IBM Customer Agreement
Thank you for doing business with us. We strive to provide you with
high quality Products and Services. If, at any time, you have any
questions or problems, or are not completely satisfied, please let us know.
Our goal is to do our best for you.
This IBM Customer Agreement (called the "Agreement")
covers business transactions you may do with us to
purchase Machines, license Programs, and acquire
Services.
This Agreement and its applicable Attachments and
Transaction Documents are the complete agreement
regarding these transactions, and replace any prior
oral or written communications between us.
By signing below for our respective Enterprises,
both of us agree to the terms of this Agreement.
Once signed, 1) any reproduction of this Agreement,
an Attachment, or Transaction Document made by
reliable means (for example, photocopy or
facsimile)is considered an original and 2) all
Products and Services you order under this Agreement are
subject to it.
Agreed to: Agreed to:
0Xxxxxxx.xxx International Business Machines
Corporation
By /s/Xxxxxxx X. Xxxxxxxxxxx By /s/Xxxxxxxx Xxxxx
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Xxxxxxx X. Xxxxxxxxxxx Xxxxxxxx Xxxxx
Date: January 25, 1999 Date: January 25, 1999
Enterprise number: 6020475 Agreement number: VGY1816
Enterprise address: IBM address:
0Xxxxxxx.xxx 0000 X. Xxxxxxx Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxxx, XX 00000
Xxxxxx, XX 00000
After signing, please return a copy of this Agreement to the "IBM
address" shown above.
IBM Customer Agreement
Table of Contents
Section Title
Page
Part 1 - General . . . . . . . . . . . . . . . . 3
1.1 Definitions. . . . . . . . . . . . . .. . . . 3
1.2 Agreement Structure. . . . . . . . . . 4
1.3 Delivery . . . . . . . . . . . . . . . . . . . 4
1.4 Charges and Payment. . . . . . . . . 5
1.5 Changes to the Agreement Terms . . .. 5
1.6 IBM Business Partners. . . . . . . . .. . . . 6
1.7 Mutual Responsibilities. . . . . . . .. . . . 6
1.8 Your Other Responsibilities. . . . . .. . . . 6
1.9 Patents and Copyrights . . . . . . . .. . . . 7
1.10 Limitation of Liability . . . . . . .. . . . 7
1.11 Agreement Termination . . . . . . . .. . . . 8
1.12 Geographic Scope. . . . . . . . . . .. . . . 8
1.13 Governing Law . . . . . . . . . . . .. . . . 8
Part 2 - Warrant . . . . . . . . . . . .. . . . 9
2.1 The IBM Warranties . . . . . . . . . . 9
2.2 Extent of Warranty . . . . . . . . . .. . . . 9
2.3 Items Not Covered by Warranty . . . .. . . .10
Part 3 - Machines. . . . . . . . . . . .. . . . . . .11
3.1 Title and Risk of Loss . . . . . . . .. . . .11
3.2 Production Status . . . . . . . . . .. . . .11
3.3 Installation . . . . . . . . . . . . .. . . .11
3.4 Licensed Internal Code . . . . . . . .. . . .11
3.5 Machine Code . . . . . . . . . . . . .. . . .12
Part 4 - Programs. . . . . . . . . . . . . . . . . . . .13
4.1 License. . . . . . . . . . . . . . . . . . . . . . . . .13
4.2 License Details. . . . . . . . . . . . . . . .13
4.3 Program Components Not Used on the Designated
Machine. . . . .. . . . . . . .13
4.4 Distributed System License Option. . . . . . . . . .13
4.5 Program Testing . . . . . . . . . . . . . . .13
4.6 Packaged Programs . . . . . . . . . . . . . .14
4.7 Program Protection . . . . . . . . . . . . . .14
4.8 Program Services . . . . . . . . . . . . . . .14
4.9 License Termination. . . . . . . . . . . . . .14
Part 5 - Services . . . . . . . . . . . . . . . . .. . . .15
5.1 IBM Services . . . . . . . . . . . . . . .. .15
5.2 Personnel . . . . . . . . . . . . . . . . .. . . .15
5.3 Materials Ownership and License. .. .15
5.4 Changes to Service Terms . . . . . . . . .15
5.5 Renewal. . . . . . . . . . . . . . . . . . . . .. .16
5.6 Termination and Withdrawal . . . . .. . .16
5.7 Service for Machines
(during and after warranty). . . . . . . .. . .16
5.8 Maintenance Coverage . . . . . . . . . . . . .17
IBM Customer Agreement
Part 1 - General
1.1 Definitions
Customer-set-up Machine is an IBM Machine that you install
according to our instructions.
Date of Installation is the following:
1. for an IBM Machine we are responsible for installing, the
business day after the day we install it or, if you defer
Installation, make it available to you for subsequent
installation by us;
2. for a Customer-set-up Machine and a non-IBM Machine, the
second business day after the Machines standard transit
allowance period; and
3. for a Program, the latest of -
a. the day after its testing period ends,
b. the second business day after the Program s standard transit
allowance period,
c. the date, specified in a Transaction Document, on
which we authorize you to make a copy of the Program, or
d. the date you distribute a copy of a chargeable component in
support of your authorized use of the Program.
Designated Machine is either 1) the machine on which you will use a
Program
for processing and which we require you to identify to us by
type/model and
serial number, or 2) any machine on which you use the Program if we
do not
require you to provide this identification to us.
Enterprise is any legal entity (such as -a corporation) and the
subsidiaries it owns by more than 50 percent. The term 'Enterprise"
applies
only to the portion of the enterprise located in the United States or
Puerto Rico.
Machine is a machine, its features, conversions, upgrades,
elements, or
accessories, or any combination of them. The term "Machine"
includes an IBM
Machine and any non-IBM Machine (including other equipment) that we
may
provide to you.
Materials are literary works or other works of authorship (such as
programs, program listings, programming tools, documentation, reports,
drawings and similar works) that we may deliver to you as part of a
Service. The term "Materials" does not include Programs or Licensed
Internal Code.
Product is a Machine or a Program.
Program is the following, including the original and all whole or
partial
copies:
1. machine-readable instructions and data;
2. components;
3. audio-visual content (such as images, text, recordings, or
pictures); and
4. related licensed materials.
The term "Program" includes an IBM Program and any non-IBM Program
that we
may provide to you. The term does not include Licensed Internal
Code or
Materials.
Service is performance of a task, provision of advice and counsel,
assistance, or access to a resource (such as access to an information
database) we make available to you.
Specifications is a document that provides information specific to a
Product. For an IBM Machine, we call the document "Official Published
Specifications." For an IBM Program, we call it "Licensed Program
Specifications," or "License Information."
Specified Operating Environment is the Machines and Programs with
which a
Program is designed to operate, as described In the Programs
Specifications.
1.2 Agreement Structure
Attachments
Some Products and Services have terms in addition to those we
specify in
this Agreement. We provide the additional terms in documents called
"Attachments," which are also part of this Agreement. Attachments
will be
signed by both of us it requested by either of us.
Transaction Documents
For each business transaction, we will provide you with the
appropriate
"Transaction Documents" that confirm the specific details of the
transaction. Transaction Documents will be signed. by both of us it
requested by either of us. The following are examples of Transaction
Documents with examples of the information they may contain:
1. addenda (contract-period duration, start date, and
total quantity);
2. exhibits (eligible Products by category);
3. Invoices (item, quantity, and amount due);
4. statements of work (scope of Services, responsibilities,
deliverables, completion criteria, estimated schedule or
contract period, and charges); and
5. supplements (Machine quantity and type ordered, price,
estimated shipment date, and warranty period).
Conflicting Terms
If there is a conflict among the terms In the various documents,
those of an Attachment prevail over those of this Agreement. The terms
of a Transaction Document prevail over those of both of these documents.
Our Acceptance of Your Order
A Product or Service becomes subject to this Agreement when we
accept your order by doing any of the following:
1. sending you a Transaction Document;
2. shipping the Machine or making the Program available
to you; or
3. providing the Service.
Your Acceptance of Additional Terms
You accept the additional terms in an Attachment or Transaction
Document by doing any of the following:
1. signing the Attachment or Transaction Document;
2. using the Product or Service, or allowing others to do
so; or
3. making any payment for the Product or Service.
1.3 Delivery
We will try to meet your delivery requirements for Products and Services
you order, and will inform you of their status. Transportation charges, if
applicable, will be specified in a Transaction Document.
1.4 Charges and Payment
The amount payable for a Product or Service will be based on one or more of
the following types of charges:
1. one-time (for example, the price of a Machine);
2. recurring (for example, a periodic charge for Programs or
measured use of Services);
3. time and materials (for example, charges for hourly
Services); or
4. fixed price (for example, a specific amount agreed to
between us for a custom Service).
Depending on the particular Product, Service, or circumstance, additional
charges may apply (such as special handling or travel related expenses). We
will inform you in advance whenever additional charges apply.
Recurring charges for a Product begin on its Date of Installation. Charges
for Services are billed as we specify which may be in advance, periodically
during the performance of the at Service, or after the Service is completed.
Amounts are due upon receipt of invoice and payable as we specify in a
Transaction Document. You agree to pay accordingly, Including any late
payment fee.
If any authority imposes a duty, tax, levy, or foe, excluding those based
on our not income, upon any transaction under this Agreement, then you
agree to pay that amount as specified in the invoice or supply exemption
documentation. You are responsible for personal property taxes for each
Product from the date we ship it to you.
One-time and recurring charges may be based on measurements of actual or
authorized use (for example, number of users or processor size for
Programs, motor readings for maintenance Services, or connect time for
network Services). You agree to provide actual usage data if we specify. If
you make changes to your environment that impact Use charges (for example,
change processor size or configuration for Programs), you agree to promptly
notify us and pay any applicable charges. Recurring charges will be
adjusted accordingly. Unless we agree otherwise, we do not give credits or
refunds for charges already due or paid. In the event that we change the
basis of measurement, our terms for changing charges will apply.
We may increase recurring charges for Products and Services, as well as
labor rates and minimums for Services provided under this Agreement, by
giving you three months written notice. An increase applies on the first
day of the invoice or charging period on or after the effective date we
specify in the notice.
We may increase one-time charges without notice. However, an increase to
one-time charges does not apply to you if 1) we receive your order before
the announcement date of the increase and 2) one of the following occurs
within three months after our receipt. of your order:
1. we ship you the Machine or make the Program available to you;
2. you make an authorized copy of a Program or distribute a
chargeable component of a Program to another Machine; or
3. a Program s increased use charge becomes due.
You receive the benefit of a decrease in charges for amounts which become
due on or after the effective date of the decrease.
Services for which you prepay must be used within the applicable contract
period. Unless we specify otherwise, we do not give credits or refunds for
unused prepaid Services.
1.5 Changes to the Agreement Terms
In order to maintain flexibility in our business relationship, we may
change the terms of this Agreement by giving you three months written
notice. However, these changes are not retroactive. They apply, as of the
effective date we specify in the notice, only to new orders
and on-going transactions (such as licenses, except that changes to license
termination terms are effective only for now orders). Part 5 of this
Agreement contains additional provisions for changes to the terms of
individual Service transactions.
Otherwise, for a change to be valid, both of us must sign it. Additional or
different terms in any written communication from you (such as an order)
are void.
1.6 IBM Business Partners
We have signed agreements with certain organizations (called "IBM
Business Partners") to promote, market, and support certain Products and
Services.
When you order our Products or Services (marketed to you by IBM Business
Partners) under this Agreement, we confirm that we are responsible for
providing the Products or Services to you under the warranties and other
terms of this Agreement. We are not responsible for 1) the actions of IBM
Business Partners, 2) any additional obligations they have to you, or
3) any products or services that they supply to you under their agreements.
1.7 Mutual Responsibilities
Both of us agree that under this Agreement:
1. neither of us grants the other the right to use its
trademarks, trade names, or other designations in any promotion
or publication without prior written consent;
2. all information exchanged is nonconfidential. If either of us
requires the exchange of confidential information, it will be
made under a signed confidentiality agreement;
3. each is free to enter into similar agreements with others;
4. each grants the other only the licenses and eights specified.
No other licenses or rights (including licenses or rights under
patents) are granted;
5. each may communicate with the other by electronic means and
such communication is acceptable as a signed writing. An
identification code (called a "user ID") contained in an
electronic document is sufficient to verify the xxxxxxx identity
and the documents authenticity;
6. each will allow the other reasonable opportunity to comply
before it claims that the other has not met its obligations;
7. neither of us will bring a legal action more than two years
after the cause of action arose; and
8. neither of us is responsible for failure to fulfill any
obligations due to causes beyond its control.
1.8 Your Other Responsibilities
You agree:
1. not to assign, or otherwise transfer, this Agreement or your
rights under this Agreement, delegate your obligations, or resell
any Service, without our prior written consent. Any attempt to do
so is void;
2. to acquire Machines with the intent to use them within your
Enterprise and not for reselling, leasing, or transferring to a
third party, unless either of the following applies
a. you are arranging lease-back financing for the
Machines, or
b. you purchase them without any discount or allowance,
and do not remarket them in competition with our
authorized remarketers;
3. to allow us to install mandatory engineering changes (such as those
required for safety) on a Machine. Any parts we remove become our property.
You represent that you have the permission from the owner and any lien
holders to transfer ownership and possession of removed parts to us;
4. that you are responsible for the results obtained from the use of the
Products and Services;
5. to provide us with sufficient, free, and safe access to your facilities
for us to fulfill our obligations; and
6. to comply with all applicable export and import laws and regulations.
1.9 Patents and Copyrights
For purposes of this Section, the term "Product" includes Materials (alone
or in combination with Products we provide to you as a system) and Licensed
Internal Code.
If a third party claims that a Product we provide to you infringes that
party s patent or copyright, we will defend you against that claim at our
expense and pay all costs, damages, and attorney s fees that a court
finally awards, provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to permit
us to enable you to continue to use the Product, or to modify it, or
replace it with one that is at least functionally equivalent. If we
determine that none of these alternatives is reasonably available, you
agree to return the Product to us on our written request. We will then give
you a credit equal to:
1.for a Machine, your net book value provided you have followed gone
rally-accepted accounting principles;
2. for a Program, the amount paid by you or 12 months charges (whichever
is less); and
3. for Materials, the amount you paid us for the Materials.
This is our entire obligation to you regarding any claim of infringement.
Claims for Which We are Not Responsible
We have no obligation regarding any claim based on any of the
following:
1. anything you provide which is incorporated into a Product;
2. your modification of a Product, or a Program's use in other than its
Specified Operating Environment,
3. the combination, operation, or use of a Product with other Products not
provided by us as a system, or the combination, operation, or use of a
Product with any product, data, or apparatus that we did not provide; or
4. infringement by a non-IBM Product alone, as opposed to its combination
with Products we provide to you as a system.
1.10 Limitation of Liability
Circumstances may arise where, because of a default on our part or other
liability, you are entitled to recover damages from us. In each such
instance, regardless of the basis on which you are entitled to claim
damages from us (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), we are liable for no
more than:
1. payments referred to in our patents and copyrights terms
described above;
2. damages for bodily injury (including death) and damage to real property
and tangible personal property; and
3. the amount of any other actual direct damages up to the greater of
$100,000 or the charges (if recurring, 12 months charges apply) for the
Product or Service that is the subject of the claim. For purposes of this
item, the term "Product" Includes Materials and Licensed Internal Code.
This limit also applies to any of our subcontractors and Program
developers. It is the maximum for which we and our subcontractors and
Program developers are collectively responsible.
Items for Which We are Not Liable
Under no circumstances are we, our subcontractors, or Program developers
liable for any of the following:
1. third-party claims against you for damages (other than those
under the first two items listed above);
2. loss of, or damage to, your records or data; or
3. special, incidental, or indirect damages or for any economic
consequential damages (including lost profits or savings), even
if we are informed of their possibility.
1.11 Agreement Termination
You may terminate this Agreement on written notice to us following the
expiration or termination, of your obligations.
Either of us may terminate this Agreement if the other does not comply with
any of its terms, provided the one who is not complying is given written
notice and reasonable time to comply.
Any terms of this Agreement which by their nature extend beyond the
Agreement termination remain in effect until fulfilled, and apply
to both of our respective successors and assignees.
1.12 Geographic Scope
All your rights, all our obligations, and all licenses (except for Licensed
Internal Code and as specifically granted) are valid only in the United
States and Puerto Rico.
1.13 Governing Law
The laws of the State of Now York govern this Agreement.
Nothing in this Agreement affects any statutory rights of consumers that
cannot be waived or limited by contract.
IBM Customer Agreement
Part 2 - Warranties
2.1 The IBM Warranties
Warranty for IBM Machines
For each IBM Machine, we warrant that it:
1. is free from defects in materials and workmanship; and
2. conforms to its Specifications.
The warranty period for a Machine is a specified, fixed period commencing
on its Date of Installation., During the warranty period, we provide repair
and exchange Service for the Machine, without charge, under the type of
Service we designate for the Machine.
If a Machine does not function as warranted during the warranty period and
we are unable to either 1) make it do so, or 2) replace it with one that is
at least functionally equivalent, you may return it to us and we will
refund your money.
Additional terms regarding Service for Machines during and after the
warranty period are contained in Part 5.
Warranty for IBM Programs
For each warranted IBM Program, we warrant that when it is used in the
Specified Operating Environment, it will conform to its Specifications.
The warranty period for a Program expires when its Program Services are no
longer available. During the warranty period, we provide defect-related
Program Services without charge. Program Services are available for a
warranted Program for at least one year following its general availability.
If a Program does not function as warranted during the first year after you
obtain your license and we are unable to make it do so, you may return
the Program to us and we will refund your money. To be eligible, you must
have obtained your license while Program Services (regardless of the remaining
duration) were available for it. Additional terms regarding Program Services
are contained in Part 4.
Warranty for IBM Services
For each IBM Service, we warrant that we perform it:
1. using reasonable care and skill; and
2. according to its current description (including any completion
criteria) contained in this Agreement, an Attachment, or a
Transaction Document.
Warranty for Systems
Where we provide Products to you as a system, we warrant that they are
compatible and will operate with one another. This warranty is in addition
to our other applicable warranties.
2.2 Extent of Warranty
If a Machine is subject to federal or state consumer warranty laws, our
statement of limited warranty included with the Machine applies in place
of these Machine warranties.
The warranties will be voided by misuse, accident, modification, unsuitable
physical or operating environment, operation in other than the Specified
Operating Environment, improper maintenance by you, removal or alteration of
Product or parts identification labels, or failure caused by a product for
which we are not responsible.
THESE WARRANTIES ARE YOUR EXCLUSIVE
WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OR CONDITIONS
OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
2.3 Items Not Covered by Warranty
We do not warrant uninterrupted or error-free operation
of a Product or Service or that we will correct all defects.
We will identify IBM Products that we do not warrant.
Unless we specify otherwise, we provide Materials,
non-IBM Products, and non-IBM Services
WITHOUT WARRANTIES OF ANY KIND.
However, non-IBM manufacturers, suppliers, or
publishers may provide their own warranties to you.
IBM Customer Agreement
Part 3 - Machines
3.1 Title and Risk of Loss
When we accept your order, we agree to sell you
the Machine described in a Transaction Document.
We transfer title to you or, if you choose, your lessor
when we ship the Machine. However, we reserve a
purchase money security interest in the Machine until we
receive the amounts due. For a feature, conversion, or
upgrade involving the removal of parts which become
our property, we reserve the security interest until we
receive the amounts due and the removed parts.
You agree to sign an appropriate document to permit
us to perfect our purchase money security interest.
We bear the risk of loss for the Machine up to and
including its Date of Installation. Thereafter, you
assume the risk.
3.2 Production Status
Each IBM Machine is manufactured from now parts, or
now and used parts. In some cases, a Machine may not
be now and may have been previously installed.
Regardless of a Machine's production status, our
appropriate warranty terms apply.
3.3 Installation
For the Machine to function properly, it must be installed
in a suitable physical environment. You agree to provide
an environment meeting the specified requirements
for the Machine.
We have standard installation procedures. We will
successfully complete these procedures before we
consider an IBM Machine (other than a Machine
for which you defer installation or a Customer-set-up
Machine) Installed.
You are responsible for installing a Customer-set-up
Machine (we provide instructions to enable you to do
so) and a non-IBM Machine.
Machine Features, Conversions, and Upgrades
We sell features, conversions, and upgrades for
installation on Machines, and, in certain instances,
only for installation on a designated, serial-numbered
Machine. Many of these transactions involve
the removal of parts and their return to us. As
applicable, you represent that you have the
permission from the owner and any lien
holders to 1) install features, conversions,
and upgrades and 2) transfer ownership and
possession of removed parts (which become
our property) to us. You further represent
that all removed parts are genuine, unaltered,
and in good working order. A part that replaces
a removed part will assume the warranty
or maintenance Service status of the replaced part.
You agree to allow us to install the feature,
conversion, or upgrade within 30 days of
its delivery. Otherwise, we may terminate
the transaction and you must return the feature,
conversion, or upgrade, to us at your expense.
3.4 Licensed Internal Code
Certain Machines we specify (called "Specific
Machines") use Licensed Internal Code (called
"Code"). We own copyrights in Code or have
the right to license Code. We or a third party own
all copies of Code, including all copies made from
them.
We will identify each Specific Machine in a
Transaction Document. If you are the rightful
possessor of a Specific Machine, we grant you a
license to use the Code (or any replacement we
provide) on, or in conjunction with, only the
Specific Machine, designated by serial
number, for which the Code is provided. We license the Code to only one
rightful possessor at a time.
Under each license, we authorize you to do only the
following:
1. execute the Code to enable the Specific Machine to
function
according to its Specifications;
2. make a backup or archival copy of the Code (unless we
make one
available for your use), provided you reproduce the
copyright
notice and any other legend of ownership on the copy. You
may use
the copy only to replace the original, when necessary; and
3. execute and display the Code as necessary to maintain
the
Specific Machine.
You agree to acquire any replacement for, or additional copy of, Code
directly from us in accordance with our standard policies and practices.
You also agree to use that Code under these terms.
You may transfer possession of the Code to another party only with the
transfer of the Specific Machine. If you do so, you must 1) destroy all
your copies of the Code that were not provided by us, 2) either give the
other party all your IBM provided copies of the Code or destroy them, and
3) notify the other party of these terms. We license the other party when
it accepts those terms by initial use of the Code, These terms apply to all
Code you acquire from any source.
Your license terminates when you no longer rightfully possess the Specific
Machine.
Actions You May Not Take
You agree to use the Code only as authorized above. You may not do, for
example, any of the following:
1. otherwise copy, display, transfer, adapt, modify, or
distribute the Code (electronically or otherwise), except as we
may authorize in the Specific Machines Specifications or in
writing to you;
2. reverse assemble, reverse compile, or otherwise translate the
Code unless expressly permitted by applicable law without the
possibility of contractual waiver;
3. sublicense or assign the license for the Code; or
4. lease the Code or any copy of it.
3.5 Machine Code
For certain Machines we may provide basic input/output system code,
utilities, diagnostics, device drivers, or microcode (collectively called
"Machine Code"). This Machine Code is licensed under the terms of the
agreement provided with it.
IBM Customer Agreement
Part 4 - Programs
4.1 License
When we accept your order, we grant you a nonexclusive, nontransferable
license to use the Program. Programs are owned by International Business
Machines Corporation or one of its subsidiaries ("IBM") or an IBM supplier
and are copyrighted and licensed (not sold).
4.2 License Details
Under each license, we authorize you to:
1. use the Programs machine-readable portion on only the Designated
Machine. If the Designated Machine is inoperable, you may use
another Machine temporarily. If the Designated Machine cannot
assemble or compile the Program, you may assemble or compile the
Program on another Machine.
If you change a Designated Machine previously identified to us, you
agree to notify us of the change and its effective date;
2. use the Program to the extent of authorizations you have acquired;
3. make and install copies of the Program, to support the level
of use authorized, provided you reproduce the copyright notices
and any other legends of ownership on each copy or partial copy; and
4. use any portion of the Program we 1) provide in source form,
or 2) mark restricted (for example, "Restricted Materials of
IBM") only to
a. resolve problems related to the use of the Program, and
b. modify the Program so that it will work together with other
products.
You agree to comply with any additional terms we may place on a Program. We
identify these in the Program s Specifications or in a Transaction Document.
Actions You May Not Take
You agree not to:
1. reverse assemble, reverse compile, or otherwise
translate the Program; or
2. sublicense, rent, or lease the Program.
4.3 Program Components Not Used on the Designated Machine
Some Programs have components that are designed for use on machines other
than the Designated Machine on which the Program is used. You may make
copies of a component and its documentation In support of your authorized
use of the Program provided you notify us of the components actual date of
distribution.
4.4 Distributed System License Option
For some Programs, you may make a copy under a Distributed System License
Option (called a "DSLO" copy). We charge less for a DSLO copy than we do
for the original license (called the "Basic" license). In return for the
lesser charge, you agree to do the following while licensed under a OSLO:
1. have a Basic license for the Program;
2. provide problem documentation and receive Program Services (if
any) only through the location of the Basic license; and
3. distribute to, and install on, the DSLO s Designated Machine, any
release, correction, or bypass that we provide for the Basic license.
4.5 Program Testing
We provide a testing period for certain Programs to help you evaluate if
they meet your needs. If we offer a testing period., it will start 1) the
second business day after the Program s standard transit allowance period,
or 2) on another date specified in a Transaction Document. We will inform
you of the duration of the Programs testing period.
We do not provide testing periods for DSLO copies.
4.6 Packaged Programs
We provide certain Programs together with their own license agreements.
These Programs are licensed under the terms of the agreements provided with
them.
4.7 Program Protection
For each Program, you agree to:
1. ensure that anyone who uses it (accessed either locally or
remotely) does so only for your authorized use and complies with
our terms regarding Programs; and
2. maintain a record of all copies and provide it to us at our
request.
4.8 Program Services
We provide Program Services for warranted Programs and for selected other
Programs. If we can reproduce your reported problem in the Specified
Operating Environment, we will issue defect correction information, a
restriction, or a bypass. We provide Program Services for only the
unmodified portion of a current release of a Program.
We provide Program Services 1) on an on-going basis (with at least six
months written notice before we terminate Program Services), 2) until the
date we specify, or 3) for a period we specify.
4.9 License Termination
You may terminate the license for a Program on one month s written notice,
or at any time during the Programs testing period.
Licenses for certain replacement Programs may be acquired for an upgrade
charge. When you acquire these replacement Programs, you agree to terminate
the license of the replaced Programs when charges become due, unless we
specify otherwise.
We may terminate your license if you fail to comply with its terms. If we
do so, your authorization to use the Program is also terminated.
IBM Customer Agreement
Part 5 - Services
5.1 IBM Services
Services may be either standard offerings or Customized to your specific
requirements. Each Service transaction may include one or more Services that:
1. expire at task completion or an agreed upon date;
2. automatically renew as another transaction with a specified
contract period. Renewals will continue until either of us
terminates the Service; or
3. do not expire and are available for your use until either of us
terminates the Service.
5.2 Personnel
Each of us is responsible for the supervision, direction, and control of
our respective personnel.
We reserve the right to determine the assignment of our personnel.
We may subcontract a Service, or any part of it, to subcontractors selected
by us.
5.3 Materials Ownership and License
We will specify Materials to be delivered to you. We will identify them as
being "Type I Materials," "Type 11 Materials," or otherwise as we both
agree. If not specified, Materials will be considered Type 11 Materials.
Type I Materials are those, created during the Service performance period,
in which you will have all right, title, and interest (including ownership
of copyright). We will retain one copy of the Materials. You grant us 1) an
irrevocable, nonexclusive, worldwide, paid-up license to use, execute,
reproduce, display, perform, distribute (internally and externally) copies
of, and prepare derivative works based on Type I Materials and 2) the right
to authorize others to do any of the former.
Type II Materials are those, created during the Service performance period
or otherwise (such as those that preexist the Service), in which we or
third parties have all right, title, and interest (including ownership of
copyright). We will deliver one copy of the specified Materials to you. We
grant you an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform, and distribute, within your
Enterprise only, copies of Type II Materials.
Each of us agrees to reproduce the copyright notice and any other legend of
ownership on any copies made under the licenses granted in this Section.
Any idea, concept, know-how, or technique which relates to the subject
matter of a Service and is developed or provided by either of us, or
jointly by both of us, in the performance of a Service may (subject to
applicable patents and copyrights) be freely used by either of us.
5.4 Changes to Service Terms
We may change the terms of Services that are renewable or non-expiring by
giving you three months written notice. However, these changes are not
retroactive. They apply immediately to renewal transactions and as of the
effective date we specify in the notice to all existing transactions. If we
make a change to the terms of a renewable Service that 1) affects your
current contract period and 2) you consider unfavorable, on your request,
we will defer it until the and of that contract period.
When both of us agree to change any Services statement of work other than as
described above, we will prepare a written description of the agreed change
(called a "Change Authorization"), which both of us must sign. The terms of
a Change Authorization prevail over those of the statement of work and any
of its previous Change Authorizations.
5.5 Renewal
Renewable Services renew automatically for a same length contract period
unless either of us provides written notification (at least one month prior
to the and of the current contract period) to the other of its decision not
to renew.
5.6 Termination and Withdrawal
Either of us may terminate a Service if the other does not most its
obligations concerning the Service.
You may terminate a non-expiring Service, without adjustment charge, on one
month s written notice to us provided you have met all minimum requirements
specified in the applicable Attachments and Transaction Documents.
You may terminate a renewable Service or a non-expiring maintenance
Service, without adjustment charge, on notice to us provided you have met
all minimum requirements specified in the applicable Attachments and
Transaction Documents and any of the following circumstances occur:
1 . you permanently remove the eligible Product, for which the
Service is provided, from productive use within your Enterprise;
2. the eligible location, for which the Service is provided, is no
longer controlled by you (for example, because of sale or closing
of the facility);
3. an increase in the Service charges, either alone or in
combination with prior increases over the previous twelve months,
is more than the maximum specified in the applicable Service
Transaction Document. If no maximum is specified, then this
circumstance does not apply; or
4. the Machine has been under maintenance Services for at least
six months and you give us one month 3 written notice prior to
terminating the maintenance Service.
For all other circumstances, you may terminate an expiring or renewable
Service on one month s written notice to us but such termination will
result in adjustment charges equal to the lesser of:
1. the charges remaining to complete the contract period; or
2. one of the following if specified in the Transaction Document.
a. the charges remaining to complete the contract period multiplied by the
adjustment factor specified, or
b. the amount specified.
You agree to pay us for all Services we provide and any Products and
Materials we deliver through Service termination and any charges we incur
in terminating subcontracts.
We may withdraw a renewable or non-expiring Service or support for an
eligible Product on three months written notice to you. If we withdraw a
Service for which you have prepaid and we have not yet fully provided it to
you, we will give you a prorated refund.
Any terms which by their nature extend beyond termination or
withdrawal remain in effect until fulfilled and apply to respective
successors and assignees.
5.7 Service for Machine (during and after warranty)
We provide certain types of repair and exchange Service either at your
location or at a service center to keep Machines in, or restore them to,
conformance with their Specifications We will inform you of the available
types of Service for a Machine. We may repair the failing Machine or
exchange it at our discretion.
When the type of Service requires that you deliver the failing Machine to
us, you agree to ship it suitably packaged (prepaid unless we specify
otherwise) to a location we designate. After we have repaired or exchanged
the Machine, we will return it to you at our expense unless we specify
otherwise. We are responsible for lots of, or damage to, your Machine while
it is 1) in our possession or 2) in transit in those cases where we are
responsible for the transportation charges.
You agree to:
1. obtain authorization from the owner to have us service a Machine
that you do not own; and
2. where applicable, before we provide Service
a. follow the problem determination, problem analysis, and service
request procedures that we provide,
b. secure all programs, data, and funds contained in a Machine, and
c. inform us of changes in a Machine a location.
When Service involves the exchange of a Machine or part, the item we
replace becomes our property and the replacement becomes yours. You
represent that all removed items are genuine and unaltered. The replacement
may not be now, but will be in good working order and at least functionally
equivalent to the item replaced. The replacement assumes the warranty or
maintenance Service status of the replaced item. Before we exchange a
Machine or part, you agree to remove all features, parts, options,
alterations, and attachments not under our service. You also agree to
ensure that the item is free of any legal obligations or restrictions that
prevent its exchange.
Any feature, conversion, or upgrade we service must be Installed on a
Machine which is 1) for certain Machines, the designated, serial-numbered
Machine and 2) at an engineering-change level compatible with the feature,
conversion, or upgrade.
Repair and exchange Services do not cover:
1. accessories, supply items, and certain parts, such as batteries,
frames, and covers;
2. Machines damaged by misuse, accident, modification, unsuitable
physical or operating environment, or improper maintenance by you;
3. Machines with removed or altered Machine or parts identification
labels;
4. failures caused by a product for which we are not responsible; or
5. service of Machine alterations.
We manage and install engineering changes that apply to IBM Machines and
may also perform preventive maintenance.
We provide maintenance Services for selected non-IBM Machines.
5.8 Maintenance Coverage
When you order Machine maintenance Services under this Agreement, we will
inform you of the date on which the maintenance Services will begin. We may
inspect the Machine within one month following that date. If the Machine is
not in an acceptable condition for service, you may have us restore it for
a charge. Alternatively, you may withdraw your request for maintenance
Services. However, you will be charged for any maintenance Services which
we have performed at your request.
IBM Proposal
for
0XxxXxxx.xxx, Inc. Phase 0 Solution Design
Prepared for
0XxxXxxx.xxx, Inc.
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
February 02, 1999
This document is confidential and is intended solely for
0XxxXxxx.xxx 's internal use.
February 2, 1999
IBM Corporation
The information in this proposal shall not be disclosed outside 0XxxXxxx.xxx
and shall not be duplicated, used or disclosed in whole or in part for any
purpose other then to evaluate the proposal. If a contract is awarded to IBM
as a result of or in conjunction with the submission of this proposal,
0XxxXxxx.xxx shall have the right to duplicate, use or disclose the data to
the extent provided by the contract. This restriction does not limit the
right of 0XxxXxxx.xxx to use the information contained in the data if it is
obtained from another source without restriction.
The enclosed Statement of Work is governed by the terms and conditions of
the IBM Customer Agreement or Agreement for Services. Both the Agreement and
this Statement of Work must be signed to initiate this project
Table of Contents
1.0 Executive Summary . . . . . . . . . . . . . . . . . . . . .Page 2
2.0 Statement of Work. . . . . . . . . . . . . . . . . . . . . .Page 3
2.1 Project Scope. . . . . . . . . . . . . . . . . . . . .Page 3
2.2 Key Assumptions. . . . . . . . . . . . . . . . . . . .Page 4
2.3 IBM Responsibilities . . . . . . . . . . . . . . . . .Page 8
2.3.1 Project Management . . . . . . . . . . . . . .Page 8
2.3.2 Joint Requirements Definition Session. . . . .Page 9
2.3.3 Solution Design. . . . . . . . . . . . . . . Page 10
2.4 0XxxXxxx.xxx Responsibilities . . . . . . . . . . . Page 10
2.4.1 0XxxXxxx.xxx Project Manager . . . . . . . . Page 10
2.4.2 Copyright Clearance and Usage Agreements . . Page 10
2.5 Deliverable Materials. . . . . . . . . . . . . . . . Page 11
2.6 Completion Criteria. . . . . . . . . . . . . . . . . Page 11
2.7 Estimated Schedule . . . . . . . . . . . . . . . . . Page 11
2.8 Charges. . . . . . . . . . . . . . . . . . . . . . . Page 12
Appendix A. Deliverable Guidelines. . . . . . . . . . . . . . Page 13
A.1 Project Plan . . . . . . . . . . . . . . . . . . . . Page 13
A.2 Bimonthly Status Reports . . . . . . . . . . . . . . Page 13
A.3 Requirements Summary Document. . . . . . . . . . . . Page 13
A.4 0XxxXxxx.xxx Phase O Solution Design Document. . . . Page 14
Appendix B. Project Change Control Procedure. . . . . . . . . Page 15
Appendix C. Approval Process for Project Deliverables . . . . Page 16
Appendix D. Signature Document. . . . . . . . . . . . . . . . Page 17
1.0 Executive Summary
The Internet and e-business have emerged as key strategic weapons
for companies competing in the global marketplace. Many
organizations am expanding, if not re-purposing their mission, to
extend their reach and value by employing these versatile now
business tools and the channel. Critical to a successful
implementation, however, comes the due diligence to understand the
effectiveness Of such endeavors as a viable, operative business.
At the request of 0XxxXxxx.xxx IBM Interactive Media is proposing to
gather requirements, analyze and design a Web solution using a Phase
0 Solution Design Engagement The result of Interactive Media's
analysis, which will be described in the 0XxxXxxx.xxx Phase 0
Solution Design Document of which components will be delivered in
iterative fashion is a plan for a Web Application that responds to
0XxxXxxx.xxx's stated requirements.
Companies competing in the global marketplace now recognize that
Internet technologies can deliver increasingly valuable strategic
tools. E-business solutions that leverage the web to sell, market,
and communicate are helping many organizations gain revenues, build
market share,and enhance the strength of their customer
relationships. Flexible, scalable, and robust e-business solutions
require substantial analysis, planning, and coordination among
experts from multiple disciplines to be implemented successfully.
IBM Interactive Media, at 0XxxXxxx.xxx's request proposes to analyze
and design a Web solution for a Phase 0 Solution Design Engagement.
A document describing a Web Application that addresses
0XxxXxxx.xxx's stated requirements will be delivered in multiple
iterations.
This Document is a Proposal and a Statement of Work to conduct a
Phase 0 Solution Design Engagement.2.0 Statement of Work
2.0 Statement of Work
This Statement of Work defines the scope of work to be accomplished
by IBM under the terms and conditions of the IBM Customer Agreement
# VGY1816. The tasks to be performed by IBM are defined and an
estimated schedule is provided. In addition, the responsibilities of
0XxxXxxx.xxx are listed.
Changes to this Statement of Work Will be processed in accordance
with the procedure described in Appendix B "Project Change Control
Procedure".
The investigation and the implementation of changes may result in
modifications to the Estimated Schedule, charges, and/or other terms
of the Agreement.
The following are incorporated in and made part of this Statement of
Work:
Appendix A. "Deliverable Guidelines"
Appendix B. "Project Change Control Procedure"
Appendix C. "Approval Process for Project Deliverables"
Appendix D. "Signature Document"
2.1 Project Scope
The Scope of this project is to:
1. Conduct a three day Joint Requirements Definition session to
facilitate the definition and capture of 0XxxXxxx.xxx 's business,
technical and design requirements. The session will be facilitated
by IBM Personnel.
2. Development of a recommended high level application design and
technical solution that meets the defined requirements.
3. Development of a budget planning estimate and schedule for the
implementation of the proposed solution.
2.2 Key Assumptions
This Statement of Work and IBM's estimate are based on the following
assumptions. Any deviation from these assumptions will be handled in
accordance with the Project Change Control process described in
Appendix B. "Project Change Control Procedure".
General Assumptions
In pricing the development of the 0XxxXxxx.xxx Solution Design, the
following general assumptions have been made:
1. 0XxxXxxx.xxx names a Project Manager to manage the project
approvals, content delivery as well as the different groups
within their company so that information consistently flows
through one person, rather than several.
2. 0XxxXxxx.xxx will provide ail appropriate graphic assets,
logos, color palettes, and pertinent assets for the interface
and navigation per the Project Plan. images and photos will be
provided electronically as PICT, TIFF or JPEG images where
possible, or as high quality prints no smaller than 2 inches by
3 inches, and no larger than 8.5 inches by 11 inches.
3. IBM will provide personnel for this effort, ending on the date
specified in the Agreement Signature Document page. IBM will
review each of the Deliverables with the designated
0XxxXxxx.xxx Project Manager once they are ready for review.
4. IBM will not begin work on any requested project modifications
without providing a specific cost and schedule, via a Project
Change Request.
5. 0XxxXxxx.xxx assumes all responsibilities for the copyright
clearance and license and usage agreements for any and all
content provided to IBM, or to be included in the 0XxxXxxx.xxx
Solution Design Document.
6. The delivery schedule of the 0XxxXxxx.xxx Solution Design
Document is contingent upon timely receipt of assets and
milestone approvals from 0XxxXxxx.xxx. Any delays may impact
the final delivery date.
7. 0XxxXxxx.xxx agrees to provide approvals of deliverables per
the approval process described in Appendix C. "Approval
Process for Project Deliverables".
8. 0XxxXxxx.xxx will identify and schedule the appropriate
internal resources who will participate-xxxx In the three day
facilitated JRD session.
9. The three day JRD session will be held at the IBM Interactive
Media location in Atlanta, GA.
10. The actual period of performance will be determined at the
time work is authorized under this Agreement, based upon
schedule and availability of resources.
11. The price and schedule information in this document are for
the Solution Design Phase only. A price and schedule to
develop the application will be provided following the Joint
Requirements Definition Session and subsequent analysis, via
a Statement or Statements of Work or PCR's.
12. Should IBM make available any components of the Solution
Design prior to the Final 0XxxXxxx.xxx Solution Design
Document then any changes to components requested by
0XxxXxxx.xxx will result in a PCR, per the process outlined
In Appendix B of this Agreement.
Technical Assumptions
13. The technical solution provided will be at a system
architecture level, not a detail design level. Detail design
sufficient to begin application coding will require
additional efforts that are not a part of this Scope of Work,
but may occur at a later date under a separate Statement of
Work or PCR.
14. This engagements' deliverables are not to support prototype
development.
15. The technical solution provided will focus on meeting 2The
Xxxx.xxx's business requirements defined in the Joint
Requirements Definition Session, rather than on a detailed
analysis of the strengths and weaknesses of competitor's web
sites.
Creative Assumptions
16. Design impressions am intended to communicate initial
findings and potential user Interface requirements only
17. Design impressions am not intended to represent "Branding",
as a full Branding engagement for digital applications will
require additional efforts that are not a part of this Scope
of Work, but may occur at a later date under a separate
Statement of Work or PCR.
18. The Information Design provided in the Solution Design
engagement is not meant to identify or design the back end
fulfillment architecture or work flow. it is only intended to
map user navigation. Any technical information will be
delivered as part of deliverable A.4, Solution Design section
"Technical Description".
Year 2000 Assumptions
19. IBM is not providing any Year 2000 services under this
Statement of Work IBM Product Specifications specify the Year
2000 readiness of the IBM Products. IBM does not make any
representations regarding the Year 2000 readiness of non-IBM
Products.
Under the terms of this Statement of Work IBM is not
responsible for 1) 0XxxXxxx.xxx products, 2) a third party's
products (including products 0XxxXxxx.xxx licenses from IBM
subcontractors) or 3) IBM's previously Installed Products,
("Other Products") to correctly process or properly exchange
accurate data with the Products or deliverables IBM
provides. IBM will be relieved of obligation under this
Statement of Work due to the inability of such Other Products
to correctly process or property exchange accurate date data
with the Products or deliverables IBM provides to
0XxxXxxx.xxx. 0XxxXxxx.xxx acknowledges that it is
0XxxXxxx.xxx's responsibility to assess their current systems
and take appropriate action to migrate to Year 2000 ready
systems.
0XxxXxxx.xxx Personnel
0XxxXxxx.xxx personnel who will be assigned to this project will
have the technical, marketing communications and project
management skills necessary to participate in the Solution Design
effort.
IBM and Subcontractor Personnel
IBM will provide services under this Statement of Work during
normal business hours, 8:30 am to 5:16 pm Monday through Friday,
except holidays.
IBM may elect to use subcontractor personnel to perform a portion
of the proposed work.
0XxxXxxx.xxx will be charged for travel time that exceeds one hour
round trip from the point of departure.
2.3 IBM Responsibilities
2.3.1 Project Management
Task Description: IBM will provide project management for the IBM
Responsibilities in this
Statement of Work.
The objective of this task is to establish a framework for project
communications, reporting, procedural and contractual activity, The IBM
Project Manager Wit be responsible for this task. The following subtasks
will be performed:
1. Project Planning
Review this Agreement and the contractual responsibilities of both
parties with the 0XxxXxxx.xxx Project Manager.
Prepare a Project Plan which identifies and assigns tasks, major
milestones for the efforts of the project team, the estimated dates on
which they are estimated to occur and indications of critical path.
Coordinate the establishment of the project environment
Develop a change control plan.
Develop a status reporting plan.
2. Project Tracking and Reporting
Measure, track and evaluate progress against the Project Plan.
Resolve deviations from the Project Plan with the 0XxxXxxx.xxx Project
Manager.
Review project tasks, schedules, and resources and make changes or
additions, as appropriate.
Conduct regularly scheduled meetings with the 0XxxXxxx.xxx Project
Manager to review project status.
Prepare Bimonthly Status Reports.
Administer the Project Change Control Procedure.
Review and analyze Project Change Requests.
Review the work products being produced by the project team prior to
delivery to 0XxxXxxx.xxx
Completion Criteria: This task will be complete when the IBM
Responsibilities described in this Statement of Work have been completed,
according to their completion criteria.
Deliverables: The following items will be delivered to 0XxxXxxx.xxx as a
result of this task:
1. Project Plan
2. Bimonthly Status Reports
2.3.2 Joint Requirements Definition Session
Task Description: The objective of this task is to conduct a three day
session to facilitate the definition and capture of 0XxxXxxx.xxx's
interactive media requirements and objectives. This session will address the
following topics:
1. Interactive Design Overview
Discussion of goals and purpose
2. Business Environment
Discussion regarding external, internal and fiscal issues/drivers, legal
considerations and competitive information goals, purpose, and
targeted audience
3. Application Function Model
High-level identification of functions and requirements necessary to
support the client requirements
4. Creative/Aesthetic User Interface Requirements
High-level review of 0XxxXxxx.xxx's position as it relates to Internet
presence.
Definition for a future interface and its design characteristics and a
review of current client assets
Gather and verify the information needed to initiate design
impressions that will provide the reference for future Digital Branding
exercises representative of 2TheMarts' brand, by exploring issues
including web target segments and positioning.
5. Technical Requirements and Considerations
Definition of current and planned technical infrastructure/systems and
hardware requirements
6. Support and Maintenance requirements
7. Critical Success Factors
8. Prioritization of Requirements
Completion Criteria: This task will be complete upon written approval of the
Requirements Summary Document by the 0XxxXxxx.xxx Project Manager, per the
approval process described in Appendix C.
Deliverables: The following items will be delivered to 0XxxXxxx.xxx as a
result of this task:
1. Requirements Summary Document.
2.3.3 Solution Design
Task Description: The objective of this task is to create a high-level
recommended solution that represent the visual, navigational and technical
design requirements, plus an estimated budget and schedule for
implementation of the solution.
Completion Criteria: This task will be complete upon written approval of the
0XxxXxxx.xxx Phase 0 Solution Design Document by the 0XxxXxxx.xxx Project
Manager per the approval process described in Appendix C. In order to
facilitate quicker review, the individual sections of this document will be
delivered as they are brought to completion.
Deliverables: The following item will be delivered to 0XxxXxxx.xxx as a
result of this task:
0XxxXxxx.xxx corn Phase 0 Solution Design Document, see Appendix A,A.4
for details
2.4 0XxxXxxx.xxx Responsibilities
The responsibilities listed in this section are in addition to those
responsibilities specified in the Agreement, and are to be provided at no
charge to IBM. IBM's performance is predicated upon the following
responsibilities being fulfilled by 0XxxXxxx.xxx
2.4.1 0XxxXxxx.xxx Project Manager
Prior to the start of this Statement of Work under the Agreement,
0XxxXxxx.xxx will designate a person, called the 0XxxXxxx.xxx Project
Manager, to whom all IBM communications will be addressed and who has the
authority to act for 0XxxXxxx.xxx In all aspects of the contract.
The responsibilities of the 0XxxXxxx.xxx Project Manager include:
1. Serve as the interface between the IBM project team and all
0XxxXxxx.xxx departments participating in this project.
2. With the IBM Project Manager, administer Project Change Control in
accordance with Appendix B. Project Change control Procedure.
3. Attend project status meetings either in person or by phone.
4. Obtain and provide information data. decisions and approvals, in a
timely manner in accordance with the Project Plan.
5. Resolve deviations from project plans which maybe caused by
0XxxXxxx.xxx.
6. Help resolve project issues and escalate issues within the
0XxxXxxx.xxx organization, as necessary.
2.4.2 Copyright Clearance and Usage Agreements
0XxxXxxx.xxx assumes all responsibilities for the copyright clearance and
license and usage agreements for any and all content provided to IBM, or to
be included in the 0XxxXxxx.xxx Solution Design Document.
2.5 Deliverable Materials
The following deliverables are classified as Type II Materials, as defined
in the IBM Customer Agreement, and will be delivered to 0XxxXxxx.xxx under
this Statement of Work.
Project Plan
Bimonthly Status Reports
Requirements Summary Document
0XxxXxxx.xxx Phase 0 Solution Design Document
Type II Materials are those, created during the Service performance period
or otherwise (such as those that preexist the Service), in which we or third
parties have all right, title, and interest (including ownership of
copyright). We will deliver one copy of the specified Materials to you. We
grant you an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform, and distribute, within your Enterprise
only, copies of Type II Materials.
2.6 Completion Criteria
IBM shall have fulfilled its obligations under this Statement of Work of
this Agreement when any one of the following first occurs:
IBM accomplishes the tasks described in "IBM Responsibilities", including
delivery to the 0XxxXxxx.xxx Project Manager of the materials listed in
"Deliverable Materials".
IBM provides the number of hours for services specified in "Charges" or in
any subsequent Change Authorization.
0XxxXxxx.xxx or IBM terminates the Project in accordance with the provisions
of the Agreement.
Additional agreements will be required for any maintenance and continued
relationship beyond the period of performance of this Agreement.
2.7 Estimated Schedule
The services will be performed during the period specified in the Statement
of Work for Project Support Services (Custom Services) found in Appendix D.
"Signature Document".
Currently, the project duration is estimated for eight weeks from the JRD
session.
The estimated schedule will be revalidated and adjusted at the end of the
Joint Requirements Definition Session.
2.8 Charges
Based an our understanding of 0XxxXxxx.xxx 's requirements, IBM will provide
an estimated 1,895 hours of service, at an hourly rate of $199, for an
estimated funding requirement of $377, 105, plus a 2% admin fee.
In addition, 0XxxXxxx.xxx will reimburse IBM for the actual hours and actual
travel and living expenses incurred in providing these services.
IBM will prebill 0XxxXxxx.xxx 50% of the total contract hours, due before
work begins.
0XxxXxxx.xxx will be invoiced monthly for the actual hours and travel and
living expenses used during the previous month.
Invoices are payable upon receipt.
This offer is valid until February 12, 1999 unless otherwise extended in
writing by IBM.
Appendix A. Deliverable Guidelines
A.1 Project Plan
Purpose: IBM will provide a 2 to 3 page Project Plan advising the
0XxxXxxx.xxx Project Manager of the planned IBM activities, budget estimates,
and schedule with milestones.
Content: The plan will consist of the following, as appropriate:
Activities planned - high level description of major tasks and milestones
with identification of appropriate deliverables and planned review cycle.
Schedule - Schedule for each high level task with associated milestones and
deliverables
A.2 Bimonthly Status Reports
Purpose: IBM will provide Bimonthly Status Reports advising the 0XxxXxxx.xxx
Project Manager of the progress and status of the IBM activities. The report
will outline the IBM activities and describe the status of tasks worked on
during that period. Significant accomplishments, milestones, and problems
will be identified.
Content: The report will consist of the following, as appropriate:
Activities performed during the reporting period
Activities planned for the next reporting period
Hours summary
Hours originally estimated
Hours expended during this reporting period
Hours expended to date
Estimated remaining hours
Problems, concerns, and recommendations
Other items of importance
A.3 Requirements Summary Document
Purpose: IBM will provide a summarized requirements document
Content: The report describes the requirements documented in the
facilitated session and contains 5-10 pages consisting of:
Client Requirements
A.4 0XxxXxxx.xxx Phase 0 Solution Design Document
Purpose: This document describes the recommended solution and represents the
deliverable based on the Client Requirements gathered at the Joint Requirements
Definition Session.
Content: The document, produced as a series of Interim deliverables, will
consist of the following sections:
Executive Summary: This section is a 2-3 page overview of the project which
will consist of the following:
Introduction
The Challenge
The Recommended Solution
Budget and Planning Estimates
Solution Design: This section describes the graphical and technical solution
recommended based on the requirements and contains 20-30 pages consisting of:
Information Design
High Level Navigational Flow
Navigational Narrative Description
Graphical User Interface Design
Visual Treatments - four high-level design studies, each will have a unique logo
treatment, complementing an appropriate look and fear
Treatment Narrative Description
Technical Description
Architectural Diagram
Technical Narrative Description
Budget and Planning Estimate: This section represents a high-level estimate
of both the cost and time to develop the solution and contains 1-2 pages
consisting of:
Xxxxx chart representing the estimated time and development effort required
to implement the solution.
Estimated Cost - Represents the development cost based on the recommended
solution design
Appendix B. Project Change Control Procedure
The following provides a detailed process to follow if a change to this
Statement of Work of this Agreement is required.
A Project Change Request (PCR) will be the vehicle for communicating change. The
PCR must describe the change, the rationale for the change and the effect the
change will have on the project.
The designated Project Manager of the requesting party will review the
proposed change and determine whether to submit the request to the other party.
Both Project Managers will review the proposed change and approve it for
further investigation or reject it. IBM will specify any charges for such
investigation. If the investigation is authorized, the Project Managers Will
sign the PCR which will constitute approval for the investigation charges.
IBM will invoice 0XxxXxxx.xxx for any such charges. The investigation will
determine the effect that the implementation of the PCR will have on price,
schedule and other terms and conditions of the Agreement
A written Change Authorization and/or Project Change Request (PCR) must be
signed by both parties to authorize implementation of the investigated changes.
Appendix C. Approval Process for Project Deliverables
IBM and 0XxxXxxx.xxx acknowledge that one of the keys to success in this
project is a working relationship that respects the strengths, abilities,
and responsibilities of each company. Therefore, the approval process for
materials delivered by this work should fundamentally focus attention on
whether or not we are jointly meeting the overall
requirements of 2TheMartcom. Therefore, for each formal deliverable from IBM
to 0XxxXxxx.xxx under this Statement of Work, the process will be:
1. The IBM Project Manager will deliver the materials to 0XxxXxxx.xxx
designated Project Manager.
2. 0XxxXxxx.xxx Project Manager will arrange for the proper personnel in the
0XxxXxxx.xxx organization to review the materials. He/she will then
consolidate all feedback in written form back to IBM's Project Manager,
3. The feedback should contain either a letter of approval or a letter of
disapproval.
In the case of disapproval, the feedback should describe the specific
instances where the material does not meet 0XxxXxxx.xxx 's requirements.
For each instance of disapproval, 0XxxXxxx.xxx must specify the criteria
required to gain approval.
4. The feedback to IBM should be complete within three (3) business days
of receiving the materials.
5. The IBM Project Manager will specify the plans to correct each
disapproval instance in writing to 0XxxXxxx.xxx.
6. IBM will make corrections to the deliverables to 0XxxXxxx.xxx approval
criteria. If, in the judgment of either IBM's or 0XxxXxxx.xxx Project
Manager, the changes
required are beyond the scope of the original Statement of Work or
extensive enough to warrant, the changes will be handled using the
Project Change Control Procedure in Appendix B.
Appendix D. Signature Document
IBM Customer Agreement
Statement of Work for Project Support Services
Custom Services
This document is a Statement of Work to either the IBM Customer Agreement or
the IBM Agreement for Services. If used with the IBM Agreement for Services,
no machines or licensed program products may be acquired under this
Statement of Work. Such items are available only under the terms of 1) the
IBM Customer Agreement (or any equivalent agreement signed by both of us) or
2) the applicable third-party agreement.
Scope of Services, Completion Criteria, Charges, and other applicable terms:
See Statement of Work in attached proposal dated February 02, 1999, section
Statement of Work, entitled "2TheMart. com, IBM Phase 0 Solution Design".
Each of us agrees that the complete agreement between us about these
Services will consist of 1) this Statement of Work and 2) the IBM Customer
Agreement or IBM Agreement for Services, as applicable, (or any equivalent
agreement signed by both of us).
Agreed to: 0XxxXxxx.xxx Agreed to: International Business Machines
By /s/Xxxxxxx X. Xxxxxxxxxxx By /s/Xxxx Xxxx
Authorized Signature Authorized Signature
Name: Xxxxxxx X. Xxxxxxxxxxx Name:
Date: 2-3-99 Date:
Customer Number: 6020475 Reference Agreement Number #VGY1818
Customer Address:
0000 Xxxxx Xxxxxxx, Xxx. 000
Xxxxxx, XX 00000 Statement of Work Number:
IBM Office Number:
Customer "Bill To" Address, if different:
IBM Office Address:
Project Name or identifier: 2TheMart Phase 0
Estimated Start Date: February 15,1999
Estimated End Date: April 30, 1999
Services Group Address: 0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
IBM PROPOSAL
FOR
0XxxXxxx.xxx Web Site
Application Development
Prepared for
0XxxXxxx.xxx
0000 Xxx Xxxxxx Xxx.
Irvine, CA 92612
May 28, 1999
IBM
Global Services
This document is confidential and is intended solely for
0XxxXxxx.xxx's internal use.
May 28, 1999
IBM Global Services
000 Xxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
The information in this proposal shall not be disclosed outside
0XxxXxxx.xxx and shall not be duplicated, used or disclosed in
whole or in part for any purpose other than to evaluate the
proposal. If a contract is awarded to IBM as a result of or in
conjunction with the submission of this proposal, 0XxxXxxx.xxx
shall have the right to duplicate, use or disclose the data to the
extent provided by the contract. This restriction does not limit
the right of 0XxxXxxx.xxx to use the information contained in the
data if it is obtained from another source without restriction.
The enclosed Statement of Work is governed by the terms and
conditions of the IBM Customer Agreement or Agreement for Services.
Both the Agreement and this Statement of Work must be signed to
initiate this project
This offer is valid until June 28 1999 unless otherwise extended in
writing by IBM.
TABLE OF CONTENTS
1.0 EXECUTIVE SUMMARY Page 2
2.0 STATEMENT OF WORK Page 3
2.1 Project Scope Page 3
2.2 Key Assumptions Page 4
2.3 IBM Responsibilities Page 9
2.3.1 Project Management Page 9
2.3.2 Final Detailed Solution Design Page 10
2.3.3 Graphic Production Page 11
2.3.4 Technical Development Page 11
2.3.5 Test and Quality Assurance Page 12
2.4 2TM Responsibilities Page 12
2.4.1 2TM Project Manager Page 13
2.4.2 Defining Events and Information for the 0XxxXxxx.xxx
Web Site Page 13
2.4.3 Copyright Clearance and Usage Agreements Page 13
2.5 Deliverable Materials Page 13
2.6 Completion Criteria Page 14
2.7 Estimated Schedule Page 14
2.8 Charges Page 15
2.9 Year 2000 Page 16
2.10 Required Consents Page 16
2.11 Laws, Regulations and Statutes Page 17
2.12 Services Warranty Page 17
2.13 Special Terms & Conditions Page 17
APPENDIX A. EXCLUDED FUNCTIONALITY Page 18
APPENDIX B. PROJECT CHANGE CONTROL PROCEDURE Page 19
APPENDIX C. APPROVAL PROCESS FOR PROJECT DELIVERABLES Page 20
APPENDIX D. DELIVERABLE GUIDELINES Page 21
D.1 Biweekly Status Report Page 21
D.2 Project Plan Page 21
D.3 Final Detailed Solution Design Page 22
D.4 Processed Graphical Elements Page 22
D.5 Cut Guides Page 22
D.6 Beta Version of 0XxxXxxx.xxx Web Site Page 22
D.7 Final Tested Version of the 0XxxXxxx.xxx Web Site Page 23
APPENDIX E. SIGNATURE DOCUMENT Page 24
1.0 EXECUTIVE SUMMARY
At the request of 0XxxXxxx.xxx (2TM), IBM engaged in understanding
and analyzing 2TM's business environment, goals, strategies and
objectives, in order to determine how interactive tools and
technologies can be applied effectively to 0XxxXxxx.xxx's business.
The result of IBM's analysis set forth a plan for an Internet
based solution that addresses 0XxxXxxx.xxx business goals and
needs. The solution is development of an online auction web site.
The model used by IBM to identify this solution and to define its
high-level requirements also enabled 2TM to define its Value
Propositions for such a site:
The 0XxxXxxx.xxx Web Site should maintain a xxxxxxxx xxxx of
items in all categories.
The 0XxxXxxx.xxx Web Site user's site experience should be
focused on ease of use, ease of navigation and superior
searchability.
The 0XxxXxxx.xxx Web Site should provide premium services to
both Buyers and Sellers to enhance the user experience.
IBM considered these Value Proposition Statements while creating
the Phase 0 Solution Design Document components, all components of
which were delivered to 0XxxXxxx.xxx as of April 30, 1999. The
following proposed project takes the defined value proposition to
the next step. It supports 2TM in designing, building and
implementing its online auction web site.
This Document is a Proposal and a Statement of Work to execute the
plan to develop an online auction site.
2.0 STATEMENT OF WORK
This Statement of Work defines the scope of work to be accomplished
by IBM under the terms and conditions of the IBM Customer Agreement
VGY1816 (Agreement). The tasks to be performed by IBM are defined
and an estimated schedule is provided. In addition, the
responsibilities of 0XxxXxxx.xxx are listed.
Changes to this Statement of Work will be processed in accordance
with the procedure described in Appendix B. "Project Change Control
Procedure".
The investigation and the implementation of changes may result in
modifications to the Estimated Schedule, Charges, and/or other
terms of the Agreement.
The following are incorporated in and made part of this Statement
of Work:
W APPENDIX A. "Excluded Functionality"
W APPENDIX B. "Project Change Control Procedure"
W APPENDIX C. "Approval Process for Project Deliverables"
W APPENDIX D. "Deliverable Guidelines"
W APPENDIX E. "Signature Document"
2.1 PROJECT SCOPE
The Scope of this project is to:
1. Design, build, and test the 0XxxXxxx.xxx Web Site.
Development will be built using IBM's Net.Commerce as the core and
the Auction Gallery function of the Net.Commerce auction.
2.2 KEY ASSUMPTIONS
This Statement of Work and IBM's estimate are based on the
following assumptions. Any deviation from these assumptions will
be handled in accordance with the Project Change Control process
described in Appendix B. "Project Change Control Procedure".
GENERAL ASSUMPTIONS
IBM has utilized the 0XxxXxxx.xxx Phase 0 Solution Design
Document sections: Information Design, Graphical User Interface
Design, and Technical Solutions as the requirements baseline for
estimating this effort. Functionality referenced in that document
which are excluded from this proposal are listed in Appendix A.
"Excluded Functions"
2TM assigns a Project Manager to manage the project
approvals, content delivery, coordinate and communicate with 2TM
personnel so that information consistently flows through one
person, rather than several.
2TM approves design and content, as well as provides required
assets and information within the agreed upon time frames detailed
in the Project Plan.
If it becomes necessary for 2TM to provide any appropriate
graphic assets, logos, color palettes and pertinent assets for the
interface and navigation per the Project Plan, these will be
provided electronically, where possible, or as high quality prints
no smaller than 2 inches by 3 inches, and no larger than 8.5
inches by 11 inches.
IBM provides personnel for this effort, ending on the date
specified in the Agreement Signature Document page. IBM will
review each project deliverable with the designated 2TM Project
Manager once they are ready for review.
IBM will not begin work on any requested project
modifications without providing a specific cost and schedule, via
a Project Change Request (PCR).
2TM assumes all responsibilities for the copyright clearance
and license and usage agreements for any and all content to be
loaded to the 0XxxXxxx.xxx Web Site.
The delivery schedule of the web site is contingent upon
timely receipt of assets and milestone approvals from 2TM. Any
delays may impact the final delivery date.
2TM agrees to provide approvals of deliverables per the
approval process described in Appendix C. "Approval Process for
Project Deliverables".
Pricing assumes that development will adhere to the
production schedule and approval process as outlined in the
Estimated Schedule Section 2.6 and per the approval process
described in Appendix C.
2TM will assume all risks and liability as a result of any
abuse or misuse of this site (chats, discussion areas, store use,
transactions, etc.).
All 2TheMart Responsibilities for asset and milestone
approvals from 2TheMart must be received at the times specified in
the project plan. Any delays will impact IBM's ability to deliver
the specified functionality by the delivery date and will result
in an automatic adjustment of the schedule incentive payment dates
on a day for day basis.
The project does not allow time for content/asset analysis or
management. This requires that all content/assets provided by
2TheMart are acceptable, as is, with no modification. If any
content/assets received require modification or editing, IBM will
advise 2TheMart of the required modifications/editing via the PCR
process as described in Appendix B, Project Change Control Procedure.
Any changes to the scope of work and/or assumptions may
require a PCR and may impact schedule and/or budget.
DEVELOPMENT ASSUMPTIONS
CREATIVE DEVELOPMENT ASSUMPTIONS
Media Requirements
1. 2TM is responsible for any royalty fees required for
photographs used.
2. 2TM will provide needed assets per the Project Plan.
Graphical Interface Design
1. This estimate is based on the design 2TM has selected out
of the 0XxxXxxx.xxx Phase 0 Solution Design Document. This
design will be used as the basis for the final creative
treatment produced by IBM during the Final Detailed Solution
Design tasks. Once this final creative treatment is approved by
2TM, any changes will be considered out of scope and require a PCR.
2. 2TM must approve the selected design direction for
production and implementation of the application to begin, in
accordance with the approval process, Appendix C.
3. Design implementation will occur after information design
is completed and approved by 2TM, per Appendix C. Any
information design changes after that time are considered out of
scope and will require a PCR.
4. The interface will be optimized for a screen resolution of
640x480, but it will be flexible to accommodate users with a
screen resolution of 800x600.
5. The 0XxxXxxx.xxx Web Site will be optimized for the
Web-safe palette.
6. This estimate does not include style guides.
7. IBM will accept photo ready print images; however, scanning
and digitizing images will increase the estimated number of
graphic hours associated with the project, thereby increasing
the total price of the engagement. In this event the increase
in project scope will be addressed using a PCR.
8. A .GIF animation of the logo will be integrated into the
application design. Additional animations and video compression
are not included in this estimate.
Content/Editorial
1. 2TM will provide a single point of contact whom the IBM
editor can consult for content and style issues.
2. IBM will write the navigational text and other instructional
information to be contained within the public areas of the
0XxxXxxx.xxx Web Site. This content will be delivered to the
client for approval in accordance with the approval process.
3. Any other content besides the navigational and instructional
text mentioned above will be provided by 2TM.
4. All content from 2TM will receive client approval prior to
IBM's receipt.
5. 2TM will provide Subject Matter Experts (SMEs) for any
original content IBM creates for the project.
6. Any 2TM-supplied content will be grammatically and factually
correct, (i.e., spelling of names and locations, dates,
technical jargon, etc.). Editing and research of
client-supplied content is not a part of this Statement of Work.
7. All content received from 2TM should be Microsoft Word
compatible. If content cannot be delivered in digital format a
PCR will be required for re-keying text effort.
Information Design
1. The functional templates will be based on the functionality
identified in the 0XxxXxxx.xxx Phase 0 Solution Design Document,
currently estimated at 94 pages.
TECHNICAL DEVELOPMENT ASSUMPTIONS
The 2TM Web Site will be built using IBM's Net.Commerce,
including the Net.Commerce auction code, as its core.
2TM will provide the development server environment for
this project to IBM within 3 weeks of the project start. The
cost of said machines is not included within this SOW estimate.
IBM will conduct a Package Evaluation, during which time
IBM will finalize package selection for Commerce Auction, Chat,
Bulletin Board System (BBS), Frequently Asked Questions (FAQ),
web metrics, reporting tools, and virus protection. This
process does not include analysis of Chat-like customer service
alternatives (other than to provide information on the Business
Evolution product) or a Billing system.
A password will be required each time the Chat or
Bulletin Board areas are entered and when a bid is entered or
maintained.
It is assumed that a Chat and Bulletin Board product can
be found that can be integrated with Net.Commerce to allow
single update of user id and possibly password. If one cannot
be found, a separate chat registration may be required or
custom developed which is not within scope of project and will
require a PCR.
A placeholder for a link to the cybercast area will be
made, but actual cybercast and related material is not part of
project scope.
2TM will establish relationships to allow the use of
escrow from within the 2TheMart Web Site rather than with link
to escrow site. IBM assumes that this consists of an
escrow-related tutorial of (15) static HTML pages and links to
a 2TM version of the escrow pages that are served from the
escrow services server. These pages would have the 2TheMart
Web Site look with navigation bar and tool bar, as well as all
necessary links back to the 2TheMart Web Site. Coding of these
pages is assumed to be the responsibility of escrow service
with arrangements to e made by 2TheMart. IBM will work with
2TM-provided escrow provider to define the integration of this
service within the 2TheMart Web Site.
2TM will establish necessary business relationships to
support credit card verification.
2TM must define the period of time that the closed
auction archive will house auction information, after which
time such information will be deleted.
The 2TM billing system is a separate effort outside the
scope of this proposal. IBM assumes the billing system will
xxxx xxxxxxx for services rendered on site. The 0XxxXxxx.xxx
Web Site must pass a file of billable events to the billing
systems; these events include listings, winning bid amounts and
premium services. The billing system is responsible for
applying any discounts or keeping track of account balances.
The billing system must also pass invoices to the e-commerce
site for display to customers when they query account billing
status. 2TM is responsible for providing the billing system.
For large sellers, billing setup will be done by 2TM
through its billing system. For public sellers, setup is part
of registration but it is the responsibility of the billing
system to actually bill the seller. Public sellers must supply
credit card information to register on the 2TheMart Web Site.
IBM will design the 2TheMart Web Site to provide the billing
transactions to the 2TM billing system.
The load of initial product data will be the
responsibility of 2TM. Product and auction schedule
information must be provided in a single, computer readable
format prescribed by IBM; the estimate allows for assistance in
four iterations of data load. For the initial launch, it is
assumed that data for no more than 10 distributors will be
loaded. IBM's estimate for this assistance effort is limited
to 80 hours.
Reporting tools will be recommended by IBM as part of
package selection, but specifics of individual reports used for
administration of the site or for distribution to large
retailers is beyond the scope of this estimate.
Orders will be sent to large sellers as an encrypted
report or flat file. A single format will be used for all
large vendors.
Broadcast of live video feed of customer service will be
simulated using a still image that may be updated by 2TM.
Chat-like customer service capability is beyond the scope
of this effort. A link will be provided to a 2TM-provided
customer service capability. Any other integration of such
capability into the web site has not been considered as part of
this estimate.
Types of auction supported will consist of single item
regular (Yankee), multiple item regular auction, and True Dutch.
The Auction Gallery function of the Net.Commerce auction
code will be used to provide the
2MartCart capability.
Modifications will be made to support 2TM specific functions
and presentation, currently estimated at 32 hours.
Bids can be retracted. 2TM must set specific rules as to
when this is allowed.
Winner notification will be performed through e-mail.
(Net.Commerce contains an internal messaging capability that
may be retained in addition to standard e-mail. This will be
evaluated during detailed design.) Notification is sent to
winners and to the seller. Notification will not be sent to
losers.
The tutorial is static HTML with "previous" and "next"
links that link a user to each of the topics. IBM's estimate
is based on the development of 20 pages.
Registration verification and profile modification will
be implemented as described in the Technical Solutions section
of the 0XxxXxxx.xxx Phase 0 Solution Design Document.
Sellers will have the ability to save information used
repetitively. The specific fields to be saved will be defined
during Detailed Solution Design.
The large seller maintenance tool will be based on the
IBM Mass Import, Catalog Architect or another existing asset to
support the manual scheduling of auctions as well as purchasing
of premium services for specific items.
The ticker and clock will open in their own browser
window. They will utilize automated client pull technology for
synchronization of current server information.
The seller interface used by public sellers will be web
based and allow addition or maintenance of one product/auction
at a time.
The ability to order appraisal services or accept current
ratings from eBay has not been included in this estimate.
TESTING ASSUMPTIONS
Target Testing Platforms: Operating Systems: Win '95 -- Full
function testing, Mac OS 8 -- Regression testing only;
Browsers: Netscape 3.0 and 4.x, Microsoft Internet Explorer 3.03
and 4.x, AOL 3.0 and 4.0-Regression testing only.
All code will have been Unit Tested and executed on the
minimum browser platforms before the start of testing.
All content will have been reviewed and approved by 2TM before
the start of testing.
All content will have been incorporated into the Web Site
before the start of testing.
Testing will take place on the development server provided by
2TM.
Testing will be conducted Monday through Friday during normal
business hours within IBM's Atlanta facility or another of IBM's
choosing.
2TM PERSONNEL
2TM personnel who will be assigned to this project will
have the technical skills necessary to participate in the Web
Application development effort.
IBM AND SUBCONTRACTOR PERSONNEL
IBM will provide services under this Statement of Work
during normal business hours, 9:00 am to 5:00 pm Monday through
Friday, except holidays.
IBM may elect to use subcontractor personnel to perform a
portion of the proposed work. If IBM plans to use a
subcontractor for any portion of the proposed work, 2TheMart
will be informed in advance.
OTHER
Services for follow-on support are not included in this
Agreement. IBM would be pleased to respond to 2TM for the
addition of these services.
Hosting services are not included as part of this
Statement of Work.
2TM is responsible for the purchase and licensing of all
third party software. Any associated costs (i.e., licensing
fees, etc.) with third party software are not included in this
estimate.
2.3 IBM RESPONSIBILITIES
2.3.1 PROJECT MANAGEMENT
TASK DESCRIPTION: IBM will provide project management for the IBM
Responsibilities in this Statement of Work.
The objective of this task is to establish a framework for project
communications, reporting, procedural and contractual activity. The
IBM Project Manager will be responsible for this task. The
following subtasks will be performed:
1. Project Planning
- Review this Agreement and the contractual
responsibilities of both parties with the 2TM Project Manager.
- Prepare a detailed Project Plan which identifies and
assigns tasks, major milestones for the efforts of the project
team, the estimated dates on which they are estimated to occur
and indications of critical path.
- Coordinate the establishment of the project environment.
- Develop a change control plan.
- Develop a status reporting plan.
2. Project Tracking and Reporting
- Measure, track and evaluate progress against the Project Plan.
- Resolve deviations from the Project Plan with the 2TM Project Manager.
- Review project tasks, schedules, and resources and make
changes or additions, as appropriate.
- Conduct regularly scheduled meetings with the 2TM Project
Manager to review project status.
- Prepare Biweekly Status Reports.
- Administer the Project Change Control Procedure.
- Review and analyze Project Change Requests.
- Review the work products being produced by the project
team prior to delivery to 2TM.
COMPLETION CRITERIA: This task will be complete when the IBM
Responsibilities described in this Statement of Work have been
completed, according to their completion criteria.
DELIVERABLES:
1. Biweekly Status Reports
2. Project Plan
2.3.2 FINAL DETAILED SOLUTION DESIGN
TASK DESCRIPTION: The objective of this task is to refine the
0XxxXxxx.xxx Phase 0 Solution Design Document and prepare the final
Detailed Design, as well as to obtain 2TM's authorization prior to
proceeding with production. This task consists of the following
subtasks:
1. Produce the final Detailed Creative Design, which consists of
refined detailed versions of :
- Visual Treatments
- Navigation and Branching Document
- Functional Templates for each screen identified within
the Navigation and Branching Document.
2. Produce the final Detailed Technical Design, consisting of:
- Package Evaluation of the following software components
of the 2TheMart Web Site: Chat, Bulletin Board System (BBS),
Frequently Asked Questions (FAQ), web metrics, reporting tools,
and virus protection
- Programming Architecture
- Database Specification
3. Conduct design review of the Detailed Design Documents and
budget, schedule and Project Plan with 2TM Project Manager. In the
event that the revised requirements impact cost and/or schedule,
document, as required, the changes via the Project's Change Control
Procedure.
COMPLETION CRITERIA: This task will be complete upon written
approval by the 2TM Project Manager of the Detailed Solution
Design, per the approval process described in Appendix C.
DELIVERABLES:
1. Final Detailed Solution Design, consisting of:
- Creative Treatment
- Navigation and Branching Document
- Functional Templates for each screen identified within
the Navigation and Branching Document
2.3.3 GRAPHIC PRODUCTION
TASK DESCRIPTION: The objective of this task is to design, create,
and produce the graphic elements for the 0XxxXxxx.xxx Web Site
based on the approved Final Detailed Solution Design. This task
includes the following subtasks:
1. Confirm aesthetic design to create final production graphics:
2. Design and produce all graphic elements:
- Develop screen layouts.
- Produce graphic elements.
3. Optimize all graphical elements for performance:
- Create cut-guides.
- Apply Web-safe palette to cut graphics.
4. Manage Editorial Content.
COMPLETION CRITERIA: This task will be complete when the graphic
elements of the web site have been completed, delivered to the IBM
Technical Development Team, and approved by 2TM in writing, per the
approval process described in Appendix C.
DELIVERABLES:
1. Processed graphic elements
2. Cut guides
2.3.4 TECHNICAL DEVELOPMENT
TASK DESCRIPTION: The objective of this task is to program and
develop the technical elements for the 0XxxXxxx.xxx Web Site based
on the approved Final Detailed Solution Design. This task includes
the following subtasks:
1. Program and author the functionality, navigation and
interactivity code.
2. Develop and design the backend database infrastructure.
3. Post the Web Application on a staging server for review and
approval from the 2TM project team.
COMPLETION CRITERIA: This task will be complete when the elements
of the web site have been assembled, functionality is implemented,
and the Beta Version of the 0XxxXxxx.xxx Web Site and Test Plan
have been approved by 2TM in writing, per the approval process
described in Appendix C, and approval to proceed to testing is
granted.
DELIVERABLES:
1. Beta Version of the 0XxxXxxx.xxx Web Site
2.3.5 TEST AND QUALITY ASSURANCE
TASK DESCRIPTION: The objective of this task is to test the
0XxxXxxx.xxx Web Site's user interface, navigation and technical
functionality. This task includes of the following subtasks:
1. Develop Test Plan
2. Test the Beta Version for functionality and navigation:
- Functional testing to include validation of logic and
navigation.
3. Refine programming and coding based on testing results and
baseline measurements.
4. Complete compatibility testing for the specified platforms.
5. Deliver and install the Tested Version of the 0XxxXxxx.xxx Web
Site in the 2TM production environment.
6. Complete final regression testing in the 2TM production
environment.
COMPLETION CRITERIA: This task will be complete upon written
approval by the 2TM Project Manager of the Final Tested Version of
the 0XxxXxxx.xxx Web Site, per the approval process described in
Appendix C.
DELIVERABLES:
1. Final Tested Version of the 0XxxXxxx.xxx Web Site
2.4 2TM RESPONSIBILITIES
The responsibilities listed in this section are in addition to
those responsibilities specified in the Agreement and are to be
provided at no charge to IBM. IBM's performance is predicated upon
the following responsibilities being fulfilled by 2TM.
2.4.1 2TM PROJECT MANAGER
Prior to the start of this Statement of Work under the Agreement,
2TM will designate a person, called the 2TM Project Manager, to
whom all IBM communications will be addressed and who has the
authority to act for 2TM in all aspects of the contract. The
responsibilities of the 2TM Project Manager include:
1. Serve as the interface between the IBM project team and all 2TM
departments participating in this project.
2. With the IBM Project Manager, administer Project Change Control
in accordance with Appendix B. "Project Change Control Procedure".
3. Participate in all project status meetings either in person or
by phone.
4. Obtain and provide information, data, decisions and approvals,
in a timely manner in accordance with Project Plan and Appendix C.
"Approval Process for Project Deliverables"
5. Resolve deviations from Project Plans which may be caused by 2TM.
6. Help resolve project issues and escalate issues within the 2TM
organization, as necessary.
2.4.2DEFINING EVENTS AND INFORMATION FOR THE 0XXXXXXX.XXX WEB SITE
2TM assumes all responsibilities for defining the events and the
information related to any events to be presented on the
0XxxXxxx.xxx Web Site.
2.4.3 COPYRIGHT CLEARANCE AND USAGE AGREEMENTS
2TM assumes all responsibilities for the electronic copyright
clearance and usage agreements for any and all content to be loaded
on the 0XxxXxxx.xxx Web Site.
2.5 DELIVERABLE MATERIALS
The following deliverables are classified as Type II Materials, as
defined in the IBM Customer Agreement, and will be delivered to 2TM
under this Statement of Work. These are defined in Appendix D.
"Deliverable Guidelines"
- Monthly Status Report
- Project Plan
- Final Detailed Solution Design
- Processed Graphic Elements
- Cut Guides
- Beta Version of the 0XxxXxxx.xxx Web Site
- Final Tested Version of the 0XxxXxxx.xxx Web Site
Type II Materials are those, created during the Service performance
period or otherwise (such as those that preexist the Service), in
which IBM or third parties have all right, title, and interest
(including ownership of copyright). IBM will deliver one copy of
the specified Materials to 2TM. IBM grants you an irrevocable,
nonexclusive, worldwide, paid-up license to use, execute,
reproduce, display, perform and distribute, within your Enterprise
only, copies of Type II Materials.
2.6 COMPLETION CRITERIA
IBM shall have fulfilled its obligations under this Statement of
Work of this Agreement, when any one of the following first occurs:
- IBM accomplishes the tasks described in "IBM
Responsibilities", including delivery to 2TM of the materials
listed in "Deliverable Materials".
- IBM provides the number of hours for services specified
in "Charges" or in any subsequent Change Authorization.
- 2TM or IBM terminates the Project in accordance with the
provisions of the Agreement.
Additional agreements will be required for any maintenance and
continued relationship beyond the period of performance of this
Agreement.
2.7 ESTIMATED SCHEDULE
The services will be performed during the period specified in the
Statement of Work for Project Support Services (Custom Services)
found in Appendix E. "Signature Document "
The following high-level estimated project schedule is included:
------------
Task Name
2THM PRODUCTION PLAN Qtr 2, 1999 Qtr3, 1999
Project Management M1 M2 M3 M4 M5 M6
Phase 2 - Final Detailed
Design xxxxxxxxxxxxxxxxxxxxxxxxxxx
Detailed Creative
Design xxxxxxxxxxxxxxxxxxxxxxxxxxx
Package Evaluation xxxxxxxxxxxxxxxxx
Detailed Technical
Design xx
Phase 3 - Production and
Technical Development xxxxxxxxxxxxxxxxxxxxxxx
Technical Development xxxxxxxxxxxxxxxxxx
Creative Development xxxxxxxxxxxxx
Phase 4 - Testing and
Quality Assurance xxxxxxxxxxxxxxx
Implementation & Delivery xxxxxx
---------
2.8 Charges
IBM will provide an estimated 9986 hours of services at an hourly
rate of $200 and scheduled service charges of $1,997,200.00, plus a
1% Administration Fee.
In addition, 2TM will reimburse IBM for the actual travel and
living expenses incurred in providing these services, currently
estimated at 2%.
IBM will be pre-billed 0XxxXxxx.xxx monthly for estimated service
hours. Actual travel and living expenses used during the previous
month will be invoiced to 0XxxXxxx.xxx monthly. These invoices
will be payable upon receipt.
The final invoice will be held until all SOW work is completed.
And, 2TheMart may hold IBM's final invoice for this SOW for an
additional 30 days upon receipt.
The target delivery date for the 0XxxXxxx.xxx Web Site is currently
10/8/99. This is the date when the 2TM production servers will be
at the hosting site with the application code loaded and running.
In the event that IBM delivers the 0XxxXxxx.xxx Web Site system per
the completion criteria prior to the agreed-to target date, 2TM
agrees to pay IBM an early completion bonus based on the following
delivery dates:
Number of Days Total Bonus
Delivered Early Amount
15 or more $100,000
7-14 $ 50,000
1-6 $ 25,000
In the event that IBM delivers the 0XxxXxxx.xxx Web Site system
after the agreed-to target date, IBM agrees to deduct from amounts
owed by 2TM, a late delivery penalty based on the following
delivery dates:
Number of Days Total Bonus
Delivered Late Amount
15 or more $100,000
7-14 $ 50,000
1-6 $ 25,000
IBM and 2TM agree that the late delivery penalty listed above is
2TM's sole and exclusive remedy, and IBM's exclusive liability, for
any late delivery of the 0XxxXxxx.xxx Web Site under this Statement
of Work. This late delivery penalty shall not apply in the case of
delays due to: (i) the availability of system hardware or software,
or (ii) the readiness of the hosting site. This late delivery
penalty shall also not apply in the case of delays caused by: (i)
failures of the key assumptions stated in this Statement of Work,
or (ii) 2TM's failure to meet its responsibilities as stated in
this Statement of Work or the Agreement. If delays in the schedule
are caused by 2TM (e.g., failure to staff the project
appropriately, delays by 2TM of critical decisions), Project Change
Control may be utilized to change the target date and revise any
applicable bonuses or
penalties.
2.9 YEAR 2000
"Year 2000 Ready" means that the IBM Product or deliverable when
used in accordance with IBM associated documentation, is capable of
correctly processing, providing and/or receiving date data within
and between the twentieth and twenty-first centuries, provided that
all products (for example, hardware, software, and firmware) used
with the IBM Product or deliverable properly exchange accurate date
data with it.
A specification for 0XxxXxxx.xxx Web Site code (Type II Material)
developed by IBM as a part of this engagement provides that such
code will be Year 2000 ready. The 0XxxXxxx.xxx Web Site code, on
the date it is delivered, will perform to this specification.
However, IBM is not providing any Year 2000 services under this
Statement of Work. IBM Product Specifications specify the Year
2000 readiness of the IBM Products. IBM does not make any
representations regarding the Year 2000 readiness of the non-IBM
Products.
Under the terms of this Statement of Work we are not responsible
for 1) your products, 2) a third party's products (including
products you license from our subcontractors) or 3) IBM's
previously installed Products, ("Other Products") to correctly
process or properly exchange accurate date data with the Products
or deliverables we provide. We will be relieved of our obligations
under this Statement of Work due to the inability of such Other
Products to correctly process or properly exchange accurate date
data with the Products or deliverables we provide to you. You
acknowledge that it is your responsibility to assess your current
systems and take appropriate action to migrate to Year 2000 ready
systems.
2.10 REQUIRED CONSENTS
2TM will promptly obtain and provide to IBM all Required Consents
necessary for IBM to provide the Services described in this
Statement of Work. A Required Consent means any consents or
approvals required to give IBM and IBM subcontractors the right or
license to access, use and/or modify (including creating
derivative works) the hardware, software, firmware and other
products that 2TM uses or will use, without infringing the
ownership or license rights (including patent and copyright) of the
providers or owners of such products.
2TM will indemnify, defend and hold IBM, IBM affiliates and
subcontractors harmless from and against any and all claims,
losses, liabilities and damages (including reasonable attorneys'
fees and costs) arising from or in connection with any claims
(including patent and copyright infringement) made against IBM,
alleged to have occurred as a result of 0XxxXxxx.xxx's failure to
provide any Required Consents.
IBM will be relieved of the performance of any obligations that may
be affected by 0XxxXxxx.xxx's failure to promptly obtain and
provide any Required Consents to IBM.
2.11 LAWS, REGULATIONS AND STATUTES
2TM is responsible for the identification and interpretation of any
applicable laws, regulations, and statutes that affect the 2TM
applications to which IBM will have access during this project. It
is the responsibility of 2TM to ensure that the applications meet
the requirements of those laws, regulations, and statutes.
2.12 SERVICES WARRANTY
For each IBM Service, IBM warrants that we will perform it: (1) in
a workmanlike manner, and (2) according to its current description
(including any completion criteria) contained in this Statement of
Work. If 2TM discovers, within a sixty (60) day period after the
date this Statement of Work ends, that a Service provided by IBM is
not as warranted, 2TM shall notify IBM in writing of the specific
deficiency, and IBM shall promptly make reasonable efforts to
correct the deficiency at its own expense. If IBM is unable to
correct the deficiency, then 2TM's sole and exclusive remedy, and
IBM's exclusive liability under this warranty, will be to refund
the amount 2TM paid for that part of the Services. This warranty
is subject to the provisions stated in Part 2 of the Agreement.
2.13 SPECIAL TERMS & CONDITIONS
Subject to the terms of the Agreement, IBM's Interactive Media
Center in Atlanta agrees that, for a period of ninety (90) days
after the date on which IBM gives 2TM the Final Tested Version of
the 0XxxXxxx.xxx Web Site per the completion criteria of Task
2.3.5, entitled Test and Quality Assurance, it will not re-license
the custom application code for the 0XxxXxxx.xxx Web Site that was
developed for 2TM under this Statement of Work (excluding any
pre-existing material) by implementing the code in a production
environment for the following listed companies:
1. EBay
2. Amazon
3. Yahoo Auctions
4. Lycos Auctions
5. Excite Auctions
Nothing contained in this provision shall limit IBM's Interactive
Media Center in Atlanta from: (i) independently developing, or
using residual ideas, concepts, know-how and techniques to develop,
similar application code for itself or any third party, (ii)
providing products or services to others who compete with 2TM, or
(iii) assigning or re-assigning its employees in any way it may
choose. If the Statement of Work is terminated prior to the
successful delivery of the Final Tested Version, this provision
will also be terminated.
APPENDIX A. EXCLUDED FUNCTIONALITY
The following list defines items within the 0XxxXxxx.xxx Phase 0
Solution Design Document which are not part of this Statement of Work:
1. Specific functions, as defined in the Phase 0 Solution Design
Document:
a. 2TheMart Store
b. Live user-to-user chat
c. Automatically generated customer service live video feed
d. Enhanced search capability, such as synonym search
e. Automated system status reporting
f. Pager Notification
g. Toolkit
h. Chat-like customer service capability; however, a link will
be provided to a 2TM-provided customer service capability. Any
other integration of such capability into the web site is not
part of this scope.
i. Cybercast and related material; however, a placeholder for
link to cybercast area will be made.
j. The ability to order appraisal services or accept current
ratings from eBay.
2. All costs and services for third-party software.
3. Training
4. Focus Group Facilitation and Usability Testing
5. Post-production Support and Maintenance
6. Hosting Services
7. Initiatives that require information design support, such as
marketing or branding efforts.
APPENDIX B. PROJECT CHANGE CONTROL PROCEDURE
The following provides the detailed process to follow if a change
to this Statement of Work of this Agreement is required.
A Project Change Request (PCR) will be the vehicle for
communicating change. The PCR must describe the change, the
rationale for the change and the effect the change will have on
the project in terms of IBM-provided estimates (scope, hours and
schedule).
The designated Project Manager of the requesting party will
review the proposed change and determine whether to submit the
request to the other party.
Both Project Managers will review the proposed change and
approve it for further investigation or reject it. IBM will
specify any charges for such investigation. If the
investigation is authorized, the Project Managers will sign the
PCR which will constitute approval for the investigation
charges. IBM will invoice 2TM for any such charges. The
investigation will determine the effect that the implementation
of the PCR will have on price, schedule and other terms and
conditions of the Agreement.
A written Change Authorization and/or Project Change Request
(PCR) must be signed by both parties to authorize implementation
of the investigated changes.
APPENDIX C. APPROVAL PROCESS FOR PROJECT DELIVERABLES
IBM and 2TM acknowledge that one of the keys to success in this
project is a working relationship that respects the strengths,
abilities and responsibilities of each company. Therefore, the
approval process for materials delivered by this work should
fundamentally focus attention on whether or not IBM and 2TM are
jointly meeting the overall project requirements. Therefore, for
each formal deliverable from IBM to 2TM under this Statement of
Work, the process will be:
The IBM Project Manager will deliver the materials to 2TM
designated Project Manager.
2TM Project Manager will arrange for the proper personnel in
the 2TM organization to review the materials. He/she will then
consolidate all feedback in written form back to IBM's Project
Manager.
The feedback should contain either a letter of approval or a
letter of disapproval. In the case of disapproval, the feedback
should describe the specific instances where the material does
not meet the 2TM requirements. For each instance of
disapproval, 2TM must specify the criteria required to gain
approval.
The feedback to IBM should be complete within three (3)
business days of receiving the materials.
The IBM Project Manager will specify the plans to correct each
disapproval instance in writing to 2TM.
IBM will make corrections to the deliverables to 2TM approval
criteria. If, in the judgment of either IBM's or 2TM's Project
Manager, the changes required are beyond the scope of the
original Statement of Work or extensive enough to warrant, the
changes will be handled using the Project Change Control
Procedure in Appendix B.
APPENDIX D. DELIVERABLE GUIDELINES
D.1 BIWEEKLY STATUS REPORT
PURPOSE: IBM will provide Monthly Status Reports advising the 2TM
Project Manager of the progress and status of the IBM activities.
The report will outline the IBM activities and describe the status
of tasks worked on during that period. Significant
accomplishments, milestones, and problems will be identified.
CONTENT: The report will consist of the following, as appropriate:
- Activities performed during the during the reporting period.
- Activities planned for the next reporting period.
- Hours summary
* Hours originally estimated
* Hours expended during this reporting period
* Hours expended to date
* Estimated remaining hours
- Project change control summary
- Problems, concerns, and recommendations
- Other items of importance
D.2 PROJECT PLAN
PURPOSE: IBM will provide a Project Plan advising the 2TM Project
Manager of the planned IBM activities, budget estimates and
schedule with milestones.
CONTENT: The plan will consist of the following, as appropriate:
- Activities planned - high level description of major tasks and
milestones with identification of appropriate deliverables and
planned review cycle.
- Budget Estimates - estimate of budgeted hours for each high
level task.
- Schedule - schedule for each high level task with associated
milestones and deliverables
D.3 FINAL DETAILED SOLUTION DESIGN
PURPOSE: IBM will provide a Final Detailed Solution Design which
will incorporate revisions from the 0XxxXxxx.xxx Phase 0 Solution
Design Document to reach an agreement on the visual, navigational
and technical design requirements of the 0XxxXxxx.xxx Web Site.
CONTENT: The document will consist up to 30 pages of the
following, as appropriate:
- Creative Treatment - One high level design study based on the
studies from the 0XxxXxxx.xxx Phase 0 Solution Design Document
with requested revisions and enhancements.
- High Level Navigation and Branching Document depicting
navigational flow. (If revised from the Phase 0 Solution Design
Document)
- Functional Templates that define the general location and
function of major screen elements for each screen defined within
the Branching Document.
D.4 PROCESSED GRAPHICAL ELEMENTS
PURPOSE: IBM will provide processed graphic elements to be
incorporated into the final tested version of the 0XxxXxxx.xxx Web
Site.
CONTENT: The processed graphic elements contain all the final
screen elements. These are either .GIF or .JPG type files dithered
down to a web safe palette.
D.5 CUT GUIDES
PURPOSE: IBM will provide graphic cut guides to 2TM as a guideline
for any future graphic or programming changes to the 0XxxXxxx.xxx
Web Site.
CONTENT: The graphic cut guides consist of a series of diagrams
detailing the on-screen coordinates of the processed graphic
elements.
D.6 BETA VERSION OF 0XXXXXXX.XXX WEB SITE
PURPOSE: IBM will provide a Beta Version of the 0XxxXxxx.xxx Web
Site for the IBM testing department and the 2TM project team to
test the application.
CONTENT: The Beta Version of the 0XxxXxxx.xxx Web Site will
consist of the following, as appropriate:
- Beta Version of the Web Application hosted on an IBM staging
server with most of the functionality of the application intact.
D.7 FINAL TESTED VERSION OF THE 0XXXXXXX.XXX WEB SITE
PURPOSE: IBM will provide the final, tested 0XxxXxxx.xxx Web Site
to the appropriate hosting service to be selected by the 2TM
project team.
CONTENT: The final, tested 0XxxXxxx.xxx Web Site will consist of
the following, as appropriate:
- All graphics, code and databases which make up the final,
tested 0XxxXxxx.xxx Web Site
IBM
Appendix E. Signature Document
CUSTOMER AGREEMENT
STATEMENT OF WORK FOR PROJECT SUPPORT SERVICES
CUSTOM SERVICES
This document is a Statement of Work to either the IBM Customer
Agreement or the IBM Agreement for Services. If used with the IBM
Agreement for Services, no machines or licensed program products
may be acquired under this Statement Of Work. Such items are
available only under the terms of 1) the IBM Customer Agreement (or
any equivalent agreement signed by both of us) or 2) the applicable
third-party agreement.
Scope of Services, Completion Criteria, Charges, and other
applicable terms:
See Statement of Work in attached proposal dated May 28, 1999,
section Statement of Work, entitled "0XxxXxxx.xxx Web Site".
Each of us agrees that the complete agreement between us about
these Services will consist of 1) this Statement of Work and 2) the
IBM Customer Agreement or IBM Agreement for Services, as
applicable, (or any equivalent agreement signed by both of us).
Agreed to: 0XxxXxxx.xxx Agreed to: International
Business Machines
By /s/Xxxxxxx X. Xxxxxxxxxxx /s/Xxxx Xxxx
Authorized Signature Authorized Signature
Name: Xxxxxxx X. Xxxxxxxxxxx Name:Xxxx Xxxx
Date: 5-29-99 Date: 6-1-99
Customer Number: Reference Agreement Number: VGY1816
Customer Address: IBM Office Number:
Customer "Bill To" Address, if different:
IBM Office Address:
Project Name or Identifier: 0XxxXxxx.xxx Web Site
IBM Service Address: 000 Xxxxx Xxxx.
Costa Mesa, CA 92626
Estimated Start Date: May 3, 1999
Estimated End Date: October 08, 1999
