EXHIBIT 10.29
CABLEDATA'S INTELECABLE -TM
OPERATING AND LICENSE AGREEMENT
THIS AGREEMENT IS BETWEEN CABLEDATA, INC. (hereinafter called "CableData"), a
California corporation located at 2969 Prospect Park Drive, Rancho Cordova, CA
95670, and BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. (hereinafter called
"BIMS"), a Georgia corporation located at 1100 Abernathy Road, Suite 414,
Building 500, Atlanta, GA 30328.
BIMS and CableData, by their execution of this Operating and License Agreement,
hereby agree that CableData shall provide and BIMS shall utilize CableData's
Intelecable proprietary subscriber management software (hereinafter called "Core
Software") and Services, throughout the period of this Agreement.
1. PERIOD OF AGREEMENT
This Agreement shall be for a period of [*] months, commencing on the date of
full execution of this Agreement ("the Effective Date"). BIMS shall have the
right to extend the Agreement for up to [*] following the expiration of the
initial term, subject to the adjusted pricing set forth in the Pricing
Attachment. Thereafter, the parties may agree to extend the Agreement for an
additional period to be mutually agreed upon.
2. DEFINITIONS
The following definitions are applicable to this Agreement:
a. Affiliate - with respect to BIMS, any entity designated by BIMS for
inclusion under this Agreement which controls, is controlled by or is under
common control with BIMS, or any partnership or other such entity in which
BIMS or its Affiliates have any material form of ownership, and for entities
having 100,000 or more Subscribers, which CableData has consented to be
included under this Agreement. For purposes of this definition of Affiliate,
"material form of ownership" shall be deemed to mean partnerships or other
entities in which BellSouth Corp. or a BellSouth subsidiary has in excess of
a fifty percent (50%) ownership interest. BIMS shall submit to CableData's
Project Manager the names of all entities having 100,000 or more Subscribers
that it wishes to include within the definition of Affiliate, and CableData
shall have fifteen (15) days thereafter to notify BIMS in writing if, in its
sole reasonable discretion, it objects to the inclusion of such entity under
this Agreement, in which case the entity will not be included within the
definition of Affiliate under this Agreement. If CableData fails to give
such notice, the entity will be deemed to be added to this Agreement as an
Affiliate. Entities with fewer than 100,000 Subscribers will be added to the
list of Affiliates at BIMS's sole discretion. In no event shall an entity be
deemed to be an Affiliate if it offers Subscriber Management Software
products or services in the open market in direct or indirect competition
with CableData's Software. All references to BIMS in this Agreement will be
deemed to include Affiliates.
b. Agreement - CableData's Intelecable Operating and License Agreement
and the Attachments thereto between BIMS and CableData, as the same may be
amended from time to time.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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c. Authorized Parties -- third parties who provide services over BIMS's
facilities and network and who have been approved by CableData to use the Core
Software, which approval shall not be unreasonably withheld. For purposes of
this definition, CableData consents to the inclusion of Vanguard Cable Corp. as
an Authorized Party. Additional third parties may be approved by CableData as
follows: upon receipt of written notice from BIMS, CableData shall have fifteen
(15) days thereafter to notify BIMS in writing if, in its sole reasonable
discretion, based on an assessment of the third party's competitive position
relative to CableData, CableData objects to the inclusion of such entity as an
Authorized Party. If CableData does not respond within such time period, the
third party will be deemed to be approved by CableData.
d. BIMS's Computer -- the equipment made available by BIMS, or an
Authorized Party, that has been configured to conform to the processing
requirements of the Core Software, as set forth in the Operating Environment
Attachment hereto.
e. BIMS's Site -- a location at which BIMS's Computer is or is to be
located for the purpose of using the Core Software by or on behalf of BIMS or
any of its Affiliates or Authorized Parties.
f. Business Day -- (i) with respect to any time period within which
BIMS must respond, Monday through Friday, excluding any holidays recognized
by BIMS as company-wide holidays; and (ii) with respect to any time period
within which CableData must respond, Monday through Friday, excluding any
holidays recognized by CableData as company-wide holidays. All time period
references in this Agreement to "days" other than Business Days shall be
deemed to refer to calendar days.
g. Custom Software -- the software, including any enhancements,
modifications and additions to the Core Software, developed by CableData
pursuant to the terms of the Software Development Agreement. The Custom
Software shall include, without limitation, the "Custom Software" and the
"Interface Software," as those terms are defined and used in the Software
Development Agreement.
h. Documentation -- all detailed User and operational manuals,
instructions and other materials required to fully utilize the Core Software,
and all training manuals and routines designed to train Users in the
operation of the Core Software. The term "User(s)" includes both the
user/operators of any server-based portions of the Core Software as well as
the end-users of any terminal-based portions of the Core Software. The term
"Documentation" shall also include any and all reference documentation and
release documentation, to the extent provided or otherwise available to be
provided to any of CableData's other customers, defining the operation and/or
performance of the Core Software and/or any releases of the Core Software
made available by CableData. The initial delivery of Documentation hereunder
shall include, without limitation, release documentation for all releases of
the Core Software through and including Version 2.5 of the Core Software.
All Documentation supplied on disks will be in machine readable form.
i. Laboratory System -- a System used by BIMS and/or Authorized Parties
other than for processing transactions and records for Subscribers. A
Laboratory System is used primarily for testing, training and back-up purposes.
j. License -- the license set forth in Section 3 of this Agreement
providing BIMS and Authorized Parties with permission to use the Core Software.
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k. Maintenance -- the software maintenance which CableData provides BIMS
for the on-going maintenance of the Software.
l. Production System -- a System used by BIMS and/or Authorized Parties
for processing transactions and records for Subscribers.
m. Products -- all products provided by CableData to BIMS pursuant to
this Agreement, including Core Software and Documentation.
n. Proposal - U.S. Computer Services (predecessor in interest to
CableData) Initial Response to BIMS's Request for an Intelecable/Oracle
Interface dated August 29, 1994, as modified by the facsimile transmission from
Dave H. Williams to Larry E. Ryan dated September 1, 1994, the letter from
Robert Crowley to Larry E. Ryan dated September 23, 1994 and the Memorandum of
Understanding dated December 5, 1994, between USCS and BIMS, all of which
documents are attached hereto as Exhibit and incorporated herein by reference
except as specified in Paragraph 7.a.
o. Self-Help Code -- any back door, time bomb, drop dead device, or
other software routine designed to disable a computer program automatically
with the passage of time or under the positive control of any person or
entity other than BIMS. Self-Help Code does not include software routines in
the Core Software, if any, designed to permit BIMS (or a third party
authorized by BIMS) to obtain access to the System (e.g., remote access via
modem) for purposes of maintenance or technical support.
p. Services -- all work performed by CableData for BIMS pursuant to this
Agreement including, but not limited to, Maintenance and Support.
q. Software -- the Core Software, the Documentation and the Custom
Software.
r. Software Compatibility Matrix -- the then current version of
CableData's "Software Vendors, Configurations, Versions Supported by the
Center," the current version of which is attached hereto as Attachment E.
CableData acknowledges and agrees that none of the third party product(s)
listed on the Software Compatibility Matrix will be removed from any
subsequent versions of the Software Compatibility Matrix, but that only the
versions (i.e., identified by release number) for such third party product(s)
may change.
s. Software Development Agreement -- the Software Development Agreement
between BIMS and CableData of even date herewith pursuant to which CableData is
to provide the Custom Software to BIMS.
t. Source Code -- the source code corresponding to the applicable
software, including all updates, upgrades and revisions thereto, plus any
pertinent commentary or explanation that may be necessary to render the Source
Code understandable and usable by trained computer programmers who are generally
familiar with Oracle database products and the C and C++ programming languages.
u. Subscriber -- active subscribers having a balance or a transaction
posted on BIMS's Computer as of a specific date during any given month,
excluding subscribers who are not subject to collection activity. A month, for
purposes of this definition, is the period between successive final month-end
cutoffs for BIMS's invoicing purposes.
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v. Support - software support services provided by telephone by CableData
employees who are trained customer service representatives from the Support
Facility.
w. Support Facility - CableData's office in Sacramento, California or
such other office as CableData shall from time to time designate for the purpose
of providing BIMS Support.
x. System - the Core Software, the Custom Software, the Third Party
Software and the computer equipment on which the Core Software, Custom Software
and Third Party Software will be installed, as described in the Operating
Environment Attachment hereto.
y. Third Party Software - the computer programs which are (i) owned by
third parties, (ii) provided by CableData to BIMS hereunder or licensed by BIMS
from a third party, and (iii) listed in the Third Party Software Attachment
hereto.
z. Unauthorized Code - any virus, Trojan horse, worm, or other software
routines designed to permit unauthorized access; to disable, erase, or otherwise
harm software, hardware, or data; or to perform any other such actions. The
term Unauthorized Code does not include Self-Help Code.
3. LICENSE GRANT
a. CableData hereby grants BIMS non-transferable (except as otherwise
provided herein) non-exclusive Licenses, without right of sublicense, to use
the Core Software and associated Documentation listed in the Pricing
Attachment solely for BIMS's own internal use at BIMS Sites, sites at which
BIMS's customer contact personnel have remote access to BIMS's Computer and
sites operated by Authorized Parties designated in the Site Attachment of
this Agreement, as well as for the use of such Authorized Parties, in
accordance with the terms and conditions of this Agreement. Such Licenses
shall be for use in connection with BIMS's Production System and for use in
connection with BIMS's Laboratory System. No more than one License will be
required for any single BIMS Corp (as "Corp" is further defined in Paragraph
9(c)). BIMS may, at its option from time to time by giving CableData prior
notice, add new BIMS Sites or Products or Services; CableData will then add
such new sites to the Site Attachment and such Products and Services to the
Products/Services Attachment.
b. BIMS shall have the right to use the Core Software and Documentation
on BIMS's Computer(s) and to make copies of the Core Software (object code
version only) and Documentation for backup, archival and testing purposes only;
provided, however, that BIMS shall have the right to make copies of
insubstantial portions of Documentation, subject to the limitations and
obligations set forth in the last sentence of the Paragraph 3(b). BIMS agrees
to maintain appropriate records of the number and location of all such copies of
the Core Software and to make the records available to CableData upon request.
With respect to Documentation, BIMS shall use due care to protect such
Documentation from unauthorized disclosure and to ensure that copies made for
BIMS's own internal use, and for use by Authorized Parties, shall not be
substantial portions of the Documentation and shall be appropriately protected.
c. Except as otherwise permitted hereunder, BIMS agrees not to modify the
Core Software of attempt to de-compile or reverse engineer the Core Software.
BIMS understands that upon termination of this License, neither BIMS nor anyone
acting under BIMS may make any use whatsoever of the Core Software or any part
thereof.
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d. CableData shall deliver to and install the initial copy of the Core
Software at the initial BIMS Site designated by BIMS in the Site Attachment
hereto, together with the required Documentation. As soon as reasonably
possible after installation of the Core Software and implementation of the
Custom Software, BIMS shall conduct the acceptance testing procedures for the
Software set forth in Section 7 of the Software Development Agreement.
e. Interface Disclosures. CableData will make available for purchase
to third parties on a non-discriminatory basis descriptive documentation
concerning the use of CableData's application program interfaces (APIs),
communication protocols and interface specifications (a current list of which
is contained in the Interface Attachment) necessary to enable third party
developers to write applications which interface/communicate with the Core
Software. Licenses for all such software, with the exception of software
developed by CableData for BIMS pursuant to the Software Development
Agreement, will be available at the prices set forth in CableData's standard
Interface Specification Fee and Non-Disclosure Agreement, a copy of which is
attached hereto as part of the Interface Attachment and incorporated herein
by reference. If no price is included in the attachment for a particular
interface, the license will be made available at CableData's then-current
prices, which will be quoted to BIMS no later than five (5) business days
after BIMS's request therefor.
4. PRICES
a. The prices for the Core Software and Services under this Agreement
are set forth in the Pricing Attachment.
b. Pricing for the Core Software Basic System and the associated modules
is inclusive of an unlimited site license for the DOS Windows version of
CableData's Intelecable Emulator (inclusive of maintenance).
c. All prices are F.O.B. (freight on board) Sacramento, California, USA;
and are exclusive of transportation charges, which, if applicable, will be
invoiced separately. CableData will arrange for insurance on the Software and
Products while in transit at BIMS's expense.
d. The Price Schedule for utilizing the Software and Products selected by
Customer shall be subject to increase upon forty-five (45) days' prior notice
commencing eighteen (18) months from the effective date of this Agreement,
provided however, that the percentage of such increase or increases shall not
exceed the percentage increase in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the U.S. Department of Labor (a) from the date of
last general price increase upon which the following pricing were based (b) to
the date of price increase under this Agreement. Prices for all CableData
products and services ordered and used by BIMS but not set forth in the Pricing
Attachment shall be the prices in effect on the date the product or service is
ordered by BIMS.
e. In the event that CableData provides new Core Software or Services,
CableData may modify the Pricing Attachment to reflect the new services and
options and the prices thereof which are available to be ordered by BIMS
hereunder. This may include new releases of existing software that contain
significant enhancements and functions that increase the value of the
solution to BIMS, and are offered by CableData to its other customers for an
additional charge, as well as new Core Software modules that are made
available to CableData customers at an additional charge. New "Major Software
Releases" (as defined in Paragraph 15(d) below) that are made available to
Cable Data customers as part of standard Maintenance will be made available
to BIMS at no cost beyond the cost of periodic Maintenance hereunder.
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f. If BIMS elects to obtain a paid-up License for the Core Software,
BIMS will be charged a one-time fee for the License (which fee includes basic
Support), or will pay the fee in periodic installments. BIMS may elect to
obtain a paid-up License for the Core Software at or any time after the
one-year anniversary of this Agreement. Cable Data will provide BIMS with a
price quote for a paid-up License for the Core Software at least thirty (30)
days prior to the one year anniversary of this Agreement. Following the
Warranty Period (hereinafter defined), BIMS will be required to pay annually
for on-going Maintenance. In the event that BIMS elects to pay its License
fees on a monthly per-Subscriber basis, it agrees to pay a monthly minimum
charge, as set forth in the Pricing Attachment, for both the License and the
ongoing Maintenance; provided, however, that the obligation to pay such
monthly License fees under this Agreement shall commence. [*]
g. CableData represents that the prices provided hereunder are equivalent
to or better than the prices being offered by CableData to its other similarly
situated customers of comparable size for comparable orders of similar products
and services, subject to substantially similar terms and conditions. Annually,
on the anniversary date of this Agreement, CableData will review its prices to
all other customers. If CableData has entered into agreement with other
customer(s) of comparable size for substantially similar products and services
subject to substantially similar terms and conditions and has extended to such
customer(s) more favorable pricing for such products and services, this
Agreement shall be deemed amended to extend such pricing to BIMS.
5. PAYMENT
a. CableData shall invoice BIMS annually for all Products and Services
that are billable on an annual basis and monthly for Products and Services
that are billable on a monthly basis, in accordance with the Pricing
Attachment and other applicable Attachments. One-time charges will be billed
by CableData in advance. Standard payment terms are net cash, without
discount, set-off or deferment, due and payable within thirty (30) days from
the Invoice Date (hereinafter defined); payment of all undisputed charges is
due in U.S. dollars. In the event that BIMS does not render full payment of
all undisputed charges within sixty (60) days of the date payable, CableData
may, after notifying BIMS, cease any and all Services until such account is
brought current.
b. If BIMS fails to pay all undisputed charges within thirty (30) days of
the date of invoice, or the date of postmark if the postmark date is more than
one (1) Business Day after the invoice date (collectively, the "Invoice Date"),
BIMS agrees that upon the expiration of a fifteen (15) day cure period following
the effective date of written notice from CableData of such failure to pay,
CableData will have the right to invoice and BIMS will pay a late payment
service charge of one and one half percent (1.5%) per month, but not in excess
of the lawful maximum interest allowed, on the past due balance from and after
the expiration of such fifteen (15) day cure period.
c. BIMS agrees to pay CableData all legally due sales, use or similar
taxes in connection with the purchase of any services or tangible personal
property pursuant to the terms of this Agreement. CableData shall separately
state all applicable sales, use or similar taxes on each invoice as
prescribed by the applicable terms of this Agreement or legal authority.
CableData shall be legally responsible for remitting all taxes collected from
BIMS to the proper taxing authority. In the event the taxability of any
purchase under this Agreement is disputed by a taxing authority as the result
of an audit or otherwise, CableData shall provide timely written notice to
BIMS of this dispute prior to any settlement or action on this dispute.
Notwithstanding the foregoing, any fines, penalties or interest imposed on
BIMS or CableData because of late payment by CableData shall be borne by
CableData, unless such fines, penalties or interest result from the actions
taken by CableData at the written direction of BIMS. BIMS shall not be
responsible for paying or
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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reimbursing CableData for any corporate franchise tax, capital tax, net worth
tax, or taxes measured by reference to CableData's net income.
d. Should BIMS in good faith dispute any portion of the invoice submitted
by CableData, BIMS must advise CableData in writing within thirty (30) days of
Invoice Date of such dispute and pay, when due, all non-disputed charges.
CableData will consider BIMS's dispute in good faith. Any charges not disputed
or corrected by either party within six (6) months of the Invoice Date will be
deemed to be final an nondisputable unless the party disputing the charge can
provide the other with satisfactory proof that it could not have known of the
existence of a dispute within that period. Except as otherwise provided herein,
in no event will any amounts be refundable more than one (1) year after payment
was made.
6. CONFIDENTIALITY AND TITLE
a. CableData agrees that all confidential information disclosed to it
by BIMS, or otherwise obtained by CableData, during performance of this
Agreement shall be considered proprietary and shall be held in confidence by
CableData and used by it only in performance of this Agreement. Such
confidential information of BIMS shall include, without limitation, any and
all information regarding the identity of, or in any way relating to, BIMS's
customers, including without limitation, Subscribers. No confidential
information provided by BIMS under this Agreement, or otherwise obtained by
CableData, shall be duplicated or furnished to another party without the
prior written consent of BIMS. CableData will exercise the same standard of
care to protect BIMS's proprietary data disclosed hereunder as is used to
protect CableData's own proprietary data from unauthorized disclosure;
provided, however, that CableData will comply, at a minimum, with any and all
rules, regulations and orders of the Federal Communications Commission, or of
any other applicable federal or state regulatory agency, relating to the
confidentiality of customer information.
b. BIMS recognizes and agrees that, during the term of this Agreement and
thereafter, title to, ownership of, and all proprietary rights to the Core
Software (and the Custom Software except as may otherwise be agreed to between
the parties), and all copies thereof will at all times remain the property of
CableData or its licensors, as the case may be. BIMS agrees to maintain the
confidentiality of the Core Software and not to disclose any portion of the Core
Software to any third party other than to BIMS's employees and to third parties
who are subject to a nondisclosure agreement with BIMS. Nothing herein shall
preclude BIMS from sharing with third parties, including prospective CableData
customers, general information about the features and functionality of the Core
Software, general information about BIMS's actual and intended uses of the Core
Software , or information concerning the existence and nature of the
relationship between CableData and BIMS; provided, however, that BIMS shall not
permit any unauthorized third party to copy any part of the Core Software of
Documentation. BIMS will exercise the same standard of care to protect
CableData's proprietary data disclosed hereunder (exclusive of the Custom
Software), as well as confidential information such as CableData's pricing,
prospective customers and CableData-owned development tools and system libraries
disclosed under the Software Development Agreement, as is used to protect BIMS's
own proprietary data from unauthorized disclosure.
c. CableData recognizes and agrees that, notwithstanding the foregoing,
title to, ownership of, and all proprietary rights to the data processed by the
Core Software pursuant to this Agreement will at all times remain the property
of BIMS.
d. Nothing herein shall prohibit either party from using or disclosing
any information which is or comes into the public domain through no fault of
that party or which that party in good
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faith receives from a third party entitled to disclose the same without
restriction, or which that party proves was already known to it prior to
disclosure by the disclosing party.
7. LIMITED WARRANTY; LIMITATION OF REMEDIES
a. Proposal. CableData warrants that the content of the Proposal, which
was relied upon by BIMS in entering into this Agreement, was true and accurate
and contained no material omissions or misrepresentations as of the date of the
Proposal and, except as otherwise expressly set forth herein, remains true and
accurate and contains no material omissions or misrepresentations as of the date
hereof. Exceptions to the Proposal are changes from the Proposal to the
Agreement to the new software components, estimated costs of software
development and professional fees. The Proposal is hereby incorporated herein
by this reference and shall constitute part of this Agreement as if fully set
forth herein. To the extent of any conflict between the terms and conditions of
this Agreement, including the Attachments attached hereto, and the terms and
conditions of the Proposal, the terms and conditions of this Agreement shall
control.
b. Ownership. CableData warrants that it is the owner of the Core
Software or otherwise has the right to grant to BIMS the License to use the Core
Software granted hereunder without violating or infringing any law, rule, or
regulation, or any United States or foreign copyright, patent, trade secret or
other proprietary right of any third party.
c. BIMS's Reliance. CableData warrants that it is aware that BIMS is
relying on its skill and judgment in providing the Software. CableData believes
that it has been made generally aware of BIMS's documented business requirements
and intended uses for the Software, and based on such belief CableData warrants
that the Software shall satisfy such requirements and is fit for such intended
uses. The Core Software is at the current release level.
d. Warranty Period. CableData warrants that, for a period of ninety (90)
days from the date of Acceptance of the Software pursuant to the Software
Development Agreement, the Core Software provided to BIMS will perform as
described in the Documentation and will be capable of operating on BIMS's
network in conformity with such Documentation. In the event that the
Documentation includes any disclaimer of warranty or liability which conflicts
with any of the terms and conditions of this Agreement, or otherwise purports to
reduce or limit CableData's obligations under this Agreement, the terms and
conditions of this Agreement shall control and such disclaimers and limitations
shall not apply.
e. Performance Assurances. The benchmarks set forth in the Capacity
Reference Guidelines Attachment are provided as capacity and reliability
guidelines and are not a warranty of System performance. Capacity involves
transaction rates, and reliability relates to the availability of the Core
Software without interruption. The guidelines are offered to BIMS as a guide
for determining whether or not analysis and corrective action are indicated.
Such corrective action might include adding hardware or software or
reconfiguring the operating system or the RDBMS. In the event System
performance falls below the benchmarks set forth in the attachment, CableData
will consult with BIMS, at BIMS's request, on the most cost-effective course of
action for BIMS to pursue to achieve the desired System performance. Nothing
contained in this paragraph diminishes or otherwise undermines the other
warranties set forth in this Section 7.
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f. Compatibility.
i. Core Software. CableData warrants that all updates, upgrades and
revisions to the Core Software furnished hereunder will be implemented in such a
manner as to maintain backward compatibility with previous versions or releases
of the Core Software furnished hereunder so that such previous versions or
releases shall continue to be operable with the Core Software as updated,
upgraded, or revised, in materially the same manner and with materially
equivalent performance. The addition of new features and functions to the Core
Software may result in degradation of performance that will require additional
system resources to overcome. CableData will make reasonable efforts through
quality assurance and performance analysis to minimize any degradation of
performance due to the addition of new features and functions to the Core
Software and will assist BIMS in identifying and defining any additional
resources that may be necessary, both prior to and after the delivery of the
update, upgrade or revision.
ii. Custom Software. In addition, CableData will continue to
preserve the APIs so as to ensure that applications written to the API within
earlier versions of the Core Software and Custom Software will work with all
subsequent updates, upgrades and revisions to the Core Software and Customer
Software in materially the same manner and with materially equivalent
performance.
iii. Third Party Software and Operating Environment. CableData
further warrants that it will continue to preserve the APIs so as to ensure that
the following items will work with all subsequent updates, upgrades and
revisions to the Software, in materially the same manner and with materially
equivalent performance; (i) Third Party Software specifically identified in the
then current version of CableData's Software Compatibility Matrix, and (ii) the
hardware/software identified in the Operating Environment Attachment hereto.
g. Operating Environment. CableData warrants that the Software as
delivered to BIMS by CableData in connection with the Initial Work Order and
Work Order Number 2 under the Software Development Agreement, and each module or
component and function thereof, will be capable of operating fully and correctly
on the computer equipment and within the Operating Environment specified in the
Operating Environment Attachment hereto. Any and all compilers or other
computer programs which must be present in order for such Software to function
fully are also specified in the Operating Environment Attachment. CableData
will ensure that future releases of the Core Software will operate properly with
versions of the products identified in CableData's then-current Software
Compatibility Matrix.
h. Self-Help Code. The Software neither contains nor will contain any
Self-Help Code nor any Unauthorized Code, and CableData agrees to ensure against
any data lost as a result of same.
i. Software Support Personnel. CableData warrants that each of
CableData's employees, agents, or subcontractors assigned to perform any work
hereunder shall have the proper skill, training and background so as to be able
to perform in a competent and professional manner and that all work will be so
performed.
j. Limited Warranty. CableData does not warrant that (i) the Core
Software will run properly on all hardware, (ii) the Core Software products
will operate in the combination of hardware/software which may be
independently selected by BIMS, (iii) the use of the Core Software products
will be uninterrupted or error-free, or (iv) all Core Software product
program errors will be corrected.
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k. Defects. In the event of a material (Severity Level 1 or 2, as
defined in the Maintenance/Support Attachment) defect in any Core Software
product commencing upon delivery of Custom Software pursuant to the Initial Work
Order under the Software Development Agreement, CableData will, at its option
(at no additional charge) during the Warranty Period; thereafter, subject to the
payment of the periodic Maintenance fees) correct or replace it. If a defective
Core Software product cannot be corrected to BIMS's reasonable satisfaction or
replaced within a reasonable amount of time, BIMS may return the defective Core
Software product [*]
[*]
m. Exclusions. The warranties and remedies specified in this Section 7
will not apply if the malfunctions of the Core Software products are due to (i)
natural disasters, including fire, flood, or lightning, (ii) armed conflict or
civil disturbance, (iii) electrical fluctuations or failures, (iv) gross neglect
or intentional misuse of the Core Software products or other failure to comply
with the instructions set forth in the most current Documentation provided by
CableData, (v) corrections or modifications to the Core Software solution or its
operating environment not provided by or approved in writing by CableData
through the change control procedures described in the Software Development
Agreement executed concurrently herewith, or (vi) the failure to install
promptly a correction provided by CableData.
n. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN
THE SOFTWARE DEVELOPMENT AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS,
INDEMNITIES AND GUARANTEES WITH RESPECT TO CABLEDATA'S CORE SOFTWARE PRODUCTS,
WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN
STATEMENT BY CABLEDATA OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY
OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AS TO
SKILL AND CARE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
o. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER OR UNDER THE SOFTWARE DEVELOPMENT AGREEMENT, UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 10 -
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES
OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF BREACH OR
FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EXCEPT ONLY IN THE CASE OF
DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES
SUCH LIABILITY. EXCEPT AS OTHERWISE PROVIDED, CABLEDATA'S LIABILITY TO BIMS FOR
ANY LOSSES OR DAMAGES, DIRECT OR INDIRECT, ARISING OUT OF THIS AGREEMENT SHALL
NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT BILLED OR BILLABLE FOR THE SPECIFIC
PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.
p. BIMS acknowledges that (i) the prices for the Core Software
contemplated under this Agreement are based on the limited warranties,
disclaimers and exclusions specified in this Section 7 and (ii) such prices
would be substantially higher if any of these provisions were unenforceable.
q. EXCEPT AS SET FORTH HEREIN, THIS AGREEMENT COVERS CABLEDATA'S SOFTWARE
AND DOES NOT COVER THIRD PARTY OR COMPUTER OPERATING SYSTEM SOFTWARE. NO
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO
OPERATING SYSTEM SOFTWARE.
8. TRAINING
a. CableData will provide pre-installation Core Software training
programs for BIMS's employees at CableData's Education Center. The Core
Software training courses are available at the prices set forth in the Pricing
Attachment and will consist of the classes required by CableData. Equipment and
materials used in the instruction are provided by CableData.
b. BIMS is responsible for all transportation to and from CableData's
Education Center, lodging and food for BIMS's employees that attend CableData's
training.
c. BIMS can purchase additional instruction at the prices specified in
the Pricing Attachment for all classes taught at CableData's Education Center.
BIMS can also purchase customized on-site training at the daily rates specified
in the Pricing Attachment.
d. In addition to the provision of Maintenance and Support services
pursuant to Section 9 herein, upon request by BIMS, CableData shall identify and
assign the number of CableData professional services employees requested by BIMS
to be on-site at BIMS's facilities and devote all of their business time during
such assignment to the technical support of the Software and to facilitate the
support of the Software through CableData's customer service and support
organization. As consideration for the provision of such on-site support, BIMS
shall pay CableData pursuant to the rates set forth in the Pricing Attachment.
All such payments due hereunder shall be invoiced by CableData to BIMS on a
monthly basis.
9. SOFTWARE MAINTENANCE AND SUPPORT
a. Maintenance. Maintenance, as further defined in the
Maintenance/Support Attachment, is required for all CableData-provided Core
Software components. Breach by BIMS of its obligation to pay a Maintenance fee
component of its monthly License fees following the Warranty Period will render
the Licenses granted hereunder immediately null and void, except in
- 11 -
the event that CableData is in material breach of the Agreement and BIMS elects
to maintain the Core Software pursuant to Section 17 herein. As provided for in
the Software Development Agreement, CableData shall provide Maintenance for the
Custom Software, pursuant to the terms of this Section 9 and the
Maintenance/Support Attachment, at no charge to BIMS during the term of this
Agreement until the earlier of the date on which BIMS ceases to use the Custom
Software, or [*] following the expiration of the Warranty Period for the Custom
Software, as provided for in Section 14 of the Software Development Agreement.
At no additional charge during the Warranty Period and thereafter as part of the
monthly License fees or periodic Maintenance fees, as applicable, set forth in
the Pricing Attachment, CableData shall provide BIMS with the following
Maintenance Services:
(i) CableData shall notify BIMS of any defects or
malfunctions in the Software or Documentation that could
impact BIMS's ability to operate the Software in a not
insignificant manner and shall correct any such defects
or malfunctions in accordance with the
Maintenance/Support Attachment and provide BIMS with
corrected copies of same in accordance with the
Maintenance/Support Attachment;
(ii) CableData shall provide BIMS with copies of the
Core Software and, as soon as reasonably available,
Documentation revised to reflect any upgrades of the Core
Software released by CableData and/or enhancements to the
Core Software made by CableData, including, without
limitation, modifications to the Core Software which can
increase the speed, efficiency or ease of operation of
the Core Software or add additional functionality or
capabilities to or otherwise improve the functions of the
Core Software, and modifications to the Core Software
which support new releases of the operating systems and
other third party software with which the Core Software
is designed to operate or interface; and
[*]
b. Support. Twenty-four (24) hours per day, seven (7) days per week
during the Warranty Period and during Business Hours (hereinafter defined)
during the Post-Warranty Period, CableData shall provide to BIMS Telephone
Support (toll-free in the United States) as defined in the Maintenance/Support
Attachment, or written consultation as requested by BIMS, in connection with its
use and operation of the Software or any problems therewith. CableData will
respond to and resolve problems with the Software in accordance with the
following procedures:
(i) With respect to any problem involving the
Software whereby BIMS's use of the Software is adversely
affected (Severity Level 1 or 2 in the
Maintenance/Support Attachment), CableData will respond
to BIMS's request for service by telephone response by a
qualified and knowledgeable representative within one (1)
hour from the time CableData receives BIMS's call and
will complete such repairs within [*] of receipt of the
call for a Severity Level 1 problem, and within [*] of
receipt of the call for a Severity Level 2 problem. For
purposes of this Section 9(b)(i), CableData will be
deemed to have remedied the problem if it provides BIMS
with a reasonable work-around that enables BIMS to
continue to operate the Software or to perform the
affected function for a reasonable period of time until a
more permanent correction can be effected, as long as
CableData is rendering continuous effort to effect the
permanent correction. CableData repair personnel shall
render continuous effort with respect to such problems.
With respect to each Severity Level 1 or 2
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 12 -
problem, CableData will provide progress status reports
to BIMS at least twice daily until a remedy for each such
problem can be provided. [*]
(ii) With respect to any other problem involving the
Software (i.e., Severity Levels 3,4 or 5 in the
Maintenance/Support Attachment), CableData will respond
during Business Hours to BIMS's request for service by
telephone response by a qualified and knowledgeable
representative within four (4) Business Hours from the
time CableData receives BIMS's call. [*]
(iii) Unless and until a software support
surcharge is levied upon BIMS by CableData, as provided
for in Paragraph 15(d) hereof, CableData will have no
obligation to provide Support for defects that have
been corrected in releases of the Core Software
(exclusive of the Custom Software) that have not been
installed by BIMS within six (6) months of release to
BIMS of the version of the Software which represents the
computer code merged from the Customer Software
provided pursuant to the Software Development Agreement
into the applicable Core Software release then under
general release by CableData; provided, however, that
CableData will provide Support for such defects on a time
and materials basis until the surcharge commences.
c. Exclusions. Notwithstanding the provisions of Paragraphs 9(a) and
(b) above, unless and until a software support surcharge is levied upon BIMS
by CableData, as provided for in Paragraph 15(d) hereof, CableData shall have
no obligation to notify BIMS of, or to provide timely resolution of, defects
that have been effectively remedied in a subsequent Core Software release
(exclusive of the Custom Software) made available to BIMS as part of its
standard Maintenance which BIMS has elected not to install within six (6)
months of release to BIMS of the version of the Software which represents the
computer code merged from the Custom Software provided pursuant to the
Software Development Agreement into the applicable Core Software release then
under general release by CableData; provided, however, that CableData will
provide timely resolution of such defects on a time and materials basis. In
addition, CableData will provide Support to BIMS for only one production Corp
(a "Corp" is a BIMS System identified by a BIMS-requested unique corp number
and having a single database) and one Playcorp (a "Playcorp" is used for
utility purposes such as training, testing, development and studies) for each
Core Software License granted hereunder; provided however that Support for
additional production Corps will be provided to BIMS at no additional charge
until such time as (i) expanded features of the Core Software have been added
by CableData which are capable of handling expanded services groups and tax
jurisdictions; and (ii) BIMS shall have had a reasonable period of time to
convert data in multiple Corps into a single database. Thereafter, if BIMS
chooses to continue the use of multiple Corps (other than those provided for
above), CableData will charge BIMS an annual Support charge, as set forth in
Attachment A, for each additional Corp. CableData will advise BIMS of
appropriate methods to use in setting up additional production Corps. These
methods are intended to make the subsequent conversion process less costly
than it would otherwise be. In addition, CableData will perform the
conversion at no charge for a period of ninety (90) days
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 13 -
following the general release of the version of the Core Software having the
aforementioned capabilities; provided, however, that BIMS shall comply with
CableData's reasonable recommendations regarding the setting up of Corps to
facilitate conversion. Should BIMS choose to implement conversion any time
after such ninety (90) day period, the conversion will be performed at
CableData's then-current time and materials rates.
10. USE OF THE SOFTWARE BY BIMS
a. BIMS will be responsible for determining the appropriate uses to be
made of the Products based on the relevant Product Documentation and
specifications, as well as on its own unique business requirements, and should
establish those features that will enable it to meet its business requirements
through the setting of its own selected Product parameters.
b. BIMS will utilize the Core Software as set forth in the Documentation.
c. Except as otherwise provided herein, BIMS is not authorized to make
modifications to the Core Software. To the extent that BIMS or a third party
not authorized by CableData make such modifications, CableData will not be
responsible for repair of database impacted by the modifications, for support
of any Core Software as modified, or for the compatibility of such modified
Core Software with any equipment, with the unmodified Core Software or with
any future Core Software releases.
d. CableData is not responsible for any changes to BIMS's database caused
by BIMS or any third party not authorized by CableData. Any repair or
regeneration of database damaged by BIMS or an unauthorized third party will be
undertaken by CableData upon request at CableData's then-current rates, but
CableData does not warrant that such repair or regeneration will be successful.
11. FORCE MAJEURE
a. Neither party to this Agreement shall be in default hereunder by
reason of its delay in the performance of or failure to perform, in whole or in
part, any of its obligations hereunder if such delay or failure resulted from
acts of God or other occurrences beyond its reasonable control and without its
fault or negligence. Such acts or occurrences shall include, but not be limited
to, earthquakes, floods, fire, power failures, communications failures,
epidemics, strikes, lockouts, war, terrorist activity or government or other
applicable authority regulations which went into effect after the effect date of
this Agreement.
12. INDEMNITY
a. CableData shall indemnify, defend and hold BIMS and its Affiliates,
and their respective officers, directors, agents and employees, harmless from
and against any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines or judgments, including reasonable attorneys' fees, and costs and
expenses incidental thereto, which may be suffered by, accrued against, charged
to or recoverable from BIMS or any of its Affiliates, or any of their
respective officers, directors, agents or employees, arising out of a claim that
the Core Software or any portion thereof infringes or misappropriates any United
States or foreign patent, copyright, trade secret or other proprietary right.
In the event that the Core Software or any portion thereof is held in suit or
proceeding to infringe any rights of any other third party, and the use of the
Core Software or portion thereof is enjoined, CableData shall, at its sole cost
and expense, either (i) procure for BIMS and its Affiliates the right to
continue using the Core Software, or (ii) replace the same with non-infringing
software or materials of equivalent functionality and performance.
- 14 -
CableData shall have no liability to BIMS for any infringement action or claim
which is based upon or arises out of: (i) any modification of the Core Software
by BIMS without the express written permission of CableData; (ii) any use of the
Core Software in combination with any other system, equipment or software which
is not furnished by CableData or approved by CableData in writing; or (iii) use
of other than a current unaltered release of the Core Software.
b. CableData shall indemnify, defend and hold BIMS and its Affiliates,
and their respective officers, directors, agents and employees, harmless from
and against any and all liabilities, damages, losses, expenses, claims,
demands, suits, fines or judgments, including reasonable attorneys' fees, and
costs and expenses incidental thereto, which may be suffered by, accrued
against, charged to or recoverable from BIMS or any of its Affiliates, or any
of their respective officers, directors, agents or employees, arising out of
or resulting from (i) claims of bodily injury, including death, or loss or
damage to property or physical destruction of property arising out of or in
connection with any act, error or omission of CableData or any of its
officers, directors, agents, employees and subcontractors, during the term of
this Agreement; (ii) intentional acts or gross negligence on the part of
CableData in the course of its performance under this Agreement; or (iii) a
reclassification or attempt to reclassify any of CableData's employees as an
employee of BIMs, including, without limitation, any tax liability (including
interest and penalties) resulting from BIMS's failure to pay, deduct or
withhold income taxes, Federal Insurance Contribution Act taxes, or Federal
Unemployment Tax Act taxes with respect to any of CableData's employees.
c. CableData's duty to indemnify BIMS hereunder shall include all
attorneys' fees which BIMS reasonably incurs in connection with the defense
of any claims covered by this Section 12 and all settlement costs, except as
otherwise provided in this Section 12. Promptly after receipt by BIMS of a
threat of any action, or a notice of the commencement or filing of any action
against which BIMS may be indemnified hereunder, BIMS shall give notice
thereof to CableData, provided that failure to give or delay in giving such
notice to CableData shall not relieve CableData of any liability it any have
to BIMS hereunder except to the extent that CableData demonstrates that the
defense of such action is prejudiced thereby. CableData or CableData's
attorney(s) shall keep BIMS reasonably apprised of the continuing status of
the claims covered by this Section 12, including any lawsuits resulting
therefrom, and shall permit BIMS, upon BIMS's written request, to participate
in the defense or settlement of any such claim, provided that CableData shall
have no obligation to indemnify for, be bound by or otherwise incur any
liability with respect to, any settlement terms to which it has not agreed.
CableData shall assume the cost of defending against any such claim and shall
select the attorney(s) to defend them against such claim subject to BIMS's
approval, which shall not be unreasonably withheld.
13. DISPUTE RESOLUTION
a. Each party agrees that any disagreement, controversy or dispute
between the parties relating to performance under or interpretation of this
Agreement will first be submitted in writing by one party to the other. If a
dispute remains unresolved for a period of fifteen (15) days after such notice,
then it shall be submitted in writing to a panel of two senior executives, one
from each party, who shall promptly meet and confer in an effort to resolve such
dispute. Each party's executives shall be identified by notice to the other
party, and may be changed at any time thereafter by notice to the other. The
executives shall each hold the position of president or above within their
respective organizations. Any decisions of the executives must be in a writing
signed by both executives and will be final and binding on the parties. In the
event the executives are unable to resolve any dispute within fifteen (15) days
after submission to them, either party may then refer such dispute to
arbitration in accordance with subsection b. of this Section. Arbitration in
accordance with this section may not be commenced by either party until such
executives determine
- 15 -
in good faith that a negotiated resolution is unlikely; provided, however,
that if one or both parties refuse to meet within fifteen (15) days of the
original written notice of the dispute set forth above, then arbitration may
be instituted by either party. Nothing herein shall prevent either party
from exercising its right to terminate the Agreement pursuant to the
provisions hereof.
b. In the event that a negotiated resolution is not reached as set forth
in subsection (a) above, the disagreement, controversy or dispute shall be
settled by binding arbitration administered by the American Arbitration
Association ("AAA") in accordance with its Commercial Rules, and judgment upon
the award rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The arbitration shall be conducted in Atlanta, Georgia,
before a panel of three (3) neutral arbitrators selected by the AAA, at least
two (2) of whom shall have experience with and knowledge of the customer care
and cable service billing industry, and at least one (1) of whom will be an
attorney, who shall be the chair of the arbitration panel. The arbitrators will
have no authority to award punitive or any other damages not measured by the
prevailing party's actual damages, and may not, in any event make any ruling,
finding or award that does not conform to the terms and conditions of this
Agreement. In addition, neither party nor any of the arbitrators may disclose
the existence, content or results of any arbitration hereunder without the
consent of both parties. The award of the arbitrators shall be accompanied by a
reasoned opinion.
Both parties shall allow and participate in discovery in accordance with
the Federal Rules of Civil Procedure for a period of ninety (90) days after the
filing of the Answer or other responsive pleading. Unresolved discovery
disputes may be brought to the attention of the chair of the arbitration panel,
and may be disposed of by the chair of the panel.
c. Notwithstanding the foregoing, either party shall have the right to
seek immediate legal redress in the event of breach of the provisions of Section
6 or Section 12 or Section 17 hereof.
14. TERMINATION
a. CableData acknowledges and agrees that the Core Software to be
provided to BIMS by CableData hereunder may be of no value to BIMS without the
Custom Software to be provided pursuant to the Software Development Agreement.
Accordingly, in the event that the System fails to pass the acceptance testing
procedures set forth in the Software Development Agreement, CableData shall
refund to BIMS all monies paid by BIMS hereunder and under the Software
Development Agreement, which remedy shall be in addition to any other remedies
available to BIMs hereunder, under the Software Development Agreement or
otherwise available at law or in equity. The parties agree that for purposes of
this section, the Software will be deemed to have passed the acceptance testing
procedures in the Software Development Agreement upon BIMS's acceptance of the
Custom Software as delivered by CableData pursuant to the Initial Work Order
under the Software Development Agreement.
b. Notwithstanding any other provision herein, either party will have
the right to terminate this Agreement if the other party fails to comply with
any of its material obligations under this Agreement. Should a party elect
to exercise this right to terminate for nonperformance, it must be done in
writing specifically setting forth these items of nonperformance. The other
party will then have thirty (30) days from the receipt of notification to
cure the default. Should the defaulting party fail to correct these items of
nonperformance, then the notifying party shall have the right to terminate
this Agreement. Termination of this Agreement pursuant to this provision
shall be without prejudice to any other remedies either party may have.
c. Within thirty (30) days after termination of any License for any
reason, BIMS shall
- 16 -
immediately cease using the Core Software and shall return or destroy the
Core Software and Documentation. CableData represents that BIMS will be
capable of accessing its data following the return or destruction of the Core
Software so long as it maintains a license to use Third Party Software as
identified by CableData as required for access in the Third Party Software
Attachment. Nothing contained herein shall require BIMS to deliver to
CableData any of BIMS's proprietary data.
d. In addition to BIMS's right to terminate this Agreement for breach by
CableData, BIMS shall have the right to terminate this Agreement without
incurring any early termination charges by giving CableData at least thirty (30)
days' prior written notice and certification signed by and officer of BIMS of:
(i) the termination/cancellation of all broadband trials by BIMS, for
any reason, and not plans by BIMs for any trials for at least twelve (12)
months from the date of termination/cancellation; or
[*]
Unless otherwise specified herein, BIMS's sole and exclusive liability to
CableData with respect to
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 17 -
such termination shall be limited to payment of all fees due hereunder and under
the Software Development Agreement through the effective date of the
termination. In the event that BIMS terminates the Agreement prior to the
natural expiration of the initial term or any renewal term for any reason
other than breach by CableData, as provided for in this Agreement, or for either
of the occurrences set forth above in this Paragraph 14(d), BIMS agrees that, if
it is subject to monthly or annual License fees, it shall pay to CableData, as
an early termination fee (liquidated damages) and not as a penalty, an amount
equal to what CableData would have received under the Agreement until the end of
the term. All payments made pursuant to this Paragraph 14 (d) shall be in the
nature of liquidated damages and shall be accepted by CableData in full
satisfaction of all claims, including but not limited to, lost profits, overhead
and other consequential damages, against BIMS arising out of termination.
e. Should BIMS terminate this Agreement due to material breach by
CableData, then it shall be entitled to exercise the rights provided in Section
17, Escrow, and shall be deemed to have a license to use the Core Software
without a corresponding obligation to pay periodic Maintenance.
15. CHANGES TO THE SYSTEM
a. BIMS may at any time request CableData to change the design of the
Core Software, but CableData shall not be obligated to accede to any request of
BIMS unless, in the opinion of CableData, such changes represent a significant
benefit.
b. Contemporaneously with the execution of this Agreement, the parties
shall execute the Software Development Agreement. That Agreement sets forth the
terms and conditions upon which all software development for BIMS shall be
undertaken.
c. CableData shall be entitled to make changes to the Software from time
to time as CableData in its discretion considers warranted by developments in
the industry in which it is used. Subject to CableData's obligations pursuant
to Paragraph 7(e) hereof, CableData is not responsible for the inability of any
software or other products purchased or licensed from third parties, other than
software or products approved by CableData in writing, to function because of
changes to the Software. CableData will provide to BIMS, on a periodic basis,
Software Compatibility Matrices that details any associated changes to third
party software that are part of the Operating Environment Specification that may
be required.
d. BIMS AGREES THAT CABLEDATA WILL HAVE THE RIGHT TO LEVY A SOFTWARE
SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT BIMS FALLS AT LEAST EIGHTEEN
(18) MONTHS BEHIND THE RELEASE TO BIMS OF THE VERSION OF THE SOFTWARE WHICH
REPRESENTS THE COMPUTER CODE MERGED FROM THE CUSTOM SOFTWARE PROVIDED PURSUANT
TO THE SOFTWARE DEVELOPMENT AGREEMENT INTO THE THEN CURRENT MAJOR CORE SOFTWARE
RELEASE PROVIDED PURSUANT TO THE MAINTENANCE (i.e., at no cost beyond the cost
of periodic Maintenance hereunder). As used herein, a "Major Core Software
Release" means release by CableData to its customer base of a version of the
Software which contains (i) a major revision in database structure or design; or
(ii) modification of more than 15 application programs; or (iii) changes made
pursuant to 30 or more SARs (Software Assistance Requests) or DCRs (Database
Change Requests); or (iv) in addition or modification of two or more major
components or schemes (i.e. rate codes, collections).
16. DATA TRANSMISSION AND REMOTE FILE ACCESS
- 18 -
a. Transmission of all data to and from CableData when requested by BIMS
shall be via telecommunications or tape(s), at CableData's discretion, and at
BIMS's expense.
b. BIMS is responsible for the installation and cost of at least one
(1) business grade telephone line which is to be placed at the location of
the BIMS's Computer. The telephone lines are to be on separate trunk lines
not running through BIMS's switchboard or other such devices. These
telephone lines will be used solely for the transmission of data between any
Support Facility and BIMS for Maintenance and Support purposes, and for
running routines or subroutines within the Core Software, at the end of each
month, to count the number of BIMS's Subscribers. BIMS is responsible for
the expense of BIMS's data communication. It is also highly recommended that
a telephone be installed near BIMS's Computer for purposes of Support.
17. SOURCE CODE ESCROW
a. BIMS shall be entitled to a copy of the Source Code for the Core
Software, including system libraries and other pre-existing materials needed
to fully maintain and support the Software, and may use same for its own
benefit (i) upon expiration of the License term and all extension terms
provided for in Section 1 hereof, at an annual fee, to be negotiated by the
parties, if CableData ceases to market and/or support the Core Software and
such marketing/support is not continued by another corporation or entity, or
is continued by another corporation or entity which BIMS for reasonable cause
deems unsatisfactory; (ii) prior to expiration of the License term and any
extension terms provided for in Section 1 hereof, at no additional charge if
CableData ceases to maintain and/or support the Core Software and such
maintenance/support is not continued by another corporation or entity, or is
continued by another corporation or entity which BIMS for reasonable cause
deems unsatisfactory; (iii) at no additional charge if CableData becomes
insolvent or party to any bankruptcy or receivership proceedings or makes an
assignment for the benefit of creditors; or (iv) should BIMS terminate this
Agreement due to material breach by CableData.
b. No later than the time of CableData's delivery of the Core Software to
BIMS, CableData shall place the Source Code in escrow pursuant to an escrow
agreement to be mutually agreed and entered into prior to the date of such
delivery (the "Escrow Agreement"). The parties shall share equally all charges
incurred in establishing and maintaining such escrow account; provided, however,
that in the event the escrow account is maintained for other CableData customers
in addition to BIMS, then CableData shall bear all costs associated with such
account. For purposes of payment under the Agreement, delivery of the Core
Software shall be deemed to include and require delivery of the copy of the
Source Code pursuant to the Escrow Agreement. BIMS shall be entitled to receive
a copy of such Source Code under the circumstances set forth in Section 17(a)
above and pursuant to the procedures set forth in the Escrow Agreement, and may
use same for its own benefit. If CableData corrects any defects in, or
provides any revision to, the Core Software under this Agreement or under any
software maintenance agreement between the parties, CableData shall
simultaneously furnish the escrow agent with a corrected or revised copy of the
Source Code for the Core Software.
c. BIMS may periodically, but not more frequently than once per year,
trigger fresh escrow deposits. BIMS shall reimburse CableData and the escrow
agent under the Escrow Agreement for the reasonable expenses incurred in the
preparation of such fresh escrow deposits. In addition to triggering fresh
deposits, BIMS shall have the right, either itself or through a third party
designated by BIMS, to validate the materials on deposit upon thirty (30)
calendar days prior written notice to and in the presence of CableData, but no
more frequently than two (2) times per year. Any third Party designated by BIMs
to validate the materials on deposit shall be required to execute a
nondisclosure agreement with CableData, in a form reasonably satisfactory to
CableData,
- 19 -
which nondisclosure agreement shall require that such third party's report to
BIMS contain only a non-confidential description of the results of such
validation. Verification shall take place at CableData's convenience during
normal business hours on mutually-designated hardware. Such verification shall
be at BIMS's expense unless the materials on deposit are not current, in which
event CableData shall bear all costs associated therewith.
d. The Source Code shall be in a format and on a storage medium suitable
for loading into the computer equipment described in the Operating Environment
Attachment hereto, and shall not be encrypted. The Source Code shall include
system documentation, statements of principles of operations, and schematics,
all as necessary or useful for the effective understanding and use of the Source
Code. Insofar as the "development environment" employed by CableData for the
development, maintenance and implementation of the Source Code includes any
device, programming, or documentation not commercially available to BIMS on
reasonable terms through readily known sources other than CableData, the Source
Code shall include all such devices, programming and documentation. The fore-
going reference to such "development environment" is intended to apply to any
programs, including compilers, "workbenches," tools, and higher-level (or
"proprietary") languages, used by CableData for the development, maintenance,
and implementation of the Source Code.
e. In the event that the Source Code is released to BIMS pursuant to this
Section 17, any and all modifications to such Source Code made by or on behalf
of BIMS shall be the sole property of BIMS.
18. TRANSFER AND ASSIGNMENT
a. Except as otherwise provided herein, neither party shall have the
right to assign or otherwise transfer its rights or obligations under this
Agreement, by operation of law or otherwise, except with the written consent of
the other party, except that CableData shall have the right to assign to its
parent or to any wholly-owned subsidiary without such consent. Prohibited
assignment shall be null and void.
b. BIMS may assign or Transfer this Agreement and its rights hereunder,
without the payment of any transfer fees or additional license fees, (i) to any
entity controlling, controlled by or under common control with BIMS, or (ii)
upon the prior written consent of CableData, which consent shall not be
unreasonably withheld, to any one or more of BIMS's other Affiliates, or (iii)
to any entity which acquires all or substantially all of BIMS's business or
Subscriber base; provided, however, that the use of the Core Software by any
such transferee(s) under this Paragraph 18(b) shall be subject to the terms of
this Agreement.
c. In addition to BIMS's assignment rights under this Agreement, BIMS
shall have the right to assign its rights and delegate its duties under this
Agreement either in whole or in part, at any time and without CableData's
consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give CableData
written notice of such assignment or delegation. Upon the written notice to
CableData, BIMS shall be released and discharged, to the extent of the
assignment, from all further duties under this Agreement.
19. MISCELLANEOUS PROVISIONS
a. BIMS and/or its Affiliates may, at their option from time to time, by
giving CableData prior written notice, add new or additional Computer Facilities
and Remote BIMS Sites at the prices set forth in the Pricing Attachment hereto.
- 20 -
b. BIMS agrees not to remove any Core Software from the location at which
it is originally installed, except in an emergency (and then only for the period
of the emergency), without prior written notice to CableData. BIMS will not,
during or after the term of this Agreement, re-export or otherwise transfer the
Core Software or related technical data, or any direct products thereof, other
than in compliance with the U.S. Export Administration Regulations or other
applicable law.
c. This Agreement shall not be modified, amended, rescinded, canceled or
waived, in whole or in part, except by written amendment signed by both parties.
d. Should any clause, provision, or portion of this Agreement be ruled
invalid, void, illegal or otherwise unenforceable by any court, it shall be
deemed to be deleted and the remainder of this Agreement shall continue to be in
effect and fully enforceable.
e. This Agreement supersedes all prior proposals, oral or written, and
all negotiations, conversations or discussions between the parties related to
the Core Software or Services (excepting the Software Development Agreement
executed concurrently herewith). BIMS acknowledges that it has not been induced
to enter into this Agreement by any representations or statements, oral or
written, not expressly referred to herein. The terms and conditions of this
Agreement shall prevail, notwithstanding any variance with the terms and
conditions of any order or other instrument submitted by BIMS.
f. References herein to this Agreement include the Attachments, and the
headings in this Agreement are for convenience only and do not affect the
interpretation hereof.
g. The parties agree that in the event it is necessary to employ attorneys
to enforce the terms of this Agreement, the prevailing party in any lawsuit
shall be entitled to an award of reasonable attorneys' fees and court costs.
h. This Agreement will be governed in all respects by the laws of the
State of Georgia.
i. Regulatory Authority. BIMS's provision of residential broadband
services will be subject to the provisions of the applicable order(s) of the
Federal Communications Commission ("FCC") and applicable tariffs. S and its
Affiliates shall use reasonable efforts to pursue any regulatory and local
authority required to provide residential broadband services. BIMS may
terminate this Agreement if it or its Affiliates are unable to obtain the
required approvals and authority. Any such termination shall be as set forth in
this Agreement, and shall be without any further charge, obligation and/or
liability on the part of BIMS to CableData.
j. Coordination and Cooperation with other Contractors. Throughout the
term of this Agreement, other contractors and third parties (including personnel
of BIMS) may be required to render services in or install equipment or software
at BIMS's facilities, including, but not limited to, Sybase, Inc., Scientific-
Atlanta, Inc. and Hewlett-Packard Company. BIMS reserves the right to permit
and put such other contractors and third parties to work and to afford them
access to such facilities at such times and under such conditions as do not
unreasonably interfere with CableData. CableData shall perform continuously and
diligently and shall so conduct and coordinate its aspects of the Agreement so
as to minimize interference with such other work. Upon CableData's receipt from
BIMS of written notice identifying contractors or other third parties with whom
CableData shall be required to cooperate (i.e., in addition to those listed
above in this Section 19(j)), together with any information and/or assistance
requested, CableData shall cooperate with BIMS in providing such information and
assistance as requested by BIMS for such coordination and cooperation in a
timely manner. If BIMS determines that CableData is failing to coordinate its
- 21 -
work with the work of other contractors engaged by BIMS or is failing to
cooperate with such contractors as required by BIMS's notice, then CableData
shall be responsible for all damages, costs and expenses suffered or incurred by
BIMS directly by reason of CableData's failure.
k. Insurance. CableData shall procure and maintain for itself and its
employees all insurance coverages as required by federal or state law,
including worker's compensation insurance. CableData also agrees to maintain
(a) insurance in the minimum amount of [*], for comprehensive general
liability coverage, including blanket contractual liability, broad form
property damage, and products and completed operations coverage, and naming
BIMS as an additional insured, and (b) insurance in the minimum amount of [*]
for coverage of software errors and omissions, including services rendered
and intellectual property infringement claims, with respect to the computer
software provided hereunder. CableData shall furnish to BIMS a certificate
of insurance evidencing such coverage. Said certificate will include a
provision whereby fifteen (15) calendar days notice must be received by BIMS
prior to coverage change or cancellation by either CableData or the insurer.
CableData waives its rights of subrogation against BIMS.
l. Notices. Except as otherwise provided herein, and except for
notices of failures, errors or other problems with the Software, which may be
delivered by phone and confirmed in writing, all notices, requests, demands
or other communications required or permitted to be given or made under this
Agreement shall be in writing and shall be given by personal service, express
courier (such as UPS), telecopy, or by United States certified mail, return
receipt requested, postage prepaid to the addresses set forth below, or such
other address as changed through written notice to the other party.
If to BIMS:
BellSouth Interactive Media Services, Inc.
1100 Abernathy Road
Suite 414, Building 500
Atlanta, Georgia, 30328
Attn: Mr. Larry E. Ryan
Telecopy: (770) 481-2959
With a copy to BIMS's General Counsel (same address); Telecopy: (770) 392-
4575
If to CableData:
CableData, Inc.
2969 Prospect Park Drive
Rancho Cordova, California 95670
Attn: Barry Madrid
Telecopy: (916) 636-5750
With a copy to CableData's General Counsel (same address); Telecopy: (916)
636-4561
Notice given by personal service shall be deemed effective on the date it is
delivered, notice sent by express courier shall be deemed effective one Business
Day after dispatch, notice given by telecopy shall be deemed effective on the
date of transmission, and notice mailed shall be deemed effective on the third
Business Day following its placement in the mail.
m. Counterparts. This Agreement may be executed in any number of
counterparts,
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 22 -
each of which, when so executed and delivered, shall be deemed an original, and
all of which shall constitute one and the same Agreement.
n. Remedies. The rights and remedies of the parties set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to them at law or in equity.
o. Personnel Rules and Regulations. While on BIMS's premises, CableData,
personnel will comply with all security practices and procedures generally
prescribed by BIMS. In addition, unless otherwise instructed by BIMS, CableData
personnel shall observe the working hours, working rules, holiday schedules and
policies of BIMS while working on BIMS' premises.
THE FOLLOWING ATTACHMENTS ARE INTEGRAL PARTS OF THIS AGREEMENT AND ARE
INCORPORATED BY REFERENCE:
Att A Pricing Attachment
Att B Product/Services Attachment
Att C Maintenance/Support Attachment
Att D Site Attachment
Att E Intelecable Software Compatibility Matrix
Att F Capacity Reference Guidelines Attachment
Att G Operating Environment Attachment
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date last set forth below.
BELLSOUTH INTERACTIVE MEDIA CABLEDATA, INC.
SERVICES, INC.
By: /s/ James R. Gadd By: /s/ Michael McGrail
--------------------- -------------------------
James Gadd Michael F. McGrail
------------------------- -----------------------------
Print Name Print Name
President President
------------------------- -----------------------------
Title Title
December 22, 1995 December 27, 1995
------------------------- -----------------------------
Date Date
- 23 -
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95
A-1 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95
A-2 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-3 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-5 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-6 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-7 Confidential
INTELECABLE PRICING ATTACHMENT ATTACHMENT A
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
12/20/95 A-8 Confidential
PRODUCT/SERVICES ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Intelecable Basic System Content
12/8/95 CableData Confidential 1
PRODUCT/SERVICES ATTACHMENT B
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Intelecable Optional ModuleContent
12/8/95 CableData Confidential 2
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
These Maintenance and Support provisions are in addition to Section 9 of the
License Agreement and Sections 15 and 16 of the Software Development Agreement.
In the event of a conflict between this attachment and either the License
Agreement or the Software Development Agreement, the License Agreement or the
Software Development Agreement as applicable will apply.
DEFINITIONS
1. MAINTENANCE: Bug fixes, correction of defects, including those that impede
the ability to access files or perform routine operations using the
Software, and periodic issuance of Maintenance Releases. Excluded from
Maintenance are (a) operational procedures for loading and shutting down
the computer system; (b) setting computer operating system command
parameters; (c) nightly procedures for database backup and file
maintenance; (d) defining whether any problems are hardware or Software-
based; (e) database recovery necessitated by an operating system software
or operational problem; (f) balancing file allocation and disk space
management; (g) conducting performance analysis of the computer system.
These operational support services are available at CableData's then
current prices.
2. SUPPORT: Telephone Support for problems encountered in the use of the
Software, as defined and described in the Agreement. Support services
beyond the scope of normal Telephone Support are:
- Assistance on the general usage of any or all components in the
Software where adequate assistance is provided by the Documentation.
- Assistance on the administration and management of any or all
components in the Software where adequate assistance is provided by
the Documentation.
- Assistance in performing problem determination, isolation and
resolution of problems unrelated to the Software.
- Customized training programs.
PROBLEM SOLUTION OBJECTIVES
SEVERITY LEVELS DESCRIPTION CABLEDATA DEFECT ISOLATION,
CONFIRMATION, AND FIX
- -------------------------------------------------------------------------------
1. System Down System Down, Cannot Do Immediately
Business
- -------------------------------------------------------------------------------
2. High Impact, No Business Function Cannot ASAP-Between Maintenance
Workaround Be Performed Releases
- -------------------------------------------------------------------------------
3. High Impact, Heavily Impacted, Can Next Maintenance Release
Workaround Do Daily Business
- -------------------------------------------------------------------------------
4. Low Impact, Slightly Impacted, Can Deferred; Future Maintenance
Workaround Do Daily Business Release
- -------------------------------------------------------------------------------
5. No Impact No Impact On Daily Possible; Future Maintenance
Business Release
COVERAGE
- - SOFTWARE: BIMS has elected to purchase 24 hours per day x 7 days/week x 365
day/year Telephone Support for the Software as defined in the Agreement.
Telephone Support calls to the Support Facility will be handled,
immediately or returned within an average of sixty (60) minutes by a
qualified CableData employee.
- - CableData will support the current release of Intelecable Core Software, as
well as the prior major release. Maintenance for older releases will be
provided by CableData subject to the limitations set forth in the
Agreement.
Telephone Support covers the Core and Custom Software licensed under this
Agreement and the Software Development Agreement and does not include
support of any computer operating system software.
12/8/95 C-1
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
- - Third-Party Software: Third-party software (i.e., Oracle-Registered
Trademark - and Tuxedo-Registered Trademark-)should be licensed directly
from the licensor, who will be primarily responsible for supporting the
licensed product. Telephone support may be provided by CableData, however,
if Customer actually licenses the third-party software from CableData and
contracts for CableData to provide support for such software.
CUSTOMER RESPONSIBILITIES
- - Customer is responsible for performing problem determination and isolation
procedures to determine whether the problem is attributed to a component
covered by CableData Maintenance or Support. Customers may be charged for
Maintenance and Support, on a time and materials basis, if a problem is
logged by CableData and found to be attributable to a component NOT covered
by CableData Maintenance or Support. Such charges will be assessed only if
CableData has notified the Customer that the problem is not covered and the
Customer has elected to use CableData for support.
- - Customer must provide individuals in its site(s) who have attended the
required CableData classes listed by job category on pages 3-5 of this
attachment, with whom CableData will deal. Cabledata recommends that BIMS
maintain a level of expertise to property utilize the Core Software during
the term of the Agreement. Customer must designate, by name, specific
individuals who may contact CableData for Maintenance and Support. These
individuals are to be listed below and should be certified by CableData
based on completing required courses indicated in pages 3-5 of this
attachment. CableData may not support Maintenance or Support requests from
individuals who are not listed. BIMS may add names as individuals become
certified.
CHARGES
- - CABLEDATA'S INTELECABLE CORE SOFTWARE AND CUSTOM SOFTWARE: Fees for
Maintenance and Support are set forth in the Pricing Attachment. Additional
support (for problems that are outside the scope of normal Telephone
Support) is billed on an hourly time and materials basis. There will be no
charge for Maintenance and Support of the Software during the Warranty
Period and for a period of six years thereafter for Custom Software.
- - THIRD-PARTY SOFTWARE: If Customer contracts with CableData to provide
Support, an annual Support fee is charged. Support outside the scope of a
contract is performed on an hourly time and materials basis. Maintenance
is provided only if the third-party software is licensed from CableData and
Customer pays the required annual Maintenance fee for such software.
CUSTOMER CONTACTS:
Name:_____________________ Title:______________________
Name:_____________________ Title:______________________
Name:_____________________ Title:______________________
C-2
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
Intelecable Training Matrix
INTELECABLE COURSEWARE MODULES(2)
TARGET INTELECABLE DAILY SYSTEM STANDARD TELEPHONY PROJECTS NETWORK
GROUP(1) OVERVIEW PROCESSING MANAGEMENT REPORTS MANAGEMENT MANAGEMENT MANANGEMENT
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE REQUIRED REQUIRED
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED REQUIRED
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK REQUIRED OPTIONAL REQUIRED REQUIRED REQUIRED
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION REQUIRED REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER REQUIRED REQUIRED
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT REQUIRED REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE REQUIRED OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT REQUIRED OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT OPTIONAL OPTIONAL OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's organization.
However, the cross-section of responsibilities generally remains valid to the
Cable Television and Telephony industries. Intelecable training is targeted to
the individual and departmental responsibilities and can be customized to meet
the end-user's business structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training modules.
Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-
users and can be scheduled through the local Oracle-Registered Trademark-
and IBM-Registered Trademark- offices respectively.
C-1
Intelecable Training Matrix - Continued
INTELECABLE COURSEWARE MODULES(2)
TARGET THE CHARGING COLLECTIONS MONEY ADDRESS SHARING FINANCIAL PAY-PER-VIEW MIS
GROUP(1) PROCESS MANAGEMENT PROCESSING MANAGEMENT REPORTS MANANGEMENT PROCESSES
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE OPTIONAL OPTIONAL
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY REQUIRED
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL OPTIONAL OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION OPTIONAL REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL
- ---------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's
organization. However, the cross-section of responsibilities generally
remains valid to the Cable Television and Telephony industries.
Intelecable training is targeted to the individual and departmental
responsibilities and can be customized to meet the end-user's business
structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training
modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-users and can
be scheduled through the local Oracle--Registered Trademark- and
IBM-Registered Trademark- offices respectively.
C-2
INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C
- ------------------------------------------------------------------------------
Intelecable Training Matrix - Continued
INTELECABLE COURSEWARE MODULES(2)
TARGET xxx INTELECABLE ORACLE-Registered Trademark- IBM-Registered Trademark-
GROUP(1) MANAGEMENT DATABASE MANAGEMENT AIX-Trade Mark-
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
I.THE CUSTOMER SERVICE
GROUP
- ---------------------------------------------------------------------------------------------------------------
CUSTOMER SERVICE
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
CUTSOMER SERVICE REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
II.THE ENGINEERING
GROUP
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE OPTIONAL
DISPATCHER
- ----------------------------------------------------------------------------------------------------------------
FIELD SERVICE REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
STORES AND INVENTORY
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
III.THE TELEPHONY GROUP
- ----------------------------------------------------------------------------------------------------------------
BUSINESS TELEPHONY
- ----------------------------------------------------------------------------------------------------------------
TELEPHONY NETWORK
SUPPORT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
IV.THE FINANCIAL GROUP
- ----------------------------------------------------------------------------------------------------------------
CREDIT CONTROL
- ----------------------------------------------------------------------------------------------------------------
DEBT COLLECTION
- ----------------------------------------------------------------------------------------------------------------
PAYMENT COUNTER
REPRESENTATIVE
- ----------------------------------------------------------------------------------------------------------------
ACCOUNTS MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
V.THE SALES GROUP
- ----------------------------------------------------------------------------------------------------------------
SALES FORCE
- ----------------------------------------------------------------------------------------------------------------
SALES MANAGEMENT OPTIONAL
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VI.THE MARKETING GROUP
- ----------------------------------------------------------------------------------------------------------------
MARKETING COORDINATOR
- ----------------------------------------------------------------------------------------------------------------
MARKETING MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VII.THE DATA PROCESSING
GROUP
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING STAFF REQUIRED OPTIONAL REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATABASE ADMINISTRATOR OPTIONAL REQUIRED REQUIRED REQUIRED
- ----------------------------------------------------------------------------------------------------------------
DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED
MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
VIII.THE SENIOR
MANAGEMENT GROUP
- ----------------------------------------------------------------------------------------------------------------
GENERAL MANAGER
- ----------------------------------------------------------------------------------------------------------------
SENIOR MANAGEMENT
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
(1) The Target Group represents a generic structure of the end-user's
organization. However, the cross-section of responsibilities generally
remains valid to the Cable Television and Telephony industries. Intelecable
training is targeted to the individual and departmental responsibilities and
can be customized to meet the end-user's business structure.
(2) The Intelecable Courseware Modules are a set of sixteen (16) training
modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered
Trademark- AIX-Trade Mark- are the responsibility of the end-users and can
be scheduled through the local Oracle-Registered Trademark- and
IBM-Registered Trademark- offices respectively.
C-3
INTELECABLE SITE ATTACHMENT ATTACHMENT D
- ------------------------------------------------------------------
CUSTOMER SITES ATTACHMENT
CableData's Intelecable-Trade Mark- Master Operating and
Licensing Agreement
Date: December 8, 1995
Corp. Number: 360-01
The Customer sites subject to this Agreement and the associated hardware
and software installed are as follows:
Computer Facility: Bell South
System Number: 360-01
Installation Address: 1100 Abernathy Road, Suite 414
500 Northpark Town Center
City, State: Atlanta, GA 30328
Remote Facility: n/a
System Number:
Installation Address:
City, State:
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-1
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-2
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-3
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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Page E-4
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
[*]
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-5
INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page E-6
CAPACITY REFERENCE GUIDELINES ATTACHMENT F
The following are provided as capacity and reliability guidelines and are not
a warranty for performance. They are offered to BIMS as a guide in
determining whether or not analysis and corrective action are indicated. Any
further Software releases may require additional resources as described in
Paragraph 7.f.(i) of the Agreement. Such corrective action might include
adding hardware or software or reconfiguring the OS or the RDBMS. CableData
would consult with BIMS on the most cost effective course of action for BIMS
to pursue.
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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CAPACITY REFERENCE GUIDELINES ATTACHMENT F
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
ATTACHMENT G
BIMS INTELECABLE OPERATING ENVIRONMENT
IBM 590
AIX 3.2.5 Operating System
Oracle 7.0.1.6
Tuxedo /T v 4.2.1
Tuxedo /Q v4.2.1
Intelecable
512MB Ram
6GB Disk
The IBM 590 is used as a test and development environment for the Intelecable
subscriber management system. The IBM 590 interfaces with the Sybase Staging
Server which runs on an HP G70. Connectivity is standard TCP\IP-based, with
Tuxedo acting as the interface software for API's used by Sybase and
CableData.
The IBM 590 may, on a temporary basis, be connected to the Scientific Atlanta
SM10 via an RS-232 link for testing the provision of Analog Channel
Authorizations.
The IBM 590 is connected to the BIMS office network using TCP/IP. A
QuickScreen Plus emulator provided by CableData, running on Intel-based pc's,
is used to access the Intelecable application.
IBM RS 6000 - SP2
AIX 3.2.5 Operating System
HACMP 3.1.1
Oracle 7.0.1.6
Tuxedo /T v 4.2.1
Tuxedo /Q v4.2.1
Intelecable
Per node: 1GB Ram
12 GB Disk
The IBM SP2 is the production machine for the Intelecable subscriber
management system. The SP2 is running with multiple nodes using High
Availability Rotating mode, although plans are to run it in Concurrent Mode.
The IBM SP2 interfaces with the Sybase Staging Server, which runs on an HP
E45 at present but may move to an HPG70. Connectivity is standard
TCP/IP-based, with Tuxedo acting as the interface software for API's used by
Sybase and CableData. The IBM Sp2 is connected to the Scientific Atlanta SM10
via an RS-232 link.
The IBM SP2 is connected to the BIMS office network using TCP/IP. A
QuickScreen Plus emulator provided by CableData, running on Intel-based pc's,
is used to access the Intelecable application.
HP G70
HP-UX operating system
Sybase System 10
Sybase Replication Server
Sybase Open Client/Server
Tuxedo / WS
Custom API's
512MB Ram
8GB Disk
G-1
The HP G70 contains the HP MediaStream Server and Sybase IMS (Intermedia
Server), and may contain the Sybase Staging Server. The Staging Server
contains the Replication Server, the Staging Database, and the External
Business Systems Accessors. External Business Systems Accessors are API's
used to connect to the Intelecable application via Tuxedo for passing
customer information, including authorizations, and billing transactions with
the Intelecable subscriber management system.
Scientific Atlanta SM10
DOS 6.2
Windows 3.1
IBM PS2
The Scientific Atlanta System Manager 10 (SM10) is used to manage the analog
functions of all set-top boxes connected to the BIMS network. Specific
management functions include the following:
Channel Authorizations
Set Top Box Auditing
Set Top Box Reinitialization
The IBM SP2 is connected to the Scientific Atlanta SM10 via an RS-232 link.
HP-E45(MKIS)
HP-UX operating system
Oracle 7.0.1.6
Tuxedo / WS
Sybase Replication Server
Sybase Open Client/Server
Custom API's
64MB Ram
6GB Disk
The HP-E45 is used to run the Marketing Information System (MKIS). The MKIS
system is part of the BIMS network and as such will receive information from
the Intelecable subscriber management system. In addition, the Sybase Staging
Server currently runs on the E45. The Staging Server contains the Replication
Server, the Staging Database, and the External Business Systems Accessors.
External Business Systems Accessors are API's used to connect to the
Intelecable application via Tuxedo for passing customer information,
including authorizations, and billing transactions with the Intelecable
subscriber management system.
Intel Based Pcs (486 and Pentium processors)
DOS 6.2
Windows for Workgroups 3.11
Quick Screen Plus for Windows version 3.11a
486 and Pentium processors
8MB Ram
327MB Disk
Various pcs will be used on the BIMS network for accessing the Intelecable
subscriber management system.
Intel Based PC (Pentium Processors)
DOS 6.2
Windows NT 3.51
Tuxedo for Windows NT
Custom API's
This machine will access the API's Get Account and Send Transaction. Billing
transactions will be formatted on this and sent to ITC for processing via the
Send Transaction API. Customer information will be obtained via the Get
Account API.
G-2