Exhibit 10.16
Note: Certain material, indicated by three asterisks (***), has been omitted
from this document pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission. The omitted
material has been filed separately with the Securities and Exchange
Commission.
SOFTWARE LICENSE AND CONSULTING SERVICES AGREEMENT
This Software License and Consulting Services Agreement ("Agreement") is
between Novazen Inc. ("Novazen") and Rocky Mountain Internet ("Rocky Mountain
Internet"). The Terms of this Agreement shall apply to the Program License
granted to Rocky Mountain Internet and to all consulting services provided by
Novazen under this Agreement.
A. DEFINITIONS
A.1 "Program" means the software in object code form, capable of performing
the functions identified in Schedule A as defined at Major Milestone P,
and the media, and Documentation.
A.2 "Documentation" means the user guides and manuals for installation and
use of the Program. Documentation will be provided electronically, in
HTML or similar printable format.
A.3 "Maintenance Release" means a subsequent release of the Program, which
Novazen generally makes available for Program licensees at no
additional license fee other than media and handling charges. A
Maintenance Release shall not include any release, option or future
product that Novazen licenses separately.
A.4 "Designated System" means the Rocky Mountain Internet computer
hardware, software, Rocky Mountain Internet operating system, and Rocky
Mountain Internet customer platforms or functional equivalents
designated in Schedule E.
A.5 "Commencement Date" of the Program License means the earlier of the two
following dates:
(a) the date on which the final functional component is accepted
by Rocky Mountain Internet as set forth in Schedule B-1 (Major
Milestone P)
(b) 30 days after the final component is delivered to Rocky
Mountain Internet as set forth in Schedule B-1 (Major
Milestone M).
A.6 "Intellectual Property" refers to all Intellectual Property now or
later owned by Novazen, including patents, trade secrets, copyrights
and trademarks.
A.7 "Bug" means a Program software, media, or documentation error. Bugs can
be either "material" or "non-material." Material Bugs cause software
functions to not be performed as designed. Non-material Bugs are
cosmetic in nature and do not prevent software functions from
performing as desired.
A.8 "Invoiced Account" means an individual, business, association, company,
or organization that would receive a xxxx, regardless of media, from
the Program. This includes sub-accounts that may be established under a
single major account. For example, The Acme Company may choose to be
the major account while its East Coast, West Coast, and mid-west
offices are established as sub-accounts and invoiced seperately. For
the purposes of this definition, this arrangement equals three (3)
Invoiced Accounts.
A.9 "Functional Upgrade" means a new release of the Program, as specified
in Schedule A, within 12 months from the commencement date.
B. THE SOFTWARE PROGRAM LICENSE
B.1 Rights Granted
(a) Novazen grants to Rocky Mountain Internet a non-exclusive,
perpetual license to use the Program specified under this
Agreement, as follows:
i. to use the Program solely for Rocky Mountain
Internet's operations on the Designated System
consistent with the use as defined in Schedule A
(limitations specified or referenced in this
Agreement, or the Documentation). Rocky Mountain
Internet has the right to use the license for the
fees paid for a maximum of *** Invoiced Accounts.
Additional Invoiced Accounts can only be added for an
additional license fee. Rocky Mountain Internet would
receive most favored customer pricing in establishing
this additional fee. Most favored customer pricing is
defined as the best price for a Novazen Program sold
within the prior six months, exclusive of this
Agreement. If no Novazen Programs have been sold
within that period, the fee will be established
according to the then outstanding Novazen price list.
The purpose of the Invoiced Account cap is to ensure
Novazen's economic rights should Rocky Mountain
Internet be acquired by a major company.
ii. Rocky Mountain Internet may not relicense, rent or
lease the Program or use the Program for third-party
training, commercial time-sharing or service bureau
use.
iii. Rocky Mountain Internet may only transfer the license
to an affiliate or wholly-owned or controlled
subsidiary or parent company by giving written notice
of such transfer to Novazen. The *** Invoiced Account
limit will also apply in the case of a transfer.
a. In the event the new organization (i.e., the
transferee) is an affiliate or wholly-owned or
controlled subsidiary, the new organization has
the right to use the license for the fees paid
for a maximum of 1,000,000 Invoiced Accounts.
Additional Invoice Accounts can only be added
for an additional license fee. The fee will be
established according to most favored customer
pricing. Most favored customer pricing is
defined as the best price for a Novazen Program
sold within the prior six months, exclusive of
this Agreement. If no Novazen Programs have
been sold within that period, the fee will be
established according to the then outstanding
Novazen price list.
b. In the event the new organization (i.e., the
transferee) is a parent company, the new
organization has the right to use the license
for the fees paid for a maximum of *** Invoiced
Accounts. Additional Invoiced Accounts can only
be added for an additional license fee.
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The fee will be established according to the
then outstanding Novazen price list.
iv. to use the Documentation provided with the Program in
support of Rocky Mountain Internet authorized use of
the Program;
v. to copy the Program only for archival or backup
purposes. All titles, trademarks, and copyright and
restricted rights notices shall be reproduced in such
copies;
vi. Rocky Mountain Internet shall not copy or use the
Program (including the documentation) except as
specified in this Agreement.
(b) Rocky Mountain Internet may not cause or permit the reverse
engineering, disassembly or decompilation of the Program.
(c) Novazen shall retain all title, copyright and other property
rights in the Program and its Intellectual Property. Except as
specified herein, Rocky Mountain Internet does not acquire any
rights, express or implied, in the Program or in the software
created pursuant to the Consulting Services Section of this
Agreement, or in the Intellectual Property.
(d) Novazen shall place a copy of the application source code with
the law firm of Lee, Fishman, and Xxxxx in Boulder, Colorado
as escrow agent. The escrow agent shall hold the code for five
years. If, at any time in the five year period, Novazen
declares bankruptcy, or is involuntarily bankrupt, upon notice
from Rocky Mountain Internet, the escrow agent will transfer
the source code to Rocky Mountain Internet. Possession of the
source code does not give Rocky Mountain Internet any rights
superior to those included in this license.
(e) Rocky Mountain Internet may make non-compiled HTML changes to
the Program only as these changes relate to the "look and
feel" of the Program (i.e., cosmetic changes). Novazen neither
warrants nor indemnifies Rocky Mountain Internet against
infringement for any non-compiled HTML changes that Rocky
Mountain Internet makes.
(f) The fee for the purchase of the Program source code is set at
*** should Rocky Mountain Internet choose to purchase the
source code in the future. Rocky Mountain Internet is awarded
the right to purchase the Program source code at any time in
the future subject to the terms of this Agreement.
B.2 Verification.
At Novazen's written request, not more frequently than semi-annually,
Rocky Mountain Internet shall furnish Novazen with a signed certification
verifying that the Program is being used pursuant to the provisions of
this Agreement.
Novazen may audit Rocky Mountain Internet's use of the Program, not more
frequently than semi-annually. Any such audit shall be conducted, with
reasonable advance notice, during regular business hours at Rocky
Mountain Internet's facilities and shall not unreasonably interfere with
Rocky Mountain Internet's business activities.
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This audit will include examination of the online and hardcopy
statistical reports generated by the Program. Novazen agrees that any
additional audit information needed will be presented to Rocky Mountain
Internet in writing for their approval. Novazen shall be responsible for
all costs, both labor and expenses, incurred by Novazen employees in
conducting this audit.
INDEMNITY, WARRANTIES, REMEDIES
B.3 Infringement Indemnity.
Novazen will defend and indemnify Rocky Mountain Internet against a claim
that the Program, or any subsequent modification or Bug-fix performed by
Novazen, infringes a copyright or patent or other intellectual property
right, provided that: (a) Rocky Mountain Internet notifies Novazen in
writing within 30 days of the claim; (b) Novazen has sole control of the
defense and all related settlement negotiations; and (c) Rocky Mountain
Internet provides Novazen with the assistance, information and authority
necessary to perform Novazen obligations under this Section.
If the Program, or any subsequent modification or Bug-fix performed by
Novazen, is held or is believed by Novazen to infringe, Novazen shall
have the option, at its expense, to (a) modify the Program to be
noninfringing; or (b) obtain for Rocky Mountain Internet a license to
continue using the Program, or if options (a) and (b) are not reasonably
available, then (c) Novazen may terminate the license for the infringing
Program and refund the license fees paid for the Program pursuant to
Schedule C. This Section B.3 states Novazen's entire liability and Rocky
Mountain Internet's exclusive remedy for infringement.
B.4 Warranties and Disclaimers
(a) Program Warranty: Novazen warrants for a period of 1 year from
the Commencement Date that the Program will perform the
functions described in Schedule A, subject to B.4(c).
(b) Media Warranty: Novazen warrants that the delivered tapes,
diskettes or other media will be free of defects in materials
and workmanship under normal use for 90 days from the
Commencement Date.
(c) Disclaimers
i. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
ii. The Program, as warranted under this Agreement, is
both Year 2000 and leap year compliant.
iii. Novazen does not warrant that the Program will
operate other than as specified in the Schedules
hereto or that the operation of the Program will be
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uninterrupted or error-free or that the Program will
run, in combination with other programs or inputs
free from problems caused by the year 2000 event.
iv. Rocky Mountain Internet acknowledges that Novazen is
installing the software for the first time in the
Rocky Mountain Internet operations center or in the
Rocky Mountain Internet contracted service bureau
operations center and that Bugs (as defined in A.7)
are common in complex, commercial software.
B.5 Exclusive remedies for any breach of the warranties contained in
Section B.4, above, Rocky Mountain Internet's exclusive remedy, and
Novazen's entire liability, shall be:
(a) For the Software Program
The correction of Program errors that cause breach of the
Program warranty in B.4(a), or if Novazen is unable to make
the Program operate as warranted in B.4(a), Rocky Mountain
Internet shall be entitled to terminate the Program license
and recover the fees paid to Novazen for the Program license,
which are more fully described in Schedule C. Rocky Mountain
Internet acknowledges that all software has Bugs and Novazen
is not required to correct non-material Bugs in the Program.
The determination of whether a Bug exists, whether that Bug is
material or non-material, and the severity of the Bug will be
determined by the Change Management process as set forth in
memorandum NO-0009_v1_MEM.
If Rocky Mountain Internet is entitled to terminate and does
terminate the Program license within 30 days after the
Commencement Date, Rocky Mountain Internet is entitled to a
refund of all software license fees as well as consulting fees
associated with the customization of software for Rocky
Mountain Internet, subject to the terms of Schedule C.
(b) For Media
The replacement of defective media returned within 90 days of
the Commencement Date.
B.6 Limitation of Liability for Any Breach of the License Section of this
Agreement
In no event shall Novazen be liable for any indirect, incidental,
special or consequential damages, or Rocky Mountain Internet's expenses
incurred in installing or operating the Program, damages for Rocky
Mountain Internet's loss of business profits, lost revenue, lost
customers, lost data or lost uses, incurred by Rocky Mountain Internet
or any third party, whether in an action in contract or tort, even if
Novazen has been advised of the possibility of such damages.
Novazen's liability for damages hereunder shall in no event exceed the
amount of fees paid by Rocky Mountain Internet under this Agreement,
with refunds only as set forth in B.5(a) above.
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B.7 The provisions of this Agreement totally allocate the risks between
Novazen and Rocky Mountain Internet. Novazen pricing reflects this
allocation of risk and the limitation of liability specified herein.
C. CONSULTING SERVICES.
C.1 Novazen will provide to Rocky Mountain Internet the Consulting Services
specified in Schedules B and B-1.
C.2 The consulting services shall be performed over the period of time
specified in Schedule B and B-1. Novazen will provide formal, written
notification when each milestone is complete. Each milestone will be
deemed to be complete when Rocky Mountain Internet provides a signed
Agreement that it has been properly satisfied.
C.3 Intellectual Property Created by Consulting Services. Novazen does not
xxxxx Xxxxx Mountain Internet any ownership, security or other interest
in any of the Intellectual Property created by Novazen's consulting
engineers, nor does Novazen xxxxx Xxxxx Mountain Internet any right to
grant a sublicense of any kind to any other party. Rocky Mountain
Internet will have full intellectual property rights to any ideas,
concepts, or software created principally by Rocky Mountain Internet
personnel in connection with their work on non-Program software and
independent of the Consulting Services identified in this Agreement
C.4 Novazen will own all patents, trade secrets, copyrights and trademarks
and other Intellectual Property created by Novazen's consulting
engineers alone or jointly with Rocky Mountain Internet personnel in
connection with Novazen's work in performing its consulting services
with respect to the Program. Rocky Mountain Internet will own all
patents, trade secrets, copyrights, and trademarks and other
intellectual property created principally by Rocky Mountain Internet
personnel in connection with their work on non-Program software and
independent of the Consulting Services identified in this Agreement.
C.5 Rocky Mountain Internet assigns to Novazen all right, title, and
interest in and to all patents, trade secrets, copyrights and
trademarks and other intellectual property created by Rocky Mountain
Internet in connection with Novazen in its work performing its
consulting services with respect to the Program. Rocky Mountain
Internet will have full intellectual property rights to any ideas,
concepts, or software that they introduce, independent of the
Consulting Services identified in this Agreement, for the purpose of
implementing the non-Program software at Rocky Mountain Internet.
C.6 At the other party's request, each party will execute all assignments
and other documents necessary to perfect each party's rights in its
intellectual property, and will otherwise assist Novazen as needed in
perfecting the other party's right in this intellectual property.
C.7 Target Dates. Novazen has set forth a description of Consulting
Services and a "Milestone Chart" in Schedules B and B-1. The "target
dates" in the Milestone Chart are targets only. Should Novazen fail to
complete the services or goals set forth in the
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Milestone Chart by the target date, that failure shall not constitute a
breach of this Agreement.
C.8 Rocky Mountain Internet reserves the right to terminate this Agreement
prior to the conclusion of the Requirements Definition approval phase
(Major Milestone E) should Rocky Mountain Internet conclude that the
requirements as defined by Novazen do not meet their business needs. In
case of such termination, Rocky Mountain Internet is entitled to a
refund of all software license fees as well as consulting fees
associated with the customization of the Program for Rocky Mountain
Internet, subject to the terms in Schedule C. Furthermore, Rocky
Mountain Internet shall own all requirements documentation received to
date.
Novazen and Rocky Mountain Internet agree to make all reasonable
efforts to ensure that all Requirements Definition documents leading to
the fulfillment of Major Milestone E are delivered according to
Schedule B-1.
C.9 Final Delivery Date. Novazen agrees to deliver all functional
components to Rocky Mountain Internet, as per Schedules A, B, and B-1,
no later than April 30, 1999. In the event that Novazen fails to
deliver the final functional component by April 30, 1999,and Novazen is
principally responsible for such delays, Rocky Mountain Internet shall
have the right to terminate this Agreement and therefore is entitled to
a refund of all software license fees as well as consulting fees
associated with the customization of the Program for Rocky Mountain
Internet, subject to the terms in Schedule C. This final delivery date
may be adjusted as specified in section C.10.
C.10 Cooperation. If events that Novazen is not responsible for causes
Novazen delays that cause Novazen to miss a milestone, the dates in the
Milestone Chart (Schedule B-1) shall be adjusted to reflect those
delays. In the event that Novazen is not responsible for delays to the
project that cause Novazen to miss a milestone, Novazen must provide
written notice immediately (within 3 business days) after missing the
milestone. The parties shall meet and discuss the alleged deficiencies
within 2 days of the receipt of notice. If the parties are thereafter
unable to agree whether Rocky Mountain Internet has missed a milestone,
Rocky Mountain Internet has the option of seeking arbitration on any
disputed delay and to continue work under this Agreement until a
decision is reached by the Arbitrator. As described in C.2, Novazen
shall notify Rocky Mountain Internet in writing when each milestone is
completed. All Rocky Mountain Internet challenges or complaints that
Novazen has not met milestone targets must be provided to Novazen in
writing and reviewed and discussed by both parties: for Novazen,
Director of Consulting Services; for Rocky Mountain Internet, Vice
President of Operations. Rocky Mountain Internet must provide such
written notice immediately (within 3 business days) after learning of
the event (an event is defined as the missing of a milestone as
specified on Schedule B-1). The parties shall meet and discuss the
alleged deficiencies within 2 business days of the receipt of notice.
If the parties are thereafter unable to agree whether Novazen has
missed a milestone, or whether Rocky Mountain Internet is entitled to
terminate this agreement, Novazen shall have the option to seek
arbitration and to continue work under this Agreement until a decision
is reached by the Arbitrator.
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C.11 After Rocky Mountain Internet accepts delivery and acknowledges
completion of the tasks in the Milestone Chart by signing off on each
notice that the milestone in Schedule B-1 has been met, Rocky Mountain
Internet's sole remedy for Novazen's failure to meet any of the
requirements of Schedule B-1 for a period of 1 year will be correction
by Novazen of defects in the work performed under this Consulting
Services section of the Agreement. Such defects in the Consulting
Services work must be identified in writing by Rocky Mountain Internet.
During that first year, Novazen will correct material defects (which
are not cosmetic changes) as part of the original price. Rocky Mountain
Internet again acknowledges that all software has Bugs and Novazen is
not required to correct non-material Bugs in the software created
pursuant to the consulting services. After 1 year, Rocky Mountain
Internet must pay the agreed upon maintenance fees for any requested
changes or remediation to correct defects created in the performance of
consulting services.
C.12 NO CONSEQUENTIAL DAMAGES: In no event will Novazen be liable for
damages of any kind arising out of its work under this Consulting
Services section of the Agreement in whole or in part, including (a)
indirect, incidental, special or consequential damages, or (b) Rocky
Mountain Internet's expenses incurred in installing or operating the
software created pursuant to the consulting services, (c) damages for
loss of business profits, lost revenues, costs of employees engaged in
the project or (d) costs otherwise incurred, business interruption,
loss of business information, Rocky Mountain Internet's loss of
customers, or (e) other pecuniary loss incurred by Rocky Mountain
Internet or any third party whether the claim is brought in an action
for contract or tort, even if Novazen has been advised of the
possibility of those damages.
C.13 The provisions of this Agreement totally allocate the risks between
Novazen and Rocky Mountain Internet. Novazen pricing reflects this
allocation of risk and the limitation of liability specified herein.
C.14 Warranties. Novazen disclaims all warranties expressed or implied with
respect to its work under this Consulting Services section of this
Agreement in whole or in part; this disclaimer includes but is not
limited to implied warranties of title, non-infringement,
merchantability, and fitness for any purpose, whether arising by law,
by reason of custom or usage in the trade, or by course of dealing.
C.15 Novazen indemnifies and holds Rocky Mountain Internet harmless from and
against all liability, costs, and expenses for bodily injury, including
death, and property damage resulting from the wrongful or negligent
acts of Novazen employees while present on the RMI site. All Novazen
employees shall follow the rules and regulations established by RMI
while present at RMI facilities.
C.16 Termination. This Consulting Services section of the Agreement will
terminate immediately if Rocky Mountain Internet becomes insolvent,
admits to a general inability to pay its debts, files a petition in
bankruptcy, or is the subject of an involuntary petition in bankruptcy
that is not dismissed within 30 days after its effective filing date.
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D. PAYMENT PROVISIONS FOR THE SOFTWARE LICENSE AND CONSULTING SERVICES.
D.1 Payment. For the Program license and for the Consulting Services
provided under this Software License and Consulting Services Agreement,
Rocky Mountain Internet will pay Novazen in accordance with the terms
and conditions contained in Schedule C hereof. Any amounts payable by
Rocky Mountain Internet hereunder which remain unpaid *** days after
the invoice date shall be subject to a late charge equal to *** per
month from the invoice date until such amount is paid.
D.2 Payment for Consulting Services, as set forth in Schedule C, does not
include any expenses incurred by Novazen consulting engineers during
the performance of consulting services, including, but not limited to,
travel, lodging, and meals. These expenses will be billed separately.
D.3 Taxes. The fees listed in this Agreement do not include taxes; if
Novazen is required to pay sales, use, property, value-added or other
taxes based on the licenses or services granted in this Agreement or on
Rocky Mountain Internet's use of Program or services, then such taxes
shall be billed to Rocky Mountain Internet and paid by Novazen. Rocky
Mountain Internet shall pay any taxes due in cash. This Section shall
not apply to taxes based on Novazen income. As per this Agreement,
Rocky Mountain Internet reserves the right to dispute any levied taxes
provided that Novazen's tax status or credit rating is not affected
Rocky Mountain Internet will pay Novazen for all taxes levied while it
dispute such taxes. All expenses incurred in such a dispute are the
sole responsibility of Rocky Mountain Internet.
E. GENERAL TERMS.
E.1 Nondisclosure. By virtue of their activities under this Agreement, each
party may have access to confidential information of the other
("Confidential Information"). Confidential Information shall be limited
to the Program including the Documentation, the results of any
benchmark tests of the Program, the terms and pricing under this
Agreement, and all information clearly identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or
omission of the other party; (b) was in the other party's lawful
possession prior to the disclosure and had not been obtained by the
other party either directly or indirectly from the disclosing party;
(c) is lawfully disclosed to the other party by a third party without
restriction on disclosure or (d) is independently developed by the
other party.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two
years after termination of this Agreement. The parties agree, unless
required by law, not to make each other's Confidential Information
available in any form to any third party for any purpose other than the
implementation of this Agreement. Each party agrees to take all
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reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in violation of the
terms of this Agreement.
E.2 Severability. If any provision of this Agreement is held to be invalid
or unenforceable, the remaining provisions of this Agreement will
remain in full force.
E.3 Waiver. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for nonpayment or infringement of
Novazen's Intellectual Property, no action, regardless of form, arising
out of this Agreement may be brought by either party more than one year
after the cause of action has occurred.
E.4 Export Administration. Rocky Mountain Internet agrees to comply fully
with all relevant export taxes and regulations of the United States
("Export Laws").
E.5 Entire Agreement. This Agreement constitutes the complete Agreement
between the parties and supersedes all prior contemporaneous Agreements
or representations, written or oral, concerning the subject matter of
this Agreement. This Agreement may not be modified or amended except in
a writing signed by a duly authorized representative of each party; no
other act, document, usage or custom shall be deemed to amend or modify
this Agreement. All material changes to Schedules X, X, X-0, and C of
this Agreement shall be made in accordance with the Change Management
process memo NO_0009_v1_MEM.
It is expressly agreed that the terms of this Agreement shall supersede
the terms in any documents previously presented to Rocky Mountain
Internet or in written or oral presentations made by Novazen to Rocky
Mountain Internet.
Rocky Mountain Internet acknowledges and agrees it has not, in
executing this Agreement, relied upon any Novazen oral or documentary
representations other than those contained in this Agreement. E.6
Notice. Written notice under this Agreement shall be sent to a party by
overnight courier (signature for receipt required) or certified mail at
the applicable address specified below.
Novazen's designated address and telephone numbers are as follows:
Until September 30, 1998
Novazen, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
ATTN: Xxxxxxx X. Xxxxxx
After September 30, 1998
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Novazen, Inc.
0000 Xxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
E.7 Rocky Mountain Internet's designated address and telephone numbers are
as follows:
Until notification by Rocky Mountain Internet of name change
Rocky Mountain Internet
ATTN: VP of Operations
0000 00xx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
After notification by Rocky Mountain Internet of name change
Internet Communications Company
ATTN: VP of Operations
0000 00xx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
E.8 Any written notice will be deemed effective on the date actually
received.
E.9 The Consulting Services section of the Agreement does not create any
relationship of employment, partnership, or joint venture between the
parties.
E.10 Neither party will make any use of any of the other's trademarks,
service marks, trade names, or trade dress without written consent.
E.11 The failure of a party to require performance by the other party of any
provision of this Agreement will not diminish the right of that party
later to require performance of that provision.
E.12 Arbitration.
(a) Any and all disputes arising out of or in connection with this
Agreement shall be referred to and finally resolved by
arbitration under the Rules of the American Arbitration
Association. There shall be one arbitrator. The law governing
this Agreement is the law of Colorado, excluding its conflict
of laws. The venue of the arbitration shall be Denver,
Colorado. The arbitrator shall not have the authority or power
to impose punitive damages.
(b) In the event that both parties enter into separate contracts
with CyberCash Inc, if any claims arise under or in connection
with this Agreement and either party to this Agreement raises
a claim or defense involving CyberCash, then each party hereto
consents to arbitrate any such related claim or defense with
CyberCash.
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It is the intention of both parties to hereby consent to third
party arbitration with CyberCash. Both parties also consent
to:
i. allowing the sole arbitrator appointed in the venue
where the original demand is filed by any one of the
three parties (Novazen, Rocky Mountain Internet and
CyberCash) to determine whether a claims is related,
and
ii. to determine any and all issues relating to venue.
The arbitrator shall not have the authority or power
to impose punitive damages.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate copies by their authorized representatives on the dates
specified below:
Novazen, Inc. Rocky Mountain Internet
By: By:
--------------------------- ------------------------------
Title: Title:
------------------------ ---------------------------
Date: Date:
------------------------- ----------------------------
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SCHEDULE A - PROGRAM FUNCTIONALITY
The Novazen, Inc. software delivery will contain the following functionality and
will be delivered by April 30, 1999, according to the Milestone Chart in
Schedule B-1:
- Centralized Customer Data
- Provide the ability for company data, customer data, agent data,
xxxx data, order data, trouble ticket data, product data, and
commissioning data to be entered in one place, stored in one
place, and accessed from each user's desktop
- Provide the framework within which Rocky Mountain Internet may
define security levels with respect to accessing the data within
the central customer data store
- Billing System Integration
- Interface with the MacroLogic billing system (or other equivalent
billing platform)
- Integrate the MacroLink functionality, including taxing
- Electronic Xxxx Presentment and Payment
- Provide the ability for Customers to receive and view their
invoices on-line
- Provide the ability for Customers to pay their
invoices on-line with credit cards
- Provide the ability to interface with the Rocky Mountain
Internet designated invoice printer.
- Provide the ability to deliver invoices via the following media:
- Browser (Microsoft Internet Explorer 3.x or higher; Netscape 3.x
or higher)
- Email
- Paper.
- Provide the framework to support delivery of invoices via other
electronic media CD-ROM Diskette and magnetic tape.
- Xxxx Consolidation
- Consolidate "xxxx ready" charges ("xxxx ready" means the
charges--both usage and non-usage--have been rated and taxed) as
standard format input data from the following sources external to
the Program:
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- US West data
- Local access charges
- OC&Cs
- Local usage detail
- Frontier data
- Long Distance detail
- IP Telephony
- IP CDRs
- Dial-Up CDRs
- Web Hosting/Web Production (via Order Entry)
- Dedicated Services (via Order Entry)
- T1
- ISDN
- 56K
- Other Usage Based Services.
- One-time Charges including, but not limited to, equipment
sales, consulting services, and set-up fees (via Order
Entry)
- Consolidate "xxxx ready" payments as standard format input data
from the A/R system. Types of payments include credit cards and
manually entered payments.
- Internet-based Customer Self Care
- Provide the ability for customers to maintain their own account
information, preferences, and user settings.
- Order Entry
- Provide the ability for customers to configure their products and
services mix via Internet browser
- Provide the ability for CSRs to maintain products and services
mix for each customer
- Provisioning
- Create an output file of Frontier customers to be provisioned,
formatted per Frontier specifications
- Create an output file of US West customers to be provisioned,
formatted per US West specification
- Provide an interface to Rocky Mountain Internet's Radius servers
in order to provision IP customers
- Load into the Program a standard formatted file from Frontier of
provisioned customers
- Load into the Program a standard formatted file from US West
of provisioned customers.
15
- Trouble Ticketing
- Provide an integrated trouble ticket platform
- Provide automated Trouble Ticket notification, escalation, and
interest registry
- Create an output file of Trouble Tickets to
be forwarded to US West or Frontier.
- Product Management
- Maintain Product catalog and simple rate assignments
- Make product catalog available on-line.
- ACD Integration
- The Program should be integrated with the Rocky Mountain Internet
ACD system to ensure that Internet-based calls are processed
successfully.
- Accounts Receivable Integration
- The Program should be integrated with Rocky Mountain Internet's
chosen accounts receivable platform in order to communicate
payment, billing (including credit and debit charges), and aging
data.
- Commissions
- Provide a user interface for the definition of commission rates
on a per product or service basis
- Store the commission rates in a central data store
- Provide commission rate data to billing system (MacroLogic) for
the calculation of commissions
The functionality listed above will be delivered sequentially as set forth in
the Milestone Chart in Schedule B-1.
CHANGE MANAGEMENT
The Change Management process is detailed in memorandum NO_0009_v1_MEM as an
attachment to this agreement.
16
SCHEDULE B - CONSULTING SERVICES
Novazen will perform the consulting services for Rocky Mountain Internet. The
services will result in the definition of Rocky Mountain Internet's current and
future business requirements, as they relate to the implementation of the
Program. The Novazen consultants shall be responsible for implementing the
project according to the schedule set forth in the Milestone Chart, Schedule
B-1.
- Target Dates: Novazen agrees to use commercially reasonable efforts to
staff the consulting team and to attempt to reach target dates on the
Milestone Chart. Failure to reach a target date on the Milestone
Chart, Schedule B-1, will not constitute a breach of the agreement.
17
SCHEDULE B-1 - MILESTONE CHART
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
MAJOR MILESTONE A (BEGIN
PHASE 1) *** *** Novazen/Rocky Mountain Internet
Milestone A.1 *** *** MacroLogic
Milestone A.2 *** *** Rocky Mountain Internet
Milestone A.3 *** *** Rocky Mountain Internet
Milestone A.4 *** *** Novazen/Rocky Mountain Internet
Milestone A.5 *** *** MacroLogic
MAJOR MILESTONE B (END OF
PHASE 1) *** *** Novazen/MacroLogic
MAJOR MILESTONE C (BEGIN
PHASE 2) *** *** Novazen/Rocky Mountain Internet
Milestone C.1 *** *** Novazen/Rocky Mountain Internet
Milestone C.2 *** *** Novazen/Rocky Mountain Internet
Milestone C.3 *** *** Novazen/Rocky Mountain Internet
Milestone C.4 *** *** Novazen/MacroLogic
Milestone C.5 *** *** Novazen/Rocky Mountain Internet
Milestone C.6 *** *** Novazen/Rocky Mountain Internet
18
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone C.7 *** *** Novazen/Rocky Mountain Internet
Milestone C.8 *** *** Novazen/Rocky Mountain Internet
Milestone C.9 *** *** Novazen/Rocky Mountain Internet
Milestone C.10 *** *** Novazen/Rocky Mountain Internet
Milestone C.11 *** *** Novazen/Rocky Mountain Internet
Milestone C.12 *** *** Novazen/Rocky Mountain Internet
MAJOR MILESTONE D *** *** Novazen
Milestone D.1 *** *** Novazen
Milestone D.2 *** *** Novazen
Milestone D.3 *** *** Novazen
Milestone D.4 *** *** Novazen
Milestone D.5 *** *** Novazen
Milestone D.6 *** *** Novazen
Milestone D.7 *** *** Novazen
Milestone D.8 *** *** Novazen
Milestone D.9 *** *** Novazen
Milestone D.10 *** *** Novazen
Milestone D.11 *** *** Novazen
19
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone D.12 *** *** Novazen
MAJOR MILESTONE E *** *** Rocky Mountain Internet
Milestone E.1 *** *** Rocky Mountain Internet
Milestone E.2 *** *** Rocky Mountain Internet
Milestone E.3 *** *** Rocky Mountain Internet
Milestone E.4 *** *** Rocky Mountain Internet
Milestone E.5 *** *** Rocky Mountain Internet
Milestone E.6 *** *** Rocky Mountain Internet
Milestone E.7 *** *** Rocky Mountain Internet
Milestone E.8 *** *** Rocky Mountain Internet
Milestone E.9 *** *** Rocky Mountain Internet
Milestone E.10 *** *** Rocky Mountain Internet
Milestone E.11 *** *** Rocky Mountain Internet
Milestone E.12 *** *** Rocky Mountain Internet
MAJOR MILESTONE F *** *** Rocky Mountain Internet/Novazen
Milestone F.1 *** *** Rocky Mountain Internet/Novazen
Milestone F.2 *** *** Rocky Mountain Internet/Novazen
Milestone F.3 *** *** Rocky Mountain Internet/Novazen
Milestone F.4 *** *** Rocky Mountain Internet/Novazen
20
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone F.5 *** *** Rocky Mountain Internet/Novazen
Milestone F.6 *** *** Rocky Mountain Internet/Novazen
Milestone F.7 *** *** Rocky Mountain Internet/Novazen
Milestone F.8 *** *** Rocky Mountain Internet/Novazen
Milestone F.9 *** *** Rocky Mountain Internet/Novazen
Milestone F.10 *** *** Rocky Mountain Internet/Novazen
Milestone F.11 *** *** Rocky Mountain Internet/Novazen
Milestone F.12 *** *** Rocky Mountain Internet/Novazen
MAJOR MILESTONE G *** *** Novazen
Milestone G.1 *** *** Novazen
Milestone G.2 *** *** Novazen
Milestone G.3 *** *** Novazen
Milestone G.4 *** *** Novazen
Milestone G.5 *** *** Novazen
Milestone G.6 *** *** Novazen
Milestone G.7 *** *** Novazen
Milestone G.8 *** *** Novazen
21
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone G.9 *** *** Novazen
Milestone G.10 *** *** Novazen
Milestone G.11 *** *** Novazen
Milestone G.12 *** *** Novazen
MAJOR MILESTONE H *** *** Novazen
Milestone H.1 *** *** Novazen
Milestone H.2 *** *** Novazen
Milestone H.3 *** *** Novazen
Milestone H.4 *** *** Novazen
Milestone H.5 *** *** Novazen
Milestone H.6 *** *** Novazen
Milestone H.7 *** *** Novazen
Milestone H.8 *** *** Novazen
Milestone H.9 *** *** Novazen
Milestone H.10 *** *** Novazen
Milestone H.11 *** *** Novazen
Milestone H.12 *** *** Novazen
MAJOR MILESTONE I *** *** Novazen
Milestone I.1 *** *** Novazen
Milestone I.2 *** *** Novazen
Milestone I.3 *** *** Novazen
Milestone I.4 *** *** Novazen
22
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone I.5 *** *** Novazen
Milestone I.6 *** *** Novazen
Milestone I.7 *** *** Novazen
Milestone I.8 *** *** Novazen
Milestone I.9 *** *** Novazen
Milestone I.10 *** *** Novazen
Milestone I.11 *** *** Novazen
Milestone I.12 *** *** Novazen
MAJOR MILESTONE J *** *** Novazen
Milestone J.1 *** *** Novazen
Milestone J.2 *** *** Novazen
Milestone J.3 *** *** Novazen
Milestone J.4 *** *** Novazen
Milestone J.5 *** *** Novazen
Milestone J.6 *** *** Novazen
Milestone J.7 *** *** Novazen
Milestone J.8 *** *** Novazen
Milestone J.9 *** *** Novazen
Milestone J.10 *** *** Novazen
Milestone J.11 *** *** Novazen
Milestone J.12 *** *** Novazen
23
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
MAJOR MILESTONE K *** *** Rocky Mountain Internet
MAJOR MILESTONE L *** *** Novazen
Milestone L.1 *** *** Novazen
Milestone L.2 *** *** Novazen
Milestone L.3 *** *** Novazen
Milestone L.4 *** *** Novazen
Milestone L.5 *** *** Novazen
Milestone L.6 *** *** Novazen
Milestone L.7 *** *** Novazen
Milestone L.8 *** *** Novazen
Milestone L.9 *** *** Novazen
Milestone L.10 *** *** Novazen
Milestone L.11 *** *** Novazen
Milestone L.12 *** *** Novazen
MAJOR MILESTONE M *** *** Novazen
Milestone M.1 *** *** Novazen
Milestone M.2 *** *** Novazen
Milestone M.3 *** *** Novazen
Milestone M.4 *** *** Novazen
Milestone M.5 *** *** Novazen
Milestone M.6 *** *** Novazen
Milestone M.7 *** *** Novazen
24
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone M.8 *** *** Novazen
Milestone M.9 *** *** Novazen
Milestone M.10 *** *** Novazen
Milestone M.11 *** *** Novazen
Milestone M.12 *** *** Novazen
MAJOR MILESTONE N *** *** Novazen
MAJOR MILESTONE O *** *** Rocky Mountain Internet
MAJOR MILESTONE P *** *** Rocky Mountain Internet
Milestone P.1 *** *** Rocky Mountain Internet
Milestone P.2 *** *** Rocky Mountain Internet
Milestone P.3 *** *** Rocky Mountain Internet
Milestone P.4 *** *** Rocky Mountain Internet
Milestone P.5 *** *** Rocky Mountain Internet
Milestone P.6 *** *** Rocky Mountain Internet
Milestone P.7 *** *** Rocky Mountain Internet
Milestone P.8 *** *** Rocky Mountain Internet
Milestone P.9 *** *** Rocky Mountain Internet
Milestone P.10 *** *** Rocky Mountain Internet
Milestone P.11 *** *** Rocky Mountain Internet
Milestone P.12 *** *** Rocky Mountain Internet
MAJOR MILESTONE Q *** *** Rocky Mountain Internet
Milestone Q.1 *** *** Rocky Mountain Internet
25
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone Q.2 *** *** Rocky Mountain Internet
Milestone Q.3 *** *** Rocky Mountain Internet
Milestone Q.4 *** *** Rocky Mountain Internet
Milestone Q.5 *** *** Rocky Mountain Internet
Milestone Q.6 *** *** Rocky Mountain Internet
Milestone Q.7 *** *** Rocky Mountain Internet
Milestone Q.8 *** *** Rocky Mountain Internet
Milestone Q.9 *** *** Rocky Mountain Internet
Milestone Q.10 *** *** Rocky Mountain Internet
Milestone Q.11 *** *** Rocky Mountain Internet
Milestone Q.12 *** *** Rocky Mountain Internet
MAJOR MILESTONE P (END OF
PHASE 2) *** *** Rocky Mountain Internet
MAJOR MILESTONE Q *** *** Novazen
Milestone Q.1 *** *** Novazen
Milestone Q.2 *** *** Novazen
Milestone Q.3 *** *** Novazen
Milestone Q.4 *** *** Novazen
Milestone Q.5 *** *** Novazen
Milestone Q.7 *** *** Novazen
Milestone Q.8 *** *** Novazen
Milestone Q.9 *** *** Novazen
Milestone Q.10 *** *** Novazen
26
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
Milestone Q.11 *** *** Novazen
Milestone Q.12 *** *** Novazen
Milestone Q.13 *** *** Novazen
MAJOR MILESTONE R *** *** Novazen
Milestone R.1 *** *** Novazen
Milestone R.2 *** *** Novazen
Milestone R.3 *** *** Novazen
Milestone R.4 *** *** Novazen
Milestone R.5 *** *** Novazen
Milestone R.6 *** *** Novazen
Milestone R.7 *** *** Novazen
Milestone R.8 *** *** Novazen
Milestone R.9 *** *** Novazen
Milestone R.10 *** *** Novazen
Milestone R.11 *** *** Novazen
Milestone R.12 *** *** Novazen
MAJOR MILESTONE S *** *** Novazen/Rocky Mountain Internet
Milestone S.1 *** *** Rocky Mountain Internet
Milestone S.2 *** *** Novazen
Milestone S.3 *** *** Rocky Mountain Internet
27
--------------------------------------------------------------------------------------------------------------------
MILESTONE MILESTONE DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------------------------------------------
MAJOR MILESTONE T *** *** Novazen
MAJOR MILESTONE U *** *** Novazen
28
SCHEDULE C - PAYMENT TERMS AND CONDITIONS
Rocky Mountain Internet agrees to pay for the Program License Fees and
Consulting Services, as set forth in Schedules B and B-1, in a combination of
cash and shares of Rocky Mountain Internet common stock, according to the
following payment schedule:
Payment 1: *** on contract signing
- Payment 2: 25,000 shares of Rocky Mountain Internet common
stock on contract signing or within two weeks thereafter.
The shares of Rocky Mountain Internet, Inc. common stock,
issuable pursuant to the terms hereof, will be restricted
(and not registered) upon issuance provided however that
Rocky Mountain Internet, Inc. shall cause such shares to be
registered for resale under the Securities Act of 1933 no
later than October 1, 1998. If Rocky Mountain Internet, Inc.
fails to register such shares for resale on or before
October 1, 1998, Novazen shall have the right to require
Rocky Mountain Internet, Inc. to buy the shares at any date
beyond October 1, 1998 for the per share price at which
Rocky Mountain Internet, Inc.'s common stock is trading on
the close of business on the day prior to the request made
by Novazen.
The payment terms specified above entitle Rocky Mountain Internet to a cap of
*** Invoiced Accounts. Additional subscribers can only be added for an
additional license fee. Rocky Mountain Internet would receive most favored
customer pricing in establishing this additional fee. Most favored customer
pricing is defined as the best price for a Novazen Program sold within the prior
six months, exclusive of this agreement. If no Novazen Programs have been sold
within that period, the fee will be established according to the then
outstanding Novazen price list.
FUNCTIONAL UPGRADE
Under the terms and conditions of this software license and consulting services
agreement, Rocky Mountain Internet is entitled to functional upgrade software
releases, within 12 months from the commencement date, in addition to the
software delivery as specified in Schedule A. Rocky Mountain Internet agrees to
pay Novazen on a time and materials basis for the cost of applying the new
functionality to the RMI code base for each functional upgrade software release,
according to the following billing rates:
CONSULTANT TYPE/TITLE CODING SYMBOL DAILY RATE* HOURLY RATE
--------------------------------------------------------------------------------
CEO, President CEO/P *** ***
Vice President VP *** ***
Director DIR *** ***
Senior Consultant SCON *** ***
29
Senior Engineer SENG *** ***
Senior Architect SARC *** ***
Consultant CON *** ***
Engineer ENG *** ***
System Administrator SYSAD *** ***
Office Administration OADM *** ***
Graphics Artist GA *** ***
Web Engineer WEB *** ***
Technical Writer TW *** ***
*Daily Rate is based on a minimum of 8 hours and
is fixed regardless of additional hours worked
over 8 hours in a single calendar day.
The consulting services for each subsequent functional release should not exceed
a total maximum cost of *** (excluding expenses).
30
SCHEDULE D - OBLIGATIONS OF ROCKY MOUNTAIN INTERNET
Rocky Mountain Internet, Inc. will have the following obligations to support
Novazen's performance of the services:
- Provide the necessary specialists in the current project to participate
in any necessary project activities
- Provide adequate work space at the customer site for Novazen to perform
the services to the extent that they are commercially reasonable
including:
- Lockable desks
- Telephones (with local and long distance access)
- Internet connections
- Filing cabinets
- After-hours and weekend access to the customer site
- LAN connections with access to printers
- Personal directory structures on the LAN
- LAN Technical support staff
- Access to and use of photocopiers
- Access to and use of fax machines
- Test Data
- Interface and Legacy System Record Layouts
31
SCHEDULE E - HARDWARE/SOFTWARE REQUIREMENTS
In order to evaluate whether Novazen has achieved contract performance and/or
any milestone target date, Rocky Mountain Internet agrees to implement the
Program according to the following hardware and software requirements:
REQUIRED HARDWARE/SOFTWARE REQUIREMENTS (IF APPLICABLE) RECOMMENDED SYSTEM
------------------------------------------------------------------------------------------------------------------------------------
Server Software(1) - Netscape Enterprise, or
- Apache HTTP, or
- Microsoft IIS, or
- Sun Java
------------------------------------------------------------------------------------------------------------------------------------
Print Server
------------------------------------------------------------------------------------------------------------------------------------
Server Operating System - Microsoft Windows NT, or
- Unix (Sun Solaris, HP-UX) Unix
------------------------------------------------------------------------------------------------------------------------------------
Hardware Disk Array - 60 GB capacity, with 32 MB cache
------------------------------------------------------------------------------------------------------------------------------------
Database Software - Oracle 8.0, or Oracle 8.0
- Sybase, or
- SQL Server, or
- Informix
------------------------------------------------------------------------------------------------------------------------------------
Application Framework Software - WebObjects 3.5.1 or higher WebObjects
- Enterprise Objects (2)
------------------------------------------------------------------------------------------------------------------------------------
-------------
(1) Several server configurations are possible with the Program. For example, a
larger enterprise server could house the Web, database, and print functions,
rather than using a separate server for each function as detailed above. The
decision depends on the scalability needs of the client and the availability of
the hardware components.
(2) Enterprise Objects is included with the WebObjects package.
E-32 of 33
REQUIRED HARDWARE/SOFTWARE REQUIREMENTS (IF APPLICABLE) RECOMMENDED SYSTEM
------------------------------------------------------------------------------------------------------------------------------------
Printing Framework Software - Report Mill (3) Report Mill
------------------------------------------------------------------------------------------------------------------------------------
Client Operating System - Windows 95 or higher, or
- Windows NT, or
- Unix, or
- Any OS that supports browsers
------------------------------------------------------------------------------------------------------------------------------------
Client Web Browser - Netscape 3.x or higher, or Netscape or Internet Explorer 4.x or
higher
- Internet Explorer 3.x or higher, or
- WebTV
------------------------------------------------------------------------------------------------------------------------------------
Online Payment Interface Software - Any online payment (credit card and CyberCash
electronic bank draft) service
------------------------------------------------------------------------------------------------------------------------------------
--------
(3) Required only if client wants the Program to create a paper print stream of
xxxx data.
E-33 of 33
