EXHIBIT 10.28
SOFTWARE DEVELOPMENT AGREEMENT
THIS SOFTWARE DEVELOPMENT AGREEMENT ("Agreement") is made and entered into
this 27th day of December, 1995 by and between BellSouth Interactive Media
Services, Inc., a California corporation ("BIMS"), and CableData, Inc., a
California corporation ("CableData").
WHEREAS, BIMS is in the process of establishing a network for the provision
of interactive media and other services to consumers and other entities, and has
determined the need for an integrated subscriber management system (i.e., to
handle billings, various customer support functions, etc.) as an integral part
of such network;
WHEREAS, CableData is in the business of developing and providing
integrated subscriber management and billing systems to customers, and has
responded to BIMS' request for proposals by the submission of a proposal which
it has represented will meet BIMS' requirements through the use of CableData's
standard product, CableData's Intelecable -TM- (which is the subject of a
separate, but related, Operating and License Agreement), and various
enhancements and customizations thereto;
WHEREAS, based upon CableData's proposal, BIMS desires to have CableData
develop and furnish to BIMS such an integrated subscriber management system in
accordance with specifications mutually agreed upon by BIMS and CableData and as
documented in various agreements entered into by and between BIMS and CableData,
including, without limitation, this Agreement and the Operating and License
Agreement entered into concurrently herewith;
WHEREAS, part of the integrated subscriber management system includes
custom software and certain enhancements and other features to be developed by
CableData and licensed on an unrestricted basis to BIMS, all of which will
operate in concert with, among other things, the CableData's Intelecable -TM-
software program to be provided by CableData and certain additional software
programs to be provided by third parties;
WHEREAS, it was previously the parties' intention to have assigned to BIMS
ownership of the custom software and the enhancements and other features
referenced in the preceding
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
paragraph on either an exclusive basis or on a joint basis with CableData,
and BIMS has agreed, for certain consideration described further herein the
sufficiency of which is hereby acknowledged, to forego such ownership in
favor of CableData;
WHEREAS, CableData's parent company, U.S. Computer Services ("USCS"), and
BIMS have previously entered into an Interim Services Agreement, dated December
5, 1994, pursuant to which CableData has commenced the development of specific
features of an integrated subscriber management system for BIMS, and which the
parties agreed would be superseded and replaced by a more definitive agreement;
WHEREAS, CableData and BIMS agree that the terms and conditions set forth
herein shall constitute such definitive agreement and shall govern and determine
the rights and obligations of the parties with respect to the services described
herein, whether such services are rendered after the date of this Agreement or
were rendered prior to the date of this Agreement under the auspices of the
Interim Services Agreement; and
WHEREAS, CableData is ready, willing and able to continue the provision to
BIMS, and BIMS is ready, willing and able to accept, the software development
and related provided for herein, pursuant to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing, as well as the
obligations herein made and undertaken, the parties, intending to be legally
bound, do hereby agree as follows:
1. DEFINITIONS.
(a) "Acceptance" means the completion of the Work Order whereby BIMS
has completed its Acceptance Testing and CableData has corrected any defects
reported relating to the applicable Software Release. BIMS shall notify
CableData in writing upon Acceptance of each Software Release.
(b) "Acceptance Testing" means the process used by BIMS to verify
that the Software Release provided to BIMS by CableData meets the
specifications contained in the Business Requirement Specification and in the
Detailed Design Specifications.
(c) "Affiliate" means, with respect to BIMS, any entity designated by
BIMS for inclusion under this Agreement which controls, is controlled by or is
under common control with BIMS, or any other entity in which BIMS or its
Affiliates have any material form of ownership or managerial interest, as
further described and qualified in the License Agreement.
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(d) "Application Program Interfaces", or "APIs", and "Remote
Procedure Calls", or "RPCs", mean those portions of the Interface Software
required to enable external third party applications to interface with the Core
Software and the Custom Software for purposes of passing transactions and data
to and from the Core Software and Custom Software. References herein to APIs
and/or RPCs shall be deemed to include the APIs and/or RPCs developed under the
Interim Services Agreement.
(e) "Business Day" means (i) with respect to any time period within
which BIMS must respond, Monday through Friday, excluding any holidays
recognized by BIMS as company-wide holidays; and (ii) with respect to any time
period within which CableData must respond, Monday through Friday, excluding any
holidays recognized by CableData as company-wide holidays.
(f) "Business Requirement Specification" means mutually approved
business specifications for features and functionality to be contained in the
Software Release.
(g) "Confidential Information" means any data or information, other
than Trade Secrets, that is of value to BIMS and is not generally known to
competitors of BIMS. To the extent consistent with the foregoing, Confidential
Information includes, but is not limited to, lists of any information about
BIMS' or its Affiliates' executives and employees, marketing techniques, price
lists, pricing policies, business methods, and contracts and contractual
relations with customers and suppliers. Confidential Information also includes
any information described in this paragraph which may be obtained from another
party which BIMS treats as proprietary or designates as confidential
information, whether or not owned or developed by BIMS. Unless otherwise agreed
by the parties in connection with an individual Work Order (s), the Deliverables
to be provided by CableData under this Agreement shall not be considered to be
Confidential Information.
(h) "Content Providers" mean the content providers which are
delivering their products and/or services over BIMS' broadband network.
(i) "Core Software" is the existing CableData's Intelecable -TM-
subscriber management information system, as such may be modified, updated and
upgraded from time to time on BIMS' System, to be provided by CableData pursuant
to the terms of the License Agreement and as more particularly described in that
License Agreement.
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(j) "Custom Software" means the software which performs the functions
described in and complies with the Business Requirement Specification and the
Detailed Design Specifications. The Custom Software shall be deemed to include
the "Custom Work Product", as defined in the Interim Services Agreement, and the
Enhancements to the Core Software.
[*]
(l) "Deliverables" mean all deliverables which CableData is required
to provide to BIMS pursuant to this Agreement and/or any Work Order hereunder,
and shall include, without limitation, the Custom Software, the Interface
Software and the Documentation.
(m) "Detailed Design Specifications" means the written plan for
building the applicable Software Release code based upon the Business
Requirement Specification.
(n) "Documentation" means all operator and user manuals, guides,
listings, specifications, data dictionaries, logical data models, entity
relationship models, and other materials necessary for the complete
understanding and utilization of the functionality of the Custom Software,
including materials necessary for the complete understanding and utilization of
the functionality of the Custom Software, including materials useful for
design (e.g., logic manuals, flow diagrams and principles of operation) and
machine-readable text or graphic files subject to display or print-out.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(o) "Enhancements" mean those portions of the Custom Software which
represent new functionality, capabilities and table changes made to or within
the pre-existing code of the Core Software. References herein to Enhancements
shall be deemed to include the Enhancements made under the Interim Services
Agreement.
(p) "Fixed Development Fee and Incentive Pricing" means a mutually
agreed single price with an incentive to CableData for early delivery of the
defined Software Release associated with a specific Work Order.
(q) "Implementation Schedule" means a document that sets forth the
timing of the Deliverables specified in the Work Order.
(r) "Information" means technical information, computer or other
specifications, documentation, works of authorship or other creative works,
ideas, knowledge, or data, written, oral or otherwise expressed (i.e., other
than in connection with the APIs, RPCs or Enhancements), originated by CableData
or any of its employees, consultants, representatives or agents as a result of
work performed under or in anticipation of this Agreement.
(s) "Interface Software" means the software necessary to provide
interfaces and interoperability between and among the Custom Software delivered
under this Agreement, the Core Software provided pursuant to the License
Agreement, and other foreign and ancillary systems existing at BIMS and/or being
provided to BIMS by third parties. The Interface Software shall be deemed to
include the APIs and RPCs.
(t) "Interim Services Agreement" means the Interim Services Agreement
between BIMS and USCS, dated December 5, 1994, pursuant to which CableData has
commenced the provision of software development and related services to BIMS,
and which the parties agreed would be superseded and replaced by a more
definitive agreement.
(u) "Inventions" mean inventions, discoveries, or improvements which
are conceived, first reduced to practice, made or developed in anticipation of,
or in the course of, work performed under this Agreement by CableData or by one
or more of CableData's employees, consultants, representatives or agents.
(v) "License Agreement" means the Operating and License Agreement
between BIMS and CableData of even date herewith pursuant to which CableData
licenses the Core Software to BIMS.
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(w) "Proposal" means USCS' Initial Response to BIMS' Request for an
Intelecable/Oracle Interface dated August 29, 1994, as modified by the facsimile
transmission from Dave H. Williams to Larry E. Ryan dated September 1, 1994, the
letter from Robert Crowley to Larry E. Ryan dated September 23, 1994 and the
Memorandum of Understanding dated December 5, 1994, between USCS and BIMS.
(x) "Self-Help Code" means any back door, time bomb, drop dead
device, or other software routine designed to disable a computer program
automatically with the passage of time or under the positive control of any
person or entity other than BIMS. Self-Help Code does not include software
routines in the Custom Software, Interface Software or Core Software, if any
designed to permit BIMS (or a third party authorized by BIMS) to obtain access
to the System (e.g., remote access via modem) for purposes of maintenance or
technical support.
(y) "Software Change Management Plan" means the procedure to manage
requests for changes after approval of the Business Requirement Specification
and/or the Detailed Design Specifications, as set forth in Exhibit "A" attached
hereto.
(z) "Software Release" means the software to be provided to BIMS by
CableData pursuant to any Work Order hereunder.
(aa) "Source Code" shall mean the source code corresponding to the
applicable software, plus any pertinent commentary or explanation that may be
necessary to render the Source Code understandable and usable by highly-trained
computer programmers who are generally familiar with Oracle database products
and the C and C++ programming languages. The Source Code shall be in a format
and on a storage medium suitable for loading into BIMS' computer equipment, and
shall not be encrypted. The Source Code shall include system documentation and
schematics, all as necessary or useful for the effective understanding and use
of the Source Code. Insofar as the "development environment" employed by
CableData for the development, maintenance and implementation of the Source Code
includes any device, programming, or documentation not commercially available to
BIMS on reasonable terms through readily known sources other than CableData, the
Source Code shall include all such devices, programming and documentation;
provided, however, that IBM's obligation to provide such devices and/or
programming shall only extend to the object code form of such devices and/or
programming. The foregoing reference to such "development environment" is
intended to apply to any programs, including compilers, "workbenches," tools,
and higher-level (or)
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
"proprietary") languages, used by CableData for the development, maintenance and
implementation of the Source Code.
(bb) "System" shall consist of the Custom Software and Interface
Software provided to BIMS hereunder, the Core Software (as defined in the
License Agreement) provided to BIMS pursuant to the License Agreement, and the
computer hardware and software identified or described in the Operating
Environment Attachment to the License Agreement, as supplemented by Work Orders
agreed to by the parties in accordance with the terms of this Agreement.
(cc) "Time and Materials" means development fees based upon actual
time spent on the Software Release and based on hourly rates established in this
Agreement and cost of travel and materials required to create the Deliverable(s)
associated with the Work Order.
(dd) "Trade Secrets" mean any information of BIMS, including but not
limited to technical data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process, financial data, financial
plans, product plans, or a list of actual or potential customers or suppliers,
without regard to the form of such information regarding actual or potential
customers or suppliers, which (i) derives economic value, actual or potential,
from not being generally known to and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure or use
and (ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy. Trade Secrets shall include, but are not limited to ,
unpatented information relating to the development, manufacture or servicing of
products, information concerning proposed new products, market feasibility
studies, proposed or existing marketing techniques or plans, and computer
software, including, without limitation, source and object codes, flow charts,
algorithms, coding sheets, doctrines, sub-routines, compilers, assemblers,
design concepts and related documentation and manuals. Trade Secrets also
include any information of the type described above which BIMS obtains from
another party and which BIMS treats as a Trade Secret, whether or not owned or
developed by BIMS. Unless otherwise agreed by the parties in connection with an
individual Work Order(s), the Deliverables to be provided by CableData under
this Agreement shall not be considered to be Trade Secrets.
(ee) "Unauthorized Code" means any virus, Trojan horse, worm, or other
software routines designed to permit unauthorized access, or to disable, erase,
or otherwise harm software, hardware,
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
or data. The term Unauthorized Code does not include Self-Help Code.
(ff) "Walk-thru" means a technical presentation prepared by CableData
and presented to BIMS for review, understanding and BIMS inputs relating to the
Business Requirement Specification and the Detailed Design Specifications.
(gg) "Work Order" means the statement of work relating to a BIMS
initiated request for Deliverables.
2. BUSINESS REQUIREMENT SPECIFICATION.
(a) The Business Requirement Specification sets forth the functional,
performance and operational features and characteristics of a Software Release,
and of the services to be rendered by CableData hereunder, as set forth or
identified in Work Orders agreed to by the parties in accordance with the terms
of this Agreement.
(b) CableData will arrange and request BIMS' presence at a
requirements review meeting. At this meeting, CableData will conduct a
Walk-thru for BIMS of the proposed Business Requirement Specification. BIMS
shall make modifications as appropriate. Upon agreement by both parties to
the final Business Requirement Specification, CableData will prepare the
document for approval by both parties. The development by CableData of the
Business Requirement Specification shall be at no cost to BIMS unless
otherwise expressly provided for in a Work Order signed by both parties.
(c) Once signed by both parties in connection with the execution of a
Work Order, the Business Requirement Specification becomes the preliminary
specification upon which CableData shall build the Software Release under the
Work Order provisions of this Agreement.
(d) BIMS and CableData hereby acknowledge and agree that Exhibit "C"
attached hereto and incorporated herein by this reference sets forth BIMS'
initial Work Order pursuant to this Agreement (the "Initial Work Order"). The
parties further acknowledge that they have mutually agreed to the Business
Requirement Specification, the Implementation Schedule, the Fixed Development
Fee and all other information identified or set forth therein. CableData will
develop the Deliverables identified in Exhibit "C" hereto and deliver same to
BIMS in accordance with Exhibit "C" and the terms and conditions of this
Agreement. The
-8-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Custom Software and Interface Software will be furnished in Source Code and
machine-readable object code form.
3. SOFTWARE CHANGE MANAGEMENT PLAN.
All changes to the Business Requirement Specification and/or the Detailed
Design Specifications must be requested in writing and require mutual agreement,
in accordance with the procedure set forth in the Software Change Management
Plan (Exhibit "A") attached hereto and by this reference made a part hereof.
Evaluation and/or implementation of requested changes may or may not result in
any modification to CableData's price, Implementation Schedule or other terms of
this Agreement. CableData assumes the risk of any work performed or action
taken by CableData based upon oral statements, or on documents or notations, not
in accordance with the Business Requirement Specification, the Detailed Design
Specifications, this Section 3 and Exhibit "A" hereto.
4. DETAILED DESIGN SPECIFICATIONS.
CableData shall, with BIMS' cooperation and joint participation, develop
and deliver to BIMS a set of Detailed Design Specifications based upon the
Business Requirement Specification. The Detailed Design Specifications shall
include, as appropriate, system flow chats, program descriptions, file layouts,
database structures, report layouts and screen layouts, data dictionaries,
logical data models, entity relationship models, interface requirements and
layouts, conversion requirements and layouts and refined equipment requirements
for the Custom Software. In addition, the Detailed Design Specifications shall
specifically address the program specifications for the Interface Software.
CableData will arrange and request BIMS' presence at a product design and
architecture meeting(s). At this meeting(s), all known architecture and design
alternatives for the product(s) will be discussed and agreed upon by both
parties. If the parties cannot reach agreement on the Detailed Design
Specifications within ten (10) Business Days of the initial product design and
architecture meeting referred to above, BIMS shall have the right to terminate
this Agreement and/or the applicable Work Order pursuant to Section 18 herein.
Once accepted by BIMS, the Detailed Design Specifications shall supplement the
Business Requirement Specification, and CableData shall commence programming for
the Custom Software and the Interface Software.
-9-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
5. DEVELOPMENT FEES AND COMPENSATION.
The parties contemplate the need for flexibility in the development fees
for Software Releases created by CableData for BIMS. Time and Materials and
Fixed Development Fee and Incentive Pricing are two methods the parties agree to
follow with Fixed Development Fee as the preferred method. The parties will
mutually agree upon the appropriate Development Fee method for each Work Order.
a. ALTERNATIVE PRICE DETERMINATION METHODS
(i) FIXED DEVELOPMENT FEE AND INCENTIVE PRICING can be used when the
parties have sufficiently detailed requirements for CableData sizing and quoting
of a fixed price. CableData will evaluate the Business Requirement
Specification, and size the effort to build the Custom Software and/or Interface
Software. CableData will then produce a schedule based on the amount of
development and testing required to satisfy the Business Requirement
Specification. Where applicable to a particular Work Order, the parties shall
specify in such Work Order the Fixed Development Fee and Implementation
Schedule. CableData agrees to invoice BIMS for services provided to BIMS by
CableData under each Work Order which specifies that services performed
thereunder are to be performed on a Fixed Development Fee basis, in accordance
with the schedule of payments set forth in such Work Order.
(ii) TIME AND MATERIALS can be used when the parties do not have
sufficiently detailed requirements upon which CableData can appropriately size
the Software Release and quote a fixed price to BIMS. Upon written agreement of
both parties, CableData will bill BIMS based on actual Time and Materials.
Price ceilings and other controls shall be as set forth herein and as specified
by the parties and contained in the specific Work Order, and BIMS shall not be
liable for any charges and/or expenses thereunder in excess of the price
ceilings specified or incurred by CableData other than in accordance with the
applicable controls established. Time and Materials rates will be based on the
rates contained in Exhibit "B" attached hereto and incorporated herein by
reference, which Time and Materials rates shall be in no event more than the
lower of (1) the rates set fort in the Pricing Attachment to the License
Agreement, or (2) the rates which CableData charges to its other customers for
comparable work. CableData agrees to invoice BIMS, upon achieving each
milestone set forth in the associated Implementation Schedule, for services
provided to BIMS by CableData under each Work Order which specifies that
services performed thereunder are to be performed on a Time and Materials basis,
in accordance with the applicable Time and Materials rates. CableData
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December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
shall submit with each invoice, copies of time reports which relate to the
services being invoiced. In addition to the foregoing, the requirements and
procedures set forth below shall apply to services performed under any Work
Order on Time and Materials basis:
(A) CableData shall invoice BIMS, monthly in arrears, for expenses
incurred as a result of performing services in accordance with
any Work Order. Such expenses shall be limited to reasonable
out-of-pocket expenses necessarily and actually incurred by
CableData in the performance of its services hereunder, provided
that: (1) such expenses have been estimated in the Work Order
and BIMS has given its prior written consent for any such
expenses; (2) the expenses have been detailed on a form
acceptable to BIMS and submitted to the appropriate BIMS Project
Manager for review and approval; and (3) if reasonably requested
by BIMS, CableData submits supporting documentation in addition
to the approved expense form. It is understood that BIMS shall
not reimburse CableData for commutation expenses under any
circumstances. It is also understood that any air transportation
reimbursable hereunder shall be coach-economy and that
entertainment by or on behalf of CableData shall be at no cost to
BIMS.
(B) CableData will submit the charges and/or expenses to be invoiced
for services performed and the applicable time reports or
documentation under any Work Order to the BIMS Project Manager
for that Work Order, for review and comment prior to actual
invoicing. BIMS will have five (5) days to review all such
documentation, following which CableData will issue and invoice
for payment. Subject to Section 5(b) below, the charges and/or
expenses invoiced in accordance with this Section, except for any
amounts disputed by BIMS, shall be payable by BIMS within thirty
(30) days of BIMS's receipt of each invoice. Any disputed
charges and/or expenses shall not affect payment of non-disputed
charges and/or expenses, in accordance with the terms of this
Agreement.
(C) CableData shall maintain complete and accurate accounting
records, in a form in accordance with generally accepted
accounting principles, to substantiate CableData's charges and
expenses
-11-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
hereunder and CableData shall retain such records for a period of
three (3) years from the date of final payment under any Work
Order.
(D) BIMS shall have the right to have audited through an independent
certified public accountant the books and records of CableData
relating to the amounts invoiced to BIMS hereunder (other than
for services performed on a Fixed Development Fee basis), for
the purpose of verifying the amounts due and payable hereunder,
upon at least five (5) Business Days' notice to CableData. The
cost of such audit shall normally be at BIMS' expense; provided,
however, that CableData will bear the cost of the audit if the
audit reveals any overpayment which, in the aggregate, is greater
than three percent (3%) of the amount which was actually due for
the period being audited.
b. RETAINAGE
Notwithstanding any amount invoiced by CableData hereunder, BIMS shall
be obligated to pay only eighty percent (80%) of the undisputed amounts of each
invoice and the remainder shall constitute retainage, which shall be retained by
BIMS and shall not be payable until Acceptance of the Deliverables under the
applicable Work Order(s) and delivery to BIMS of all Documentation with respect
to the System or the Software Release, as applicable, together with the Source
Code corresponding to such Software Release. Upon Acceptance of the
Deliverables under the applicable Work Order(s), BIMS shall pay fifty percent
(50%) of the retainage under such Work Order(s) to CableData within thirty (30)
days of receipt by BIMS of a request for such payment. Upon delivery to BIMS of
all final Documentation with respect to the System or the Software Release, as
applicable, together with the Source Code corresponding to such Software
Release, BIMS shall pay the remaining fifty percent (50%) of the retainage under
such Work Order(s) to CableData within thirty (30) days of receipt by BIMS of a
request for such payment.
c. INCENTIVE PAYMENTS ON FIXED DEVELOPMENT FEE QUOTES
Should the Deliverables associated with a particular Fixed Development
Fee Work Order be provided ahead of schedule, provided that such Deliverables
are capable of Acceptance by BIMS pursuant to Section 7 herein and/or in the
applicable Work Order without modification by CableData during the course of
such Acceptance Testing, BIMS shall pay CableData the Fixed Development
-12-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Fee plus an incentive amount to be mutually agreed upon by the parties in
connection with such Work Order. Should CableData fail to provide the
Deliverables on schedule due to causes other than the acts or omissions of BIMS
or causes beyond CableData's control, such as delays attributable to third
parties providing products or services directly to BIMS under contract with BIMS
(i.e., as opposed to CableData's suppliers and/or subcontractors), all as
identified to BIMS by CableData in the appropriate progress report at such time
as required pursuant to Section 9(b) herein, BIMS shall pay CableData the
Development Fee less a Delay Damages amount to be mutually agreed upon by the
parties in connection with each such Work Order, as provided for in subsection
(d) below. In the event the Deliverables associated with a particular Work
Order are not acceptable in accordance with Section 7 herein and/or as provided
in the applicable Work Order, no incentive payments will be due, regardless of
delivery time.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-13-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
[*]
E. DEVELOPMENT FEE DISCOUNTS
As consideration for BIMS's commitment to engage CableData for
future development of Custom Software and/or Interface Software, and in
consideration for BIMS' agreement that CableData will own all Custom Software
and Interface Software created pursuant to the Interim Services Agreement, as
included in the Initial Work Order hereunder, and in recognition of the value
of the ownership of such Custom Software and Interface Software by CableData,
CableData hereby agrees to grant to BIMS discounts off of the Development
Fees associated with the Initial Work Order, as well as with certain
subsequent Work Orders, whether such Development Fees are on a Fixed
Development Fee basis or are on a Time and Materials basis. The discounts
shall be calculated as follows:
(i) BIMS shall receive a discount of [*] off of the Development Fees
associated with any and all Work Orders issued by BIMS and
accepted by CableData on or before December 31, 1996 (collectively,
the "1996 Work Orders"), until such time as the discounts under
this Section 5(e)(i) reach a total of [*].
(ii) Thereafter, BIMS shall receive a discount off of the Development
Fees associated with all 1996 Work Orders based upon the level of
commitment made by BIMS with respect to such 1996 Work Orders,
which commitment shall be made by BIMS within forty-five (45)
days of BIMS' receipt of an estimate from CableData of the
Development Fees anticipated for such 1996 Work Orders. The
discounts shall be as follows: (A) in the event that BIMS'
aggregate commitment for 1996 Work Orders is less than or equal
to [*] then BIMS
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-14-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
shall receive a discount of [*] off of the Development Fees
associated with all 1996 Work Orders; (B) in the event that
BIMS' aggregate commitment for 1996 Work Orders is more than [*]
but less than [*], then BIMS shall receive a discount of [*]
percent [*] off of the Development Fees associated with all
1996 Work Orders; and (C) in the event that BIMS' aggregate
commitment for 1996 Work Orders exceeds [*], then BIMS shall
receive a discount of [*] off of the Development Fees
associated with all 1996 Work Orders. In the event that BIMS
fails to achieve the level of commitment it had made with
respect to the 1996 Work Orders, the Development Fees for such
1996 Work Orders shall be adjusted at the end of the year to
reflect the lower discount, if one would have been applicable
under this Section 5(e)(ii), applied to the actual undiscounted
Development Fees payable by BIMS for such 1996 Work Orders.
Conversely, in the event that BIMS attains the threshold amount
of Development Fees for a higher level of discount under this
Section 5(e)(ii) than was applicable to the level of commitment
which BIMS had made with respect to the 1996 Work Orders, then
BIMS shall receive the higher discount off of the Development
Fees for all 1996 Work Orders from and after the Work Order
submitted by BIMS which causes the undiscounted Development
Fees to exceed the threshold for the higher level of discount
under this Section 5(e)(ii).
By way of example, but not by way of limitation, in
the event that BIMS' aggregate commitment for 1996 Work Orders
is [*], and BIMS actually achieves undiscounted Development
Fees of [*] with respect to the 1996 Work Orders, the followng
will apply: (x) during the year, BIMS would have received a
discount of [*] off of the Development Fees associated with the
1996 Work Orders, such that it would have paid [*] (i.e., [*]
of [*] during the course of the year (note that, for ease of
illustration only, the discount
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-15-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
provided for in Section 5(e)(i) has not been reflected in this
example); and (y) based upon the actual undiscounted
Development Fees of [*], the actual discounted Development Fees
would be recomputed to reflect the lower [*] discount (i.e., [*]
and BIMS will be obligated to pay to CableData the difference
of [*]. Conversely, assuming the same level of commitment of [*]
if BIMS issues (and CableData accepts) a 1996 Work Order which
would cause the Development Fees for all 1996 Work Orders to
exceed [*], then BIMS shall receive a discount of thirty
percent [*] off of the Development Fees associated with such
1996 Work Order and for all subsequent 1996 Work Orders, but
such event shall not result in a price adjustment (e.g., in the
form of invoice credits or otherwise) for Development Fees
previously paid to CableData under prior 1996 Work Orders.
(iii) Following 1996, BIMS will be granted discounts as negotiated
between the parties on the basis of BIMS's commitment to certain
levels of
f. PAYMENT TERMS
CableData's standard payment terms are net cash, without discount,
set-off or deferment, due and payable within thirty (30) days of the date of
invoice, or the date of postmark if the postmark date is more than one (1)
Business Day after the invoice date (collectively, the "Invoice Date"); payment
of all undisputed charges is due in U.S. dollars. In the event that BIMS does
not render full payment of all undisputed charges within sixty (60) days of the
date payable, CableData may, after notifying BIMS, cease any and all services
hereunder until such account is brought current. In addition, if BIMS fails to
pay all undisputed charges within thirty (30) days of the Invoice Date, BIMS
agrees that upon the expiration of a fifteen (15) day cure period following
the effective date of written notice from CableData of such failure
to pay, CableData will have the right to invoice and BIMS will pay a late
payment service charge of one and one half percent (1.5%) per month, but not in
excess of the lawful maximum interest allowed, on the past due balance from and
after the expiration of such fifteen (15) day cure period. Should BIMS in good
faith dispute any
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-16-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
portion of an invoice submitted by CableData, BIMS shall advise CableData in
writing within thirty (30) days of the Invoice Date of such dispute and pay,
when due, all non-disputed charges. CableData will consider BIMS' dispute in
good faith.
g. TAXES
BIMS agrees to pay CableData all legally due sales, use or similar
taxes in connection with the purchase of any services or tangible personal
property pursuant to the terms of this Agreement. CableData shall separately
state all applicable sales, use or similar taxes on each invoice as prescribed
by the applicable terms of this Agreement or legal authority. CableData shall
be legally responsible for remitting all taxes collected for BIMS to the proper
taxing authority. In the event the taxability of any purchase under this
Agreement is disputed by a taxing authority as the result of an audit or
otherwise, CableData shall provide timely written notice to BIMS of this dispute
prior to any settlement or action on this dispute. Notwithstanding the
foregoing, any fines, penalties or interest imposed on BIMS or CableData, unless
such fines, penalties or interest result from the actions taken by CableData at
the written direction of BIMS. BIMS shall not be responsible for paying or
reimbursing CableData for any corporate franchise tax, capital tax, net worth
tax or taxes measured by reference to CableData's net income.
6. IMPLEMENTATION SCHEDULE.
(a) The Implementation Schedule sets forth the time(s) for
delivery of Deliverables specified in the Work Order. Unless otherwise
specified in any individual Work Order, CableData recognizes that time and
timely performance are of the essence in this Agreement and of each Work Order
hereunder.
(b) Both parties will agree upon appropriate delivery dates for
the Deliverables and other milestone events including but not limited to the
estimated date for the software architecture and design Walk-thru, schedule for
conference calls initiated by CableData to provide Software Release progress and
status (in addition to those required pursuant to Section 9 (b) herein),
delivery of the Software Release Installation Plan and the date for installation
of the Software Release at BIMS' site, and the Acceptance Testing period at
BIMS' site.
(c) If CableData is delayed at any time during the course of its
performance under any Work Order due to acts of God or causes beyond its
reasonable control, then CableData may request
-17-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
that the affected Implementation Schedule date(s) be extended. BIMS shall
review such request and grant an extension of time commensurate with the
circumstances, subject to the following conditions:
(i) The cause of the delay (A) is beyond CableData's control and
arises without its, or any of its subcontractors' or suppliers',
fault or negligence, and (B) arises or becomes known after the
date of execution of the applicable Work Order;
(ii) CableData demonstrates that the affected Implementation Schedule
date(s) is reasonable certain to be delayed; and
(iii) CableData provides a written request to BIMS within five (5)
Business Days after the time CableData knows or reasonably should
have known of any cause or circumstances which might, under
reasonably foreseeable circumstances, result in a delay for which
CableData may claim an extension of time. If CableData shall
fail to give the foregoing notice, the right to request an
extension for such cause may be waived.
A delay meeting all of the foregoing conditions shall be deemed an "Excusable
Delay".
The period of any extension of time shall be only that which is
necessary to make up the time actually lost. BIMS reserves the right to rescind
or shorten any extension previously granted if BIMS subsequently determines that
any information provided by CableData in support of its request for an extension
of time was erroneous or that there has been a material change in the facts
stated; provided, however, that such information or facts, if known, would have
resulted in a denial of the request for an Excusable Delay. In the event of a
delay, CableData shall proceed continuously and diligently with the performance
of the unaffected portions of the applicable Work Order and/or other Work
Order(s) not affected by the delay.
7. ACCEPTANCE TESTING
(a) After CableData has certified to BIMS in writing that all of
the Deliverables associated with each Work Order have been delivered and
installed in the facility specified by BIMS for purposes of Acceptance Testing,
and that such Deliverables meet the operational, performance and integration
specifications contained herein, in the Business Requirement Specification, in
the Detailed Design Specifications, and in any applicable change request
-18-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
documents, BIMS shall conduct Acceptance Testing of the System at its location
pursuant to this Section 7. BIMS shall prepare an Acceptance Test Plan for the
Initial Work Order and shall submit such plan to CableData for approval, which
approval shall not be unreasonably withheld. For purposes of Acceptance
Testing, performance of the Deliverable will be measured on the basis of a
commercially reasonable standard unless some other standard or specific
performance criteria are specified in the applicable Work Order. "Acceptance"
shall be deemed to occur at the earlier of (i) that point in time at which BIMS
notifies CableData of the successful completion of the acceptance test period
provided for in this Section 7, or (ii) that point in time at which BIMS places
the Deliverables into productive use in connection with paying Subscribers (as
defined in the License Agreement).
(b) BIMS shall conduct its Acceptance Testing of the
Deliverables under each Work Order for a period of forty-five (45) days (the
"Initial Acceptance Test Period"), commencing (i) with respect to the
Deliverables under the Initial Work Order, as set forth in Exhibit "C" attached
hereto, upon the last to occur of (A) receipt by BIMS of CableData's
certification, as provided in subsection (a) above, with respect to such
Deliverables, or (B) November 8, 1995, and (ii) with respect to Deliverables
under Work Order(s) other than the Initial Work Order, upon receipt by BIMS of
CableData's certification with respect to each such Work Order. Notwithstanding
the previous sentence, BIMS shall have the right to toll the running of the
forty-five (45) day Initial Acceptance Test Period at any time, and from time to
time, in connection with each Work Order hereunder, pending the delivery and
installation of third party products with which BIMS desires to test the
Deliverables hereunder; provided, however, that in no event will the running of
the Initial Acceptance Test Period under any Work Order be tolled by more
than sixty (60) days, cumulatively. The Initial Acceptance Test Period shall
be successfully completed, and Acceptance shall be deemed to have occurred
with respect to the applicable Deliverables, upon notice from BIMS to
CableData that BIMS has determined that all of the functions of the
Deliverables have been provided and perform in accordance with the Business
Requirement Specification, as referenced or set forth in the applicable Work
Order, and the Detailed Design Specifications, as provided for in Section 4
of this Agreement, including without limitation, that all reliability and
performance standards set for herein and in the Business Requirement
Specification and Detailed Design Specifications have been met or exceeded.
If any of the Deliverables under a particular Work Order fail to pass the
Initial Acceptance Test Period, BIMS shall so notify CableData in writing
specifying the nature of such failure(s) in reasonable detail and CableData
shall correct the specified failure(s) within
-19-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
the ten (10) day period following BIMS' notice to CableData. The parties
acknowledge and agree that BIMS' identification of failure(s) of the
Deliverables, and CableData's correction of such failures, shall be an ongoing
process throughout the Acceptance Test Period (hereinafter defined).
Accordingly, BIMS shall notify CableData periodically during the course of the
Acceptance Test Period of failure(s) of the Deliverables to conform to the
Business Requirement Specification and Detailed Design Specifications therefor,
and shall not, by any such notification, waive its right to notify CableData of
subsequent failure(s) identified during the Acceptance Test Period.
(c) Following CableData's certification that it has corrected all
failures specified by BIMS to date during the Acceptance Test Period, BIMS
shall commence another acceptance test period ("Re-Test Period") which will
expire upon the later of (i) the expiration of the forty-five (45) day
Initial Acceptance Test Period, or (ii) twenty (20) days after the
commencement of the Re-Test Period. The Initial Acceptance Test Period and
each Re-Test Period hereunder are referred to individually as an "Acceptance
Test Period," and collectively (with respect to each Work Order) as the
"Acceptance Test Period". The Acceptance Test Period shall be successfully
completed, and Acceptance shall be deemed to have occurred with respect to
the applicable Deliverables, upon notice from BIMS to CableData that BIMS has
determined that all of the functions of the Deliverables have been provided
and perform in accordance with the Business Requirement Specification and
Detailed Design Specifications, including without limitation, that all
reliability and performance standards set forth herein and therein have been
met or exceeded.
(d) In the event that any of the Deliverables under a Work Order fail
to pass the third or any subsequent Re-Test Period, as provided for in
subsection (c) above, CableData acknowledges that BIMS shall have the option,
upon written notice to CableData, to either (i) extend CableData's right to
continue attempting to cure the failure(s) for a specified period of time, upon
the completion of which BIMS shall commence another Re-Test Period, or
(ii) terminate:
(A) for Acceptance Testing associated with Work Order(s) entered into
pursuant to this Agreement other than the Initial Work Order set forth
in Exhibit "C" hereto, any or all Work Order(s) issued under this
Agreement which are then in progress. Upon such termination, BIMS
shall have the right to return the Deliverables provided for in such
terminated Work Order(s) and receive a refund of all amounts paid under
such terminated Work Order(s), with no
-20-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
liability on the part of BIMS to CableData for any portion of such Work
Order(s), whether or not already ordered, performed or developed on
BIMS' behalf; or
this entire Agreement and the License Agreement, for (x) Acceptance
Testing involving the Initial Work Order set forth in Exhibit "C"
hereto and/or (y) the acceptance testing of the Core Software provided
pursuant to the License Agreement, in the event that the failure of the
Core Software to pass such acceptance testing involves Severity Level 1
or 2 Defects, as defined in the Maintenance/Support Attachment to the
License Agreement. Upon such termination, BIMS shall have the right to
return all Deliverables provided for hereunder and under the License
Agreement, including without limitation, the Core Software, and receive
a refund of all amounts paid under this Agreement and the License
Agreement, with no liability on the part of BIMS to CableData for any
portion of the Deliverables hereunder or thereunder, whether or not
already ordered, performed or developed on BIMS' behalf.
In any event, BIMS shall be entitled to receive such damages and remedies as
BIMS might have pursuant to this Agreement and/or the License Agreement, or at
law or in equity, including without limitation, Delay Damages pursuant to
Section 5(d) of this Agreement.
(e) For efficiency and project management purposes, informal testing,
in addition to the Acceptance Testing provided for herein and/or in any Work
Order(s), may be conducted on a component basis at various times as the work
progresses, but neither such informal testing nor any provisional acceptance of
the results thereof by BIMS shall constitute acceptance of any aspect of the
System or any Software Release, as applicable, by BIMS or relieve CableData of
the responsibility to ensure that the System and/or such Software Release, as
a whole, successfully completes Acceptance Testing as a precondition to its
entitlement to certain payments under this Agreement.
8. WORK ORDERS.
It is contemplated that BIMS will desire to have CableData develop and
furnish to BIMS, and that CableData will agree to provide to BIMS, periodic
Software Releases and other Deliverables during the term of this Agreement.
BIMS and CableData will use Work Orders, signed by both parties, as the primary
method of initiating software development and other services by CableData.
-21-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
The terms and conditions of this Agreement shall apply to each such Work Order
proposed by BIMS which is accepted by CableData for the furnishing of such
software development and other services. Separate Work Orders will be created
for each Software Release. The Work Orders may include the following
information:
1. Business Requirement Specification
a. Descriptions and specifications for all custom Software
Deliverables, including all features, functions and performance
and integration requirements therefor. The Initial Work Order
include a description of all Custom Work Products created pursuant
to the Interim Services Agreement.
i. The foregoing description includes identification of all
Enhancements to be made to the Core Software.
b. Descriptions and specifications for all Interface Software
Deliverables.
c. Identification of Documentation to be provided.
d. Identification of any and all other Deliverables to be provided by
CableData.
2. Implementation Schedule, including without limitation, estimated dates
for the software architecture and design Walk-thrus (i,e., resulting in
the Detailed Design Specifications), schedule for conference calls to
be initiated by CableData to provide Software Release progress and
status, delivery of the Software Release Installation Plan and the
dates for installation of the Software Release(s) at BIMS' site, and
the Acceptance Testing periods at BIMS' site.
3. Designation of whether work is to be performed on a Time and Materials
basis or pursuant to a Fixed Development Fee (with Incentive Pricing).
a. If Fixed Development Fee, a Milestone Payment Schedule (reflecting
a hold-back of twenty percent (20%) pending CableData's correction
of all defects identified during BIMS Acceptance Testing).
-22-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
b. If Fixed Development Fee, incentive amounts for early delivery and
Delay Damages amounts and schedules, if applicable.
c. If Time and Materials, Delay Damages amounts and schedules, if
applicable.
d. If Time and Materials, overall price ceilings for Work Order, plus
additional project management controls, if any, on fees and
charges to be submitted by CableData.
e. Estimation of allowable expenses to be incurred by CableData, if
any (e,g., number of trips to Atlanta, together with estimates for
airfare, lodging, meals, etc. for each trip).
4. Number of days to be allocated to BIMS' Acceptance Testing of the
System upon completion of the Deliverables associated with the Work
Order.
5. Acceptance Criteria and Schedule.
Upon both parties' approval of the Work Order, the Work Order becomes
incorporated into this Agreement as an Exhibit hereto.
9. PROJECT MANAGEMENT; DELIVERY.
(a) DESIGNATION OF PROJECT COORDINATORS. CableData shall designate a
Technical Project Manager and a Program Manager (together, the "CableData
Project Coordinators"), each of whom shall be acceptable to BIMS and assigned
by CableData to supervise the provision of the Deliverables. BIMS shall
designate a Project Manager and a Program Manager (together, the "BIMS Project
Coordinators"), each of whom shall be, assigned by BIMS to coordinate BIMS'
involvement in the work hereunder. The BIMS Project Manager shall serve as
CableData's primary point of contact for the resolution of problems. Each
Program Manager shall be responsible for obtaining the express authority
necessary to carry out his or her obligations and responsibilities hereunder,
and may assume that the other Program Manager is acting within the scope of his
or her authority. CableData and BIMS may change their Project Coordinators from
time to time upon prior written notice to the other party, subject to subsection
(d) below.
(b) REVIEW MEETINGS AND PROGRESS REPORTS. Every two (2) weeks, or as
often as the parties mutually agree, during the period in which CableData is
performing services hereunder, the BIMS
-23-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Project Coordinators and CableData Project Coordinators, as well as appropriate
additional personnel involved in the particular tasks under way, shall meet at
a mutually agreed upon site or arrange a conference call to discuss the progress
made by CableData and BIMS. In order to facilitate proper project management,
CableData shall provide BIMS and BIMS shall provide CableData, at each such
meeting or conference call with a progress report specifying:
(i) Any "critical issue" (defined as a problem that may delay the
timely achievement of a milestone event) encountered by CableData or BIMS during
the preceding two (2) week period, including without limitation, the failure of
either party or a third party to perform, any delay of either party or a third
party in performing or the inadequate performance of either party or a third
party, which may prevent or tend to prevent CableData from completing any task
by the completion date;
(ii) An estimated length of any delay which may result from any
critical issues; and
(iii) The cause of any critical issue and the specific steps taken or
proposed to be taken by CableData or BIMS as appropriate to remedy such critical
issue.
Each progress report provided by CableData and BIMS pursuant to this Section
9(b) shall include critical issues discussed and dealt with during the preceding
two (2) week period. In any event, critical issues shall be discussed and dealt
with as soon as possible after identification by CableData, BIMS or a third
party partner. In the event CableData, BIMS or any such third party partner
fails to specify in writing any critical issue with respect to a given two (2)
week period in the appropriate progress report and in such manner and at such
time as required pursuant to this Section 9(b), it shall be presumed that no
critical issue arose during such two (2) week period,
(c) USE OF THIRD PARTY CONTRACTORS. CableData shall have the right to
retain third parties to furnish services to it in connection with its provision
of the Deliverables and/or to provide services to BIMS on behalf of CableData;
provided, however, that all third parties who perform work in furtherance of
CableData's obligations hereunder shall execute appropriate documents consistent
with the provisions of this Agreement undertaking obligations of confidentiality
respecting such work.
(d) REMOVAL OF PERSONNEL. In the event that any CableData employee
performing services hereunder is found to be unacceptable to BIMS, BIMS shall
notify CableData of such fact and
-24-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
CableData shall remove said employee from performing services for BIMS and
provide a qualified replacement no later than thirty (30) days thereafter.
Except as provided for in the preceding sentence, CableData agrees to use best
efforts to ensure the continuity of CableData personnel assigned to perform
services under this Agreement. Except as provided for in the first sentence of
this subsection (d), any reassignment by CableData of those of its key employees
assigned to perform services under any Work Order must be with BIMS' prior
written consent, which consent shall not be unreasonably withheld. In the event
CableData reassigns any of its personnel assigned to perform services under this
Agreement, CableData shall promptly provide a qualified replacement acceptable
to BIMS.
(e) ON-SITE SUPPORT. In addition to the provision of maintenance and
support services pursuant to Sections 15 and 16 herein, upon request by BIMS,
CableData shall identify and assign the number of CableData representatives
requested by BIMS to be on site at BIMS' facilities and shall require such
representatives to devote all of their business time during such assignment to
the technical support of the Custom Software and Interface Software and to
facilitate the support of the Core Software through CableData's customer service
and support organization. As consideration for the provision of such on-site
support, BIMS shall pay CableData pursuant to the fully-loaded rates set forth
in Exhibit "B" hereto. All such payments due hereunder shall be invoiced by
CableData to BIMS on a monthly basis.
10. INVENTIONS.
(a) In the event that the parties specifically agree in a particular
Work Order that BIMS will own the Deliverable(s) to be provided by CableData in
connection with such Work Order, CableData hereby assigns and agrees to assign
to BIMS all of CableData's and each of its employees', consultants',
representatives' and agents' ("Associates") entire right, title and interest in
and to all Inventions created in connection with such Work Order ("BIMS-Owned
Inventions"), and any and all patents that may be granted thereon in any country
of the world. In the event that the parties fail to so designate the ownership
of the Deliverable(s) in connection with a particular Work Order, such
Deliverable(s) shall be deemed to be wholly owned by CableData.
(b) CableData shall promptly share with BIMS all information relating
to any BIMS-Owned Inventions. With respect to such BIMS-Owned Inventions,
CableData will promptly have its Associates sign all papers and, without charge
to BIMS, do all acts which may be necessary, desirable or convenient to enable
BIMS at
-25-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
its expense to file and prosecute applications for patents on such BIMS-Owned
Inventions, and to maintain patents granted thereon. CableData also agrees to
acquire from its Associates who perform work in connection with the applicable
Work Order, such assignments, rights and covenants as to assure that BIMS shall
receive the rights provided for in this Section 10. The expenses and fees for
preparing, filing and prosecuting each application or patent for a BIMS-Owned
Invention shall be borne by BIMS; provided, however, that CableData will, at its
expense, furnish BIMS with all documents, information, or other assistance, that
may be necessary for the filing and prosecution of each such application.
11. DEVELOPED INFORMATION.
(a) CableData agrees to disclose and promptly furnish to BIMS any and
all Information. In tho event that the parties specifically agree in a
particular Work Order that BIMS will own the Deliverable(s) to be provided by
CableData in connection with such Work Order, BIMS shall own all right, title
and interest in and to the Information created under such Work Order ("BIMS-
Owned Information"), including all copyrights and proprietary rights therein.
CableData expressly acknowledges that the parties have agreed that all aspects
of the BIMS-Owned Information and all work in process in connection therewith
are to be considered "works made for hire" within the meaning of the Copyright
Act of 1976, as amended (the "Act"), and that BIMS is to be the "author" of such
BIMS-Owned Information within the meaning of such Act. All such copyrightable
BIMS-Owned Information, as well as all copies of such BIMS-Owned Information in
whatever medium fixed or embodied, shall be owned exclusively by BIMS as its
creation, and CableData hereby expressly disclaims any interest in any of them.
(b) In the event (and to the extent) that any BIMS-Owned Information
created by CableData hereunder or any part or element thereof is found as a
matter of law not to be a "work made for hire" within the meaning of the Act,
CableData hereby conveys and assigns to BIMS the sole and exclusive right, title
and interest in the ownership to all such BIMS-Owned Information, and all
copies of any of them, without further consideration, and agrees to assist BIMS
to register, and from time to time to enforce, all copyrights and other rights
and protections relating to the BIMS-Owned Information created hereunder in any
and all countries. CableData shall place a copyright notice in favor of BIMS on
the BIMS-Owned Information at BIMS' request.
(c) With respect to BIMS-Owned Information, CableData agrees to
execute and deliver all documents requested by BIMS in connection with the
foregoing assignments, and irrevocably
-26-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
designates and appoints BIMS its agent and attorney-in-fact to act for and in
its behalf and stead to execute, register and file any such copyright
applications, and to do all other lawfully permitted acts to further the
registration of copyrights or similar protections with the same legal force and
effect as if executed by CableData.
12. UNRESTRICTED LICENSE.
(a) In conjuction with the parties' agreement to the Business
Requirement Specifications for all software Deliverables to be provided by
CableData in connection with the applicable Work Order as modified by the
parties in conjunction with their agreement to the Detailed Design
Specifications therefor, and as part of the consideration for BIMS's payment
of Development Fees hereunder, CableData hereby grants and agrees to grant to
BIMS an unrestricted, paid-up, perpetual, irrevocable, non-exclusive license
to use, distribute, copy, display, modify, enhance and create derivative
works based upon the Information and Inventions associated with such
Deliverables. Such license in favor of BIMS shall include the royalty-free
right to sublicense any or all aspects of the Information and Inventions
(including derivative works thereof) to third parties, without any duty on
the part of BIMS to account to CableData for any income or compensation BIMS
receives for any such sublicensing or distribution to third parties. The
foregoing license in this subsection (a) shall not apply to CableData's
pre-existing application libraries, pre-existing system libraries, third
party libraries, source code to pre-existing application programs, or the
development environment used to create "Pre-existing Materials" (hereinafter
defined).
(b) In furtherance of CableData's grant to BIMS of the license
described above, CableData shall provide to BIMS Source Code for the Software
Deliverables, together with the program executables which are derived from
the linking of the software Deliverables and CableData's pre-existing
application libraries, pre-existing system libraries and various third party
libraries. CableData shall not be required to make available to BIMS, as a
separate deliverable hereunder, a copy of CableData's pre-existing
application libraries, pre-existing system libraries or any third party
libraries. CableData hereby grants and agrees to grant to BIMS an
unrestricted, royalty-free, run-time license to use, copy, distribute,
display and perform the program executables which are derived from the
linking of the software Deliverables and CableData's pre-existing application
libraries, pre-existing system libraries and various third party libraries.
The license so granted to BIMS includes the right to grant to BellSouth
Corporation and any subsidiary or other affiliate to BellSouth
-27-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Corporation, unrestricted, royalty-free licenses to use, copy, distribute,
display and perform the program executables which are derived from the
linking of the software Deliverables and CableData's pre-existing application
libraries, pre-existing system libraries and various third party libraries.
(c) In addition to the foregoing, CableData shall provide to BIMS,
and to any third party designated by BIMS, at no additional charge to BIMS or
any such third parties, copies of that object library specially created for
BIMS pursuant to this Agreement, or derived from the APIs created for BIMS
pursuant to this Agreement, which contains the necessary APIs for BIMS' and
such third parties' applications to interface and interact with the System,
including without limitation, the Core Software. CableData grants and agrees
to grant to BIMS, and to any third party designated by BIMS, an unrestricted,
royalty-free license to use, copy, distribute, display and perform such
library. The parties understand and acknowledge that this libary was created
by CableData to operate BIMS' Operating Environment (as defined in the
License Agreement) and may not work in a third party's environment without
modifications. Any such modifications would be subject to a Work Order to be
mutually agreed to by the parties. In no event shall CableData be required to
provide to BIMS or any third parties designated by BIMS libraries for APIs
that have not been developed specifically for BIMS under this Agreement, or
derived from APIs created for BIMS under this Agreement.
(d) If the exercise of BIMS' rights under the licenses granted in
Sections 12(a), (b) and (c) above requires the use of inventions or materials
previously made, developed or copyrighted by CableData or others, and not
originated or developed hereunder (the "Pre-existing Materials"), then
CableData, to the extent that it has the right to do so, shall also make
available to BIMS such Pre-existing Materials, in object code or other form,
as may be required, but only to the extent necessary for BIMS to exercise
such rights. CableData shall not be required to make available to BIMS, as a
separate deliverable, a copy of CableData's pre-existing application
libraries, pre-existing system libraries, third party libraries, source code
to pre-existing application programs, or the development environment used to
create Pre-existing Materials. CableData grants and agrees to grant to BIMS
an unrestricted, royalty-free license to use, copy, modify, distribute,
display and perform the inventions, information or other aspects of the
Pre-existing Materials, as described above. The license so granted to BIMS
includes the right to grant to BellSouth Corporation and any subsidiary or
other affiliate of BellSouth Corporation unrestricted, royalty-free licenses
to use, copy, modify, distribute, display and perform the inventions,
information and
-28-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
other aspects of the Pre-existing Materials, but only to the extent necessary
to use, copy, modify, distribute, display and perform the software
Deliverables. Nothwithstanding the foregoing, BIMS' use of the Core Software
will be governed by and subject to the terms and conditions of the License
Agreement between the parties.
13. CONFIDENTIALITY.
(a) CableData acknowledges that in the course of providing the
Deliverables it may have access to BIMS's Trade Secrets and Confidential
Information. Accordingly, CableData agrees that (i) during the term of this
Agreement and after the termination or expiration hereof, CableData will not,
except as expressly authorized or directed by BIMS, use, copy, or disclose, or
permit any unauthorized person access to, any Trade Secrets, and (ii) during the
term hereof and for a period of three (3) years after the termination or
expiration of this Agreement, CableData will not use, copy, or disclose, or
permit any unauthorized person access to, any Confidential Information.
(b) Upon BIMS' request and in any event upon the termination or
expiration of this Agreement, CableData will deliver to BIMS all memoranda,
notes, records, tapes, documentation, disks, manuals, files or other documents,
and all copies thereof, concerning or containing Confidential Information or
Trade Secrets that are in CableData's possession. Further, CableData shall
ensure that upon the termination or expiration of this Agreement all Trade
Secrets and Confidential Information are purged from CableData's computer
memory.
(c) BIMS acknowledges that the Core Software is provided in confidence
and is a trade secret of CableData and will be so protected by BIMS, as required
by the License Agreement between BIMS and CableData.
14. WARRANTIES AND REPRESENTATIONS.
CableData hereby warrants and represents to BIMS as follows:
(a) The content of the Proposal, which was relied upon by BIMS in
entering into this Agreement, was true and accurate and contained no material
omissions or misrepresentations as of the date of the Proposal and, except for
changes that have been made to the software components, estimated costs of
software development and professional fees, and except as otherwise expressly
set forth herein, remains true and accurate and contains no material omissions
or misrepresentations as of the date hereof. The Proposal is hereby incorporated
herein by this reference and shall
-29-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
constitute part of this Agreement as if fully set forth herein. To the extent of
any conflict between the terms and conditions of this Agreement, including the
Exhibits attached hereto, and the terms and conditions of the Proposal, the
terms and conditions of this Agreement shall control.
(b) The work to be performed hereunder shall conform to generally
accepted standards for software in the software development field. Any services
performed by CableData which are determined by BIMS to be of less than these
standards or which contain errors or defects shall be corrected by CableData
without additional charge during the Warranty Period (hereinafter defined).
(c) The Deliverables will contain only (i) original material created
by CableData or (ii) material which has been properly licensed from third
parties and has been used by CableData in accordance with the licenses for such
materials, provided that the inclusion of all such third party materials shall
have been agreed to by BIMS.
(d) The Deliverables are original works, and CableData has not entered
into any contract or agreement which would prohibit or affect this Agreement to
BIMS' detriment.
(e) The Custom Software has not been nor will it be assigned,
transferred or otherwise encumbered, and none of the Deliverables, and no
portion thereof, infringes any patents, copyrights, trade secrets, or other
proprietary rights of any third party, and CableData has no reason to believe
that any such infringement or claims thereof could be made by anyone.
(f) CableData has obtained all necessary rights and licenses to
third party materials included in the Deliverables to enable BIMS to use the
Deliverables for any purpose and for no additional charge beyond the amounts
expressly set forth in this Agreement or in the License Agreement, and has
provided, or will upon BIMS' request provide, to BIMS copies of documents
granting all such rights and licenses.
(g) CableData is aware that BIMS is relying on its skill and
judgment in providing the Deliverables. CableData believes that it has been
made generally aware of BIMS' documented business requirements and intended
uses for the Deliverables, as more clearly described in the Business
Requirement Specification, and, based upon such belief, CableData warrants
that the Deliverables shall satisfy such requirements and will be fit for
such intended uses.
-30-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(h) Neither the Custom Software nor the Interface Software contains
nor will contain any Self-Help Code or any Unauthorized Code, and CableData
agrees to ensure against any data lost as a result of same.
(i) If the Custom Software or Interface Software contains
authorization codes allowing access to a database or other software system,
CableData warrants that such codes shall be perpetual and non-expiring.
(j) For a period commencing upon Acceptance, pursuant to Section 7
hereof and/or the associated Work Order(s), as applicable, and ending ninety
(90) days thereafter (the "Warranty Period"), and for the period during which
CableData is providing continuing support for the Custom Software and the
Interface Software pursuant to Section 16 below and the License Agreement (the
"Support Period"), the Custom Software and Interface Software shall perform as
described in the Business Requirement Specification and in the Detailed Design
Specifications when operated within the operating environment identified or
described in the Operating Environment Attachment to the License Agreement, as
supplemented by Work Orders agreed to by the parties in accordance with the
terms of this Agreement. Except as otherwise provided herein, CableData does not
warrant:
(i) that the Custom Software and Interface Software will run properly
on all hardware,
(ii) that the Custom Software and the Interface Software will operate
in the combination of hardware/software which may be independently
selected by BIMS, or
(iii) that the use of the Custom Software and Interface Software will be
uninterrupted or error-free.
During the Warranty Period, CableData shall correct such defects identified by
BIMS at no additional cost to BIMS, and shall respond to and resolve problems
with the Custom Software and Interface Software in accordance with the
procedures set forth in the License Agreement, at no additional cost to BIMS.
(k) During the Warranty Period and subsequent Support Period, the Core
Software and the Custom Software shall be compatible with each other without
degraded System response time, except as set forth in the Work Order and the
License Agreement. CableData further warrants that during the Warranty Period
and subsequent Support Period, the Custom Software will interface with
-31-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
all foreign and ancillary systems existing at BIMS and/or being provided to BIMS
by third parties (including Sybase, Inc.), as identified in the Business
Requirement Specification, without degrading response time and without breaching
any of the warranties set forth in this Agreement.
(l) Each of CableData's employees, agents, representatives or
subcontractors assigned to perform any work hereunder shall have the proper
skill, training and background so as to be able to perform in a competent and
professional manner, and all work will be so performed.
(m) The Warranties set forth in this Section 14 will not apply if
malfunctions of Custom Software occur as a result of (i) natural disasters,
including fire, flood or lightning, (ii) armed conflict or civil disturbance,
(iii) electrical fluctuations or failures, (iv) gross neglect or intentional
misuse of the Custom Software products, (v) corrections or modifications to the
Custom Software not provided by or approved in writing by CableData or (vi) the
failure to install promptly a correction provided by CableData.
(n) EXCEPT AS PROVIDED IN THIS AGREEMENT OR IN THE LICENSE AGREEMENT,
NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO
THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE WARRANTIES SET FORTH HEREIN
APPLY ONLY TO THE CUSTOM SOFTWARE AND INTERFACE SOFTWARE AS PROVIDED TO BIMS BY
CABLEDATA OR AS SUCH CUSTOM SOFTWARE AND/OR INTERFACE SOFTWARE IS MODIFIED BY
CABLEDATA, AND DO NOT EXTEND TO THE CUSTOM SOFTWARE AS MODIFIED BY BIMS OR A
THIRD PARTY WITHOUT CABLEDATA'S WRITTEN APPROVAL.
15. CUSTOM SOFTWARE SUPPORT. During the Warranty Period, CableData shall do
the following without additional charge to BIMS:
(a) Promptly notify BIMS of any defects or malfunctions in the Custom
Software and/or Interface Software of which it learns from any source, correct
any such defects or malfunctions and provide BIMS with corrected copies of same;
(b) Promptly provide to BIMS copies of the Custom Software and/or
Interface Software revised to reflect any enhancements to the Core Software made
by CableData, or to any other software or systems with which the Custom
Software interfaces (e,g., software provided to BIMS by Sybase, Inc.), as
identified in the Business Requirement Specification;
-32-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(c) Twenty-four (24) hours per day, seven (7) days per week, provide
to BIMS all telephone (toll-free in the United States) or written consultation
requested by BIMS in connection with its use and operation of the Core Software,
Custom Software and Interface Software, or any problems therewith;
(d) Remedy any services performed by CableData which are determined by
BIMS to be of less than the highest professional quality; and
(e) Respond to and resolve problems with the Custom Software and/or
Interface Software identified by BIMS in accordance with the response time
hierarchy included in the License Agreement.
16. CONTINUING SUPPORT OF CUSTOM SOFTWARE.
Effective upon the expiration of the Warranty Period, CableData shall
provide maintenance, additional support and enhancements in connection with the
Custom Software and the Interface Software pursuant to the terms of the License
Agreement at no cost to BIMS for a period of [*]. At the end of such [*]
CableData will provide BIMS a price quote for continued support of the Custom
Software and Interface Software. Post-Warranty support shall include, but not
be limited to, revisions to the Custom Software and/or Interface Software
which are necessary to enable the Custom Software and/or Interface Software to
continue to operate with the enhancements, updates or revisions to the Core
Software and to the other software and systems with which the Custom Software
interfaces (e.g., software provided to BIMS by Sybase, Inc.), as identified in
the Business Requirement Specification. In addition, such post-warranty support
shall include the provision by CableData to BIMS, upon request by BIMS, of
revisions to the Custom Software and Interface Software, in both Source Code
and object code form, as necessary to enable BIMS to fully utilize new features
and functionality that may have been added to the Core Software. The
Unrestricted License, as provided for in Section 12 above, shall apply to all
revisions to the Custom Software and Interface Software provided to BIMS
hereunder.
17. INDEMNITY.
(a) CableData shall indemnify, defend and hold BIMS and its
Affiliates, and their respective officers, directors, agents and employees,
harmless from and against any and all liabilities, damages, losses, expenses,
claims, demands, suits, fines or judgments, including reasonable attorneys'
fees, and costs and expenses incidental thereto, which may be suffered by,
accrued
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-33-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
against, charged to or recoverable from BIMS or any of its Affiliates, or any of
their respective officers, directors, agents or employees, arising out of a
claim that any Deliverable or any portion thereof infringes or misappropriates
any United States or foreign patent, copyright, trade secret or other
proprietary right. CableData shall have no liability to BIMS for any
infringement action or claim which is based upon or arises out of: (i) any
modification of the Deliverables by BIMS without the express written permission
of CableData; or (ii) any use of the Deliverables in combination with any other
system, equipment or software which is not furnished by CableData or approved by
CableData in writing.
(b) CableData shall indemnify, defend and hold BIMS and its
Affiliates, and their respective officers, directors, agents and employees,
harmless from and against any and all liabilities, damages, losses, expenses,
claims, demands, suits, fines or judgments, including reasonable attorneys'
fees, and costs and expenses incidental thereto, which may be suffered by,
accrued against, charged to or recoverable from BIMS or any of its Affiliates,
or any of their respective officers, directors, agents or employees, arising out
of or resulting from (i) claims of bodily injury, including death, or loss or
damage to property or physical destruction of property arising out of or in
connection with any act, error or omission of CableData or any of its officers,
directors, agents, representatives, employees and subcontractors, during the
performance of this Agreement; (ii) intentional acts or gross negligence on the
part of CableData or any of its agents, representatives, employees or
subcontractors in the course of its performance under this Agreement, or (iii) a
reclassification or attempt to reclassify CableData or any of CableData's
employees, agents, representatives or subcontractors as an employee of BIMS or
any of its Affiliates, including, without limitation, any tax liability
(including interest and penalty) resulting from BIMS' or any of its Affiliates'
failure to pay, deduct or withhold income taxes, Federal Insurance Contribution
Act taxes, or Federal Unemployment Tax Act taxes with respect to CableData or
any of its employees, agents, representatives or subcontractors.
(c) CableData's duty to indemnify BIMS hereunder shall include all
attorneys' fees which BIMS reasonably incurs in connection with the defense of
any claims covered by this Section 17 and all settlement costs, except as
otherwise provided in this Section 17. Promptly after receipt by BIMS of a
threat of any action, or a notice of the commencement or filing of any action
against which BIMS may be indemnified hereunder, BIMS shall give notice thereof
to CableData, provided that failure to give or delay in giving such notice to
CableData shall not relieve CableData of
-34-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
any liability it may have to BIMS hereunder except to the extent that CableData
demonstrates that the defense of such action is prejudiced thereby. CableData or
CableData's attorney(s) shall keep BIMS reasonably apprised of the continuing
status of the claims covered by this Section 17, including any lawsuits
resulting therefrom, and shall permit BIMS, upon BIMS' written request, to
participate in the defense or settlement of any such claim, provided that
CableData shall have no obligation to indemnify for, be bound by or otherwise
incur any liability with respect to, any settlement terms to which it has not
agreed. CableData shall assume the cost of defending against any such claim and
shall select the attorney(s) to defend them against such claim subject to BIMS'
approval, which shall not be unreasonably withheld.
18. TERMINATION.
(a) Either party may terminate this Agreement at any time in the event
of a material breach of the terms hereof by the other party if such party shall
fail to cure such material breach within thirty (30) calendar days of receipt of
written notice thereof.
(b) BIMS may terminate this Agreement:
(i) upon written notice to CableData in the event that:
(A) BIMS terminates the License Agreement pursuant to the
terms thereof;
(B) BIMS reasonably rejects the Detailed Design
Specifications prepared pursuant to Section 4 hereof, for
the Initial Work Order set forth in Exhibit "C" hereto;
(C) CableData fails to deliver the version of the System
which includes the Software Releases prepared in
connection with the Initial Work Order set forth in
Exhibit "C" hereto within sixty (60) days of the delivery
date set forth in the Implementation Schedule; or
(D) the version of the System which includes the Software
Releases prepared in connection with the Initial Work
Order set forth in Exhibit "C" hereto fail to pass
Acceptance Testing, as more
-35-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
particularly described in Section 7 hereof; or
(ii) without cause upon seven (7) calendar days prior written
notice to CableData, in which event BIMS shall pay CableData
for CableData's development work hereunder through the
effective date of termination on a Time and Materials basis,
to be determined in accordance with Exhibit "B," up to the
amount of the unpaid portion of the Development Fee
associated with the development work performed through the
effective date of termination.
(c) BIMS may terminate any Work Order entered into pursuant to this
Agreement:
(i) upon written notice to CableData in the event that:
(A) BIMS reasonably rejects the Detailed Design
Specifications prepared pursuant to Section 4 hereof with
respect to such Work Order;
(B) CableData fails to deliver the version of the System
which includes the Software Release prepared in
connection with such Work Order within sixty (60) days of
the delivery date set forth in the Implementation
Schedule set forth in the Work Order; or
(C) the version of the System which includes the Software
Release prepared in connection with such Work Order fails
to pass Acceptance Testing, as more particularly
described in Section 7 hereof and/or in such Work Order.
(d) In the event of termination pursuant to subparagraph (b)(i)(B) or
(b)(i)(C) of this Section, then BIMS shall have the option to either (i) return
to CableData all Deliverables under the Initial Work Order, upon reimbursement
by CableData of all amounts paid by BIMS in connection with such terminated
System or Work Order, or (ii) retain all such Deliverables in lieu of any
reimbursement by CableData of any amounts paid by BIMS in connection with the
Initial Work Order, and pursue such other
-36-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
damages and remedies as BIMS might have pursuant to this Agreement and/or the
License Agreement, or at law or in equity, including without limitation, Delay
Damages pursuant to Section 5(d) of this Agreement. In the event of termination
pursuant to subparagraph (c)(i)(A) or (c)(i)(B) of this Section, then BIMS shall
have the option to either (i) return to CableData all Deliverables related to
the terminated Work Order, upon reimbursement by CableData of all amounts paid
by BIMS in connection with such terminated Work Order, or (ii) retain all such
Deliverables in lieu of any reimbursement by CableData of any amounts paid by
BIMS in connection with such terminated Work Order, and pursue such other
damages and remedies as BIMS might have pursuant to this Agreement, or at law or
in equity, including without limitation, Delay Damages pursuant to Section 5(d)
of this Agreement. In the event of termination pursuant to subparagraph
(b)(i)(D) or (c)(i)(C) of this Section, then BIMS shall have the rights set
forth in Section 7(d) of this Agreement.
(e) Any termination of this Agreement or any Work Order by BIMS shall
be in addition to any and all other legal or equitable remedies which may be
available to BIMS.
19. COORDINATION AND COOPERATION WITH OTHER CONTRACTORS/CONTENT PROVIDERS.
(a) Throughout the term of this Agreement, other contractors and
persons (including personnel of BIMS) may be required to render services in or
install equipment or software at BIMS' facilities, including, but not limited
to, Sybase, Inc., Hewlett-Packard Company and Scientific-Atlanta Inc. BIMS
reserves the right to permit and put such other contractors and persons to work
and to afford them access to such facilities at such times and under such
conditions as do not unreasonably interfere with CableData. CableData shall
perform continuously and diligently and shall so conduct and coordinate its
aspects of this Agreement so as to minimize interference with such other work.
Upon CableData's receipt from BIMS of written notification as set forth in the
License Agreement, CableData shall also cooperate with BIMS in providing such
information and assistance as requested by BIMS for such coordination in a
timely manner, subject to the provisions of Paragraph 6(b) of the License
Agreement. If BIMS determines that CableData is failing to coordinate its work
with the work of other contractors engaged by BIMS or is failing to cooperate
with such contractors, then CableData shall be responsible for all damages,
costs and expenses suffered or incurred by BIMS by reason of CableData's
failure.
-37-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(b) Throughout the term of this Agreement, certain Content Providers
and other third party contractors and/or providers of related products and
services will be required to configure and/or develop the necessary software in
order to deliver their products and services over BIMS's broadband network, the
usage of which products and services may be tracked by and/or maintained within
the System. Upon written notification from BIMS, CableData shall cooperate with
the Content Providers and such third parties in providing such information and
assistance as is necessary for such persons or entities to configure and/or
develop the necessary software in a timely manner, subject to the provisions of
Paragraph 6(b) of the License Agreement. CableData acknowledges and agrees that
the injury that BIMS will suffer in the event of CableData's breach of the
foregoing covenant cannot be compensated by monetary damages alone, and
CableData therefore agrees that BIMS, in addition to and without limiting any
other remedies or rights which it may have either under this Agreement or
otherwise, shall have the right to obtain injunctive or other equitable relief
against CableData, from any court of competent jurisdiction, enjoining any such
breach.
20. RELATIONSHIP OF PARTIES.
CableData acknowledges, agrees, represents and warrants that it is and has
been engaged as an independent contractor, and not as an employee, of BIMS, and
nothing in this Agreement shall be construed as creating an employer-employee
relationship or any partnership or joint venture between BIMS and CableData.
CableData shall be responsible for payment of all federal, state and local taxes
arising out of CableData's and its agents', representatives' and subcontractors'
activities, including by way of illustration, but not limited to, federal and
state income taxes, social security taxes, unemployment insurance taxes, where
applicable, and business license fees, where required. CableData shall not incur
any liability on behalf of BIMS or in any way represent or bind BIMS in any
manner or thing whatsoever and nothing herein shall be deemed to make either
party the agent or legal representative of the other.
21. REGULATORY AUTHORITY.
BIMS' provision of services in connection with the broadband trial will be
subject to the provisions of the order(s) of the Federal Communications
Commission ("FCC") approving BellSouth Telecommunications Inc.'s application for
authority to conduct the trial. ("214 Application") and applicable tariffs. BIMS
and its affiliates shall use reasonable efforts to pursue any regulatory and
local authority required to perform the broadband trial. BIMS
-38-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
may terminate this Agreement if it or its affiliates are unable to obtain the
required approvals and authority. Any such termination shall be as set forth in
this Agreement, and shall be without any further charge, obligation and/or
liability on the part of BIMS to CableData.
22. ASSIGNMENT TO VANGUARD.
In addition to BIMS' assignment rights under this Agreement, including
without limitation, BIMS' right to assign this Agreement to one or more
Affiliates, BIMS shall have the right to assign its rights and delegate its
duties under this Agreement either in whole or in part, at any time and without
CableData's consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give
CableData written notice of such assignment or delegation. Upon the written
notice to CableData and receipt by CableData of Vanguard's written assumption of
rights and obligations under this Agreement, BIMS shall be released and
discharged, to the extent of the assignment, from further duties under this
Agreement.
23. GENERAL.
(a) INSURANCE. CableData shall procure and maintain for itself and its
employees all insurance coverages as required by federal or state law, including
worker's compensation insurance. CableData also agrees to maintain (a) insurance
in the minimum amount of [*] comprehensive general liability coverage,
including blanket contractual liability, broad form property damage, and
products completed operations coverage, and naming BIMS as an additional
insured, and (b) insurance in the minimum amount of [*] coverage of
software errors and omissions, including services rendered and intellectual
property infringement claims, with respect to the computer software developed
hereunder. CableData shall furnish to BIMS a certificate of insurance evidencing
such coverage. Said certificate will include a provision whereby fifteen (15)
calendar days notice must be received by BIMS prior to coverage change or
cancellation by either CableData or the insurer. CableData waives its rights of
subrogation against BIMS.
(b) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia. The parties agree that the
exclusive jurisdiction for any action relating to this Agreement shall be a
federal or state court in Atlanta, Georgia and the parties hereby consent to
such jurisdiction.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-39-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(c) ANNOUNCEMENTS. CableData shall not use the name of or refer to
BIMS, BellSouth or any of their affiliates directly or indirectly in any
advertisement, press release or professional or trade publication without
receiving prior written approval from BIMS.
(d) NOTICES. Any notice given pursuant to this Agreement shall be in
writing and shall be given by personal service, express courier (such as UPS),
telecopy, or by United States certified mail, return receipt requested, postage
prepaid to the addresses set forth below, or such other address as changed
through written notice to the other party.
If to BIMS:
BellSouth Interactive Media Services
1100 Abernathy Road, Suite 414
500 NorthPark Town Center
Atlanta, Georgia 30328
Attn: Larry E. Ryan
Telecopy: (770) 481-2959
With a copy to BIMS General Counsel (same address)
Telecopy: (770) 673-2886
If to CableData:
CableData, Inc.
2969 Prospect Park Drive
Rancho Cordova, California 95670-6006
Attn: Barry Madrid and Bob Archibald
Telecopy: (916) 636-5750
With a copy to CableData's General Counsel (same address)
Telecopy: (916) 636-4561
Notice given by personal service shall be deemed effective on the date it is
delivered, notice sent by express courier shall be deemed effective one
Business Day after dispatch, notice given by telecopy shall be deemed effective
on the date of transmission, and notice mailed shall be deemed effective on the
third Business Day following its placement in the mail.
(e) CAPTIONS. The Captions appearing in this Agreement have been
inserted as a matter of convenience and in no way define, limit or enlarge the
scope of this Agreement or any of the Sections hereto.
-40-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
(f) NO WAIVER. The failure of either party at any time to require
performance by the other party of any provision of this Agreement shall in no
way affect that party's right to enforce such provisions, nor shall the waiver
by either party of any breach of any provision of this Agreement be taken or
held to be a waiver of any further breach of the same provision.
(g) SEVERABILITY. In the event that any one or more of the provisions
of this Agreement is determined by a court of competent jurisdiction to be
invalid, unenforceable or illegal, such invalidity, unenforceable or illegality
shall not affect any other provisions of this Agreement and the Agreement shall
be construed as if the challenged provision had never been contained herein.
The parties further agree that in the event such provision is an essential part
of this Agreement, they will immediately begin negotiations for a suitable
replacement provision.
(h) ASSIGNMENT. It is understood and agreed by the parties that the
services of CableData are unique and personal in nature and CableData shall not
delegate or assign all or any portion of its required performance to any other
individual, firm or entity without the express written consent of BIMS.
(i) SURVIVAL. The provisions of Sections 10, 11, 12, 13, 17 and 20,
of this A Agreement shall survive the expiration or other termination of this
Agreement.
(j) REMEDIES. The rights and remedies of BIMS set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
(k) BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the respective parties hereto, their respective
successors-in-interest, legal representatives, heirs and assigns.
(1) AMENDMENT OR MODIFICATION. No amendment to or modification of
this Agreement shall be binding upon any party unless such amendment or
modification is reduced to writing, dated and executed by the parties to this
Agreement.
(m) MULTIPLE COUNTERPARTS. This Agreement may be executed, in
counterparts, all of which taken together shall constitute one single agreement
between the parties.
(n) PERSONNEL RULES AND REGULATIONS. While on BIMS" premises,
CableData representatives will comply with all security practices and procedures
generally prescribed by BIMS. In
-41-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
addition, unless otherwise agreed to by the parties, CableData representatives
shall observe the working hours, working rules, holiday schedules and policies
of BINS while working on BIMS' premises.
(o) ENTIRE AGREEMENT. This Agreement constitutes and expresses the
entire agreement and understanding between the parties in reference to all
matters referred to herein, and any and all previous agreements, discussions,
promises, representations, and understandings between the parties relative
thereto, including without limitation, the Interim Services Agreement, are
merged herein and superseded hereby, except that BIMS shall continue to have the
benefit of all provisions of prior agreements protecting the confidentiality of
and the proprietary rights of BIMS in and to
its materials.
(p) EXHIBITS. The following exhibits are attached to
this Agreement and incorporated herein by reference:
Exhibit "A" - Software Change Management Plan
Exhibit "B" - CableData Development and Consulting
Fee Schedule
Exhibit "C" - Initial Work Order
Exhibit "D" - Work Order No. 2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
:_______________________________________
BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. CABLEDATA, INC.
BY: /S/ JAMES R. GADD BY: /S/ JERRY JOHNSON
-------------- -------------
NAME PRINTED: JAMES R. GADD NAME PRINTED: JERRY JOHNSON
-------------- -------------
TITLE: PRESIDENT TITLE: VICE PRESIDENT
--------- --------------
DATE: DECEMBER 22, 1995 DATE: DECEMBER 27, 1995
----------------- -----------------
-42-
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
EXHIBIT A
BELLSOUTH - CABLEDATA
SOFTWARE CHANGE MANAGEMENT PLAN
SCOPE
The Software Change Management Plan ("SCM") covers changes to the Business
Requirement Specification and Detail Design Documents. Managing and correcting
trouble reports are out of the scope of this document.
SOFTWARE CHANGE MANAGEMENT OBJECTIVES
- Control, manage and evaluate changes to the various development phases
of the project (requirements, design, development) that occur after
baseline requirements are approved.
- Establish responsibilities for carrying out change management
functions.
- Identify requirements that will be controlled.
- Establish change management procedures.
- Manage approved changes into specific release schedules.
- Develop a status reporting procedure.
- Have only one official requirements document.
- Control, manage and evaluate maintenance changes in production.
DEFINITION OF TERMS
Change Control means the ability to manage change, (to specifications and
systems), in an ordered means. Change Control is a procedure which will be
adhered to rigorously, to ensure changes are not lost, or inappropriate or
disruptive to current schedules.
Configuration management means the ability to hold different versions of the
system simultaneously, and reproduce a version at a moments notice. It also
refers to controlling the version upon which new coding appropriately take
place.
Control procedures means written processes that Control how change is introduced
into the project.
VERSION CONTROL
A baseline is established on documentation when a document has been approved.
The approved baseline version for all documents is 1.0. Subsequent versions of
Business Requirement Specification and Detail Design Documents will be numbered
and dated, e.g., 1.1 (2-1-95). The Project Director at CABLEDATA will maintain
these documents.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
To become an official request, a Requirement/Design Change Request and
Evaluation Form (DCR) (see attached) must be completed and sent to the Review
Team. Informal change requests, such as those made in meetings or between users
and CABLEDATA staff, must be followed up and documented by completing a
Requirements/Design Change Request and Evaluation Form. BIMS will have
responsibility for initiating and managing the Software Change Management
Process.
CHANGE REQUEST CLASSIFICATION-ENHANCEMENTS AND NEW DEVELOPMENT
1. Mandatory.
Change must be made to accommodate regulatory requirements, correct a system
design failure, implement a BellSouth corporate policy, etc.
2. New Market or Functional Necessity
Change is required for system to meet existing or anticipated marketing
requirements or represent a successful competitive entry in the market. System
technical design contains elements that are inconsistent, new products (HW/SW)
are being added require system modifications, etc. Change will improve
productivity, profitability, etc.
3. Discretionary development and enhancements
Change is desirable for system consistency, appearance, performance,
reliability, or other reason - but is not necessary immediately.
4. Administrative/wish list
Typos, document structure, "wish lists" to be recorded for future consideration,
etc.
CONTROL PROCEDURES
a) BIMS AND CABLEDATA PROJECT MANAGERS WILL EXAMINE THE NEED FOR NEW OR CHANGED
REQUIREMENTS OR DESIGN.
Contact likely effected paws about the desired change and the resulting scope of
ramifications.
b) IF THE CHANGE IS DETERMINED TO BE DESIRABLE, BIMS PROJECT MANAGER WILL
COMPLETE A REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM (DCR).
Fill out a softcopy version of the DCR form, including all descriptive, category
and classification elements. Fill out list of effected vendors/components, if
known. Consider what & who the proposed change will effect.
d) SUBMIT THE DCR TO THE BELLSOUTH REQUIREMENTS COORDINATOR ("GATEKEEPER")
Print a hardcopy version, and provide both hardcopy and softcopy to the
BellSouth Requirements Coordinator ("Gatekeeper").
e) GATEKEEPER WILL LOG REQUEST AND BEGIN REVIEW PROCESS
Gatekeeper will assign a log number for tracking and add the item to the DCR
database.
f) GATEKEEPER WILL EXAMINE PRIORITY AND EVALUATE WHEN THE DCR MUST BE REVIEWED
BASED ON THAT PRIORITY.
g) GATEKEEPER WILL COORDINATE AND SCHEDULE REVIEW MEETINGS AS NECESSARY.
Reviews will likely be with team members and vendors to ensure that the review
is adequate and all necessary estimates are completed. This process will
include clarifications and acquisition of more detailed information if
necessary.
h) GATEKEEPER WILL MAKE OR OBTAIN A DECISION (REJECT/APPROVE) AS NECESSARY.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
If approved, the Gatekeeper will ensure that all necessary signatures are
acquired from project leaders and executives.
i) GATEKEEPER AND PROJECT DIRECTORS WILL OBTAIN ESTIMATES FOR RAMIFICATIONS OF
CONTRACT CHANGES NECESSARY.
If the request involves any contract changes, the Gatekeeper will obtain
estimates for the ramifications of those contract changes, and will forward with
justifications and impacts, the request to premier BellSouth and vendor
executive teams. This may involve legal, financial and other resource
participation.
j) THE GATEKEEPER WILL DETERMINE AND ARRANGE SCHEDULING FOR IMPLEMENTATION.
After approval, if the change results in an impact to current development costs,
schedules or resources, the BIMS and CableData Project Managers will create a
Work Order using the Work Order concept detailed in the Software Development
Agreement. If the change does not impact costs, schedules or resources, a Work
Order is not necessary. However, a copy of the DCR should be attached to any
affected Work Orders.
k) CABLEDATA WILL UPDATE ALL NECESSARY BUSINESS REQUIREMENT SPECIFICATION AND
DETAIL DESIGN DOCUMENTS.
Approved DCRs will effect at least one of the current documents. CableData will
reissue the changed documents, with new version numbers and dates.
l) THE GATEKEEPER WILL ARRANGE FOR AN UPDATE OF ALL NECESSARY REQUIREMENTS AND
DESIGN DOCUMENTS.
Approved DCRs will effect at least one of the current documents. Therefore,
some republishing of those documents may be necessary, depending on the scope of
change.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
BELLSOUTH RBB TRIAL
REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM
Log Number: Final Decision: Accept/Reject
Abstract (one line):
Requester: Submission Date:
Organization: Telephone Number:
Component: Subcomponent: Version:
Type of Request:
Requirements: Clarification Modification New Remove
Design/Specifications: Clarification Modification New Remove
Priority: 1 2 3 4
Change Will Result In:
Requirements Document only (Yes No)
Internal component implementation (Yes No)
External API Modification (Yes No)
User Interfaces (Yes No)
Other (specify) (Yes No)
Status: Submitted Accepted Implemented Does Complete
Summary:
Justification:
Proposed Changes: (wording, page #, Requirement ID, etc. desired)
APPROVALS AND CONCURRENCES (AS NECESSARY) SIGNATURE DATE
BELLSOUTH PROJECT MGR.
BELLSOUTH COMPUTER TECHNICAL TEAM LEAD
BELLSOUTH QA & TEST MGR.
Vendor Project Mgr.
BellSouth Executive (If Contract Change Required)
Vendor Executive (If Contract Change Required)
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Anticipated Effects Headcount Hours
Required Required
Related Requirements/Design (all vendors and components)
Software/Hardware Development (All vendors & components)
Documentation (User & System)
System Integrator
Testing (Unit & System)
BellSouth/Vendor Contract Ramification Evaluation (To be completed by BellSouth)
Net Effects on Trial Service Delivery (To be completed by BellSouth)
PRIORITY DESCRIPTIONS:
1. Mandatory.
Change must be made to accommodate regulatory requirements, correct a system
design failure, implement a BellSouth corporate policy, etc.
2. New Market or Functional Necessity.
Change is required for system to meet existing marketing requirements or
represent a successful competitive entry in the market. System technical design
contains elements that are inconsistent, new products (HW/SW) are being added
require system modifications, etc. Change will improve productivity,
profitability, etc.
3. Discretionary development and enhancements
Change is desirable for system consistency, appearance, performance,
reliability, or other reason - but is not necessary immediately.
4. Administrative/wish list
Typos, document structure, "wish lists" to be recorded for future consideration,
etc.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Exhibit B CableData Development and Consulting Fee Schedule
Project Director/Project Manager [*]
Member of the Technical Staff [*]
Manager [*]
Staff member/On-site [*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
December 21, 1995
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION.
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
EXHIBIT C
CABLEDATA WORK ORDER
FOR
BELLSOUTH INTERACTIVE MEDIA SERVICES
This Work Order is a part of the Software Development Agreement dated December
_____, 1995, between BellSouth Interactive Media Services, Inc., a Georgia
corporation ("BIMS"), and CableData, Inc., a California corporation
("CableData"). All work performed under this Work Order is subject to the terms
and conditions of the Software Development Agreement.
1. GENERAL
Date of Work Order: 8/18/95 Work Order Number: 1
This work order is referred elsewhere to be the "Initial Work Order"
2. DESCRIPTION OF WORK
Installation of Intelecable -TM- Version 2.5 pursuant to the Operating and
License Agreement.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-2-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
[*]
3.SERVICE BILLING METHOD: COMBINATION FIXED PRICE AND TIME AND MATERIAL
METHOD(REF. PARAGRAPH 5.A OF DEVELOPMENT AGREEMENT)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-3-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
a. MILESTONE PAYMENT SCHEDULE (Ref. paragraph 5.a.i of development agreement)
The following amounts will be withheld until completion of acceptance testing
and acceptance of software. This is in lieu of a normally withheld 20% of a
workorder amount, with 1 0% paid upon acceptance, and final 10% upon delivery of
final documentation.
Milestone Event(s) Amount(s)
[*]
Final Payments made upon delivery and acceptance of all documentation:
[*]
B. INCENTIVE PAYMENT SCHEDULE (Ref. paragraph 5.c of development agreement)
Deliverable Item(s) Milestone #days Incentive
Date(s) early Amount(s)
NONE
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-4-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-5-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
d. Additional Allowable Expenses To Be Incurred (Ref. paragraph 5.a.ii.A of
DEVELOPMENT agreement) (Note: this item covers all expenses to be incurred such
as trip expenses, etc.)
[*]
4. OPERATING ENVIRONMENT (Ref. paragraph 7g of Operating and License Agreement)
(NOTE: this section is to describe changes that may be necessary to the
operating environment to accommodate this WORK Order.)
No changes are necessary to the operating environment established for this
work order.
5, DELIVERABLES/SOFTWARE RELEASE (Ref. paragraph 6.b of development AGREEMENT)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-6-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
a. OWNERSHIP (Ref. paragraphs 10 and 11 of the development agreement)
Ownership falls into these categories:
1. CableData retains full ownership
2. BIMS retains full ownership
3. Joint ownership between BIMS and CableData
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-7-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
[*]
6. IMPLEMENTATION SCHEDULE (Ref. paragraph 6 of development agreement)
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-8-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
Item(s) Date(s)
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
-9-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
7.ACCEPTANCE TEST CRITERIA:
Acceptance test criteria for the core software will be the Documentation, i.e.
CableData supplied Reference Manuals and Release notes. For the custom
software, acceptance test criteria will be Business Functionality Specification
and Detail design documents, attached to this work order.
-10-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
8. ATTACHMENTS:
Attachment A Approved Requirements of Business Functionality
documents
Attachment B Detailed design documents
-11-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.
8. APPROVALS
All of the terms, covenants and conditions set forth in the Software Development
Agreement are incorporated herein by reference as if the same had been set forth
herein in full.
CABLEDATA, INC. BELLSOUTH INTERACTIVE
MEDIA SERVICES, INC.
Jerry Johnson James R. Gadd
- ------------- -------------
Name Name
Vice President Vice President
- -------------- --------------
Title Title
/s/Jerry Johnson /s/James R. Gadd
------------- -------------
Signature Signature
December 27, 1995 December 22, 1995
- ----------------- -----------------
Date Date
-12-
PRIVATE/PROPRIETARY
CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION
MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR
U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT.