AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 17, 1999
Registration No.: 0-266932
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT TO FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUER
UNDER SECTION 12(B) OR (G) OF
THE SECURITIES EXCHANGE ACT OF 1934
____________________
PHOTOLOFT.COM
(Name of Small Business Issuer in its Charter)
NEVADA 87-0431036
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
300 ORCHARD CITY DRIVE, SUITE 142 CAMPBELL, CALIFORNIA 95008
(Address of Principal Executive Offices and Zip Code)
Issuer's Telephone Number: (408) 364-8777
Securities to be registered pursuant to Section 12(b) of the Act:
Securities to be registered pursuant to Section 12(g) of the Act:
Common stock, par value $.001 per share
<PAGE>
ITEM 15(b) EXHIBITS
The following exhibits are filed with this registration statement:
Exhibit No. Exhibit Name
- ------------ -------------
*2.1 Agreement and Plan of Reorganization dated as of February 17, 1999 by
and among Data Growth, Inc. Gary B. Peterson and the Registrant.
*3.1 Articles of Incorporation of the Registrant.
*3.2 Certificate of Amendment to the Articles of Incorporation of the
Registrant.
*3.3 By-Laws of Registrant.
*4.1 Sample Stock Certificate of the Registrant.
*4.2 See Exhibit Nos. 3.1, 3.2 and 3.3.
*10.1 Form of Series A preferred stock Purchase Agreement
*10.2 Series B preferred stock Purchase Agreement dated August 1, 1996 by
and among Kris Chellam and the Registrant.
*10.3 OEM/ Re-Marketing Agreement, dated November 15, 1996, by and between
ArcSoft, Inc. and the Registrant.
*10.4 Software License Agreement, dated January 22, 1997 by and between
Seattle Filmworks, Inc, and the Registrant.
*10.5 Online Distribution Agreement, dated April 24, 1997 by and between KC
Audio and the Registrant.
*10.6 OEM License Agreement, dated May 22, 1998, by and between AITech
International and the Registrant.
*10.7 Series C Preferred Stock Purchase Agreement dated June 5, 1997 by and
among Gary Kremen and the Registrant.
*10.8 Distribution and Re-Publishing Agreement dated October 17, 1997 by and
between Softpool, a division of infoMedia GmbH and the Registrant.
*10.9 Engagement letter dated October 24, 1997 between Gary Kremen and the
Registrant.
<PAGE>
*10.10 Letter Agreement dated February 12, 1998 by and between Venture
Banking Group and the Registrant.
*10.11 Distribution Agreement dated March, 1998 by and between Kuni Research
International Corporation and the Registrant.
*10.12 Lease Agreement dated July 8, 1998 by and between The Manufacturer's
Life Insurance Company, (U.S.A.) Company, Ltd., and the Registrant.
10.13 [Intentionally Blank/Updated Form of Agreement Filed as Exhibit 10.32]
*10.14 Sublease Agreement dated September 1, 1998 by and between Surefire
Verification, Inc. and the Registrant.
10.15 [Intentionally Blank/Updated Form of Agreement Filed as Exhibit 10.33]
*10.16 Amendment to an Agreement with Infomedia, dated January 15, 1999.
*10.17 Sublease Agreement dated February 1, 1999 by and between Summit
Microelectronics and the Registrant.
*10.18 Amendment No. 1 to Consulting Services Agreement (Exhibit 10.15
above), dated February 9, 1999 by and between Hewlett-Packard Company
and the Registrant
*10.19 Letter Agreement, dated February 10, 1999 by and between Bay Tree
Capital Associates, LLC and the Registrant.
*10.20 Employment Agreement dated February 26, 1999 by and between Mr. Jack
Marshall and the Registrant.
*10.21 Stock Option Plan of the Registrant.
*10.22 Form of Stock Option Agreement issued under the Stock Option Plan of
the Registrant.
*10.23 Stock Option Agreement dated July 1, 1999 by and between Chris McConn
and the Registrant
*10.24 Stock Option Agreement dated July 1, 1999 by and between Jack
Marshall and the Registrant
*10.25 Co-Branded Marketing Agreement, dated March 8, 1999, by and between
Picture Works and the Registrant.
*10.26 Co-Branded Marketing Agreement, dated March 11, 1999 between Umax
Technologies, Inc. and the Registrant.
<PAGE>
*10.27 Internet Services and Co-Location Agreement, dated March 15, 1999 by
and between AboveNet Communications, Inc. and the Registrant.
*10.28 Cowabunga Reciprocal web site Linking Agreement, dated April,1999 by
and between Cowabunga Enterprises, Inc., a wholly owned subsidiary of
Gateway 2000, Inc. and the Registrant.
*10.29 Representation Agreement, dated April 26, 1999, by and between
ADSmart Network and the Registrant.
*10.30 Co-Branded Marketing Agreement, dated May 3, 1999, by and between
Tribal Voice and the Registrant.
*10.31 Co-Branded Marketing Agreement, dated May 12, 1999, by and between,
Netopia, Inc. and the Registrant.
*10.32 Agreement, dated July 31, 1998, by and between Digital Equipment
Corporation and the Registrant.
*10.33 Consulting Services Agreement, dated October 22, 1998 by and between
Hewlett-Packard Company and the Registrant.
*10.34 Loan and Security Agreement, dated September 27, 1999 by an between
Aerofund Financial, Inc. and the Registrant.
*10.35 Subscription Agreement, dated December 1999, by and between John C.
Marshall, Martha Ann Marshall and the Registrant.
*10.36 Warrant Agreement dated December 1999, by and between John C.
Marshall, Martha Ann Marshall and the Registrant.
*10.37 Subscription Agreement, dated December 1999, by and between Barbara
Marshall and the Registrant.
*10.38 Warrant Agreement dated December 1999, by and between Barbara Marshall
and the Registrant.
*10.39 Subscription Agreement, dated December 1999, by and between Lisa
Marshall, Don Welsh and the Registrant.
*10.40 Warrant Agreement dated December 1999, by and between Lisa Marshall,
Don Welsh and the Registrant.
*10.41 Stock Option Agreement dated December 1999, by and between Lisa
Marshall, Don Welsh and the Registrant.
*21.1 Subsidiaries of the Company
*27.1 Financial Data Schedule
*Previously filed with the SEC.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant caused this post-effective amendment to
registration statement on Form 10-SB to be signed on its behalf by the
undersigned, thereunto duly authorized.
PHOTOLOFT.COM
(Registrant)
Date: February 17, 2000 By: /s/ Jack Marshall
--------------------------------------
Jack Marshall, Chief Executive
Officer, President and Treasurer
<PAGE>
INTENTIONALLY BLANK
INTENTIONALLY BLANK
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
CONSULTING SERVICES AGREEMENT BETWEEN
HEWLETT-PACKARD COMPANY
AND
PHOTOLOFT.COM
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
TABLE OF CONTENTS
SECTIONS OF THE AGREEMENT
1. Definitions
2. HP Obligations
3. Customer obligations
4. Price and Payment
5. Change Orders
6. Acceptance
7. Warranties
8. Licenses
9. Intellectual Property Rights
10. Intellectual Property Indemnity
11. Confidential Information
12. Remedies and Liabilities
13. Term and Termination
14. General
EXHIBITS TO THE AGREEMENT
A. Statement of Work
B. Chan a Order Procedures
<PAGE>
HEWLETT
PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
This Consulting Services Agreement ("Agreement") is made between HEWLETT-PACKARD
COMPANY, a California Corporation ("HP") and Photoloft.Com, a California
corporation ("Customer"), as of October 22, 1998 ("Effective Date").
The purpose of this Agreement is to set forth the mutually agreeable terms and
conditions under which HP will perform Consulting Services and provide
Deliverables to Customer according to one or more Statements of Work.
1. DEFINITIONS
a) "CONSULTING SERVICES" (sometimes referred to as "Work") refers to such
activities as analysis, design, planning, development, consulting,
implementation, education, training and project management as described in a
Statement f Work. Consulting Services may also include other types of services
describe more specifically in a Statement of Work.
b) "DELIVERABLES" means the tangible results of the Consulting Services
provided by HP to Customer as described in a on Statement of Work. Unless
otherwise agreed, the term Deliverable. does not include custom hardware.
c) "SOFTWARE" means one or more programs (including any associated
documentation) capable of operating on a controller, processor or other hardware
device .
a) "STATEMENT OF WORK" means a document attached to this Agreement which
describes a specific project, engagement or assignment ("Project") for which HP
will provide Consulting Services to Customer. More than one Statement of Work
may be attached to this Agreement from time to time.
2. HP OBLIGATIONS
a) HP will use reasonable commercial efforts to perform the Consulting
Services and provide the Deliverables specifically described in ore or more
Statements of Work in accordance with the terms and conditions of this
Agreement. Customer and HP will sign a separate Statement of Work for each
Project that exceeds $10,000, which will be incorporated by reference into this
Agreement upon execution by the parties. Each Statement of Work will: (i) be
made in writing in the form attached an Exhibit A, (ii) reference this
Agreement, (iii) be numbered consecutively n a chronological basis, and (iv) be
executed by authorized representatives of Custom r no HP. Individual Statements
of Work should address at least the following areas:
1. Project description
2. Price, payment and delivery schedules
3. Scope of Consulting Services
4. Acceptance criteria
S. Nature of Deliverables
6. Project cost coordination
b) For all Projects under a value f $10,000, Customer's purchase order
referencing this Agreement will constitute the
applicable Statement of Work upon acceptance by HP.
c) Unless otherwise agreed, Consulting Service will be performed during HP's
normal business hour.
d) HP will use reasonable commercial efforts to provide the Deliverable and
perform the Consulting Service. in accordance with the delivery schedule
specified in each Statement of Work.
e) HE' may select qualified and reputable subcontractors to perform
Consulting Services and/or provide Deliverable.
f) HP will appoint a representative to supervise and coordinate HP's
performance of Consulting Services. HP may change its representative at any
time upon written notice.
a) Unless otherwise agreed in a Statement of Work, HP in not responsible for
providing support for any Deliverables.
3. CUSTOMEROBLIGATIONS
Customer will comply with the general obligations specified below together with
any specific Customer obligations described in a Statement of Work, in a timely
manner.
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
b) Customer acknowledges that HP's ability to deliver the Consulting
Services is dependent upon Customer's full and timely cooperation with HP, as
well as the accuracy and completeness of any information and data Customer
provides to HP. Therefore, Customer will:
1. Provide HP with access to, and use of, all information, data,
documentation, computer time, facilities, working space and office services
deemed necessary by HP.
2. Appoint a representative who will provide professional and prompt liaison
with HP, have the necessary expertise and authority to commit Customer, be
available at all times when HP's personnel are at the Customer's site (or
designate an alternate with the same level of authority in the event of
unavailability caused by illness or other valid reasons), and meet with the HP
representative at regular intervals to be agreed upon t review progress and
resolve any issues relating to the Consultinq Services or Deliverables.
c) Customer will be responsible for maintaining an external procedure for
reconstruction of lost or altered files, data or programs to the extent deemed
necessary by Customer, and for actually reconstructing any such materials.
d) Customer will be liable for any delays to the delivery schedule specified
in each Statement of Work caused by Customer or resulting from Customer's
failure to fulfill any of its obligations. HP may charge Customer for any
additional charges or losses incurred by HP as a result of such delays, and may
adjust the affected delivery schedule accordingly.
a) Customer will be responsible at all times for the supervision, management
and control of the Deliverables and any results obtained from the Deliverables,
including without limitation all responsibility for maintenance of proper
machine configuration, audit controls, operating methods, error detection and
recovery procedures, back-up plans, security, insurance, maintenance and all
that activities necessary to enable Customer to use the Deliverables.
f) Except as expressly provided in this Agreement, Customer has sale
responsibility to ensure that its information technology environment is Year
2000 compliant. HP is not providing Year 2000 services (for example, Year 2000
assessment, conversion or testing) under this Agreement. Customer acknowledges
that HP will not be responsible for failure to perform Consulting Services or
supply Deliverable. under this Agreement, if such failure is the result,
directly or indirectly, of the inability of any products to correctly process,
provide or receive date data (i.e., representations for month, day and year),
and to properly exchange data with the Deliverables by HP ,under this Agreement.
4. PRICE AND PAYMENT
a) Prices for Consulting Services and Deliverables a will be specified in
each Statement of work. Prices quoted in each Statement of Work are valid for
30 days. Prices include all materials and labor expenses, but do net include
sales, use, service, value added or like taxes, or customs duties. Such taxes
and duties, when applicable, will be added to HP's invoices.
b) HP will issue invoices in accordance with the payment schedule specified
in each Statement of Work. Charges for travel expenses may be invoiced
separately. Customer will pay all invoices within 30 days from the date of
invoice. HP may change credit terms upon reasonable notice at any time when, in
HP's opinion, Customer's financial condition, previous payment record, or the
nature of Customer's relationship with HP so warrants.
c) Should any sum due to HP remain unpaid after 60 days from the date of
invoice, HP may terminate this Agreement pursuant t Section 13.b.2 and
discontinue performance under any other agreement with Customer.
5. CHANGE ORDERS
a) "Change Order" means an agreed upon change or modification to the
Deliverables, Consulting Services or that material aspect of a Statement of Work
that complies with the requirements of Exhibit B. Requests by Customer and
recommendations by HP for Change Orders are subject to the procedures set forth
in Exhibit B, and will be made in writing in the form attached to Exhibit B as
Attachment B-1.
b) All Change Orders must be mutually agreed by the parties. Pending such
agreement, HP will continue to perform and be paid as if such Change Order had
not been requested or recommended, provided that if either party process a
Change Older which, in HP's judgment, represents a material change in the
Consulting Services or Deliverables ad such Change Order remains outstanding for
30 days or is rejected by Customer, HP will have the right to terminate the
affected Statement of Work pursuant to Section 13.b.2 below.
6. ACCEPTANCE
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
exhibit TM02
a ) HP will provide notice to Customer when the Deliverables are ready for
acceptance. Acceptance of Deliverables will occur upon
the earlier of: a) the date HP demonstrates to Customer, by the successful
completion of acceptance tests or otherwise, that the Deliverables substantially
conform to the acceptance criteria specified in the applicable Statement of
Work; or b) the date that Customer uses any substantial part of the Deliverables
for any purpose other than performing acceptance tests. Acceptance of
Consulting Services will occur upon HP's performance of such Consulting
Services,
b) In the event that any Deliverable fails to conform substantially to the
acceptance criteria specified in the applicable Statement of Work, HP will have
a reasonable time to remedy such substantial non-conformance, following HP's
receipt of written notice from Customer specifying in reasonable detail the
nature of Such non-conformance. In the event that HP is unable to remedy the
non-conformance: a) Customer may accept the Deliverable without warranty, on an
"AS IS" basis, subject to a reasonable price adjustment; or b) Customer may
return the Deliverable to HP and receive a refund of amounts paid to HP for the
Deliverable.
c) Acceptance will not be delayed for any minor non-conformance with the
requirements specified in any Statement of Work. Following acceptance, HP will
use reasonable commercial efforts to correct any minor non-conformance that
appears during acceptance testing.
d) If acceptance testing is delayed for reasons attributable to Customer,
acceptance will be deemed to occur on the 10th day after notice by HP that the
Deliverable in ready for acceptance testing.
7. WARRANTIES
a) HP will perform Consulting Services in accordance with generally
recognized commercial practices and standards. HP will re-perform any
Consulting Services not performed in accordance with the foregoing warranty,
provided that HP receives notice from Customer within 30 days after such
Consulting Services were performed.
b) HP warrants that Deliverables will substantially conform to the
acceptance criteria specified in the applicable Statement of Work for a period
of 90 days from the date of acceptance.
c) HP does not warrant that the operation of Deliverables will be
uninterrupted or error conform to any reliability or performance standards
beyond those specified in the applicable acceptance criteria. HP also does not
warrant that Deliverables will be compatible with future HP products those of
other vendors.
d) If HP receives notice during the warranty period of any substantial
non-conformance with the acceptance criteria that materially impairs the
functioning of a Deliverable, HP will, at its option, either correct such
non-conformance or provide a work-around which substantially remedies the
non-conformance.
e) If HP is unable within a reasonable time to comply with the foregoing
--
obligations, HP will refund a reasonable portion of the price stated in the
Statement of Work upon or prompt return of the affected Deliverable to HP,
and/or delivery to HP of proof of the destruction of the affected Deliverable.
f) The warranties provided in this Section 7 will not apply in the event of
deemed acceptance under Section 6.a(b) or 6.d above, or to defects or
non-conformance resulting from:
1. Unauthorized, improper or inadequate maintenance or calibration by Customer
or any third party.
2. Software, hardware, interfacing, or supplies not supplied by HP.
3. Unauthorized modification of Deliverables or any portion thereof.
4. Improper use or operation of Deliverable or any portion thereof or
Customer's failure to comply with the applicable environmental specification.
5. Improper site preparation or maintenance by Customer or a third
party.
g) THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN
OR ORAL, IS EXPRESSED OR IMPLIED. HP SPECIFICALLY DISCLAIMS THE IMPLIED
WARRANTIES OF MERCHTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
8. LICENSES
a) Unless otherwise agreed in writing, when HP supplies Customer with a
Deliverable that in whole or in part consists of Software (sometimes referral to
in Sections 8 and 9 as a "Software Deliverable"), such Software Deliverable will
be supplied in object code form only.
b) Upon Customer acceptance of a Deliverable and receipt by HP of the
associated payment in full, HP grants Customer a non-exclusive, perpetual,
non-transferable license to use such Deliverable for its own internal purposes.
Customer's license confers no title or ownership in the Deliverable and no
rights in any associated Software Deliverable source code, and will not be
construed as a sale of any rights in the Deliverable or the media on which it is
recorded or printed.
c) Unless otherwise authorized by HP, Customer may only make copies of
Deliverables for archival purposes, or when copying is an essential step in the
authorized use of a Software Deliverable on a backup controller, processor or
other hardware device.
d) Customer will label each copy of Deliverables made under Section 8.c
above with the copyright notice that appears on the original.
e) Customer will not market, sublicense or otherwise provide the original,
any copy or partial copy, or any derivative of a Deliverable to any third party.
f) Customer's license does not include the right to updates, upgrades or
other enhancements to a Deliverable.
g) Customer will not disassemble or decompile any Software Deliverable
without HP's prior written consent. Where Customer has other rights under
statute, Customer will provide HP with reasonably detailed information regarding
any intended disassembly or decompilation. Customer will not decrypt any
Software Deliverable unless necessary for legitimate use of the Deliverable.
h) HP may terminate Customer's license in any Deliverables upon notice for
failure to comply with the terms of this Agreement. TR the event of termination
of Customer's license, Customer will immediately destroy or return to HP the
affected Deliverable and all partial or complete copies, or provide satisfactory
evidence of in their destruction to HP.
i) Customer grants HP a non-exclusive, worldwide, royalty-free license to
use, copy, make derivative works of, distribute, display, perform, and transmit
Customer's pre-existing copyrighted works or other intellectual property rights
to the extent necessary for HP to perform its obligations under this Agreement.
9. INTELLECTUAL PROPERTY RIGHTS
a) All copyrights aid other intellectual property rights existing prior to
the Effective Date will belong to the party that owned such rights immediately
prior to the Effective Date.
b) Neither party will gain by virtue of this Agreement any rights of
ownership of copyrights, patents, trade secrets, trademarks or any other
intellectual property rights owned by the other.
c) HP will own all copyrights, patents, trade secrets, trademarks and other
intellectual property rights, title and interest in or pertaining to all Works
(including computer programs, Deliverables and Software Deliverables) developed
by HP for purposes of this Agreement.
10. INTELLECTUALPROPERTYINDEMNITY
HP will defend or settle any claim against Customer regarding the Consulting
Services and Deliverables, to the effect that HP knowingly infringed a patent,
utility model, industrial design, copyright, trade secret, mask work or
trademark in the country where, such Deliverables are used or such Consulting
Services are provided.
b) The indemnities provided in Section 10.1 above will apply provided
Customer promptly notifies HP in writing of the claim, and Customer cooperates
with HP in and grants HP sole control of the defense or settlement
c) For infringement claims covered by this Section 10, HP will pay
infringement claim defense costs, settlement amounts and court-awarded damages.
If such a claim regarding a Deliverable appears likely, HP my modify the
Deliverable, procure any necessary license or replace it. If HP determines that
none of these alternatives is reasonably available, HP will refund Customer's
purchase price upon return of the Deliverable if within one year of delivery, or
Customer's net book value thereafter.
d) HP has no obligation for any claim of infringement arising from:
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
1. HP-s compliance with or use of Customer's information, technology,
designs, specifications or instructions, including those incorporated into dry
Statement of Work.
2. Modification of a Deliverable by Customer or a third party.
3. Use of a Deliverable in a way not indicated in a Statement of Work.
4. Use of a Deliverable with products not supplied by HP.
a) This Section 10 states HP's entire liability for claims of intellectual
property infringement.
11. CONFIDENTIAL INFORMATION
HP and Customer agree that all information exchanged between them is not
confidential unless they have entered into a separate confidential disclosure
agreement
12. REMEDIES AND LIABILITIES
a) The remedies in this Agreement are Customer's sole and exclusive
remedies.
b) To the extent HP IS held legally liable to Customer, HP's liability is
limited to:
1. Payments described in Sections 6, 7, and 10 above, this Section 12, and
Section 13.d below.
2. Damages for bodily injury.
3. Direct damages to tangible property up to a limit of U.S. $1,000,000.
c) Notwithstanding Section 12.b above, in no event will HP or its
affiliates, subcontractors and suppliers be liable for any of the following:
1. Actual loss or direct damage that is not listed in Section 12.b above.
2. Damages for loss of data, or Software restoration.
3. Damages relating to Customer's procurement of substitute products or
services (i.e., "cost of cover").
4. Incidental, special or consequential damages, including downtime costs or
lost profits but excluding damages for bodily injury and payments described in
Section 10.c above.
d) The Deliverables are not specifically designed, manufactured or intended
for sale as parts, components or assemblies for the planning, construction,
maintenance, or direct operation of a nuclear facility. Customer will be solely
liable if any Deliverables purchased or licensed by Customer are used for these
applications. Customer will indemnify and hold HP harmless from all loss,
damage, expense or liability in connection with such use.
13. TERM AND TERMINATION
a) This Agreement will commence on the Effective Date and will continue in
force until termination according to the terms of this Agreement. Individual
Statements of Work will be effective upon execution by both parties and will
continue in force until both parties have fulfilled all of their, Project
obligations, or until the earlier termination of such Statement of Work
according to the terms of this Agreement.
b) This Agreement or an individual Statement of Work may be terminated
immediately upon notice in
writing:
1. By either party if the other party is in material breach of any of its
obligations hereunder and fails to remedy such breach within 30 days of receipt
of a written notice by the other party which specifies the material breach.
2. By HP, in the absence of mutual agreement regarding a Change Order which
represents a material change under Section 5,b, or if Customer fails to pay any
sum due under this Agreement within the 60 day time period specified in Section
4.c.
3. By either party if the other party has a receiver appointed, or an
assignee for the benefit of creditors, or in the event of any insolvency or
inability to pay debts as they become due by the other party, except as may be
prohibited by applicable bankruptcy law
c) Either party may terminate this Agreement for convenience upon 30 days
prior written notice to the other party. Any termination of this Agreement will
not relieve either party of its obligations
HEWLETT PACKARD
<PAGE>
CONSULTING SERVICES AGREEMFNT (Deliverables)
E3NbitTM02
under any Statement of Work in effect on the date of termination of this
Agreement, unless otherwise mutually agreed to in writing.
d) Upon termination of any Statement of Work, Customer will pay HP for all
Work performed and charges and expenses incurred by HP up to the date of
termination, and Customer will receive all work in progress for which Customer
has paid. Should the sum of such amounts be less than any advance payment
received by HP, HP will refund the difference within 30 days of receipt of an
invoice from Customer.
a) Sections 4, 7, 8, 9, 10 and 12 above, and Section 14 below, will survive
termination of this Agreement.
14. GENERAL
a) STANDARD PRODUCTS. This Agreement does not cover standard HP hardware and
software products sold or licensed to Customer. Any such transactions will
be governed by the terms of Customer's HP purchase agreement or, in the absence
of a signed purchase agreement, HP's Terms add Conditions of
Sale and Service (Exhibit E16).
b) HEALTH AND SAFETY. HP and any of its subcontractors will, when at the
Customer's site, conduct
their activities so that their equipment, working conditions and methods are
safe and without risk to health for their own and Customer's employees as well
as for any that user. other Customer's site.
c) NON-RESTRICTIIVE RELATIONSHIP. HP may provide the same or similar
Consulting Services and Deliverables to other customer
d) NO PUBLICITY. Neither party will publicize or disclose to any third
party without the consent of the other party, either the price or other terms f
this Agreement or the fact of its existence. a aid execution, except as may be
necessary to comply with other obligations stated in this Agreement.
e) NO JOINT VENTURE. N thing contained in this Agreement will be construed
as creating a joint venture, partnership or employment relationship between the
parties hereto, nor will either party have the right, power or authority to
create any obligation or only, express or implied on behalf of the other.
f) NO ASSIGNMENT. Except will respect to HP's rights regarding the use of
subcontractors, neither party may assign any rights or obligations under this
Agreement to any Statement of Work without the prior written consent of the that
party.
g) EXPORT ADMINISTRATION REGULATIONS. If Customer exports any Deliverable
outside the country in which the Deliverable is delivered to Customer, Customer
assumes responsibility for complying with applicable laws and regulations and
for obtaining required export and import authorizations. Customer will not
export or re-export any technical data in violation of U.S. Export
Administration regulations or other applicable export regulations.
h) FORCE MAJEURE. Neither party will be liable for performance delays or
for non-performance due to causes beyond its reasonable control.
i) NOTICES. All notices required under or regarding this Agreement or any
individual Statement of Work will be in writing and will be considered given
upon personal delivery of a written notice to the HP representative or Customer
representative designated in the Statement of Work, or within five days of
mailing, postage prepaid and appropriately addressed.
j) WAIER. Neither party's failure to exercise any of its rights under this
Agreement will constitute or be deemed a waiver or forfeiture of those rights.
k) SERABILITY. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the remainder of
this Agreement will not be affected.
1) EXHIBITS. The fo1lowing documents are attached hereto as exhibits, the
terms of which are incorporated by reference in their entirety:
A Statement of Work (and all subsequently executed Statements of Work)
B change Order Procedures
m) PRECEDENCE. In the event of conflict between the provision. of this
Agreement and any attached exhibit or Statement of Work, the provisions of this
Agreement will to the extent of such conflict take precedence.
n) ENTIRE AGREEMENT. This Agreement and its exhibits and Statements of Work
constitute the entire agreement between HP and Customer and supersede any prior
or contemporaneous communications,
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
representations or agreements between the parties, whether oral or written,
regarding the subject matter of this Agreement. Customer's additional or
different terms and conditions will not apply. The terms and conditions of this
Agreement may not be changed except by an amendment signed by an authorized
representative of each party.
o) APPLICABLE LAW. This Agreement is made under and will be construed in
accordance with the law of
California without giving effect to that state's choice of law rules.
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
AGREED TO: AGREED TO:
HP _____________________ Customer _____________________
s. Srinivas Sukumar s. Jack Marshall
--------------------- ------------------
Authorized Representative Authorized Representative
Signature Signature
Name: Srinivas Sukumar Name: Jack Marshall
Title: Hewlett Packard Title: CEO- PhotoLoft.com
ITIO Genera Manager
Address: 1100 Wolf Road Address: 300 Orchard City Dr.
Cupertino, CA 95014, USA Suite 142
Campbell, CA 95008
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
EXHIBIT A
STATEMENT OF WORK FORM
Hewlett-Packard Company
Imaging Solution Project Services
Statement of Work
with
Photoloft Company
for the
Image Print Solution
Date of Issue: October 21,1998
Revision: 1.0
Engagement I.D.: IT101289
Prepared by: JP Wollersheim, HP
Internet Imaging Project Lead,
408/447-2016
Copyright October, 1998
Hewlett-Packard Company- Unpublished
Work - ALL RIGHTS RESERVED
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
<S> <C>
1. BACKGROUND. . . . . . . . . . . . . . . . . . . . . . 4
1.1 INTRODUCTION. . . . . . . . . . . . . . . . . . . 4
2 SCOPE OF WORK . . . . . . . . . . . . . . . . . 5
2.1 SCOPE DEFINITION . . . . . . . . . . . . . . . . . 5
2.2 GENERAL EXCEPTIONS. . . . . . . . . . . . . . . . 10
2.3 OTHER CONTRACTUAL OBLIGATIONS FROM HP & PHOTOLOFT 10
3. PHOTOLOFI'COMPANY OBLIGATIONS. . . . . . . . . . . . 11
4. LIMITATIONS AND ASSUMPTIONS. . . . . . . . . . . . . 12
5. OTHER CONSIDERATIONS . . . . . . . . . . . . . . . . 12
5.1 CHANGE PROCESS. . . . . . . . . . . . . . . . . . 12
5.2 ESCALATION PROCESS. . . . . . . . . . . . . . . . 13
6. SCHEDULE. . . . . . . . . . . . . . . . . . . . . . . 13
7. ORDER AND PAYMENT INFORMATION . . . . . . . . . . . . 14
7.1 PRICING . . . . . . . . . . . . . . . . . . . . . 14
7.2 PAYMENT SCHEDULE . . . . . . . . . . . . . . . . 14
8. AUTHORIZATION . . . . . . . . . . . . . . . . . . . . 16
8.1 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . 16
8.2 SIGNATURE. . . . . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE>
Proprietary Notice
Restriction on Use and Disclosure of Proposal and Quotation Information
Data
The information contained in this Statement of Work or Exhibit A
constitutes a trade secret and/or information that is commercial or
financial and confidential or privileged. It is furnished to Photoloft
Company in confidence with the understanding that it will not, without the
prior written permission of Hewlett-Packard, be used or disclosed for other
than evaluation purposes; provided, however that in the event a contract is
awarded on the basis of this Exhibit A, Photoloft Company shall have the
right to use and disclose this information to the extent provided in the
contract. This restriction does not limit Photoloft Company's right to use
or disclose this information if obtained from another source without
restriction. Hewlett-Packard represents only the HP products and services
as set forth herein, and makes no representations, warranties, guarantees
or commitments for any third-party products or services.
<PAGE>
1. BACKGROUND
1.1 INTRODUCTION
This document is the Statement of Work (SOW) for Hewlett-Packard, acting
through ft's Internet Imaging Operation (HP ITIO) to Photoloft Company
located in Campbell, California for the Image Print Solution. It represents
Hewlett-Packard's solution based upon HP's current understanding of
Photoloft Company's needs.
HP's overall intention is to provide a two phased approach to the
Photoloft.com website implementation, however this proposal covers toe
obligations of phase 1. Phase 2 is included for reference and discussion
purposes only.
Phase I
HP & Photoloft will perform the following activity
- Internet Imaging server integration into Photoloft.com
- Photorealistic print solution for Photoloft.com to allow their users
to print off any combination of 3x5, 4x6 or 8xl0 images from the
internet.
- Integration points and development guidelines for the photoloft.com
side of the print solution
- Documentation on the print solution
- Joint Press release stating the joint project - HP will provide
content for HP's press release, Photoloft will provide their own
content.
- Image.hp.com will maintain a link to the photoloft.com
website.Photoloft.com will maintain a link to the image.hp.com website
- HP and Photoloft will participate in relevant joint trade shows in a
cost sharing fashion
- HP ITIO will provide introductions to other divisions within HP who
value the types of services Photoloft brings to bear. These divisions
include HP Corporate Programs (for ID 4 Life), printer divisions and
complementary products divisions.
- Photoloft will provide to Hewlett Packard ITIO $25K worth of
advertising.
- In exchange for an HP2000C Photo Resolution Printer to be provided by
Hewlett Packard at no charge, Photoloft will place the HP OpenPix Logo
(Ignited by) with a link to image.hp.com/photoloft
<PAGE>
Phase 2
Continue to help Photoloft implement a lower cost, interactive imaging
process which will simplify the database image storage mechanism, and offer
the additional functionality of image interactivity (zoom and pan) on the
internet.
Under non-disclosure, HP ITIO will provide to Photoloft an overview of
where we are taking the internet imaging group of products and how the
partnership with HP ITIO will potentially increase Photoloft's revenue
potential.
2. SCOPE OF WORK
2.1 SCOPE DEFINITION
The Scope of Work defines all activities to be delivered by Hewlett-Packard
for Photoloft Company's Image Print Solution. This section defines what
Hewlett-Packard will do and what Photoloft Company receives as a result of
the activities.
Each activity included below is further defined and described below with
the following components:
Activity Name - identifies the services activity by number and name Task
Description - defines the activity and the resulting deliverable Acceptance
Criteria - acceptance criteria for the deliverable Photoloft Company
Obligations - describes any Photoloft Company responsibilities and/or HP
assumptions unique to an activity
WORK BREAKDOWN STRUCTURE
The figure below illustrates the organization of the tasks for the first
phase of the Image Print Solution. This Work Breakdown Structure (WBS)
diagram for this phase defines and organizes all work activities to be
performed.
<PAGE>
Week# 1 2 3 4
Detailed Project Plan *
DISCOVERY *
Kickoff
DEVELOP
Track Progress-Weekly * * *
Functional Specification *
DOCUMENT
Print Client Documentation *
DELIVER *
Test & Acceptance Complete *
Project Timeline for Phase I of the Image Print Solution
HP's OpenPix Image Print Solution is an engagement to create a
customized helper application for Photoloft's users to be able to
print off hire solution images from their website-www.photoloft.com.
HP will design and implement the custom application. Photoloft Company
will benefit from the application by having a tool to allow users to
print off photographic quality images from the internet either
singular or in batch mode.
The objective of this 4 calendar week engagement is to have Hewlett
Packard provide a helper application as well as offer development
guidelines as to how to design the Photoloft website in order to
effectively implement the helper application. The engagement will be
generally executed as follows:
HP will plan, schedule, and resource the OpenPix Image Print Solution
phase of the engagement. The HP team will conduct the solution
implementation in four phases
<PAGE>
2.1.1 DISCOVERY
SUMMARY: The purpose of this task is to create the plan to define the
administrative and management controls to be employed during the Image
Print Solution activities. The intended use of the Project Plan is to
organize, document and maintain all engagement planning and process
information related to project management, quality assurance, change
management, configuration management, and system engineering.
The HP development team will analyze the project objectives and goals and
recommend new processes in order for Photoloft to effectively utilize the
new features of HP OpenF'ix and the Print solution.
HP will spend eight (8) hours over two (2) days at Photoloft in order to
effectively understand the current processes. HP will spend the remaining
days developing the detailed implementation plan that will be delivered to
Photoloft the following week.
ACCEPTANCE CRITERIA - This task will result in delivery of a Project Plan
document estimated at 10 pages. HP will submit the plan electronically in
MS Word format and Photoloft will sign the acceptance criteria sheet for
the plan.
INTRODUCTION. This section will include a summarization of the
purpose, scope and content of the Project Plan.
PURPOSE AND DESCRIPTION OF THE SOLUTION. This section will describe
the purpose, scope, and major functions of the solution. This
description will provide a contextual background for understanding the
objectives for the management planning information presented in the
Project Plan.
CHANGE MANAGEMENT PLAN. This section will describe the activities and
plans for change management to be performed by HP. The plan includes
change management process, configuration control activities, change
identification, change control, and change status accounting.
<PAGE>
DEFINITION OF CURRENT PROCESSES AND SYSTEMS. This section will define
the current processes in use at Photoloft for their internet website
design and creation as it relates to hire solution image printing.
DEFINITION OF INTEGRATION POINTS FOR THE IMAGE PRINT SOLUTION. This
section will include all of the detailed information for all of the
integration points between the current internet web site image
printing processes and tools and the new methods and tools created by
Hewlett Packard.
SYSTEM TEST PLAN. This section of the document will detail a Test Plan
to provide the scenarios defining the formal tests, inspections,
analysis, demonstrations, and verifications as appropriate to prove
compliance with the system functional and operational requirements in
the to-be-developed HP design documentation. The Test Plan will define
the test methodology and strategies to be implemented in the Test
Procedures. All resources necessary to complete the system acceptance
testing will be identified including the test location, test equipment
and data to be supplied by Photoloft Company, as well as all HP and
Photoloft Company personnel and skills required.
FUNCTIONAL SPECIFICATION - The purpose of this section is to design
the customized Photoloft Company Image Print Solution functional
capabilities. The HP design will address the areas of hi resolution
image printing from the Photoloft internet website using the HP
Developed helper application.
PHOTOLOFT COMPANY OBLIGATIONS - Photoloft Company will be responsible for
reviewing and approving the contents of the initial release version of the
Project Plan.
2.1.2 DEVELOPMENT
SUMMARY: The purpose of this task is to develop the helper application that
will allow the users of the photoloft website to print off hi resolution
<PAGE>
images from the internet. HP will make recommendations for any necessary
changes to the practices for them to best support the Image Print Solution.
This development will include, but is not limited to
- Client Side Photo Realistic Image Printing Helper Application which
will use the Photoloft image server to deliver any combination of
single copies or multiple pages of 3"x5", 4"x6" or8"xl0" image pages
printed off on an 8.5" x 11 " sheet of paper.
- Help integrating the helper application into the Photoloft current
bundle
- Assistance in integrating the application into Photoloft.com at the
appropriate integration points
- Content for website on how to capture images and print images
appropriately.
ACCEPTANCE CRITERIA: Use of the print helper application.
PHOTOLOFT COMPANY OBLIGATIONS - Photoloft Company must provide access to
all documentation regarding currently existing processes and practices.
Photoloft Company IT and web personnel must participate in the planning and
process specification development including all work shops, planning
meetings and documentation development activities to be identified in the
Project Plan. Photoloft Company shall be responsible for reviewing and
approving the contents of this.
2.1.3 DOCUMENTATION
SUMMARY: HP will fully document the Photoloft OpenPix Image Print Solution
and all of the associated processes and integration points. This
documentation is intended to be used during the training period of the
system, as well as its day to day use.
2.1.4 DELIVERY
SUMMARY: HP will help Photoloft personal install and integrate the
Photoloft OpenPix Image Print Solution into the current infrastructure at
the appropriate integration points as defined in the discovery phase.
Testing of the photo realistic printing application will be conducted at
that time based on the test plan outlined in the discovery phase of the
project.
Work on this engagement will be performed in Hewlett Packard in Cupertino,
CA as well as at Photoloft Company in Campbell, CA. Hewlett-Packard
provides this proposal on a budgetary price basis.
Photoloft Company is assuming the role of Prime Contractor for the Image
Print Solution. Hewlett-Packard will interact with any third parties
involved in the engagement for the purpose of identifying HP's roles,
integrating HP, other subcontractor and Photoloft Company tasks, and
tracking progress. HP is not the prime contractor on this engagement and
will not be responsible for the deliverables of any third parties.
2.2 GENERAL EXCEPTIONS
The following exceptions further represent Hewlett-Packard's current
understanding of the engagement and further defines the engagement scope.
For the purpose of this section, exceptions are defined as items previously
documented or discussed as engagement requirements that Hewlett-Packard
does not consider part of the engagement scope.
- Performing daily image management and image manipulation activities
other than those in the testing and delivery phases of this document
- Installing and configuring the Operating System(s)
- Developing any portion of the user interface on the Photoloft.com
website
- Developing the integration points on the server side (while Hewlett
Packard will recommend how the integration points should be
implemented, HP recommends that Photoloft perform this development)
2.3 OTHER CONTRACTUAL OBLIGATIONS FROM HP & PHOTOLOFT
Alongside the technical nature of the project, there are marketing and
other opportunities that HP and Photoloft. The following list is a summary
of the other activities that HP and Photoloft have committed to execute
over the next six (6) month period
- Joint Press release stating the joint project - HP will provide
content for HP's press release, Photoloft will provide their own
content.
- Image.hp.com will maintain a link to the photoloft.com website.
Photoloft.com will maintain a link to the image.hp.com website.
- HP and Photoloft will participate in relevant joint trade shows in a
cost sharing fashion.
- HP ITIO will provide introductions to other divisions within HP who
value the types of services Photoloft brings to bear. These divisions
include HP Corporate Programs (for ID 4 Life), printer divisions and
complementary products divisions.
- Photoloft will provide to Hewlett Packard ITIO $25K worth of
advertising.
3. PHOTOLOFT COMPANY OBLIGATIONS
An individual with centralized responsibility for all Photoloft Company
aspects of this consulting engagement must be assigned. This individual
must have the authority to make all decisions relative to the consulting
engagement and to either assign resources or negotiate the assignment of
resources within Photoloft Company. In addition, this individual or
designee must be available for deliverable acceptance and approval in
accordance with the consulting engagement schedule. The Photoloft Company
Project Lead will verify compliance of each deliverable with the Acceptance
Criteria defined for each deliverable in the Statement of Work section of
this document and shall then indicate agreement with the compliance by
signature either on a signature page to be part of the deliverable or on a
separate document to be provided by HP.
Photoloft Company will assign a team of executives, managers and individual
contributors to work with the HP team throughout the engagement. It is
expected that this team will require participation from Photoloft Company
design, implementation, support, and maintenance organizations. Personnel
skills required will be in the general areas of support, network
management, systems management, business applications, purchasing, help
desk, end users, and site representatives. This team will be responsible
for complying with agreed-to meeting times(both starting and duration), and
with providing the requested information on a timely basis for the duration
of the engagement.
Photoloft Company must provide a suitable work area space with desk, chair,
and at least one telephone, which must be on an analog line suitable for
modem digital data transmission, for use by the HP team to conduct
engagement business while working onsite at Photoloft Company. Photoloft
Company must also provide the onsite project team with access to copiers,
fax, and simple clerical support.
4. LIMITATIONS AND ASSUMPTIONS
An engagement start date of October 12, 1998 has been assumed for resource
scheduling and pricing. Photoloft is advised to offer Hewlett Packard seven
(7) days notice in advance of October 12 to allow for appropriate
scheduling. Changes to this start date will effect the availability of key
engagement resources and, therefore, the engagement duration and price
HP services will normally be performed during normal business working
hours, Monday through Friday, 8:00 am to 5:00 p.m., excluding HP holidays.
Some engagement services may require some work to be performed outside of
these standard work hours. This off-hours work will be addressed and
handled on a case-by-case basis with the Photoloft Company Project Lead.
All deliverable documentation created for this engagement will be available
in both hard copy and electronic format. The electronic format will be
MSWord. The engagement planning software used for this engagement is MS
Project. If Photoloft Company requests the use of an additional or
different software tool not known to the engagement personnel, the
Photoloft Company will be responsible for the costs of acquiring the
necessary software and training courses and/or time necessary for the
engagement personnel to learn the tool.
5. OTHER CONSIDERATIONS
5.1 CHANGE PROCESS
This engagement has defined deliverables as detailed in the Scope of Work
section of this document. If requirements arise that are outside the scope
of this SOW, a change order will be submitted and processed in accordance
with the "Change Orders" section of the terms and conditions to which this
Statement of Work is an Exhibit.
Either the HP team or Photoloft Company can initiate a change to the
engagement. The change will be evaluated and technical and engagement
issues will be identified. The cost, scope, and schedule impact, if any,
will be analyzed and documented. The change will then be processed for
decision and closure or implementation.
In the event HP and Photoloft Company do not reach agreement on the change
order, the scope of work of this engagement remain as it is defined in this
document.
5.2 ESCALATION PROCESS
HP takes a proactive approach to project management to plan and structure
the work at high quality levels. At times, however, there are circumstances
(engagement issues) that were not anticipated or prevented and can, if not
addressed, affect the success of the engagement. Typically an engagement
issue is a circumstance that needs HP or Photoloft Company management
(outside of the engagement) awareness or focus on a problem that has
lingered longer than allowable.
The timely resolution of issues is critical to maintaining control of the
engagement and achieving the engagement schedule and costs. The purpose of
the escalation process is to ensure that issues and problems are properly
managed and resolved in a timely and efficient manner. The escalation
process provides a mechanistic means to alert higher levels of management
attention to those issues not being resolved.
Either the HP team or Photoloft Company can initiate or raise an issue
related to the engagement. The issue will be raised to the Project Lead
and, if not resolved in a predetermined period, the issue will
automatically be raised to the engagement manager. The issue will be
resolved under the guidance of the engagement manager, or if still not
resolved in a predetermined period, the issue will automatically be raised
to the delivery manager. For the purposes of defining the escalation
process, "resolved" as used here can mean that the issue is being attended
to but not necessarily completed.
6. SCHEDULE
The preliminary engagement schedule for the Image Print Solution engagement
is based on an estimated start date of October 12, 1998. The final
engagement schedule will be provided following engagement start. The HP
services are currently scheduled to start on or about October 12,1998 and
to continue for a 4 calendar week period ending on or about November 9,
1998. This start date assumes receipt of a purchase order seven (7) days in
advance of the start of the engagement.
<PAGE>
7. ORDER AND PAYMENT INFORMATION
7.1 PRICING
The Image Print Solution services defined in this Statement of Work are
proposed to Photoloft Company on a budgetary price basis. Photoloft Company
will be invoiced on a milestone basis.
This engagement is proposed to Photoloft Company for a firm, fixed price of
$ 75,000.
This Statement of Work is valid for thirty (30) days from date of issue.
7.2 PAYMENT SCHEDULE
HP will invoice Photoloft Company in accordance with the following table.
<TABLE>
<CAPTION>
ENGAGEMENT
ID # ITIO1289
- -------------
PRODUCT NO. DESCRIPTION PRICE INVOICE
- ------------- --------------------- ----------- ------------------------
<S> <C> <C> <C>
$28,625 upon
completion of
deliverables, and
Photoloft-Image remaining outstanding
Print Solution balance 6 months after
B75122A Implementation $ 57,250 signed contract.
- ------------- --------------------- ----------- ------------------------
Included for 6 months
in above cost.
Image Print Subsequent support to
Solution Support $7,500/year be purchased annually.
--------------------- ----------- ------------------------
HP OpenPix
Image Igniter $ 4,995/cpu Included in above cost
--------------------- ----------- ------------------------
Photoloft will generate
a single page contract
which is valid
for $25K in
advertising (at
Photoloft's current
pricing as of
Photoloft Advertising October 27, 1999
--------------------- ------------------------
</TABLE>
Please send your purchase order to:
Hewlett-Packard CompanyCupertino, CA MS 42UO
11000 Wolfe Road
Cupertino, California
<PAGE>
8. AUTHORIZATION
8.1 ENTIRE AGREEMENT
This Statement of Work and the attached Consulting Services Agreement,
including any exhibits and appendices, constitutes the entire agreement
between HP and Photoloft Company, and supersedes any previous
communications, representations or agreements between the parties, whether
oral or written, regarding transactions hereunder. Photoloft Company's
additional or different terms and conditions will not apply. This Statement
of Work will be governed by the terms and conditions to which this document
is an exhibit.
8.2 SIGNATURE
Signature below indicates Photoloft Company's acceptance of this consulting
services Statement of Work. Hewlett-Packard will require a valid purchase
order reflecting this Statement of Work to begin work as well as to issue
invoices in accordance with the Payment Schedule in section 7.2.
Hewlett-Packard Company
PhotoIoft Company
By: By:
Name: Name:
Title: Title:
Date: Date:
Please sign two copies of this document and return to Hewlett-Packard with
your purchase order. Hewlett-Packard will sign and return one copy to your
attention.
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
EXHIBIT B
CHANGE ORDER PROCEDURES
The following procedures will be observed for all Change Orders:
1. Either party may request a Change Order but all Change Orders must be in
writing and prepared by HP. HP may charge a reasonable fee for investigating,
preparing or initiating a Change Order at Customer's request.
2. Change Order requests will be processed as a on as is reasonably
possible.
3. All Change Orders will be in the form attached hereto as Attachment B-1
to Exhibit B, and will be signed by the appointed representative for each party
(or individuals specified in writing as substitute during periods of illness or
absence).
4. Change Orders will include the following:
a) A description of any additional work to be performed and/or any changes
to the performance required of either party.
b) A statement of the impact of the work or changes on the Consulting
Services, the Deliverables, the acceptance tests or criteria, or other
requirements of the Agreement.
c) The estimated timetable to complete the work specified in the Change Order
and the impact, if any, on the delivery schedule, pricing and payments.
d) Specific individuals with management or coordination responsibilities.
a) The documentation to be modified or supplied as part or the work.
f) Any additional acceptance test procedures for such work.
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
EXHIBIT B
TO CONSULTING SERVICES ADDENDUM
ATTACHMENT B-1
CHANGE ORDER FORM
1. Describe services or changes requested (attach additional pages if
necessary).
REQUESTED BY CUSTOMER: REQUESTED BY:
Customer: ________________ HP: ______________
___________________________ __________________________
Authorized Representative Signature Representative Signature
Name: _________________ Name: ____________________
Title: _______________ Title: __________________
Date: ________________ Date: ___________________
2. Modifications, clarifications or supplements to description of services or
changes requested in paragraph 1 above, if any (attach additional pages if
necessary):
3. Assignment of necessary HP personnel and resources (attach additional pages
if necessary):
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Exhibit TM02
4. Impact on price, delivery schedule, payment schedule, Deliverables,
Consulting Services and ancceptance test procedures and criteria (attach
additional pages if nece5sary):
a. Price
b. Delivery Schedule and Payment Schedule
c. Deliverables
d. Consulting Services
a. Acceptance Test Procedures and Criteria
<PAGE>
HEWLETT PACKARD
CONSULTING SERVICES AGREEMENT (Deliverables)
Fxhibit TM02
Change Order Approved and Accepted
Customer: ______________________ HP: ______________________________
_________________________________ ___________________________________
Authorized Representative Signature Authorized Representative Signature
Name: _________________________ Name: ____________________________
Title: _________________________ Title: ___________________________
Date: _________________________ Date: ____________________________
Change Order Rejected
Customer: ___________________________ HP:______________________________
__________________________________ _________________________________
Authorized Representative Signature Authorized Representative Signature
Name: ____________________ Name: _________________________
Title: ____________________ Title: ________________________
Date: ____________________ Date: _________________________
Hewlett Packard
Confidential Disclosure Agreement
Effective Date: 2-24-99
-------
In order to protect certain confidential information, Hewlett-Packard Company
and its corporate affiliates ("HP"), and the "Participant" identified below,
agree that:
1. Disclosing Party: The party disclosing confidential information
("Discloser") is ________ (NOTE: Fill in "HP", "Participant", or "both
parties".)
2. Primary Represenative: Each party's representative for coordinating
disclosure or receipt of confidential information is:
HP: Srinivas Sukumar
-------------------
Participant:_____________
3. Description of Confidential Information: The confidential information
disclosed under this Agreement is described as:
HP:_____________________________
Participant:__________________________________
(note: be specific, for example, individually list materials provided. Attach
additional sheets if needed.)
4. Use of Confidential Information: The party receiving confidential
information ("Recipient") shall make use of the confidential information
only for the following purpose (e.g., "evaluation and testing for a
make/buy decision on project xyz."):
HP:_____________________________
Participant:__________________________________
5. Confidentiality Period: This Agreement and Recipient's duty to hold
confidential information in confidence expire
on:_______________________________ (Note: this is the period of protection
of confidential information.)
6. Disclosure Period: This Agreement pertains to confidential information that
is disclosed between the Effective Date and
____________________________________ (note: this is the period during which
confidential information is going to be disclosed.)
7. Standard of Care: Recipient shall protect the disclosed confidential
information by using the same degree of care, but no less than a reasonable
degree of care to prevent the unauthorized use, dissemination, or
publication of the confidential information as Recipient uses to protect
its own confidential information of a like nature.
8. Markings: Recipient's obligations shall only extend to confidential
information that is described in paragraph 3, and that: (a) comprises
specific materials individually listed in parragraph 3; or, (b) is marked
as confidential at the time of disclosure; or, (c) is unmarked (e.g. orally
disclosed) but treated as confidential at the time of disclosure, and is
designated as confidential in a written memorandum sent to Recipient's
primary representative within thirty days of disclosure, summarizing the
confidential information sufficiently for identification.
9. Exclusions: This Agreement imposes no obligation upon Recipient with
respect to information that: (a) was in Recipient's possession before
receipt of Discloser; (b) is or becomes a matter of public knowledge
through no fault of Recipient; (c) is rightfully received by Recipient from
a third party without a duty of confidentiality; (d) is disclosed by
Discloser to a third party without a duty of confidentiality on the third
party; (e) is independently developed by Recipient; (f) is disclosed under
operation of law; or (g) is disclosed by Recipient with Discloser's prior
written approval.
10. Warranty: Each Discloser warrants that it has the right to make the
disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY EITHER
PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT
IS PROVIDED "AS IS".
11. Rights: Neither party acquires any intellectual property rights under this
Agreement except the limited rights necessary to carry out the purposes set
forth in paragraph 4. This Agreement shall not restrict reassignment of
Recipient's employees.
Miscellaneous
12. This Agreement imposes no obligation on either party to purchase, sell,
license, transfer or otherwise dispose of any technology, services or
products.
13. Both parties shall adhere to all applicable laws, regulations and rules
relating to the export of technical data, and shall not export or reexport
any technical data, any products received from Discloser, or the direct
product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
14. This Agreement does not create any agency or partnership relationship.
15. All additions or modifications to this Agreement must be made in writing
and must be signed by both parties.
16. This Agreement is made under, and shall not be construed according to, the
laws of the State of California, USA.
Hewlett-Packard Company
_____________________
(entity Name)
_____________________
(address)
By___________________
(functional manager's signature)
_____________________
(name)
_____________________
(title)
Participant
Photoloft.com
300 Orchard City Drive Ste. 142
By s. Jack Marshall
------------------
Jack Marshall
President
<PAGE>
