EXHIBIT 10.1
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
BETWEEN INTERNATIONAL BUSINESS MACHINES CORPORATION AND
FIRST VIRTUAL COMMUNICATIONS
Agreement #4904FS0629
This Base Agreement ("BASE AGREEMENT") dated as of August 11, 2004 ("EFFECTIVE
DATE"), between International Business Machines Corporation ("BUYER") and First
Virtual Communications ("SUPPLIER"), establishes the basis for a multinational
procurement relationship under which Supplier will provide Buyer the
Deliverables and Services described in Statements of Work ("SOW") issued under
this Base Agreement. Deliverables and Services acquired by Buyer or Customer on
or after the Effective Date will be covered by this Base Agreement. This Base
Agreement will remain in effect until terminated.
1.0 DEFINITIONS
All definitions set forth in this Base Agreement apply to their singular and
plural forms, as the context may require. All references to "SECTION" refer to
sections in this Base Agreement. Unless otherwise expressly noted, "I/INCLUDING"
means "including without limitation." "H/HEREIN," "HEREUNDER," "HEREOF," and
similar expressions refer to this Base Agreement. Buyer or Supplier are
sometimes referred to herein as a "PARTY" and collectively as "PARTIES."
"AFFILIATES" means entities that control, are controlled by, or are under common
control with, a party to this Base Agreement.
"AGREEMENT" means this Base Agreement and any relevant Statements of Work
("SOW"), Work Authorizations ("WA"), and other attachments or appendices
specifically referenced in this Base Agreement.
"BUSINESS PARTNER AGREEMENT" means an agreement executed between Buyer and
Supplier to promote, market, and support certain products and services.
"CUSTOMER" means Buyer's customer.
"DELIVERABLES" means items that Supplier prepares for, or provides to Buyer or
Customer, pursuant to a SOW. Deliverables consist of Program Products, Developed
Works, Preexisting Materials and Tools.
"DEVELOPED WORKS" (i) means all work product (including object and source code
of software) and Inventions developed pursuant to this Base Agreement as
described in a SOW, and (ii) does not include (x) Preexisting Materials, Tools,
Program Products or (y) other items specifically excluded from the definition of
"Developed Works" in a SOW.
"ELECTRONIC SELF-HELP" means a process where Supplier electronically disables,
removes, or otherwise prevents the use of its software product without the
Buyer's or Buyer's Customer's cooperation or consent. Electronic Self-Help could
be done through electronic or other means (for example: remotely through "back
doors" or hidden entrances in the software or through hidden shut-down commands
in the software that can be activated by phone or in other ways).
"EXTERNALS" means any pictorial, graphic, audiovisual works, reports or data
generated by execution of code and any programming interfaces, languages or
protocols implemented in the code to enable interaction with other computer
programs or end users. Externals do not include the code that implements them.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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"INVENTIONS" means ideas, designs, concepts, techniques, inventions, discoveries
or improvements, whether or not patentable, conceived or reduced to practice by
Supplier Personnel in performance of this Base Agreement.
"PARTICIPATION AGREEMENT" or "PA" means an agreement signed by one or more
Affiliates which incorporates by reference the terms and conditions in this Base
Agreement, any relevant SOW, and other attachments or appendices specifically
referenced in the PA.
"PERSONNEL" means agents, employees or subcontractors engaged or appointed by
Buyer or Supplier.
"PREEXISTING MATERIALS" means items including their Externals, contained within
a Deliverable, in which the copyrights are owned by a third party or that
Supplier prepared or had prepared outside the scope of this Base Agreement.
Preexisting Materials exclude all Program Products and Tools, but may include
material that is created by the use of Tools.
"PRICES" means the agreed upon payment and currency for Deliverables and
Services, including all applicable fees, payment terms and schedules, payment
amounts and taxes, all as specified in the relevant SOW and/or WA.
"PROGRAM PRODUCTS" means Supplier's commercially available software and the
documentation required to install, support, use, and maintain it.
"SERVICES" means work that Supplier performs for Buyer as described in a SOW.
"STATEMENT OF WORK" or "SOW" means any document that:
1. identifies itself as a statement of work;
2. is signed by both parties;
3. incorporates by reference the terms and conditions of this Base Agreement;
and
4. describes the Deliverables, Services and Prices, including any requirements,
specifications or schedules.
"TAXES" means any and all applicable taxes, charges, fees, levies or other
assessments imposed or collected by any governmental entity worldwide or any
political subdivision thereof and however designated or levied on sales of
Deliverables or Services, or sales, use, transfer, goods and services or value
added tax or any other duties or fees related to any payment made by Buyer to
Supplier for Deliverables and/or Service provided by Supplier to Buyer under or
pursuant to this Base Agreement; exclusive, however, of taxes imposed upon the
net income or capital of Supplier or taxes in lieu of such net income taxes or
such other taxes which are to be borne by the Supplier under law. Supplier shall
also bear sole responsibility for all taxes, assessments, or other levies on its
own leased or purchased property, equipment or software.
"TOOLS" means software that is not commercially available, and its Externals,
required for the development, maintenance or implementation of a software
Deliverable other than a Program Product.
"WORK AUTHORIZATION" or "WA" means Buyer's authorization in either electronic or
tangible form for Supplier to conduct transactions under this Base Agreement in
accordance with the applicable SOW (i.e., a purchase order, bill of lading, or
other Buyer designated document). A SOW is a WA only if designated as such in
writing by Buyer and it is agreed to and signed by Supplier.
2.0 STATEMENT OF WORK
Supplier will provide Deliverables and Services as specified in the relevant SOW
only when specified in a WA. Supplier will begin work only after Supplier signs
and sends Buyer a WA, which had been signed by Buyer. Buyer or Supplier may
request changes to a SOW. Supplier will submit to Buyer the impact of such
requested changes in terms of Pricing, delivery, schedule and other factors.
Changes requested by Supplier and accepted by Buyer will be specified in an
amended SOW signed by both
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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parties. Changes requested by Buyer and accepted by Supplier shall be set forth
in a WA document signed by both parties.
3.0 PRICING
Supplier will provide Deliverables and Services to Buyer for the Prices. The
Prices for Deliverables and Services specified in a SOW and/or WA and accepted
by Buyer plus the payment of applicable Taxes will be the only amount due to
Supplier from Buyer. The relevant SOW or WA shall contain Prices for each
country receiving Deliverables and Services under this Base Agreement. Supplier
is not entitled to payment under this Base Agreement for activities also covered
by a Business Partner Agreement with Buyer.
4.0 TAXES
Supplier's invoices shall state applicable Taxes owed by the Buyer, if any, by
Tax jurisdiction and with a proper breakdown between taxable and non-taxable
Deliverables and Services. Supplier shall remit such Tax payments to the
appropriate jurisdiction. Supplier agrees to use all commercially reasonable
efforts to properly calculate any applicable Taxes at the time of invoice.
Supplier and Buyer agree to cooperate to minimize any applicable Taxes,
including reasonable notice and cooperation in connection with any audit. Any
incremental Taxes shall be Supplier's responsibility. If Buyer provides
certification of an exemption from Tax or reduced rate of Tax imposed by an
applicable taxing authority, then Supplier shall not invoice for nor pay over
any such Tax unless and until the applicable taxing authority assesses such Tax,
at which time Supplier shall invoice and Buyer shall pay any such Tax that is
legally owed.
Buyer shall withhold Taxes, if required under the law to be withheld on payments
made to Supplier hereunder and shall be required to remit to Supplier only the
net proceeds thereof. Buyer shall remit the Taxes withheld to the appropriate
government authority and agrees to provide Supplier in a timely manner with
properly executed documentation or other information or receipts or certificates
evidencing Buyers payment of any such withholding tax.
Supplier will indemnify Buyer from any claims by any jurisdiction relating to
Taxes paid by Buyer to Supplier; and for any penalties, fines, additions to tax
or interest thereon imposed on Buyer, as a result of Supplier's failure to
timely remit the Tax payment to the appropriate taxing jurisdiction. Supplier
also shall indemnify Buyer for any claims made by a taxing jurisdiction for
penalties, fines, additions to tax and the amount of interest thereon imposed
with respect to Supplier's failure to invoice Buyer for the correct amount of
Tax.
5.0 PAYMENTS AND ACCEPTANCE
5.1 PAYMENTS AND ACCEPTANCE TERMS
Terms for payment will be specified in the relevant SOW and/or WA. Payment of
invoices will not be deemed acceptance of Deliverables or Services, but rather
such Deliverables or Services will be subject to inspection, test, acceptance or
rejection in accordance with the acceptance or completion criteria as specified
in the relevant SOW and/or WA. As to be specified in a SOW or WA, Buyer may, at
its option, either reject Deliverables or Services that do not comply with the
acceptance or completion criteria for a refund, or require Supplier, upon
Buyer's written instruction, to repair or replace such
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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Deliverables or re-perform such Service, without charge and in a timely manner.
Buyer reserves all rights available to it under law or equity.
Unless otherwise provided by local law without the possibility of contractual
waiver or limitation, Supplier will submit invoices, corrected invoices, or
other such claims for reimbursement, to Buyer no later than (1) year following
the date of acceptance of Deliverables or the satisfactory completion of
Services. Exceptions must be specifically authorized by Buyer.
5.2 OUTSOURCING LICENSE
In the event Buyer provides outsourcing services to licensees of a Program
Product, Buyer will not owe Supplier an extra fee for access to or assignment of
a license to such Program Product or for transfer of the applicable Program
Product to a Buyer computer system which is of like configuration as the
computer system for which the Program Product was licensed. The foregoing is
subject to Buyer providing Supplier notice of such Program Product to be managed
by Buyer.
For those Program Products acquired directly by Buyer from Supplier, Buyer shall
be free to continue to use such Program Products in support of its business
needs, including in support of the provision of Services to Buyer's Customers,
at no additional fee, subject to the continued compliance with the terms of the
Agreement. Buyer shall have the right to assign the license it has acquired from
Supplier under this Section 5.2 to its Customer at no additional cost, provided
that Buyer gives Supplier thirty (30) days prior written notice of its intent to
assign such rights, and provided further that Buyer's Customer signs Supplier's
license, and/or such other contractual document as may be reasonably required
for such Program Product support.
6.0 ELECTRONIC COMMERCE
To the extent permitted by local law, the parties may conduct transactions using
an electronic commerce approach under which the parties may electronically
transmit and receive legally binding purchase and sale obligations
("DOCUMENTS"), including electronic credit entries transmitted by Buyer to the
Supplier account specified in the relevant SOW and/or WA. The parties may enter
into a separate agreement governing the transmission of such electronic
transactions and associated responsibilities of the parties.
7.0 WARRANTIES
7.1 ONGOING WARRANTIES
Supplier makes the following ongoing representations and warranties:
1. it has the right to enter into this Base Agreement and its performance of
this Base Agreement will comply, at its own expense, with the terms of any
contract, obligation, including any between Supplier and its end-users; or any
law, regulation or ordinance to which it is or becomes subject;
2. it is incorporated or organized as a partnership;
3. no claim, lien, or action exists or is threatened against Supplier that would
interfere with Buyer's rights under this Base Agreement;
4. Deliverables and Services do not infringe any privacy, publicity, reputation
or intellectual property right of a third party;
5. Deliverables and Services will conform to the warranties, specifications and
requirements in this Base Agreement for one (1) year from the date of each
Deliverable's or Service's acceptance pursuant to the applicable SOW or WA,
except that if there is a conflict between the warranties in this Base
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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Agreement and Supplier's standard warranty for Program Products, then Supplier's
standard warranty for Program Products shall apply unless otherwise expressly
set forth in a SOW or WA;
6. it will not engage in Electronic Self-Help;
7. Deliverables are safe for use in that they are consistent with the
warranties, specifications and requirements in this Agreement;
8. Supplier has exercised all commercially reasonable efforts using current
technology to ensure Deliverables do not contain harmful code;
9. Services will be performed using reasonable care and skill and in accordance
with the relevant SOW and/or WA;
10. Deliverables and Services which interact in any capacity with monetary data
are euro ready such that when used in accordance with their associated
documentation they are capable of correctly processing monetary data in the euro
denomination and respecting the Euro currency formatting conventions (including
the euro sign) provided that products and systems not provided by Supplier are
capable of interacting with Supplier's Euro ready Deliverables and Services;
11. it is knowledgeable about, and is and will remain in full compliance with,
all export and import laws, regulations, orders, and policies which are
applicable to this Agreement (including securing all necessary clearance
requirements, export and import licenses and exemptions from, and making all
proper filings with appropriate governmental bodies and/or disclosures relating
to the release or transfer of technology and software to non U.S. nationals in
the U.S., or outside the U.S., release or transfer of technology and software
having U.S. content or derived from U.S.-origin software or technology); it is
knowledgeable about applicable supply chain security recommendations issued by
applicable governments and industry standards organizations and will make all
commercially reasonable efforts to comply with such recommendations;
12. it will not export, directly or indirectly, any technology, software or
commodities of U.S. origin or having U.S. content provided by Buyer or their
direct product to any of the countries or to nationals of those countries,
wherever located, listed in U.S. Export Administration Regulations, as modified
from time to time, unless authorized by appropriate government license or
regulations, and
13. it will not use, disclose, or transfer across borders any
information that is processed for Buyer that may identify an individual
(personal data), except to the extent necessary to perform under this Base
Agreement or otherwise authorized by such individual, Supplier or applicable
law.
7.2 STANDARD WARRANTIES
(A) If Buyer markets Program Products, Services and/or Deliverables
(collectively, the "Products") to the Customer under Supplier's brand, then
Buyer may pass Supplier's standard warranty for such Products through to the
Customer. The Customer may deal directly with Supplier under such warranty, and,
if Supplier's standard warranty for Program Products is more favorable than the
warranties in this Agreement, Supplier's standard warranty for Program Products
will apply to such Products.
(B) If Buyer markets Products to the Customer under Buyer's or its Affiliate's
brand, then: (i) Supplier's warranty is to the Buyer only, (ii) Buyer may not
pass Supplier's standard warranty for Program Products through to the Customer,
(iii) Customer shall have no warranty claim or recourse against Supplier, and
(iv) Buyer shall be responsible for all warranty claims or services.
(C) THE WARRANTIES SET FORTH IN SECTION 7.1 AND 7.2 ARE IN LIEU OF ALL OTHER
WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED,
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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STATUTORY OR OTHERWISE,INCLUDING THOSE WARRANTIES OR CONDITIONS OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.3 WARRANTY REDEMPTION
Subject to Section 7.2, if a Product does not comply with the warranties in this
Agreement, Supplier, in its discretion, will repair or replace the Program
Product or Deliverable or re-perform the Service, without charge and in a
timely manner. Subject to Section 7.2, if Supplier fails to do so, Buyer or
Customer may repair or replace Deliverables or re-perform Services, and Supplier
will reimburse Buyer or Customer for actual and reasonable expenses incurred by
Buyer or Customer therefore, subject to the limitations set forth in Section 8.0
Delivery hereunder.
8.0 DELIVERY
Deliverables or Services will be delivered as specified in the relevant SOW
and/or WA. Buyer may cancel or reschedule the delivery date or change the
delivery point as specified in the relevant SOW and/or WA. Risk of loss and
title to any tangible property will pass to Buyer or Buyer's Customer at the
delivery point. If Supplier cannot comply with a delivery commitment, Supplier
will promptly notify Buyer of a revised delivery date and Buyer may:
1. cancel without charge Deliverables or Services not yet delivered; and
2. exercise all other remedies provided at law, in equity and in this Agreement.
9.0 Intellectual Property
9.1 Supplier Ownership
All Inventions, which are not embedded Developed Work, Preexisting Materials,
Program Products, Tools, Externals and intellectual property embodiments in
Services belong solely and exclusively to Supplier (or its licensors), and
Supplier (or its licensors) do and shall own all rights, title and interests,
including all intellectual property rights, in all of the foregoing
(collectively, the "Supplier IP"). Neither Buyer nor any Customer shall acquire
by virtue of this Agreement or otherwise any ownership or intellectual property
right in any Supplier IP, it being expressly understood that Buyer and
Customers' rights granted to them hereunder shall be, with the exception of any
rights concerning the use of "residual information" or the use of information
that may be "inherently disclosed" as set forth in a separate confidentiality
agreement between the parties, solely the license and use rights expressly set
forth in Section 9.3 through 9.7.
9.2 DEVELOPED WORK
(A) Ownership
***
(B) Cross License
***
- --------------------------------------------------------------------------------
*** The omitted portion has been filed separately with the U.S. Securities and
Exchange Commission pursuant to a request for confidential treatment.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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9.3 PREEXISTING MATERIALS
Supplier will not include any Preexisting Materials in any Deliverable, unless
they are listed in the relevant SOW. If Supplier includes any Preexisting
Materials in a Deliverable and does not list them in the relevant SOW, and Buyer
is in compliance with this Agreement, then Supplier grants or will obtain for
Buyer the following rights: a nonexclusive, worldwide, perpetual, irrevocable,
paid-up, license to use, have used, execute, reproduce, transmit, display,
perform, transfer, distribute, and sublicense such Preexisting Materials. Such
license may be restricted in the relevant SOW and/or WA, which restriction shall
supersede this Base Agreement and control in the event of any express or implied
conflict between the Base Agreement and those restrictions.
9.4 TOOLS
Supplier will not include Tools in Deliverables unless they are listed in the
relevant SOW. If Supplier includes any Tools in a Deliverable and does not list
them in the relevant SOW, and Buyer is in compliance with this Agreement, then
Supplier grants or will obtain for Buyer the following rights: a nonexclusive,
worldwide, perpetual, irrevocable, paid-up, license to use, have used, execute,
reproduce, transmit, display and perform such Tools. Such license may be
restricted in the relevant SOW and/or WA, which restrictions shall supersede
this Base Agreement and control in the event of any express or implied conflict
between the Base Agreement and those restrictions.
9.5 INVENTION RIGHTS
Subject to Buyer's compliance with this Agreement, Supplier grants to Buyer and
Customer an irrevocable, nonexclusive, worldwide, perpetual, paid-up license
under Inventions (including any patent applications filed on or patents issued
claiming Inventions) to make, have made, use, have used, sell, license or
transfer items and to practice and have practiced methods. Such license may be
restricted in the relevant SOW and/or WA, which restrictions shall supersede and
control in the event of any express or implied conflict between the Base
Agreement and those restrictions.
9.6 TRADEMARKS
This Agreement does not grant either party the right to use the other party's or
their Affiliates' trademarks, trade names or service marks.
9.7 PATENTS
For the purpose of supporting the Customer as specified in the relevant SOW, and
subject to Buyer's compliance with this Agreement, Supplier grants to Buyer a
nonexclusive, worldwide, perpetual, irrevocable, and paid-up license under any
patents and patent applications which are licensable by Supplier for the
purposes specified in this Section 9.7 to make, have made, use, have used,
import, export, sell, and otherwise transfer the Deliverables and use the
Services to the extent authorized in this Agreement and any relevant Statements
of Work and Work Authorizations. Such license is subject to the restrictions, if
any, by the owners of those patents in the relevant SOW and/or WA, which
restrictions shall supersede and control if there is an express or implied
inconsistency between the Base Agreement and such restrictions.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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9.8 PROGRAM PRODUCTS
Customer will receive from Buyer or Supplier Program Products only subject to a
license agreement between Customer and Supplier (the "PROGRAM LICENSE"), to
which Buyer is neither a party nor liable for violations. If a Program Product
is available under an existing agreement between Buyer and Customer, the terms
of such agreement will control use of that Program Product provided such
agreement is consistent with and does dot derogate from the Program License.
Buyer may install and test Program Products for Customer without charge. For
recurring charge licenses, Buyer will notify Supplier when to begin invoicing
Customer, if applicable.
10.0 LIMITATION OF LIABILITY BETWEEN SUPPLIER AND BUYER
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY
FOR ANY LOST REVENUES, LOST PROFITS OR INCIDENTAL, INDIRECT, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES, AND (ii) EXCEPT FOR LOSS OR DAMAGE TO TANGIBLE
PERSONAL PROPERTY OR REAL PROPERTY OR BODILY INJURY (INCLUDING DEATH) TO THE
EXTENT OF A PARTY'S LEGAL LIABILITY FOR THE SAME, EACH PARTY'S LIABILITY UNDER
OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO TWICE THE AMOUNTS
PAYABLE BY BUYER TO SUPPLIER UNDER THE RELEVANT SOW GIVING RISE TO LIABILITY.
THE LIMITATIONS IN THE FOREGOING SENTENCE SHALL NOT APPLY TO SUPPLIER'S BREACH
OF SECTION 7.4 HEREUNDER.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR THE RESPECTIVE ACTIONS OR OMISSIONS
OF ITS AFFILIATES UNDER THIS AGREEMENT.
Supplier acknowledges and agrees that all WA's or PA's issued by Buyer's
Affiliate(s) are independent agreements between Supplier or Supplier Affiliate
and the Buyer Affiliate. Buyer shall not be liable to Supplier or Supplier
Affiliate(s) for any actions or inactions of any Buyer Affiliate(s) under a WA
or PA, nor shall any actions or inactions by Buyer's Affiliate(s) constitute a
breach of the Agreement between Buyer and Supplier.
11.0 SUPPLIER AND SUPPLIER PERSONNEL
Supplier is an independent contractor and this Agreement does not create an
agency, partnership, or joint venture relationship between Buyer and Supplier or
Buyer and Supplier Personnel. Buyer assumes no liability or responsibility for
Supplier Personnel. Supplier will:
1. ensure it and Supplier Personnel are in compliance with all laws,
regulations, ordinances, and licensing requirements;
2. be responsible for the supervision, control, compensation, withholdings,
health and safety of Supplier Personnel;
3. inform Buyer if a former employee of Buyer will be assigned work under this
Agreement, such assignment subject to Buyer approval;
4. ensure Supplier Personnel performing Services on Buyer's or Customer's
premises comply with the On Premises Guidelines in Section 12.0 and upon
request, provide Buyer, for export evaluation purposes, the country of
citizenship and permanent residence and immigration status of those persons.
Buyer retains the right to refuse to accept persons made available by Supplier
for export reasons; and
Form Title: Software and Services Engagement Agreement Form Release: 05/01
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5. not discriminate against any employees, applicants for employment, or any
entity engaged in its procurement practices because of race, color, religion,
sex, age, national origin, or any other legally protected status.
12.0 ON PREMISES GUIDELINES
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or
Buyer's Customer's premises will comply with this Section.
12.1 ACCESS TO PREMISES
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or
Buyer's Customer's premises will:
1. to the extent permitted by local law, participate in a pre-employment
criminal background check covering the counties in which the person was employed
or resided for the past seven years (or longer as required by State
legislation), and inform Buyer of any negative findings;
2. maintain a current and complete list of the persons' names and social
security numbers;
3. obtain for each person a valid identification badge from Buyer and ensure
that it is displayed to gain access to and while on Buyer's premises (it is
Buyer's policy to deactivate any such badge if not used for one month);
4. maintain a signed acknowledgment that each person will comply with Buyer's
Safety & Security Guidelines;
5. ensure that each person with regular access to Buyer's and Buyer's Customer's
premises complies with all parking restrictions and with vehicle registration
requirements if any;
6. inform Buyer if a former employee of Buyer will be assigned work under this
Base Agreement, such assignment subject to Buyer approval;
7. at Buyer's request, remove a person from Buyer's or Buyer's Customer's
premises and not reassign such person to work on Buyer's or Buyer's Customer's
premises (Buyer is not required to provide a reason for such request); and
8. notify Buyer immediately upon completion or termination of any assignment and
return Buyer's identification badge. Upon Buyer's request, Supplier will provide
documentation to verify compliance with this Subsection.
12.2 GENERAL BUSINESS ACTIVITY RESTRICTIONS
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or
Buyer's Customer's premises:
1. will not conduct any non-Buyer related business activities (such as
interviews, hirings, dismissals or personal solicitations) on Buyer's or Buyer's
Customer's premises;
2. will not conduct Supplier's Personnel training on Buyer's or Buyer's
Customer's premises, except for on-the-job training;
3. will not attempt to participate in Buyer or Customer benefit plans or
activities;
4. will not send or receive non-Buyer related mail through Buyer's or Customer's
mail systems; and
5. will not sell, advertise or market any products or distribute printed,
written or graphic materials on Buyer's or Buyer's Customer's premises without
Buyer's written permission.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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12.3 BUYER'S SAFETY AND SECURITY GUIDELINES
Supplier will ensure that Supplier Personnel assigned to work on Buyer's or
Buyer's Customer's premises:
1. do not bring weapons of any kind onto Buyer's or Buyer's Customer's premises;
2. do not manufacture, sell, distribute, possess, use or be under the influence
of controlled substances (for non-medical reasons) or alcoholic beverages while
on Buyer's or Buyer's Customer's premises;
3. do not have in their possession hazardous materials of any kind on Buyer's or
Buyer's Customer's premises without Buyer's authorization;
4. acknowledge that all persons, property, and vehicles entering or leaving
Buyer's or Buyer's Customer's premises are subject to search; and
5. remain in authorized areas only (limited to the work locations, cafeterias,
rest rooms and, in the event of a medical emergency, Buyer's or Buyer's
Customer's medical facilities). Supplier will promptly notify Buyer of any
accident or security incidents involving loss of or misuse or damage to Buyer's
intellectual or physical assets; physical altercations; assaults; or harassment
and provide Buyer with a copy of any accident or incident report involving the
above. Supplier must coordinate with Buyer or Customer access to Buyer's or
Buyer's Customer's premises during non-regular working hours.
12.4 ASSET CONTROL
In the event Supplier Personnel has access to information, information assets,
supplies or other property, including property owned by third parties but
provided to Supplier Personnel by Buyer ("BUYER ASSETS"), Supplier Personnel:
1. will not remove Buyer Assets from Buyer's or Buyer's Customer's premises
without Buyer's authorization;
2. will use Buyer Assets only for purposes of this Agreement and reimburse Buyer
for any unauthorized use;
3. will only connect with, interact with or use programs, tools or routines that
Buyer agrees are needed to provide Services;
4. will not share or disclose user identifiers, passwords, cipher keys or
computer dial port telephone numbers; and
5. in the event the Buyer Assets are confidential, will not copy, disclose or
leave such assets unsecured or unattended. Buyer may periodically audit
Supplier's data residing on Buyer Assets.
12.5 SUPERVISION OF SUPPLIER'S PERSONNEL
Suppliers will provide continual supervision of its Personnel provided under
this Agreement, at no additional cost to Buyer. Supplier's supervisor shall have
full supervisory authority over all day-to-day employment relationship decisions
relating to Supplier's Personnel, including those decisions relating to: wages,
hours, terms and conditions of employment, hiring, discipline, performance
evaluations, termination, counseling and scheduling. Supplier's supervisors
responsible for each work location will be responsible to know that work
location's planned holiday (and other closing) schedules and the impacts all
such schedules have on Supplier's Personnel. Supplier will conduct orientation
sessions with its Personnel before placement on an assignment with Buyer, during
which orientation such Personnel will be told who their supervisor is and how
that supervisor can be contacted. Supplier will, from time to time, ensure that
all of its Personnel working under this Agreement continue to be aware of this
information.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
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13.0 INSURANCE
Supplier will maintain at its expense:
1. commercial general or public liability insurance with a minimum limit per
occurrence or accident of 1,000,000 USD (or local currency equivalent);
2. workers' compensation or employer's liability insurance as required by local
law, such policies waiving any subrogation rights against Buyer; and 3.
automobile liability insurance as required by local statute but not less than
1,000,000 USD (or local currency equivalent) if a vehicle will be used in the
performance of this Agreement.
Insurance required under clauses (1) and (3) of this Section will name Buyer as
an additional insured with respect to Buyer's insurable interest, will be
primary or non-contributory regarding insured damages or expenses, and will be
purchased from insurers with an AM Best Rating of B+ or better and a financial
class rating of 11 or better.
14.0 TERMINATION
14.1 TERMINATION OF THIS AGREEMENT
Either party may terminate this Agreement, without any cancellation charge, for
(i) a material breach of this Agreement by the other party or if the other party
becomes insolvent or (ii) files or has filed against it a petition in bankruptcy
(each of (i) or (ii) is a "Cause"), to the extent permitted by law. Such
termination will be effective at the end of a thirty-day (30) written notice
period if the Cause remains uncured. Either party may terminate this Agreement
without Cause when there are no outstanding SOWs or WAs on thirty (30) days
prior written notice to the other party.
14.2 TERMINATION OF A SOW OR WA
Buyer may, upon written notice to Supplier, terminate a SOW or WA:
1. with Cause effective immediately; or
2. without Cause.
Upon such termination, in accordance with Buyer's written direction, Supplier
will immediately:
1. cease work;
2. prepare and submit to Buyer an itemization of all completed and partially
completed Deliverables and Services;
3. deliver to Buyer Deliverables satisfactorily completed up to the date of
termination at the agreed upon Prices in the relevant SOW and/or WA; and
4. deliver upon request any work in process.
In the event Buyer terminates a SOW or WA without Cause, Buyer will pay Supplier
the Compensation for the terminated SOW or WA within the payment terms of such
outstanding invoices.
15.0 GENERAL
15.1 AMENDMENTS
This Agreement may only be amended by a writing specifically referencing this
Base Agreement which has been signed by authorized representatives of the
parties.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
Page 11 of 14
15.2 ASSIGNMENT
Neither party will assign its rights or delegate its duties under this Agreement
to any third party or any Affiliate without the prior written consent of the
other party, such consent not to be withheld unreasonably; except that either
party may assign or delegate this Agreement to any party in connection with any
merger, reorganization, acquisition or other change of control of or by the
assigning or delegating party, or in conjunction with the sale of a substantial
part of the delegating or assigning party's business related to this Agreement.
Any unauthorized assignment of this Agreement is void.
15.3 CHOICE OF LAW AND FORUM; WAIVER OF JURY TRIAL; LIMITATION OF ACTION
This Agreement and the performance of transactions under this Agreement will be
governed by the laws of the State of New York applicable to contracts executed
in and performed entirely within that State govern this Base Agreement, without
giving effect to its laws on conflicts of law. The United Nations Convention on
Contracts for the International Sale of Goods does not apply. The parties
expressly waive any right to a jury trial regarding disputes related to this
Agreement. Unless otherwise provided by local law without the possibility of
contractual waiver or limitation, any legal or other action related to a breach
of this Agreement must be commenced no later than two (2) years from the date on
which the cause of action arose.
15.4 COMMUNICATIONS
All communications between the parties regarding this Agreement will be
conducted through the parties' representatives as specified in the relevant SOW.
All notices must be in writing and will be made to the appropriate contact(s)
listed in the relevant SOW and/or WA and will be effective upon actual receipt.
Notices may be transmitted electronically, by registered or certified mail, or
courier. All notices, with the exception of legal notices, may also be provided
by facsimile.
15.5 COUNTERPARTS
This Agreement may be signed in one or more counterparts, each of which will be
deemed to be an original and all of which when taken together will constitute
the same agreement. Any copy of this Base Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original.
15.6 EXCHANGE OF INFORMATION/DISCLOSURE
All information exchanged between the parties hereunder is non-confidential. If
either party requires the exchange of confidential information, it will be made
under a separate signed confidentiality agreement between the parties. The
parties will not publicize the terms of this Base Agreement, or the
relationship, in any advertising, marketing or promotional materials without
prior written consent of the other party except as may be required by law,
provided the party publicizing obtains any confidentiality treatment available.
Each party agrees, that notwithstanding anything in this Agreement to the
contrary, the other party shall have the right to disclose all or part of this
Agreement in public filings, including filings with the United States Securities
and Exchange Commission (SEC), whether as Exhibits or otherwise, as necessary or
appropriate to comply with applicable laws or regulations. Supplier will use
information regarding this Base Agreement only in the performance of this Base
Agreement. For any business personal information relating to Supplier Personnel
that Supplier provides to Buyer, Supplier has obtained the agreement of the
Supplier Personnel to release the information to Buyer and to allow Buyer to use
such information in connection with this Base Agreement.
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
Page 12 of 14
15.7 FREEDOM OF ACTION
This Agreement is nonexclusive and either party may design, develop,
manufacture, acquire or market competitive products or services, except as set
forth in any SOW. Buyer will independently establish prices for resale of
Deliverables or Services and is not obligated to announce or market any
Deliverables or Services and does not guarantee the success of its marketing
efforts, if any.
15.8 FORCE MAJEURE
Neither party will be in default nor liable for any delay or failure to comply
with this Base Agreement due to any act beyond the control of the affected
party, excluding labor disputes, provided such party immediately notifies the
other.
15.9 OBLIGATIONS OF AFFILIATES
Affiliates will acknowledge acceptance of the terms of this Base Agreement
through the signing of a PA before conducting any transaction under this Base
Agreement.
15.10 PRIOR COMMUNICATIONS AND ORDER OF PRECEDENCE
This Agreement represents the sole, final and entire agreement of the parties
with respect to its subject matter and replaces any prior oral or written
agreements or other communication between the parties with respect to the
subject matter of this Base Agreement, excluding any confidential disclosure
agreements. In the event of any conflict in these documents, the order of
precedence will be:
1. the quantity, payment and delivery terms of the relevant WA;
2. the relevant SOW;
3. this Base Agreement; and
4. the remaining terms of the relevant WA.
15.11 RECORD KEEPING AND AUDIT RIGHTS
Supplier will maintain (and provide to Buyer upon request) relevant business and
accounting records to support invoices under this Agreement and proof of
required permits and professional licenses, for a period of time as required by
local law, but not for less than three (3) years following completion or
termination of the relevant SOW and/or WA. All accounting records will be
maintained in accordance with generally accepted accounting principles.
15.12 SEVERABILITY
If any term in this Agreement is found by competent judicial authority to be
unenforceable in any respect, the validity of the remainder of this Agreement
will be unaffected, provided that such unenforceability does not materially
affect the parties' rights under this Agreement.
15.13 SURVIVAL
The provisions set forth in the following Sections and Subsections of this Base
Agreement will survive after termination or expiration of this Agreement and
will remain in effect until fulfilled: "Definitions" - Section 1.0; "Taxes" -
Section 4.0; "Standard Warranties" - Section 7.2; "Intellectual Property" -
Section 9.0; "Limitation of Liability Between Supplier and Buyer" - Section
10.0; "Termination of SOW or WA" - Section 14.2; "Choice of Law; Waiver of Jury
Trial; Limitation of Action" - Section 15.3; "Communications" - Section 15.4;
"Exchange of Information/Disclosure" - Section 15.6; and "Prior Communications
and Order of Precedence" - Section 15.10; "Record Keeping" - Section 15.11;
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
Page 13 of 14
and this Section 15.13. Without limiting the foregoing, unless otherwise
expressly provided herein, all licenses under this Base Agreement will survive
to the extent necessary to allow Buyer to continue providing services to its
Customers who are Supplier's licensees, notwithstanding the termination or
expiration of this Base Agreement.
15.14 WAIVER
An effective waiver under this Base Agreement must be in writing signed by the
party waiving its right. A waiver by either party of any instance of the other
party's noncompliance with any obligation or responsibility under this Base
Agreement will not be deemed a waiver of subsequent instances.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES CORPORATION FIRST VIRTUAL COMMUNICATIONS
By:/s/Dave A. Christopher 8/12/04 By:/s/ Duncan H. Campbell 8/11/04
___________________________________________ __________________________________
Buyer Signature Date Supplier Signature Date
Dave A. Christopher Duncan H. Campbell
___________________________________________ __________________________________
Printed Name Printed Name
Federal Procurement/Subcontracts V.P. Marketing &
Business Development
___________________________________________ __________________________________
Title Title
___________________________________________ __________________________________
Buyer Address: Supplier Address:
6300 Diagonal Highway 3200 Bridge Parkway, Suite 202
Boulder, CO 80301 Redwood City, CA 94065
Form Title: Software and Services Engagement Agreement Form Release: 05/01
Form Owner: Global Procurement Revisions: 3/04
Page 14 of 14