed only if
CableData has notified the Customer that the problem is not covered and the
Customer has elected to use CableData for support.
- - Customer must provide individuals in its site(s) who have attended the
required CableData classes listed by job category on pages 3-5 of this
attachment, with whom CableData will deal. Cabledata recommends that BIMS
maintain a level of expertise to property utilize the Core Software during
the term of the Agreement. Customer must designate, by name, specific
individuals who may contact CableData for Maintenance and Support. These
individuals are to be listed below and should be certified by CableData
based on completing required courses indicated in pages 3-5 of this
attachment. CableData may not support Maintenance or Support requests from
individuals who are not listed. BIMS may add names as individuals become
certified.
CHARGES
- - CABLEDATA'S INTELECABLE CORE SOFTWARE AND CUSTOM SOFTWARE: Fees for
Maintenance and Support are set forth in the Pricing Attachment. Additional
support (for problems that are outside the scope of normal Telephone
Support) is billed on an hourly time and materials basis. There will be no
charge for Maintenance and Support of the Software during the Warranty
Period and for a period of six years thereafter for Custom Software.
- - THIRD-PARTY SOFTWARE: If Customer contracts with CableData to provide
Support, an annual Support fee is charged. Support outside the scope of a
contract is performed on an hourly time and materials basis. Maintenance
is provided only if the third-party software is licensed from CableData and
Customer pays the required annual Maintenance fee for such software.
CUSTOMER CONTACTS:
Name:_____________________ Title:______________________
Name:_____________________ Title:______________________
Name:_____________________ Title:______________________
C-2
<PAGE>
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
Intelecable Training Matrix
<TABLE>
<CAPTION>
INTELECABLE COURSEWARE MODULES(2)
TARGET INTELECABLE DAILY SYSTEM STANDARD TELEPHONY PROJECTS NETWORK
GROUP(1) OVERVIEW PROCESSING MANAGEMENT REPORTS MANAGEMENT MANAGEMENT MANANGEMENT
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE REQUIRED REQUIRED
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED REQUIRED
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK REQUIRED OPTIONAL REQUIRED REQUIRED REQUIRED
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER REQUIRED REQUIRED
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT REQUIRED REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's organization.
However, the cross-section of responsibilities generally remains valid to the
Cable Television and Telephony industries. Intelecable training is targeted to
the individual and departmental responsibilities and can be customized to meet
the end-user's business structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training modules.
Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-
users and can be scheduled through the local Oracle-Registered Trademark-
and IBM-Registered Trademark- offices respectively.
</TABLE>
C-1
<PAGE>
Intelecable Training Matrix - Continued
<TABLE>
<CAPTION>
INTELECABLE COURSEWARE MODULES(2)
TARGET THE CHARGING COLLECTIONS MONEY ADDRESS SHARING FINANCIAL PAY-PER-VIEW MIS
GROUP(1) PROCESS MANAGEMENT PROCESSING MANAGEMENT REPORTS MANANGEMENT PROCESSES
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE OPTIONAL OPTIONAL
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL OPTIONAL OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION OPTIONAL REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
- ---------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's
organization. However, the cross-section of responsibilities generally
remains valid to the Cable Television and Telephony industries.
Intelecable training is targeted to the individual and departmental
responsibilities and can be customized to meet the end-user's business
structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training
modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-users and can
be scheduled through the local Oracle--Registered Trademark- and
IBM-Registered Trademark- offices respectively.
</TABLE>
C-2
<PAGE>
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
- ------------------------------------------------------------------------------
Intelecable Training Matrix - Continued
<TABLE>
<CAPTION>
INTELECABLE COURSEWARE MODULES(2)
TARGET xxx INTELECABLE ORACLE-Registered Trademark- IBM-Registered Trademark-
GROUP(1) MANAGEMENT DATABASE MANAGEMENT AIX-Trade Mark-
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE OPTIONAL
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED OPTIONAL REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR OPTIONAL REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's
organization. However, the cross-section of responsibilities generally
remains valid to the Cable Television and Telephony industries. Intelecable
training is targeted to the individual and departmental responsibilities and
can be customized to meet the end-user's business structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training
modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-users and can
be scheduled through the local Oracle-Registered Trademark- and
IBM-Registered Trademark- offices respectively.
</TABLE>
C-3
<PAGE>
INTELECABLE SITE ATTACHMENT ATTACHMENT D
- ------------------------------------------------------------------
CUSTOMER SITES ATTACHMENT
CableData's Intelecable-Trade Mark- Master Operating and
Licensing Agreement
Date: December 8, 1995
Corp. Number: 360-01
The Customer sites subject to this Agreement and the associated hardware
and software installed are as follows:
Computer Facility: Bell South
System Number: 360-01
Installation Address: 1100 Abernathy Road, Suite 414
500 Northpark Town Center
City, State: Atlanta, GA 30328
Remote Facility: n/a
System Number:
Installation Address:
City, State:
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-1
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-2
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-3
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-4
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-5
<PAGE>
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-6
<PAGE>
CAPACITY REFERENCE GUIDELINES ATTACHMENT F
The following are provided as capacity and reliability guidelines and are not
a warranty for performance. They are offered to BIMS as a guide in
determining whether or not analysis and corrective action are indicated. Any
further Software releases may require additional resources as described in
Paragraph 7.f.(i) of the Agreement. Such corrective action might include
adding hardware or software or reconfiguring the OS or the RDBMS. CableData
would consult with BIMS on the most cost effective course of action for BIMS
to pursue.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 1 -
<PAGE>
CAPACITY REFERENCE GUIDELINES ATTACHMENT F
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
<PAGE>
ATTACHMENT G
BIMS INTELECABLE OPERATING ENVIRONMENT
IBM 590
AIX 3.2.5 Operating System
Oracle 7.0.1.6
Tuxedo /T v 4.2.1
Tuxedo /Q v4.2.1
Intelecable
512MB Ram
6GB Disk
The IBM 590 is used as a test and development environment for the Intelecable
subscriber management system. The IBM 590 interfaces with the Sybase Staging
Server which runs on an HP G70. Connectivity is standard TCP\IP-based, with
Tuxedo acting as the interface software for API's used by Sybase and
CableData.
The IBM 590 may, on a temporary basis, be connected to the Scientific Atlanta
SM10 via an RS-232 link for testing the provision of Analog Channel
Authorizations.
The IBM 590 is connected to the BIMS office network using TCP/IP. A
QuickScreen Plus emulator provided by CableData, running on Intel-based pc's,
is used to access the Intelecable application.
IBM RS 6000 - SP2
AIX 3.2.5 Operating System
HACMP 3.1.1
Oracle 7.0.1.6
Tuxedo /T v 4.2.1
Tuxedo /Q v4.2.1
Intelecable
Per node: 1GB Ram
12 GB Disk
The IBM SP2 is the production machine for the Intelecable subscriber
management system. The SP2 is running with multiple nodes using High
Availability Rotating mode, although plans are to run it in Concurrent Mode.
The IBM SP2 interfaces with the Sybase Staging Server, which runs on an HP
E45 at present but may move to an HPG70. Connectivity is standard
TCP/IP-based, with Tuxedo acting as the interface software for API's used by
Sybase and CableData. The IBM Sp2 is connected to the Scientific Atlanta SM10
via an RS-232 link.
The IBM SP2 is connected to the BIMS office network using TCP/IP. A
QuickScreen Plus emulator provided by CableData, running on Intel-based pc's,
is used to access the Intelecable application.
HP G70
HP-UX operating system
Sybase System 10
Sybase Replication Server
Sybase Open Client/Server
Tuxedo / WS
Custom API's
512MB Ram
8GB Disk
G-1
<PAGE>
The HP G70 contains the HP MediaStream Server and Sybase IMS (Intermedia
Server), and may contain the Sybase Staging Server. The Staging Server
contains the Replication Server, the Staging Database, and the External
Business Systems Accessors. External Business Systems Accessors are API's
used to connect to the Intelecable application via Tuxedo for passing
customer information, including authorizations, and billing transactions with
the Intelecable subscriber management system.
Scientific Atlanta SM10
DOS 6.2
Windows 3.1
IBM PS2
The Scientific Atlanta System Manager 10 (SM10) is used to manage the analog
functions of all set-top boxes connected to the BIMS network. Specific
management functions include the following:
Channel Authorizations
Set Top Box Auditing
Set Top Box Reinitialization
The IBM SP2 is connected to the Scientific Atlanta SM10 via an RS-232 link.
HP-E45(MKIS)
HP-UX operating system
Oracle 7.0.1.6
Tuxedo / WS
Sybase Replication Server
Sybase Open Client/Server
Custom API's
64MB Ram
6GB Disk
The HP-E45 is used to run the Marketing Information System (MKIS). The MKIS
system is part of the BIMS network and as such will receive information from
the Intelecable subscriber management system. In addition, the Sybase Staging
Server currently runs on the E45. The Staging Server contains the Replication
Server, the Staging Database, and the External Business Systems Accessors.
External Business Systems Accessors are API's used to connect to the
Intelecable application via Tuxedo for passing customer information,
including authorizations, and billing transactions with the Intelecable
subscriber management system.
Intel Based Pcs (486 and Pentium processors)
DOS 6.2
Windows for Workgroups 3.11
Quick Screen Plus for Windows version 3.11a
486 and Pentium processors
8MB Ram
327MB Disk
Various pcs will be used on the BIMS network for accessing the Intelecable
subscriber management system.
Intel Based PC (Pentium Processors)
DOS 6.2
Windows NT 3.51
Tuxedo for Windows NT
Custom API's
This machine will access the API's Get Account and Send Transaction. Billing
transactions will be formatted on this and sent to ITC for processing via the
Send Transaction API. Customer information will be obtained via the Get
Account API.
G-2
<PAGE>
EXHIBIT 10.30
<PAGE>
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (the "Agreement") is between Oracle
Corporation with its principal place of business at 500 Oracle Parkway, Redwood
City, California 94065 ("Oracle") and U.S. COMPUTER SERVICES (legal name) with
its principal place of business at 11020 SUN CENTER DRIVE, RANCHO CORDOVA, CA
95670 ("Client"). The terms of this Agreement shall apply to each Program
license granted and to all services provided by Oracle under this Agreement.
When completed and executed by both parties, an Order Form shall evidence the
Program licenses granted and the services that are to be provided.
I. DEFINITIONS
1.1. "Program" or "Programs" shall mean the computer software in object code
form owned or distributed by Oracle for which Client is granted a license
pursuant to this Agreement; the user guides and manuals for use of the
software ("Documentation"); and Updates.
1.2. "Order Form" shall mean the document by which Client orders Program
licenses and services, and which is agreed to by the parties. The Order
Form shall reference the Effective Date of this Agreement.
1.3. "Price List" shall mean Oracle's standard commercial fee schedule that is
in effect when a Program license or any other products or services are
ordered by Client.
1.4. "Designated System" shall mean the computer hardware and operating system
designated on the relevant Order Form.
1.5. "Supported Program License" shall mean a Program license for which Client
has ordered Technical Support for the relevant time period. "Technical
Support" shall mean Program support provided under Oracle's policies in
effect on the date Technical Support is ordered.
1.6. "Commencement Date" shall mean the date on which the Programs are
delivered to Client, or if no delivery is necessary, the Effective Date
set forth on the relevant Order Form.
1.7. "Update(s)" shall mean subsequent releases of the Programs which are
generally made available for Supported Program Licenses at no additional
charge, other than media and handling charges. Updates shall not include
any releases, options or future products which Oracle licenses
separately.
1.8. "User", unless otherwise specified in the Order Form, shall mean a
specific individual employed by Client who is authorized by Client to use
the Programs, regardless of whether the individual is actively using the
Programs at any given time.
1.9. "Application Programs" shall be Programs designated as application
software by Oracle.
1.10. "Limited Production Programs" shall be Programs not specified on the
Price List or specified as Limited Production, Tier 3 or with special
restrictions on the Price List.
II. PROGRAM LICENSE
2.1. RIGHTS GRANTED
A. Oracle grants to Client a nonexclusive license to use the Programs
Client obtains under this Agreement, as follows:
i. to use the Programs solely for Client's own internal data
processing operations on the Designated System or on a
backup system if the Designated System is inoperative, up
to any applicable maximum number of designated Users (if
any User limitation applies). Client may not use the
Programs for third-party training, commercial timesharing,
rental or service bureau use;
ii. to use the Documentation provided with the Programs in
support of Client's authorized use of the Programs;
iii. to copy the Programs for archival or backup purposes; no
other copies shall be made without Oracle's prior written
consent. All titles, trademarks, and copyright and
restricted rights notices shall be reproduced in such
copies. All archival and backup copies of the Programs are
subject to the terms of this Agreement; and
iv. to modify the Programs or combine them with other software
products. The Programs or such portions thereof included
in such derivative software products shall remain the
property of Oracle and shall be governed by the terms of
this Agreement.
Client shall not copy or use the Programs (including the Documentation)
except as otherwise specified in this Agreement.
B. Client agrees not to cause or permit the reverse engineering,
disassembly or decompilation of the Programs.
C. Oracle shall retain all title, copyright and other proprietary
rights in the Programs. Client does not acquire any rights,
express or implied, in the Programs, other than those specified in
this Agreement.
D. The Programs are not intended for use in any nuclear aviation,
mass transit, medical or other inherently dangerous applications.
It shall be Client's responsibility to take all appropriate
measures to ensure the safe use of such applications if the
Programs are used for such purposes, and Oracle disclaims
liability for any damages caused by such use of the Programs.
E. To use a Program specified on an Order From ("ordered Program"),
Client may need to use an ancillary Program embedded in or
delivered with the ordered Program. The ancillary Program may be
used only as described in the Order Form or Documentation for
implementation of the ordered Program and for no other purpose.
Client shall have no right to use any other software Program that
may be delivered with ordered Programs.
2.2. ACCEPTANCE OF PROGRAM
For each Program License for which delivery is required under this
Agreement, Client shall have a 15 day Acceptance Period, beginning on the
Commencement Date, in which to evaluate the Program. During the
Acceptance Period, Client may cancel the license by giving written notice
to Oracle and returning the Program in accordance with paragraph 4.5
below. Unless such cancellation notice is given, the license will be
deemed to have been accepted by Client at the end of the Acceptance
Period, if
<PAGE>
Client is granted a right to copy license and no delivery is necessary,
subsequent copies shall be deemed accepted upon acceptance of the master
copy.
2.3. TRANSFER AND ASSIGNMENT
A. Within the United States, a Program license may be transferred to
another computer system of like configuration (same model and
operating system), or the Designated System may be transferred to
another location within Client's organization, upon written notice
to Oracle. All other transfers, including transfer of a Program
license outside the United States, shall be permitted only with
Oracle's prior written consent and shall be subject to Oracle's
standard transfer fees in effect at the time of the transfer.
B. The rights granted herein are restricted for use solely by Client.
Client may not authorize or allow the use or the remarketing of
the Programs by a third party, and may not assign or transfer the
Programs or the Agreement to a third party, without the prior
written consent of Oracle.
2.4. VERIFICATION
On Oracle's written request, not more frequently than annually, Client
shall furnish Oracle with a signed certification (a) verifying that the
programs are being used pursuant to the provisions of this Agreement,
including any User limitations; and (b) listing the locations, types and
serial numbers of the Designated Systems on which the Programs are run.
Oracle may, at its expense, audit Client's use of the Programs. Any such
audit shall be conducted during regular business hours at Client's
facilities and shall not unreasonably interfere with Client's business
activities. If an audit reveals that Client has underpaid fees to
Oracle, Client shall be invoiced for such underpaid fees based on the
Price List in effect at the time the audit is completed; if the underpaid
fees exceed 5% of the license fees paid, then Client shall also pay
Oracle's reasonable costs of conducting the audit. Audits shall be
conducted no more than once annually.
III. TECHNICAL SERVICES
3.1. TECHNICAL SUPPORT SERVICES
Technical Support services ordered by Client will be provided under
Oracle's Technical Support policies in effect on the date Technical
Support is ordered, subject to the payment by Client of the applicable
fees. At Client's request, Oracle will provide remote assistance in the
installation of each Supported Program license. Reinstatement of lapsed
Technical Support services is subject to Oracle's Technical Support
reinstatement fees in effect on the date Technical Support is re-ordered.
Limited Production Programs and pre-production releases of Programs may
not be eligible for standard Technical Support services; Client may
obtain Technical Support services for Limited Production Programs on a
time and materials basis.
3.2. CONSULTING AND TRAINING SERVICES
Oracle will provide consulting and training services agreed to by the
parties under the terms of this Agreement. All consulting services shall
be billed on a time and materials basis unless the parties expressly
agree otherwise in writing. Any consulting services acquired from Oracle
shall be bid separately from the Program licenses and Client may acquire
the Program licenses without acquiring any consulting services.
3.3. INCIDENTAL EXPENSES
For any on site services requested by Client, Client shall reimburse
Oracle for actual, reasonable travel and out-of-pocket expenses incurred,
plus an administrative fee of 15% of such amount.
IV. TERM AND TERMINATION
4.1. TERM
Each Program license granted under this Agreement shall remain in effect
perpetually (if not otherwise specified on the Order Form), unless a
license or this Agreement is terminated as provided in Paragraph 4.2 or
4.3 below.
4.2. TERMINATION BY CLIENT
Client may terminate any Program license at any time; however,
termination shall not relieve Client's obligation to pay all fees that
have accrued or that Client has agreed to pay under any Order Form or
other similar ordering document under this Agreement.
4.3. TERMINATION BY ORACLE
Oracle may terminate this Agreement or any license upon written notice if
Client breaches this Agreement and fails to correct the breach within 30
days following written notice specifying the breach.
4.4. EFFECT OF TERMINATION
Termination of this Agreement or any license shall not limit either party
from pursuing any other remedies available to it, including injunctive
relief, nor shall such termination relieve Client's obligation to pay all
fees that have accrued or that Client has agreed to pay under any Order
Form or other similar ordering document under this Agreement. The
parties' rights and obligations under Paragraphs 2.1.B, 2.1.C, 2.1.D, and
2.3.B, and Articles IV, V, VI and VII shall survive termination of this
Agreement.
If Client materially breaches this Agreement, including failing to make
any payments required hereunder when due under any Order Form or other
similar ordering document to this Agreement, then Oracle may declare all
sums due and to become due hereunder immediately due and payable.
4.5. RETURN OF PROGRAMS UPON TERMINATION
If a license granted under this Agreement expires or otherwise
terminates, Client shall (a) cease using the applicable Programs, and (b)
certify to Oracle within one month after expiration or termination that
Client has destroyed or has returned to Oracle the Programs and all
copies. This requirement applies to copies in all forms, partial and
complete, in all types of media and computer memory, and whether or not
modified or merged into other materials. Before returning Programs to
Oracle, Client shall acquire a Return Material Authorization ("RMA")
number from Oracle at (415) 508-1500.
V. INDEMNITY, WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
5.1. INFRINGEMENT INDEMNITY
Oracle will defend and indemnify Client against a claim that Programs
furnished and used within the scope of this Agreement infringe a United
States copyright or patent, provided that: (a) Client notifies Oracle in
writing within 30 days of the claim; (b) Oracle has sole control of the
defense and all related settlement negotiations; and (c) Client provides
Oracle with the assistance, information and authority necessary to
perform Oracle's obligations under this paragraph. Reasonable out-of-
pocket expenses incurred by Client in providing such assistance will be
reimbursed by Oracle.
Oracle shall have no liability for any claim of infringement based on:
(a) use of a superseded or altered release of Programs if the
infringement would have been avoided by the use of a current unaltered
release of the Programs that Oracle provides to Client; or (b) the
combination, operation or use of any Programs furnished under this
Agreement with software, hardware or other materials not furnished by
Oracle if such
<PAGE>
infringement would have been avoided by the use of the Programs without
such software, hardware or other materials.
In the event the Programs are held or are believed by Oracle to infringe,
Oracle shall have the option, at its expense, to (a) modify the Programs
to be noninfringing; (b) obtain for Client a license to continue using
the Programs; or (c) terminate the license for the infringing Programs
and refund the license fees paid for those Programs, prorated over a five
year term from the Commencement Date. This Paragraph 5.1 states Oracle's
entire liability and Client's exclusive remedy for infringement.
5.2. WARRANTIES AND DISCLAIMERS
A. Warranties
i. Program License Warranties
For each Supported Program License, Oracle warrants for a
period of one year from the Commencement Date that the
Programs, unless modified by Client, will perform the
functions described in the Documentation provided by Oracle
when operated on the Designated System. Oracle will
undertake to correct any reported error condition in
accordance with its technical support policies.
Oracle does not warrant that the Programs will meet
Client's requirements, that the Programs will operate in
the combinations which Client may select for use, that the
operation of the Programs will be uninterrupted or error-
free, or that all Program errors will be corrected.
If Client does not obtain Technical Support services, the
Programs are distributed "as is."
ii. Media Warranty
Oracle warrants the tapes, diskettes or other media to be
free of defects in materials and workmanship under normal
use for 90 days from the Commencement Date.
iii. Services Warranty
Oracle warrants that its Technical Support and consulting
services will be performed consistent with generally
accepted industry standards. This warranty shall be valid
for 90 days from performance of service.
B. Limitations on Warranties
i. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
ii. As an accommodation to Client, Oracle may supply Client
with Limited Production Programs or with pre-production
releases of Programs (which may be labeled "Alpha" or
"Beta"). These products are not suitable for production
use. Oracle does not warrant Limited Production Programs,
pre-production releases or computer-based training
products; these products are distributed "as is."
5.3. EXCLUSIVE REMEDIES
For any breach of the warranties contained in Paragraph 5.2 above,
Client's exclusive remedy, and Oracle's entire liability, shall be:
A. For Programs
The correction of Program errors that cause breach of the
warranty, or if Oracle is unable to make the Program operate as
warranted. Client shall be entitled to recover the fees paid to
Oracle for the Program license of Update, as applicable.
B. For Media
The replacement of defective media returned within 90 days of the
Commencement Date.
C. For Services
The reperformance of the services, or if Oracle is unable to
perform the services as warranted, Client shall be entitled to
recover the fees paid to Oracle for the deficient services.
5.4. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, incidental,
special or consequential damages, or damages for loss of profits,
revenue, data or use, incurred by either party or any third party,
whether in an action in contract or tort, even if the other party or any
other person has been advised of the possibility of such damages.
Oracle's liability for damages hereunder shall in no event exceed the
amount of fees paid by Client under this Agreement, and if such damages
result from Client's use of the Program or services, such liability shall
be limited to fees paid for the relevant Program or services giving rise
to the liability, prorated over a five-year term from the Commencement
Date of the applicable license or the date of performance of the
applicable services.
The provisions of this Article V allocate the risks under this Agreement
between Oracle and Client. Oracle's pricing reflects this allocation of
risk and the limitation of liability specified herein.
VI. PAYMENT PROVISIONS
6.1. INVOICING AND PAYMENT
Invoices for payment of license fees shall be payable 30 days from the
Commencement Date. Technical Support fees shall be payable annually in
advance, net 30 days from the renewal date; such fees will be those in
effect at the beginning of the period for which the fees are paid. All
other applicable fees shall be payable 30 days from the invoice date, and
shall be deemed overdue if they remain unpaid thereafter. Any amounts
payable by Client hereunder which remain unpaid after the due date shall
be subject to late penalty fees equal to 1.5% per month from the due date
until such amount is paid. Client agrees to pay applicable media and
shipping charges. Client shall issue a purchase order, or alternative
document acceptable to Oracle, on or before the Effective Date of the
applicable order form.
6.2. TAXES
The fees listed in this Agreement do not include taxes; if Oracle is
required to pay sales, use, property, value-added or other federal, state
or local taxes based on the licenses or services granted in this
Agreement or on Client's use of Programs or services, then such taxes
shall be billed to and paid by Client. This paragraph shall not apply to
taxes based on Oracle's income.
VII. GENERAL TERMS
7.1. NONDISCLOSURE
By virtue of this Agreement, the parties may have access to information
that is confidential to one another ("Confidential Information").
Confidential Information shall be limited to the Programs, the terms and
pricing under this Agreement, and all information clearly identified as
confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no
<PAGE>
act or omission of the other party; (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the other
party either directly or indirectly from the disclosing party; (c) is
lawfully disclosed to the other party by a third party without
restriction on disclosure; or (d) is independently developed by the other
party. Client shall not disclose the results of any benchmark tests of
the Programs to any third party without Oracle's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two
years after termination of this Agreement. The parties agree, that
unless required by law, not to make each other's Confidential Information
available in any form to any third party or to use each other's
Confidential Information for any purpose other than the implementation of
this Agreement. Each party agrees to take all reasonable steps to ensure
that Confidential Information is not disclosed or distributed by its
employees or agents in violation of the terms of this Agreement.
7.2. GOVERNING LAW
This Agreement, and all matters arising out of or relating to this
Agreement, shall be governed by the laws of the State of California, and
shall be deemed to be executed in Redwood City, California.
7.3. JURISDICTION
Any legal action or proceeding relating to this Agreement shall be
instituted in any state or federal court in San Francisco or San Mateo
County, California. Oracle and Client agree to submit to the
jurisdiction of, and agree that venue is proper in, the aforesaid courts
in any such legal action or proceeding.
7.4. NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed in the relevant
Order Form (if to Client) or to the Oracle address on the Order Form (if
to Oracle).
To expedite order processing, Client agrees that Oracle may treat
documents faxed by Client to Oracle as original documents; nevertheless,
either party may require the other to exchange original signed documents.
7.5. SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in
full force.
7.6. WAIVER
The waiver by either party of any default or breach of this Agreement
shall not constitute a waiver of any other or subsequent default or
breach. Except for actions for nonpayment or breach of Oracle's
proprietary rights in the Programs, no action, regardless of form,
arising out of this Agreement may be brought by either party more than
one year after the cause of action has accrued.
7.7. EXPORT ADMINISTRATION
Client agrees to comply fully with all relevant export laws and
regulations of the United States to assure that neither the Programs, nor
any direct product thereof, are exported, directly or indirectly, in
violation of United States law.
7.8. RELATIONSHIP BETWEEN THE PARTIES
Oracle is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture or agency relationship
between the parties. Each party will be solely responsible for payment
of all compensation owed to its employees, as well as employment related
taxes. Each party will maintain appropriate workers' compensation for
its employees.
7.9. ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and
supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document,
usage or custom shall be deemed to amend or modify this Agreement.
It is expressly agreed that all terms of any Client purchase order or
other ordering document shall be superseded by the terms of this
Agreement. This Agreement shall also supersede the terms of any unsigned
license agreement included in any package for Oracle-furnished software,
except terms contained in such unsigned license agreement that limit
usage of the Programs.
The Effective Date of this Agreement shall be MAY 18TH, 1994
Executed by Client:
Authorized Signature: /s/Scott M. Langdoc
-------------------
Name: SCOTT M. LANGDOC
----------------
Title: VICE PRESIDENT, CORP MIS
------------------------
Executed by Oracle Corporation:
Authorized Signature: /s/Robert Hughes
-------------------
Name: ROBERT HUGHES
-------------
Title: SENIOR DIRECTOR, USA REVENUE
----------------------------
<PAGE>
NETWORK USER LICENSE ADDENDUM
BETWEEN
U.S. COMPUTER SERVICES
AND
ORACLE CORPORATION
This Network User License Addendum ("User Addendum") shall be governed by the
terms of the Software License and Services Agreement between U.S. Computer
Services ("Client") and Oracle Corporation ("Oracle") effective May 18, 1994
(the "Agreement") and the terms set forth below.
1. PROGRAMS AND DEFINITIONS
1.1 LICENSED PROGRAMS
A. PROGRAM SETS
"Licensed Programs" means the Programs in the Program Set(s) that
are currently available in production release as of the Effective
Date for use on the corresponding Hardware and as specified in the
License Type.
Program Set: A Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
Oracle7 IBM RS 6000 /AIX
Procedural Option Silicon Graphics/UNIX
Distributed Option PC Compatible/Netware
SQL*Net PC Compatible/Windows
SQL*Net TCP/IP PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: B Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
Pro*C IBM RS 6000 /AIX
Silicon Graphics/UNIX
PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: C Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
SQL*Forms w/Menu IBM RS 6000 /AIX
SQL*ReportWriter Silicon Graphics/UNIX
SQL*Plus PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
<PAGE>
Program Set: D Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
Oracle7 IBM RS 6000 /AIX
Procedural Option Silicon Graphics/UNIX
Distributed Option PC Compatible/Netware
Parallel Server Option PC Compatible/Windows
SQL*Net PC Compatible/Windows NT
SQL*Net TCP/IP Apple Macintosh/OS
Pro*C SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: E Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
SQL*Forms w/Menu IBM RS 6000 /AIX
SQL*ReportWriter Silicon Graphics/UNIX
SQL*Plus PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: F Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
Oracle Data Browser IBM RS 6000 /AIX
Silicon Graphics/UNIX
PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: G Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
CASE/Tools Bundle** IBM RS 6000 /AIX
Silicon Graphics/UNIX
PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: H Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
CASE/Tools Bundle** IBM RS 6000 /AIX
Silicon Graphics/UNIX
PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
<PAGE>
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
Program Set: I Hardware
PROGRAMS (COMPUTER/OPERATING SYSTEM)
-------- ---------------------------
SQL*Forms w/Menu IBM RS 6000 /AIX
SQL*ReportWriter Silicon Graphics/UNIX
SQL*Plus PC Compatible/Netware
PC Compatible/Windows
PC Compatible/Windows NT
Apple Macintosh/OS
SCO 386 UNIX/UNIX
SUN/Solaris
PC Compatible/OS2
**CASE/Tools Bundle may include: CASE Dictionary, CASE Designer,
CASE Generator for SQL*Forms w/Menu, CASE Generator for
SQL*ReportWriter, SQL*Forms w/Menu, SQL*ReportWriter, SQL*Plus,
SQL*Net and SQL*Net TCP/IP.
B. HARDWARE
The "Hardware" shall be defined as up to a combined total of
twenty-five (25) Computers of the Computer/Operating System
combinations listed above that are owned, leased to, or under the
sole control of Client.
During the User Addendum Term, Client may add up to three (3)
Computer/Operating System combinations ("Additional Hardware") to
the Hardware specified above at no additional charge, provided:
(i) the Licensed Programs are available in production release
status on the Additional Hardware at the time Client elects to add
the Additional Hardware; (ii) Client has continuously maintained
Technical Support for the Licensed Programs; and (iii) the
Additional Hardware is in an equal or lesser value Oracle price
tier as the Hardware.
Oracle shall ship to the Client Location a single master copy of
the Licensed Programs for each Additional Hardware added. These
Licensed Programs may only be copied and installed in accordance
with Section 4 of this User Addendum.
Client acknowledges that the Licensed Programs for use on the
Additional Hardware may not be currently available. Client agrees
that it has not relied on the availability of such Licensed
Programs in executing this User Addendum and that the availability
of such Licensed Programs will not affect Client's payment
obligations under Section 2. Oracle is under no obligation to
make available any Programs or Program/Hardware combinations.
C. UPDATES
During the User Addendum Term, for each current Program below
which has been licensed to Client the no charge technical support
update shall be made available to Client on the applicable
Hardware and License Type when and if such Program is made
available in production release; provided Client has continuously
maintained Technical Support services from Oracle for the Licensed
Programs from the Effective Date:
CURRENT PROGRAMS UPDATE
---------------- ------
SQL*Forms w/Menu Oracle Forms
SQL*ReportWriter Oracle Reports
<PAGE>
Pro*C, Oracle Precompilers
Oracle Data Browser Oracle Browser
Client acknowledges that the Programs above may not be available.
Client agrees that it has not relied on the availability of such
Programs in executing this User Addendum and that the availability
of these Programs will not affect Client's payment obligations in
this User Addendum. Oracle is under no obligation to make
available any Programs or Program/Hardware combinations.
1.2 LICENSE TYPE
"Full Use Programs" are defined as unaltered versions of the
Licensed Programs with all functions intact.
"Deployment Programs" are limited to use solely for the purpose of
running applications, and may not be used to create or alter
tables or reports except as necessary for operating the
applications.
1.3 USER
A. INITIAL USERS ON EFFECTIVE DATE
"Named User" is defined as an individual employed by Client who is
authorized by Client to use the Licensed Programs under the terms
of this User Addendum, regardless of whether the individual is
actively using the Licensed Programs at any given time.
"Concurrent User(s)" is defined as each session connected to the
database by individuals employed by Client on the specified
Computer at the same point in time. This includes all batch
processes and on-line users. If multiplexing software or hardware
(e.g. a TP monitor) is used to reduce the number of sessions
directly connected to the database, the number of Concurrent Users
must be measured as the number of distinct inputs to the
multiplexing front-end.
The maximum number of Named Users and Concurrent Users of the
Program Sets on the Hardware shall be as follows:
PROGRAM SET NUMBER OF USERS LICENSE TYPE
----------- --------------- ------------
Program Set A 498 Named Users Full Use
Program Set B 213 Named Users Full Use
Program Set C 357 Named Users Deployment
Program Set D 32 Concurrent Users Full Use
Program Set E 1 Concurrent User Deployment
Program Set F 1 Concurrent User Full Use
Program Set G 1 Named User Full Use
Program Set H 1 Named User Full Use
Program Set I 30 Named Users Full Use
B. ADDITIONAL USERS
During the User Addendum Term, Client shall have the option to
increase the number of Users of the Licensed Programs, in any
combination of Users for the Program Sets below for use on the
relevant Hardware provided, however, that the minimum amount of
license fees per order is equal to or greater than [ * ] per
order.
LICENSE ADDITIONAL FEE PER
PROGRAM SET TYPE USER INCREMENT USER INCREMENT
----------- ---- -------------- --------------
Program Set A Full Use 1 Named User [ * ]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Program Set B Full Use 1 Named User [ * ]
Program Set C Deployment 1 Named User [ * ]
Program Set D Full Use 1 Concurrent User [ * ]
Program Set E Deployment 1 Concurrent User [ * ]
Program Set F Full Use 1 Concurrent User [ * ]
Program Set G Full Use 1 Named User [ * ]
Program Set H Full Use 1 Named User [ * ]
Program Set I Full Use 1 Named User [ * ]
For each order, applicable sales tax will be added to the
Additional Fee. All applicable fees shall be due and payable on
the date that Client notifies Oracle in writing of its exercise of
this option. Upon election, this payment obligation is
noncancelable, and the sum paid is nonrefundable. At the time of
election Client may obtain Technical Support services from Oracle
under Oracle's applicable Technical Support fees and policies in
effect when such services are ordered.
1.4 USER ADDENDUM TERM
The "User Addendum Term" shall be from the Effective Date to May
18, 1996.
1.5 TERRITORY
The "Territory" shall be defined as all Client facilities in the
United States.
1.6 CLIENT
Client represents and warrants that International Billing Services
is a division of Client. With respect to the use the Licensed
Programs in Program Sets D, E, F, and G under this User Addendum,
the term "Client" means International Billing Services. Prior to
using the Licensed Programs in Program Sets D, E, F and G
International Billing Services must agree in writing with Client
to be bound by the terms of this User Addendum and the Agreement.
2. FEES AND PAYMENTS
The license fee for this User Addendum shall be [ * ]. This fee does
not include fees for Technical Support services which are as specified in
Section 6.1. This fee shall be due and payable within thirty (30) days
of the Effective Date specified below. This payment obligation is
noncancelable and the sum paid is nonrefundable. The pricing specified
herein is specific to this User Addendum, and the specified fees may not
be reduced by any existing credits or any other discounts. Except as
otherwise specified herein, licenses for any additional Users, except as
specified under Section 1.3 above, Programs, or Hardware shall be at
terms and fees as determined when the additional licenses are acquired.
Applicable sales tax shall be charged to Client based on the point of
delivery of the master copy and paid under the terms of the Agreement.
Client is responsible for payment of any use or other tax arising from
use of the Licensed Programs in any other location. Client agrees to pay
applicable media and shipping charges.
As specified in the Assignment attached hereto as Exhibit A,
SQL*Integrators has assigned and transferred the Program licenses granted
under the Customer Support Identification (CSI) numbers specified in such
Exhibit to Client. Further, SQL*Integrators has previously sublicensed
to Client the Program licenses granted under the CSI numbers specified in
Exhibit B under its Systems Integrator Agreement with Oracle, dated
November 17, 1992. As of the Effective Date of this User Addendum and in
consideration for the rights granted under this User Addendum, Client
agrees that the Program licenses granted under the specified CSI numbers
acquired under the Assignment Form are hereby terminated, and agrees to
terminate the Sublicense of the Programs granted under the
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
specified CSI numbers identified on Exhibit B which were sublicensed to
Client by SQL*Integrators.
3. LICENSE GRANT
In consideration for the payment specified in Section 2 above, Oracle
grants to Client a non-exclusive, non-transferable license to use the
Licensed Programs on the applicable Hardware in the Territory under the
terms of the Agreement, for up to the maximum number of Users specified
above.
4. DELIVERY AND INSTALLATION
Oracle shall deliver to Client one (1) copy of the software media and
five (5) sets of documentation ("master copy") for each Licensed Program
in the applicable Program Sets to the addresses set forth below (the
"Client Locations").
PROGRAMS SET CLIENT LOCATIONS
------------ ----------------
Program Sets A, B, C, H and I U.S. Computer Services
11020 Sun Center Drive, Rancho
Cordova, CA
95670
Program Sets D, E, F and G International Billing Services
5220 Robert J. Matthews Parkway, El
Dorado Hills, CA 95762
Client shall be responsible for copying the software media and installing
the Licensed Programs. Unless otherwise specified herein, Client shall
acquire no right to copy documentation. The Acceptance Period for each
of the Licensed Programs shall commence on delivery of the master copy of
the Licensed Programs, and all subsequent copies shall be deemed accepted
upon acceptance of the master copy. The number, location, and
identification of Computers in the Territory, the licensed number of
Users on each Computer, and the configuration of the Licensed Programs on
each Computer shall be fixed as of the expiration of the User Addendum
Term. Upon fixing of the Licensed Programs on the Computers, the Program
licenses shall be perpetual subject to the terms of the Agreement.
Thereafter, unless this User Addendum is extended or modified, Program
licenses for use on additional Computers or licenses for additional Users
shall be acquired separately.
5. REPORTING
Beginning one hundred eighty (180) days after the Effective Date, Client
shall notify Oracle semi-annually in writing of: (i) the location,
models, and serial numbers of all Computers on which the Licensed
Programs are installed; (ii) the configuration of the Licensed Programs
on each Computer; and (iii) the number of Users on each Computer. When
reporting, ordering or communicating with Oracle under this User
Addendum, Client shall reference: (a) this User Addendum (include
Effective Date); and (b) the Effective Date of the Agreement.
6. TECHNICAL SUPPORT
6.1 Until May 18, 1997, Client shall receive annual Standard Technical
Support services for all Programs licensed in the U.S. under this
User Addendum, except as otherwise provided herein, for a total
fee of four hundred seventy-eight thousand two hundred twenty-nine
dollars ($478,229) payable in advance in annual installments as
specified below. Thereafter, Client may obtain annual Technical
Support services from Oracle under Oracle's Technical Support fees
and policies in effect when such services are ordered. A
description of Oracle's Technical Support services is listed in
Exhibit C.
<PAGE>
SUPPORT YEAR TECHNICAL SUPPORT FEE
------------ ---------------------
First Year [ * ]
Second Year [ * ]
Third Year [ * ]
6.2 Client shall designate and provide to Oracle the name of one (1)
Client employee per Client Location who shall serve as on-site
technical contacts ("Technical Contacts") to act as the sole
liaisons between Client and Oracle for the Technical Support
services provided under this User Addendum. Client shall also
provide the names of two (2) employees who shall serve as backups
to the Technical Contacts. Client shall notify Oracle whenever
the designated Technical Contacts responsibilities are transferred
to another employee. For any Technical Support updates to the
applicable Licensed Programs provided during the User Addendum
Term, Oracle shall ship to the Client Locations specified above
one (1) Technical Support update copy for each Hardware type.
Client shall be responsible for copying and installing the updates
on the Computers for which the Licensed Programs are licensed.
7. VERIFICATION
Oracle may, at its expense, audit Client's use of the Licensed Programs.
Any such audit shall be conducted during regular business hours at
Client's facilities and shall not interfere unreasonably with Client's
business activities. If an audit reveals that Client has underpaid fees
to Oracle, Client shall be invoiced for such underpaid fees based on the
Price List in effect when the audit is completed; if the underpaid fees
exceed five percent (5%) of the license fees paid, then Client shall also
pay Oracle's reasonable costs of conducting the audit. Audits shall be
conducted no more than once annually.
8. EDUCATION
In consideration of the payment of the fees set forth in Section 2,
Client shall receive ten (10) Oracle standard Training Units which are
valid for one (1) year from the Effective Date of this User Addendum.
Each Training Unit may be used to acquire one (1) day of instruction for
one (1) Client employee at an Oracle Education Center in the U.S.,
exclusive of expenses.
9. CONSULTING
In consideration for the payment of the fees set forth in Section 2,
Client shall receive two (2) days of consulting services to be performed
during the User Addendum Term by a staff level member of Oracle's
Consulting organization. Client shall reimburse Oracle for any
reasonable travel and out-of-pocket expenses.
Client understands that it has the right to acquire and use the Program
licenses acquired hereunder or under the User Addendum without acquiring
any consulting services, and that Client has the right to acquire the
Program licenses and the consulting services separately at the fees
stated in the User Addendum.
10. CONFIDENTIALITY
Client and Oracle agree that the pricing and terms of this User Addendum
shall not be disclosed without the prior written consent of the other
party.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
11. ASSIGNMENT
The rights granted under this User Addendum may not be assigned or
transferred to any third party without the express written consent of
Oracle Corporation.
The Effective Date of this User Addendum is May 18, 1994.
U. S. COMPUTER SERVICES ORACLE CORPORATION
By: /s/Arthur O. Hawkins By: /s/Robert Hughes
-------------------- --------------------
Name: Arthur O. Hawkins Name: Robert Hughes
------------------ ------------------
Title: V.P. & C.F.O. Title: SENIOR DIRECTOR, USA REVENUE
----------------- ----------------------------
<PAGE>
EXHIBIT A
ASSIGNMENT
SQL*Integrators ("Assignor") hereby assigns to U.S. Computer Services
("Assignee") all its right, title and interest to the Program licenses granted
under Customer Support Identification (CSI) numbers 616666, 616668, 521358,
590121, 589669, 589672, 589670, 521739 which were licensed under the Preferred
Systems Integrator Agreement dated November 11, 1992, and any amendments and
addenda thereto (the "Agreement") between Assignor and Oracle Corporation
("Oracle").
Date: 5/19/94 SQL*INTEGRATORS
-------
By: /s/John Zalud
------------------------------------
Name: John Zalud
----------------------------------
Title: President
---------------------------------
ACCEPTANCE OF ASSIGNMENT
Assignee hereby accepts the foregoing assignment and agrees to perform
all duties and obligations to be performed by Assignor with respect to the
applicable Programs under the above-mentioned Agreement to the same extent as if
it had been an original party thereto.
Date: 5/18/94 U.S. COMPUTER SERVICES
-------
By: /s/Arthur C. Hawkins
------------------------------------
Name: Arthur C. Hawkins
----------------------------------
Title: V.P. & C.F.O.
---------------------------------
CERTIFICATION OF NONPOSSESSION
Assignor hereby certifies that upon execution of the above-mentioned
assignment, it will discontinue use of all of the Program licenses granted under
the above CSI numbers, and that all copies of such programs will be erased from
Assignor's computer, whether partial or complete and whether or not merged with
other programs. All documentation and other materials received from Oracle will
be immediately transferred to Assignee.
Date: 5/19/94 SQL*INTEGRATORS
-------
By: /s/John Zalud
------------------------------------
Name: John Zalud
----------------------------------
Title: President
---------------------------------
CONSENT TO ASSIGNMENT
Subject to the terms and conditions of the above-mentioned Assignment,
Acceptance of Assignment and Certification of Nonpossession, Oracle hereby
consents to the foregoing assignment.
Date: 5/25/94 ORACLE CORPORATION
-------
By: /s/Robert Hughes
------------------------------------
Name: Robert Hughes
----------------------------------
Title: Senior Director, USA REVENUE
---------------------------------
<PAGE>
EXHIBIT B
SUBLICENSE PROGRAMS
PROGRAMS SUBLICENSED TO CLIENT BY SQL*INTEGRATORS AND GRANTED UNDER THE
FOLLOWING CUSTOMER SUPPORT IDENTIFICATION (CSI) NUMBERS:
CSIs: 522634, 521539, 513070
<PAGE>
Exhibit C
ORACLE TECHNICAL SUPPORT SERVICES
TECHNICAL SUPPORT FEES
Technical Support fees are calculated based on a percentage of the non-
discounted, then-current license fees for the supported products and such fees
are due and payable in advance of the term of Support.
REINSTATEMENT FEES
In the event Technical Support services lapse or were never originally procured,
a reinstatement fee shall be assessed upon startup of Technical Support.
MINI/MAINFRAME SUPPORT AND FEES
New Oracle Customer Care Packages:
ORACLE BRONZE SUPPORT
Oracle Bronze Support includes:
- - Real Time Telephone Technical Assistance
- 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday
- Problem solving, bug reporting, documentation clarification,
technical guidance
- - Program updates
- Patches and fixes
- General maintenance releases
- Documentation updates
- - Real Time Support System (RTSS) dial-in access
- - Quarterly newsletter
- - Mail server access
- Read/Write access to RTSS via Electronic Mail over the Internet
- Technical Assistance Requests can be opened, closed or updated
- General Communication with Oracle Worldwide Support
- - Oracle Electronic Support--Read/Write access to Oracle's private Support
Forum on CompuServe**
** CLIENTS WILL NEED TO REGISTER WITH COMPUSERVE TO OBTAIN COMPUSERVE ACCESS.
THIS SERVICE WILL BE OFFERED IN THE UNITED STATES ONLY.
ORACLE SILVER SUPPORT
Oracle Silver Support includes Oracle Bronze Support plus the following:
- - Real Time Telephone Technical Assistance
- Toll-free 800 number
- 24 hours a day/7 days a week
- - SupportNotes-TM- - Oracle Book based technical information repository
- - Management reports - Faxed upon request
- - Proactive Alerts
- Contain known problem and problem resolution information
- Proactively faxed as applicable
ORACLE GOLD SUPPORT
Oracle Gold Support (for which a minimum fee applies) includes Oracle Silver
Support plus the following:
- - Priority Processing - Priority Processing over Silver, Bronze, Standard
and Extended support tiers
- - Personal Support Team
- Designated Support Team located within Oracle Worldwide Support
- Monitor Client call/TAR activity
<PAGE>
The following Basic, Standard, and Extended Support packages are expected to be
phased out in calendar year 1995:
BASIC ANNUAL SUPPORT
Basic Annual Support includes:
- - Telephone Technical Assistance
- 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday
- Problem solving, bug reporting, documentation clarification,
technical guidance
- - Program updates and associated documentation
- - Real Time Support System (RTSS) dial-in access
- Log/Update/Review TARs
- Review Bugs
- Access the Support Bulletin Board
- - Quarterly newsletter
STANDARD SUPPORT
Standard Support includes Basic Support plus the following:
- - Telephone Technical Assistance - 24 hours a day/7 days a week
EXTENDED SUPPORT
Extended Support includes Standard Support plus the following:
- - Toll-free 800 number
DESKTOP SUPPORT AND FEES
Each Desktop Program License entitles Clients to thirty (30) days of telephone
installation support. Clients may also purchase Technical Support services for
Desktop Program Licenses.
DESKTOP BASIC ANNUAL SUPPORT
Desktop Basic Annual Support includes:
- - Telephone Technical Assistance
- 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday
- Problem solving, bug reporting, documentation clarification,
technical guidance
- - Program updates and associated documentation
- - Real Time Support System (RTSS) dial-in access
- Log/Update/Review TARs
- Review Bugs
- Access the Support Bulletin Board
- - Quarterly newsletter
DESKTOP UPDATES
Desktop Updates include only:
- - Program updates and associated documentation
INFORMATION CLIENTS NEED WHEN CALLING SUPPORT
Before Support can begin work on any problem, information about the nature and
location of the problem is required. Whenever a call is placed to the hotline,
the following information should be provided:
- - The Customer Support Identification (CSI) number or PC registration
number
- - The area code and phone number listed under the CSI number
- - Operating system and version on which Oracle Programs are installed
- - The Oracle product component and its version number that this call
concerns. Support questions involve product components -- that is,
constituent parts of an Oracle product. For example, with the ORACLE
kernel, Client receives components such as RDBMS, IMP, EXP and
SQL*Loader. SQL*Forms
Subject to Change
<PAGE>
components include IAD (design) and IAP (Runtime).
- - The relevant Program version(s)
- - Any Program error number that appeared
- - Brief description of the problem
- - Severity of the problem. Oracle Worldwide Support classifies problems
according to how they impact the Client's business. See list below for
explanation of Technical Assistance Request (TAR) Severity Levels.
TECHNICAL ASSISTANCE REQUEST (TAR) SEVERITY LEVELS
The chart below lists standard Technical Assistance Request Severity Levels.
Oracle Worldwide Customer Support responds to TARs based on Severity Level.
SEVERITY LEVEL
SEVERITY 1
CRITICAL BUSINESS IMPACT
Customer's work, regardless of the environment or product usage, is stopped or
so severely impacted that the customer cannot reasonably continue to work.
SEVERITY 2
SEVERE BUSINESS IMPACT
Customer's work is continuing (not stopped) however there is a serious impact on
the customer's productivity and/or service levels.
SEVERITY 3
MINOR BUSINESS IMPACT
Customer is in full working mode - there is no work being impeded at the time -
information or solutions are requested by the customer as soon as possible in
order to maintain this condition.
SEVERITY 4
NO BUSINESS IMPACT
Customer is in full working mode - there is no work being impeded at the time -
information is requested but has no impact on the operation of the products.
TARS are logged and tracked in Support's Real Time Support System (RTSS).
Response will be given to the Client by telephone and logged directly into the
RTSS problem-tracking system. The Client may dial-in to RTSS to track the
progress of their TAR at any time.
Support's response may include a written response, patch tape, supplementary
documentation, a temporary means of circumventing the problem pending a new
release, or other correctional aids.
CUSTOMER SUPPORT IDENTIFICATION (CSI) NUMBER
Clients shall receive a CSI Number upon purchasing Oracle Technical Support
services.
The CSI number identifies the Client with respect to the following information:
- - Company Name and Address
- - Product Set and Version
- - Support Level and Duration
- - Operating System
- - Technical Contact Information
Worldwide Customer Support uses the CSI number to identify the Client's Support
contract when a Client calls the Support Hotline or dials-in to RTSS.
Desktop Program Clients are assigned a PC Registration Number with the original
shipment of the Program. The PC Registration entitles the Client to thirty (30)
days of free installation support. CSI Numbers appear as follows:
- - On the packing slip located outside the shipping container
- - On the packing slip located inside the shipping container
- - On the order information/CSI postcard distributed by USA Client Relations
- - In the Welcome Package distributed by Worldwide Customer Support
Subject to Change
<PAGE>
- - On the invoice
- - On the Worldwide Customer Support Welcome Letter
TECHNICAL SUPPORT LIAISON ("TECHNICAL CONTACT")
Clients shall designate one (1) primary and two (2) backup Client employees
("Technical Contacts") to serve as liaisons with Oracle Worldwide Customer
Support. The designated "Technical Contact" is the sole liaison between
technical support and Clients for all product support and shall be based on the
Client site. Client may elect to add Technical Contacts for an additional fee.
To receive uninterrupted Technical Support service, Clients must notify Client
Relations at (415) 506-1500, option 9, whenever Technical Contact
responsibilities are transferred to another individual.
UPDATES
Updates shall mean subsequent releases of the programs which are generally made
available for Program Licenses covered under Oracle technical support at no
additional charge, other than media and handling charges. Updates do not
include any options or future products which Oracle licenses separately.
TERMS OF SUPPORT
Oracle Worldwide Customer Support's technical assistance is limited to licenses
which are fully supported and to problems which are demonstrable in the current
release of the licensed program, running unaltered on the proper hardware
configuration. Current release information is posted on-line in RTSS.
Technical Support for older versions of Oracle products or for non-Oracle
products is subject to additional fees.
TERMINATION
Client may terminate technical support at any time by notifying Oracle in
writing at least thirty (30) days before the desired date of termination.
Technical Support shall be terminated upon receipt of such notice. On
termination, Oracle shall refund the unused portion of technical support fees
paid by the Client for the licenses for the allocable period for which technical
support is terminated.
PHONE NUMBERS AND ADDRESS INFORMATION
CUSTOMER SUPPORT HOTLINE
(FOR TECHNICAL SUPPORT, NON-TECHNICAL SUPPORT, AND SUPPORT SALES INFORMATION)
415-506-1500
TECHNICAL SUPPORT DIAL-IN NUMBER
RTSS Dial-in 415-598-9350
TECHNICAL SUPPORT ADDRESS
Oracle Worldwide Technical Support
500 Oracle Parkway
Box 659313
Redwood Shores, CA 94065
Subject to Change
<PAGE>
EXHIBIT 10.31
<PAGE>
STATEMENT PRODUCTION SERVICES AGREEMENT
between
U. S. COMPUTER SERVICES
2969 PROSPECT PARK DRIVE
RANCHO CORDOVA, CALIFORNIA 95670
and
CINCINNATI BELL INFORMATION SYSTEMS INC.
600 VINE STREET
CINCINNATI, OHIO 45202
U. S. Computer Services (hereinafter called "USCS"), a California corporation,
agrees to provide Cincinnati Bell Information Systems Inc. (hereinafter called
"CBIS") and CBIS agrees to purchase Statement Production Services described in
Attachments A and B (hereinafter collectively called "Services") subject to the
following terms and conditions:
1. TERM OF AGREEMENT
1.1 The term of this Agreement shall be [*]. This agreement shall be
automatically renewed for [*] periods thereafter unless either party
hereto provides to the other written notice of intent not to renew at
least ninety (90) days prior to the expiration date of the original
term or succeeding terms, if any.
1.2 Testing of the systems necessary to provide Statement Production
Services as set forth in Paragraph 5 of this Agreement will occur as
mutually agreed. This will include exercising all aspects of the
services package provided for in this Agreement, and may include live
statement runs. For those instances in which live statement runs
(resulting in statements being mailed by USCS for CBIS) occur prior to
the commencement date of this Agreement, the parties shall be bound by
the terms and conditions of this Agreement as to such statements.
1.3 During the time of the initial conversion of systems on CBIS (at the
time of the signing of this contract) to the USCS bill production
system neither the custom programming charges nor the timetable in
paragraph 1.4
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 1 -
<PAGE>
shall be applicable. USCS and CBIS will mutually agree upon the
initial conversion schedule. CBIS will provide USCS with camera-ready
art and specifications for forms and envelopes along with print files
that match the forms and envelopes.
1.4 USCS and CBIS will mutually agree on statement format, envelope
format, print file format, tape format, Transmit 56 protocol (if
applicable), and statement cutoff dates. Once the above information
is agreed upon, CBIS will provide written notification for any changes
or new CBIS customer according to the following schedule:
Forms Printing [*]
Envelope Printing [*]
Insert ("Stuffer") Printing [*]
Electronic Forms [*]
Print File Format [*]
Tape Format [*]
Transmit 56 Protocol [*]
Statement Cutoff Dates [*]
Inserting Plan Setup [*]
Certain changes may involve custom programming charges which will be
quoted in advance. Changes involving a change in paper and/or
envelope stock which result in unused inventory of such stock are
subject to an unused stock fee as described in Paragraph 7.5.
2. NATURE OF RELATIONSHIP
2.1 CBIS is currently a vendor to the U.S. cellular industry offering
products and services that include MIS packages and bill production.
Under this Agreement, USCS would become a vendor to CBIS for [*].
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
<PAGE>
[*]
2.4 USCS does intend to have a marketing presence in the cellular
industry. This would include but not be limited to participation in
industry trade shows, advertising in industry trade publications,
sales calls, and other direct marketing efforts. [*]
[*]
2.7 USCS and CBIS agree that the further intent in this developing
relationship is to pursue other opportunities in the areas of domestic
and international cellular, international bill production, domestic
BOC bill production, and other areas as might be deemed mutually
appropriate.
3. DELIVERY OF MATERIAL AND DATA FOR PROCESSING
3.1 Delivery of the print file to the USCS statement production facility
will be by high speed data line (Transmit 56). [*] USCS and CBIS shall
each share operational responsibility for this data transmission.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
3.2 CBIS may, at its option, ship or transmit system data before a final
accuracy check has been made. In such case, USCS will hold the cutoff
in abeyance until a written release by facsimile has been issued by
CBIS. Should new system data be necessary, CBIS will be responsible
for all costs associated with delivering or transmitting the new print
file to USCS. Should a release be issued that is later rescinded,
CBIS shall reimburse USCS for work performed at USCS standard rates
including, but not limited to, data transmission, printing, inserting,
postal presorting, and postage. This reimbursement shall be limited
to work performed after the release and before the rescission. Should
CBIS' statements already have been released to the U.S. Postal system
after the rescission is issued, USCS shall incur no liability for
incorrect statements.
4. CBIS DATA
4.1 CBIS will provide USCS a print file of data to be processed by USCS
and used to provide Statement Production Services. This print file
will be in the format mutually agreed to by USCS and CBIS.
4.2 USCS requires [*] for purposes of internal control and postal
presort. This requirement may increase as postal regulations change.
5. STATEMENT PRODUCTION SERVICES
5.1 Attachment A describes the components of USCS Statement Production
Services.
6. NORMAL TIME FOR PROCESSING
[*]
6.2 Should CBIS, after the transmission and release of data, request USCS
to place a hold on statement production, the turnaround time shall be
extended by the time of the hold. Likewise, should a hold on
statement production be necessary due to submission by CBIS of changes
to print file format, tape format, forms, envelopes,
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
inserts, Transmit 56 protocol or statement cutoff dates later than the
limits outlined in Paragraph 1.3, the turnaround time shall be
extended by the time of the hold.
[*]
7. PRICE
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
8. PAYMENT FOR SERVICES
8.1 USCS shall invoice CBIS monthly for Services. Standard payment terms
are [*]. In the event that CBIS does not render full payment within
sixty (60) days of the date payable, USCS may, after notifying CBIS,
cease any and all Services until such account is brought current.
8.2 CBIS agrees to prepay the postage expense for mailing statements.
CBIS agrees to set up a postage deposit account with USCS. [*]
In the event CBIS does not prepay postage, as set forth above, USCS
reserves the right to hold statements until sufficient funds are
received.
8.3 In the event of an increase in postage rates, the postage expense for
mailing statements by USCS shall be increased by the amount of USCS'
actual cost of such increase.
[*]
8.5 CBIS will pay directly, or reimburse USCS for, all taxes and charges
imposed on any interest in or use of any Services, supply, or upon
this Agreement, excluding, however, all taxes on or measured by USCS'
income.
8.6 If CBIS fails to pay any charges when due and payable, CBIS agrees
that CBIS will pay a late payment service charge of [*] per month, but
not in excess of the lawful maximum, on the past due balance.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
9. STANDARDS OF WORK
9.1 USCS warrants that the performance of work and Services provided to
CBIS under this Agreement shall be in conformance with the
requirements of this Agreement and with industry standards.
10. PROPRIETARY INFORMATION AND DISCLOSURE
10.1 USCS agrees that all information disclosed by CBIS during performance
of this Agreement shall be considered proprietary, be held in
confidence and used only in performance of this Agreement. No
information provided by CBIS under this Agreement shall be duplicated
or furnished to another party without prior written consent of CBIS.
USCS will exercise the same standard or care to protect CBIS'
proprietary data as is used to protect its own proprietary data
from unauthorized disclosure.
10.2 In a like manner, CBIS understands the proprietary nature of the
system designed and developed solely by USCS, and CBIS will exercise
similar care to prevent unauthorized disclosure of any information
that could be injurious to the business operations and welfare of
USCS.
10.3 The obligations in this Section 10 shall survive the termination of
this Agreement for a five (5) year period.
11. LIMITATION OF REMEDY
11.1 USCS' liability for loss of any CBIS data or materials shall be
limited to the replacement or regeneration of the lost items by the
method or means deemed most reasonable by USCS.
11.2 Neither USCS nor CBIS shall be considered in default due to any
failure in performance of this Agreement, in accordance with its
terms, should such failure arise out of causes beyond its control
and without its fault or negligence.
11.3 In the event of an error or omission, whether human or mechanical, on
the part of USCS or its employees, USCS may elect to reprocess the
work at no extra cost to CBIS to correct said error or omission. USCS
shall indemnify and hold CBIS harmless from and against any claims
initiated against CBIS by third parties arising from the procedural
errors or omissions by USCS. USCS' liability to CBIS for any losses
or damages, direct or indirect, arising out of this Agreement shall
not exceed the total
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<PAGE>
amount billed or billable to CBIS for the performance which gave rise
to the loss or damage. USCS shall not be liable for any special or
consequential damages in any event.
12. INSPECTIONS
12.1 It is understood that CBIS may inspect all work being performed under
this Agreement to the extent practical at all reasonable times and
places. However, it is also understood that such inspections by CBIS
shall not be performed in any way that shall unduly delay the work
being performed. Reasonable facilities and assistance shall be
provided for CBIS' inspection if any inspection is made by CBIS on the
premises of USCS. Such facilities and assistance shall be provided
without extra charge. However, should CBIS perform inspection at a
place other than the premises of USCS, it shall be at the expense of
CBIS.
13. MISCELLANEOUS
13.1 ATTORNEYS' FEES. The parties agree that in the event it is necessary
to employ attorneys to enforce the terms of this Agreement, the
prevailing party in any lawsuit shall be entitled to an award of
reasonable attorneys' fees and court costs.
13.2 ASSIGNMENT. This Agreement may not be assigned by either party
without prior written consent of the other party. This agreement
shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors and permitted assigns.
13.3 AMENDMENT. This Agreement may be amended only by an instrument in
writing, executed by CBIS and USCS.
13.4 GOVERNING LAW. This Agreement will be governed in all respects by the
laws of the State of California.
13.5 ENTIRE AGREEMENT. This Agreement and Attachments represent the entire
agreement between the parties and supersede and replace all prior oral
and written proposals, communications, and agreements with regard to
the subject matter hereof between CBIS and USCS.
13.6 PLANT RULES AND SECURITY REQUIREMENTS. The employees and agents of
each party shall, while on the premises of the other, comply with all
plant rules and regulations in effect at such premises, including
security requirements.
13.7 PUBLICITY. The parties shall not, without prior written
- 9 -
<PAGE>
permission from the other party, issue or release for publication any
articles or advertising or publicity matter relating to the work
performed hereunder or the existence of this Agreement.
13.8 INFRINGEMENT. The following terms apply to any infringement, or
claims of infringement, of any patent, trademark, copyright, trade
secret or other proprietary interest based on the manufacture, normal
use or sale of any material, equipment, programs or services furnished
by USCS to CBIS hereunder or in contemplation hereof. USCS shall
indemnify CBIS and its subsidiaries, jointly and severally, for any
loss, damage, expense or liability that may result by reason of any
such infringement. USCS shall defend or settle, at USCS' own expense,
any action or suit for which USCS is responsible hereunder. CBIS
shall notify USCS promptly of any claim of infringement for which USCS
is responsible, and shall cooperate with USCS in every reasonable way
to facilitate the defense of any such claim.
13.9 LIABILITY. Neither USCS nor its subcontractors nor the employees or
agents of any of them, shall be deemed to be employees or agents of
CBIS, it being understood that USCS is an independent contractor for
all purposes and at all times; and USCS shall be solely responsible
for the withholding or payment of all federal, state and local
personal income taxes, social security, unemployment and sickness
disability insurance and other payroll taxes with respect to its
employees, including contributions from them when and as required
by law.
[*]
13.11 SECTION HEADINGS. The headings of the several Sections are inserted
for convenience of reference only and are not intended to be part of,
or to affect the meaning or interpretation of, this Agreement.
13.12 WAIVER. No provision of this Agreement shall be deemed waived,
amended, or modified by either party, unless such waiver, amendment or
modification be in writing and signed by the party against whom it is
sought to enforce the waiver, amendment or modification.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
13.13 SEVERABILITY. If any provision, or portion thereof of this
Agreement, is deemed to be invalid under any applicable statute or
rule of law, it is only to that extent to be deemed omitted.
14. TERMINATION
14.1 BREACH. Either party shall have the right to terminate the Agreement
if the other fails to substantially comply with any of its material
obligations under the Agreement. Should either party elect to
exercise this right to terminate for breach, it must be done in
writing specifically setting forth the claimed breach. The other
party shall then have thirty (30) days from receipt of notification to
remedy the breach. If such party corrects the breach within this
period, then the Agreement shall not be terminated pursuant to this
provision. Should such party fail to correct the breach within the
period, then the party claiming breach shall have the right to
terminate the Agreement forthwith. In the event that this Agreement
is terminated due to a breach by USCS, the provisions of paragraph 2.5
shall survive such termination for a period of three (3) years.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
9th day of October, 1990.
CINCINNATI BELL INFORMATION
SYSTEMS, INC. U.S. COMPUTER SERVICES
By: /s/ Rudolph J. Frank By: /s/ Raymond W. Matteson
--------------------- ------------------------
Rudolph J. Frank Raymond W. Matteson
President Vice President
Communications Systems Group Business Development
Date: October 9, 1990 Date: October 9, 1990
---------------------- -------------------------
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<PAGE>
ATTACHMENT A
SPECIFICATIONS FOR FORMS AND ENVELOPES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
ATTACHMENT A
DESCRIPTION OF SERVICES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
ATTACHMENT A
DESCRIPTION OF SERVICES CON'T
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 14 -
<PAGE>
USCS/International Billing Services RATE SHEET CBIS
ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
USCS/International Billing Services RATE SHEET CBIS
ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 2
<PAGE>
USCS/International Billing Services RATE SHEET CBIS
ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
USCS/International Billing Services RATE SHEET CBIS
ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
ATTACHMENT C
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-14-
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 1
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 2
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 3
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 4
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 5
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 6
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 7
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 8
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 9
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 10
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 12
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 13
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 14
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 15
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 16
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 17
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 18
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 19
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 20
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 21
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 22
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 23
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 24
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 1
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 2
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 3
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 4
<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
INTERNATIONAL BILLING SERVICES CBIS REMINDERS
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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<PAGE>
EXHIBIT 10-31E
ATTACHMENT "D"
TO
STATEMENT PRODUCTION SERVICES AGREEMENT
1. Section 6.1 is amended by inserting the words, "... for each category
comprised of regular statements and reminder or treatment notices." at
the end of the first sentence thereof.
2. Section 6.1 is amended by adding the following at the end thereof:
[*]
3. Section 7.3 is amended by adding the following:
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
4. Section 13.4 is amended by the following:
"The parties agree that the forum for any suit or action under this
Agreement shall be the State or Federal Courts sitting in Cincinnati,
Ohio."
CINCINNATI BELL INFORMATION U.S. COMPUTER SERVICES
SYSTEMS INC.
/s/ Rudolph J. Frank /s/ Raymond W. Matteson
---------------------------- -----------------------
Rudolph J. Frank Raymond W. Matteson
President Vice President
Communications Systems Group Business Development
Oct. 9, 1990 October 9, 1990
---------------------------- -------------------------
Date Date
<PAGE>
FIRST ADDENDUM
TO
STATEMENT PRODUCTION SERVICES AGREEMENT
INTRODUCTION: On October 9, 1990, U.S. COMPUTER SERVICES (USCS) and CINCINNATI
BELL INFORMATION SERVICES (CBIS) entered into a Statement Production Services
Agreement (the "Agreement"). Subsequent to entering into the Agreement, CBIS
requested USCS to change certain forms and envelope pricing under the Agreement.
USCS was willing to make such changes based on minimum quantities and provided
that CBIS made certain commitments. This Addendum is the result of negotiations
on these issues.
Wherever language contained in this Addendum conflicts with the terms of the
Agreement, the language contained in this First Addendum shall control.
The parties agree as follows:
1. DEFINITIONS AND SPECIFICATIONS. The "Replacement Attachment A" attached to
this Addendum replaces Attachment A of the Agreement. The specifications
set forth in Replacement Attachment A meet or exceed in all instances the
specifications in the CBIS Request for Proposal (RFP) dated October 25,
1990.
2. TERMINATION OF PRIOR FORMS/ENVELOPE PRICING. For the term of this
Addendum, the parties hereby delete the prices in Items II, IV, V, VI and
XIII in Attachment B of the Agreement and Paragraph 7.5 of the Agreement.
3. NEW FORMS/ENVELOPE PRICING. Forms and envelope prices will be:
a. FORMS: [*] per thousand;[*]
b. SEND ENVELOPE: [*] per thousand in minimum Gang Run of [*] includes
2 color preprinting
c. RETURN ENVELOPE: [*] per thousand in minimum Gang Run of [*]
includes 1 color preprinting
d. 9 X 12 FLAT ENVELOPE: [*] per thousand in minimum Gang Run of
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 1 -
<PAGE>
e. ENVELOPE MODIFICATIONS:
Additional colors Add [*] per color per thousand; Minimum Job Run
of [*] or [*] Set-Up Fee; total colors per envelope
limited to 3 outside and 1 inside
Inside Privacy Add [*] per thousand; Minimum Job Run of [*] or
[*] Set-Up Fee
Glassine Add [*] per thousand; Minimum Job Run of [*] or
[*] Set-up Fee
Move window [*] charge per thousand; Minimum Job Run of [*] or
[*] Set-Up Fee. All window locations specified
by CBIS must meet U.S. Postal Service requirements
and USCS' manufacturing and inserting
requirements.
Peel & Seal flap Add [*] per thousand; available for 9 X 12 Flat
Envelope only
"Gang Run" means press run(s) which are (a) ordered at the same time and (b)
involve forms or envelopes of the same size, paper weight, paper quality, and
method of construction.
"Job Run" means a portion of a Gang Run in which all print parameters and window
parameters are identical, including (but not limited to) color, one- or two-side
printing, print location(s) on the envelope, window placement, window numbers,
window material etc.
4. INVENTORY MANAGEMENT FEE. USCS will charge and CBIS agrees to pay an
inventory management fee of [*] per one thousand Forms/Envelopes. Said fee
shall be assessed based on the number of Forms/Envelopes purchased by CBIS
from USCS or handled by USCS but provided from other vendors of CBIS
customers' choice. The foregoing notwithstanding, the parties agree that
USCS shall waive such fee for forms and envelopes during the interim
conversion period until [*] for forms and envelopes existing
in CBIS inventory as of [*] (new orders for forms and envelopes
placed after
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
<PAGE>
[*] during the interim conversion period shall be subject to this inventory
management fee). The inventory management fee shall be invoiced when
forms/envelopes are ordered from USCS or received by USCS from other
vendors, as relevant.
5. FORMS/ENVELOPES PURCHASING PROCESS.
a. In order to be eligible for the prices in Paragraph 2, CBIS must place
firm orders once for each calendar quarter in the following minimum
amounts:
(1) FORMS: [*] million per quarter
(2) SEND ENVELOPES: Minimum Gang Run of [*] per quarter
(3) RETURN ENVELOPE: Minimum Gang Run of [*] per quarter
(4) 9 X 12 FLAT ENVELOPE: Minimum Gang Run of [*] per quarter
b. CBIS must place firm orders once each quarter conforming to the
following schedule:
Order Date For forms/envelopes to be used in--
---------- -----------------------------------
December 1 January, February, March
March 1 April, May, June
June 1 July, August, September
September 1 October, November, December
To the extent that forms/envelopes are changed or established for new
CBIS customers, the written notification to USCS must also comply with
the time frames in Paragraph 1.4 of the Agreement.
c. USCS waives the minimum purchase requirements of Paragraph 5a until
[*].
d. CBIS agrees that orders for systems with less than [*] subscriber
statements per month shall be placed once per year rather than once
per quarter. Yearly orders may be placed on any of the Order Dates
referenced in b above.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 3 -
<PAGE>
e. Quarterly and yearly orders will be invoiced by USCS to CBIS
approximately ten to fifteen days after the order is received.
Payment in full is due within 30 days of the invoice date.
f. To the extent that any CBIS Customer needs additional forms or
envelopes outside of the quarterly or yearly amounts ordered by CBIS
for whatever reason (including, but not limited to, those needed
because of new systems converted to USCS, changes in design or
under-ordering by CBIS), then such additional forms and envelopes
shall be supplied by USCS to CBIS on a mutually agreed as-quoted
basis.
g. If changes in design by CBIS or CBIS customers after a quarterly or
yearly order has been placed results in unusable forms or envelopes in
inventory or on order, CBIS shall not be entitled to any credit or any
refund of the order or the Inventory Management Fee.
6. PRICING IF MINIMUMS NOT MET. [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 4 -
<PAGE>
[*]
9. CBIS EXCLUSIVITY COMMITMENT; USCS RIGHT TO BID ON CUSTOMER FORMS/ENVELOPES.
CBIS agrees that it will not, during the term of the Agreement, directly or
indirectly solicit or purchase from another entity any forms or envelopes
used for its customers. The parties understand that CBIS's customers may
solicit bids from outside vendors for forms and envelopes and CBIS agrees,
in good faith and to the extent possible, to urge such customers to allow
USCS to take part in the bidding process, either through CBIS under this
Agreement or on its own behalf.
10. STORAGE FEES FOR 3RD PARTY FORMS/ENVELOPES. The Parties agree that,
Paragraph 2.3 of the Agreement notwithstanding, CBIS customers may have
forms and/or envelopes produced by a party or parties other than USCS
(hereinafter referred to as "Third Party Forms/Envelopes"), provided that
such Third Party Forms/Envelopes meet the specifications set forth in
Replacement Attachment A and the terms, conditions and specifications in
the CBIS RFP dated October 25, 1990, and further provided that CBIS pays to
USCS the Inventory Management fee as set forth in Paragraph 4 of this
Addendum.
[*]
13. MISCELLANEOUS. Paragraph 3 of Attachment D of the Agreement is hereby
deleted.
14. TERM OF ADDENDUM. Paragraphs 4, 7, 9 and 12 of this Addendum shall remain
in effect for the term of the Agreement. The term of the remainder of this
Addendum shall be from the date of its execution until October 9, 1993. At
that time, forms
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
<PAGE>
and envelope prices, terms, and specifications shall be subject to good
faith renegotiation. It is the intent of the parties to have forms and
envelopes production included in the Agreement during the entire term of
the Agreement.
Except as modified herein, all other terms and conditions of the Agreement shall
remain in full force and effect unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this First Addendum as of
the ___________ day of _________________________, 1991.
CINCINNATI BELL INFORMATION U.S. COMPUTER SERVICES
SYSTEMS, INC.
By: /s/ D R Cornely By: /s/ Raymond W. Matteson
- --------------------------------- ----------------------------
Daniel R. Cornely Raymond W. Matteson
- --------------------------------- ----------------------------
(typed name) (typed name)
7/17/91 7/17/91
- --------------------------------- ----------------------------
(date) (date)
- 6 -
<PAGE>
REPLACEMENT ATTACHMENT A
SPECIFICATION FOR FORMS AND ENVELOPES
A. "FORMS" means forms for CBIS customer billing statements meeting the
following specifications
- ------------------------------------------------------------------------------
MINIMUM SATISFACTORY RANGE MAXIMUM
Reject Lower Upper Reject
Test Names Below: Limit Target Limit Above:
- ------------------------------------------------------------------------------
WEIGHT 25X38/500 [*]
CALIPER
MULLEN
TEAR MD
TEAR CD
SMOOTHNESS FS
SMOOTHNESS WS
STIFFNESS (TABOR)MD
STIFFNESS (TABOR)CD
BRIGHTNESS FS
OPACITY
FOTOSIZE FS
POROSITY
ASH
MOISTURE
WAX PICK FS
CURL
HOT PH
ABRASION WS
FLUORESCENCE
STARCH LB/TON
DIRT
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 1 of 5
<PAGE>
A. "FORMS" (continued)
FINISHED FORM CHARACTERISTICS VALUE OR SPECIFICATION
[*]
1. INK
a. COLOR [*]
b. TYPE [*]
i. WEB FED PRESS [*]
2. FLATNESS (2 REAMS) [*]
3. PERFORATION
a. LOCATION [*]
b. TYPE [*]
4. OFF-SET IMAGE PLACEMENT [*]
5. SHEET SIZE 8 1/2 X 11 [*]
6. PACKAGING
a. 500 SHEETS/REAM PACKAGE
b. CHIPBOARD TOP AND BOTTOM OF PACKAGE
c. LOOSE SHRINK WRAP (NO HEAT) POLYETHYLENE - FULLY SEALED
d. 2500 (5 REAMS) PER CARTON TAPED FLAP
7. CURL (IN REAM) [*]
8. PERFORATION LOCATION [*]
SPECIFICATIONS
9. COLOR VOLUME IN LASER PRINT AREA
[*]
B. "SEND ENVELOPE" means an envelope meeting the following specifications:
SIZE [*]
SEAM [*]
PAPER WEIGHT [*]
PAPER TYPE [*]
PRINT [*]
FLAP [*]
WINDOW [*]
CONSTRUCTION [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 2 of 5
<PAGE>
C. "RETURN ENVELOPE" means an envelope meeting the following specifications:
Size [*]
Seam [*]
Paper Weight [*]
Paper Type [*]
Print [*]
Flap [*]
Window [*]
Construction [*]
D. "9 X 12 FLAT ENVELOPE" means an envelope meeting the following
specifications:
Size [*]
Seam [*]
Paper Weight [*]
Print [*]
Flap [*]
Window [*]
Construction [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 3 of 5
<PAGE>
REPLACEMENT ATTACHMENT A
DESCRIPTION OF SERVICES
BILLING STATEMENT PRODUCTION SERVICES
USCS will provide Customer the following services for prices set
forth in ATTACHMENT "B":
[*]
DETAIL OF PRODUCTS FOR ATTACHMENT "B"
I. STATEMENT PRINTING PER IMAGE
Printing per image. Image is defined as one print cycle where
printing may take place on one side of one sheet of paper no greater
than 8.5 X 11 in size. Duplex printing, in which an image may be
placed on both sides of a piece of paper, thereby using two print
cycles, is counted as two (2) images. The imaging price includes
inserting the statement and where appropriate collating and folding.
II. [deleted]
III. ELECTRONIC FORM
Forms created and printed by laser. Restrictions apply to usage if
form density slows the print process.
IV. [deleted]
V. [deleted]
VI. [deleted]
VII. PRE SORTING, PER MAIL PIECE
Optimization of each mail piece for maximum postal discount; the level
discount is based on the address accuracy and density.
VIII. INSERTING, PER PIECE
Placement of each piece of paper, with the exception of sheet-fed
statement pages, into the sending envelope.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 4 of 5
<PAGE>
IX. MAILING, PER PIECE
Preparation of each mail piece for placement into the US Postal
Service mail stream.
X. PRIORITY HANDLING, PER PIECE
Per piece premium for accelerated average 12 hour turnaround (only
available on statements averaging three or less pages).
XI. MICROFICHE
14 X 18 frame Microfiche at 48 X magnification.
XII. SPECIAL HANDLING
One-time fees applicable to special processing required by individual
situations. See "RATE SHEET - CBIS" for descriptions and pricing.
XIII. [deleted]
Page 5 of 5
<PAGE>
[LETTERHEAD]
October 5, 1993
Mr. Tom Clear
Vice President - Wireless Product Management
CINCINNATI BELL INFORMATION SYSTEMS, INC.
851 Trafalgar Court
Maitland, FL 32751
Dear Mr. Shouse:
Re: AMENDMENT TO FORMS AND ENVELOPES ADDENDUM
On July 17, 1991, Cincinnati Bell Information Systems, Inc. ("CBIS") and U.S.
Computer Services ("USCS") entered into that First Addendum (the "Forms and
Envelopes Addendum") to the Statement Production Services Agreement dated
October 1, 1990 (the "Agreement"). Under Paragraph 14 of the Forms and
Envelopes Addendum, [*] When countersigned by CBIS, this letter will be an
amendment to the Forms and Envelopes Addendum. The terms of the amendment are
as follows:
1. Paragraph 14 of the Forms and Envelopes Addendum is deleted in its entirety
and replaced with the following:
"14. TERM OF ADDENDUM. The First Addendum shall remain in effect for the
term of the Agreement. [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Mr. Tom Clear
October 5, 1993
Page 2
2. Paragraph 3a of the Forms and Envelopes Addendum is deleted in its entirety
and replaced with the following:
"3.a. Forms: [*]
3. Subparagraph entitled "Inside Privacy" of Paragraph 3e (Envelope
modifications) of the Forms and Envelopes Addendum is deleted and replaced
with the following:
"3.e. Envelope modifications
...
Inside Privacy [*]
4. Except as modified above, all other terms and conditions of the Forms and
Envelopes Addendum remain in force and effect unchanged.
If the above conforms with your understanding of our agreement, please execute
in the space provided below on both duplicate originals of this letter, retain
one original for CBIS' records and return the other duplicate original to USCS
for our records.
Sincerely,
U.S. COMPUTER SERVICES
/s/ Sally Shuler
Sally Shuler
Vice President - Major Accounts
MGJ/jhs
AGREED AND ACCEPTED this 29 day of November, 1993.
Cincinnati Bell Information Systems, Inc.
By: Thomas H. Clear
------------------
Mr. Tom Clear
Vice President - Wireless Product Management
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
EXHIBIT 10.32
<PAGE>
Agreement No. 8003
TANDEM ALLIANCE AGREEMENT
THIS AGREEMENT is made between TANDEM COMPUTERS INCORPORATED, a Delaware
corporation having offices at 19333 Vallco Parkway, Cupertino, California 95014
("Tandem"), and CableData, Inc., a California corporation and a wholly owned
subsidiary of U.S. Computer Services, having offices at 2969 Prospect Park
Drive, Rancho Cordova, California 95670, on behalf of itself and its parent,
affiliates and subsidiaries ("Alliance Member"). Tandem appoints Alliance Member
as a VAR and Software House, on a non-exclusive basis, in accordance with the
terms and conditions of this agreement which consists of this signature page and
the following initialed Schedules and Exhibits, each of which is incorporated
herein by this reference ("Agreement").
SCHEDULES/EXHIBITS:
TA-A GENERAL TERMS AND CONDITIONS
A1 Export Restricted Countries
TA-B VAR TERMS AND CONDITIONS
B1 Application Package Description
B2 Discounts by Product
B3 Mandatory Software Sublicense Terms
TA-C PROFESSIONAL SERVICES TERMS AND CONDITIONS
TA-E SOFTWARE HOUSE TERMS AND CONDITIONS
E1 Prospect Form
E2 Notification of Software House Fee Eligibility
E3 Software House Fee Payment Approval
E4 Application Package Description
TA-F SOFTWARE SERVICE PLANS
TA-G PRODUCT RENTAL AGREEMENT
THE PARTIES HAVE READ THE ENTIRE AGREEMENT, UNDERSTAND THAT THE GENERAL TERMS
AND CONDITIONS APPLY FULLY TO ALL SCHEDULES AND EXHIBITS, AND HAVE THE LEGAL AND
OTHER AUTHORITY TO EXECUTE AND PERFORM HEREUNDER.
CABLEDATA, INC. "Alliance Member" TANDEM COMPUTERS INCORPORATED "Tandem"
By: James C. Castle By: John J. Sims
-------------------------- --------------------------------
Name: JAMES C. CASTLE Name: JOHN J. SIMS
------------------------ ------------------------------
Title: CHAIRMAN & ceo Title: VICE PRESIDENT
----------------------- -----------------------------
Date: Effective Date: January 1, 1995
------------------------ --------------------
<PAGE>
Agreement # _________
SCHEDULE TA-A
GENERAL TERMS AND CONDITIONS
1. DEFINITIONS. "CUSTOMER" means a current or prospective end-user of the
Products, excluding any entity that directly or indirectly owns or controls or
is owned or controlled by Alliance Member. "HARDWARE" means hardware products
sold by Tandem. "PRODUCTS" mean Hardware and Software. "INSOLVENT" means that a
party (i) ceases to conduct business in the normal course, (ii) becomes
insolvent, (iii) enters into suspension of payments, moratorium, reorganization
or bankruptcy, (iv) makes a general assignment for the benefit of creditors, (v)
admits in writing its inability to pay debts as they mature, (vi) suffers or
permits the appointment of a receiver for its business or assets, or (vii)
avails itself of or becomes subject to any other judicial or administrative
proceeding that relates to insolvency or protection of creditors' rights.
"SERVICES" mean any of the Integration Services described in Schedule TA-D or
the Custom Services described in Schedule TA-F performed by Alliance Member for
a Customer. "SOFTWARE" means software, in object code only, including
documentation and related materials, furnished by Tandem under this Agreement,
excluding software provided with a shrink-wrap license. As to a shrink wrap
license, Alliance Member agrees to be bound by the terms set forth therein,
unless it notifies Tandem of any objections and returns the applicable software
to Tandem within 10 days of receipt thereof. "SOFTWARE PACKAGE" means any (i)
Application Package described in Schedules TA-B or TA-E, (ii) Integrator
Software Product described in Schedule TA-D or (iii) Custom or Utilities Package
described in Schedule TA-F, which is developed and/or licensed by Alliance
Member for use with Products. "TANDEM" means Tandem Computers Incorporated and
any wholly owned Tandem subsidiary, except U-B Networks.
2. TERM AND TERMINATION. The Agreement is effective as of January 1, 1995
("Effective Date") and will continue for an initial term of five (5) years.
Any Schedules entered into as part of this Agreement will be coterminous with it
regardless of when signed. A party may terminate this Agreement or any Schedule
upon notice to the other party if the other party (i) fails to perform any of
its obligations under this Agreement for a period of 30 days after receipt of
notice of such failure, (ii) undergoes a direct or indirect change in ownership
or control existing on the Effective Date and the notified party determines in
its sole reasonable discretion that the change may adversely affect its on-going
business or (iii) becomes Insolvent.
3. COOPERATION AND IMPLEMENTATION. The parties agree to cooperate in marketing
efforts directed towards Customers. Neither party will knowingly contradict the
other's technical recommendations to Customers without its prior consent. Upon
request, a party will sign any local agreements and take other steps required
to implement this Agreement and comply with local law.
4. ALLIANCE MEMBER OBLIGATIONS. Alliance Member will maintain each Software
Package to ensure proper operation and performance at the then-current revision
level of Tandem's applicable operating system, including revisions resulting
from mandatory field change orders for Hardware and periodic updates or releases
for Software. Alliance Member will use reasonable efforts to actively market
its Software Packages and Services to Customers for use with Products and will
install and support Software Packages and provide Services in accordance with
its agreements with Customers. Alliance Member will purchase, lease or
continuously have access to one or more Tandem computer systems operating at the
then-current revision level of the applicable Tandem operating system
("Development System") to be used exclusively by Alliance Member in the country
ordered solely in accordance with Tandem's then-current Development System
Policy & Guidelines (the "Development System Guidelines").
5. RELATIONSHIP OF PARTIES. The parties are independent contractors and no
other relationship is intended. Neither party shall act in a manner which
expresses or implies a relationship other than that of independent contractor.
This Agreement is not exclusive in any respect and either party may enter into
similar or other agreements with third parties.
6. NO ENDORSEMENT. NEITHER PARTY WILL HAVE ANY RIGHT OR AUTHORITY TO ACT ON
BEHALF OF THE OTHER PARTY NOR WILL EITHER PARTY REPRESENT THAT IT HAS SUCH RIGHT
OR AUTHORITY OR THAT THE OTHER PARTY HAS ENDORSED, GUARANTEED OR WARRANTED ITS
PRODUCTS, SOFTWARE PACKAGES OR SERVICES.
7. LIMITATION ON LIABILITY. Except for payment obligations, a party will not
be liable for any failure or delay in performing an obligation that is due to
causes beyond its reasonable control, so long as the party gives prompt notice
to the other party and makes all reasonable efforts to perform. IN NO EVENT
WILL A PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED
TO, LOST PROFIT OR DATA.
8. CONFIDENTIAL INFORMATION.
a. Protection of confidential information.
Should either party disclose any of its information for any purpose
in connection with this Agreement, the party receiving the information
shall maintain the information in confidence, shall use at least the
same degree of care to maintain the secrecy of the information as it
uses in maintaining the secrecy of its own proprietary, confidential
and trade secret information, shall always use at least a reasonable
degree of care in maintaining the secrecy of the information, shall
use the information only for the purpose of performing its obligations
under this Agreement unless hereafter agreed in writing by the other
party. Neither party shall disclose any such information to any
person except those of its employees having a need to know in order to
accomplish the sole purpose stated above, and shall require each
employee, before he or she receives direct or indirect access to the
information, to acknowledge the confidential, proprietary and trade
secret nature of the information and to agree to be bound by this
Section 8. Each party shall deliver to the other party, in accordance
with any request from the other party, all copies, notes, packages,
diagrams, computer memory media and all other materials containing any
portion of the other party's confidential information.
Schedule TA-A-1
<PAGE>
b. Limitation on obligations.
Neither party shall have an obligation with respect to any portion of
such information which (i) was known to it prior to receipt from the
other party, (ii) is lawfully obtained by either party from a third
party under no obligation of confidentiality, (iii) is or becomes
publicly available other than as a result of any act or failure to act
of either party or (iv) is independently developed by the receiving
party.
c. Included within confidential information.
For purposes of this Section 8, confidential information made
available to Tandem by Alliance Member may include, without
limitation, the Application Packages and all documentation and code
relating thereto, and confidential information made available to
Alliance Member by Tandem may include without limitation all
information relating to the Products. Tandem reserves all proprietary
rights in and to all designs, inventions, patents, know-how,
techniques, and engineering details and other data pertaining to the
Products. Alliance Member reserves as proprietary all rights in and
to all copyrights, designs, inventions, patents, know-how, techniques,
and engineering details and other data pertaining to the Application
Packages.
9. INDEMNIFICATION. Tandem will, with respect to Products, and Alliance Member
will, with respect to Software Packages and Services, defend or settle any
claim against the other party (i) resulting from the performance or use of
Products, Software Packages or Services, and any information the indemnifying
party supplies about the same, or (ii) that a Product, Software Package or
Service infringes any patent, utility model, industrial design, copyright, trade
secret, mask work, trademark or servicemark, provided the other party (a)
promptly notifies the indemnifying party in writing of the claim, and (b)
cooperates with the indemnifying party in and grants it sole authority to
control the defense and any related settlement. The indemnifying party will pay
the costs of such defense and settlement and any costs and damages finally
awarded against the other party. With respect to Products sold or licensed by
Tandem to Alliance Member, if a claim of infringement is made or appears likely
to be made, Tandem may procure the right for Alliance Member to continue using
the Product, may modify it or may replace it; but, if use of a Product is
enjoined by a court or Tandem determines that none of the foregoing alternatives
is reasonably available, Tandem will take back the Product and refund its
depreciated value. Tandem has no liability for any such claim arising from (i)
Tandem's compliance with any designs, specifications or instructions of Alliance
Member, (ii) modification of a Product by Alliance Member or a third party,
(iii) use of a Product in a way not specified or approved in writing by a Tandem
Vice President or higher, or (iv) use of the Product with products not supplied
by Tandem. THE ABOVE TERMS STATE THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY AND
THE INDEMNIFYING PARTY'S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT.
10. TRADEMARKS. All trademarks, service marks, trade names, logos or other
words or symbols identifying the Products, Services, Software Packages or
businesses of either party (the "Marks") will remain the exclusive property of
the respective party, whether or not specifically recognized or perfected under
local laws. Neither party will acquire any right, or take any action that
jeopardizes the proprietary rights in the Marks of the other party, except the
right to use such Marks during the term of this Agreement to advertise and
promote Products, Services and Software Packages in accordance with this
Agreement. All advertisements and promotional materials will (i) clearly
identify the respective party as the owner of its Marks, (ii) conform to the
respective party's then-current trademark or logotype guidelines, and (iii)
otherwise comply with any local notice or marking requirement. Any use by a
party of the Marks of the other party during the term of this Agreement will
inure to the benefit of such other party.
11. EXPORT CONTROLS. Alliance Member acknowledges that the Products,
Confidential Information and all related technical documents and materials are
subject to export controls under the U.S. Export Administration Regulations and
related U.S. laws. Alliance Member will (i) comply strictly with all legal
requirements established under these controls, (ii) cooperate fully with Tandem
in any official or unofficial audit or inspection that relates to these controls
and (iii) not export, re-export, divert, transfer or disclose, directly or
indirectly, any Product, Confidential Information or related technical documents
or materials or any direct product thereof to any country (or to any national or
resident thereof) which the U.S. Government determines from time to time is a
country (or end-user) to which such export, re-export, diversion, transfer or
disclosure is restricted, without obtaining the prior written authorization of
Tandem and the applicable U.S. Government agency. If Alliance Member is located
outside of the United States, see Exhibit A1 for the list of export restricted
countries.
12. UNLAWFUL PAYMENTS. Neither Alliance Member nor Tandem will use any payment
or other benefit derived from the other to offer, promise or pay any money, gift
or any other thing of value to any person for the purpose of influencing
official actions or decisions affecting this Agreement, while knowing or having
reason to know that any portion of this money, gift or thing will, directly or
indirectly, be given, offered or promised to (i) any person acting in an
official capacity for any government or its instrumentalities (including
government-owned or controlled corporations) or any non-governmental client or
prospective client or (ii) any political party, party official or candidate for
political office.
13. ASSURANCE OF PAYMENTS. U.S. Computer Services guarantees the timely
payment by its Subsidiaries and Affiliates of all amounts due to Tandem for
Products and Services under this Agreement.
14. TARGETED MARKET:
a. To Cable Television Multiple System Operators (CATV MSO) customers,
Alliance Member will provide products as a Value Added Reseller ("VAR")
for the NonStop Kernel Products under Schedule TA-B and as a Software
House ("SWH") for Integrity Products under Schedule TA-E. This Section
14.a applies to Alliance Member's existing DDP/SQL Applications as well
as to the Intelecable products under development by Alliance Member.
b. To all other potential customers outside the CATV MSO market defined in
14.a above. Alliance Member will provide both NonStop Kernel and
Integrity Products as a SWH only.
Schedule TA-A-2
<PAGE>
c. Alliance Member will act as a non-exclusive VAR or SWH of Products for
sale and licensing solely in conjunction with Application Packages and
Application Computer Systems in the markets ("Targeted Markets") as
defined in Schedules TA-B and TA-E.
d. All countries outside of this Targeted Market will be addressed by the
parties on a case by case basis and sales outside of the Targeted
Market will be quoted to Alliance Member by Tandem on a country by
country basis, subject to local agreements with Tandem subsidiaries or
distributors. In the event the Targeted Market includes one or more
countries within the European Community, nothing in Schedule TA-B shall
be construed as preventing Alliance Member from licensing or selling
Application Systems in any part of the European Community on the
conditions set forth in Schedule TA-B.
15. ALLIANCE MEMBER AUTHORIZED TO SELL WITHIN THE TARGETED MARKET; TANDEM'S
RIGHT OF FIRST REFUSAL ON CERTAIN RESALE EQUIPMENT.
Tandem Products purchased or licensed under this Agreement by Alliance
Member shall be resold, leased or licensed under this Agreement only to End-User
Customers within the Targeted Market. Alliance Member shall not license, lease,
sell or otherwise transfer Products to customers other than to End-User
Customers within the Targeted Market. However, should Hardware sold and used by
Alliance Member within the Targeted Market become available for resale, then
Alliance Member may sell said Hardware to a broker for users outside the
Targeted Market, provided that Alliance Member shall first offer said Hardware
to Tandem for purchase and Tandem and Alliance Member shall have a period of ten
(10) working days from the date of notification by Alliance Member, or such
longer period as agreed to by the parties, to reach agreement on the terms and
conditions of such purchase. Alliance Member shall not be required to offer
Hardware designated as discontinued from Tandem's then-current product and price
guide to Tandem prior to such resale outside the Targeted Market. The parties
agree that Software cannot be transferred with any Hardware resale.
16. PROMOTION OF TANDEM PRODUCTS BY ALLIANCE MEMBER WITHIN A LOCATION.
Alliance Member shall actively and aggressively promote and market Tandem's
Products to the End-User Customers as described herein. The preceding
notwithstanding, the parties understand that this arrangement is non-exclusive,
and that Alliance Member may promote and market other products in addition to
Tandem's Products.
Tandem reserves the right to enter into agreements with others for the
purpose of marketing and distributing Products and related support, or any other
products providing the same or similar function as Application Packages within
the Targeted Market. Tandem reserves the right to act on its own behalf, or
enter into agreements with others, for the purpose of marketing and distributing
Products and related support, or any other products providing the same or
similar function as Application Packages, either directly or indirectly, outside
the Targeted Market.
17. SERVICE BUREAU. In all cases where Alliance Member, in the capacity of a
service bureau, provides full service computing to a Customer, Alliance Member
may purchase the necessary Hardware and Software Products from Tandem under the
terms and conditions of Schedules TA-A and TA-B and TA-F of this Agreement.
18. HARDWARE MAINTENANCE. Hardware maintenance will be provided to Alliance
Member under the terms and conditions of the Agreement for Maintenance Services
between Tandem and Alliance Member dated 2-15-92, as amended, or any subsequent
maintenance agreement between the parties.
19. SOFTWARE LICENSE AND SOFTWARE SERVICES. Where Alliance Member, in the
capacity of a service bureau, provides computing service to a Customer, Tandem
will provide to Alliance Member end-user Software licenses under the Software
Sublicense Terms set forth in Exhibit B3-1 of TA-B. Tandem will provide
Software Services under the terms and conditions of the Software Service Plans
in Schedule TA-F, hereof.
20. RENEWALS. The Discounts and Fee structures set forth in Schedules TA-B and
TA-E shall be in effect through January 1, 1997. Thereafter, Discounts and Fee
structures are subject to change and will be renewable annually ("Renewal
Period"). Tandem agrees to give Alliance Member preferential consideration in
the establishment of Discounts and Fee structures for subsequent Renewal Periods
under this Agreement based upon Alliance Member's volume relative to other
Tandem VARs with similar volumes and irrespective of other contract terms,
unless such other contract terms are material and substantial and reasonably
justify Tandem providing more favorable discounts and fee structures to any
other Tandem VAR.
21. INTRODUCTION OF NEW PRODUCTS:
a. Tandem reserves the right to make available new Products at
different Discount levels and Fee structures which may be included
hereunder during the term of this Agreement.
b. In addition to DDP/SQL and Intelecable, Alliance Member may
introduce additional applications which may be included
hereunder during the term of this Agreement.
22. HOLDBACK TERMS. Pursuant to the Holdback Provisions of the Development
Agreement of December 6, 1994 between Tandem and Alliance Member ("Development
Agreement"), the parties agree that fees and discounts as stated in Schedules
TA-B and TA-E will be reduced as payment is made to Tandem for amounts owed to
Tandem by Alliance Member pursuant to the Development Agreement. The following
Holdback amounts shall be credited by Tandem toward amounts owed under the
Development Agreement, which will be amended to reflect the Holdback terms
stated herein:
Schedule TA-A-3
<PAGE>
a. From the VAR Agreement, Schedule TA-B:
For the first year: [*] discount holdback for repayment
For the second year: [*] discount holdback for repayment
For the third thru fifth years: [*] discount holdback for repayment
b. From the SWH, Schedule TA-E:
1. In the North American CATV market:
For the first year: [*] discount holdback for repayment
For the second year: [*] discount holdback for repayment
For the third thru fifth years: [*] discount holdback for repayment
2. In the rest of market:
For the first year: [*] discount holdback for repayment
For the second year: [*] discount holdback for repayment
For the third thru fifth years: [*] discount holdback for repayment
23. NOTICES. Any notice, request or consent under this Agreement will be given
in writing and will be sent by confirmed telefax, personal delivery, overnight
courier service or registered or certified mail, postage prepaid, to the address
for each party stated on the first page of this Agreement, or to such other
address as such party may designate by notice in accordance with the provisions
of this Section. Notices to Tandem will be directed to both the Vice President
and the Group Counsel of Tandem Alliance Group, and notices to Alliance Member
will be directed to the signatory to this Agreement or as otherwise designated
by Alliance Member. Any notice delivered by confirmed telefax or personal
delivery will be deemed to have been received the day it is sent. Any notice
sent by overnight courier service will be deemed to have been received the day
after it is sent. Any notice sent by registered or certified mail will be
deemed to have been received on the 5th business day after its date of posting.
24. ESCALATION. Any dispute between the parties relating to this Agreement
will first be submitted in writing to a designated senior executive of both
Tandem and Alliance Member who will meet and confer in an effort to resolve such
dispute. Any decisions of the executives will be final and binding on the
parties. In the event the executives are unable to resolve any dispute within
30 days after submission to them, either party may refer any dispute to a court
of final jurisdiction or, if both parties agree, to arbitration.
25. MISCELLANEOUS PROVISIONS. All currency conversions will be based on the
closing exchange rate quoted in the edition of the Wall Street Journal available
in the geographical location of the Customer for the last business day of the
month before the date that Tandem receives a payment under this Agreement. All
taxes and governmental charges, including any penalties and interest, assessed
or imposed by any jurisdiction ("Taxes") will be borne by Alliance Member and
Tandem will withhold such from payments as required by law. Any holding that a
provision of this Agreement is invalid or unenforceable will not affect the
validity or enforceability of the other provisions of this Agreement. This
Agreement is the parties' entire agreement relating to the subject matter hereof
and supersedes all prior or contemporaneous oral or written communications,
proposals and representations concerning the same. Modifications to this
Agreement must be in writing and signed by an authorized representative of each
party. Any waiver of any provision of this Agreement, or a delay by either
party in the enforcement of any right hereunder, shall neither be construed as a
continuing waiver, nor create an expectation of non-enforcement of that or any
other provision or right. Neither party may assign or delegate this Agreement
or any of its rights or obligations without prior consent from the other party,
except that Tandem may assign its right to payment, and any attempt to do so
will be void. This Agreement will be governed by and interpreted in accordance
with the laws of the State of California, excluding its conflict of laws rules
and principles. The parties specifically exclude the United Nations Convention
on Contracts for the International Sale of Goods from this Agreement. Any
action brought in connection with this Agreement must be commenced within two
years and one day after the cause of action has accrued. Nothing in this
Agreement will affect the limitation period applicable to any action or
proceeding for (i) the unauthorized use or disclosure of Confidential
Information or (ii) the infringement of either party's proprietary rights. The
terms, limitations and warranties contained in this Agreement that by their
sense and context are intended to survive the term shall so survive, including,
without limitation, its confidentiality, export control and limitation on
liability provisions and all payment obligations. In the event of an
inconsistency between Schedule TA-A and another Schedule, the other Schedule
will prevail.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Schedule TA-A-4
<PAGE>
EXHIBIT A1
EXPORT RESTRICTED COUNTRIES
Albania
Armenia
Azerbaijan
Belarus
Bulgaria
Cambodia
Cuba
Estonia
Georgia
Haiti
Iran
Iraq
Kazakhstan
Kyrgyzstan
Laos
Latvia
Libya
Lithuania
Moldova
Mongolia
North Korea
The People's Republic of China
Poland
Romania
Russia
South Africa Military and Police entities
Syria
Tajikistan
Turkmenistan
Ukraine
Uzbekistan
Vietnam
Federal Republic of Yugoslavia (Serbia and Montenegro and Serbia held areas
in Croatia and Bosnia)
Exhibit A1-1
<PAGE>
Agreement # ________
SCHEDULE TA-B
VAR TERMS AND CONDITIONS
1. DEFINITIONS. "APPLICATION PACKAGE" means any of the software application
products described in Exhibit B1 developed and/or licensed by Alliance Member
for use with Products. "APPLICATION SYSTEM" means a computer system consisting
of an Application Package and Products which Alliance Member resells and
sublicenses to Customers within the Targeted Market, and which may include other
products developed or procured by Alliance Member. "DISCOUNT" means the
discount off the List Price of a Product set forth in Exhibit B4, B5 or B6
which applies so long as Alliance Member satisfies its obligations under this
Agreement. "DISCOUNTED PRICE" means the List Price of a Product, less its
Discount. "LIST PRICE" means the price of a Product set forth in the Price
Guide on the date of acceptance of an Order for the country where the Product
will be installed and used. "ORDER" means a written order for Products
submitted by Alliance Member to the Tandem office from which Products are
purchased or licensed. "PRICE GUIDE" means Tandem's then-current published
price guide for the country from which Products are purchased or licensed.
"SOFTWARE LICENSE FEE OR CHARGE" means the license fee or charge for Software
set forth in the Price Guide on the date of acceptance of an Order. "SUBLICENSE
AGREEMENT" means the agreement used by Alliance Member to sublicense the
Software to Customers. For Customers located outside the United States, the
Sublicense Agreement will contain any additional or different terms required by
the local Tandem subsidiary or local law, and may be subject to governmental
approval, registration or notification in a particular country. "TARGETED
MARKET" means the North American market area described in this Agreement.
"TOOLS" means any computer program developed or provided by Tandem hereunder and
used to standardize or simplify routines or functions, enhance productivity, or
assist in the maintenance of any Product. Tools may include metrics, routines,
diagnostics, templates or other devices.
2. APPOINTMENT. Tandem appoints Alliance Member and Alliance Member accepts
such appointment as a non-exclusive value-added reseller ("VAR") of Products for
sale or licensing solely as a component of Application Systems in the Targeted
Market.
3. RESELLER OBLIGATIONS.
3.1 BEST EFFORTS AND ADDED VALUE. During the term of this Schedule,
Alliance Member will use reasonable best efforts to actively and diligently
develop, promote, market, solicit orders for, maintain and support the
Application Systems solely within the Targeted Market, consistent with ethical
business practices and in a manner that reflects favorably on the Products and
the good will and reputation of the parties. Except for Development Systems,
all Products purchased or licensed by Alliance Member under this Schedule will
be incorporated into Application Systems containing an Application Package which
is a significant functional and value enhancement to Products. To the extent
new Product information is made generally available, Alliance Member will use
reasonable best efforts to notify Customers of new Products (e.g., Hardware
announcements and Software releases).
3.2 SUPPORT. Alliance Member will operate as an independent turnkey
provider of Application Systems and related maintenance and support, including
system configuration, requiring no maintenance or support from Tandem, except as
expressly provided in this Schedule. In addition to the obligations in Section
4 of Schedule TA-A, Alliance Member will make available to Customers, at a
reasonable charge to be determined by Alliance Member, first-class Hardware
maintenance and Software support services, including but not limited to, first-
call support of Software according to Tandem's then-current local first-call
support policy. Alliance Member may subcontract with Tandem for Hardware
maintenance or Software support or use best efforts to cause Customers to
execute Tandem's then-current Hardware maintenance or Software support
agreement. Other than warranties described in Section 10 below, Tandem is not
obligated to support or maintain Products hereunder unless Alliance member or
Customer enters into a separate maintenance or support agreement with Tandem.
All Sublicense Agreements must describe the Software support obligations of
Alliance Member under this Section.
3.3 WARRANTY OF TITLE. Alliance Member warrants that it has clear title
to and ownership of each Application Package or has the legal right to market
and sublicense the Application Package.
4. PERFORMANCE OF ALLIANCE MEMBER OBLIGATIONS BY TANDEM. If Tandem performs
any of Alliance Member's material obligations, whether at the request of
Alliance Member or the reasonable request of a Customer due to Alliance Member's
failure to promptly perform such obligations following notification of such
failure by Customer, Tandem may charge Alliance Member Tandem's then-current
rates for such services. Such services may include, but are not limited to,
sales and marketing assistance, first-call support for Software and systems
analyst support.
5. ORDERS AND DELIVERY.
5.1 ORDERS AND SHIPMENT. All Orders are subject to acceptance by Tandem.
Preprinted terms on an Order will not be effective. Additional or different
terms will be effective only if Tandem accepts them in writing. All Orders
accepted before this Agreement expires which provide for shipment within 90 days
of expiration will be honored, if Alliance Member is not in default under this
Schedule. Tandem and Alliance Member will establish a shipment schedule for
each Order. Tandem will select the carrier and method of shipment. In
countries where Tandem has a wholly-owned subsidiary, Tandem will arrange for
off-loading and customs clearance of Products in such country and transportation
to the initial delivery point specified in the accepted Order. Alliance Member
will pay transportation costs from customs to the initial delivery point and all
other associated charges and duties.
Schedule TA-B-1
<PAGE>
5.2 TITLE AND RISK OF LOSS. Title to Hardware will pass to Alliance
Member upon shipment from Tandem. Tandem will bear the risk of loss or damage
to the Products to the initial delivery point, except for loss or damage caused
by Alliance Member, war, nuclear reaction or radiation, or radioactive
contamination. Alliance Member will promptly inspect all shipments upon arrival
at the initial delivery point, immediately report to Tandem any loss or damage,
and retain any damaged Product in its original packaging for inspection by
Tandem or its insurer.
5.3 CANCELLATION AND RESTOCKING FEES. Alliance Member will pay a
cancellation fee of 10% of the Discounted Price for any ordered Product canceled
less than 30 calendar days prior to its planned shipment date and a restocking
fee of 15% of the Discounted Price if Tandem accepts return of a Product which
was delivered as ordered. For Discount purposes, canceled and returned Products
will not count toward the required "Purchase Volume" (described in Exhibits B4-
B6).
5.4 DOCUMENTATION. Alliance Member will receive one set of customary
Product documentation free of charge.
5.5 NO DUTY TO SHIP. Tandem is not obligated to sell, license or ship
Products if Alliance Member stops doing business, becomes insolvent, materially
breaches the Agreement or, in Tandem's reasonable judgment, represents in any
way a financial risk to Tandem. Alliance Member will furnish to Tandem any
financial or business information reasonably requested by Tandem to determine
that Alliance Member is financially capable of performing its obligations.
6. TAXES. All amounts payable under this Agreement are exclusive of Taxes
based on (i) gross revenue, (ii) payments under this Agreement, (iii) the
delivery, possession or operation of the Products, (iv) the execution or
performance of this Agreement, or (v) otherwise. Taxes shall not include net
income, net worth or franchise taxes assessed on Tandem. Alliance Member will
pay all Taxes or provide Tandem with a certificate of exemption acceptable to
the appropriate taxing authority prior to shipment of the Product. If any Taxes
are required to be withheld, Alliance Member will furnish Tandem with official
tax receipts and other evidence of the payment of any income tax required to be
withheld on behalf of Tandem sufficient to permit Tandem to substantiate
Tandem's claim for a credit against Tandem's United States federal income tax.
In the event Alliance Member fails to furnish Tandem official Tax receipts as
stated herein within a reasonable time, Alliance Member agrees to pay Tandem an
amount such that the net amount after withholding of such Taxes will equal the
amount that would have been otherwise payable under this Agreement.
7. SECURITY INTEREST. In the normal course of business Tandem will not
request, nor will Alliance Member be required to file and perfect, any UCC
security filing. Tandem will provide Alliance Member with a variable unsecured
credit line that will be determined by Tandem which will be subject to periodic
review by Tandem and may be adjusted or withdrawn as Tandem deems necessary.
Alliance Member's orders for Tandem Products in excess of the unsecured credit
line shall be secured by Alliance Member with a stand-by letter of credit. No
Tandem Products in excess of the unsecured credit line will be shipped until
Alliance Member has, at Tandem's request, delivered to Tandem a stand-by letter
of credit acceptable to Tandem.
8. PRICES, DISCOUNTS AND PAYMENT TERMS. Alliance Member will pay the
Discounted Price for each accepted Order. A Product's List Price will not
increase if shipment is made within 3 months of the date Tandem accepts an
Order. If a Product's price set forth in the Price Guide is lower on the date
of shipment than the List Price, Alliance Member will receive the lower price.
If Alliance Member sells, licenses, leases or otherwise transfers a Product
other than to a Customer within the Targeted Market, Tandem may invoice Alliance
Member for the difference between the Product's Discounted Price and its List
Price. Alliance Member will pay each invoice in full within sixty (60) days of
the date of the invoice in the currency in which the List Price was quoted.
9. SOFTWARE LICENSE.
9.1 RIGHT TO SUBLICENSE. Tandem grants Alliance Member a non-exclusive,
non-transferable right to sublicense the Software to Customers for use solely on
designated Application Systems within the Targeted Market. Before delivering
any Software to a Customer, Alliance Member will cause each Customer to execute
a Sublicense Agreement containing terms for the sublicensing of the Software no
more favorable to Customer than the terms set forth in this Agreement and
containing the mandatory software sublicense terms attached hereto as Exhibit
B3. The Sublicense Agreement will not be modified without Tandem's prior
written consent. Upon request, Alliance Member will provide Tandem with a copy
of each executed Sublicense Agreement and will assist Tandem in any review or
verification of Alliance Member's or a Customer's use of the Software or
compliance with the Sublicense Agreement.
9.2 SOFTWARE LICENSE FEES OR CHARGES. For each sublicense of Software to
a Customer, Alliance Member will pay Tandem the Software License Fee or Charge,
regardless of whether similar fees have been applied to, or received from, the
Customer by Alliance Member.
9.3 ENFORCEMENT. At its own expense, Alliance Member will promptly and
effectively take all necessary steps to enforce the Sublicense Agreement,
including bringing actions for seizure or injunctive relief against a Customer
who has breached it. Alliance Member will notify Tandem of such breach and
Alliance Member's corrective steps. If, in Tandem's sole discretion, Alliance
Member fails to take timely and adequate corrective steps, Tandem may take them
in its own or Alliance Member's name and at Alliance Member's expense. In such
event, Alliance Member will assign to Tandem, at Tandem's sole option, any
rights Alliance Member has against the Customer for breach of the Sublicense
Agreement and will cooperate with Tandem in any action against the Customer.
9.4 USE AND COPYING. Alliance Member will use the Software only to
perform its marketing and support obligations and may make one back-up copy of
each user-loadable program. Alliance Member may make only enough copies of
updates or revisions to Software required for delivery to Customers that have
executed a Sublicense Agreement. Alliance Member will not otherwise copy the
Software and will accurately reproduce all Tandem copyright, confidentiality and
proprietary notices on each of the copies.
Schedule TA-B-2
<PAGE>
9.5 RECORDS. Alliance Member will keep complete and accurate records of
each copy of the Software received from Tandem or manufactured by Alliance
Member ("Copy Records"). Copy Records will include: (a) the date when each copy
(by revision number) was created and shipped (by designated system number) to a
Customer and how it was created, (b) the name and address of the Customer
receiving the copy and (c) a copy of each executed Sublicense Agreement, by
designated system. Upon Tandem's written request, Alliance Member will provide
Tandem with information contained in the Copy Records for any period of the
Agreement. With reasonable notice, Tandem will have access to the Copy Records
to verify compliance with Alliance Member's obligations.
9.6 MODIFICATIONS. Alliance Member will not translate, modify, adapt,
decompile, disassemble or reverse engineer any part of the Software without
Tandem's prior written consent. If Tandem allows Alliance Member to modify,
translate or make a "derivative work" (defined in the United States Copyright
Act of 1976, as amended) of the Software, Tandem will also grant Alliance Member
a non-exclusive, non-transferable license to use, copy and sublicense the same,
subject to the terms of this Agreement, including the limitations regarding
Software. Subject to such license, Tandem will own any translation,
modification, adaptation or derivative work of the Software, including any
improvement to or development of the same, and all associated patents,
copyrights, or other intellectual property rights.
9.7 FEDERAL GOVERNMENT SUBLICENSE. If Alliance Member sublicenses the
Software to the United States Government, in addition to applicable copyright
notices Alliance Member will also place a legend on the tape or diskette label
in substantially the following form:
"Restricted Rights Legend.
Use, duplication or disclosure by the government is subject to
restrictions for commercial computer software and will be deemed to be
Restricted Rights Software under federal law."
9.8 THIRD PARTY SOFTWARE. Alliance Member may sublicense to Customers
certain Software which Tandem licenses from third parties. Alliance Member will
incorporate any necessary additional terms into the Sublicense Agreement for
such third-party Software. Tandem may provide updates to such additional terms
at any time upon written notice to Alliance Member. Tandem may terminate
Alliance Member's right to sublicense any third party Software if the license
between Tandem and the third party is terminated or expires.
9.9. USE OF SOFTWARE WITH RETURNED HARDWARE. Tandem agrees that for
Tandem Software licensed with Hardware originally owned by an end-user Customer
and transferred from that end-user Customer to Alliance Member for use in
Alliance Member's internal business operations (such as, but not limited to, its
billing facility), Alliance Member shall not be required to pay any License Fee
for the use of the Software, provided a one-time License Fee has been paid for
such Software. Such License use will be governed by the terms and conditions of
Schedule TA-B, Exhibit B3. In no event shall Software be transferred from one
Designated System to another or from one Customer to another.
10. WARRANTIES.
10.1. HARDWARE AND SOFTWARE WARRANTY. Tandem warrants that for the
applicable published warranty period, or the period required by local statute,
when properly installed and operated (a) each item of Hardware will meet its
then-current specifications published by Tandem and (b) each item of Software
will perform as described in Tandem's then-current user documentation for the
Software. Hardware and/or replacement parts may include remanufactured or used
parts which are warranted equivalent of new in performance and reliability. The
warranty period will begin 30 days following the shipment date of the Product.
10.2 EXCLUSIVE REMEDY. CUSTOMER'S EXCLUSIVE REMEDY AND TANDEM'S SOLE
OBLIGATION AND LIABILITY FOR ANY BREACH OF WARRANTY CONTAINED IN THIS SECTION 10
WILL BE TANDEM'S FURNISHING OF STANDARD, NONENHANCED WARRANTY SERVICES DESCRIBED
IN TANDEM'S THEN-CURRENT LOCAL (A) END-USER WARRANTY SERVICE ATTACHMENT OR (B)
END-USER AGREEMENT, FOR THE PURCHASE AND/OR LICENSE OF THE PARTICULAR HARDWARE
OR SOFTWARE. INDEMNIFICATION UNDER SECTION 9 OF SCHEDULE TA-A WILL BE ALLIANCE
MEMBER'S SOLE AND EXCLUSIVE REMEDY AGAINST TANDEM FOR BREACH OF ANY WARRANTY OF
TITLE TO THE HARDWARE.
10.3 LIMITATION. Tandem's warranty service obligations will not apply to
any Product if adjustment, repair, or parts replacement is required because of
(a) accident, neglect, misuse, failure of electric power, failure to provide
appropriate environmental conditions, relocation of Hardware, or causes other
than ordinary use, (b) repair or alteration, or attempted repair or alteration,
of any Product by persons other than Tandem personnel, (c) failure caused by a
product for which Tandem is not responsible, (d) connection of another machine
or device to Hardware which makes warranty service impractical or which has
caused damage to such Hardware, or (e) damage or destruction caused by natural
or man-made acts or disasters. In addition, warranty services do not include
cosmetic repairs, refurbishment, furnishing consumables, supplies or
accessories, making accessory changes, or attaching additional devices. Tandem
will not be required to provide warranty service for any item of Hardware on
which neither the current nor the immediately preceding release of Software has
been installed.
10.4 TANDEM DISCLAIMER. THE WARRANTIES CONTAINED IN THIS SECTION 10 ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR
A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TANDEM
AND ITS SUPPLIERS DO NOT WARRANT THAT NETWORK PRODUCTS WILL OPERATE IN ALL
COMBINATIONS OF HARDWARE AND SOFTWARE WHICH MAY BE SELECTED FOR USE OR THAT
SOFTWARE IS ERROR-FREE.
Schedule TA-B-3
<PAGE>
10.5 TOOLS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10,
TOOLS ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
11. LIMITATION ON LIABILITY. TANDEM WILL BE LIABLE FOR ACTUAL DAMAGES IN
CONTRACT OR TORT UP TO THE GREATER OF $300,000 OR THE CHARGES PAID TO TANDEM FOR
THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM, AND FOR DAMAGES FOR BODILY INJURY
OR DEATH, TO THE EXTENT THAT ALL SUCH DAMAGES ARE DETERMINED BY A COURT OF FINAL
JURISDICTION TO HAVE BEEN DIRECTLY CAUSED BY TANDEM. TANDEM WILL ALSO BE LIABLE
FOR PAYMENTS REFERRED TO IN SECTION 9 OF SCHEDULE TA-A (INDEMNIFICATION).
12. TERMINATION.
12.1 TERMINATION OBLIGATIONS. Alliance Member's right to sublicense the
Software will terminate upon the termination or expiration of this Schedule or
the Agreement. At that time, Alliance Member will assign to Tandem any or all
Sublicense Agreements upon Tandem's reasonable request.
12.2 PURCHASE OPTION. Tandem will have the exclusive option, exercisable
upon notice to Alliance Member within 30 days after expiration or termination
of this Schedule, to purchase all or any part of Alliance Member's stock of
Products. During such 30-day period, Alliance Member will withhold its entire
stock of Products from sale to Customers or other parties, except for Products
needed to fulfill valid contractual commitments made before the beginning of the
option period. Any Tandem purchases will be at the Product's Discounted Price,
less depreciation and allowances. Alliance Member will promptly make its stock
available to Tandem for inspection and testing prior to the exercise of the
option.
13. MISCELLANEOUS PROVISIONS.
13.1 AUDIT. Alliance Member will permit Tandem to conduct periodic audits
of records regarding Alliance Member's performance, including without
limitation, records of the sale or licensing of Products.
13.2 GEOGRAPHIC LIMITATION. Tandem's obligations under this Schedule are
strictly limited to the Targeted Market, and in no event will Tandem be required
to ship Products to, or to provide warranty, licensing, service or support in a
country or region outside the Targeted Market, including, but not limited to,
countries where Tandem has an independent distributor. Any Tandem sale,
licensing, service or support of Products outside of the Targeted Market but
within those countries where Tandem has a wholly-owned subsidiary is subject to
the terms and conditions, including, without limitation, price terms, of the
country agreement with the local Tandem subsidiary.
Schedule TA-B-4
<PAGE>
EXHIBIT B1
APPLICATION PACKAGE DESCRIPTION
1. Name of Application Package:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2. Functional Description of Application Package:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3. Products on which Application Package operates:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4. Additional comments or remarks that identify Application Package:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Attach additional copies of this Exhibit B1 for other Application Packages.)
Exhibit B1-1
<PAGE>
EXHIBIT B2
DISCOUNTS BY PRODUCT
The following Discount Terms and conditions are applicable to all Discounts and
Products set forth below in Sections 1 through 4 of this
Exhibit B:
The Product Discounts granted to Alliance Member in this Exhibit B
shall be in effect for a period of two years from the Effective Date
of January 1, 1995 and are subject to the Holdback Provisions of
Schedule TA-A.
DETERMINATION OF PURCHASE VOLUME. Alliance Member's Purchase Volume
during a Period shall be the sum of the U. S. List Prices of new
Products and the actual purchase prices of re-manufactured Hardware
purchased during a Period, less any credit for trade-in Products
("Cumulative Prices"). Although Excluded Products do not receive
Discounts, the Cumulative Prices of those Products may be included in
determining actual Purchase Volume, but only if the trade-in or
promotional program allows it for Excluded Products purchased under
such programs.
RENEGOTIATION OF DISCOUNT LEVEL. Before the end of a Period, the
parties will determine a new Discount Level for the next Period based
on Alliance Member's actual Purchase Volume for the preceding Period.
If the parties extend the initial or any subsequent term of the
Agreement, then before the extended term becomes effective they will
determine a new Discount Level for such term based on Alliance
Member's actual Purchase Volume for the preceding term.
With 60 days prior written notice, Tandem may alter any Discount as
part of a programmatic change to Tandem VAR discounts in the following
situations: (i) for Products manufactured by Tandem, if Tandem reduces
the List Price, provided that the new Discounted Price for Hardware
will not exceed its immediately preceding Discounted Price; (ii) for
Products acquired by Tandem from a third party, when Tandem determines
that the alteration is necessary or appropriate.
1. NONSTOP KERNEL PRODUCTS
APPLICABILITY. This Section 1 applies to Tandem's NonStop Kernel
family of Products listed in the Price Guide on the Effective Date.
It excludes (a) NonStop Kernel technology upgrades, (b) Integrity
Products, (c) Tandem Source Company Products, (d) Tandem Telecom
Division Products, (e) Atalla Products, and (f) Products purchased
under special promotional and trade-in programs ("Excluded Products").
DISCOUNTS. Tandem grants the following Discounts to Alliance Member:
CERTAIN CLX/R AND HIMALAYA PRODUCTS. CLX/R Products currently
identified by number G11x0 and Himalaya Products currently
identified by numbers K11x will receive a [*] Discount. CLX/R
Products currently identified by product number G12x0, Himalaya
Products currently identified by number K12x and all system
printers will receive a [*] Discount.
NETWORK PRODUCTS. Network Products (previously Ungermann-Bass
Products) will receive a [*] Discount.
OTHER NONSTOP KERNEL PRODUCTS.
K2000 - K20000 Himalaya Range: [*] Discount
K1000 - K10000 Himalaya Range [*] Discount
K2 - K200 Himalaya Range: [*] Discount
SOFTWARE LICENSE FEES AND CHARGES. Only initial license fees and
paid up fees for Non-Himalaya Range System Software and one-time
charges for Himalaya Range System Software will receive Discounts.
2. INTEGRITY PRODUCTS
APPLICABILITY. This Section 2 applies to Tandem's Integrity family of
Products listed in the Price Guide on the Effective Date. It excludes
(a) Integrity NR Workstations, other than Indigo and Indigo 2 servers,
(b) Integrity technology upgrades, (c) NonStop Kernel Products, (d)
Tandem Source Company Products, (e) Tandem Telecom Division Products,
(f) Atalla Products, (g) Network Products and (h) Products purchased
under special promotional and trade-in programs ("Excluded Products").
DISCOUNTS. Tandem grants the following Discounts to Alliance Member:
INTEGRITY NR AND FT SERVERS (INDIGO AND INDIGO 2 WORKSTATIONS):
[*] Discount
OTHER INTEGRITY PRODUCTS (INDY WORKSTATIONS): [*] Discount
SOFTWARE LICENSE FEES AND CHARGES. Only initial license fees and
paid up fees for Integrity Software will receive Discounts.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Exhibit B2-1
<PAGE>
3. TANDEM SOURCE COMPANY ("TSC") PRODUCTS (WORKSTATION PRODUCTS)
DISCOUNTS.
PRODUCT DISCOUNTS. Tandem grants a [*] Discount to Alliance
Member for TSC Products:
Category C (terminals and options; personal printers and options)
Category D (PC Connectivity Products such as LAN and WAN cards)
Category E (PSX systems and options; NDX systems and options)
SOFTWARE LICENSE FEES. Only paid up fees or one time license
fees will receive Discounts.
4. DESCRIPTION OF TARGETED MARKET
GEOGRAPHIC AREA.
United States of America, Canada, Mexico, Guam, and Puerto Rico.
DESCRIPTION OF INDUSTRY.
Alliance Member will act as a VAR for NonStop Kernel Products for
Cable Television (CATV), Direct Broadcast Satellite (DBS),
Television Receive Only (TVRO), Microwave Multichannel Distribution
Systems (MMDS) and Microwave Distribution Systems (MDS).
DATA PROCESSING NEEDS OF CUSTOMER WITHIN INDUSTRY.
Subscriber/customer management, financial management and reporting,
bill processing and other related MIS needs for DDP/SQL or
Intelecable (and subsequent generation) Applications.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Exhibit B2-2
<PAGE>
EXHIBIT B3
MANDATORY SOFTWARE SUBLICENSING TERMS
1. GRANT [Alliance Member] hereby grants Customer a non-transferable,
non-exclusive license, without right to sublicense, to use the software
developed or acquired by Tandem Computers Incorporated ("Tandem") and
delivered to Customer under this Sublicense Agreement ("Software"),
exclusively on the Tandem computer system owned, possessed and operated by
Customer and specified in [Alliance Member]'s invoice ("Designated
System"). No source code or license to use source code is provided
hereunder. Software includes the programs delivered to Customer, all related
documentation and any update, revision, translation, adaptation,
modification, derivation or copy of the foregoing. Software does not include
software delivered to Customer with a shrink-wrap license. As to such
licenses, Customer agrees to be bound by the terms set forth therein, unless
it notifies [Alliance Member] of any objections and returns the software
within 10 days of receipt thereof.
2. Customer will use the Software only in its own internal business operations.
Customer will not permit any other person to use the Software, except to enter
or retrieve information in the ordinary course of processing transactions. If
the Designated System becomes temporarily inoperable due to natural disaster,
accident or other cause beyond Customer's control, Customer may use the Software
on another Tandem computer until the Designated System becomes operable.
Customer may make one back-up copy of the Software upon which it will reproduce
all confidentiality and proprietary notices. Customer will not otherwise copy,
translate, modify, adapt, decompile, disassemble or reverse engineer the
Software.
3. OWNERSHIP. Title to the Software and all patents, copyrights, trademarks,
mask works, circuit layout rights, design rights, trade secrets and other
proprietary rights in or related to the software are and will remain the
exclusive property of Tandem or its licensor, whether or not specifically
recognized or perfected under the laws of the country where the Software is
located. Customer will not take any action that jeopardizes such proprietary
rights nor will it acquire any right in the Software, except the limited use
rights specified herein.
4. CONFIDENTIALITY. The Software incorporates confidential and proprietary
information developed or acquired by Tandem. Customer will protect the
confidentiality of the Software and all such information with the same degree
of care as it employs to protect its own confidential and proprietary
information, but at least with reasonable degree of care. Customer will not
allow the removal or defacement of any confidentiality or proprietary notice
placed on the Software, which notice will not constitute publication or
otherwise impair the Software's confidential nature. Customer will have no
confidentiality obligation with respect to any confidential or propriety
information incorporated within the Software which (i) was in Customer's
lawful possession prior to receipt of the Software without any obligation to
keep it confidential, (ii) is later lawfully obtained by Customer from a
third party under no obligation of secrecy, (iii) is independently developed
by Customer, (iv) is, or later becomes, available to the public through no
act or failure to act by Customer. Customer will not disclose the Software
to any person, except to those of its employees, agents or consultants who
require access for Customer's authorized use of the Software. Before
disclosure to such parties, Customer will require that they expressly: (i)
recognize Tandem's or its licensor's confidential and proprietary rights in
the Software, (ii) agree to comply with the use, ownership, confidentiality
and export control restrictions applicable to the Software, and (iii)
acknowledge Tandem's, its licensors and [Alliance Member]'s right to enforce
these restrictions in each case in writing. Customer will be liable for
non-compliance by its agents and contractors to the same extent it would be
liable for non-compliance by its employees.
5. NO WARRANTIES; LIMITATION ON DAMAGES. THIS SUBLICENSE AGREEMENT DOES NOT
INCLUDE ANY WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF TANDEM OR ANY
ENTITY GRANTING TANDEM LICENSE RIGHTS TO THE SOFTWARE. IN NO EVENT WILL
TANDEM OR ITS LICENSOR (A) BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT
NOT LIMITED TO, LOST PROFIT OR DATA OR (B) INCUR AGGREGATE LIABILITY IN ANY
ACTION OR PROCEEDING WHICH EXCEEDS THE TOTAL AMOUNT ACTUALLY PAID TO TANDEM BY
ALLIANCE MEMBER FOR THE SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.
6. TERMINATION. This Sublicense Agreement will automatically terminate if
Customer stops owning, possessing or operating the Designated System, and it may
be otherwise terminated with 30 days prior written notice if the Customer
violates any of its terms or conditions. Upon any such termination, all rights
granted to Customer, including but not limited to the right to use to the
Software, will immediately cease, and Customer will promptly (i) purge the
Software from the Designated System and all other computer systems and storage
media, (ii) deliver to [Alliance Member] the Software and any other item within
Customer's possession or control that contains confidential information relating
to the Software, and (iii) certify in writing that Customer has complied with
its termination obligations hereunder. Any provision of this Sublicense
Agreement which by its sense and context deals with Software use, disclosure,
ownership, confidentiality, inspection, re-exportation, and third party
enforcement rights will survive its expiration or termination for any reason.
7. EXPORT CONTROLS. The confidential information of Tandem, and all related
technical documents and materials are subject to export controls under the
U.S. Export Administration Regulations and related U.S. laws. Customer will
(i) comply strictly with all legal requirements established under these
controls, (ii) cooperate fully with Tandem in any official or unofficial
audit or inspection that relates to these controls and (iii) not export,
re-export, divert, transfer or disclose, directly or indirectly, any
Software, confidential information of Tandem, or related technical documents
and materials or any direct product thereof to any country (or to any
national or resident thereof) which the U.S. Government determines from time
to time is a country (or end-user) to which such export, re-export,
diversion, transfer, or disclosure is restricted, without obtaining the prior
written authorization of Tandem and the applicable U.S. Government agency.
If Customer is located outside the United States, see Attachment A for the
list of export-restricted countries.
8. ASSIGNMENT-ENFORCEMENT. Customer may not assign, delegate or otherwise
transfer the Software, this Sublicense Agreement or any of its rights or
obligations without Tandem's and [Alliance Member]'s prior approval. Any
assignment, delegation or transfer which violates the foregoing will be void. If
[Alliance Member] ceases to be Tandem's authorized value-added reseller for any
reason, then [Alliance Member]'s rights against Customer may be assigned to
Tandem or its designee. Customer hereby consents to any such assignment and, at
Tandem's request, will execute any instrument which may be required to perfect
the assignment. The provisions of this Sublicense Agreement are intended to
insure to the benefit of Tandem and its licensor. Tandem or its licensor has
the right to enforce these provisions directly against Customer, whether in
Tandem's, its licensor's or [Alliance Member]'s name, and Tandem and its
licensor accept this right.
Exhibit B3-1
<PAGE>
SCHEDULE TA-C
PROFESSIONAL SERVICES TERMS AND CONDITIONS
1. DEFINITIONS. "Order" is a written order for Professional Services by which
Alliance Member engages Tandem to furnish Professional Services (i) directly to
Alliance Member for its own internal business use, or (ii) to Alliance Member
for delivery and resale or pass-through to a Customer. "PROFESSIONAL SERVICES"
are those packaged or custom services Tandem offers to Alliance Member
including, without limitation: project management support; computer system
design, implementation and maintenance; computer programming; software analysis;
sales presentations; proposal creation or other services applicable to a
Customer's data processing and/or sales and marketing requirements. "TOOLS"
means any computer program and associated documentation, including utilities,
developed or provided by Tandem, which are used to standardize or simplify
routines or functions, enhance productivity, or assist in the maintenance of any
Product, as more particularly identified in a Statement of Work. Tools are
provided to Alliance Member on an unsupported basis and may include metrics,
routines, diagnostics, templates or other devices. "STATEMENT OF WORK" is the
statement attached to a particular Order describing the Professional Services to
be provided.
2. TANDEM RESPONSIBILITIES. Upon acceptance of an Order, Tandem will perform
for Alliance Member the Professional Services specified therein using Tandem
employees, subcontractors or other agents having the appropriate background and
knowledge to perform the Professional Services.
3. ALLIANCE MEMBER RESPONSIBILITIES.
3.1 SUBMISSION OF ORDERS. Alliance Member will submit to Tandem a
separate Order for each Professional Service required, which Order will become
binding upon the parties' written acceptance thereof. Unless otherwise mutually
agreed, the terms of this schedule will supersede and will not be amended by the
preprinted terms of any Order. Additional or different terms and conditions of
an Order will be of no force and effect.
3.2 COMPENSATION. Alliance Member will pay Tandem a fee for the
Professional Services, regardless of whether Professional Services will be
passed-through to a Customer or similar fees will be charged to or received from
such Customer by Alliance Member. Tandem's standard fees for Professional
Services will apply unless otherwise agreed. Expenses incurred by Tandem in
performing the Professional Services will also be paid by Alliance Member. Fees
and expenses will be invoiced, and will be due and payable, according to the
terms of the Statement of Work.
3.3 ALLIANCE MEMBER CONTACT. Alliance Member will designate an individual
to serve as the primary contact under this schedule. Tandem personnel will
direct all inquiries and requests regarding the performance of Professional
Services to such individual. Alliance Member will assign other personnel to
participate as specified in the Statement of Work.
3.4 USE OF FACILITIES. Alliance Member will permit Tandem to make
reasonable use of Alliance Member's facilities, or will arrange for Tandem to
use Customer's facilities, as the case may be, at no cost to Tandem, for the
purpose of providing the Professional Services, including use of work space,
telephone equipment, office services, electricity, water, heat, waste disposal
facilities and parking. In addition, Alliance Member will provide, or will
arrange to have Customer provide, as the case may be, the computer system time
to enable Tandem's personnel to perform the Professional Services.
4. SCHEDULE. The Statement of Work will specify an estimated schedule for the
milestones, deliverables, and performance of the Professional Services. Both
parties agree to make reasonable efforts to carry out their responsibilities in
accordance with such schedule.
5. CHANGES TO STATEMENT OF WORK. Either party may request a change to a
Statement of Work and will submit its change request in writing to the other
party. Tandem will prepare a written change order which will describe the
requested change and set forth any resulting modifications to the performance
schedule, fees or other terms contained in the Statement of Work. The change
order will become effective upon the written authorization of the parties and
will modify and take precedence over any inconsistent terms in the Statement of
Work or an earlier change order.
6. EMPLOYEE RELATIONSHIP. All personnel furnished by Tandem to perform
Professional Services will be Tandem's employees or agents. Under no
circumstances will such personnel be considered the employees or agents of
Alliance Member or a Customer.
7. RIGHTS IN AND TO INTELLECTUAL PROPERTY.
7.1 Tandem does not claim any rights to original works created or owned by
Alliance Member or Customer. All intellectual property produced by Tandem under
this schedule which is a derivative work of an original work of Alliance Member
or Customer will be owned by Alliance Member or Customer, respectively, upon
Alliance Member's payment to Tandem of all fees, including all patent rights,
copyrights, trade secret rights and other intellectual property rights, except
to the extent such work contains any portion of a Product or an original work of
Tandem, including the Tools. Alliance Member agrees that Tandem is not
precluded from developing and marketing products which provide the same or
similar functionality as the original works of Alliance Member or Customer,
provided that such Tandem product is not based on the products or efforts of
Alliance Member or Customer, but is created independently without the use of any
confidential information of Alliance Member or Customer.
Schedule TA-C-1
<PAGE>
7.2 Alliance Member does not claim any rights to original works created or
owned by Tandem. All intellectual property produced by Tandem under this
schedule which is a derivative work of an original work of Tandem will be owned
by Tandem, including all patent rights, copyrights, trade secret rights and
other intellectual property rights, except to the extent such work contains any
portion of a product or original work of Alliance Member or Customer. Alliance
Member recognizes and agrees that Tandem has and retains any and all know-how,
ideas, design concepts or techniques employed by Tandem in rendering
Professional Services to Alliance Member, including all proprietary rights
therein.
7.3 ALL OTHER INTELLECTUAL PROPERTY PRODUCED BY TANDEM UNDER THIS SCHEDULE
WILL BE OWNED BY TANDEM, INCLUDING ALL PATENT RIGHTS, COPYRIGHTS, TRADE SECRET
RIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS, UNLESS OTHERWISE EXPRESSLY AGREED
TO IN WRITING BY ALLIANCE MEMBER AND A VICE PRESIDENT OF
TANDEM FOR A SPECIFIC ORDER OR STATEMENT OF WORK.
7.4 In the event Tandem furnishes Professional Services directly to
Alliance Member for its own internal business use, Tandem grants Alliance Member
a non-exclusive, non-transferable, perpetual, fully paid license to use, for its
own internal business use, intellectual property produced and owned by Tandem
under this schedule, excluding any Software and Tools ("Tandem Intellectual
Property"). In the event Tandem furnishes Professional Services to Alliance
Member for delivery and resale or pass-through to a Customer, Tandem grants
Alliance Member a non-exclusive, non-transferable, perpetual, fully paid license
to sublicense the Tandem Intellectual Property to Customer, for its own internal
business use.
8. TOOLS. Any Tools to be developed or provided by Tandem in connection with
performance of Professional Services: (i) will be identified in the applicable
Statement of Work; (ii) will be considered Software under this Agreement; and
(iii) will be furnished to Alliance Member pursuant to Tandem's standard terms
and conditions for license and sublicense of Software, except as modified
herein.
8.1 DISCLAIMER. THE TOOLS ARE PROVIDED "AS IS" AND ALL WARRANTIES
REGARDING SUCH TOOLS, WHETHER EXPRESS OR IMPLIED, ARISING BY ANY MEANS
WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY OVERRIDDEN, EXCLUDED AND
DISCLAIMED.
8.2 SUPPORT. Tandem is not obligated to provide installation, support or
maintenance of the Tools, but may, in its sole discretion, provide Alliance
Member with limited support on an "as available" basis.
8.3 AVAILABILITY OF NEW RELEASES. Tandem is under no obligation to make new
versions of Tools available to Alliance Member. Tandem may, however, at its
discretion, make such versions available provided Alliance Member agrees to
Tandem's then current terms and conditions.
8.4 CHANGE IN SUPPORT. Notwithstanding the above, if Tandem chooses to
make the Tools available as a supported product, it will give Alliance Member
sixty (60) days notice and the option to continue to use the Tools on an
unsupported basis or convert to the new product and receive standard support
under Tandem's then-current terms.
9. RESCHEDULE, CANCELLATION, OR TERMINATION OF ORDER. A request by Alliance
Member to change the date for performance of Professional Services which is
received by Tandem less than 15 calendar days prior to the planned performance
date will be subject to a fee of 2% of the cost of the Professional Services for
each month that performance is delayed, up to a maximum of 10%. For the
cancellation of an Order, Alliance Member will pay Tandem a cancellation fee of
10% of the cost of the Professional Services ordered. Upon 10 days written
notice to Tandem, Alliance Member may terminate an Order after performance of
the Professional Services has begun, provided that Alliance Member pays to
Tandem any fees for Professional Services already performed and any expenses
already incurred, up to the termination date of the Order.
10. TERMINATION OF SCHEDULE. Upon termination of this schedule pursuant to
Section 2 of Schedule TA-A, Alliance Member will immediately pay to Tandem any
fees due for Professional Services already performed and any expenses already
incurred by Tandem up to the termination date. Section 7 hereof will survive
any such termination.
11. INDEMNIFICATION.
11.1 INDEMNIFICATION OF TANDEM. Alliance Member will indemnify Tandem
according to the terms of Section 9 of Schedule TA-A for damages which result in
any way from any allegation that the Professional Services, or any results
thereof, infringe any patent, copyright or other intellectual property right of
a third party, to the extent that such damages, liabilities and expenses result
from any methodology, specification or Statement of Work initiated or defined by
Alliance Member.
11.2 INDEMNIFICATION OF ALLIANCE MEMBER. Tandem will indemnify Alliance
Member according to the terms of Section 9 of Schedule TA-A for damages which
result in any way from any allegation that the Professional Services, or any
results thereof, infringe any patent, copyright or other intellectual property
right of a third party, if the performance of such Professional Services was in
the sole discretion of Tandem.
11.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF A PARTY, AND THE SOLE AND
EXCLUSIVE REMEDY OF THE OTHER PARTY, FOR ANY INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS BY THE PROFESSIONAL SERVICES.
12. LIMITATIONS.
12.1 EXCLUSIVE REMEDY. The provisions of Section 11 of this schedule apply
in addition to this section. Alliance Member's sole and exclusive remedy and
Tandem's sole and exclusive, for any breach by Tandem of any of its obligations
under this
Schedule TA-C-2
<PAGE>
schedule will be, at Tandem's sole option, either the re-performance of the
applicable Professional Services at no additional charge to Alliance Member, or
the refund to Alliance Member of the fees paid to Tandem for the applicable
Professional Services.
12.2 LIMITATION OF DAMAGES. Notwithstanding any other provisions of this
Agreement, in no event will Tandem's total liability for any damages in
contract, warranty, tort, product liability or any other basis which arise from
this schedule exceed the total amount paid to Tandem for the Professional
Services that directly caused the damage.
13. TANDEM DISCLAIMER. ALL WARRANTIES REGARDING THE PROFESSIONAL SERVICES,
WHETHER EXPRESS OR IMPLIED, ARISING BY ANY MEANS WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
Schedule TA-C-3
<PAGE>
SCHEDULE TA-E
SOFTWARE HOUSE TERMS AND CONDITIONS
1. DEFINITIONS. "ADD-ON" is an item of Integrity Hardware or NonStop Kernel
Hardware that a Customer orders after an Initial Order of Integrity Hardware or
NonStop Kernel Hardware, whichever the case may be, for which Tandem paid a
base
fee, provided that the same Application Package for which Customer qualified for
the base fee was the Essential Factor in the Customer's purchase of the Add-on.
"ADD-ON PERIOD" is the twelve (12) month (or, in the event that Alliance Member
provides Tandem with a copy of its Intelecable software application product for
demonstration on the Integrity platform no later than October 15, 1995, the
eighteen (18) month) period following the shipment date of the Initial Order for
which Tandem paid a particular base fee. "APPLICATION PACKAGE" means any of the
software application products described in Exhibit E4 developed, sold and/or
licensed by Alliance Member to Customers for use with the Products. "ESSENTIAL
FACTOR" means any Application Package which is the primary and essential cause
of an Initial Order. "INITIAL ORDER" means a Customer's first order of
Integrity or NonStop Kernel Hardware consisting of at least one processor
required to support an Application Package and not for the primary purpose of
replacing or upgrading existing Products. "INTEGRITY HARDWARE" means Integrity
FT, or Integrity NR servers, Hardware and "NONSTOP KERNEL HARDWARE" means
NonStop Kernel Hardware that Tandem makes generally available during the term of
this Agreement, except technology upgrades, Integrity NR workstations and all
Atalla, U-B Network Products, Tandem Source Company and Tandem Telecom Division
Products. "REVENUE INFLUENCE" means the Hardware revenue Tandem receives on an
Initial Order or an Add-on in a transaction where an Application Package is the
Essential Factor, less all applicable shipping, insurance and installation
charges, Taxes-except net income, net worth or franchise taxes assessed on
Tandem-custom duties, discounts, rebates or trade-ins.
2. PAYMENT OF FEES. Alliance Member will develop and/or license, market,
maintain and support Application Packages in a manner which causes the sale of
Hardware for use with Application Packages. If an Application Package is the
Essential Factor, subject to the Holdback Provisions of Schedule TA-A, Alliance
Member will earn (i) a base fee of 10% of the Revenue Influence for an Initial
Order of NonStop Kernel Hardware and Software for which a one time License Fee
is paid, (ii) a base fee of 6% of the Revenue Influence for an Initial Order of
Integrity Hardware and Software for which a one time License Fee is paid,. (iii)
an Add-on fee of 10% of the corresponding Revenue Influence for NonStop Kernel
Add-on purchased during the Add-on Period and (iv) an Add-on fee of 6% of the
corresponding Revenue Influence for Integrity Add-on purchased during the Add-on
Period.
3. CONDITIONS FOR PAYMENT OF FEES. Tandem will pay fees only if the following
conditions are satisfied: (i) Tandem determines that the Application Package
sold or licensed to the Customer was the Essential Factor in the Customer's
purchase of Hardware; (ii) Tandem approves payment of the fees (Exhibit E3);
(iii) The Customer purchases or licenses and installs and accepts both the
Hardware and the Application Package; (iv) Alliance Member is not materially in
default under this Schedule; and (v) Alliance Member submits to Tandem an
application for fees (Exhibit E2) within 120 days after the shipment of the
Initial Order. At its option Alliance Member may identify prospective Customers
and submit a Prospect Form (Exhibit El) to Tandem for acknowledgment that
Prospect qualifies for fees hereunder.
4. LIMITATIONS ON PAYMENT OF FEES. Tandem's obligation to pay fees is limited
as follows: (i) Alliance Member must own or have the legal right to license and
distribute the Application Package; (ii) Hardware must be shipped while this
Schedule TA-E is in effect, unless this Schedule is renewed or the parties enter
into a new written agreement within 30 days of its termination or expiration, in
which case Tandem will pay the fees under the terms of the renewed Schedule or
new agreement; (iii) Tandem must first receive payment in full for the Hardware;
(iv) Hardware must be sold directly to a Customer by Tandem; (v) Tandem may set-
off against any fee any amounts Alliance Member owes Tandem; and (vi) if Tandem
determines that the Application Package and software products of another Tandem
Alliance Partner are both Essential Factors, Tandem may apportion the fee
between Alliance Member and the Partner in any manner Tandem deems appropriate.
5. TERMS FOR CREDIT OR PAYMENT OF FEES. Tandem will pay fees within 45 days
after it receives payment in full for the Products (or if payment is made in
installments, after it receives each installment payment). All fees will be
paid in United States dollars or, at Tandem's sole option, in the currency of
the country and in the country in which the Customer pays Tandem for the
Products.
6. DESCRIPTION OF TARGETED MARKET:
Geographic Area: Worldwide
Description of Industry: Rest of Market
Data Processing Needs of Customer:
Alliance Member will provide Intelecable and follow-on applications
for subscription/customer management billing system Application
Products on both the Tandem Integrity and NonStop Kernel Products
(except as provided in Schedule TA-B).
Schedule TA-E, Page 1 of 1
<PAGE>
EXHIBIT E1
PROSPECT FORM
CABLEDATA/TANDEM ALLIANCE AGREEMENT
This form is intended to notify Tandem Computers Incorporated of a potential
Tandem hardware/software sale related to CableData's Intelecable-TM- Solution
applications programs. Such a sale would entitle CableData to an Influence Fee
as described in the Tandem Alliance Agreement dated January 1, 1995.
1. PROSPECT/CUSTOMER INFORMATION
Name and address:
Contact name/telephone no.:
Tandem Customer? YES___ NO___: Current Platform(s):
2. AUTHORIZED PRODUCT: (HIMALAYA, INTEGRITY NR, PUMA, ETC.)
Name: Quantity:
3. ANTICIPATED INFLUENCE FEE:__________
Received and Acknowledged by
Tandem Computers Incorporated
By:
-----------------------------------
Authorized Signature
Name:
---------------------------------
Date:
---------------------------------
TA-E, Exhibit E1-1
<PAGE>
EXHIBIT E2
NOTIFICATION OF SOFTWARE HOUSE FEE ELIGIBILITY
Tandem has, within the past 120 days, completed the following sale in which
[Name of Alliance Member]'s Application Package, listed in Exhibit E3 of the
Alliance Member Agreement dated ___________________________, was necessary to
Customer's decision to purchase Products. By submitting the following facts of
the sale, we request that Tandem recognize and confirm that an influence fee is
due.
Customer Name:
-------------------------------------------------------------
Install Location:
----------------------------------------------------------
- ---------------------------------------------------------------------------
System/Add-on Number:
------------------------------------------------------
Base Fee or Add-on Fee:
----------------------------------------------------
Tandem Sales Representative:
-----------------------------------------------
Application Package:
-------------------------------------------------------
Date of Application Package License Agreement:
-----------------------------
(Note: To be considered complete, this application must be supported by a
copy of the signature page of the Application Package license agreement and a
copy of the Customer invoice.)
Estimated Date of Application Package Installation:
------------------------
Estimated Date of Acceptance of Application Package:
-----------------------
Are any other Alliance Partner's products licensed to this system?
---------
- ---------------------------------------------------------------------------
Tandem approval, pursuant to Section 3.(ii) of Schedule TA-E, will be conducted
by the following Jurisdictional Entity in the following Tandem Divisions:
Europe Selling Country Manager
Asia/Pacific Selling Country Manager
The Americas Alliance Business Operations
IN THE EUROPE AND ASIA/PACIFIC DIVISIONS, SUBMIT COMPLETED FORM TO YOUR
PARTNERSHIP MANAGER. IN THE AMERICAS DIVISION, SUBMIT COMPLETED FORM TO TAG
FEES VIA INFOWAY OR FORWARD TO YOUR PARTNERSHIP MANAGER. COPIES OF SALES
DOCUMENTATION SHOULD ALSO BE SENT TO YOUR PARTNERSHIP MANAGER.
TA-E, Exhibit E2-1
<PAGE>
EXHIBIT E3
SOFTWARE HOUSE FEE PAYMENT APPROVAL
(TANDEM LETTERHEAD]
[Alliance Member Contact]
[Alliance Member Name]
[Alliance Member Address]
[Date]
Dear [Alliance Member Contact]:
Tandem has completed review of the Notification of Software House Fee
Eligibility submitted on [date received] involving a sale to [Customer] under
Tandem System [System/Add-on Number].
Based upon the sales documentation provided by your organization as well as
supporting information from Tandem personnel involved in the sale, I am pleased
to inform you that Tandem will acknowledge [Application Package] as an essential
factor in the sale of System [System/Add-on Number] and will approve payment of
the influence fee.
The influence fee due for this sale has been computed at [value] and is based
upon Revenue Influence, as defined in your Alliance Member Agreement. The fee
amount is approximate pending Tandem's receipt of payment in full from
[Customer] for the Products. You may expect payment of the fee within
forty-five (45) days after Tandem receives such payment in full.
Your Alliance contact has been apprised of the outcome of this petition and
should be your point of contact for any questions you might have.
Congratulations on the sale of your application. Tandem eagerly anticipates
future joint successes.
Very truly yours,
[Jurisdictional Entity]
[Title]
[Alliance Division]
TA-E, Exhibit E3-1
<PAGE>
EXHIBIT E4
APPLICATION PACKAGE DESCRIPTION
Name of Application Package:
- --------------------------------------------------------------------------------
Functional Description of Application Package:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Products on which Application Package operates:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Additional comments or remarks that identify Application Package:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Attach additional copies of this Exhibit E3 for other Application Packages.)
TA-E, Exhibit E4-1
<PAGE>
SCHEDULE TA-F
SOFTWARE SERVICE PLANS
GENERAL PROVISIONS
At any time during the Warranty Period of any Licensed Product, warranty Service
can be enhanced to the level of a Service Plan at the charges indicated in
Tandem's Price Guide. Corrective Service will be furnished via the Tandem
NonStop Support Center ("TNSC") and will include action to verify the existence
of a defect, determine the severity or impact of the defect, and determine
conditions under which the defect may recur. During such verification, Tandem
may request further information about the defect from Alliance Member. After
such information is provided to enable Tandem to duplicate or verify the
defect, Tandem will, at its option:
1. for a Critical Defect (as defined in the Agreement), commence action within
the work-shift hours specified in the selected Service Plan using
commercially reasonable efforts to provide a temporary solution of or
workaround to the defect; or
2. for a non-critical defect, commence action within the workshift hours
specified in the selected Service Plan to provide either the action set
forth in 1. above or a statement that the defect will be corrected in a
future Release; or
3. provide a statement that the Licensed Product operates as described in
Tandem's current user documentation or that the defect arises when such
Product is used other than in a manner for which it was designed.
Prior to contacting Tandem for corrective Service for noncritical defects,
Alliance Member is responsible for researching the Tandem database to determine
if there is an interim product modification ("IPM") that will address the
problem.
Software media. Releases and updates to Releases, and documentation and updates
to documentation via CD are provided with each Service Plan.
SELF SUPPORT PLAN includes:
For a Critical Defect, Alliance Member may request corrective Service via
electronic mail or fax to the TNSC between the hours of 8:00 a.m. to 5:00 p.m.,
Monday through Friday, excluding national holidays. Except for workstation
Software, Tandem will commence action within 2 work-shift hours and provide
on-site assistance when deemed necessary by Tandem.
For a non-critical defect or any defect in workstation Software, Alliance Member
may request Service via electronic mail to the TNSC between the hours of 8:00
a.m. to 5:00 p.m., Monday through Friday, excluding national holidays. Tandem
will commence action within 4 work-shift hours or within 8 work-shift hours for
workstation Software.
Problem support on a time and expense basis is not available under the Self
Support Plan.
SUPPORT CENTER ASSISTANCE PLAN includes usage problem support through the TNSC
and:
For a Critical Defect, Alliance Member may request corrective Service via phone
or fax to the TNSC 24 hours a day, 7 days a week, excluding national holidays.
Except for workstation Software, Tandem will generally commence action during
the initial contact and provide on-site assistance when deemed necessary by
Tandem.
For a non-critical defect or any defect in workstation Software, Alliance Member
may request Service via phone to the TNSC between the hours of 8:00 a.m. to 5:00
p.m., Monday through Friday, excluding national holidays. Tandem will generally
commence action during the initial contact or within 4 work-shift hours for
workstation Software.
A service planning meeting will be provided at least once annually between
Tandem and Alliance Member to discuss the current Service Plans and Alliance
Member's future requirements.
MULTIPLE SYSTEMS SUPPORT OPTION (AVAILABLE ONLY IF SUPPORT CENTER ASSISTANCE
PLAN IS SELECTED) is designed for Alliance Members with more than one System.
"Multiple System" means a System for which the Alliance Member elects to receive
support through a Primary System. "Primary System" means each System
that is not a Multiple System. Alliance Member must identify
each Primary System and its corresponding Multiple Systems.
Multiple Systems Support will be provided under the following
conditions:
- - The Primary System must be approved by Tandem per current
policy and supported under Support Center Assistance;
- - All Licensed Products on a Multiple System(s) must be
licensed on the Primary System;
- - Service on a Multiple System will be furnished through the
identified Primary System;
- - The Alliance Member will reproduce on the identified Primary
System any Multiple System problem requiring support;
- - Alliance Member's key contact for a Primary System will be
responsible for working all problems with Tandem;
- - Tandem will provide Releases and Release updates to a
Primary System only, and Alliance Member will distribute
such Releases and Release updates to) each designated Multiple
System; and
- - Service requested directly on a Multiple System will be
provided at Tandem's published time and expense rates.
Tandem retains the right to refuse to provide Multiple System Support in cases
where the above conditions are not met.
NETWORK PRODUCTS SERVICE PLANS
The Premier24, Flex12 and Base9 Hardware Service Plans for Network Products
include Support Center Assistance for Network Licensed Products as described in
the Software Service Plans above at no additional charge, except that corrective
Service will be furnished only during the hours specified in the selected
Hardware Service Plan.
Schedule TA-F, Page 1 of 2
<PAGE>
SOFTWARE SERVICE PLAN ORDER FORM Tandem Quote No._______________
and/or Alliance Member P.O. No._______
Alliance Member agrees to obtain and Tandem agrees to provide Service for
Products at the charges indicated on the attached quotation or purchase order
under the Service Plan selected herein, in accordance with the terms and
conditions of the above Agreement and the attached Service Plans and Options.
NOTE: NOT ALL SERVICE PLANS AND OPTIONS ARE AVAILABLE FOR ALL PRODUCTS
OR AT ALL LOCATIONS.
TANDEM SYSTEM NUMBER(S): #_________ #_________ #_________ #_________ #_________
SOFTWARE SERVICE PLAN SELECTION:
BASIC PLANS:
WARRANTY ENHANCEMENT: Yes / No (Circle One)
____SELF SUPPORT SERVICE COMMENCEMENT DATE:
____SUPPORT CENTER ASSISTANCE ____Date of Installation
____Date of Warranty Expiration
____Other______/______/______
OPTIONS: (available with Support Center Assistance only unless otherwise
indicated)
MULTIPLE SYSTEM SUPPORT
Primary System(s): #_________ #_________ #_________
____HOLIDAY COVERAGE
____CRITICAL PROBLEM SUPPORT FOR WORKSTATION SOFTWARE (available with both
Basic Plans)
NAME: CABLEDATA, INC. "Alliance Member"
----------------------------------------------------------------------
BY: DATE:
------------------------------------------------- -------------
PRINT NAME: TITLE:
----------------------------------------- ------------
DO NOT COMPLETE: TANDEM INTERNAL USE ONLY
Alliance Member #__________ Discount Site/Volume ___% Minimum Term___%
Other____@____%
Service Reference #________ Primary CE or SE ____________________________
Schedule TA-F, Page 2 of 2
<PAGE>
SCHEDULE TA-G
PRODUCT RENTAL AGREEMENT
Alliance Member hereby contracts for and TANDEM COMPUTERS INCORPORATED
("Tandem"), by its acceptance and execution hereof, agrees to rent to Alliance
Member and Alliance Member agrees to rent from Tandem, computer hardware
("Hardware") and software ("Software") (collectively "Products"). Products may
be ordered on a Rental Order Form (example attached) or on Alliance Member's
order form containing equivalent information ("Rental Order") subject to
acceptance by Tandem, for delivery and use in the United States, in accordance
with the terms and conditions of this Agreement (the "Agreement").
1. RENTAL PERIOD
The rental period will commence on the Date of Installation as defined in
Section 4 and continue for the period specified in a Rental Order unless sooner
terminated by Alliance Member upon 30 days prior written notice. In addition,
should Alliance Member (i) fail to perform any of its obligations under this
Agreement for a period of 30 days after written notice of such failure, or (ii)
breach any of its confidentiality obligations under this Agreement, Tandem will
have the right to terminate this Agreement immediately upon delivery of written
notice to Alliance Member of its election to do so. Tandem's rights of
termination are in addition to any other rights and remedies provided in the
Agreement or by law.
2. TRANSPORTATION AND INVOICES
a. All transportation to and from Alliance Member's site will be paid by
Alliance Member and will be set forth separately on Tandem's invoice to
Alliance Member.
b. Rental charges, including any applicable license charges and service
charges, will commence on the Date of Installation and will be invoiced
monthly in advance. Alliance Member will pay all invoices, in full, within
30 days of the date of invoice.
3. TITLE AND RISK OF LOSS
a. Title to, and ownership of, the Hardware will remain with Tandem unless
Alliance Member exercises its option to purchase under Section 8 below.
Tandem will bear risk of loss or damage to the Products during
transportation and during the rental period except for loss or damage
caused by Alliance Member.
b. Title to, ownership of, and all proprietary rights, including patent rights,
copyrights, trade secret rights, and other intellectual property rights, in
each item of Software, including all copies and derivative works thereof
are reserved to and will at all times remain the property of Tandem or its
suppliers.
4. INSTALLATION
a. Unless Alliance Member requests Tandem to do so, Alliance Member will
install Products in accordance with Tandem's published specifications. If
the Product is installed by Alliance Member, the 10th day following the
shipment date for such Product will be deemed the "Date of Installation"
for all purposes of this Agreement.
b. If Alliance Member requests Tandem to install Products:
1) Alliance Member will place each Product in its desired location.
Products will be subject to Tandem's published installation charges, if
any.
2) The first business day following the day on which Tandem installs the
Product will be deemed the "Date of Installation" for all purposes of this
Agreement. Should installation not occur within 30 days of shipment
through no fault or delay of Tandem, the 30th day following the shipment
date will be deemed the "Date of Installation."
5. SERVICES
a. During the rental period, Tandem will provide Hardware and Software
services for Products rented under this Agreement in accordance with the
Service Plans selected by Alliance Member on a Software Service Plan Order
Form subject to the charges set forth on a Rental Order pursuant to the
Agreement for Maintenance Services between Tandem and Alliance Member dated
2-15-92, as amended, and Schedule TA-F.
b. Neither the service obligations contained in this Section 5, nor the
warranty contained in Section 11, applies to any Product if adjustment,
repair or parts replacement is required because of (i) accident, neglect,
misuse, failure of electrical power, failure of Alliance Member to provide
appropriate environmental conditions, relocation of Hardware, or causes
other than ordinary use, (ii) Alliance Member repair or alteration, or
attempted repair or alteration, of any item of Hardware or spare part,
where such activity is not authorized by Tandem, (iii) Alliance Member's
connection of any item of Hardware to another device making warranty
service impractical or which has caused damage to such Hardware; or (iv)
Alliance Member-supplied software or the addition of a non-Tandem product
or interface, or (v) damage arising from natural or man-made disaster,
vandalism or destruction caused by acts of nature
c. Additional zone charges will apply to on site service for systems located
more than 100 miles from a Tandem support location, and desktop and network
products located more than 50 miles from a Tandem support location.
Service outside the scope of a Service Plan will be furnished at Tandem's
then-current published rates. Consumable items are not provided by Tandem.
6. SOFTWARE LICENSE
a. "Software" means a software product in object code only, user documentation
and related materials that are furnished by Tandem under this Agreement.
No source code and no license to use source code is provided hereunder.
b. Tandem hereby grants to Alliance Member a non-exclusive, nontransferable
license, without right to sublicense, for the use of each item of Software
on the Hardware set forth in the Rental Order for Alliance Member's
business use only. Except for agents or contractors who need to use such
item of Software in the performance of their duties for Alliance Member,
Alliance Member will not permit any item of Software to be used by any
other person or on any other computer system.
c. Alliance Member will not reverse engineer, decompile or reverse compile,
disassemble, list, print or display any Software or otherwise attempt to
obtain the source code or other Confidential Information from any Software.
Alliance Member will not modify, or permit any person other than Tandem to
modify Software or any part thereof.
d. No Software or part thereof may be duplicated by Alliance Member except
that Alliance Member may make one copy of any machine-readable portion
solely for Alliance Member's normal archival or security backup purposes.
Alliance Member will properly reproduce on each such copy all notices of
patent rights, copyrights, trademark rights or trade secret rights in such
Software or any part thereof.
e. Use of certain Software Products may be limited to a maximum number of
users.
Schedule TA-G PAGE 1 OF 4
<PAGE>
f. Upon expiration of any rental period including any extensions thereof or
upon the termination of this Agreement or of any license granted hereunder
for any reason other than Alliance Member's exercise of its purchase option
contained in Section 8 hereof, all rights of Alliance Member to use the
Products listed in the Rental Order will cease and Alliance Member will
immediately (i) grant access to the Products to Tandem to remove the
Products, (ii) purge all copies of all Software from all computer
processors or storage media on which Alliance Member has installed or
permitted others to install such Software, and (iii) when requested by
Tandem, certify to Tandem in writing, signed by an officer of Alliance
Member, that all copies of the Software have been returned to Tandem or
destroyed and that no copy of any Software remains in Alliance Member's
possession or under its control.
g. The terms of any shrink-wrap license included with Software ordered
hereunder will supersede and take precedence over the terms of this
section 6.
7. CONFIDENTIALITY
a. "Confidential Information" means the confidential and proprietary data or
information developed or acquired by either party and marked or clearly
designated in writing.
b. The receiving party will keep all Confidential Information in confidence
and will not disclose any item of Confidential Information to any person
other than its employees, agents or contractors who need to know the same
in the performance of their duties. The receiving party will protect and
maintain the confidentiality of all Confidential Information with the same
degree of care as it employs to protect its own Confidential Information,
but at least with a reasonable degree of care including requiring agents
and contractors to sign a nondisclosure agreement. The receiving party
will be liable to the disclosing party for any non-compliance by its agents
or contractors to the same extent it would be liable for noncompliance by
its employees.
c. Alliance Member recognizes that each item of Software (i) is considered by
Tandem to be a trade secret, (ii) is furnished by Tandem to Alliance Member
in confidence, and (iii) contains proprietary and Confidential Information,
and that, accordingly, such Software constitutes Confidential Information
under this Section.
d. Confidential Information does not include any data or information which (i)
was in the receiving party's lawful possession prior to the submission
thereof by the disclosing party, (ii) is later lawfully obtained by the
receiving party from a third party under no obligation of secrecy, (iii) is
independently developed by the receiving party, or (iv) is, or later
becomes, available to the public through no act or failure to act by the
receiving party.
8. OPTION TO PURCHASE
a. Alliance Member may, at any time, purchase any item of Hardware or
re-license the Software specified in a Rental Order by entering into
Tandem's then current purchase and/or license agreement and placing an
order thereunder with respect to such Products. The effective date of
purchase/license will be the date Tandem issues the invoice for such
Products. In such event:
1) Upon the effective date of purchase, title to each item of Hardware so
purchased will pass to Alliance Member.
2) Software may be re-licensed under any license term and fee option
available for that Software.
3) The item will be deleted from this Agreement and rental charges for
such item will cease.
4) The effective date of purchase/license will be the date of warranty
commencement, if applicable, for each Product.
b. Tandem will grant a credit based on the total rental charges paid for an
item of Hardware during the rental period toward the applicable purchase
price for that item. Credits will be equal to 100% of rental charges paid
for Hardware purchased during the first 3 months of the rental period and
50% of rental charges paid for Hardware purchased during months 4 through 6
of the rental period.
9. ALTERATIONS
Alliance Member agrees not to employ or use any additional attachment, feature
or device on the Hardware listed in a Rental Order without the written consent
of Tandem. Alliance Member will remove any such attachment or alteration
immediately upon termination of rental. After the rental termination date,
Tandem will restore the Hardware to its original configuration (ordinary wear
and tear excluded) and Alliance Member agrees to pay the cost of restoration.
Alliance Member may not relocate the Products without Tandem's prior written
consent
10. WARRANTY; EXCLUSIVE REMEDY
a. Tandem warrants to Alliance Member that the Products listed in a Rental
Order, when properly installed, will meet the specifications published by
Tandem for such Products on the Date of Installation.
b. THE WARRANTY CONTAINED IN SECTION 10.a. IS EXCLUSIVE AND IS IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
TANDEM AND ITS SUPPLIERS DO NOT WARRANT THAT THE LICENSED PRODUCTS ARE
ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.
c. Alliance Member's exclusive remedy, and Tandem's sole obligations and
liability, for any breach of the warranty contained in Section 10.a. will
be Tandem's furnishing the services provided in Section 5 hereof.
11. LIMITATION OF LIABILITY
a. Tandem will be liable for actual damages in contract or tort under this
Agreement up to the greater of $10,000 or the charges paid to Tandem for
the Product that is the subject of the claim, and for damages for bodily
injury or death, to the extent that all such damages are determined by a
court of final jurisdiction to have been directly caused by Tandem.
b THE REMEDIES IN THIS AGREEMENT ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
IN NO EVENT WILL TANDEM OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFIT OR DATA.
12. ASSIGNMENT
Neither party may assign this Agreement or any of its rights or obligations
without prior written consent from the other party.
13. SURVIVAL
The terms and limitations, exclusions, and warranties contained in this
Agreement that by their sense and context are intended to survive the
performance thereof by either or both parties hereunder shall so survive the
completion of performance and termination of this Agreement, including without
limitation the confidentiality provisions and the making of any and all payments
due hereunder.
Schedule TA-G Page 2 of 4
<PAGE>
14. ENTIRE AGREEMENT; GOVERNING LAW;
MISCELLANEOUS
a. This Agreement is the parties' entire agreement relating to the Products
furnished hereunder. It supersedes all prior proposals and representations
with respect to its subject matter and prevails over any conflicting or
additional terms of any quote, order, acknowledgment or similar
communications between the parties.
b. This Agreement will be governed by and interpreted in accordance with the
laws of the State of California, excluding conflict of law rules and
principles.
ALLIANCE MEMBER HAS READ THIS RENTAL AGREEMENT AND AGREES TO BE BOUND THEREBY.
Agreed to: Accepted by:
CABLEDATA, INC "Alliance Member" TANDEM COMPUTERS INCORPORATED
By By
---------------------------- -------------------------------
---------------------------- -------------------------------
(Print Name) (Print Name)
Title Title
---------------------------- -------------------------------
Date Effective Date
---------------------------- ----------------------
Schedule TA-G, Page 3 of 4
<PAGE>
Agreement No.________
RENTAL ORDER FORM Tandem Quote No.____________________
and/or Alliance Member P.O. No.____________
Alliance Member agrees to rent the Products described in this Rental Order Form
in accordance with the terms and conditions of the above Agreement.
RENTAL PERIOD: __________months
HARDWARE LIST:
Product # Description Monthly Rent
--------- ----------- ------------
SOFTWARE LIST:
Product # Description Monthly Rent
--------- ----------- ------------
SERVICE CHARGES: (Attach Software Service Plan Order Form
with selected plans and options)
Hardware Basic Monthly Maintenance Charge (BMMC): $________
Software Monthly Service Charge (MSC): $_________
MONTHLY TOTAL: $________
In the event further rental of the products listed herein are desired beyond the
expiration of the rental period, Alliance Member will be invoiced an amount
equal to Tandem's then current standard published price for the additional
rental.
CABLEDATA, INC "Alliance Member"
By Title
--------------------------------- ---------------------------------
- ----------------------------------- Date
(Printed Name) --------------------------------
Schedule TA-G, Page 4 of 4
<PAGE>
EXHIBIT 10.33
<PAGE>
CONTRACT
FOR
COMPUTER SOFTWARE
POSTALSOFT SOFTWARE LICENSE AGREEMENT
This Contract Agreement is entered into effective the 13TH day of FEBRUARY,
1996, by and between INTERNATIONAL BILLING SERVICES, INC., with offices at 5220
ROBERT J. MATTHEWS PARKWAY, EL DORADO HILLS, CALIFORNIA 95762, hereinafter
referred to as "Customer," and Postalsoft, Inc., a Wisconsin corporation engaged
in the business of distributing computer hardware and software with principal
offices at 4439 MORMON COULEE RD., LA CROSSE, WISCONSIN 54601-6245, hereinafter
referred to as "POSTALSOFT." In consideration of the payments, agreements,
covenants, and mutual undertakings hereinafter set forth, the parties agree as
follows:
This Agreement consists of this document together with the following
attachments, which are incorporated herein by reference:
ATTACHMENT A: Designated Postalsoft Software Schedule
ATTACHMENT B: Designated Performance Schedule
ATTACHMENT C: Designated Extended Service Program (ESP) Schedule
POSTALSOFT and CUSTOMER agree that the terms set out below will apply to any
CUSTOMER order for POSTALSOFT Licensed Software. Under these terms and
conditions Postalsoft will furnish such Licensed Software to CUSTOMER, and grant
to CUSTOMER a perpetual, nontransferable and nonexclusive limited license of the
software for the Territory known as the United States of America, subject to the
terms set forth below.
For the purpose of simplifying the ordering procedure under this Agreement,
CUSTOMER and POSTALSOFT may amend this Agreement to allow future additional
Licensed Software to become subject to this Agreement when a written POSTALSOFT
PRODUCT ADDENDUM is signed by Customer and accepted by POSTALSOFT.
THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT INCLUDING THE TERMS
SET FORTH BELOW, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND
CONDITIONS. FURTHER, CUSTOMER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL
PROPOSALS, CONCURRENT OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
GENERAL PROVISIONS
A. DEFINITIONS
1. LICENSED SOFTWARE. For purposes of this Agreement, "Licensed Software"
shall mean licensed data processing programs consisting of a series of
computer instructions or statements and any related licensed materials,
such as data base files and operating instructions, which programs and
materials are listed in ATTACHMENT A and the POSTALSOFT PRODUCT ADDENDUM.
1
<PAGE>
2. ESP. For purposes of this Agreement, "ESP", shall mean Extended Service
Program comprising changes or corrections to Licensed Software to make the
Licensed Software perform the functions described in the User Manuals, or
to otherwise correct errors contained in Licensed Software.
B. LICENSE TERMS AND RESTRICTIONS
1. Each license granted under this Agreement authorizes the CUSTOMER to:
a. use the Licensed Software only at a specific installation site and on
a specific computer as designated in ATTACHMENT A and/or the
POSTALSOFT PRODUCT ADDENDUM and
b. utilize operating instructions and User Manuals in support of the use
of the Licensed Software, and
c. make one (1) copy of the Licensed Software in machine-readable form
solely for backup purposes. Additional copying of Licensed Software
is unauthorized.
2. Licensed Software documentation, including User Manuals and instructions in
printed form, may not be copied. Additional copies of printed materials
may be obtained under license from POSTALSOFT at the charges then in
effect.
3. The CUSTOMER is authorized to transfer any license to and use the Licensed
Software on a backup machine, installation or location designated in
ATTACHMENT A and/or the POSTALSOFT PRODUCT ADDENDUM, if the designated site
is temporarily inoperable or unusable and POSTALSOFT is immediately
notified of such use in writing, but in no event shall such temporary
period exceed ninety (90) days.
4. This License does not include the right to sublicense, transfer, or assign
the Licensed Software without the prior written consent of POSTALSOFT and
any such attempted sublicense, transfer, or assignment is unauthorized.
5. The Customer agrees not to remove or obscure Postalsoft's property rights
notices, or alter, decompile or disassemble the programs supplied in object
code form.
C. CUSTOMER RIGHTS AND OBLIGATIONS
1. INSTALLATION AND ACCEPTANCE. Installation of the Licensed Software can be
performed by POSTALSOFT or CUSTOMER. Installation responsibility is
designated in the CONTRACT FOR INSTALLATION AND TRAINING. The Licensed
Software shall be deemed accepted once the Licensed Software performs the
functions described in the User Manual.
2. ESP. CUSTOMER shall purchase the Extended Service Program (ESP) for the
Licensed Software as set forth in ATTACHMENT C. Following the initial ESP
period, CUSTOMER shall have the option to renew for successive twelve (12)
month periods. POSTALSOFT shall notify the CUSTOMER thirty (30) days or
more prior to the end of each ESP period. Subject to the provisions of
Section E.2. hereof, under no circumstances shall CUSTOMER cancel or
terminate the ESP midterm and shall only terminate for the successive
period by nonrenewal.
3. CONFIDENTIALITY. The performance of this Agreement may provide each party
with confidential information concerning the other party's business or
business practices. Both parties agree to hold all such information in
strict confidence and not to disclose or divulge same to any third party
for any reason whatsoever without the prior written consent of the
2
<PAGE>
other party. Such confidential material and information must be designated
in writing at the time of disclosure.
4. INVOICING AND PAYMENT. Invoices shall be issued by POSTALSOFT upon
delivery of the Licensed Software and sixty (60) days prior to the renewal
of any ESP service. Such invoices shall be due and payable within thirty
(30) days for the Licensed Software and ESP service. Invoices not paid
within such thirty (30) days will have a one (1) percent per month interest
charge, or the maximum interest allowed by law if less, assessed against
the unpaid balance.
D. PROPRIETARY RIGHTS OF POSTALSOFT
1. PROPRIETARY RIGHTS. The Licensed Software and all programs developed
hereunder and all copies thereof are proprietary to POSTALSOFT and title
thereto remains in POSTALSOFT. All applicable rights to patents,
copyrights, and trade secrets in the Licensed Software or any modifications
or derivative works made at CUSTOMER'S request are and shall remain in
POSTALSOFT. CUSTOMER shall not sell, transfer, publish, disclose, display,
or otherwise make available the Licensed Software or copies thereof to
others without Postalsoft's prior written consent. CUSTOMER agrees to
secure and protect each module, software product, documentation, and copies
thereof in a manner consistent with the maintenance of Postalsoft's rights
therein and to take appropriate action by instruction or agreement with its
employees or consultants who are permitted access to each program or
software product to satisfy its obligations hereunder. All copies made by
the CUSTOMER of the Licensed Software and other programs developed
hereunder, including translations, compilations, partial copies with
modifications, and updated works, are the property of POSTALSOFT.
Violation of any provision of this paragraph shall be the basis for
immediate termination of this License Agreement.
CUSTOMER, in recognition of the fact that the Licensed Software contains
highly confidential and proprietary POSTALSOFT information and that
POSTALSOFT will be irreparably damaged if the security of the Licensed
Software is breached, agrees that POSTALSOFT is entitled to injunctive
relief and damages as may be determined by a court of competent
jurisdiction.
2. TERMINATION AND SURVIVAL BEYOND TERMINATION. The terms and provisions
contained in this Section D shall survive the termination of this Agreement
or any license hereunder. Upon any termination of a license hereunder,
CUSTOMER shall return the Licensed Software and delete all copies thereof
from its libraries. At POSTALSOFT'S request, CUSTOMER shall certify in
writing, in a form acceptable to POSTALSOFT, that it has complied with its
obligations under this Section D.
E. LIMITED WARRANTY AND LIABILITY
1. LIMITED WARRANTY
a. POSTALSOFT warrants, that for a period of ninety (90) days from
acceptance , not to exceed one hundred twenty (120) days from
installation of any Licensed Software as provided in Section C. 1
hereof, such Licensed Software, when properly installed, will perform
the functions described in its User Manuals subject to the
understanding that the Licensed Software and information in any
database will become dated if CUSTOMER fails to subscribe to ESP, and
accordingly, all warranties and obligations of POSTALSOFT shall
terminate with any ESP termination.
After ninety (90) days from the acceptance date, error corrections
made to the Licensed Software will only be made available as a service
of the Extended Service Program.
Notwithstanding the foregoing, as enhanced versions of the Licensed
Software are released to current ESP CUSTOMERS, POSTALSOFT'S
obligations to correct problems in the
3
<PAGE>
Licensed Software shall only apply to the most recent version of same.
POSTALSOFT shall not be obligated to correct any error in an old
version of the Licensed Software if the error has been corrected in a
newer version, notwithstanding that the CUSTOMER may not have received
such newer version by reason of its failure to have elected to receive
ESP hereunder.
b. POSTALSOFT further warrants its rights to enter into this Agreement
and/or the right to grant this License and agrees to defend or settle,
at its expense, any action at law against CUSTOMER arising from a
claim that any Licensed Software infringes any intellectual property
right, or at POSTALSOFT'S option, it may terminate this License and
refund the license fee paid, proratably, based upon a thirty-six (36)
month useful life of the Licensed Software subject to CUSTOMER'S
obligation under Section D.2 hereof.
c. POSTALSOFT MAKES NO FURTHER WARRANTY AND DISCLAIMS ANY AND ALL OTHER
WARRANTIES OF ANY KIND OR NATURE WHETHER WRITTEN OR VERBAL, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF RESULTS, PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RESOURCE
UTILIZATION, RESPONSE TIME, OR SYSTEM OVERHEAD.
2. LIMITED LIABILITY. POSTALSOFT'S entire liability and CUSTOMER'S exclusive
remedy shall be as follows:
a. In situations involving performance or nonperformance of Licensed
Software furnished under this Agreement, CUSTOMER'S sole remedy is
replacement or correction of the Licensed Software by POSTALSOFT so
that it will perform the functions as described in the User Manuals.
In the event POSTALSOFT is unable to correct the deficiency within a
reasonable period of time, which in no event shall be less than sixty
(60) days, POSTALSOFT'S liability shall be limited to:
(1) a refund of the license fee paid by CUSTOMER to POSTALSOFT for
the specific Licensed Software in question, provided the claim of
nonperformance is made by CUSTOMER and received by POSTALSOFT
within the ninety (90) day warranty period as set forth in
Section E. 1. a. hereof, or
(2) a refund of the unused, prepaid, prorata ESP fee, if the claim is
received after the expiration of the ninety (90) day warranty
period. All claims made by CUSTOMER hereunder must be in writing.
b. In no event shall POSTALSOFT be liable for any lost profits, or other
special consequential or punitive damages, even if POSTALSOFT has
been advised of the possibility of such damages, or for any claim
against CUSTOMER by any other party, except with regard to an action
for infringement of intellectual property rights.
3. MODIFICATION TO SOFTWARE. In the event CUSTOMER changes or modifies the
Licensed Software in any manner, all warranties given hereunder are
canceled and same shall release POSTALSOFT of any further obligation or
liability.
F. DEFAULT
In the event CUSTOMER fails to make any payment within thirty (30) days of
the due date or breaches any other material covenant contained in this
Software License Agreement or any Addendum or Supplement hereto, the
license granted hereunder shall immediately terminate and CUSTOMER shall
return the Licensed Software and delete all copies thereof from its
libraries. In addition, CUSTOMER agrees to pay all costs, including
reasonable attorneys fees, incurred by POSTALSOFT as a result of any such
default, including costs of collection.
4
<PAGE>
G. INDEMNIFICATION
1. CUSTOMER shall indemnify and hold POSTALSOFT harmless from any costs,
expenses, or liability resulting from any claim based on CUSTOMER'S use or
possession of the licensed program, excluding claims based upon
POSTALSOFT'S negligence or patent, copyright, or similar infringement of
third-party rights. Such indemnity will survive the termination or
expiration of this Agreement.
2. If any action is instituted against CUSTOMER based upon a claim that the
Licensed Software or any component or use thereof infringes a U.S. patent
or copyright, POSTALSOFT shall, for and on behalf of CUSTOMER, defend and
indemnify such action at POSTALSOFT'S expense, provided CUSTOMER has
promptly notified POSTALSOFT in writing of such action and POSTALSOFT has
sole control of the defense and any settlement negotiations. POSTALSOFT
shall have no liability if the action arises out of any modifications to
the Licensed Software without the express written permission of POSTALSOFT;
or any use of the Licensed Software in combination with any other system,
equipment or software not furnished by POSTALSOFT or approved by POSTALSOFT
in writing.
Notwithstanding the foregoing, if a claim of such infringement is made and
appears likely to result in the entry of an injunction against the use of
the Licensed Products or portions thereof, POSTALSOFT may choose to do any
of the following: (a) modify the Licensed Product so that it is not
infringing, (b) obtain the right for the CUSTOMER to continue to use the
Licensed Products, (c) substitute non-infringing software which provides
substantially comparable functions, or (d) terminate this License Agreement
and return all License Fees paid by CUSTOMER on a pro-rata basis based on a
three (3) year useful life of the Licensed Products.
H. ASSIGNMENT OR TRANSFER
Neither this Agreement nor any rights or obligations hereunder shall be
assigned or otherwise transferred by CUSTOMER without the prior written
consent of POSTALSOFT.
I. MISCELLANEOUS
1. AMENDMENTS AND NOTICES. All Amendments, Addendums and Supplements to this
Agreement shall be in writing and signed by both parties. In no event
shall terms contained in any related purchase order or invoice be made a
part of this Agreement. All notices and claims shall be made only in
writing and shall be deemed made upon receipt. Any nonwritten notice or
claim shall be of no effect.
2. NOT BINDING UNTIL ACCEPTED. This Agreement and all Supplements thereto
shall not be binding until it is signed and accepted by POSTALSOFT at its
headquarters in the State of Wisconsin.
3. FORCE MAJORA. Neither party shall be responsible for failure to perform
caused by reason of any act of God, labor dispute, nondelivery by supplier,
fire, flood, legal action, governmental order or regulation, or any other
causes beyond its control.
4. CAPTIONS AND HEADINGS. All captions, headings, and titles contained in this
Agreement are for convenience and reference purposes only and shall not be
deemed a part of this Agreement.
5. PARTIAL INVALIDITY. If any part of this Agreement, or the application
thereof, is for any reason held or otherwise found to be unenforceable, it
shall be deemed severable and the
5
<PAGE>
validity of the remainder of this Agreement or the application of such
provisions to other circumstances shall not be affected thereby.
6. TAXES. CUSTOMER shall, in addition to the other amounts payable under this
License Agreement pay all sales and other taxes, federal, state, or
otherwise, however designated, which are levied or imposed by reason of
transactions contemplated by this License Agreement. Without limiting the
foregoing, CUSTOMER shall promptly pay to POSTALSOFT an amount equal to any
such item actually paid, or required to be collected or paid by POSTALSOFT.
7. GOVERNMENT LAW AND JURISDICTION. This Agreement shall be governed and
enforced under the laws of the State of Wisconsin. Any paragraph,
subparagraph, sentence or phrase of this Agreement that is contrary to the
laws of the State of Wisconsin and/or unenforceable shall not affect the
validity or enforceability of any other paragraph, subparagraph, sentence,
or phrase of this Agreement, and shall be modified or deleted to conform
with the applicable laws of the State of Wisconsin.
8. BENEFIT. This Agreement shall be binding upon and inure to the benefit of
POSTALSOFT'S successors and assigns.
9. U.S. GOVERNMENT RESTRICTED RIGHTS. The software and documentation are
provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights In Technical Data and Computer Software clause at
DFARS 252.227-7018 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software-Restricted Rights at 48 CFR 52-227 as applicable.
Manufacturer is POSTALSOFT, Inc. 4439 Mormon Coulee Rd., La Crosse,
Wisconsin 54601-8231.
IN WITNESS WHEREOF, the CUSTOMER aud POSTALSOFT have executed this Agreement
effective as of the date established on Page 1.
ATTEST: POSTALSOFT, INC.
BY:
---------------------------
TITLE: CONTRACTS MANAGER
------------------------
DATE: 2/14/96
-------------------------
ATTEST: Customer
BY:
---------------------------------
TITLE: SR. V.P., Systems & Technology
------------------------------
DATE: 2/26/96
-------------------------------
6
<PAGE>
ATTACHMENT A
LIMITED VOLUME LICENSE - 1 BILLION RECORD CEILING
QTY DESCRIPTION PRICE
1 PW ACE Canada Library [*]
1 PW Presort Plus 4x [*]
1 PW 1st Cl PST Plus 4x [*]
1 Piece Variable Size & Dimension [*]
TOTAL SOFTWARE COSTS [*]
The above licensed PostWare will be used in the following Operating
System Environment:
REGS
utilizing the following Central Processing Unit:
SILICON GRAPHICS INC.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
ATTACHMENT B
DESIGNATED PERFORMANCE SCHEDULE
MILESTONE APPROXIMATE DAYS FROM
CONTRACT SIGNING
Place Order for Software On Execution
Test and Install Software On Execution
Software Invoiced to CUSTOMER On Execution
Invoices shall be issued by POSTALSOFT upon delivery of the Licensed Software
and sixty (60) days prior to the renewal of any ESP service. Such invoices
shall be due and payable within thirty (30) days and thirty (30) days for the
Licensed Software and ESP service, respectively.
<PAGE>
ATTACHMENT C
DESIGNATED EXTENDED SERVICE PROGRAM (ESP) SCHEDULE
QTY DESCRIPTION PRICE
3 yr PW ACE Canada Library [*]
3 yr PW Presort Plus 4x [*]
3 yr PW 1st Cl PST Plus 4x [*]
3 yr Piece Variable Size & Dimension [*]
3 yr Canadian Directory [*]
TOTAL ESP COSTS [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
EXHIBIT 10.42
<PAGE>
ALTERNATE MAILING SYSTEM AGREEMENT
BETWEEN
THE
UNITED STATES POSTAL SERVICE
AND
INTERNATIONAL BILLING SERVICES, INC.
5220 ROBERT J MATHEWS PARKWAY
EL DORADO HILLS, CA 95762-5712
Bulk Third-Class
PURPOSE:
This service agreement, and any attachments, set forth the terms and conditions
for International Billing Services, Inc. of El Dorado Hills, California for use
of an Alternate Mailing System Agreement (AMS) as described and authorized by
the United States Postal Service in accordance with Domestic Mail Manual (DMM)
P730. If there is any difference between this agreement and the mailing
standards in the Domestic Mail Manual, the postal standards in the DMM will
govern. An Alternate Mailing System Agreement provides for other methods of
accepting permit imprint mail, not established in Domestic Mail Manual P710 or
P720, that show proper postage payment and mail preparation without verification
by weight.
CONDITIONS:
The conditions of authorization for Alternate Mailing System Agreements (DMM
P730.2.2) are:
- - Authorization to use AMS must benefit the USPS
- - Authorization to use AMS must include a signed agreement
- - An AMS agreement must specify the terms and conditions of the AMS
- - All postage must be paid by permit imprint unless otherwise permitted in
writing by the RCSC
- - There must be no additional costs to the USPS for an AMS agreement beyond
the costs of current mail acceptance procedures for the mail in question
- - The mailer must implement a quality control program that ensures proper
mail preparation and accurate documentation, subject to USPS approval.
The service agreement must include details of this program that ensure
proper mail preparation and accurate documentation, subject to USPS
approval. The service agreement must include details of this program.
Each AMS mailing must include a statement from the mailer certifying that
the approved quality control verification is done.
- - Authorization must not exceed 2 years.
- 1 -
<PAGE>
ARTICLE 1:
This Alternate Mailing System Agreement is for third-class Bulk Rate
nonidentical weight permit imprint mailings for The Sacramento Bee for which the
documentation and maintenance of records as outlined in Article 9 are maintained
by the mailer. This agreement is for specific mailings at the mailer's plant
(known as: IBS II) located in:
Sacramento, California
The mailer may request other AMS agreements for additional mailer plant
locations by submitting a written request to the postmaster at the office of
mailing. The request must include a complete description of the types of
matter to be mailed; the proposed method of paying postage; the proposed method
to determine correct mail preparation; and a statement of the reasons for
requesting the alternate mailing system. The USPS may review the mailer's
operation before ruling on the application.
ARTICLE 2:
Mailings under this agreement are limited to third-class Bulk Rate mail for The
Sacramento Bee. Mailings will be prepared as required by the applicable mailing
standards in the Domestic Mail Manual.
Specific primary and secondary documents are listed for use with this system.
The mailings will be produced at the IBS II plant in Sacramento, California.
ARTICLE 3:
The Postmaster or designee, Rancho Cordova, California will verify mailings at
the mailer's Sacramento, California plant. All mailings verified under this
agreement at the mailer's Sacramento, California plant will have funds withdrawn
from permit imprint account number 300 held with the Postmaster, Rancho Cordova,
California.
ARTICLE 4:
Mailer's Responsibilities:
1. International Billing Services, Inc. is responsible for complying with all
postal laws and regulations which may apply to the mailings including the
proper classification of materials as set forth in the DMM. Mailings must
be prepared and presented to the Postal Service in accordance with this
agreement.
International Billing Services, Inc., will tender mail prepared in
accordance with this Agreement only at entry points specifically approved
in advance by the Postal Service. The mailer's plant in Sacramento,
California will be the entry point for all mail entered under this
Agreement.
- 2 -
<PAGE>
2. International Billing Services, Inc., will provide unrestricted access to
mail preparation areas for employees of the Postal Service to observe mail
preparation and to verify mailing records.
3. At the time mail is presented for acceptance and/or released by the Postal
Service, the mailer must be able to provide:
- - Primary Documents as described in Article 9
- - "Postal Accumulated Manifest Report" for each rate category
- - Consolidated Register of Mailing Statement (Business Day 3800 Summary with
Grand Totals)
- - Coding Accuracy Support System Report (PS Form 3553) or computer-generated
facsimile (DMM A950.5.2) for automation rate mailings
- - Carrier-Route Listings for Carrier-Route mailings
- - Any other documentation required by the Domestic Mail Manual for rate
eligibility.
ARTICLE 5:
International Billing Services, Inc., must maintain sufficient funds in an
advance deposit account at the Rancho Cordova, California Post Office for any
mailings entered and released by the United States Postal Service. (DMM P040.5.6
Prepayment)
ARTICLE 6:
The mailer will document and/or process damaged or withdrawn mailpieces as
outlined in Attachment "A" (Mailer's Quality Control Procedures).
The mailer will adhere to all quality control procedures and documentation as
outlined in the Quality Control Procedures attached to this agreement
(Attachment "A")
ARTICLE 7:
Attachment "B" includes sample copies of mailing documentation covered by this
agreement. The Manager, RCSC must be notified 80 days in advance for approval
to any proposed changes to this documentation which may affect correct
calculation/assessment of postage for mail released by the Postal Service under
this Agreement or affects any primary or secondary postal audit documentation
used to support this agreement.
ARTICLE 8:
Postal audit documents for this AMS will be maintained at the mailer's plant in
El Dorado Hills, California. If requested by the Postal Service audit documents
will be available for postal inspection at the Sacramento IBS II plant with
seven (7) days prior notice to International Billing Services, Inc., A sample
pack will be maintained at the mailer's plant located in El Dorado Hills,
California for mailings submitted by International Billing Services, Inc., under
the AMS agreement. The sample pack will include some of the required documents
as specified in Article 9 of this agreement and any additional documentation and
information desired by the mailer. Some documentation for this agreement is
maintained electronically (Article 10) and certain documentation is maintained
by the Postal Liaison because of space limitations in the sample pack. The
sample pack will consist of information for a particular "corp" or "plan."
- 3 -
<PAGE>
The mailer defines a corp as a select client with an exact plan(s) consisting of
select envelopes and inserts (stuffers.)
The plan may differ numerous times for the same corp/client during a mailing
day. Maintenance of the documentation is required to permit reconciliation with
the statements of mailing and to enable the Postal Service to verify the
accuracy of the computations for individual mailings as well as for the
aggregate of all mailings. These records will be maintained centrally and
retained for a period of one year.
The mailer has been authorized to maintain in electronic format the following
providing the conditions in Article 10 are met:
- -The primary document, the "Postal Manifest Postage Listing," shows the
number of pieces of mail, postage for each piece by destination and
"corp/plan" or ":S-Key" and summarizes the postage and piece counts for each
mailing under this authorized Alternate Mailing System Agreement.
ARTICLE 9:
PRIMARY MAILING RECORDS FOR IMAGE BILLS
POSTAL MANIFEST LISTING - Shows rate qualification by ZIP Code for mailpieces
by route number, 5-digit, 3-digit ZIP Codes and by residual.
Customer has authorization in Article 10 to maintain this documentation
electronically if approved by the Manager, Business Mail Entry in Sacramento,
California.
SECONDARY MAILING RECORDS
1. Sample Pack enclosures for each corp/plan:
- - Plan Job Card (shows the number pieces, corp/plan, file number, inserts,
quality control checks initialed by each department as mail is processed
through printing, inserting, sealing, packaging, traying, etc.,)
- - Sample of job tray/sack labels for the exact corp/plan
- - Sample of mailing envelope with permit imprint including all inserts
- - Sample of tray labels for the exact corp/plan mailing
- - StatementsPLUS Close Out Index (used for monitoring all activities and
documents handling needed to close-out the corp/plan)
- - StatementsPLUS Plan Summary Report
- - Customer Return Letter
- - Turnabout Analysis Summary Information
- - Transmission Audit Report
- - Facsimile Work Request Customer Invoice
- 4 -
<PAGE>
- - Customer Statement of Accounts or Billing Statistics/Billing Validation
Report
ARTICLE 10:
Electronic Storage of the "Postal Manifest Listing" for any mailing generated,
is acceptable under this Agreement providing:
- - The mailer must be able to provide the Postal Service the entire "Postal
Manifest Listing" for any mailing generated within seven days after the
date of mailing. The information must be provided by the mailer to the
Postal Service within 24 hours.
- - The information can be extracted from the electronic media for a single
mailpiece by keying the unique keyline from a specific mailpiece into the
computer
- - The mailer will ensure that for any mailing selected for postage
verification by the Postmaster or designee of Rancho Cordova, California
that the mailer will generate a complete hard copy of the "Postal Manifest
Listing" for the entire contents of one or more tray or containers within
that same mailing to the postal clerks verifying a mailing. The
information must be produced for verification of a mailing before a mailing
is released
- - The mailer will require 15 days advance notice to provide requests for the
"Postal Manifest Listing" beyond seven days from the date of mailing
ARTICLE 11:
Postal verification may occur at anytime. Verification will be conducted as
required to meet postal standards. If mailings are accepted at the mailer's
plant they are subject to Plant Load Operations approval by the Sacramento
District of the Postal Service. This may entail preliminary notice of mail
volume in advance to allow the Postal Service adequate time for truck/trailer
dispatches.
ARTICLE 12:
Overpayments and underpayments identified during USPS verification require a
postage adjustment. Verification samples are deemed to be representative of the
entire mailing and postage adjustments calculations are based on the total
mailing. The mailer must pay a penalty surcharge when the sampling verification
shows that the error exceeds 1.5% of the claimed postage. The total corrected
postage for the entire mailing and a penalty equal to 10% of the postage error
calculation is deducted from the permit imprint advance deposit account (DMM
P730.1.2.) Additionally, the mailer agrees to notify the RCSC, in writing,
regarding the reason for the error and how it will be prevented in the future.
ARTICLE 13:
Any underpayment of postage to the USPS detected by International Billing
Services, Inc., must be reported to the administering post office within five
(5) working days from the date of detection. The reporting office will advise
the administering RCSC of all underpayments.
- 5 -
<PAGE>
Any refund request or deficiency (underpayment) will trigger an investigation by
the administering RCSC and International Billing Services, Inc. to determine how
and why the error occurred, why it was not detected by the system, and what
corrective measures have or should be taken. A joint audit will be performed if
determined necessary by the manager of the administering RCSC.
If the Manager, RCSC, determines excess postage was paid or postage was
underpaid because of an error by International Billing Services, Inc. the cost
of conducting the audit to identify and correct the cause of the problem and the
total administrative costs and processing costs incurred by the Postal Service
will be charged to International Billing Services, Inc.
ARTICLE 14:
The Manager, Rates and Classification Service Center may revoke this AMS
authorization if the mailer (DMM P730.2.7):
- - Provides incorrect data for mailing and appears unable or unwilling to
correct all problems
- - Is not conducting required quality control procedures as described by the
mailer in Attachment A
- - No longer meets the criteria established by standard or the AMS agreement
- - Does not present a mailing under this AMS for six (6) months
- - Continues to present improperly prepared mailings
ARTICLE 15:
Duration and terms of this Agreement
The mailer may cancel this agreement at any time by giving written notice to the
San Bruno Manager, Rates and Classification Service Center.
ARTICLE 16:
Annual system reviews will be conducted by the San Bruno RCSC. Monthly reviews
will be conducted by either the Manager, Business Mail Entry, Sacramento
District, the Postmaster, Rancho Cordova, California or their designees.
ARTICLE 17:
This agreement will remain in effect for a one-year period beginning December
18, 1995 and ending December 17, 1996.
- 6 -
<PAGE>
ARTICLE 18:
This agreement consists of 18 articles and five (5) attachments and can only be
changed or modified by addendum with the approval of the Manager, San Bruno
Rates and Classification Service Center.
ATTACHMENTS DESCRIPTION
- - Attachment A Mailers Quality Control Procedures
- - Attachment B Primary Documentation Samples
- - Attachment C Mailer's Request for Alternate Mailing
System
- - Attachment D Mailer's Definition of Terms
- 7 -
<PAGE>
SIGNATURE PAGE - ALTERNATE MAILING SYSTEM AGREEMENT
FOR THE POSTAL SERVICE
J. M. Long Acting Manager, Customer Service Support
- --------------------------------- -----------------------------------------
Name Title
/s/J. M. Long 916 373-8703
- --------------------------------- ------------------------------------------
Signature Telephone
3/26/96 Sacramento, CA 95799-0070
- --------------------------------- -------------------------------------------
Date City, State, ZIP + 4
FOR THE POSTAL SERVICE
Larry Groce Postmaster
- --------------------------------- -------------------------------------------
Name Title
/s/Paulette Mahoney for Larry Groce 916 574-3062
- ---------------------------------- --------------------------------------
Signature Telephone
3/18/96 Rancho Cordova, CA 95670-9998
- ---------------------------------- --------------------------------------
Date City, State, ZIP + 4
FOR INTERNATIONAL BILLING SERVICES, INC.
Mury Salls Vice President Postal Relations
- ---------------------------------- --------------------------------------
Customer Name Title
/s/Mury Salls 916 939-4670
- ---------------------------------- --------------------------------------
Signature Telephone Number
3/21/96 El Dorado Hills, CA 95762-5712
- ---------------------------------- ----------------------------------------
Date City, State, ZIP + 4
For Rates and Classification Service Center
/s/Linda A. Deaktor Manager, Rates and Classification Service Center
- ------------------------------ ------------------------------------------------
Linda A. Deaktor Title
3/28/96 San Bruno, California 94096-9599
- ------------------------------ ---------------------------------------------
Date of Approval City, State, ZIP + 4
<PAGE>
Attachment A
---------------------------------------------------
Mailer's Quality Control Procedures
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
SAMPLE VERIFICATION CHECKLIST
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
MAIL VERIFICATION
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
9
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
10
<PAGE>
CST 1
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
11
<PAGE>
ATTACHMENT B
SAMPLE DOCUMENTATION
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
Postage Summary
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
SAMPLE VERIFICATION CHECKLIST
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
<PAGE>
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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ATTACHMENT C - MAILER'S REQUEST FOR ALTERNATE
MAILING SYSTEM AGREEMENT
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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REQUEST.
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ATTACHMENT D -- MAILER'S DEFINITION OF TERMS
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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PG 1 OF 5
DEFINITION OF TERMS
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REQUEST.
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PG 2 OF 5
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Pg 3 OF 5
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Pg 4 OF 5
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Pg 5 OF 5
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