EXHIBIT 10.18
CONFIDENTIAL
Confidential treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted items, has been separately filed with the Securities and
Exchange Commission.
AMENDMENT NO. 1 TO
SUBSCRIPTION SERVICES AGREEMENT
This Amendment No. 1 to Subscription Services Agreement ("Amendment") is entered
into as of September 15, 2000 and amends that certain Subscription and Services
Agreement ("Agreement") between Compaq Computer Corporation ("Client") and
xxXxxxx.xxx, Inc. ("pcOrder") dated June 16, 1999.
Now, therefore, the parties hereby agree as follows:
1. Sections 4.1 and 4.2. Sections 4.1 and 4.2 of the Agreement are hereby
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amended and restated in their entirety to provide as follows:
4.1 Client shall pay to pcOrder within forty five (45) days of each of the
Effective Date and [*] thereof [*] as the Annual Subscription License Fee
for the Software. Client shall pay to pcOrder within forty five (45) days
of [*] of the Effective Date as the Annual Subscription Fee for the
Software, (a) [*] if Client makes the Configuration Only Election pursuant
to Section 14.7 on or before [*], or (b) [*] if Client does not make the
Configuration Only Election on or before [*].
4.2 If this Agreement is extended for a first Renewal Term pursuant to Section
14.1, Client shall pay to pcOrder within forty five (45) days of the [*]
of the Effective Date as the Annual Subscription License Fee for the
Software, (a) [*] if Client makes the Configuration Only Election pursuant
to Section 14.7 on or before [*], or (b) [*] if Client does not make the
Configuration Only Election on or before [*]. If this Agreement is
extended for a second Renewal Term pursuant to Section 14.1, Client shall
pay to pcOrder within forty five (45) days of the [*] of the Effective
Date as the Annual Subscription License Fee for the Software, (a) [*] if
Client makes the Configuration Only Election pursuant to Section 14.7 on
or before [*] or (b) [*] if Client does not make the Configuration Only
Election on or before [*]. Thereafter, Client may extend this Agreement by
paying to pcOrder within forty five (45) days of each subsequent
anniversary of the Effective Date an amount that is equal to 100.0 % plus
or minus the U.S. Consumer Price Index percentage for the previous
calendar year times the prior year's Annual Subscription License Fee for
the Software, but in any event the amount paid to pcOrder for such Renewal
Term shall not be more than 110.0% of the prior year's Annual Subscription
License Fee for the Software.
2. Section 14.2.7. A new Section 14.2.7 is added to the Agreement that provides
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in full as follows:
14.2.7 By Client for convenience effective upon the [*] of the Effective Date,
by providing written notice to pcOrder on or before [*] of its election
to terminate the Agreement as of the [*]. It shall be a condition
precedent to the effectiveness of such election that Customer pays to
pcOrder on or prior to [*] all undisputed outstanding invoices that are
received by Customer by [*].
3. Section 14.7. A new Section 14.7 is added to the Agreement that provides in
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full as follows:
14.7 Client shall have the right to terminate its license to all Software
licensed under this Agreement, except the Configuration Software, by
providing written notice of such election (the "Configuration Only
Election") to pcOrder by the following dates: by [*] for the election to
be effective as of the [*] of the Effective Date and for all periods
following; by [*] for the election to be effective as of the [*] of the
Effective Date and for all periods following, if any; or by [*] for the
election to be effective as of the [*] of the Effective Date and for all
periods following, if any. If Client makes the Configuration Only
Election, the provisions of Section 14.5 of this Agreement shall apply to
all Software, except the Configuration Software, effective as of the
effective date of the election indicated in the previous sentence. For
the purposes hereof, "Configuration Software" shall mean the
CONFIDENTIAL
Server Software identified as pcOrder Backbone 3.2, CIM 2.0 (including
the SBRave maintenance environment) and SalesBUILDER in Attachment E.
4. Payment of Year 2 Annual Subscription License Fee. The parties acknowledge
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that Client has deferred payment of the [*] Annual Subscription License Fee
for Year 2 pending the negotiation of this Amendment. pcOrder agrees that
that payment shall be considered to be timely paid under the Agreement if it
is received by pcOrder by September 22, 2000.
5. Outstanding Invoices. Client hereby agrees that it will pay the undisputed
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outstanding invoices for consulting issued through July 31, 2000 totaling [*]
by September 15, 2000 (other than invoice #COM032CON244 for [*]), net of a
[*] credit asserted by Client (which is under investigation by pcOrder as of
the date of this Amendment).
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CONFIDENTIAL
6. May 1, 2000 Notice Letter. Client hereby revokes and rescinds its notice
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letter to pcOrder dated May 1, 2000 regarding the acceptance of the March
deliverables of the eStation 3.2 product and hereby accepts delivery of all
deliverables specified in the letter dated November 21, 1999 from pcOrder to
Client. Notwithstanding the foregoing, pcOrder hereby agrees that it will
use reasonable efforts, without charge to Client, to assist Client in the
implementation of cookie-based session persistence (i.e., cookie stickies)
with Cisco Local Director version 3.3 or higher to support sites that run
Software.
7. Schedule 1. Schedule 1 to the Agreement is amended as set forth in the
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attached Amendment No. 1 to Schedule 1.
8. Schedule 2. Schedule 2 to the Agreement is amended as set forth in the
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attached Amendment No. 1 to Schedule 2.
9. Schedule 3. Schedule 3 to the Agreement is amended as set forth in the
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attached Amendment No. 1 to Schedule 3.
10. Full Force and Effect. The Agreement, as amended by this Amendment, remains
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in full force and effect.
By signing below, each party acknowledges that it has read, understands, and
agrees to the terms of this Amendment:
xxXxxxx.xxx, Inc.: Compaq Computer Corporation:
/s/ Xxxxxxxxx Xxxxx /s/ X.X. Xxxxxx
----------------------------------- ------------------------------------
By: Signature By: Signature
Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxx
----------------------------------- ------------------------------------
Name Name
President Sr. VP & Chief Information Officer
---------------------------------- ------------------------------------
Title Title
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CONFIDENTIAL
AMENDMENT NO. 1 TO
SCHEDULE 1
PROFESSIONAL CONSULTING SERVICES SCHEDULE
The Schedule 1 Professional Consulting Services Schedule ("Schedule") to the
Subscription Services Agreement between xxXxxxx.xxx, Inc. ("pcOrder") and Compaq
Computer Corporation ("Client") dated June 16, 1999 is hereby amended effective
September 15, 2000 as set forth in this Amendment No. 1 ("Amendment").
1. Section 3.2. A new Section 3.2 is added which provides in full as follows:
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3.2 pcOrder shall make available the services of developers and modelers
for the second and third years of the Agreement at the following hourly
rates:
Type of Service Description of Services Year 2 Year 3
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Developer Classified as a "developer" by pcOrder or [*] [*]
Trilogy. Primary role and responsibility
within organization is to develop products.
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Senior Developer Classified as a "developer" by pcOrder or [*] [*]
Trilogy. Primary role and responsibility
within organization is to develop products.
Has at least two years of development
experience with pcOrder or Trilogy products.
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Senior CIM2 Modeler Primary architect for design of CIM 2.0/CML and See Schedule 2 [*]
responsible for implementation of CIM 2.0/CML.
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CIM2 Modeler Works under the direction of Sr. CIM 2 Modeler See Schedule 2 [*]
in the implementation of CIM 2.0/CML.
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SystemBuilder Modeler Responsible for implementation of SystemBuilder See Schedule 2 [*]
configuration rules in the SystemBuilder models.
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2. Full Force and Effect. The Schedule, as amended by this Amendment, remains
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in full force and effect.
By signing below, each party acknowledges that it has read, understands, and
agrees to the terms of this Amendment:
xxXxxxx.xxx, Inc.: Compaq Computer Corporation:
/s/ Xxxxxxxxx Xxxxx /s/ X.X. Xxxxxx
----------------------------------- ------------------------------------
By: Signature By: Signature
Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxx
----------------------------------- ------------------------------------
Name Name
President Sr. VP & Chief Information Officer
---------------------------------- ------------------------------------
Title Title
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CONFIDENTIAL
AMENDMENT NO. 1 TO
SCHEDULE 2
DATA MAINTENANCE SERVICES SCHEDULE
The Schedule 2 Data Maintenance Services Schedule ("Schedule") to the
Subscription Services Agreement between xxXxxxx.xxx, Inc. ("pcOrder") and Compaq
Computer Corporation ("Client") dated June 16, 1999 is hereby amended effective
September 15, 2000 as set forth in this Amendment No. 1 ("Amendment").
1. Section 6. Section 6 of the Schedule is hereby amended by deleting Sections
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6.1 and 6.2 thereof and replacing it with the following:
Client shall pay to pcOrder Annual Data Maintenance Fees according to the
following schedule: (a) [*] on the Effective Date for the first twelve (12)
months of Data Maintenance Services (which shall include Data Maintenance
Services for High Volume, High End, and 3rd Party SKUs); and (b) for the
second and third twelve (12) months of Data Maintenance Services, the fees in
accordance with the following table:
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Service Year 2 Rate Year 3 Rate Payment Schedule
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Configuration Services [*] for services Time and materials by Year 2 fees due on September
described in mutually agreed AO. See 22, 2000. Year 3 fees
Section 8.1 Schedule 1 for rates. payable in accordance with
applicable AOs.
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Class/Categorization See Section 8.3 See Section 8.3 Monthly in arrears.
and Population
Services (collectively
"Data Compilation
Services")
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2. Section 8. A new Section 8 is added to the Schedule that provides in full
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as follows:
8. SERVICE LEVELS
8.1 The service levels set forth in Sections 2.1.2., 3.1.2. and 4.1.2. of
this Schedule terminate effective June 16, 2000. For the period from July 16,
2000 through July 16, 2001, pcOrder shall provide Client with up to [*] full-
time dedicated personnel, each working up to 40 hours per week (with up to
[*] such personnel working up to 50 hours per week), to provide configuration
services, of which up to [*] personnel shall provide CIM 2.0 configuration
services (including project administration) and up to [*] personnel shall
provide SystemBuilder configuration services; provided, however that until
October 30, 2000 pcOrder shall only be required to provide Client with at
least [*] such full-time dedicated personnel. If Client authorizes in excess
of [*] full-time personnel to perform CIM 2.0 configuration services or in
excess of [*] full-time personnel to perform SystemBuilder configuration
services, it shall pay for such services at the rate of [*] per month for
each such additional person. Upon the request of Client for additional
personnel, pcOrder shall use reasonable efforts to staff such request within
45 days of such request. pcOrder shall give Client 30 days notice prior to
removing any personnel providing configuration services to Client from the
Client account, unless such notice is not possible because of the termination
of such person's employment, illness or other reasons beyond pcOrder's
control. In the event that personnel new to the Client account commence
providing configuration services, pcOrder shall count each such personnel as
one-half of a full-time employee for at least two weeks to account for ramp-
up time.
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CONFIDENTIAL
8.2 For any period after June 16, 2001, configuration services shall be
performed on a time and materials basis by assignment order mutually agreed
between the parties.
8.3 On or after June 16, 2000, pcOrder shall provide Data Compilation
Services for the Client Products and 3rd Party SKUs requested by Client, up
to an aggregate of [*] per month, upon [*] business days of receipt of the
request. Client shall pay for Data Compilation Services based on the number
of Client Products and 3rd Party SKUs requested per month at a cost of [*]
per Client Product or 3rd Party SKU requested, subject to a minimum aggregate
cost of [*] per month. Each unique product identifier supplied by Client to
pcOrder shall be counted as one unique Client Product or 3rd Party SKU, even
if such identifier does not represent a valid product or if Client has
already provided a different identifier for such product. For all purposes of
this Section 8.3, a Bundled Product shall be counted as 3 Client Products. A
"Bundled Product" means a customized product that consists of multiple
manufacturer SKUs (including Client and/or third party) incorporated into a
single product, including, but not limited to, CTO and BTO products. Client
shall use reasonable efforts to identify products as Bundled Products when
making a request to pcOrder. Either party may terminate the provisions of
this Section 8.3 upon [*]; provided that Client's obligation to pay for all
requests made prior to the date of termination shall survive. Notwithstanding
the foregoing, the termination of this Section 8.3 shall not affect Client's
right to continue using the content provided under this Schedule during the
term of this Agreement.
3. Additional Content Services. pcOrder hereby agrees that following the
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execution of this Amendment it shall negotiate with Client in good faith
regarding the terms and pricing of providing additional content and/or
content services to Client, including industry standard catalog, use of
content separate from the Software, and use of content following termination
of the Agreement.
4. Full Force and Effect. The Schedule, as amended by this Amendment, remains
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in full force and effect.
By signing below, each party acknowledges that it has read, understands, and
agrees to the terms of this Amendment:
xxXxxxx.xxx, Inc.: Compaq Computer Corporation:
/s/ Xxxxxxxxx Xxxxx /s/ X.X. Xxxxxx
----------------------------------- ------------------------------------
By: Signature By: Signature
Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxx
----------------------------------- ------------------------------------
Name Name
President Sr. VP & Chief Information Officer
---------------------------------- ------------------------------------
Title Title
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CONFIDENTIAL
AMENDMENT NO. 1 TO
SCHEDULE 3
APPLICATION HOSTING SERVICES SCHEDULE
The Schedule 3 Application Hosting Services Schedule ("Schedule") to the
Subscription Services Agreement between xxXxxxx.xxx, Inc. ("pcOrder") and Compaq
Computer Corporation ("Client") dated June 16, 1999 is hereby amended effective
September 15, 2000 as set forth in this Amendment No. 1 ("Amendment").
1. Section 1. Section 1 of Schedule 3 to the Agreement is hereby amended and
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restated in its entirety to provide as follows:
For the first twelve months following June 16, 1999, the fee for the
Application Hosting Services performed by pcOrder is [*] per year for the
first [*] servers supporting Client at the Hosting Site and an additional fee
of [*] per server per year for each server in addition thereto. For the
twelve month period from June 16, 2000 to June 16, 2001, the fee for the
Application Hosting Services performed by pcOrder is [*] per server per month
for each server in a High Availability Environment. For the twelve month
period from June 16, 2001 to June 16, 2002, the fee for the Application
Hosting Services performed by pcOrder is [*] per server per month for each
server in a High Availability Environment. For the purposes hereof, "High
Availability Environment" shall mean a hosting facility that has raised
floor, redundant power, controlled temperature and air quality, and sensitive
fire suppression systems. In addition, the PESO production farm shall be
deemed to be hosted in a "High Availability Environment" for the purposes of
this Section regardless of where it is actually hosted. For all periods after
June 16, 2000, pcOrder shall xxxx Client for Application Hosting Services
monthly in arrears. The addition of servers to the High Availability
Environment shall require the written authorization of the Vice President of
e-Commerce Development of Client and of the Vice President, Internet Services
of pcOrder.
2. Full Force and Effect. The Schedule, as amended by this Amendment, remains
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in full force and effect.
By signing below, each party acknowledges that it has read, understands, and
agrees to the terms of this Amendment:
xxXxxxx.xxx, Inc.: Compaq Computer Corporation:
/s/ Xxxxxxxxx Xxxxx /s/ X.X. Xxxxxx
----------------------------------- ------------------------------------
By: Signature By: Signature
Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxx
----------------------------------- ------------------------------------
Name Name
President Sr. VP & Chief Information Officer
---------------------------------- ------------------------------------
Title Title
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