EXHIBIT 10.18
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement"), dated as of December 19, 1996
(the "Effective Date"), is between Electronic Data Systems Corporation, a
Delaware corporation ("EDS"), and PointCast Incorporated, a California
corporation ("PointCast").
BACKGROUND
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WHEREAS, the Internet & New Media Business Unit of the Communications
Industry Group of EDS has resources and experience to support the delivery of
Internet, Intranet and New Media services, such as consulting, systems design,
integration, development, administration and project management;
WHEREAS, PointCast is a company that desires to have electronic presence on the
Internet by establishing and having EDS operate for it an additional data center
in Plano, Texas ("the "PointCast Texas Data Center") to host PointCast's
Internet servers and PointCast NetworkTM;
WHEREAS, PointCast may desire for EDS to provide to it during the term of this
Agreement, for the benefit of PointCast and its viewers and customers of the
PointCast Network, certain other Internet-related, information technology
services on the terms and conditions set forth in this Agreement; and
WHEREAS, EDS is willing to provide such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, EDS and PointCast hereby agree to the following:
1. DEFINITIONS.
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(a) "EDS Services" means the services to be performed by EDS under any Work
Order.
(b) "PCN" means the PointCast NetworkTM, a network of servers that delivers
news and information content over the Internet to Viewers via PCN Clients
on the Viewers' desktop computers.
(c) "PCN Client" means the portion of the PointCast software for PCN which
resides on the hard disk of the Viewer's desktop computer and functions as
an Internet-aware screen saver, customized content transmitter, WWW browser
and animated advertisement player capable of delivering information via
PCN.
(d) "Technology" means deliverables specifically required by a Work Order
to be created by EDS for PointCast and delivered to PointCast, including,
without limitation, the assignment of copyrights in all such deliverables
to PointCast.
(e) "Viewer" means a user who accesses PCN using a PCN Client.
(f) "Work Order" means a supplement to this Agreement in the form of an
Amendment executed by the parties from time to time and attached to a copy
of this Agreement which describes services to be provided by EDS,
PointCast's obligations relating thereto and the payment terms for such
services, all as more particularly described in Section 2 below.
2. WORK ORDERS.
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From time to time during the Term of this Agreement, EDS and PointCast may
execute a Work Order for agreed upon services to be provided by EDS, the
applicable acceptance criteria and performance standards for such work, the
support obligations of PointCast, and the payment obligations of PointCast
under this Agreement. Each such Work Order shall consist of a Schedule A
describing the services to be delivered by and other obligations of EDS,
a Schedule B describing the obligations of PointCast, and a Schedule C
describing the payment obligations of PointCast. Each such Work Order
shall be signed by authorized representatives of both parties and shall
be attached to this Agreement and, when so executed and attached, shall
be subject to the terms and conditions of this Agreement. Work Orders
shall be numbered
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consecutively beginning with number 1, attached hereto. If there is a conflict
between the terms of this Agreement and the terms of any Work Order, the terms
of the Work Order shall take precedence.
3. EDS SERVICES.
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(a) EDS will provide the EDS Services to PointCast pursuant to the terms
and conditions of this Agreement, including the applicable Work
Order. Each Work Order when attached to this Agreement shall be
incorporated herein by reference.
(b) The EDS Services will be undertaken at various PointCast or EDS
sites to be identified and mutually agreed upon by the parties and
identified in the applicable Work Order (the "Facilities").
4. TERM. The term of this Agreement will begin on the Effective Date and
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will end on the third anniversary of the Effective Date, unless sooner
terminated as provided in this Agreement, and shall automatically renew
for successive one year periods for so long as there are outstanding
obligations of the parties under any Work Order attached hereto. The term
of this Agreement may be extended by the mutual written agreement of the
parties. If the term is extended because of outstanding obligations of
the parties under and Work Order, the Agreement will terminate as soon as
such obligations have been performed.
5. ACCOUNT MANAGERS. Within 24 hours of signing this Agreement, EDS and
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PointCast shall each designate and maintain, respectively, a
representative who will be the primary point of contact of such party in
dealing with the other with respect to the EDS Services (each, the
respective party's "Account Manager"). If called for in an applicable
Work Order, each party shall provide the other party's Account Manager at
no charge to such other party with furnished office space, administrative
support, and voice and data networking services in the host party's
facility. The Account Manager of each party will have the authority and
power to make decisions with respect to actions to be taken by such party
in connection with the EDS Services within the scope of this Agreement
and the attached Work Orders. EDS and PointCast shall mutually consult
regarding the nomination of and shall have the right to request
replacement of the other party's Account Manager and other key team
members described in the applicable Work Order, and the party to which
the request has been made will consult with the requesting party on the
selection of a replacement and will use reasonable efforts to accommodate
the request as promptly as is practicable.
6. COMPENSATION; BOOKS AND RECORDS. EDS shall not be entitled to
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compensation for any services which are not authorized in an applicable
Work Order unless such services have been authorized in advance in
writing by the PointCast Account Manager in the form of an executed
modification to such Work order. If EDS is to be reimbursed for costs and
expenses incurred in connection with the EDS Services or for any EDS
Services performed on other than a fixed-price basis, EDS shall maintain
comprehensive books and records to substantiate both the services and
expenses. Such books and records will be retained by EDS for a period of
at least two (2) years from and after the completion of the services to
which they apply. PointCast or its designated agent shall have the right
to audit such records at all reasonable times upon five (5) business
days' prior written notice to EDS. In no event will PointCast have the
right to review any records related to other customers of EDS.
7. PAYMENTS; REIMBURSEMENT. PointCast will pay EDS the aggregate of the
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amounts described in Schedule C of the applicable Work Order in
accordance with the payment provisions set forth in such Schedule C. If
any Work Order calls for reimbursements of EDS by PointCast for travel
and other expenses, the following terms and conditions shall apply: EDS
agrees to use its best efforts to keep travel and living expenses as
economical as possible and within a moderate range. Absent PointCast's
prior written approval, PointCast will not be liable to reimburse EDS for
airfare in excess of coach class. Reimbursable expenses shall include
travel and related lodging and meals, long-distance telephone charges,
postage and other shipping charges. Expenses for facsimile, duplication,
supplies, word-processing and local telephone charges will be borne by
EDS and will not be chargeable to PointCast. EDS shall secure PointCast's
written approval prior to incurring any individual reimbursable
expenditure exceeding five hundred dollars ($500) in connection with the
EDS Services. EDS will xxxx PointCast monthly at EDS' cost for all such
routine reimbursable charges, and payment will be due within thirty (30)
days of receipt of EDS' properly submitted invoice. All invoices
submitted to PointCast by EDS for any expenses for which EDS claims
reimbursement shall include a detailed listing of all out-of-pocket
disbursements together with supporting documentation, including, without
limitation, copies of hotel bills and airline tickets.
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8. POINTCAST OBLIGATIONS.
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During the term of this Agreement and in addition to its other obligations
set forth in this Agreement, PointCast, at its cost and expense, will have
the responsibilities assigned to it in Schedule B to each of the Work
Orders attached hereto from time to time.
9. EMPLOYEE BENEFITS. The EDS personnel performing the EDS Services will be
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and remain the employees of EDS, and EDS will provide for and pay the
compensation and other benefits of such employees including salary, health,
accident and workers' compensation benefits and all taxes and contributions
which an employer is required to pay relating to the employment of
employees.
10. HIRING OF EMPLOYEES. The parties agree that, during the term of this
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Agreement and for a period of 12 months thereafter, neither party will,
except with the prior written consent of the other, offer employment to or
employ any person who is employed by the other party (or any person who is
a subcontractor to the other party or an employee thereof) and who has been
introduced to the other party in connection with this Agreement.
11. PROPRIETARY RIGHTS.
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(a) POINTCAST INFORMATION. As between PointCast and EDS, information relating
to PointCast, PCN, PointCast's affiliates, Viewers and customers of PCN and
the PCN Client and other PointCast software will remain the sole and
exclusive property of PointCast. EDS is hereby authorized during the term
of this Agreement to have access to and to make use of such information
only to the extent necessary for the performance of its obligations
hereunder. EDS' access and use of such information shall be governed by
the terms of Section 12.
(b) TECHNOLOGY. Unless otherwise agreed by the parties in writing in the
applicable Work Order, PointCast shall own the copyright in and to the
Technology (and all renewals and extensions thereof). EDS hereby makes a
full, irrevocable assignment, in perpetuity, to PointCast, of the
Technology and such copyrights.
(c) FURTHER ASSURANCES. EDS shall, and shall cause any parties acting under it
in relation to this Agreement, to execute any and all documents and do such
other acts requested at any time by PointCast as may be required to
evidence, confirm and/or further effect the rights granted PointCast under
this Agreement, including without limitation the rights under this Section
11. EDS shall establish and maintain written agreements with its employees
and such parties sufficient to enable EDS to comply with the provisions of
the foregoing sentence.
(d) ACCESS; RETURN OF MATERIALS. PointCast shall have continuous access to the
Facilities and to all data, documents, computer software, Content (as
defined in Section 14), Technology and other materials provided to EDS by
PointCast. EDS will return the original and any copies of all Technology
and all data, documentation, software, Content and other materials promptly
upon PointCast's request. Upon the expiration or earlier termination of
this Agreement for any reason whatsoever, EDS shall promptly return the
original and any copies of all Technology and all data, documents, computer
software, Content and other materials provided by PointCast, in whatever
stage of completion, to PointCast, or PointCast's designated agent.
12. CONFIDENTIALITY Except as otherwise expressly provided in this Agreement,
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EDS and PointCast each agree that all information communicated to it by or
on behalf of the other, whether before or after the Effective Date, which
is marked or identified or otherwise deemed confidential as described
below, will be and will be deemed to have been received in strict
confidence and will be used only as required to carry out the recipient
party's obligations or exercise the recipient party's rights under this
Agreement. EDS and PointCast each agree that it will use the same means as
it uses to protect its own confidential information, but in any event not
less than reasonable means including written agreements, to prevent the
disclosure and to protect the confidentiality of the other party's
confidential information. No such information, including the terms of this
Agreement, will be disclosed by the recipient party, its agents,
representatives or employees without the prior written consent of the other
party; provided, however, that each party may
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disclose such information to those of its third party consultants identified to,
and approved by, the other party and employees, in each case having a need for
access to such information for purposes of this Agreement and with respect to
each of whom such party has taken steps, no less rigorous than what it would do
to protect its own proprietary information, but in any event at least reasonable
steps including written agreements, to prevent any such employees or consultants
from acting in any manner inconsistent with this Section 12. Recipient's
obligations of non-disclosure under this Section 12 shall not apply to
Information which; (a) is already known to the recipient party and is not
governed by the term of another separate nondisclosure agreement with the
disclosing party, (b) is publicly known or becomes publicly known through no
unauthorized act of the recipient party, (c) is rightfully received from a third
party, authorized to disclose such information (d) is independently developed
without use of the other party's confidential information or (e) is disclosed
without similar restrictions to third parties generally by the party owning the
confidential information. If confidential information is required to be
disclosed pursuant to a requirement of a governmental authority, such
confidential information may be disclosed pursuant to such requirement so long
as the party required to disclose the information provides the other party with
timely prior notice of such requirement and coordinates with such other party in
an effort to limit the nature and scope of such required disclosure. All
confidential information that is subject to this Section 12 must be, if in
written form when received from the other party, marked or identified as
confidential and, if in oral or visual form when received from the other party,
identified in advance as confidential. Notwithstanding the foregoing, the
following information will be deemed the confidential information of PointCast
without the necessity of marking or identifying it as such: (i) information
developed by PointCast or PCN, (ii) information on performance and utilization
of PCN, and (iii) information in whatever form relating to (A) the design,
functionality, operational methods, or coding of any PointCast software,
including, without limitation, any complete or partial object or source code
versions of such software, (B) the design elements and tradeoffs, system
components and configurations, and operating and performance characteristic of
the current operating environment of PCN (as it may change over a period of
time) and/or the PointCast Texas Data Center, and (C) the collection,
transmission, and analysis of statistical information from the PCN Client or
PointCast server software.
13. TERMINATION. In the event that either party materially or repeatedly
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defaults in the performance of any of its duties or obligations hereunder, (a)
which default, if of a non-monetary nature, is not substantially cured within
thirty (30) days after written notice is given to the defaulting party
specifying the default, or with respect to those defaults that cannot reasonably
be cured within thirty (30) days, should the defaulting party fail to proceed
within thirty (30) days to commence curing the default and thereafter to proceed
with all reasonable diligence to substantially cure the default, or (b) which
default, if of a monetary nature, is not cured within thirty (30) days after
written notice is given to the defaulting party specifying the default, the
party not in default may, by giving written notice thereof to the defaulting
party, terminate this Agreement as of a date specified in such notice of
termination. Notwithstanding the foregoing, any Work Order hereunder may be
terminated in accordance with the terms of a Work Order. Upon expiration or
termination of this Agreement or any Work Order for any reason, EDS will cease
to perform the EDS Services for PointCast, or the EDS Services under such Work
Order (as appropriate), and PointCast will pay to EDS all sums due to EDS as a
result of EDS Services performed prior to such termination (prorated as
appropriate). Upon expiration or any other termination of this Agreement, EDS
will return to PointCast or destroy, at PointCast's option, all copies of all
materials, including software, and all equipment provided to EDS hereunder by
PointCast and shall erase from computer memory any copies of such materials,
including software, residing thereon. If PointCast directs that any materials
are to be destroyed, EDS shall certify in writing that such materials have been
destroyed. The provisions of Sections 1, 6, 10, 11, 12, 14, 15, 16, 20, 23, and
24 as well as any payment obligations for payments due and payable as of the
date of termination shall survive the expiration or other termination of this
Agreement.
14. INDEMNITIES.
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(a) Subject to Section 14(d) , EDS and PointCast (each, as an indemnifying
party, the "Indemnitor") each agree to indemnify and defend the other party
(each, as an indemnified party, the "Indemnitee") and hold the Indemnitee
harmless from any and all claims, actions, damages, liabilities, costs and
expenses, including but not limited to reasonable attorneys' fees and
expenses (collectively, "Costs"), arising out of, under or in connection
with (i) any claim for rent or utilities at any location where the
Indemnitor is financially responsible under this Agreement for such rent or
utilities, (ii) any claim for taxes, wages, benefits or third party fees
for which the Indemnitor is
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financially responsible under this Agreement or (iii) the death or personal
injury, or loss or damage to the property, of the Indemnitee or its
employees or representatives caused by the negligent act or omission or
willful misconduct of the Indemnitor; and, (iv) in addition EDS agrees to
indemnify and defend and hold harmless PointCast from any costs of EDS or
its officers, directors, employees, agents, or representatives arising out
of or relating to the termination of this Agreement in accordance with its
terms or the termination of any other agreements or employment
relationships as may be entered into by EDS which results from such
termination of this Agreement.
(b) Subject to Section 14(d), EDS and PointCast each agree to defend the
Indemnitee against any action to the extent that such action is based upon
a claim that the software (other than third party software), Technology or
confidential information provided by the Indemnitor, or any part thereof,
(i) infringes a copyright perfected under United States statute, (ii)
infringes a patent granted under United States law or (iii) constitutes an
unlawful disclosure, use or misappropriation of another party's trade
secret or confidential information. The Indemnitor will bear the expense
of such defense and pay any Costs that are attributable to such claim
finally awarded by a court of competent jurisdiction. Neither EDS nor
PointCast will be liable to the other for claims of indirect or
contributory infringement.
(c) Subject to Section 14(d), PointCast will defend EDS from any action by
third parties to the extent that such action is based on a claim of
infringement of the literary property of another, libel, indecency, false
light, misrepresentation, invasion of privacy or misappropriations of image
or personality rights, arising out of, under or in connection with any
claims relating to (Ii) the provision, use or distribution of the content
via PCN over the Internet from the PointCast Texas Data Center where
transmission of such content was authorized by PointCast, whether such
content is of an editorial, advertising or other nature, (ii) (iii)
statements or other materials made or made available on PCN by Viewers, by
PointCast's customers or by others to whom such content is linked at the
request of PointCast. PointCast will bear the expense of such defense and
pay any Costs that are attributable to such claim finally awarded by a
court of competent jurisdiction.
(d) Each of the above indemnities is conditioned upon the Indemnitor having
received full and prompt notice in writing of the claim and the Indemnitee
allowing the Indemnitor to fully direct the defense or settlement of such
claim. The Indemnitor will not be responsible for any settlement or
compromise made without its consent.
15. LIABILITY. In the event that either party is liable to the other for any
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matter relating to or arising in connection with this Agreement except for
PointCast's obligations of payment pursuant to Section 7 hereof, whether
based upon an action or claim in contract, equity, negligence, intended
conduct or otherwise, the amount of damages recoverable against a party for
all events, acts or omissions will not exceed, in the aggregate, [*] to be
paid by PointCast under this Agreement in the [*] preceding such claim, or
if the claim occurs during the first year of the Agreement, then [*] to be
paid by PointCast in the [*] of this Agreement. In no event will the
measure of damages include, nor will either party be liable for, any
amounts for loss of profits, income or savings or indirect, consequential,
incidental or punitive damages of any party, including third parties.
Further, no cause of action may be asserted against either parties later
than [*] following the date after the date on which the cause of action
will have accrued. EDS and PointCast expressly acknowledge that the
limitations contained in this Section 15 have been the subject of active
and extensive negotiation between the parties and represent the parties'
agreement based upon the level of risk to EDS associated with the
performance of the EDS Services and the payments provided hereunder to EDS
for such performance. Nothing in this Section 15 shall apply to any
liability for breach of confidentiality obligations or to any indemnity
obligations under this Agreement.
16. REPRESENTATIONS, WARRANTIES AND DISCLAIMER.
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(a) Representations and Warranties of the parties The parties hereby
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represent and warrant to each other on a continuing basis that (i)
such party has the right, experience and skill to enter into and fully
perform its obligations under this Agreement and to grant the rights
granted or agreed to be
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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
granted hereunder; (ii) such party shall comply with all applicable
federal, state, and local laws in effect at the time services are
performed; (iii) such party shall perform said services in a
workmanlike manner and in accordance with generally accepted
professional standards, as applicable; (iv) there is no outstanding
contract, commitment or agreement to which such party is a party or
legal impediment of any kind known to such party which conflicts with
this Agreement or which might limit, restrict, or impair the rights
granted to the other party hereunder; and (vi) the media on which any
computer programs, documentation and other deliverables delivered to
or used on behalf of a party are contained will contain no willfully
introduced computer instructions whose purpose is (A) to disrupt,
damage or interfere with a party's or a Viewers' use of their computer
or telecommunications facilities; or (B) to perform functions which
are not an appropriate part of the functionality of such computer
programs, documentation or other deliverables and whose result is to
disrupt the use or operation of such computer programs, documentation
or other deliverables.
(b) Disclaimer. While EDS is primarily providing services to PointCast
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under this Agreement, EDS may from time to time provide certain
hardware, software and other items as an incidental part of its
services. With the exception of any manufacturers' or licensors'
warranties which EDS is able to obtain, such hardware, software and
other items will be provided on an "AS IS" basis without warranty. In
all cases where EDS has not committed to a specific performance
standard, EDS will use reasonable care in providing the EDS Services.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN WORK ORDERS
HERETO, EDS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE OR RESULTS TO BE
DERIVED FROM THE USE OF ANY SERVICES, HARDWARE, SOFTWARE OR OTHER
ITEMS PROVIDED UNDER THIS AGREEMENT.
17. NOTICE. Wherever under this Agreement one party is required or permitted
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to give notice to the other, such notice will be in writing and will be
deemed given the third day after its mailing, postage prepaid to the
recipient party addressed as follows:
In the case of EDS:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx X0-0X-00
Xxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Electronic Data Systems Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx X0-0X-00
Xxxxx, Xxxxx 00000
Attention: General Counsel
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In the case of PointCast:
PointCast Incorporated
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
with a copy to:
PointCast Incorporated
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Notices may also be delivered by hand or transmitted by facsimile. Hand
delivered notices (e.g., notices delivered by courier) will be effective
upon receipt. Either party may change its address for notices upon giving
at least ten (1O) days prior written notice of the change to the other
party.
18. INSURANCE. Each party shall under each Work Order, unless otherwise agreed
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in writing, maintain worker's compensation and employer's liability
insurance with minimum limits of ONE MILLION DOLLARS ($1,000,000) and
Commercial General Liability insurance (which shall include broad form
contractual and automobile liability coverage), with minimum limits of
TWO MILLION DOLLARS ($2,000,000) combined single limit per occurrence,
with the providing party's insurance as primary and not contributory,
protecting both parties from claims for personal injury (including bodily
injury and death) and property damage which may arise from or in
connection with (i) the activities of the insured party's employees or
contractors on the other party's premises or (ii) any negligent act or
omission of the insured party's officers, directors, agents, or
employees. All such insurance policies shall be written by a responsible
insurance company possessing an AV-VII rating or better as listed in the
Best Guide, shall name the other party as an additional insured for
commercial and automobile liability only, shall contain a waiver of
subrogation with respect to the additional insured, shall be written on
an occurrence basis and shall provide that the coverage thereunder may
not be reduced or canceled unless thirty (30) days' prior written notice
thereof is furnished to the other party.
19. ASSIGNMENT: APPROVALS; HEADINGS. Neither party may assign this Agreement
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or subcontract any portion of its obligations under this Agreement to a
third party without obtaining the prior written consent other party;
provided, however, that EDS may subcontract any portion of its obligations
under this Agreement to a third party so long as EDS notifies PointCast in
writing of such subcontract in advance, receives such prior written consent
and remains responsible for the performance of such obligations, and
provided further that either party may, without consent of the other party,
assign this Agreement to a successor to its business covered by this
Agreement, whether by merger, acquisition of stock or assets,
reorganization, reincorporation, or otherwise, so long as the assignor
gives thirty (30) days prior written notice of such transaction before the
transaction closes and the assignee agree in writing to be bound by all the
terms and conditions of this Agreement. EDS shall remain responsible for
the performance of any obligations it subcontracts under this Agreement.
Where agreement, approval, acceptance or consent of either party is
required by any provision of this Agreement, such action will not be
unreasonably delayed or withheld. The headings used herein are for
reference-and convenience only and will not enter into the interpretation
hereof.
20. RELATIONSHIP OF PARTIES. EDS in furnishing services to PointCast under
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this Agreement is acting only as an independent contractor. EDS does not
undertake by this Agreement or otherwise to perform any obligation of
PointCast whether regulatory or contractual or to assume any responsibility
to third parties for PointCast's business or operations. Each party has the
sole right and obligation to supervise, manage, contract procure, perform
or cause to be performed all obligations to be performed by that party
pursuant to this Agreement.
21. MEDIA RELEASES. All media releases, public announcements and public
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disclosures by either party relating to this Agreement or the subject
matter of this Agreement, including promotional or marketing material but
not including any announcement intended solely for internal distribution or
any disclosure required by legal, accounting or regulatory requirements
beyond the reasonable control of the party, will be coordinated with and
subject to final written approval by both parties prior to release.
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22. EXCUSABLE DELAYS. Each party will be excused from performance under this
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Agreement, and the time of any performance will be extended, to the extent
reasonably necessary under the circumstances, if such party is prevented
from or delayed in performing, in whole or in part, its obligations under
this Agreement (other than payment obligations) as a result of acts or
omissions by the other party or by an act of God or any governmental
authority or any outbreak or escalation of hostilities, war, civil
disturbance, court order, labor dispute, third party nonperformance (other
than a subcontractor or assignee of EDS) or other cause beyond its
reasonable control. Such nonperformance on the part of either party will
not be considered a default under this Agreement or a ground for
termination of this Agreement, provided that the party relying on this
Section 22 shall (i) have given the other party written notice thereof
promptly, and in any event, within five (5) days of discovery of the force
majeure circumstance, (ii) take all steps reasonably necessary under the
circumstances to mitigate the force majeure upon which such notice is based
and (iii) perform such obligations as soon as is reasonably practicable
after the termination or cessation of such event or circumstance. If
performance is delayed for sixty (60) days by a force majeure circumstance,
either party shall have the right to terminate the applicable Work Order by
written notice to the other party.
23. DISPUTE RESOLUTION. In the event that either party believes that the other
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has defaulted in the performance of any of its obligations hereunder, the
complaining party's Account Manager shall notify the other party's Account
Manager of such belief and the parties agree to make commercially
reasonable efforts acting in good faith to resolve the matter without
resort to the procedures set forth in Section 13 for a period of not less
than five (5) working days after such notice is given, following which
period the parties shall be free to proceed in accordance with the
provisions of Section 13.
24. ENTIRE AGREEMENT; GENERAL PROVISIONS. This Agreement, including all
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attached and signed Work Orders and their exhibits, which are hereby
incorporated by reference, constitutes the entire agreement between the
parties with respect to the subject matter thereof. There are no
representations, understandings or agreements which are not fully expressed
in this Agreement. No change, waiver or discharge will be valid unless in
writing and signed by an authorized representative of the party against
whom such change, waiver or discharge is sought to be enforced. This
Agreement will be governed by and construed in accordance with the
substantive laws of the State of New York, without giving effect to any
choice-of-law rules that may require the application of the laws of another
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Electronic Data Systems corporation PointCast Incorporated
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxxxxxx X. Xxxxxxx
NAME: Xxxxxxx X. Xxxxxxx NAME: Xxxxxxxxxxx X. Xxxxxxx
TITLE: President, INM TITLE: President & CEO
DATE: 1/2/97 DATE: 12/20/96
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WORK ORDER 1
SCHEDULE A EDS SERVICES
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EDS has agreed to create a data center for the purpose of hosting the PCN
in Plano, Texas (the "PointCast Texas Data Center"). PointCast has informed EDS
that the data center is configured to be capable of handling approximately two
hundred and Fifty thousand (250,000) PCN Clients each receiving one or more
updates of customized news or information from PCN per 24 hour day when
configured as PCN's current environment. The PCN is an integrated client/server
system that provides updated current information on a variety of topics to users
of the system via the Internet. The system allows each user to customize,
within limits, the frequency of those operations.
Obligations of EDS and Pointcast under this Work Order will expire three
years from the date of acceptance under this Work Order.
1. PCN CURRENT ENVIRONMENT.
-----------------------
The attached system block diagram shows the major components in the PCN:
The PointCast Network - Block Diagram
[IMAGE NOT SHOWN]
Figure 1: The PCN Network
2. EDS OBLIGATIONS
---------------
The PointCast Texas Data Center will provide secure hosting for the
PointCast application and data servers in a high security environment as is
standard for all EDS Information Processing Centers. It will also provide a
high-bandwidth communications link to the public Internet that is monitored at
all times with sophisticated wide area network management tools. The network is
supported and managed by EDS network specialists, and an operations and systems
administration staff will maintain the PointCast servers and provide all
technical and support resources required to resolve any technical issues or
failures of equipment. EDS is to provide constant operation of the PointCast
servers, all in accordance with the description of services to be performed by
EDS, which is attached to this Work Order as Attachment 1, Schedule A and is
incorporated herein by reference. EDS shall perform the tasks in this Schedule
A and in Attachment 1, Schedule A, attached to this Work Order, as part of
normal operations for the monthly fee under this Work Order. Such tasks shall
not be subject to any additional charges.
1
WORK ORDER 1
EDS will, at EDS' sole cost and expense, purchase, maintain and support the
hardware, software and communications resources described in Attachment 2,
Schedule A B attached to this Work Order. With the exception of any equipment
provided by PointCast or a third party, which shall be the sole property of
PointCast or such third party, EDS will own all equipment of the PointCast Texas
Data Center.
EDS will, at EDS' sole cost and expense, provide such office space,
equipment and furnishings to PointCast's personnel as is reasonable required
under this Work Order. EDS will derive from PCN and deliver to PointCast
certain advertising statistics to be described more fully in the implementation
plan under this Work Order. In accordance with EDS' standard practice, the
PointCast Texas Data Center will be provided with multilayered uninterrupted
power.
3. CHANGE ORDER PROCEDURES.
-----------------------
PointCast may request changes in the operation or services provided under
this Work Order in order to meet the changing needs of PCN. Such requests shall
be made in writing. EDS and PointCast will evaluate the needs and proposed
changes to determine the best course of action.
EDS will maintain change records implemented by the EDS support team
according to EDS Standard Change Management policies. System Changes requested
by PCN or implemented by the EDS system administration team will be documented
according to EDS standard Change Management practices.
Changes that go beyond the scope of the original implementation plan, what
is normal Microsoft NT system administration activities, and that involve work
beyond that described in this Schedule A will be subject to additional fees and
will require a new Work Order.
4. ACCEPTANCE TESTING.
------------------
Prior to the time PCN is ready to go live in Plano, Texas, the parties will
develop and mutually agree on acceptance criteria and tests for the PointCast
Texas Data Center, which will then be applied and conducted as described in this
paragraph. Contingent upon the receipt of hardware from suppliers by dams
agreed upon at time of execution of this Work Order, EDS will use best efforts
to make the PointCast Texas Data Center ready for acceptance testing within
fourteen (14) business days after such execution date. Once the required
equipment is in place and the PointCast software is installed, PointCast will
conduct acceptance tests during the following two-week period to verify that the
PointCast Texas Data Center meets the agreed upon acceptance criteria. If at
the end of such two-week period, the PointCast Texas Data Center has failed the
acceptance tests, the parties will work together to determine the reasons for
such failure. The party whose action or inaction is determined to be the cause
of such failure, will, with the cooperation and assistance of the other party,
work to remedy such fault. If the PointCast Texas Data Center has not passed
the acceptance tests within thirty (30) days after the end of such two-week
period, and if the cause has been attributed to PointCast, PointCast will
immediately begin making the monthly payment to EDS called for by this Work
Order. If the cause has been attributed to EDS, PointCast shall have the right,
upon written notice to EDS, to terminate this Work Order or this Agreement at
the end of such thirty day period. Once PointCast has accepted the PointCast
Texas Data Center in accordance with the agreed upon acceptance tests, EDS will
immediately staff its operations team and begin operating the PointCast Texas
Data Center.
5. PERFORMANCE MONITORING.
----------------------
EDS and PointCast will work together during the implementation of the Data
Center in Plano to mutually agree upon the reports that EDS will prepare and
deliver as part of normal operations to document performance once the PointCast
Texas Data Center has passed the above acceptance tests and gone into operation.
EDS will permit PointCast to track performance and derive statistics via remote
access to the PointCast Texas Data Center.
6. EDS IMPLEMENTATION AND OPERATIONS TEAMS.
---------------------------------------
In addition to the EDS Account Manager, the EDS implementation team to set
up the PointCast Texas Data Center will be comprised of a dedicated Project
Manager, System Integrator, Communications Specialist and
2
WORK ORDER 1
Systems Analyst in Plano, Texas. This team will draw upon the following
resources as needed; Data Center Operations Manager, System Administrator,
Communications Specialist, Database Administrator, Hardware Specialist,
Facilities Specialist, Integration Specialists and Security Specialist. EDS
retains the right to dictate the composition of the EDS implementation team.
EDS and PointCast implementation personnel will agree to a Project Plan
after such time as this Work Order I is signed. The Project Plan will consist
of a Project Schedule, Roles and Responsibilities, and Acceptance Testing
Procedures (see Schedule A 4, Acceptance Testing ).
The EDS ongoing operations team will consist of the EDS Account Manager and
a Project Manager and the following full and shared resources as needed: Data
Center Operations Manager, System Administrators, Database Administrators,
Communications Specialists, Hardware Specialists, Systems Analysts, and Security
Specialists to meet the agreed upon performance levels on a 24 hour 365 days per
year basis. EDS retains the right to dictate the composition of the ongoing EDS
operations team.
7. SPECIAL TERMS AND CONDITIONS
----------------------------
a) Advertising. EDS will purchase $[*] of advertising on PCN
-----------
during the first twelve months of this Work Order 1 at
PointCast's [*] rates. For succeeding second and third twelve
month periods during the term of this Work Order 1, EDS will
purchase $[*] of advertising at a rate published on the [*]. For
1998 purchases, the rate will be [*] and for 1999 purchases, the
rate will be [*], provided however, that if EDS in the second and
third twelve month periods either, (i) agrees to purchase in
excess of $[*] of advertising, (ii) actually purchases in excess
of $[*], then EDS and PointCast will negotiate rates to be
applicable for the remainder of such twelve month period.
b) I-Server Users - EDS will through its efforts provide PointCast
with a total of 10,000 incremental I-Server Viewers utilizing PCN
via PointCast I-Servers not later than June 30, 1997. The
methods utilized by EDS to secure such Viewers shall be those
chosen by EDS.
c) Public Reference Account. During the term of Work Order 1, each
------------------------
party will act as a public reference account for each other in
promoting their products and services, including, but not limited
to PointCast's I-Server and EDS' Internet services. In such
capacity each shall, inter alia, respond to inquiries from third-
parties sent to each other by the other party directly or
referred to it by the other party and issue periodic public
releases in such a way as to stress and promote the benefits of
such products and services and communicate the other parties
endorsement of them.
d) Trademarks. Each party agrees not to use the other's names,
----------
trademarks or other corporate identification without the express
written approval of the other, excepting only that without prior
approval either party may make a single reference for
identification purposes without elaboration.
3
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
SCHEDULE B POINTCAST-OBLIGATIONS
--------------------------------
POINTCAST OBLIGATIONS.
---------------------
PointCast will provide EDS with all custom developed and PCN server related
software and documentation including, but not limited to [*]. PointCast hereby
grants to EDS for the term of this Work Order a non-exclusive, nontransferable
(except to a permitted assignee under this Agreement) right and license to
reproduce and use the such PointCast software delivered by PointCast in
Cupertino, California when EDS personnel are at the latter site. Such
reproduction and use shall be limited to authorized EDS employees and
contractors and to such copying and use as is required to carry out the EDS
Services for PointCast under this Work Order. EDS shall not use such software in
the performance of any other services for any other person or entity and may not
sublicense the rights granted hereunder. EDS shall not and shall not permit any
other person or entity to, decompile, disassemble, reverse engineer, or
otherwise attempt to derive source code from or modify such software.
EDS and PointCast implementation personnel will agree to a Project Plan
after such time as this contract is signed. The Project Plan will consist of a
Project Schedule, Roles and Responsibilities, and Acceptance Testing Procedures
(see Schedule A 4, Acceptance Testing ).
PointCast will make available the timely support of the appropriate
PointCast personnel to install, configure and test the PCN and to otherwise meet
PointCast's obligations to provide the software, content, testing and approvals
necessary to maintain the project schedule.
PointCast will provide the encrypted data feed and network connection,
including any required hardware, software, communications etc., from the
PointCast Content Processing servers in Cupertino, California for news feeds
delivered to the PointCast Texas Data Center in Plano, Texas via [*].
PointCast will provide EDS employees with a reasonable work environment to
perform work when visiting a PointCast facility. EDS employees using PointCast
facilities will need an adequate office environment, access to a telephone for
voice and data, and will require access to appropriate PointCast personnel.
PointCast will provide EDS with the Content to be broadcast over the
Internet from the PointCast Texas Data Center
PointCast will provide the EDS operations team with such training as is
reasonably required to operate PCN.
4
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
SCHEDULE C
----------
1. FEES. PointCast will pay EDS the following fees:
----
* a monthly fee of [*] ($[*])
* a monthly fee of [*] ($[*]) for the T-1 Communications line
* the above fees are payable for thirty-six (36) months, beginning on
the date of acceptance (in accordance with the acceptance tests to be
developed hereunder). The monthly fee will be prorated on a 30-day-
month basis for any partial month during the term covered by this Work
Order.
2. TRAVEL AND RELATED EXPENSES. PointCast will reimburse EDS, in accordance
---------------------------
with the requirements set forth in Section 7 of the Agreement, for all
reasonable travel and travel-related, living and other out-of-pocket
expenses (without any markup) incurred by EDS for travel authorized by
PointCast in connection with the EDS Services provided under this Work
Order.
3. INVOICES. EDS will send to PointCast each month an invoice for charges for
--------
EDS Services for the previous month. EDS will invoice PointCast separately
for all travel, travel related and other expenses, which invoices will be
sent by EDS to PointCast after EDS incurs such expenses. Any sum or charge
due under this Agreement will be due and payable within thirty (30) days
following receipt of the invoice therefor. Any sum not paid by its due date
will bear interest until paid at a rate of interest equal to the lesser of
(i) the prime rate established from time to time by Citibank N.A., New
York, plus two percent, or (ii) the maximum rate of interest allowed by
applicable law.
IN WITNESS WHEREOF, the parties have executed this Work Order I as of the date
of the signature of the last party to sign, as set forth below.
Electronic Data Systems corporation PointCast Incorporated
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxxxxxx X. Xxxxxxx
NAME: Xxxxxxx X. Xxxxxxx NAME: Xxxxxxxxxxx X. Xxxxxxx
TITLE: President, INM TITLE: President & CEO
DATE: 1/2/97 DATE: 12/20/96
5
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
ATTACHMENT 1 - SCHEDULE A.
-------------------------
1. DESCRIPTION OF SERVICES.
-----------------------
FREQUENCY/ CYCLE TIME or PROJECTED
MANAGEMENT SERVICES COVERAGE AVAILABILITY OCCURRENCES
SYSTEMS ADMINISTRATION -- Perform routine
system level tasks to provide user access.
* Scheduled down time -- Once a week there Sat, Sun x 8 Scheduled 1/week
will be a scheduled one hour down time for 1 hour/equipment
each [*].
* User Administration - Creating, changing 5 x 8 6-hr response 2/week
and deleting user id's and passwords. 15 min /
occurrence
* System Administrator Assistance -- Perform 5 x 8 4-hr response 10/week
minor [*] PointCast network 30 min/
changes. occurrence
* High Priority Assistance -- Perform 5 x 8 a.m. 15 min response 1/week
immediate changes to the PointCast Eastern - 5 30 min/
Network p.m. Pacific
SYSTEMS MANAGEMENT - Assures systems
availability and performance levels meet
expectations.
* Software Revision Control Process -- Sat, Sun x 8 1 week notice 1/month
Upgrades applications software or patches 8 hrs/occurrence
(or major releases) the operating systems
used by PCN systems.
* Security Management Process Sat, Sun x 8 1 week notice 1/qtr
8 hrs/occurrence review
* Fault Management Process -- The fault
management process enables INM to
actively monitor the network for error
conditions and notify the appropriate parties
to initiate resolution.
* Maintain system availability - Through the 7 x 24 notify 7/day
use of proactive monitoring. responsible party
w/in 15 min
* Resolve level 1 faults -Minor faults that the 7 x 24 1 hr response 7/day
PointCast clients may not notice and cause 8 hr/repair
little disruption of service. Examples
include reboot a PointCast Server or router,
restart feed program, looping processes on
servers, memory short-runs, excessive
paging or swapping. Also includes
restarting aborted processes.
* Resolve level 2 faults --Moderately severe 7 x 24 1 hr response 1/month
faults that the PointCast clients may notice 4 hrs/repair
a degraded system performance. Examples
include failure in only one of the
database, datafeed, [*].
6
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
* Resolve level 3 faults --Serious failures 7 X 24 .5 hr response 3
which cause the PointCast network to be 1 hrs/repair annually
off-line. Will have spare parts on hand
for immediate replacement, also have
vendors contracts to supply the fastest
possible recovery. Examples include
failure of all database, datafeeds, [*].
* BACKUP/RECOVERY PROCESS -- Protects data
through non-intrusive duplication and
restore processes.
* Perform offsite storage -- Tapes stored for 2 n/a 1/week
months.
* Perform full backup of [*], Sat or Sun scheduled 1/week
datafeeds 4 hrs/
occurrence
* Perform incremental backup of [*], 6/week scheduled daily
datafeeds 1 hr/ (except
occurrence on full
back up
day)
* Restore image from off-site tape 5 X 8 4 hour response 1/qtr
to start restore
* Restore image from on-site tape 7 X 24 2 hour response 1/mo
to start restore
* [*], performance and table space 5 X 8 2 week notice 1/qtr
tuning 2 hrs/
occurrence
* CAPACITY & PERFORMANCE MANAGEMENT AND
REPORTING PROCESS -- Measures, monitors
and adjusts operating parameters of system
components - network, application and
operating system parameters to maintain
performance.
* Network Review Scheduled 1/mo
1 hr/occurrence
* Processing Review Scheduled 1/mo
1 hr/occurrence
* Storage Review Scheduled 1/mo
1 hr/occurrence
POINTCAST RESPONSIBILITIES -- Documentation,
Processes, Procedures and Participation that
EDS must receive from PointCast in order
for EDS to perform to SLA standards.
* Gold Disk Installation process and Revised 1 week notice 1/mo
procedures Documentation. Version
* Initial Installation Startup 1 week notice 1/mo
* Initial Orientation Startup included in Startup
above
* [*], performance and table space Startup included in Startup
tuning training above
* [*], network configuration, Startup included in Startup
[*], start services, stop services above
training
7
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
IN WITNESS WHEREOF the parties have executed this Work Order 1, Attachment I as
of the date of the signature of the last party to sign, as set forth below.
Electronic Data Systems Corporation PointCast Incorporated
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxxxxxx X. Xxxxxxx
NAME: Xxxxxxx X. Xxxxxxx NAME: Xxxxxxxxxxx X. Xxxxxxx
TITLE: President, INM TITLE: President & CEO
DATE: 1/2/97 DATE: 12/20/96
8
WORK ORDER 1
ATTACHMENT 2 - SCHEDULE A.
-------------------------
1. EQUIPMENT LIST The system to operate the PointCast Network, will consist of
the
--------------
following equipment, or equivalents, thereof. Any equipment substitutions
will be pre-approved, in writing, by PointCast:
SERVERS DESCRIPTION QTY MANUFACTURER
------- --------------------------------------- ----------- -------------
[*]
* All PCs must have licenses for [*].
9
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 1
** EDS can substitute the specified Item with its own monitoring tools.
*** All PCs must have [*]
IN WITNESS WHEREOF, the parties have executed this Work Order 1, Attachment 2 as
of the date of the signature of the last party to sign, as set forth below.
Electronic Data Systems Corporation PointCast Incorporated
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxxxxxx X. Xxxxxxx
NAME: Xxxxxxx X. Xxxxxxx NAME: Xxxxxxxxxxx X. Xxxxxxx
TITLE: President, INM TITLE: President & CEO
DATE: 1/2/97 DATE: 12/20/96
10
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 2
Schedule A EDS Services
-----------------------
This Work Order will only become effective if Pointcast requests in writing that
EDS increase the capacity of the Pointcast Texas Data Center approximately
500,000 PCN Clients, and all obligations under this Work Order will expire three
(3) years from the date of acceptance under Work Order 1. EDS will expand the
Pointcast Texas Data Center, as represented by Pointcast to handle such number
of PCN Clients upon such request and will purchase and maintain the additional
equipment listed below.
EDS will provide the following equipment for the data center for the purpose of
hosting the PCN in Plano, Texas (the "PointCast Texas Data Center"):
1. Equipment List. The following equipment, or equivalents, will be added to
--------------
the Texas PointCast Data Center. Any equipment substitutions will be pre-
approved, in writing, by PointCast:
Servers Description Qty Manufacturer
------- ------------------------------------ --- -------------
[*]
2. EDS OBLIGATIONS.
---------------
The PointCast Texas Data Center will provide secure hosting for the
PointCast application and data servers in a high security environment as is
standard for all EDS Information Processing Centers.
3. Acceptance Testing.
------------------
11
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 2
Prior to the time PCN is ready to go live in Plano, Texas, the parties will
develop and mutually agree on acceptance criteria and tests for the PointCast
Texas Data Center, which will then be applied and conducted as described in this
paragraph. Contingent upon the receipt of hardware from suppliers by dates
agreed upon at time of execution of this Work Order, EDS will use best efforts
to make the PointCast Texas Data Center ready for acceptance testing within
fourteen (14) business days after such execution date. Once the required
equipment is in place and the PointCast software is installed, PointCast will
conduct acceptance test during the following two-week period to verify that the
PointCast Texas Data Center meets the agreed upon acceptance criteria. If at
the end of such two-week period, the PointCast Texas Data Center has failed the
acceptance tests, the parties will work together to determine the reasons for
such failure. The party whose action or inaction is determined to be the cause
of such failure, will, with the cooperation and assistance of the other party,
work to remedy such fault. If the PointCast Texas Data Center has not passed
the acceptance tests within thirty (30) days after the end of such two week
period, and if the cause has been attributed to PointCast, PointCast will
immediately begin making the monthly payment to EDS called for by this Work
Order. If the cause has been attributed to EDS, PointCast shall have the right,
upon written notice to EDS, to terminate this Work Order or this Agreement at
the end of such thirty day period. Once PointCast has accepted the PointCast
Texas Data Center in accordance with the agreed upon acceptance tests, EDS will
immediately staff its operations team and begin operating the PointCast Texas
Data Center.
WORK ORDER 2
SCHEDULE B POINTCAST OBLIGATIONS
--------------------------------
POINTCAST OBLIGATIONS.
---------------------
PointCast will provide EDS with all custom developed and PCN server related
software and documentation including, but not limited to [*]. PointCast hereby
grants to EDS for the term of this Work Order a non-exclusive, nontransferable
(except to a permitted assignee under this Agreement) right and license to
reproduce and use the such PointCast software delivered by PointCast in
Cupertino, California when EDS personnel are at the latter site. Such
reproduction and use shall be limited to authorized EDS employees and
contractors and to such copying and use as is required to carry out the EDS
Services for PointCast under this Work Order. EDS shall not use such software in
the performance of any other services for any other person or entity and may not
sublicense the rights granted hereunder. EDS shall not and shall not permit any
other person or entity to, decompile, disassemble, reverse engineer, or
otherwise attempt to derive source code from or modify such software.
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
WORK ORDER 2
SCHEDULE C
----------
1. FEES. PointCast will pay EDS the following fees:
----
* a monthly fee of [*] for the term of Work Order 1, beginning upon
written notification by PointCast. The monthly fee will be prorated on
a 30-day-month basis for any partial month during the term covered by
this Work Order.
* Above price valid until March 31, 1997.
2. TRAVEL AND RELATED EXPENSES. PointCast will reimburse EDS, in accordance
---------------------------
will the requirements set forth in Section 7 of the Agreement, for all
reasonable travel and travel-related, living and other out-of-pocket
expenses (without any markup) incurred by EDS for travel authorized by
PointCast in connection with the EDS Services provided under this Work
Order.
3. INVOICES. EDS will send to PointCast each month an invoice for charges for
--------
EDS Services for the previous month. EDS will invoice PointCast separately
for all travel, travel related and other expenses, which invoices will be
sent by EDS to PointCast after EDS incurs such expenses. Any sum or charge
due under this Agreement will be due and payable within thirty (30) days
following receipt of the invoice therefor. Any sum not paid by its due date
will bear interest until paid at a rate of interest equal to the lesser of
(i) the prime rate established from time to time by Citibank N.A., New
York, plus two percent, or (ii) the maximum rate of interest allowed by
applicable law.
IN WITNESS WHEREOF, the parties have executed this Work Order 2 as of the date
of the signature of the last party to sign, as set forth below.
Electronic Dam Systems Corporation PointCast Incorporated
BY: /s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxxxxxxxx X. Xxxxxxx
NAME: Will X. Xxxxxxx NAME: Xxxxxxxxxxx X. Xxxxxxx
TITLE: President, INM TITLE: President & CEO
DATE: 1/2/97 DATE: 12/20/96
[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
