Exhibit 10.3
MASTER SERVICES AGREEMENT
BETWEEN
VIANT CORPORATION
AND
BLUETAPE LLC
This MASTER SERVICES AGREEMENT ("Agreement") is made as of the
Effective Date set forth on the cover of this document by and between VIANT
CORPORATION, having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
XX 00000 ("VIANT") and the party whose name and address is set forth on the
cover of this document as Customer ("Customer").
WHEREAS, Customer wishes to engage VIANT to provide it with certain
services as described in the applicable Work Order or Schedule of Deliverables
and Payment Details (each as defined below) and the Exhibits, if any, attached
thereto;
WHEREAS, VIANT is willing to provide such services on the terms and
conditions set forth in this agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
hereby agree as follows:
1. Definitions
(a) "Confidential Information" shall have the meaning set forth in
Section 5(a) below.
(b) "Course Materials" shall mean any and all reference manuals,
student guides, demonstration software and other training materials provided
by VIANT in connection with Training Services including, without limitation,
materials provided by third party vendors to VIANT specifically for VIANT
Training Services.
(c) "Deliverables" shall mean any and all materials produced pursuant
to this Agreement, including without limitation, those described in the Schedule
of Deliverables and Payment Details attached hereto and incorporated herein as
Exhibit A, and any and all inventions, creations, expressions, improvements,
information, designs, drawings, specifications, instructions, software, data,
Course Materials, computer programming code, reusable routines, computer
software applications, any documentation relating to and any improvements on any
of the foregoing, all on whatever media rendered and whether patentable or
unpatentable.
(d) "Framework Software" shall mean the software described in the
Framework Software License attached hereto, if any.
(e) "Services" shall mean the Consulting Services and/or Training
Services (as defined in Sections 2(a) and 2(b) below, respectively) performed by
VIANT for Customer under the terms of this Agreement, pursuant to and as
described in a Work Order.
(f) "Work Order" shall mean VIANT's standard form for ordering
Services, which sets forth and describes the obligations of Customer and VIANT,
including any Services to be performed by VIANT and all applicable fees. Unless
otherwise specified on a Work Order, each Work Order shall be governed by the
terms of this Agreement and shall be incorporated herein. VIANT shall, in its
sole discretion, use Work Orders on a per project basis where the Services that
VIANT is to perform and the Deliverables are specifically identifiable. Work
Orders shall be in substantially the form attached hereto as Exhibit B.
(g) "Work Product" means the results and proceeds of VIANT's Services
hereunder, including
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without limitation, any and all Deliverables and all other materials provided to
Customer hereunder.
(h) "Agreement" shall mean this Agreement, the attached Schedule of
Deliverables and Payment Details, the attached Work Order and all other
documents and agreements incorporated in, or attached as Exhibits to, the
foregoing.
2. Services
(a) Consulting Services. VIANT will provide consulting services as
specified in the Work Order, according to the terms of this Agreement
("Consulting Services"). Customer shall have exclusive artistic and editorial
control over the Deliverables, including without limitation, the implementation
of content on any website and the design and look and feel of any website.
(b) Training Services. VIANT will provide Customer with training
courses if, and as, specified in the applicable Work Order ("Training
Services"). Training Services shall only be available to Customer's employees
and to contractors who have signed a non-disclosure agreement with VIANT that
is at least as equally protective of VIANT's interests as this Agreement and
which requires the contractor to use any information or training received
only in conjunction with Customer's business.
(c) Customer Obligations. Customer will provide VIANT with accurate
information regarding its business and needs in connection with the Services in
a timely fashion.
(d) Changes to Services. All changes to Work Orders requested by
Customer will be subject to VIANT's prior written approval. VIANT will notify
Customer in writing of its acceptance or rejection of Customer's request. If
VIANT accepts the requested change, the notification will be accompanied by an
estimate of the additional costs and delays resulting from the requested
changes. Customer will notify VIANT in writing of its acceptance or rejection of
such estimate. If accepted, the terms of such estimate shall replace the
relevant sections of the applicable Work Order.
(e) Delays. In the event of: (i) a delay by Customer in performing any
material obligation hereunder, (ii) any other material delay incurred as a
result of Customer's actions, (iii) a dispute in good faith between the parties
as to whether a particular Deliverable meets the relevant specifications, or
(iv) a delay due to any third party's act, failure to act or delay in performing
any material obligation (for the purposes of this Section 2(e)(iv), a third
party shall not include a subcontractor hired by Viant), the delivery of the
remaining Deliverables shall be deemed postponed for an equivalent period and
any time schedule set forth in the applicable Work Order shall be deemed amended
accordingly. No such delay shall relieve or suspend Customer's obligation to pay
VIANT under Section 3 below and, in addition to such payment obligations,
Customer shall pay for any and all reasonable expenses incurred by VIANT in
connection with any such delay provided that such expenses are pre-approved in
writing by Customer.
(f) Nonexclusive Services. VIANT's services under this Agreement shall
be nonexclusive.
(g) Employee and Subcontracting. VIANT may subcontract any and all of
its Services hereunder to qualified third parties that have skills similar to
those described in any VIANT proposal, subject to Customer's prior written
approval. VIANT shall be fully and solely responsible for the compensation and
performance of all of its employees and subcontractors hereunder and the filing
of any and all returns and reports and the withholding and payment of all
applicable state, federal and local wage tax, or employment related taxes
relating to such employees and subcontractors. In the event of the removal or
reassignment by VIANT of a VIANT employee assigned to perform Services
hereunder, the person so reassigned or removed shall be replaced with a
replacement employee who shall have substantially equivalent or better
qualifications. In the event VIANT replaces any employees, there will be no
charge to Customer for such replacement(s) while such replacement(s) acquire
the necessary orientation. Customer may request that VIANT dismiss from
performance of the Services under this Agreement any personnel of VIANT or its
subcontractors for any reason and such dismissal shall be effected upon the
consent of both parties, which consent shall not be unreasonably withheld. In
such an event, VIANT shall provide a suitable replacement for such dismissed
individual. In the event an employee or subcontractor of VIANT has completed his
or her specified task, as part of the fixed time-fixed cost terms of the
Services to be provided hereunder, said employee or subcontractor may be freely
assigned by VIANT to another project ("rolled off" the project) and VIANT will:
(i) inform Customer of such employee or subcontractor's reassignment no less
than one (1) week before the planned roll-off date; (ii) work with Customer to
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CONFIDENTIAL TREATMENT REQUESTED
develop and document a knowledge transfer process to be used to transfer any
relevant knowledge to an employee of Customer, as selected by Customer; and
(iii) transfer responsibility for the task, via the knowledge transfer process,
to the Customer employee if such employee has been identified at the time VIANT
employee or subcontractor is "rolled off" the project or provide the knowledge
transfer process documentation to Customer for training of the Customer employee
assigned to the task in the future. VIANT shall permit employees of Customer and
of any other entity controlled by, or under control with, Customer to be
present, when reasonable, as observers while various tasks are being conducted
and to consult with VIANT personnel regarding the Deliverables, provided,
however, that such individuals have entered into a Non-Disclosure Agreement
with VIANT and have committed to honor such Non-Disclosure requirements.
3. Fees
(a) Consulting Services. In consideration for VIANT's performance of
the Consulting Services, Customer shall pay to VIANT the fee(s) set forth in the
applicable Work Order. Any additional Consulting Services that Customer requests
and VIANT agrees to provide shall be provided on terms to be mutually agreed
upon by the parties. If Consulting Services are to be provided on a fixed fee
basis, the applicable Work Order must so indicate and must describe the scope
and charges for such Consulting Services.
(b) Training Services. If applicable and unless the applicable Work
Order specifies otherwise, VIANT will provide Training Services based on a per
student, per day charge plus materials basis. If Training Services are to be
provided on a fixed fee basis, the applicable Work Order or Engagement Letter
must so indicate and must describe the scope and charges for such Training
Services.
(c) Framework Software. Customer shall pay VIANT the license fees set
forth in the Framework Software License, if any such license is attached hereto.
(d) Expenses. Unless otherwise specified in the applicable Work Order,
Customer shall reimburse VIANT for all reasonable travel, communications and
out-of-pocket expenses (including, without limitation, transportation,
communication, lodging and meal expenses) incurred in connection with VIANT's
performance of the Services, provided that such expenses are consistent with
Customer's expense guidelines which are attached hereto as Exhibit B. Customer
shall also reimburse VIANT for all reasonable expenses incurred in connection
with VIANT's procurement of any facilities not provided to VIANT by Customer
provided that such expenses shall be subject to Customer's prior written
approval.
(e) Payment. Payment shall be made as indicated the applicable work
order form.
(f) Invoicing and Payment. VIANT will invoice Customer as indicated in
the applicable work order. Payment of all invoices are due and payable within
thirty (30) days of the invoice date, or as detailed in the attached SOW.
All payments made pursuant to this Agreement shall be made in U.S. dollars.
(g) Taxes. Fees do not include any present or future sales, use, value
added, excise or similar taxes applicable to the Services or associated
expenses. VIANT will separately itemize any applicable taxes on each invoice, or
in lieu thereof, Customer shall furnish VIANT a properly executed tax exemption
certificate, if applicable. Customer shall be responsible for paying any
applicable taxes later assessed by a government agency.
(h) Interest & Charges.
(i) If Customer does not pay invoices when due, VIANT may elect to
charge interest on the unpaid amounts up to the then effective short term
adjusted federal rate ("AFR") for annual compounding, as published in the
Cumulative Bulletin by the United States Department of the Treasury.
(ii) If Customer cancels or reschedules Training Services less than
five (5) days before its scheduled start date, there will be a cancellation
fee of fifty percent (50%) of the specified Training Services fee. Such
cancellation fee shall be due and payable at the same time as the fee for the
applicable Training Services.
4. Proprietary Rights
(a) [*]
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* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
In addition, VIANT hereby grants to Customer an unrestricted, irrevocable,
nonexclusive, worldwide, fully paid up, perpetual license, with the right to
sublicense, in and to all Work Product that is not Custom Deliverables.
Customer hereby grants to VIANT an unrestricted, irrevocable, exclusive,
worldwide, fully paid up, perpetual license, with the right to sublicense in
and to any Deliverable created by VIANT during the performance of Services
hereunder, that is of general applicability and not unique to the business of
Customer provided that such sublicensees shall not have the right to
sublicense, and provided further that VIANT shall not sublicense any
aforementioned Deliverables to any individual or entity that competes in a
material way with Customer or any of its affiliates. VIANT shall cause its
sublicensees and subcontractors to enter into agreements consistent with this
subsection.
(b) [*] Subject to the restriction in the immediately preceeding
sentence and VIANT's obligations of confidentiality with respect to Customer
Confidential Information set forth below, Customer acknowledges and agrees that
VIANT is generally in the business of providing consulting and integration
services, and that VIANT may render such services for clients that are
competitive with Customer or its affiliates.
(c) VIANT shall cooperate fully in: (i) vesting in Customer the
ownership of the proprietary rights to the Deliverables; and (ii) assisting
Customer in obtaining patent, copyright, or any other intellectual property
rights in the Deliverables and in maintaining and protecting Customer's
proprietary rights, including, without limitation, executing any documents which
Customer reasonably deems necessary for such purpose.
(d) Title to all materials and documentation furnished by Customer to
VIANT, including, without limitation, system specifications, shall remain with
Customer. VIANT shall deliver to Customer any and all such materials, including
all copies thereof on whatever media rendered, and including all relevant codes
and documentation upon (i) Customer's request, (ii) completion of the Work
Order, and (iii) the termination of this Agreement for any reason.
(e) Nothing in this Agreement thereto shall, or is intended to, limit
VIANT's ability to develop or enhance its products and services in any manner
whatsoever, including the use of Residuals (as defined below), provided that
VIANT does not disclose Customer Confidential Information. As used herein
"Residuals" shall mean ideas, understandings and other information in
non-tangible form which may be retained in the memory of persons who have access
to Customer Confidential Information in connection with VIANT's performance
under this Agreement. VIANT shall have no obligation to limit or restrict the
assignment of such persons or to pay royalties for any work resulting from the
use of Residuals. However, the foregoing shall not be deemed to xxxxx XXXXX a
license under any Customer's copyrights or patents.
(f) Both VIANT and Customer acknowledge that any breach of the
provisions of this Agreement may cause irreparable harm and significant injury
to an extent that may be extremely difficult to ascertain. Accordingly, both
VIANT and Customer agree that the other party will have, in addition to any
other rights or remedies available to it at law or in equity, the right to seek
injunctive relief to enjoin any breach or violation of this Agreement.
5. Confidentiality
(a) Defined. "Confidential Information" shall mean all information
disclosed by either party to the other party in oral, written,
machine-readable or any other form, which (i) is designated by the disclosing
party as confidential, or (ii) has value because it is not generally known
and the owner uses reasonable efforts to protect it or identify it in writing
as confidential. Confidential Information also includes information that has
been disclosed by a third party that is required to be treated as
confidential. Confidential Information does not include any information
which: (i) is or becomes a part of the public domain through no act or
omission of the other party or the other party's employees, agents or
independent contractors (collectively, the "Receiving Party"); (ii) was in
the lawful possession prior to the
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Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
disclosure and had not been obtained by the other Receiving Party either
directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed
to the Receiving Party by a third party without restriction on disclosure;
(iv) is independently developed by the other party; or (v) is disclosed by
operation of law. ALL Confidential Information shall remain the exclusive
property of the discloser or its licensors. All Deliverables and Work Product
shall be considered Confidential Information of Customer.
(b) Preserving Confidentiality. Each party hereby agrees that it shall
not use or disclose any Confidential Information received from the other party
other than as expressly permitted under the terms of this Agreement or expressly
authorized in writing by the other party. Each party shall use the same degree
of care to protect the other party's Confidential Information as it uses to
protect its own Confidential Information of like nature, but in no circumstances
less than reasonable care. Neither party shall disclose the other party's
Confidential Information to any person or entity other than its officers,
employees and independent contractors who are directly involved in performing
the Services and have a specific need to know such information in order to
effect the intent of this Agreement and who have entered into written
confidentiality agreements with that party consistent with and no less
restrictive than this Section 5.
(c) Mutual Cooperation. Each party will notify and cooperate with the
other party in enforcing the disclosing party's rights if it becomes aware of a
threatened or actual violation of the disclosing party's confidentiality
requirements by a third party. Upon reasonable request by the disclosing party,
the Receiving Party will provide copies of the confidentiality agreements
entered into with its agents or independent-contractors.
6. Indemnity, Warranty and Liability
(a) Indemnity. VIANT will, at its expense, defend and indemnify
Customer and any entity controlling, controlled by or under common control with
Customer and the directors, officers, employees and agents of each of them from
and against any and all claims, losses, liabilities, damages, claims suits,
fees, judgments, costs and expenses (including, but not limited to, attorneys'
fees) arising out of or in connection with the Deliverables or the provision of
the Services hereunder, including, but not limited to, any claim that any
Deliverable, Work Product, VIANT property, or other material furnished to
Customer by VIANT infringes a copy-right or patent or violates another party's
trade secret rights or other intellectual property right (an "intellectual
Property Claim"). Notwithstanding the above, VIANT shall have no liability under
this Section 6(a) for any claim of infringement based solely on (i)
modifications, adaptations or changes to any Deliverable not made by VIANT, (ii)
the combination or use by Customer of any Deliverable with any materials not
furnished by VIANT, if such infringement would have been avoided by use of the
Deliverable alone, or (iii) the use or incorporation of any materials or content
supplied to VIANT by Customer. In the event any Deliverable or Work Product is
held to, or VIANT believes is likely to be held to, infringe the intellectual
property rights of a third party, VIANT shall have the right at its sole option
and expense to (x) substitute or modify the Deliverable so that it is
non-infringing, (y) obtain for Customer a license to continue using the
Deliverable without restriction and without cost to Customer, or (z) require
the return of the infringing Deliverable from Customer. If such return
materially effects Customer's ability to utilize any Deliverable, then Customer
may, at its option, and upon thirty (30) days prior written notice to VIANT,
terminate the applicable Work Order and shall be entitled to recover the fees
paid by Customer, if any, for such infringing Deliverable under the applicable
Work Order, as well as any other Deliverable whose usefulness is materially
affected by the inability to use such infringing Deliverable, prorated over a
one-year period from the effective date of the applicable Work Order. If such
return materially effects VIANT's ability to meet its obligations under the
relevant Work Order, then VIANT may, at its option and upon thirty (30) days
prior written notice to Customer, terminate the applicable Work Order and,
contemporaneously with such termination, shall refund to Customer all fees,
including but not limited to all reimbursement for costs and expenses, paid by
Customer with respect to such infringing Deliverables as well as any other
Deliverable whose usefulness is materially affected by the inability to use such
infringing Deliverable. Customer shall, at its expense, defend and indemnify
VIANT and any entity controlling, controlled by or under common control with
VIANT from and against any and all claims, losses, liabilities, damages, claims
suits, fees, judgments, costs and expenses (including, but not limited, to
attorneys' fees) arising solely out of or in connection with (i) the combination
or use by Customer of any Deliverable with any materials not furnished by VIANT,
if such claim would have been avoided by use of the Deliverable alone, (ii) the
use or incorporation of any materials supplied to VIANT by Customer, or (iii)
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the content of any website created by VIANT and maintained by Customer.
(b) Indemnification Procedures. If either party becomes aware of a
claim which may require indemnification, the indemnified party will promptly
notify the other party in writing of the claim and will allow the other party to
assume control of the defense and settlement of the claim provided that the
indemnified party may assist in the defense at its own expense if it so chooses
and any settlement intended to bind the indemnified party shall not be final
without the indemnified party's written consent. The indemnified party will
provide the other party with the assistance and information necessary to defend
and settle the claim.
(c) Warranty. Each party represents and warrants to the other party
that it has the full power, right and authority to enter into and perform this
Agreement with the other party. VIANT further represents and warrants that:
(i) the Services will be performed in a professional manner, consistent
with generally accepted industry standards;
(ii) all Work Product produced under this Agreement shall be of
original development and all VIANT Property shall be of original development or
properly licensed to Customer, as the case may be, and all Work Product and
VIANT Property shall not infringe upon or violate any patent, copyright, trade
secret, trademark or other third party intellectual property right;
(iii) VIANT has enforceable written agreements with all of its
employees and subcontractors to be involved in any project under this Agreement
assigning to VIANT (and its assignees and successors) ownership of all patents,
copyrights, trade secrets and other proprietary rights created in the course of
their employment or engagement; and
(iv) the Deliverables will be designed and will operate in conformance
with the terms and conditions of this Agreement and the specifications jointly
agreed upon by Customer and VIANT, and will not violate any federal, state or
local law or regulation.
For any breach of the warranty provided in Section 6(c)(i) above,
Customer's exclusive remedy and VIANT's entire liability shall be the
re-performance of the Services. Customer must request such remedy from VIANT
in writing not more than ninety (90) business days following final acceptance
of the Deliverables. Customer warrants that it owns, or has the right to
provide to VIANT, Customer's Confidential Information. EXCEPT AS SET FORTH IN
THIS SUBSECTION 6(C), VIANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN
CONNECTION WITH THE SERVICES AND DELIVERABLES, INCLUDING THE RESULTS AND
PERFORMANCE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
(d) Limitation of Liability. THE MAXIMUM LIABILITY OF VIANT TO CUSTOMER
FOR DAMAGES RELATING TO VIANT'S FAILURE TO PERFORM THE (A) CONSULTING SERVICES
SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL CONSULTING FEES PAID BY CUSTOMER
TO VIANT PURSUANT TO THE APPLICABLE WORK ORDER AND (B) TRAINING SERVICES SHALL
BE LIMITED TO REIMBURSEMENT OF THE TOTAL TRAINING FEES PAID BY CUSTOMER, IF ANY,
PURSUANT TO THE APPLICABLE WORK ORDER. NOTWITHSTANDING THE FOREGOING, THE
MAXIMUM LIABILITY OF VIANT TO CUSTOMER FOR DAMAGES FOR ANY AND ALL OTHER CAUSES
WHATSOEVER, AND CUSTOMERS MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE
TOTAL FEES PAID BY CUSTOMER TO VIANT PURSUANT TO THE APPLICABLE WORK ORDER. IN
NO EVENT SHALL VIANT BE LIABLE FOR (X) ANY LOST DATA OR CONTENT, LOST PROFITS,
BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OR THE
SERVICES PROVIDED HEREUNDER, EVEN IF VIANT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (Y)
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FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY'S ACTIONS, FAILURE TO
ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, VIANT SHALL NOT BE LIABLE FOR PERSONAL INJURY OR
PROPERTY DAMAGE. IN ADDITION TO ANY AMOUNTS PAID TO CUSTOMER BY VIANT
PURSUANT TO THE TERMS OF THIS SECTION 6(D), VIANT AGREES TO REIMBURSE
CUSTOMER FOR ITS REASONABLE COSTS AND ATTORNEY'S FEES INCURRED IN ENFORCEMENT
OF THEIR RIGHTS HEREIN.
7. Term and Termination
(a) Term. The term of this Agreement shall commence on the Effective
Date shown on page 1 of this Agreement and shall continue until terminated
pursuant to this Section 7.
(b) Termination.
(i) Either party may terminate this Agreement or any outstanding Work
Order if the other party is in material breach of the terms of this Agreement
or such Work Order and has not remedied the breach within thirty (30) days of
written notice specifying the breach.
(ii) If not earlier terminated pursuant to (i) above, this Agreement
shall automatically terminate on June 30, 2002.
(c) Effect of Termination. Upon termination of such Work Order, the
following shall apply:
(i) Services for such Work Order shall cease at that time.
(ii) VIANT shall forward to Customer all Deliverables for which payment
has been rendered.
(iii) If the parties have disagreed as to the satisfaction of the
specifications of any Deliverable, and that disagreement has not been resolved,
the matter will be submitted to arbitration pursuant to the provisions of
Section 8(i) below. The arbitrators shall determine the fair market value of the
Deliverable whereupon Customer shall remit that amount to VIANT and VIANT shall
forward the Deliverable to the Customer.
(iv) VIANT shall forward to Customer all Customer Confidential
Information and all copies thereof.
(v) Customer shall pay all amounts due and payable under this
Agreement. With respect to Services provided by VIANT on a fixed fee basis, if
any, Customer shall pay VIANT a portion of such fixed fee amount equal to the
portion of the Services completed as of the date of such termination.
(vi) All rights and obligations provided under Sections 3 (to the
extent any fees or taxes remain unpaid or expenses have not been reimbursed), 4,
5, 6 and 8 shall survive such termination for any reason; provided that Section
5(b) shall survive for a period of three (3) years following such termination
for any reason.
(vii) Neither party will be liable to the other for damages, losses,
costs or expenses whatsoever on account of such termination arising from or in
connection with the loss of prospective sales, expenses incurred or investments
made with the establishment, development or maintenance of either party's
business.
(viii) Termination will not affect any claim, demand, liability or
right of Customer or VIANT made prior to such termination, except as described
in Section (iv) above.
8. Miscellaneous
(a) No Hiring. Both parties agree not to hire, or directly or
indirectly solicit or employ, any employee of the other who is involved in the
development, use or provision of Services to Customer prior to the date set
forth on Exhibit B hereto for the initial delivery of the final Deliverable to
Customer, and for twelve (12) months thereafter, without the prior written
consent of the other party.
(b) Assignment. Neither party shall assign, transfer or pledge this
Agreement Without the prior written consent of the other party. For the
purposes of this Section 8(b), without limitation, an assignment or transfer
by VIANT requiring the prior written consent of Customer shall be deemed to
have occurred (i) upon a merger or consolidation involving VIANT or a
transfer of the capital stock of VIANT or (ii) if VIANT sells, assigns,
conveys, transfers, leases or otherwise disposes of, in one transaction or a
series of related transactions, all or substantially all of its property or
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assets used in connection with the performance of the Services. A merger or
consolidation involving Customer shall not be deemed to require the prior
written consent of VIANT. The consent of each party to any assignment shall
apply only to the given instance, and shall not be deemed a consent to any
subsequent act. Subject to the foregoing, this Agreement inures to the benefit
of and is binding upon the successors and assignees of the parties hereto.
(c) Relationship between the Parties. Neither Customer nor VIANT is a
legal representative, agent, or a partner of the other. Each party will be
solely responsible for payment of all compensation owed to its employees, as
well as employment related taxes. Each party will maintain appropriate worker's
compensation for its employees as well as general liability insurance,
(d) Force Majeure. Except for obligations to pay money, neither party
shall be liable for any failure or delay in performance of its obligations
hereunder on account of strikes, riots, fires, explosions, acts of God, war,
governmental action, or any other cause which is beyond that party's reasonable
control.
(e) Entirety. This Agreement and all applicable Work Orders and
other documents incorporated herein constitute the complete agreement between
the parties and supersedes all previous and contemporaneous agreements,
proposals, 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. Subject to
this Section 8(e) and Section 2(d) above, no other act, document, or usage,
shall be deemed to amend or modify this Agreement or any Work Order, as
applicable. It is expressly agreed that any terms and conditions of any prior
communications between VIANT and Customer shall be superseded by the terms
and conditions of this Agreement and the applicable Work Order and all other
documents incorporated herein.
(f) Severability. In the event any provision of this Agreement is held
to be invalid or unenforceable, the remaining provisions of this Agreement will
remain in full force.
(g) Beneficiaries. VIANT and Customer shall be a third party
beneficiary of all confidentiality agreements contemplated by Section 5(b)
above.
(h) Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York, excluding conflict of laws provision,
applicable to agreements made and fully performed therein.
(i) Settlement Attempt-Arbitration. Any and all claims, disputes, or
controversies arising under, out of, or in connection with this Agreement or
the breach thereof, (herein "dispute") shall be submitted to the chief
operating officer of each party (or their designee) for a good faith attempt
to resolve the dispute. The position of each party shall be submitted, and
the individuals promptly thereafter shall meet at a neutral site. If the
parties are unable to reach agreement within thirty (30) days following such
meeting, then any dispute which has not been resolved within said thirty (30)
days by good faith negotiations between the parties shall be resolved at the
request of either party by final and binding arbitration, and neither party
may terminate the Agreement based upon any such dispute except in accordance
with the decision of the panel of arbitrators. Arbitration shall be conducted
in Suffolk County, Massachusetts, by three (3) arbitrators. The arbitrators
shall be knowledgeable in the commercial aspects of custom software
development, Internet applications technical consulting services and
copyright law and otherwise in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The parties shall select the
arbitrators within fifteen (15) days after the receipt by the noticed party
of the demand for arbitration delivered in the manner set forth herein for
providing notice to the parties. If the arbitrators are not selected by the
parties within said fifteen (15) days, then the American Arbitration
Association shall select the arbitrators. The arbitrators shall make detailed
written findings to support their award. The arbitrators shall render their
decision no more than forty-five (45) days after the parties finally submit
the claim, dispute or controversy to the panel. Judgment upon the arbitration
award may be entered in any court having jurisdiction. As part of any award
rendered the arbitrators shall determine the prevailing party on any claim or
counterclaim and shall award to such prevailing party the costs and fees
(including filing fees and other costs, as well as attorney consulting,
accounting and expert witness fees) incurred by such party with respect to
the claim or counterclaim on which such party prevailed.
(j) Waiver. The failure by either party to enforce at any time any of
the provisions of this Agreement, or to exercise any election or option provided
herein, shall in no way be construed as a waiver of such provisions or options,
nor in any way to
Page 9 of 16
affect the validity of this Agreement or any part thereof, or the right of
either party thereafter to enforce each and every such provision.
(k) Publicity. VIANT shall be allowed to use Customer's name on its
customer lists and disclose the same to its present and potential customers
after execution of this Agreement. Both parties may announce the execution of
this Agreement without disclosing the terms thereof upon prior written
approval of the other party. Any press release or other statement concerning
this Agreement issued by either party shall require prior approval in writing
of the copy by the other party.
(l) Notice: All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing and shall be
sent by registered or certified mail, postage prepaid or transmitted by
telegram, telefax or facsimile if confirmed by such mailing, to Customer and
VIANT at their respective addresses set forth on page 1 of this Agreement.
Either party may change its address or the individual designated to receive
notice by written notice to the other.
(m) Headings: The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect this meaning or
interpretation of any provisions of this Agreement.
Page 10 of 16
IN WITNESS WHEREOF, the parties hereto, by their duly authorized
representatives, have set forth their signatures as of the date first set forth
above.
VIANT CUSTOMER
By: /s/ [illegible] By: /s/ Xxxxxx Xxxxxxx
--------------------------------- --------------------------
Name: [illegible] Name: Xxxxxx Xxxxxxx
--------------------------------- --------------------------
Title: CFO Title: CEO Bluetape
--------------------------------- --------------------------
Date: 3/1/99 Date: [illegible]
--------------------------------- --------------------------
Page 11 of 16
Exhibit A: Schedule of Deliverables and Payment Details
Page 12 of 16
BlueTape/Viant
Deliverables and Payment Details
November 1, 1998
CONFIDENTIAL TREATMENT REQUESTED
Summary
This document provides details around specific deliverables and
milestones that BlueTape and Viant have agreed to tie to payments for
our project. It is meant to function as an attachment to the
Viant/BlueTape Master Services Agreement.
Deliverables have been bundled into Releases: we have defined five (5)
in total, variously: Sputnik; Earlybird; Mercury; Gemini; and Apollo.
Subsequent to defining the releases we have agreed that Gemini and
Apollo will be combined as one final release. A summary of the
functionality contained in each release is detailed below. The main
purpose of this document is to provide supporting detail to this
summary.
Figure 1: Release Summary, Major Functionality
[*]
* Certain information in this Exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
Deliverables and Payment Details -2-
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payments
Each Release has been tied to a target delivery date (see diagram
below). Payments have been tied to successful delivery of these
Releases. Viant plans to deliver on schedule, quality Releases that
conform to the agreed upon specifications. Further, Viant, working
closely with BlueTape, plans to successfully complete the agreed
functional acceptance testing on or before these target delivery dates.
BlueTape has committed to pay Viant the amounts specified below once
user acceptance testing has been completed and final sign-off has been
performed.
We summarize the agreed upon target Release delivery dates and
associated payment amounts below.
Figure 2: Release Target Dates and Anticipated Payment Stream
[*]
Deliverable Format
Each deliverable within each Release may take one of more these forms:
- Documents (delivered in Microsoft Word 97 and/or Powerpoint)
- Knowledge transfer (combination of face-to-face discussion and
necessary supplementary documentation, as appropriate)
- System set-up for the initial Sputnik release configuration and
then set-up for incremental functionality in subsequent
releases (e.g., commerce and advertising linkages)
* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
Deliverables and Payment Details -3-
Testing and the acceptance process
We have jointly defined a simple process that facilitates testing, user
acceptance and sign-off. We begin with definition of a number of terms.
Unit Testing
- Unit testing is designed to ensure that each code module is able
to deliver its respective functionality. During each unit test,
developers will self-test individual modules of code. For
instance, using a single class to add a video into the database
serves to isolate the code module in order to execute every
branch of logic, to investigate boundary conditions, and to
confirm exception handling.
- Unit testing is the sole responsibility of Viant
Content / Creative Review
- The content / creative review is designed to ensure that all
creative elements and content have been successfully completed
and added to the system. During these reviews, developers and
sponsors will view each creative element, e.g. streaming
director file, flash file, jpg, etc. to ensure that it meets
agreed upon specifications.
- Content/creative review is a joint exercise; creative leads from
the Viant team and the Bluetape creative point person have joint
responsibility and will manage the work effort to a successful
conclusion
Integration Testing
- Integration testing tests across applications. This set of tests
ensures that applications are inter-operating, exchanging
information accurately, and functioning as specified. This is
essentially end-to-end process testing for instance, if a new
video is added in the content manager, does the updated
information appear in the setlist maintenance console? Is it
possible to delete information by using one application that
would create errors in another application? Integration Tests
will be conducted by performing a series of operations outlined
in the test scripts. These test scripts will be created based on
the functionality outlined for each application in its approved
use case(s). Each test script will outline the step number, the
action, the expected result(s) and whether the system passed
the test step.
- Integration testing will identify defects with functionality
that differs from specifications as well as defects that deal
with minor aesthetic concerns. We will classify errors using a
simple defect scale and will record and manage defects in our
issue tracking system.
- Integration testing is principally a Viant responsibility, but
BlueTape will participate in defining test cases and overseeing
documentation of the testing process
Acceptance Testing
- The Acceptance Test validates that the Release functions as it
was, or will be, defined in the Functional Specification
Document approved by BlueTape. This testing will allow BlueTape
to confirm that the system performs as specified. Once
completed, formal-sign-off follows and indicates that the
release has been completed and that payment is now due.
- Acceptance testing is principally a BlueTape responsibility
- Releases will be considered accepted and signed-off if BlueTape
determines that the Release meets the test acceptance criteria.
In addition, BlueTape will be able to walk through/execute the
Integration Test scripts to confirm that the system reflects the
functionality described in the functional specification
document.
Deliverables and Payment Details -4-
The focus of acceptance testing will be to identify those defects that indicate
that the system does not meet the predefined functional specification. Those
defects deemed moderate to high priority will be fixed and a new Release will be
created for further testing.
For process definition, acceptance testing and Sign-off Viant will nominate a
single point of contact (the testing manager) BlueTape will also nominate a
single point of contact who will work with the designated Viant testing manager
to jointly define and approve the testing and acceptance process. This testing
and acceptance process will be documented in writing by both parties in a
detailed manner acceptable to both parties. Bluetape will communicate defects
and perform sign-off through this single point of contact.
Below is an illustrative timeline that presents how the various testing and
integration activities typically work together. This generalized structure will
be customized for each specific Release.
Testing M T W Th F Sa Su M T
Activity
- Unit Testing X
(Viant
Developers)
- Content/ X X
Creative Review
(Viant,
BlueTape)
- Integration X X X X
Testing Two Interim releases/day
(Viant) Test windows : 7am - 11am
and 1pm - 5pm
- Acceptance X X X X X
Testing Acceptance Final
(BlueTape) Testing Changes
Final and
Freeze formal
Sign off
Viant and BlueTape have mutually agreed that for major releases, five (5) days
of acceptance testing will be allowed; for minor release, three (3) days have
been agreed upon. Acceptance testing will commence when the Release is in large
measure functionally complete.
Deliverables and Payment Details -5-
Joint Accountability
Both BlueTape and Viant are committed to success. However, circumstances may
occur where, despite best efforts, either party may be unable to deliver on
specific items as planned. We have detailed below a set of assumptions to help
clarify the involvement and responsibilities of each party.
Activity Assumptions
-------- -----------
Project - BlueTape executive management and Viant leadership will
Management jointly steer and direct the entire project. Viant will
be responsible for Program Management for the whole
project and will also be responsible for managing all
work streams including partner work streams where Viant
has subcontracted with a Third party (such as with
Possible Worlds)
- Viant will utilize a Project Management process that
will introduce a structure and rigor to ensure the
project creates quality and adheres to declared
timelines and milestones
- Viant Program Management will be responsible for
coordinating and communicating among all different work
streams
Functional - BlueTape executive management will be available on a
Requirements regular basis to assist in fully defining and clarifying
business goals and functional requirements
- All team members are familiar with the impact that
function changes will have on delivery and cost
- Limited changes to Functional Requirements may be
necessary due to changing market conditions. To the
extent that they do not become an impediment to
progress, Viant will commit to estimating the size of
the work effort and impact before committing to execute
those changes
- A senior contact from BlueTape will be identified to
accept responsibility for each key decision (in scope,
out-of-scope, etc.) and for final Functional
Requirements sign-off
Technical - BlueTape executive management will be available on a
Requirements regular basis to assist in defining and clarifying
business goals and technical requirements
- The tradeoffs between and 'ideal' technical solution and
timely delivery are clearly understood by the team
- A senior contact from BlueTape will be identified to be
responsible, in conjunction with the appropriate Viant
person, for each key decision (in scope, out-of-scope,
etc.) and for final Technical Requirements sign-off
Deliverables and Payment Details -6-
Activity Assumptions
-------- -----------
Sputnik Build - Since Sputnik is a market Pilot, it is understood that
time-to-market is the key driving factor
- Any substantial delays in procurement of hardware /
software products, connectivity and other technical
solutions from partners will affect project timelines
- The Technical Architecture document recommends various
third-party technologies and components. These
components have been suggested based on either prior
evaluation or Viant first-hand experience. However,
product functionality, bug fixes, new release dates and
general customer support from third-party vendors cannot
be guaranteed. Any major functionality delinquencies
associated with third-party products will impact the
overall project deadlines
Post Sputnik - Sputnik will undergo redesign and be extended and
Releases enhanced in later Releases.
- At launch, Bluetape will offer Sputnik and will have the
capability to launch additional channels leveraging
reusable components and automation support (e.g.,
"wizards")
- Sputnik will be implemented as the first of a series of
Releases. Major learnings from Sputnik will be applied
to later Releases. This may include changes to some of
the assumptions and potentially impact Sputnik
timelines. All scope changes will be discussed before
acceptance.
- Any delays in procurement of hardware / software
products, connectivity and other technical solutions
from partners are likely to affect project timelines
- The Technical Architecture document recommends various
third-party technologies and components. These
components have been suggested based on either prior
evaluation or first-hand Viant experience. However,
product functionality, bug fixes, new release dates and
general customer support from third-party vendors cannot
be guaranteed. Any major functionality delinquencies
associated with third-party products will impact the
overall project deadlines
- All content encoding will be performed by BlueTape staff
Deliverables and Payment Details -7-
Activity Assumptions
-------- -----------
Music Choice Downstream (Music Choice to BlueTape)
Integration - Music Choice will provide documentation and
personnel for on-demand support for demodulating
their signal and acquiring real-time song
attribute data in ASCII or equivalent form
- Website co-creation for context pages (surrounding text,
graphics, and navigation)
Upstream (BlueTape to Music Choice)
- Music Choice will provide documentation and personnel
for on-demand support for encoding Sputnik music streams
in their digital format
- Only audio and attribute data will be encoded for
Sputnik on Music Choice that is, Sputnik on Music Choice
will not include ancillary data from Sputnik (e.g.,
lyrics) will only include attribute data (chyron)
- Music Choice will provide network transport resources
necessary to up-link our signal to their service
Strategic and - BlueTape executive management will be available to
Business assist in defining, clarifying and aligning business
Vision vision and assisting in key operating issues
Alignment
- Any major changes to the business vision during the
"Launch" phase are likely to impact project timelines
- Any delays in major Strategic deals with other players
in the industry may potentially impact project timelines
Financial - BlueTape will incur all costs associated with
partner consulting services except for the specific
services rendered by Possible Worlds as part of this
work effort
- BlueTape will incur all costs associated with
purchasing third-party products (hardware, software,
telecommunication costs, network connectivity) unless
discussed otherwise
- BlueTape will support reasonable expenses for both
in-town team members (typically, late night cab fares
and dinners) and out-of town team members (hotel,
air-fare, meals, etc.)
- Any specific item that needs to be purchased for the
project will need to be explicitly approved by the
BlueTape Project Leader. If the item value exceeds $1500
it will require explicit sign-off from the BlueTape CEO,
or equivalent BlueTape authority
Marketing and - Any delays in major Marketing and Sales deals may
Sales potentially impact project timelines.
Operations - Timely setup of Operations (Core Functions) as outlined
(Organization, in the Digital Operating Model are important to overall
etc.) BlueTape business rollout
Deliverables and Payment Details -8-
Activity Assumptions
-------- -----------
Testing & QA - Business users will be available on a regular basis
to appropriately test the applications during the QA
stage
- A single point of contact will be identified from within
the BlueTape organization to review and sign-off all
testing QA cycles
- System "bugs" discovered during the testing & QA phase
will be classified into various severity levels. For
example:
- Severity 1: Highest Severity Bug; Application
is not functional; No work around exists
- Severity 2: High Severity; Significant
functionality not working;
- Severity 3: Medium Severity; Major functionality
not impacted, work around exists
- Severity 4: Low Severity
- Severity 5: Lowest Severity Bug; Mostly visual,
graphical, etc.
- Tradeoff between timely delivery and fixing "bugs" at a
certain severity level will be determined at the
appropriate point during the project
Roll-out - Initial roll-out for both initial and later Sputnik
Releases is assumed to be at a single physical location
(data center)
- Data Center support resources will be made available
during the roll-out and planning stages
- Appropriate levels of Customer Care support and Help
Desks will be established by BlueTape prior to any
roll-outs
Management - All MIS systems (general ledger, AR, etc.) will be
Information serviced through BlueTape's parent company
Systems
Legal - All issues pertaining to legal matters will be handled
by BlueTape staff
As we had during earlier phases of the project, an overall steering committee
comprising Xxxxxx Xxxxxxx, Xxxx Xxxxx and necessary members of their staff has
been defined. This committee will meet to resolve any issues that appear
intractable and will have final authority in resolving issues. Our current
working arrangement is such that formally scheduled meetings are not
anticipated, as tactical communication has been excellent. Should this situation
alter, we will institute more formality to the project steering process.
Deliverables and Payments Details -9-
CONFIDENTIAL TREATMENT REQUESTED
Sputnik-Overview
[*]
Sputnik-Deliverable Details
Summary of Viant Deliverables
- Sputnik production system with supporting documentation
- Successful execution of approved QA test suite on all
reference platforms
- Successful transfer of executables onto production environment
- Machine-readable source code for all original software,
artwork, and animations
- Documentation and training suitable for BlueTape to commence
production operations
- User manual
- Style guide
- Production workbench specification
- Production environment hardware and third party and custom
software setup(1)
- Very limited production support during "burn-in" period (one
week maximum) following acceptance of initial Sputnik release
Summary of BlueTape responsibilities
- Timely availability of licensed and unlicensed content (videos and
copy)
- Legal requirements, copy, and approval
- ISP deal and premises secured
- Production equipment and software acquired
- Timely approval of all original and encoded content elements
- Acquisition of sputnik URL (or acceptable alternative)
- Production hardware and software verified by BlueTape personnel
--------------------
(1) Note - Viant standard operating procedure in these matters is limited to
custom software installation.
* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -10-
Presented below are deliverable details for various areas. We identify and then
describe each deliverable, noting sign-off timing and "drop dead" dates for each
deliverable, where appropriate. As can be see in the descriptive text, many of
these drop dead dates involve initial decisioning or deliverables from BlueTape,
which if not executed in a timely fashion will impact the final sign-off date.
Sputnik Application Deliverables
Deliverable Description
----------- -----------
[*] [*]
* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -11-
[*]
Sputnik Project Management Deliverables
Deliverable Description
----------- -----------
Program Management Manage and coordinate all development and
business activities for Sputnik release
Project Management Manage overall Sputnik development effort and
related activities
Technical Requirement Coordinate and create final definition of the
Definitions & Use Cases overall Sputnik technical requirements and
functional specifications
Integration Testing Define, manage and successfully deliver fully
tested applications
User Acceptance Testing Review and test the system. Client to ensure
that the system is operating according to
specifications. Clients sign-off on the
completed product
Develop User Documentation Create operating manuals, style guides, and
technical references that appropriately reflect
Sputnik's current system complexity
Sputnik Creative Deliverables
Deliverable Description
----------- -----------
[*] [*]
* Certain information in this Exhibit has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
Deliverables and Payment Details -12-
--------------------------------------------------------------------------------
User Experience Develop materials (animations, information
architecture, behaviors) required to provide the
desired Sputnik user experience.
Viant will oversee the production and testing of
required Sputnik launch collateral and will ensure
that the collateral conforms to the pre-defined
UE architecture. Viant will, through a process of
creative reviews, obtain client sign-off prior to
final implementation.
--------------------------------------------------------------------------------
Documentation Develop and deliver Style Guide that captures the
rules for developing content for the site.
--------------------------------------------------------------------------------
Sputnik Business Operations Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Guerilla Marketing Design, and assist in rollout of Marketing Plan
--------------------------------------------------------------------------------
Web Hosting Identify and compare web hosting vendors and
provide support for BlueTape in selecting vendors
--------------------------------------------------------------------------------
Advertising Investigate outsourcing options for advertising
sales and fulfillment
--------------------------------------------------------------------------------
Financial Model Support Bluetape in revising the financial
model to include new advertising outsourcing
options, web-hosting options and revised revenue
information. Revise model to update cost information
(sourced by BlueTape)
--------------------------------------------------------------------------------
Ecommerce Investigate and research partnering opportunities
with ecommerce partners. Also, help define
Bluetape, short and long term objectives for
ecommerce strategy.
--------------------------------------------------------------------------------
Operational Ongoing support with regards to meetings,
confirming setups, and schedules, NDA's etc.
Assistance in equipment acquisition.
--------------------------------------------------------------------------------
Privacy and copyright Jointly develop a Copyright and Privacy policy and
process for Sputnik. This task includes providing
support for both developing and implementing the
copy.
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -13-
[*]
This release will add functionality to the Sputnik baseline. We describe below
additional deliverables that extend and enhance this baseline.
Summary of Viant Deliverables
o Enhanced Sputnik production system with supporting documentation including
the following new features:
[*]
Summary of BlueTape Responsibilities
o Arrangement with select eCommerce vendor in place by 9/11
o Licensing, acquisition, sourcing, data scrubbing, and data entry of
ancillary content provided by BlueTape with specific data formats
available by 9/14
o BlueTape adoption of encoding portion of production process
--------------------------------------------------------------------------------
Earlybird Application
Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Sandbox Customer Support This functionality will provide the ability to
site test new functionality to a limited audience.
The sandbox will also provide the ability to
track user feedback through a simple reporting
mechanism. Viant and BlueTape will generate the
functional specifications and will design, build
and unit test the application.
--------------------------------------------------------------------------------
Basic Content Targeting/DJ This enhanced functionality will provide the
Console design ability to create programming for more than one
channel. It will also provide the ability to
auto-generate setlists with slugs for ad spots. It
will be placed in the sandbox area for testing
during Earlybird. Initial scope will focus around
screen functionality and general design, but will
include other features such as preview. Viant and
BlueTape will generate the functional
specifications and will design the application.
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -14-
[*] [*]
--------------------------------------------------------------------------------
Earlybird Project Management Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Program Management Manage and coordinate all development and business
activities for Earlybird release
--------------------------------------------------------------------------------
Project Management Manage overall Earlybird development effort and
related activities.
--------------------------------------------------------------------------------
Technical Requirement Coordinate and create final definition of the
overall
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Deliverables and Payment Details -15-
--------------------------------------------------------------------------------
Definitions & Use Cases Earlybird technical requirements and functional
specifications
--------------------------------------------------------------------------------
Integration Testing Define, manage and successfully deliver testing of
updated and new applications and the completed
system
--------------------------------------------------------------------------------
User Acceptance Testing Review and test the system. Client to ensure that
the system is operating according to
specifications. Client signs-off on the completed
product.
--------------------------------------------------------------------------------
Develop User Update operating manuals, style guides, technical
Documentation references, as appropriate.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Earlybird Creative
Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Earlybird UE design The user experience will be revisited and enhanced
to account for Velvet Rope, Sandbox, Ancillary
Content, and include eCommerce treatments, as
appropriate. This process typically consists of
iterative creative reviews and design mock-ups,
and a final creative sign-off
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Earlybird Business Operations Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Ecommerce Provide eCommerce outsourcing analysis and assist
with closing deal with retail fulfillment company
--------------------------------------------------------------------------------
Ancillary Content Provide ancillary content sourcing support and
assistance. Help with negotiations. Support
operational process and rollout.
--------------------------------------------------------------------------------
Operational Support Ongoing support with regards to meetings,
confirming setups, and schedules, NDA's etc.
--------------------------------------------------------------------------------
Advertising Continue to assist with outsourcing options for
advertising sales and fulfillment
--------------------------------------------------------------------------------
Financial Model Continue to assist Bluetape model revisions
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -16-
Mercury
This release will add functionality to the Earlybird baseline. We describe below
additional deliverables that extend and enhance this baseline.
Summary of Viant Deliverables
o Enhanced version of Sputnik production system with supporting
documentation including the following additions
[*]
Summary of BlueTape Responsibilities
o eCommerce fulfillment and settlement arranged by BlueTape
o Timely approval of Mercury design by BlueTape
o Timely acquisition, encoding, and data entry of required content by
BlueTape staff
o Responsibility for third party content validation source acquisition
rested solely with BlueTape and needs to be completed by 10/9.
o BlueTape operations autonomously executing music programming
o MusicChoice deal and requirements need to be finalized by mid-October
-- Technical requirements subject to evaluation and approval by Viant --
Special equipment to be provided by BlueTape or MusicChoice -- Content
feeds to be provided, to Viant premises demarcation point
--------------------------------------------------------------------------------
Mercury Application
Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Sandbox functionality Migrate tested and approved Earlybird Sandbox
migration functionality, i.e., Ancillary content, Basic
Content Targeting, etc. into Mercury system
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -17-
--------------------------------------------------------------------------------
Functional specifications and will design, build
and unit test the application.
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
Advanced System This enhanced functionality will provide
Administration additional capabilities to administrate the system
remotely
--------------------------------------------------------------------------------
Community (chat) and Community (chat). This additional functionality
Personalization - Sandbox will provide some component of community on the
site. Initial scope will be focused on chat. It
will be placed in the Sandbox area for testing
during Mercury. Initial scope will focus around
screen functionality and general design
Personalization. This additional functionality
will provide enhanced personalization services. It
will be placed in the Sandbox area for testing
during Mercury. Initial scope will focus around
screen functionality and general design. Exact
services have not yet been determined. Specific
functionality will be detailed in a separate
attachment once final decisioning has been
completed. Candidate functional areas may include
support for customization of "streams" or other
functionality.
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -18-
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
Mercury object model design The object model will be updated to reflect new
& changes functionality being added and/or tested. Viant and
BlueTape will generate the functional
specifications and will build the new model.
--------------------------------------------------------------------------------
Mercury See Figure 2: Release Target Dates and Anticipated
Payment Stream
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Mercury Project Management Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Program Management Manage and coordinate all development and business
activities for Mercury.
--------------------------------------------------------------------------------
Project Management Manage overall Mercury development effort and
related activities
--------------------------------------------------------------------------------
Technical Requirement Coordinate and create final definition of the
Definitions & Use Cases overall Mercury technical requirements and
functional specifications
--------------------------------------------------------------------------------
Integration Testing Define, manage and successfully deliver testing of
applications and completed system
--------------------------------------------------------------------------------
User Acceptance Testing Review and test the system. Client to ensure that
the system is operating according to
specifications. Client signs-off on the completed
product.
--------------------------------------------------------------------------------
Update User Documentation Update operating manuals, style guides, technical
references, as appropriate
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Deliverables and Payment Details -19-
--------------------------------------------------------------------------------
Mercury Creative Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Mercury UE Design The user experience will be revisited to account
for new functionality. Browse, search, chat, and
personalization will be the principal UE
extensions. This process typically consists of
iterative creative reviews and design mock-ups,
and a final creative sign-off
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Mercury Business Operations Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Ancillary Content Support operational process and rollout, as
appropriate
--------------------------------------------------------------------------------
eCommerce Support operational process and rollout, as
appropriate
--------------------------------------------------------------------------------
Operational Support Ongoing support with regards to meetings,
confirming setups, and schedules, NDA's etc.
--------------------------------------------------------------------------------
Knowledge Transfer Execute knowledge transfer sessions with
identified BlueTape operations personnel document
process as necessary to ensure smooth transition
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -20-
Gemini
Note: From a delivery perspective, we have combined Gemini and Apollo into one
final release.
This release will add functionality to the Mercury baseline. We describe below
additional deliverables that extend and enhance this baseline.
Summary of Viant Deliverables
o Enhancement of Sputnik production system with supporting documentation
including the following additions
[*]
Summary of Bluetape Responsibilities
o Timely approval of design and requirements by BlueTape
--------------------------------------------------------------------------------
Gemini Application
Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Additional Channels This functionality includes the ability to
Support - Sandbox program, design and operate additional channels
vis a vis Sputnik. It will be placed in the
sandbox area for testing throughout this stage.
Viant and BlueTape will generate the functional
specifications and will design, build and unit
test.
--------------------------------------------------------------------------------
Additional Channels This functionality will ensure that additional
Integration with Sputnik channels are well integrated, enabling core
components such as the content manager and digital
library to be shared and reused.
Viant and BlueTape will generate the functional
specifications and will design, build and unit
test a Sandbox version
--------------------------------------------------------------------------------
Sandbox functionality Migrate tested and approved Mercury Sandbox
migration functionality, i.e., All-Request, personalization,
content browsing and community (chat)
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
Gemini object model design The object model will be updated to reflect the
& changes new functionality being added and/or tested. Viant
and BlueTape will generate the functional
specifications and will build the new model.
--------------------------------------------------------------------------------
Launch See Figure 2: Release Target Dates and Anticipated
Payment Stream
--------------------------------------------------------------------------------
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Deliverables and Payment Details -21-
Gemini Project Management Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Program Management Manage and coordinate all development and business
activities for Gemini release.
--------------------------------------------------------------------------------
Project Management Manage overall Gemini development effort and
related activities
--------------------------------------------------------------------------------
Technical Requirement Coordinate and create final definition of the
Definitions & Use Cases overall Gemini technical requirements and
functional specifications
--------------------------------------------------------------------------------
Integration Testing Define, manage and successfully deliver testing of
applications and completed system
--------------------------------------------------------------------------------
User Acceptance Testing Review and test the system. Client to ensure that
the system is operating according to
specifications. Client signs-off on the completed
product.
--------------------------------------------------------------------------------
Update User Documentation Update operating manuals, style guides, technical
references, as appropriate
--------------------------------------------------------------------------------
Gemini Creative Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Gemini UE Design The user experience will be revisited to account
for new functionality. This process typically
consists of two iterative creative reviews and
design mock-ups.
--------------------------------------------------------------------------------
"Uberbrand" design The development and integration of a second
channel involves definition of an overall set of
"uberbrand" elements. The user experience will be
revisited to account for this
--------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT REQUESTED
Deliverables and Payment Details -22-
Apollo
Note: From a delivery perspective, we have combined Gemini and Apollo into one
final release.
This final Release will add functionality to the Gemini baseline. We describe
below additional deliverables that extend and enhance this baseline.
Summary of Viant Deliverables
o A further enhanced version of Sputnik with supporting documentation
including the following new elements -- Additional channels support in
production -- Ad "banner" targeting service integration
[*]
Summary of BlueTape Responsibilities
o Arrangement and requirements for ad banners in place by 11/15/98
o BlueTape premises and staff in place to receive physical technology
environments
o Transportation and installation of environments arranged and paid for by
BlueTape
Apollo Application
Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*]
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Deliverables and Payment Details -23-
Apollo Project Management Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Program Management Manage and coordinate all development and business
activities for Apollo in preparation for hand-off
to BlueTape
--------------------------------------------------------------------------------
Project Management Manage overall Apollo development effort and
related activities in preparation for hand-off to
BlueTape
--------------------------------------------------------------------------------
Technical Requirement Coordinate and create final definition of the
Definitions & Use Cases overall Apollo technical requirements and
functional specifications
--------------------------------------------------------------------------------
Integration Testing Define, manage and successfully deliver testing of
applications and completed system
--------------------------------------------------------------------------------
User Acceptance Testing Review and test the system. Client to ensure that
the system is operating according to
specifications. Client signs-off on the completed
product.
--------------------------------------------------------------------------------
Update User Documentation Update and turn over operating manuals, style
guides, technical references to BlueTape, as
appropriate
--------------------------------------------------------------------------------
Apollo Creative Deliverables
--------------------------------------------------------------------------------
Deliverable Description
--------------------------------------------------------------------------------
Apollo UE Design The user experience will be revisited to account
for final new functionality. This process
typically consists of iterative creative reviews
and design mock-ups, with final creative sign-off.
--------------------------------------------------------------------------------
Deliverables and Payment Details -24-
BlueTape Project Team
Anticipated Rolloffs* by Date (+/- 2 weeks)
--------------------------------------------------------------------------------
Xxxxxx Xxxxx, Xxxxxxxx
--------------------------------------------------------------------------------
September Haque, Haba, Jer, Tunnas
--------------------------------------------------------------------------------
October Xxxxxxxx, Haba
--------------------------------------------------------------------------------
November Xxxxx, Xxxxxx, Grayson, Palmer, Rattner,
Adamjee, Xxxxx
--------------------------------------------------------------------------------
December Feldman, Keany, Forest
--------------------------------------------------------------------------------
January Xxxxxxxx, Xxxxx, Xxxxxx, Xxxxxxxx
--------------------------------------------------------------------------------
Anticipated Rolloffs* by Individual (+/- 2 weeks)
--------------------------------------------------------------------------------
Adamjee November
--------------------------------------------------------------------------------
Xxxxxxxx October
--------------------------------------------------------------------------------
Xxxxx November
--------------------------------------------------------------------------------
Xxxxxxx December
--------------------------------------------------------------------------------
Forest December
--------------------------------------------------------------------------------
Xxxxx January
--------------------------------------------------------------------------------
Xxxxxx November
--------------------------------------------------------------------------------
Xxxxxxx November
--------------------------------------------------------------------------------
Haba September, October
--------------------------------------------------------------------------------
Xxxxx September
--------------------------------------------------------------------------------
Jer September
--------------------------------------------------------------------------------
Xxxxx December
--------------------------------------------------------------------------------
Xxxxxx January
--------------------------------------------------------------------------------
Xxxxxxxxx November
--------------------------------------------------------------------------------
Xxxxxx November
--------------------------------------------------------------------------------
Possible Worlds November
--------------------------------------------------------------------------------
Rattner November
--------------------------------------------------------------------------------
Xxxxx August, November
--------------------------------------------------------------------------------
Xxxxxxxx August
--------------------------------------------------------------------------------
Xxxxxxxx January
--------------------------------------------------------------------------------
Tunnas September
--------------------------------------------------------------------------------
Xxxxxxxx January
--------------------------------------------------------------------------------
* These rolloff dates have been determined by evaluating each individual's
responsibilities, assigned tasks and related delivery dates. While every
effort has been made to ensure that these dates remain valid, unanticipated
events may require us to modify them.
We will ensure that these rolloffs will not put the project at risk; Both
Viant and BlueTape are committed to a successful project outcome.
Exhibit B: Form of Work Order
VIANT
VIANT
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
xxxx://xxx.XXXXX.xxx
Work Order ISLO-31030
--------------------------------------------------------------------------------
This Work Order is incorporated into and governed by the Master Services
Agreement number MSANumber dated June 21st, 1998 between VIANT, 00 Xxxxx Xxxxxx,
Xxxxxx, XX 00000 ("VIANT") and Bluetape ("Customer").
1. Consulting Services Description.
Viant will lead the implementation of a series of five releases of both
business operations and website functionality, (variously: "Sputnik",
"Earlybird", "Mercury", "Gemini", "Apollo") as part of Bluetape's market
pilot test. For each of these releases, Viant will act as "Lead
Consultant", application development provider, creative development
provider, offer business operations supplementation, and work closely with
Bluetape executive management to ensure a successful project. Full details
of these releases and Viant's specific deliverables can be found in the
accompanying Viant/Bluetape Schedule of Deliverables and Payment Details
document dated November 5th, 1998.
2. Location where service are rendered.
Primarily in Viant's New York Office
3. Principal Contacts.
The principal contact for Viant for this Work Order is Xxxxxxx Xxxxx. The
principal contact for Customer for this Work Order is Xxxxxx X.
Xxxxxxx.
Page 1 of 16
CONFIDENTIAL TREATMENT REQUESTED
4. Schedule.
This Work Order will expire 01/31/99.
Charges for the Services.
--------------------------------------------------------------------------------
Consulting
Category Start Date End Date Duration Rate Total Cost
--------------------------------------------------------------------------------
Category 6/21/98 01/11/99 Duration NA [*]
--------------------------------------------------------------------------------
Payment for Deliverables shall be made upon final acceptance of such
Deliverables pursuant to the terms of the Schedule of Deliverables and Payment
Details attached hereto as Exhibit A.
Invoices will be dated 30 days in advance of the above dates and are payable
on a net 30 day basis. [*] in advertising on the Customer's site equal to
such value based on the Customer's standard advertising rates. The [*] in
advertising shall be allocated over three years in percentages per year to be
determined by VIANT. All other terms related to this provision for
advertising shall be agreed to by the mutual consent of the parties.
[*] cash royalty payments based on total net revenues by the Customer from all
sources for the Customers fiscal years ending 12/31/99, 12/31/2000, 12/31/2001.
The first payment shall be made 60 days after the end of the first 9 months and
60 days after the end of each quarter thereafter, in the aforementioned fiscal
years. Customer's accounting records are to be audited by an independent CPA no
more than once per annum, and, Viant reserves the right to inspect the
customer's accounting records upon giving reasonable notice to customer no more
than once per annum. Total royalty payments shall not exceed [*]
Additional Items:
Customer to provide active, ongoing references in the form of
introductions and qualifications with existing and prospective
clients
There will be an issuance of a joint press release announcing this
partnership, (when appropriate as agreed by both parties), and
future mentions of our joint partnership in press releases and press
reports
Customer commits to Viant that it shall be the "preferred partner" in its
future OEM program for implementing the "OEM services" for Bluetape
customers. Viant agrees to provide Customer with an additional 7.5%
of Viant revenues generated directly from the implementation of the
"OEM services" that were referred to Viant by Customer
Customer to provide free subscriptions to all Bluetape channels rolled out
within 1 year after final acceptance of the final Deliverable to
Viant for the purposes of referring customers and demonstrating
Viant's capabilities. These may take the form of "Hotlinks" to
Customer's sites from the Viant homepage, and/or be bounded by time,
passwords, or other appropriate controls
* Certain information in this Exhibit has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Out of Pocket Expenses:
To be paid within 30 days of invoicing
Not to exceed 10% of total contract price without written permission from client
To be itemized and described in the relevant invoice
