EXHIBIT 10.2
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
This Statement of Work ("SOW") # 4904FS0630 adopts and incorporates by reference
the terms and conditions of Software and Services Engagement Agreement
#4904FS0629 ("Base Agreement") between International Business Machines
Corporation and First Virtual Communications, Inc. This SOW is effective
beginning on 5/25/2004 and will remain in effect until 12/31/04. Transactions
performed under this SOW will be conducted in accordance with and be subject to
the terms and conditions of this SOW, the Base Agreement and any applicable Work
Authorizations ("WAs"). This SOW is a WA.
No Certifications and Representations are required for this purchase as this is
not billable to the Federal Government.
1.0 SCOPE OF WORK SUMMARY
This document is focused on work required to integrate Click to Meet (CTM) 4.0
and Conference Server (CS) 7.3 with ***. This document does not discuss features
outside of the context of this IBM deliverable.
2.0 DEFINITIONS
Except as listed below in this section 2.0, the definitions listed in Software
and Services Engagement Agreement 4904FS0629 shall apply to this SOW.
3.0 PRODUCT(S) DESCRIPTION/PRICING
In support of initial integration of CTM 4.0 and CS 7.3 with ***, FVC will
augment its Click to Meet ("CTM") product to support ***, and FVC will make
certain modifications to the ***. FVC will provide support to IBM in evaluating
this modified software and in preparing the software for use in demonstrations
to potential customers.
These deliverables will be provided for a fixed cost of $90,000. See 11.3
Invoicing for details.
4.0 DESCRIPTION OF DEVELOPED WORKS AND RELATED DELIVERABLES AND SERVICES
FVC will provide the following software and services for initial development and
testing (e.g. software deliverables not productized):
1) ***.
2) ***.
3) ***.
4) Support to IBM in evaluating, debugging and otherwise preparing the
software for use in demonstrations to potential customers.
5.0 ACCEPTANCE CRITERIA
The Developed Works and Related Deliverables and Services described in Sections
3.0 and 4.0, above, are deemed accepted upon IBM's execution of this SOW.
6.0 SUPPLIER'S RESPONSIBILITIES
6.1 IN ADDITION TO DELIVERING TOOLS, DEVELOPED WORKS, AND OTHER DELIVERABLES AND
SERVICES ON SCHEDULE, SUPPLIER WILL:
- - participate in progress reviews, as reasonably requested by Buyer, to
demonstrate Supplier's performance of its obligations;
- - maintain records to verify authorship of the Developed Work for four (4)
years after the termination or expiration of this SOW. On request,
Supplier will deliver or otherwise make available this information in a
form specified by Buyer;
- - as part of Supplier's importation requirements, provide to Buyer on the
commercial invoice:
- --------------------------------------------------------------------------------
*** 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 Page 1 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
1. the Harmonized Tariff Code of the importing country for every Deliverable;
and
2. an invoice description that provides enough detail to verify the
categorical classification of every Deliverable.
6.2 SUPPLIER'S USE OF SUBCONTRACTORS
Not applicable. Only First Virtual Communications employees will work on this
development program.
6.3 ASSET PROTECTION
In the event that assets are loaned to Supplier and there is no separate loan
agreement in place between Buyer and Supplier for those assets, Supplier will be
responsible for risk of loss and for the return of those assets to Buyer.
7.0 QUALITY MEASUREMENTS
Supplier has a product and service quality program that includes the assessment
of software engineering, development, test, configuration and change management
processes, assessment of the quality of Deliverables, Products and Services, and
Supplier will document non-conformances, and performance targets. Supplier also
has and can demonstrate the use of processes to correct errors or other
non-conformances.
8.0 BUYER'S RESPONSIBILITIES
IBM shall act as the Prime Contractor for this *** opportunity. IBM shall
provide performance oversight and monitoring of performance. IBM Purchasing
Buyers are the only ones authorized to issue, modify, or terminate a purchase
order under this SOW.
9.0 MUTUAL RESPONSIBILITIES
Not Applicable.
10.0 SCHEDULE FOR DELIVERABLES (OTHER THAN PROGRAM PRODUCTS)
There are no deliverables other than program products.
11.0 PAYMENTS
11.1 PAYMENT TERMS
For Services performed in accordance with this Agreement, IBM shall compensate
Supplier as described in purchase orders or work authorizations issued under
this Agreement, with terms of Net 45 days after receipt of a valid invoice.
11.2 HOLIDAY SCHEDULE AND NON-WORKDAYS ARE POTENTIALLY DESIGNATED AS FOLLOWS:
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
New Year's Day
Customer Designated Site Holidays
11.3 INVOICING
Supplier shall furnish the IBM Technical Coordinator with a COPY of all invoices
submitted to IBM Accounts Payable.
All FOX or EDI transmissions shall include at a minimum the IBM Purchase Order
Number, Purchase Order Line number, Supplier Personnel Name(s), Period of
Performance and the total number of Hours Worked verses total number of Hours
Committed. If it is an FFP order, Supplier must include IBM Purchase Order
Number, Purchase Order line number and Period of Performance.
Supplier shall invoice in one amount of upon completion of requirements in
Sections 3 and 4 of this SOW.
11.4 TRAVEL EXPENSE GUIDELINES:
All expenses are included within the FFP amount in Section 2 of this SOW.
- --------------------------------------------------------------------------------
*** 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 Page 2 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
12.0 RESCHEDULING/CANCELLATION
Not applicable
13.0 COMMUNICATIONS
All communications between the parties will be carried out through the following
designated coordinators. All notices required in writing under this Agreement
will be made to the appropriate contact listed below at the following addresses
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.
BUSINESS COORDINATORS
FOR SUPPLIER FOR BUYER
Name Carolyn Wester Name Paul Bury
Title Title Procurement Advisor
Address 3200 Bridge Parkway #202 Address 6300 Diagonal Highway,
Redwood City, CA 94065 MS 003E Boulder, Co. 80301
Phone 650-254-3533 Phone 303-924-4873
Fax 650-801-6901 Fax 303-924-0518
E-mail cwester@fvc.com E-mail pbury@us.ibm.com
TECHNICAL COORDINATORS
FOR SUPPLIER FOR BUYER
Name Mark Reid Name Marty Burns
Title VP-Engineering Title Architect
Address 542 Amherst St. Address NA
Nashua, NH 03063
Phone (603) 886-9050, Phone (315) 884-1173
ext. 345
Fax (603) 886-9051 Fax N/A
E-mail mreid@fvc.com E-mail mjburns@us.ibm.com
14.2 ELECTRONIC COMMERCE
Unless previously submitted by Supplier, in order to initiate electronic
transfer of payments associated with this SOW, Supplier will complete the
attached form entitled "Authorization for Electronic Funds Transfer" and fax the
completed form to Accounts Payable at the number included on the form.
14.0 FEDERAL ACQUISITION REGULATION REFERENCES
Not Applicable
15.0 PRIME CONTRACT FLOW DOWN PROVISIONS
Not Applicable
16.0 FEDERAL CHANGES TO THE BASE AGREEMENT
Not Applicable
17.0 ADDITIONAL TERMS AND CONDITIONS
17.1 EXPORT OF TECHNICAL DATA
Supplier will not, nor will Supplier authorize or permit Supplier Personnel to
disclose, export or re-export any of Buyer's information, or any process,
Deliverable, or Service that is produced under this Agreement, without prior
notification and compliance with all applicable Federal, State and local laws,
regulations and ordinances, including the regulation of the US Department of
Commerce and/or the US Department of State. In addition, Supplier agrees to
notify Buyer if Supplier is listed in the Denied Parties List published by the
Department of Commerce, or if Supplier export privileges are otherwise denied,
suspended, or revoked in whole or in part.
17.2 SMALL, DISADVANTAGED, WOMEN-OWNED AND HUBZONE BUSINESSES
Not Applicable
Form Title: Software and Services Page 3 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
17.3 NOTIFICATION OF DEBARMENT/SUSPENSION
By acceptance of this Agreement either in writing or by performance, Supplier
certifies that as of the date of award of this Agreement neither Supplier, nor
any of Supplier's principals, is debarred, suspended, or proposed for debarment
by the Federal Government or any State Government. Further, Supplier shall
provide immediate written notice to Buyer in the event that during the
performance of this Agreement and any Release Orders placed hereunder, Supplier
or any of Supplier's principals is debarred, suspended, or proposed for
debarment by the Federal Government or any State Government.
17.4 COMPLIANCE WITH LAWS UNIQUE TO GOVERNMENT CONTRACTS
Not Applicable
17.5 DOCUMENTATION
Documentation supporting all invoice charges shall be sent via fax to the IBM
Global Services Technical Coordinator. Supporting documentation includes, but is
not limited to travel receipts and itemized expense accounts, copies of freight
bills, contractor time sheets, and evidence that Deliverables and Services were
completed per the Agreement and Release Order placed under this Agreement. Other
supporting documentation shall be sent immediately after the event which
generated the expense. SUPPORTING DOCUMENTATION SHALL NOT BE DEEMED PROPERLY
RECEIVED BY BUYER IF IT IS SENT TO ACCOUNTS PAYABLE RATHER THAN TO THE TECHNICAL
COORDINATOR.
17.6 INDEMNIFICATION FOR DEFECTIVE COST OR PRICING DATA
Not Applicable
18.0 NEGOTIATED CHANGES TO THE BASE AGREEMENT
19.0 STATEMENT OF WORK ORDER OF PRECEDENCE
The order of precedence is stated in the Base Agreement under "Prior
Communications and Order of Precedence." In the event of a conflict between the
SOW Sections 15.0, 16.0, 17.0, 18.0 and 19.0 of this SOW, the order of
precedence will be 19.0, 18.0, 17.0, 16.0 and 15.0.
20.0 OPTIONAL CLAUSES
This SOW is a Work Authorization ("WA") as defined by the Base Agreement and
Supplier is authorized to complete all work described in this document.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES CORPORATION FIRST VIRTUAL COMMUNICATIONS, INC.
By:/s/ Paul Bury 8/17/04 By:/s/ Mark D. Reid 8/17/04
___________________________________________________ _________________________________________________
Buyer Signature Date Supplier Signature Date
PAUL BURY MARK D. REID
___________________________________________________ _________________________________________________
Printed Name Printed Name
Staff Procurement Professional - Customer Solutions
Procurement - Federal VP-Engineering
___________________________________________________ _________________________________________________
Title & Organization Title & Organization
___________________________________________________ _________________________________________________
Buyer Address: Supplier Address:
6300 Diagonal Highway MS 003E 3200 Bridge Parkway Suite 202
Boulder, Co 80301 Redwood City, CA 94065-1169
USA USA
Form Title: Software and Services Page 4 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
(IBM LOGO)
International Business Machines
1701 North Street
Endicott, NY 13760
AUTHORIZATION FOR ELECTRONIC FUNDS TRANSFER
You hereby authorize IBM to initiate credit entries to the account listed below
in connection with agreed upon Electronic Data Interchange (EDI) transactions
between our companies. You agree that such transactions will be governed by the
National Automated Clearing House Association (ACH) rules. This authority is to
remain in effect until IBM has received written notification of termination in
such time and such manner as to afford IBM a reasonable opportunity to act on
it. You also authorize the Bank listed below to verify your account information
as necessary to establish the EFT. IN NO EVENT SHALL IBM BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE
DELAY, OMISSION OR ERROR OF AN ELECTRONIC CREDIT ENTRY, EVEN IF IBM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You are required to provide IBM
prompt written notice regarding the initiation, change, or termination of any
relationship in which you authorize a Third Party to receive payment from IBM on
your behalf. Payments made by IBM to a Third Party you authorize within this
form to accept payments on your behalf shall satisfy any payment obligation from
IBM to you and shall constitute payment in full for such obligation. This
agreement shall be governed by the laws of the State of New York.
TRADING PARTNER NAME:
REMIT TO ADDRESS THIS SHOULD BE THE REMIT TO ADDRESS SHOWN ON YOUR
INVOICES
Street Address/PO Box
City, State, Zip
Company Tax ID Number
BANKING INFORMATION THIS MUST BE A U.S. DOMESTIC BANK TO USE THIS FORM
Name of Bank
Street Address/PO Box
City, State Zip
Title on Bank Account**
(Should Read Exactly as Listed on Bank Statement)
**If Name on Bank Account differs from Trading Partner Name, provide a
description of relationship (ex: Parent/sub, factoring company, other 3rd party
receivable, etc) on your company letterhead, attach documentation of this
relationship, and check the box here to indicate that the other entity is an
Agent of Trading Partner and authorized to accept payments from IBM on behalf of
Trading Partner: [ ].
EFT INFORMATION OBTAIN THIS INFORMATION DIRECTLY FROM YOUR BANK
Bank ABA Number:
(also known as Bank Routing Number) (Must be 9 digit number)
Bank Account Number
YOUR BANK CONTACT PERSON AT YOUR BANK WHO WE CAN
CONTACT TO VERIFY BANKING INFORMATION
Contact Name/Title Name: Title:
Contact Phone/Fax Phone: ( ) Fax ( )
REMIT ADVICE OPTION CHECK ONE (SEE INSTRUCTIONS FOR HELP)
Remit advice sent directly to your
EDI/Forms Exchange/WOI Mailbox _ 1 ________________________________
Fill in your EDI/Forms Exchange/
WOI UserID above
Remit Advice sent to your bank w/payment
_ 2
AUTHORIZATION Authorized Signature (MUST BE SIGNED)
Form Title: Software and Services Page 5 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
Signature:
Date:
Name:
Title:
Phone: ( )
Fax:( )
E-Mail Address:
A COPY OF A VOIDED CHECK IS RECOMMENDED TO VALIDATE YOUR EFT BANKING
INFORMATION. Please fax this form along with a copy of a voided check to (845)
491-3399, Attentions: EFT Team.
Form Title: Software and Services Page 6 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
The following instructions will assist you in filling out the EFT Authorization
Form accurately. These instructions are designed to prevent errors which cause
delays in you EFT setup. If you have additional questions, information can be
found on our internet website at http://www-1.ibm.com/procurement/proweb.nsf/
ContentDocsByTitle/United+States~EFT+Process?OpenDocument&Parent=EDI+Invoicing
or e-mail eftsetup@us.ibm.com.
TRADING PARTNER NAME:
This is the name of your company.
REMIT TO ADDRESS:
This is the address for which your invoices read "send payments to:" This is not
to be confused with your company's physical location; however it may be the
same. A rule of thumb is: Where should payments be mailed in the event a paper
check needs to be cut?
BANKING INFORMATION:
This is the physical location of the bank you use. If you use a branch, please
supply the branch's address in this section.
TITLE ON BANK ACCOUNT:
This should be the exact name as shown on your monthly Bank Statements. If the
name (Title) on your bank account differs from your company name, we will need a
written explanation on your company letterhead of the relationship between the
name on the account and your company name. This letter can be faxed in along
with the EFT Authorization Form.
EFT INFORMATION:
We recommend that you obtain this information directly from you bank. The
information needed is the Routing/ABA# (American Banking Association) of your
bank, and your company's individual Account #. When asking the bank for this
information, let them know that IBM intends to send EFT payments to you account
using the ACH (Automated Clearing House). It is important to note that IBM is
sending an EFT payment through the ACH, we are not sending a Wire payment. Wire
payments and EFT payments are not the same. For additional backup, we recommend
that you send a copy of a voided check along with the EFT Form.
BANK CONTACT:
This should be an employee of your bank whom IBM can contact to verify that the
banking information supplied is correct.
REMIT ADVICE OPTION:
This determines where IBM sends your remittance advice for payments that are
sent electronically. IBM offers two options:
Option 1: You must be an EDI/Forms Exchange (FOX)/WOI enabled supplier to use
this option. IBM will electronically send your remittance to your EDI/FOX/WOI
in-box. You will normally receive your remittance advice 1 to 2 days prior to
the date the funds will be available in your account. Please provide your
EDI/FOX/WOI mailbox/userid in the space to the right of the option 1 check-box.
Option 1 is recommended for all EDI/FOX/WOI users.
Option 2: IBM will electronically send your remittance to your bank along with
the payment. When choosing this option you will need to set up an agreement with
your bank for them to forward you this information. (IBM will be sending the
payment and remittance advice in an X-12 820 CTX file via the ACH).
SIGNATURE/COMPANY CONTACT:
The form must be signed by someone in your company who has the authorization to
permit IBM to electronically send payments to your company's bank account.
Please provide all the requested information for this individual. INTERNATIONAL
BUSINESS MACHINES CORPORATION
1701 North St.
Endicott, NY 13760
Form Title: Software and Services Page 7 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
The Certificate of Originality questionnaire may be used to cover one complete
Developed Works, even if that Developed Works includes multiple modules. Write
"not applicable" or "N/A" if a question is not relevant to the furnished
software material.
- The following Certificate of Originality applies to all Developed
Works described in this Statement of Work.
- Was any portion of the software material written by anyone other
than you or your employees within the scope of their employment? YES
_____ NO _____ If YES, identify the author and the circumstances:
1) Indicate if the whole software material or only a portion thereof was
written by such party, and identify such portion:
a) Specify for each involved party the name, address, and citizenship:
b) If the party is a company, how did it acquire title to the software
material (e.g., software material was written by company's employees
within the scope of their employment)?
c) If the party is an individual, did he/she create the software
material while employed by or under contractual relationship with
another party? YES _____ NO ______ If YES, provide name and address
of the other party and explain the nature of the contractual
relationship:
2) How did you acquire title to the software material written by the other
party?
- Are any copyright, confidentiality, or proprietary notice(s) present
on the software material(s)? YES _____ NO ______ If YES, please
describe such notice(s).
- Was any portion of the software material (e.g., Code, associated
documentation or Externals) derived from preexisting works (either
yours or a third party's), including any code from freeware,
shareware, electronic bulletin boards, or the Internet? YES _____ NO
______ If YES, please identify the material, author, owner and
copyright notice, if any, for each of the preexisting materials.
- Does any of the software materials (e.g., Code, associated
documentation or Externals) include recognizable voices, pictures or
other likenesses? YES ____ NO ______ If YES, how did you acquire
rights to use such recognizable voices, pictures or other
likenesses?
- Provide an explanation of any other circumstance which might affect
Buyer's ability to reproduce, distribute and market this software
material, including whether your software material was prepared from
any preexisting materials which have any: a) confidentiality or
trade secret restrictions to others; b) known or possible royalty
obligations to others; and c) used other preexisting materials
developed for another party or customer (including government) where
you may not have retained full rights to such other preexisting
materials.
Authorized Signature: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
Form Title: Software and Services Page 8 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement
SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT
FEDERAL STATEMENT OF WORK
AGREEMENT #4904FS0629
SOW# 4904FS0630
Confirmation of Assignment of Copyright for all copyrightable material which
Supplier is assigning to Buyer. The Assignment must be notarized.
Supplier grants and assigns to Buyer all rights, title and interest throughout
the world in the copyright on the Deliverable described in Section __ of this
Statement of Work, such grant and assignment to Buyer, its successors and
assigns for the duration of all such rights, title and interest and any renewals
or extensions thereof, provided that Supplier's ownership of copyright on the
preexisting work entitled (<<<<< Name of Preexisting Work >>>>>) will not be
affected by this Confirmation of Assignment of Copyright.
Authorized Signature: ________________________
Name: ________________________
Title: ________________________
Date: ________________________
Notary:
Before me this _____ day of ___________________, 200_ personally appeared:
_______________________, to me known to be the person who is described in and
who executed the forgoing assignment instrument and acknowledged to me that
he/she executed the same of his/her own free will for the purpose therein
expressed and on behalf of (<<<<< Supplier's full Name >>>>>) as (<<<<< Title of
Signer >>>>>) thereof.
- ------------------------------------------------
Notary Public or Consular Office of the United States of America
(NOTARY SEAL)
Form Title: Software and Services Page 9 of 9 Form Release: 05/01
Engagement Agreement Revision: 4/04
Form Owner: Global Procurement