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EXHIBIT 10.19
OMNIBUS SERVICES AGREEMENT
THIS OMNIBUS SERVICES AGREEMENT (this "Agreement") is entered into as
of February 1, 1999 ("Effective Date") by and between Organic, Inc., with
offices located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000
("ORGANIC") and BLOCKBUSTER INC., with principal offices located at 0000 Xxx
Xxxxxx, Xxxxxx, Xxxxx 00000 ("CUSTOMER").
WHEREAS, ORGANIC provides assistance to companies in developing
e-commerce and internet business solutions for use on the Internet public
computer network, and other related services; and
WHEREAS, CUSTOMER desires to retain ORGANIC to provide such assistance
and services to CUSTOMER in accordance with the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the parties set forth above hereby agree as follows:
1. DEFINITIONS.
1.1 "Affiliate" shall mean, with respect to an entity, another entity
that controls or is controlled by such first entity; provided that
(a) such other entity is not itself, does not control, and is not
controlled by or under common control with, a competitor of
ORGANIC; and
(b) such other entity is in the entertainment business.
For purposes of this Section, "control" shall mean both:
(x) the ability to control directly or indirectly the direction
and management of the controlled entity; and
(y) the ownership of greater than 30% of the voting equity
interest in the controlled entity.
1.2 "APPLICABLE SPECIFICATIONS" shall mean the designs and
specifications mutually agreed upon in writing by the parties for functionality
of the portions of the Web Site that are Deliverables and/or any other
Deliverable, including updated versions of the Interactive Design Functional
Specifications dated as of July 15, 1999, the Data Components and Interfaces
Diagram dated June 28, 1999, the Redundant Network diagram dated June 28, 1999,
the Physical Systems and Network Diagram dated June 28, 1999, and the Content
Feeds Diagram dated June 28, 1999, which shall be revised by ORGANIC and
provided to Customer no later than the Hard Launch of the Web Site for review
and approval by Customer; together with any user guides or operating manuals for
the portions of the Web Site that are Deliverables and other Deliverables to the
extent such user guides are prepared by ORGANIC and delivered by ORGANIC to
CUSTOMER.
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1.3 "Authorized Licensee" shall mean the following:
(a) CUSTOMER;
(b) up to three (3) franchisees of CUSTOMER; provided that such
franchisees have agreed in writing with ORGANIC to be bound by
the terms of Sections 3.1 and 9 of this Agreement;
(c) Affiliates of CUSTOMER.
1.4 "CUSTOMER CONTENT" shall mean marketing collateral, data,
databases, text, audio files, video files, photographs, illustrations, graphics
and other materials: (a) provided or posted on the Web Site by CUSTOMER; or (b)
developed by or on behalf of ORGANIC pursuant to the mutually-agreed
specifications set forth in Statement(s) of Work (as defined). Customer Content
expressly does not include Organic Software, Organic Materials, Third Party
Materials, Developed Software or Developed Materials.
1.5 "DELIVERABLES" shall mean materials to be developed, delivered
and/or implemented by ORGANIC hereunder, including, without limitation, those
elements of the Website developed and implemented by ORGANIC, system
configurations developed and implemented by ORGANIC, Customer Content developed
by Organic, Developed Software, Developed Materials, Documentation developed by
Organic, HTML Code, Organic Materials, Organic Software and Third Party
Materials. The Deliverables expressly do not include materials licensed by,
developed, delivered and/or implemented by CUSTOMER or by CUSTOMER's third-party
licensors or third-party contractors.
1.6 "DEVELOPED MATERIALS" shall mean reports, studies, designs,
specifications, Documentation, manuals, data and other materials (and any
translations, conversions, improvements, enhancements, or modifications to any
of the foregoing) that the parties mutually agree in writing (e.g. in Schedule D
or in a Statement of Work) are "Developed Materials" and are developed or
prepared by ORGANIC for CUSTOMER and in connection with this Agreement and
delivered by ORGANIC to CUSTOMER under this Agreement. The Developed Materials
expressly do not include any Third Party Materials or Customer Content.
1.7 "DEVELOPED SOFTWARE" shall mean any Software that the parties
mutually agree in writing (e.g. in Schedule D or in a Statement of Work) is
"Developed Software" and is developed by ORGANIC for CUSTOMER in connection with
this Agreement and delivered by ORGANIC to CUSTOMER under this Agreement
(excluding HTML Code). The Developed Software expressly does not include any
Third Party Materials.
1.8 "DOCUMENTATION" shall mean user guides, operating manuals,
education materials, product descriptions and specifications, technical manuals,
supporting materials, and other information relating to Deliverables or used in
conjunction with the Services, whether distributed in print, magnetic,
electronic, or video format.
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1.9 "HTML CODE" shall mean Hyper Text Markup Language that contains
Customer Content.
1.10 "INDEMNIFIED ITEM" shall mean the Deliverables, ORGANIC
Confidential Information disclosed to CUSTOMER and the intellectual property
rights in or to the foregoing.
1.11 "LAUNCH DATES" shall mean the dates that different versions of the
Web Site become accessible to CUSTOMER's end-users. The Launch Dates shall
consist of a "Soft Launch" on October 30, 1999, containing functionality
addressed in Exhibit A-1, and a "Hard Launch" on November 22, 1999, containing
functionality addressed in Exhibits X-0, X-0 and A-6.
1.12 "ORGANIC MATERIALS" shall mean the pre-existing materials set
forth on Schedule D derivative works thereof and materials that are developed by
ORGANIC and related to the Web Site that the parties mutually agree in writing
(e.g. in a Statement of Work) are not Developed Materials. The Organic Materials
expressly do not include any Developed Materials, Developed Software, Customer
Content, HTML Code, Third Party Posted Content, Third Party Materials or
materials licensed by CUSTOMER from third parties.
1.13 "ORGANIC SOFTWARE" shall mean the pre-existing Software developed
by ORGANIC and related to the Web Site, including, without limitation, the
Software set forth on Schedule D and the Software and Software Changes thereto
that the parties mutually agree in writing (e.g. in a Statement of Work) are not
Developed Software. The Organic Software expressly does not include any
Developed Materials, Developed Software, Third Party Tools, Third Party
Materials, HTML Code or Software licensed by CUSTOMER from third parties.
1.14 "PRODUCTION SPECIFICATIONS" shall mean the specification of the
digitized format in which Customer Content is to be delivered to or formatted by
ORGANIC, as applicable, as set forth in any Statement of Work.
1.15 "RESERVED WORK" shall mean materials and/or Software that are
identified in strict accordance with Section 3.9 of this Agreement as "Reserved
Work" in Schedule D or in the applicable Statement of Work.
1.16 "SERVER USAGE DATA" shall mean server usage data and statistics
related to the Web Site, generated by the Organic Software, in form and
substance to be mutually-agreed upon by the parties.
1.17 "SERVICES" shall mean the services to be provided by ORGANIC under
this Agreement as set forth in Schedule A-1 through Schedule A-6, or any other
document in a substantially similar format as those Schedules that is attached
hereto by written mutual agreement of the parties (any such document may
hereinafter be referred to as a "Statement of Work"), if such document is
identified as a "Statement of Work."
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1.17.1 "AUTHORING SERVICES" shall mean the Services, including
consulting, design, authoring, programming, management and set up services, set
forth in the Statement of Work dated August 23, 1999, attached hereto as
Schedule A-1.
1.17.2 "CONTENT MAINTENANCE SERVICES" shall mean the services to
be provided by ORGANIC under this Agreement in connection with the maintenance
of content as set forth in Schedule A-2.
1.17.3 "WEB OPERATIONS SERVICE" shall mean the services to be
provided by ORGANIC under this Agreement in connection with support as set forth
in Schedule A-3.
1.18 "SOFTWARE" shall mean computer programs, together with input and
output formats, source and object codes, program listings, data models, flow
charts, outlines, narrative descriptions, operating instructions and supporting
documentation, and includes tangible embodiments thereof, including all
authorized reproductions. Except as otherwise expressly provided in this
Agreement, Software includes Software Changes.
1.19 "SOFTWARE CHANGES" shall mean any corrections, new versions,
programs enhancements, translations, modifications, updates, new releases and
other changes to Software to the extent the same are provided under this
Agreement.
1.20 "THIRD PARTY MATERIALS" shall mean materials (including Software
but only in such formats as provided by the third-party owner thereof) that: (a)
are incorporated in the Deliverables or are required for the operation of the
Deliverables in the Web Site; (b) are owned by a third party; and (c) are not
licensed from a third party by CUSTOMER. Third Party Materials do not include
materials or Software that are used in conjunction with the Deliverables or the
Web Site but that are not required for the operation of the same (e.g., HTML
editors, image editors, programming language compilers, and other software
tools). Third Party Materials expressly do not include any Third Party Posted
Content.
1.21 "THIRD PARTY POSTED CONTENT" shall mean any data, text, audio
files, video files, graphics or other materials posted to or incorporated into
the Web Site other than by CUSTOMER or ORGANIC.
1.22 "THIRD PARTY TOOLS" shall mean Software (but only in such formats
as provided by the third-party owner thereof) proprietary to a third party, that
are used in conjunction with the Deliverables to achieve the desired
functionality of the Web Site but that are not Third Party Materials.
1.23 "WEB SITE" shall mean the site on the World Wide Web identified in
Schedule C.
2. SERVICES AND OTHER PRINCIPAL OBLIGATIONS.
2.1 SERVICES.
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2.1.1 SCHEDULE FOR AND PROVISION OF SERVICES. ORGANIC shall provide
Services and related Deliverables substantially in accordance with the
provisions of the Statement(s) of Work that include such Services. Except as
provided in a Statement of Work, CUSTOMER shall deliver to ORGANIC all Customer
Content selected by CUSTOMER for incorporation into the Web Site on or before
the dates specified in the respective Statement(s) of Work. If any CUSTOMER
failures to deliver such Customer Content in accordance with time schedules or
to timely take any other action required of CUSTOMER by any Services Statement
of Work (including, without limitation, approvals for conversion of Customer
Content pursuant to Section 2.1.2), individually or in the aggregate materially
affect ORGANIC's time or cost to perform Services, there shall be an equitable
adjustment, which the parties shall negotiate in good faith, of the delivery and
fee schedule for provision of those Services.
2.1.2 FORMATTING OF CUSTOMER CONTENT. CUSTOMER shall deliver the
Customer Content to ORGANIC substantially in accordance with the Production
Specifications for Services. In the event CUSTOMER does not so deliver on or
before the applicable delivery date without limiting the provisions of Section
2.1.1, ORGANIC may convert non-complying Customer Content to comply with the
Production Specifications for a fixed conversion rate of two hundred fifty
($250.00) per graphic item; provided that ORGANIC notifies CUSTOMER of such
non-complying Customer Content and obtains CUSTOMER's prior consent to such
conversion.
2.1.3 ACCEPTANCE OF DELIVERABLES. All Deliverables shall be subject
to reasonable acceptance testing by CUSTOMER to confirm that such Deliverables
substantially conform to and operate in accordance with the Applicable
Specifications as they relate to such Deliverable. ORGANIC shall provide to
CUSTOMER all relevant documents, information and assistance reasonably requested
by CUSTOMER to make its evaluation. The schedule and manner of testing may be
set forth in the Statement of Work for the respective Deliverables. In the
absence of any schedule in a Statement of Work, the period for CUSTOMER to test
a Deliverable shall be deemed to be eight (8) weeks. For the avoidance of doubt,
the schedule and manner of acceptance testing need not be labeled "Acceptance"
in the applicable Statement of Work (e.g., they may be referred to as "Quality
Assurance" or "Abbreviated Quality Assurance Cycle"). At the end of the
respective acceptance testing period, CUSTOMER shall provide ORGANIC with
written notice of its acceptance of the Deliverable or of any failure of such
Deliverable substantially to conform to the Applicable Specifications as they
relate to the applicable Deliverable, which notice shall reasonably identify and
describe the nonconformity. ORGANIC and CUSTOMER shall review the notice and
Deliverable and Applicable Specifications as they relate to the applicable
Deliverables, and ORGANIC will correct any non-conformities with the Applicable
Specifications as they relate to the applicable Deliverables and provide
CUSTOMER with a revised Deliverable within a commercially reasonable time frame
(which may be stated in the respective Statement of Work), for testing by
CUSTOMER in accordance with the procedures set forth above. If ORGANIC has not
received a written response from CUSTOMER prior to the end of the respective
acceptance testing period, the Deliverable shall be deemed to be accepted.
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2.2 SERVICE LEVELS. CUSTOMER shall be entitled to the remedies set
forth in Schedule E and the respective Statement(s) of Work in connection with
the failure of the Web Site or the Services to conform to the service levels set
forth in the respective Statement(s) of Work.
2.3 ADDITIONAL STATEMENTS OF WORK. In addition to Schedules A-1 through
A-6, other new Statements of Work may be entered into from time to time by
mutual agreement of the parties thereto. Each such Statement of Work, as so
mutually agreed, and each of Schedules A-1 through A-6, is hereby (a)
incorporated by reference into this Agreement and made a part hereof as if fully
set forth in this Agreement and (b) made binding on the parties thereto. Each
Statement of Work shall be deemed to include the following provision, which
provision shall prevail in the event of any conflict with another provision of
the Statement of Work:
"GENERAL. This is a Statement of Work between CUSTOMER and ORGANIC
under, and governed by, the Omnibus Services Agreement by and between
ORGANIC and CUSTOMER dated February 1, 1999 (the "Agreement"). In the
event of any conflict among the Agreement and/or a Change Order
Response and/or this Statement of Work, the order of precedence
established in the Agreement shall control. Any capitalized term used
but not defined herein have the meaning such term would have if used in
the Agreement."
2.4 CHANGE ORDERS. In the event that CUSTOMER wishes to request
change(s) that are individually or collectively material to any Statement of
Work, CUSTOMER shall submit a written change order ("Change Order"), to ORGANIC.
The Change Order shall be substantially in the form of Schedule B. ORGANIC will
use commercially reasonable efforts to, within five (5) business days of receipt
of the Change Order, submit to CUSTOMER any revised fees, delivery schedules and
other information reflecting the impact of the additional or different Services
("Change Order Response"); provided, however, that if the requested change in
Services is so substantial that, in the reasonable judgment of ORGANIC, a Change
Order Response could not, with commercially reasonable efforts, be submitted
within five (5) business days, ORGANIC will provide to CUSTOMER a proposed
schedule for submitting the Change Order Response. CUSTOMER shall accept or
reject the Change Order Response within ten (10) business days of receipt or
such longer or shorter period as the parties agree, and shall be deemed to have
rejected the Change Order Response unless CUSTOMER notifies ORGANIC of
acceptance of the Change Order Response within such period. ORGANIC may continue
work pursuant to the existing Statement of Work, and will not be bound by any
Change Order, until the applicable Change Order Response is accepted in
accordance with this Section 2.4. ORGANIC will use commercially reasonable
efforts to meet rush Change Orders outside the original scope of work and
delivery schedules in a Statement of Work, but such rush Change Orders may be
subject to higher hourly rates than ORGANIC's standard hourly rates to reflect
additional costs incurred by ORGANIC, which higher hourly rates will be stated
in the Change Order Response. ORGANIC will use provide Services substantially in
accordance with the provisions of a Change Order Response accepted in accordance
with the provisions of this Section 2.4. Each such Change Order Response is
hereby (a) incorporated by reference into this Agreement and made a part hereof
as if fully set forth in this Agreement and (b) made binding on the parties
thereto. Each Change Order Response shall be deemed to include the following
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provision, which provision shall prevail in the event of any conflict with
another provision of the Change Order Response:
"GENERAL. Once accepted in accordance with Section 2.4 of the Agreement
(as defined), this shall be a Change Order Response under, and governed
by, the Omnibus Services Agreement by and between ORGANIC and CUSTOMER
dated February 1, 1999 (the "Agreement"). In the event of any conflict
among the Agreement and/or this Change Order Response and/or a
Statement of Work, the order of precedence established in the Agreement
shall control. Any capitalized term used but not defined herein have
the meaning such term would have if used in the Agreement. "
2.5 NO HIRING OR SOLICITATION. In no event during the term of this
Agreement or during the one (1) year thereafter shall either party directly or
indirectly solicit employment of an employee or contractor of the other party
who is involved in the performance of this Agreement, without the prior written
consent of the other party. For purposes of the Agreement, general employment
advertising and use of independent employment agencies, shall not constitute
solicitation unless directed at one or more of the other party's employees.
3. PROPRIETARY RIGHTS; LICENSE GRANTS.
3.1 LICENSES TO CUSTOMER. ORGANIC hereby grants to the Authorized
Licensees a perpetual, irrevocable, limited, non-exclusive, non-transferable,
worldwide license to use, execute, display, reproduce, maintain, modify, and
prepare derivative works from the Organic Software (in object code and source
code), Organic Materials and, except to the extent agreed to by the parties in a
Statement of Work or otherwise, Third Party Materials (and related
Documentation), solely for use in connection with the development,
implementation, modification, support, maintenance and operation (including
without limitation the display of Customer Content) of (a) Internet websites and
pages owned or operated by or for Authorized Licensees or (b) Internet websites
and pages that are owned by or operated for franchisees of CUSTOMER that are not
Authorized Licensees; provided that such Internet websites and pages relate
primarily to the business of retail sale or rental (in stores or over the
Internet) of pre-recorded music products, pre-recorded video products,
electronic games, and other home entertainment products and services. A
permitted assignment of this Agreement by CUSTOMER shall not affect the licenses
to Blockbuster Inc., Affiliates of Blockbuster Inc. and franchisees of
Blockbuster Inc., including entities that become Affiliates or franchisees of
Blockbuster Inc. following such assignment, to utilize the Organic Software,
Organic Materials and Third Party Materials for so long as such entities are
Affiliates or franchisees of Blockbuster Inc. ORGANIC will provide CUSTOMER on
expiration or termination of this Agreement for any reason, or upon CUSTOMER's
request, with sufficient Documentation and source code for Authorized Users to
fully utilize the Organic Software in accordance with this Agreement. Except for
the licenses and rights expressly granted in this Agreement, ORGANIC retains all
right, title and interest in the Organic Software and Organic Materials.
3.2 LICENSES TO ORGANIC.
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3.2.1 SERVER USAGE DATA. CUSTOMER hereby grants to ORGANIC a
non-exclusive license to use, copy, modify, prepare derivative works from and
display the Server Usage Data in connection with gathering information and
generating reports on behalf of CUSTOMER.
3.2.2 CUSTOMER CONTENT. CUSTOMER hereby grants to ORGANIC a
non-exclusive license to use, copy, modify, prepare derivative works from and
display Customer Content as necessary to perform obligations under this
Agreement.
3.2.3 DELIVERABLES. CUSTOMER hereby grants to ORGANIC a limited,
perpetual, irrevocable, non-exclusive, royalty-free license to reproduce,
prepare derivative works of, publicly perform, publicly display in any form or
medium, whether now known or later developed, make, have made, use and import
throughout the universe the Deliverables (other than Customer Content and HTML
Code) and Documentation originally developed, invented, prepared or discovered
by ORGANIC (but specifically excluding any Reserved Work) and ORGANIC's
derivative works thereof; provided that (a) ORGANIC may only use or distribute
the Developed Materials and Developed Software in the furtherance of its
business; provided that ORGANIC shall not provide such Developed Materials and
Developed Software on a stand-alone basis; and (b) ORGANIC's use of the
Deliverables must not disclose Confidential Information of Customer.
3.3 THIRD PARTY TOOLS. Each party will obtain, at its sole cost and
expense, all consents necessary to permit such party to use the Third Party
Tools as required in connection with this Agreement.
3.4 PROPERTY RIGHTS AND OWNERSHIP. The Web Site will consist of, and
operate in conjunction with, multiple elements, all of which are subject to
certain intellectual property rights. As between parties, a party's rights with
respect to such elements shall be as set forth below. For purposes of this
Agreement, the term "ownership" refers to ownership of all right, title and
interest in and to an element, including without limitation, any patent,
copyright, trade secret, trademark, moral rights or other intellectual property
rights. ORGANIC hereby makes a nonterminable, irrevocable assignment to CUSTOMER
of all ownership rights in and to the Customer Content, the Developed Software,
the HTML Code and Developed Materials.
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ELEMENTS OWNERSHIP/RIGHTS AS BETWEEN PARTIES
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Customer Content and modifications . CUSTOMER has sole ownership.
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Developed Software and Developed Materials. CUSTOMER has sole ownership. ORGANIC will have a license to
Developed Software and Developed Materials as set forth in
Section 3.2 of this Agreement.
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HTML Code and modifications CUSTOMER has sole ownership
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====================================================================================================================
ELEMENTS OWNERSHIP/RIGHTS AS BETWEEN PARTIES
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Organic Software and Organic Materials. ORGANIC has sole ownership of the Organic Software and
Organic Materials. Authorized Licensees will
have licenses to the Organic Software and Organic Materials
as set forth in Section 3.1 of this Agreement.
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Server Usage Data. CUSTOMER has sole ownership. ORGANIC will have a license to
the Server Usage Data as set forth in Section 3.2 of this
Agreement.
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Third Party Materials. Third parties have ownership. Authorized Licensees will have
licenses to the Third Party Materials as set forth in
Section 3.1 of this Agreement.
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Third Party Tools Third parties have ownership. Each party will obtain, at its
sole cost and expense, all consents necessary to permit such
party to use the Third Party Tools as required in connection
with this Agreement.
====================================================================================================================
3.5 USE OF THIRD PARTY MATERIALS. ORGANIC shall: (i) notify CUSTOMER of
its intent to incorporate in the Deliverables or require the use of Third Party
Materials prior to commencement of performance of Services incorporating or
requiring such Third Party Materials; (ii) identify to CUSTOMER the ownership of
such Third Party Materials; (iii) describe the use to which ORGANIC intends to
put such Third Party Materials; and (iv) explain ORGANIC's ability to proceed
with performance of the Services without the use of such Third Party Materials.
CUSTOMER may request that ORGANIC perform Services without the use of such Third
Party Materials. ORGANIC will respond to any such request with information
regarding the feasibility of performing the Services without the use of Third
Party Materials, including any additional costs or time required to do so.
3.6 SUPPORTING DOCUMENTS. Each party agrees to execute any additional
documents reasonably necessary to effect and evidence the other party's rights
(at such other party's request and sole expense) with respect to the elements
set forth above.
3.7 Proprietary Notices. All copies of the materials owned by or
licensed from third parties by either party and used by the other party shall
contain copyright and other proprietary notices in the same manner in which the
owner of such materials incorporates such notices in the same or in any other
manner reasonably requested by such party. Each party agrees not to alter,
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remove, cover or obliterate, or otherwise interfere with the display of, any
copyright notice or trademark or other proprietary rights notices placed by the
other party on or in the materials owned by such other party.
3.8 RESIDUALS. Nothing contained in this Agreement shall restrict
either party from the use of any ideas, concepts, know-how, methodologies,
processes, technologies, algorithms or techniques relating to the Services which
either Party develops or discloses under this Agreement and which are retained
by the recipient parties' employees in intangible form; provided that in doing
so such party does not breach its obligations under Section 9. Notwithstanding
anything to the contrary in this Agreement, no disclosure made by either party
hereunder grants, in itself, any license to either party under any patents,
copyrights, trademarks or trade secrets of the other party.
3.9 RESERVED WORKS. The parties may agree in a Statement of Work that
certain materials and/or Software to be developed by ORGANIC for CUSTOMER will
be Reserved Work; provided that materials and/or Software shall be Reserved Work
only if such Statement of Work contains a provision that expressly states that,
notwithstanding the provisions of Section 3.2.3, ORGANIC shall not have the
right to use certain Deliverables, except as required to perform the Services.
4. PAYMENT.
4.1 EXPENSES. CUSTOMER shall pay fees to ORGANIC in accordance with the
provisions each Statement of Work and in accordance with the provisions of this
Section 4. The rates set forth on Schedule F to this Agreement, which are in
effect as of the date of execution hereof, shall remain in effect through June
30, 2000.
4.2 EXPENSES. CUSTOMER will reimburse ORGANIC for all out-of-pocket
costs incurred at the request of CUSTOMER or otherwise approved by CUSTOMER in
advance in connection with performing the Services.
4.3 TAXES. In addition to the fees due as specified above, CUSTOMER
shall be responsible for and shall pay any and all federal, state and local
sales, use, value added, excise, duty and any other taxes assessed, charged or
levied, based on, with respect to or measured by (a) such fees, (b) this
Agreement or (c) the Services. CUSTOMER hereby agrees to be responsible for
conducting a self assessment of any taxes assessed, charged or levied by the
State of Texas based on, with respect to or measured by (a) such fees, (b) this
Agreement or (c) the Services. CUSTOMER shall remit timely payments to the
appropriate governmental agencies. The parties agree to cooperate reasonably
with each other to determine more accurately CUSTOMER's tax liability and to
minimize such liability to the extent legally permissible. CUSTOMER shall not be
responsible for taxes on ORGANIC's net income. ORGANIC agrees to reasonably
cooperate with CUSTOMER to minimize and calculate any applicable tax.
4.4 PAYMENTS. Except as otherwise provided in this Agreement, ORGANIC
shall invoice CUSTOMER monthly. Amounts are due and payable thirty (30) days
after receipt of invoice. Amounts not subject to a good faith dispute and
received later than thirty (30) days
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following CUSTOMER's receipt after execution of this Agreement of an invoice
will bear interest at one percent (1%) per month or the maximum rate permitted
by law, whichever is less. All payments made pursuant to this Agreement shall be
made in U.S. dollars.
4.5 AUDIT RIGHTS.
4.5.1 GENERAL. Employees of CUSTOMER and its auditors who are from
time to time designated by CUSTOMER and who agree in writing to the security and
confidentiality obligations and procedures reasonably required by ORGANIC will
be provided with reasonable access, upon one (1) week's advance written notice,
to any ORGANIC facility at which the Services are being performed to enable them
to conduct audits of ORGANIC's performance of the Services and other matters
relevant to this Agreement, including (i) verifying the accuracy of ORGANIC's
time and materials charges to CUSTOMER (provided such financial audits may be
performed at most twice each calendar year) and (ii) verifying that the Services
are being provided in accordance with this Agreement, including any Service
Levels.
4.5.2 PROCEDURES. Subject to Section 4.5.1(i), such audits may be
conducted as frequently as CUSTOMER deems necessary during reasonable business
hours. ORGANIC will cooperate in the audit, will make the information reasonably
required to conduct the audit available on a timely basis and will assist the
designated employees of CUSTOMER or its auditors in conducting such audit.
4.5.3 RESULTS. If any audit reveals that ORGANIC's invoices for the
audited period are not correct for such period, ORGANIC will promptly reimburse
CUSTOMER for the amount of any net overcharges (and if such net overcharges are
seven percent (7%) or more of the total amount which should have been billed to
CUSTOMER over the audit period, ORGANIC will reimburse CUSTOMER for the
reasonable out-of-pocket costs of the audit), or CUSTOMER will promptly pay
ORGANIC for the amount of any net undercharges. Any payments for net overcharges
or net undercharges made under this Section 4.5 will include interest charges
computed in accordance with Section 4.4.
5. LIMITED WARRANTIES.
5.1 DELIVERABLES WARRANTIES
5.1.1 ORGANIC warrants to CUSTOMER that for a period of ninety (90)
days from the date of acceptance of any Deliverable, or in the case of a
Deliverables delivered for the Hard Launch, for a period of ninety days from the
Hard Launch Date (the "Warranty Period"), that such Deliverable (including any
system configuration developed and implemented by ORGANIC hereunder) will
substantially conform to and perform substantially in accordance with the
Applicable Specifications. CUSTOMER's sole remedy for a breach of this warranty
shall be for ORGANIC to use its best commercial efforts to correct failures of
the Deliverables to substantially comply with such warranty within a reasonable
period, but in no event later than thirty (30) days from the Warranty Period.
All warranty claims under this Section 5.1.1 shall be made in writing to ORGANIC
within the Warranty Period. ORGANIC's warranty obligations
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are solely for the benefit of CUSTOMER, who has no authority to extend or
transfer this warranty to any other person or entity. The foregoing warranties
will not extend to breaches to the extent caused (a) by an change or
modification to a Deliverable without ORGANIC's prior consent or (b) by
CUSTOMER's operating Software or a system configuration otherwise than in
accordance with the applicable Documentation or on hardware not recommended or
approved by ORGANIC.
5.1.2 ORGANIC warrants that the Deliverables have been subjected to
commercially reasonable measures to screen for purposes of discovering and
avoiding the introduction of any "virus" or "backdoor" or "trapdoor" or "drop
dead device" or "time bomb" or "Trojan Horse" (as such terms are generally
understood in the software industry).
5.2 ORGANIC warrants to CUSTOMER that the Deliverables are capable of
processing, providing and/or receiving date data within and between the
twentieth and twenty-first centuries in accordance with its associated
documentation, provided that all hardware, software, firmware and other products
used with the Deliverables properly exchange accurate date data with the same;
provided that CUSTOMER must give ORGANIC prompt written notice of such
noncompliance, together with any available details regarding such noncompliance
prior to May 1, 2000. CUSTOMER's sole remedy for a breach of the warranty set
forth in this Section 5.2 shall be for ORGANIC to best commercial efforts to
correct the noncompliance within a commercially reasonable timeframe. The
foregoing warranties will not extend to breaches to the extent caused (a) by an
change or modification to a Deliverable without ORGANIC's prior consent or (b)
by CUSTOMER's operating Software or a system configuration otherwise than in
accordance with the applicable Documentation or on hardware not recommended or
approved by ORGANIC. ORGANIC's warranty obligations are solely for the benefit
of CUSTOMER, who has no authority to extend or transfer this warranty to any
other person or entity.
5.3 SERVICES WARRANTY. ORGANIC warrants to CUSTOMER that: (a) the
Services shall be performed in a professional and workmanlike manner; and (b)
ORGANIC's personnel have sufficient skill, knowledge and training to perform the
Services.
5.4 DISCLAIMER OF OTHER WARRANTIES. THE EXPRESS WARRANTIES SET FORTH IN
THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY ORGANIC TO CUSTOMER
PURSUANT TO THIS AGREEMENT, AND ORGANIC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES
OF ANY KIND WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, EITHER EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
5.5 ENCRYPTION AND SECURITY. WITHOUT LIMITING SECTION 5.4, ORGANIC
MAKES NO WARRANTIES AND SHALL HAVE NO LIABILITY IN CONNECTION WITH THE
EFFECTIVENESS OF ANY ENCRYPTION OR SECURITY SYSTEM USED BY OR FOR THE WEB SITE.
5.6 DISCONTINUANCE OR REGULATION OF THE INTERNET. WITHOUT LIMITING
SECTION 5.4, CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) THE INTERNET
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(INCLUDING WITHOUT LIMITATION THE WORLD WIDE WEB) IS A NETWORK OF PRIVATE AND
PUBLIC NETWORKS, THAT ORGANIC HAS NO CONTROL OVER THE INTERNET; AND THAT (B)
ORGANIC SHALL NOT BE LIABLE FOR ANY CHANGE, INTERRUPTION OR DISCONTINUANCE OF
OPERATION OF ANY PORTION OF THE INTERNET OR FOR ANY POSSIBLE REGULATION OF THE
INTERNET; ANY OF WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE WEB SITE.
6. INTELLECTUAL PROPERTY INDEMNIFICATION.
6.1 ORGANIC.
This Section 6.1 sets forth CUSTOMER's sole and exclusive remedy for
intellectual property infringement by ORGANIC.
6.1.1 Except as provided in Section 6.1.2, ORGANIC, at its own cost
and expense, shall defend, indemnify and hold harmless the CUSTOMER and any of
its officers, directors, employees or agents (the "Indemnitees"), from and
against all damages, expenses, liabilities and other costs (including reasonable
attorneys' fees) arising from or relating to a claim that an Indemnified Item
infringes a third party's patent issued as of the date of delivery of such
Indemnified Item, or a third party's copyright, trademark or trade secret or
that the use or publication in the United States of the Customer Content
provided by ORGANIC under this Agreement constitutes defamation or a violation
of the privacy, publicity or other similar right of any third party (whether
such right is statutory, common law or arises from a contract to which ORGANIC
is a party); provided, however, that the provisions of this Section 6.1.1 shall
apply only if: (a) the CUSTOMER notifies ORGANIC promptly in writing of any such
claim; (b) ORGANIC has the sole control of the defense and all related
settlement negotiations; and (c) the CUSTOMER provides ORGANIC with all
reasonably requested assistance, information, and authority to perform the
foregoing at ORGANIC's expense; provided, however, that (d) the CUSTOMER will be
entitled to participate in the defense of any such actions or claims and to
employ counsel at its own expense to assist in the handling of such claims; and
(e) ORGANIC will obtain the prior approval of the CUSTOMER before entering into
any settlement of any such claim that will result in any non-monetary liability
to CUSTOMER other than as set forth in Section 6.1.2(z).
6.1.2 ORGANIC shall have no liability for any claim of infringement
based on (a) use by the CUSTOMER of other than the current update of the
applicable Indemnified Item, if the infringement would have been avoided by use
of a more current update provided to CUSTOMER by ORGANIC; (b) modifications,
adaptations or changes to the Indemnified Items not made by ORGANIC; (c) the
combination or use of the materials furnished hereunder with materials not
furnished, recommended or approved by ORGANIC, if such infringement would have
been avoided by use of the ORGANIC materials alone; or (d) use or incorporation
of materials provided by CUSTOMER or any third party, including, without
limitation, Customer Content or Third Party Posted Content, not recommended or
approved by ORGANIC. In the event any Indemnified Item is held to, or ORGANIC
reasonably believes is likely to be held to, infringe the intellectual property
rights of a third party, ORGANIC shall: (x) substitute or
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modify the infringing Indemnified Item so that it is non-infringing and
qualitatively and functionally equivalent to the infringing Indemnified Item; or
(y) obtain for the CUSTOMER a license to continue using the infringing
Indemnified Item; or (z) if the foregoing are not available after ORGANIC's use
of its best commercial efforts (i) terminate the CUSTOMER's use of the
infringing Indemnified Item(s) immediately upon notice to the CUSTOMER; and (ii)
refund to CUSTOMER the fees paid to ORGANIC for Indemnified Items that will not
be available as a result of the infringement.
6.1.3 CUSTOMER, at its own cost and expense, shall defend,
indemnify and hold harmless ORGANIC and any of its officers, directors,
employees or agents, from and against all third party actions, claims, damages,
expenses, liabilities and other costs (including reasonable attorneys' fees)
arising from or relating to a claim that: (a) the Customer Content (other than
Customer Content provided by ORGANIC) or Third Party Posted Content infringes a
third party's patent issued as of the date of delivery of such Customer Content,
copyright, trademark or trade secret; (b) use or publication of the Customer
Content (other than Customer Content provided by ORGANIC) or Third Party Posted
Content constitutes defamation or a violation of the privacy, publicity or other
similar right of any third party (whether such right is statutory, common law or
arises from a contract to which CUSTOMER is a party); or (c) the operation of
the Web Site violates any statute or regulation in any jurisdiction (other than
violations caused by the Deliverables or any actions taken by ORGANIC); provided
that: (i) ORGANIC notifies CUSTOMER promptly in writing of any such claim; (ii)
CUSTOMER has the sole control of the defense and all related settlement
negotiations; and (iii) ORGANIC provides CUSTOMER with all reasonably requested
assistance, information, and authority to perform the foregoing at CUSTOMER's
expense.; and provided, further, that (iv) ORGANIC will be entitled to
participate in the defense of any such actions or claims and to employ counsel
at its own expense to assist in the handling of such claims and (v) CUSTOMER
will obtain the prior approval of ORGANIC before entering into any settlement of
any such claim that will result in any non-monetary liability to ORGANIC.
7. LIMITATIONS ON LIABILITY.
7.1 TOTAL DAMAGE LIMITATION. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT OR A STATEMENT OF WORK OR CHANGE ORDER RESPONSE, IN NO EVENT
SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER ARISING FROM OR
RELATING TO THIS AGREEMENT EXCEED TEN MILLION DOLLARS (US$10,000,000.00),
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE.
7.2 NO LIABILITY FOR ACTS OF OR PERFORMANCE OR NON-PERFORMANCE OF THIRD
PARTIES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR A STATEMENT OF
WORK OR CHANGE ORDER RESPONSE, IN NO EVENT SHALL ORGANIC BE LIABLE FOR THE
PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY, OTHER THAN AN ORGANIC
SUBCONTRACTOR, EVEN IF THE THIRD PARTY IS RECOMMENDED BY ORGANIC OR DEALT WITH
BY ORGANIC UNDER THIS AGREEMENT.
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7.3 NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT OR A STATEMENT OF WORK OR CHANGE ORDER RESPONSE, NEITHER ORGANIC
NOR CUSTOMER SHALL BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS OR
REVENUE, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THIS
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
7.4 EXCEPTIONS. The provisions of this Section 7 shall not limit
ORGANIC's or CUSTOMER's liability to the other arising from or in connection
with its indemnity obligations under Section 6 of this Agreement or from any
liability arising from fraudulent misconduct, bodily injury or damage to
tangible property.
8. TERM AND TERMINATION.
8.1 TERM. The term of this Agreement shall commence on the Effective
Date and, unless terminated earlier in accordance with this Section 8 or
extended by mutual written agreement of the parties prior to expiration, shall
continue through December 31, 2000.
8.2 TERMINATION FOR CAUSE. This Agreement may be terminated by either
party in the event of any material breach of this Agreement by the other party,
which breach continues in effect after the breaching party has been provided
with written notice of breach and thirty (30) days to cure such breach.
8.3 TERMINATION AT WILL. This Agreement may be terminated by CUSTOMER,
for any reason, upon sixty (60) days' prior written notice without penalty or
liability for damages related to such early termination.
8.4 TERMINATION FOR BANKRUPTCY AND RELATED EVENTS. Subject to Xxxxx 00,
Xxxxxx Xxxxxx Code, if either party becomes or is declared insolvent or
bankrupt, is the subject of any proceedings (and in the case of involuntary
proceedings, such proceedings are not dismissed within sixty (60) days) relating
to its liquidation, insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or substantially all
of its creditors or enters into an agreement for the composition, extension or
readjustment of all or substantially all of its obligations, then the other
party may, by giving written notice thereof to such party, terminate this
Agreement as of a date specified in such notice of termination
8.5 EFFECT OF TERMINATION.
(a) Transition. In connection with the expiration of this Agreement
or with the early termination of this Agreement by either party
for any reason, ORGANIC will comply with CUSTOMER's reasonable
directions to cause the orderly transition and migration from
ORGANIC to CUSTOMER (or a third party services provider
undertaking, on behalf of CUSTOMER, to provide Services (the
"Third Party Provider") then being performed by ORGANIC (the
"Termination Transition"). The Termination Transition will be
provided for a reasonable period of time that
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in no event will exceed six months. CUSTOMER will cooperate in
good faith with ORGANIC in connection with ORGANIC's obligations
under this Section 8.5(a) and will perform its obligations under
the Transition Plan. If the Termination Transition extends beyond
the expiration date or effective date of termination of this
Agreement by CUSTOMER, the provisions of this Agreement will
remain in effect for the duration of the Termination Transition
and will apply to all transition assistance services provided by
ORGANIC during such period (subject to the last two sentences of
Section 8.5(c)). ORGANIC will perform the following obligations
(and such other obligations as may be contained in the Transition
Plan), unless otherwise stated below or in the Transition Plan.
(i) Transition Plan. ORGANIC and CUSTOMER will work together to
develop a transition plan (the "Transition Plan") setting
forth the respective tasks to be accomplished by each Party
in connection with the Termination Transition and a
schedule pursuant to which such tasks are to be completed.
(ii) Specifications. ORGANIC will, upon CUSTOMER's request,
provide CUSTOMER with reasonably detailed available
specifications for the hardware and software needed by
CUSTOMER (or the Third Party Provider) to properly provide
the Services then being performed by ORGANIC.
(iv) Developed Software, Organic Software, HTML Code. ORGANIC
will deliver the Developed Software and Organic Software
(to the extent required to use the Deliverables as of the
effective date of termination in accordance with the
licenses granted in Section 3.1) (in object code and source
code) and existing Documentation (to the extent required to
use the Deliverables as of the effective date of
termination in accordance with the licenses granted in
Section 3.1) and the HTML Code (to the extent the foregoing
has not already been delivered to CUSTOMER) to CUSTOMER and
will install such copies on the equipment of CUSTOMER (or
the Third Party Provider).
(v) Developed Materials, Organic Materials, Customer Content.
ORGANIC will deliver the Developed Materials, Organic
Materials (to the extent required to use the Deliverables
as of the date of termination in accordance with the
licenses granted in Section 3.1) and Customer Content (to
the extent the foregoing has not already been delivered to
CUSTOMER) to CUSTOMER.
(vi) Third Party Materials. ORGANIC will deliver the Third Party
Materials, (including object code, source code (if
applicable) and available Documentation to any Software
included in the same) (to the extent the foregoing has not
already been delivered to CUSTOMER) to
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CUSTOMER and will install any Software on the equipment of
CUSTOMER (or the Third Party Provider).
(v) Third Party Tools. ORGANIC will assist CUSTOMER obtain
licenses, at CUSTOMER's expense, to Third Party Tools not
licensed to CUSTOMER.
(vi) Training. ORGANIC will provide appropriate general training
for the employees of CUSTOMER (or the Third Party Provider)
who will be assuming responsibility following the
Termination Transition. Such training shall be specific to
the Deliverables and shall include, as appropriate,
training regarding use of the Web Site, system
administration system hosting, content creation and
modification. General skills training (e.g., instruction on
Java) shall not be included in Termination Transition.
(b) Disclosure of Information. Prior to providing any termination
assistance to the Third Party Provider, CUSTOMER will cause the
Third Party Provider to provide ORGANIC with written assurances,
in form and substance reasonably satisfactory to ORGANIC, that
the Third Party Provider (i) will maintain at all times the
confidentiality of any ORGANIC proprietary information disclosed
or provided to, or learned by, the Third Party Provider in
connection therewith and (ii) will use such information
exclusively for the purposes for which CUSTOMER is authorized to
use such information pursuant to this Agreement. CUSTOMER shall
be responsible for any failures of the Third Party Provider to
comply with such obligations.
(c) Charges. For so long as this Agreement remains in effect and
during the Termination Transition but subject to the last two
sentences of this Section 8.5(c), CUSTOMER will pay to ORGANIC at
the time and materials rates in effect for Services under the
Statement of Work for which such Termination Transition is
provided. If the Termination Transition provided by ORGANIC under
this Section 8.5: (i) requires personnel or other resources in
excess of the amount of resources that would have otherwise been
provided pursuant to the Statement of Work for which such
Termination Transition is provided; or (b) extends beyond the
scheduled expiration date of such Statement of Work; CUSTOMER
will pay ORGANIC for such additional resources at ORGANIC's then
current commercial billing rates on a monthly basis. If this
Agreement is terminated by ORGANIC pursuant to Section 8.2,
CUSTOMER shall pay all fees for Termination Transition in
advance.
8.6 DISPUTE RESOLUTION. In the event of any dispute, controversy or
claim of any kind or nature arising under or in connection with this Agreement
(including disputes as to the creation, validity, interpretation, breach or
termination of this Agreement) (a "Dispute"), then upon the request of either
party, each of the parties will appoint a designated representative who does not
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devote substantially all of his or her time to performance under this Agreement
and whose task it will be to meet for the purpose of endeavoring to resolve the
Dispute. The designated representatives will meet as often as necessary during a
period of 10 business days period (or such other time as the parties may agree)
to discuss the problem and negotiate in good faith in an effort to resolve the
Dispute without the necessity of any formal proceeding relating thereto. If the
designated representatives cannot resolve the Dispute, then the Dispute will be
escalated to the Vice President, Managing Director of ORGANIC responsible for
the Services and the Chief Information Officer of CUSTOMER for their review and
resolution. If the Dispute cannot be resolved by such officers, then the Parties
may initiate formal proceedings upon the earlier to occur of: (a) the designated
representatives concluding in good faith that amicable resolution through
continued negotiation of the Dispute does not appear likely; (b) 15 business
days after the initial request to negotiate the Dispute unless preliminary or
temporary relief of an emergency nature is sought by one of the Parties); or (c)
30 days before the statute of limitations governing any cause of action relating
to the Dispute would expire. Except where clearly prevented by the Dispute, both
parties agree to continue performing their respective obligations under this
Agreement while the Dispute is being resolved unless and until such obligations
are terminated or expire in accordance with this Agreement. Nothing to the
contrary in this Section 8.6 shall prevent either party from pursuing injunctive
relief in connection with a violation by the other party of its obligations
under this Agreement relating to the use or nondisclosure of intellectual
property or Confidential Information of the other party.
8.7 SURVIVAL. Unsatisfied payment obligations arising before any
termination or expiration of this Agreement, and Sections 2.5, 3, 4.5, 5, 6, 7,
8, 9 and 10, shall survive any termination or expiration of this Agreement.
9. CONFIDENTIALITY.
9.1 DATA OF CUSTOMER. As between ORGANIC and CUSTOMER, information
relating to CUSTOMER and its customers, including without limitation the Server
Usage Data, (the "CUSTOMER Data") is confidential, will be subject to Section
9.3 and will be and remain the property of CUSTOMER. ORGANIC is hereby
authorized to have access to and to make use of the CUSTOMER Data for the term
of this Agreement as is appropriate for the performance by ORGANIC of its
obligations hereunder. Upon expiration or termination of this Agreement for any
reason, ORGANIC will return to CUSTOMER all of the CUSTOMER Data in ORGANIC's
possession. ORGANIC will not use the CUSTOMER Data for any purpose other than
providing the Services.
9.2 CONFIDENTIAL INFORMATION. Each party acknowledges that, in
connection with the performance of this Agreement, it may receive Confidential
Information of the other party. For the purpose of this Agreement, "Confidential
Information" shall mean information or materials that the party receiving the
information (the "Receiving Party") knows or has reason to know is the
confidential or proprietary information of the party disclosing the information
(the "Disclosing Party"), either because such information is marked or otherwise
identified by the Disclosing Party as confidential or proprietary, has
commercial value, or is not generally known
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in the Disclosing Party's trade or industry. Confidential Information shall
include, without limitation: (a) concepts and ideas relating to the development
and distribution of content in any medium; (b) trade secrets, designs,
specifications, reports, drawings, inventions, software programs, and software
source documents; (c) information regarding plans for research, development, new
service offerings or products, marketing and selling, business plans, business
forecasts, budgets and unpublished financial statements, licenses and
distribution arrangements, prices and costs, suppliers and customers; and (d)
existence and content of any business discussions, negotiations or agreements
between the parties, including the terms of this Agreement.
9.3 CONFIDENTIALITY. The Receiving Party hereby agrees: (a) to hold and
maintain in strict confidence all Confidential Information of the Disclosing
Party and not to disclose it to any third party; and (b) not to use any
Confidential Information of the Disclosing Party except as permitted by this
Agreement or as may be necessary for the Receiving Party to perform its
obligations under this Agreement. The Receiving Party will use at least the same
degree of care to protect the Disclosing Party's Confidential Information as it
uses to protect its own Confidential Information of like importance, and in no
event shall such degree of care be less than reasonable care. The obligations
and restrictions imposed by this Section 9 shall terminate two (2) years after
the expiration or termination of this Agreement. It will not be a violation of
this Section if a party provides access to and the use of the Confidential
Information to third party contractors for the sole purpose of providing
services to CUSTOMER, so long as CUSTOMER secures execution by such third
parties of a confidentiality agreement containing provisions protecting the
Confidential Information of the parties substantially equivalent to those
contained herein, and such party remains liable to the other party hereto for
such third parties' adherence to such terms.
9.4 EXCEPTIONS. Notwithstanding the foregoing, the parties agree that
Confidential Information will not include any information that: (a) was in the
public domain at the time it was communicated to the Receiving Party by the
Disclosing Party; (b) entered the public domain subsequent to the time it was
communicated to the Recipient by the Disclosing Party through no fault of the
Receiving Party; (c) was in the Receiving Party's possession free of any
obligation of confidence at the time it was communicated to the Receiving Party
by the Disclosing Party; (d) was rightfully communicated to the Receiving Party
by a third party, free of any obligation of confidence, subsequent to the time
it was communicated to the Receiving Party by the Disclosing Party; or (e) was
developed by employees or agents of the Receiving Party independently of and
without reference to any information communicated to the Receiving Party by the
Disclosing Party. In addition, the Receiving Party may disclose the Disclosing
Party's Confidential Information in response to a valid order by a court or
other governmental body, as required by law; provided that the Receiving Party
provides prompt notice of such order, or as necessary to establish the rights of
either party under this Agreement.
10. GENERAL PROVISIONS.
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10.1 FORCE MAJEURE. A party shall not be deemed to be in default for
failure to perform an obligation (other than an obligation for the payment of
money) of such party under this Agreement, if such failure results from acts or
events beyond the reasonable control of such party.
10.2 NOTICE. All notices permitted or required under this Agreement
shall be in writing and shall be by personal delivery, facsimile transmission or
by certified or registered mail, return receipt requested, and shall be deemed
given upon the earlier of actual receipt, three (3) days after deposit in the
mail, or receipt by sender of confirmation of facsimile transmission. Notices
shall be sent to the following addresses (or such other address as either party
may specify in writing):
If to ORGANIC, INC.:
ORGANIC
000 Xxxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxxxx XX 00000
Attention: Xxxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
and
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxx@xxxxxxx.xxx
If to CUSTOMER:
Blockbuster Inc.
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Information Officer
Telephone:
Facsimile:
E-mail:
With a copy to the attention of the General Counsel
10.3 WAIVER. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement shall impair any
such right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
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privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
10.4 PARTIAL INVALIDITY. In the event any one or more of the provisions
of this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall be unimpaired
and the invalid, illegal or unenforceable provision shall be construed to be
amended in order to avoid such invalidity, illegality or unenforceability while
preserving as closely as possible the economic intent of the parties and
intended effect of this Agreement.
10.5 COMPLIANCE WITH LAW. Each party agrees that it shall carry out the
obligations contemplated by this Agreement and shall otherwise deal with the
subject matter hereof in compliance with all applicable laws, rules and
regulations, of all governmental authorities, including, without limitation, any
applicable legal restrictions on exports, and such party shall, at its own
expense, obtain all permits and licenses required in connection with the subject
matter hereof. Without limiting the foregoing, each party agrees that it shall
comply fully with all applicable export and import laws, rules and regulations
of the United States and other jurisdictions so that nothing provided by the
other party under the Agreement is either (a) exported or imported, whether
directly or indirectly, in violation of such laws, rules or regulations; or (b)
used for any illegal purpose, including without limitation the proliferation of
nuclear, chemical or biological weapons.
10.6 GOVERNING LAW. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes thereto, shall be governed by and
construed in accordance with the laws of the State of California (excluding the
choice of law rules thereof and excluding the United Nations Convention on
Contracts for the International Sale of Goods and any legislation implementing
such Convention).
10.7 ASSIGNMENT. Except as provided below, neither party shall have the
right to assign this Agreement without the prior written consent of the other
party. ORGANIC shall not subcontract or delegate any of its duties or
obligations of performance under this Agreement without the prior written
consent of CUSTOMER, which consent shall not be unreasonably withheld. If either
party subcontracts or delegates any of its duties or obligations of performance
in this Agreement to any third party, such party shall remain fully responsible
for complete performance of all of such party's obligations set forth in this
Agreement and for any such third party's compliance with the non-disclosure and
confidentiality provisions set forth in this Agreement. The parties acknowledge
that either of them may become a party to one or more transactions in the form
of a merger (including a reincorporation merger), consolidation, reorganization,
stock sale or exchange, sale of all or substantially all of such party's assets
or some similar or related transaction, in any case with the result being that
the affected party is the surviving entity or, if the affected party is not the
surviving entity, the surviving entity continues to conduct the business
conducted by the affected party prior to consummation of the transaction. In
addition, CUSTOMER may assign this Agreement in connection with the transfer to
a third party of the Web Site and its related business; provided such third
party is not a competitor of ORGANIC
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nor controlled by, controlling or under common control with a competitor of
ORGANIC (within the meaning of "control" set forth in Section 1.1. No such
transactions involving a party will be deemed to be an assignment of this
Agreement requiring the consent of the other.
10.8 PUBLICITY. Except for any announcement intended solely for
internal distribution by ORGANIC or any disclosure required by legal,
accounting, or regulatory requirements beyond the reasonable control of ORGANIC,
ORGANIC shall not make any media releases, public announcements, or public
disclosures (including, but not limited to, promotional or marketing material)
by ORGANIC or its employees or agents relating to this Agreement or its subject
matter, or including the name, trade name, trademark, or symbol of CUSTOMER or
any affiliate of CUSTOMER without the prior written consent of CUSTOMER, which
consent CUSTOMER may withhold in its sole discretion. ORGANIC shall not
represent directly or indirectly that any Product or Service provided by ORGANIC
to CUSTOMER has been approved or endorsed by CUSTOMER or include the name, trade
name, trademark, or symbol of CUSTOMER or any affiliate of CUSTOMER on a list of
ORGANIC's customers without CUSTOMER's express written consent.
10.9 Entire Agreement; Amendment; Precedence. This Agreement, together
with the Statements of Work, Change Order Responses and other documents that are
incorporated herein by reference, constitute the entire agreement between the
parties hereto with respect to the transactions contemplated herein, and
supersede all prior or contemporaneous oral and written agreements, commitments
or understandings with respect to the matters provided for herein. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed and delivered by the party against whom
enforcement of the amendment, modification, or discharge is sought. This
Agreement shall govern Statements of Work and Change Orders; provided, however,
that in the event of any conflict among the provisions of this Agreement and/or
those of a Statement of Work and/or a Change Order, solely to the extent of such
conflict and solely in connection with interpretation of the conflicting
documents as among each other (and not in connection with the interpretation of
any other Statement of Work or Change Order), the following order of provision
precedence shall apply: first, this Agreement, next, a Statement of Work
(provided such Statement of Work clearly identifies the provisions of this
Agreement that are being revised with respect to that Statement of Work), next,
a Change Order Response to the extent it is in conflict with the respective
Statement of Work.
10.10 HEADINGS. Section headings contained in this Agreement are
inserted for convenience or reference only, shall not be deemed to be a part of
this Agreement for any other purpose, and shall not in any way define or affect
the meaning, construction or scope of any of the provisions of this Agreement.
10.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, and all
of which, when taken together, shall constitute one and the same instrument.
22.
23
10.12 INDEPENDENT CONTRACTORS. The relationship of the parties
hereunder shall be that of independent contractors. Nothing herein shall be
construed to constitute a partnership between or joint venture of the parties,
nor shall either party be deemed the agent of the other or have the right to
bind the other in any way without the prior written consent of the other.
In Witness Whereof, the parties have caused their duly authorized
representatives to enter into this Agreement to be effective on the Effective
Date set forth above.
ORGANIC, INC. BLOCKBUSTER INC.
By: /s/ Xxxxxxx XxXxxxxx By: /s/ Xxx Xxxxxxxx
-------------------------------- --------------------------------
Title: VP, Managing Director Title: EVP, Distribution, Ecommerce
& CIO
----------------------------- -----------------------------
Date: 11/2/99 Date: 11/12/99
------------------------------ ------------------------------
23.
24
SCHEDULE A-1
AUTHORING AND MANAGEMENT AND CONSULTING SERVICES STATEMENT OF WORK
PHASE I
[ATTACH SOW DATED 8/23/99 HERE]
24.
25
SCHEDULE A-2
[TO BE ATTACHED]
26
SCHEDULE B
FORM OF CHANGE ORDER
CLIENT
JOB
DATE
This document amends the original Statement of Work dated ________.
Situation
Project Specifications
Technical Implications
Organic will provide account management, production, creative development, and
quality assurance for this project.
Estimated Fees
ORGANIC has estimated that the total projected cost to ________ for the ________
project will be $________. ORGANIC reasonably believes that this estimate is
within 15% of the actual Cost for this project provided that Customer adheres to
all of the following: i) Customer and any third parties deliver all assets and
comments to ORGANIC . per the schedule detailed below; and ii) all assets, such
as text and graphics, are delivered to ORGANIC by Customer and any third party
in conformance with the specifications provided by ORGANIC; and iii) the scope
of the project, as detailed under the Project Specifications (above) does not
change. Any delays to the schedule caused by Customer's failure to meet their
deadlines will result in additional schedule and budget costs to be paid by
Customer.
ESTIMATED DELIVERY SCHEDULE
--------------------------------------------------------------------------------
27
Both parties agree to make all commercially reasonable efforts to complete the
project in the most timely fashion possible and to adhere to the schedule
detailed below. Customer acknowledges that ORGANIC's ability to meet its
delivery dates as described in the attached production schedule is subject to:
i) the timely receipt of assets and comments from Customer and third parties;
and ii) other events beyond the control of ORGANIC.
Please see the attached production schedule for the updated timetable. The new
estimated Launch Date is ________.
Notes:
- Any and all changes submitted after these comments, with the exception
of debugging, will be considered change orders.
- ________ agrees that this Change Order, coupled with the original
Statement of Work, constitutes all of the responsibilities and duties
of ORGANIC for the __________ project.
By signing this document, the parties agree to the Basic Project Requirements.
Customer also agrees that any changes to the Project Specifications may result
in changes in the Fees and Delivery Schedules. Customer further acknowledges
that ORGANIC has made all commercially reasonable efforts to accurately estimate
the Fees and Delivery Schedules in advance of beginning work on the foregoing
project and that the actual Fees and Delivery Schedules may vary from the
estimates. ORGANIC will notify Customer, in writing, as soon as reasonably
practicable, of variations between our estimated schedules and the actual
schedules, per the existing agreement between the parties.
-------------------------------- ----------------------------------
Name Name
Title Title
ORGANIC INC. Company
Date: Date:
28
SCHEDULE C
WEB SITE
The World Wide Web located at xxxxxxxxxxx.xxx, and the beta site
thereof.
29
SCHEDULE D
DEVELOPED MATERIALS, DEVELOPED SOFTWARE, ORGANIC MATERIALS,
ORGANIC SOFTWARE AND RESERVED WORKS
DEVELOPED MATERIALS:
The following is a list of the Developed Materials, as defined in Section 1.6 of
the Agreement, to be owned by Blockbuster Inc. and licensed to Organic, Inc. in
accordance with Section 3.2 of the Agreement.
Version Date (if applicable)
Final IDFS and Site Architecture September 16, 1999
Design Review 4 July 6, 1999
Design Review 3 June 10, 1999
Design Review 2.5 June 1, 1999
Design Review 2 May 12, 1999
Exploratory Design Review 1 March 24, 1999
Final Creative Investigations April 12, 1999
Final Editorial Platform March 24, 1999
Final Creative Direction Document April 2, 1999
AssignCorp Report of Titles w/o BB item numbers October 1, October 14, 1999
Filtering Rules October 22, 1999
Functional Test Cases (ZIP file) September 20, 1999
High Level Test Plan September 2, 1999
Wireframe Testing, Key Findings and
Recommendations May 17, 1999
draft Measurement and Analysis Strategy April 26, 1999
draft M&A Strategy Appendix 2 (Excel file) April 26, 1999
Final Strategic Assessment March 2, 1999
Order Processing Flow (gif files): OrderTrust
Flow, diagram 1 10/18/99
OrderTrust Flow, diagram 2 10/18/99
OrderTrust Flow, diagram 3 10/18/99
FINAL Content Randomization Chart 10/05/99
Xxxxxxxxxxx.xxx Overview 9/02/99
Technical Specifications (ZIP) 9/2/99 and 9/29/99
Data Components & Interfaces Diagram 6/28/99
Redundant Network Diagram 6/28/99
Physical Systems & Network Diagram 6/28/99
Project Requirements April 13, 1999
High Level System Architecture diagram
Roles and Responsibilities diagram
Project Requirements Appendix A April 13, 1999
30
The Developed Materials shall also include updates, enhancements and revisions
of the foregoing. Developed Materials does not include the methodologies or
tools used to create the foregoing or any ideas, concepts, know-how,
methodologies, processes, technologies, algorithms or techniques associated with
the creation of the foregoing.
Developed Software:
The following is a list of Developed Software, as defined in Section 1.7 of the
Agreement, to be owned by Blockbuster Inc. and licensed to Organic, Inc. in
accordance with Section 3.2 of the Agreement.
Server Engineering Code:
Calculate Shipping Cost
Game List
Product Sort by Release Date
Field Validation enforcing CX01 format
Code to determine if user is a Blue or Gold Rewards member
Blockbuster Store and StoreDBManager subclass of ATG class
Blockbuster Category subclass of ATG class
Blockbuster Sku subclass of ATG classes
Blockbuster Shipping Cost Service subclass of ATG class
Blockbuster Debug subclass of ATG classes
Blockbuster Servlet Request subclass of ATG classes
Blockbuster Session History subclass of ATG class
Blockbuster Range subclass of ATG classes
Blockbuster Sort and Sortable subclass of ATG classes
OrderTrust subclasses of ATG classes
OrderTrust services
Blockbuster Recommends:
Valet Client, Connection, and Service
Pick Categories
Rate Movies
Recommended Movie
WEB OPERATIONS CODE:
Xxxxxxx search monitoring and administration - monitor performance, usage, and
pyramid build Image server monitoring - monitor performance, usage
Recommendation engine monitoring and administration - monitor performance,
usage, data transfer scripts
CONTENT ENGINEERING CODE:
All JHTML templates
31
DATABASE ENGINEERING CODE:
Content Load Scripts that load from the Content Integration System developed by
AssignCorp into the Xxxxxxxxxxx.xxx product catalog
Stored procedures that deal with specific Sound and Game functionality that is
not generically handled by the generic Product stored procedure.
DATABASE TABLES THAT SUPPORT BLOCKBUSTER CONTENT PERTAINING TO:
Works (Movies, Video Games, Soundtracks) Work Associations Work Credits Work
Keywords Work Ratings Movie plots, actors, keywords, categories, awards Video
Game descriptions, game characters, game categories Soundtrack track listings,
images, credits, Alternate titles Filmography
ORGANIC MATERIALS:
Organic Materials, as defined in Section 1.12 of the Agreement include all
materials not listed above, including methodologies or tools used to create the
above-listed Developed Materials and Developed Software or any ideas, concepts,
know-how, methodologies, processes, technologies, algorithms or techniques
associated with the creation of the above-listed Developed Materials and
Developed Software.
ORGANIC SOFTWARE:
The following is a list of the Organic Software, as defined in Section 1.13 of
the Agreement to be owned by Organic, Inc. and licensed to Blockbuster Inc. in
accordance with Section 3.1 of the Agreement. This list is composed of
individual Java source code files, representing classes, packages, and
interfaces, database stored procedures, shell scripts, and other programs.
Collectively, these files are used by Organic to implement standard, reusable
functionality for electronic commerce web sites. Some of these files are used as
extensions to ATG's Dynamo product while others are general Java utility code.
In addition, common web interfaces, common monitoring and administration
scripts, and database tables and code developed to support the standard,
reusable functionality are Organic Software.
WEB SITE APPLICATION FUNCTIONALITY:
Login
Registration (except for Blockbuster Updates)
Forget Password
Shopping Cart
32
Back Order
Product Catalog
Product sort (by title, rank)
Product Search, Search Results page
Product Type, Attribute, Value, SKU associations
User Password and Credit Card Encryption
Email Address Validation
Credit Card:
Validation and Verification
Authorization
Response
Order Submission
Inventory Check
Shipping Options
Shipping Charge Calculation
Calculate Subtotal
Calculate Total
Calculate Tax
Verify City, State, Zip
Alphabetical Navigation
SSL services
Static Content lookup
Error Handling
User Event Tracking
Session History
Database Connectivity
Garbage collection services
URL menu handler
Message Format utility
String parsing utility
Test code to test order conveyance and inventory check
WEB SITE MONITORING AND ADMINISTRATION FUNCTIONALITY:
Database backup/recovery scripts
Database monitoring scripts - to monitor performance, database growth, and
general "health" of the system
Web server admin/monitoring scripts - check that web servers are up, restart
web servers automatically
App server admin/monitoring scripts - check that app servers are up, restart
app servers automatically
System backup/recovery scripts
Operating system admin/monitoring scripts - monitor performance, utilization,
disk growth, memory, i/o, uptime
33
DATABASE TABLES:
Database tables to support the functionality listed above
Database tables that support the notion of people, and relationships between
people
DATABASE CODE (STORED PROCEDURES):
Address maintenance
Error Handling
Orders
Person
Product
Person and Product association
OTHER CODE:
Perl scripts to extract CLOB data into flat files
Reserved Works:
The following is a list of Developed Software and Developed Materials that shall
be deemed to be Reserved Works as defined in Sections 1.15 and 3.9 of the
Agreement. As provided in Section 3.9 of the Agreement, ORGANIC shall not
receive a license to use such Reserved Works in accordance with the license
provisions Section 3.2.3 of the Agreement.
SERVER ENGINEERING CODE:
Field Validation enforcing CX01 format
Code to determine if user is a Blue or Gold Rewards member
Blockbuster Recommends:
Valet Client, Connection, and Service
Pick Categories
Rate Movies
Recommended Movie
34
SCHEDULE E
SERVICE LEVELS
35
SCHEDULE F
ORGANIC'S STANDARD HOURLY RATES
As of July 1999
CREATIVE
Executive Creative Director $ 300
Creative Director $ 275
Senior Associate Creative Director $ 250
Associate Creative Director $ 225
Creative Resource Manager $ 200
Chief Information Architect $ 225
Senior Information Architect $ 200
Information Architect $ 175
Junior Information Architect $ 150
Senior Art Director $ 225
Senior Designer/Art Director $ 200
Designer $ 175
Junior Designer $ 150
Creative Service Manager $ 200
Senior Interactive Production Artist $ 175
Interactive Production Artist $ 150
Junior Interactive Production Artist $ 135
Senior Editor $ 225
Senior Writer/Senior Copywriter $ 225
Writer/Copywriter $ 175
Jr. Copywriter $ 150
CLIENT SERVICES
Client Partner $ 275
Associate Client Partner $ 225
Client Associate $ 175
STRATEGIC SERVICES
Director of Strategic Services $ 300
Chief Interactive Strategist $ 275
Senior Interactive Strategist $ 250
Interactive Strategist $ 225
Senior Strategic Analyst $ 200
36
Strategic Analyst $ 175
Research Manager $ 250
Research Analyst $ 175
Web Archaeologist $ 175
Brand Strategist $ 250
PROJECT MANAGEMENT
Director of Project Management $ 300
Executive Producer $ 275
Senior Producer $ 200
Producer $ 175
Associate Producer $ 150
ENGINEERING
Director of Engineering $ 325
Associate Director of Engineering $ 300
CONTENT ENGINEERING
Chief Content Engineer $ 275
Managing Content Engineer $ 250
Senior Content Engineer $ 200
Content Engineer $ 175
Associate Content Engineer $ 150
SERVER ENGINEERING
Chief Server Engineer $ 275
Managing Server Engineer $ 250
Server Engineering Architect $ 275
Senior Server Engineer $ 250
Server Engineer $ 225
Associate Server Engineer $ 175
Technical Writer $ 250
PROJECT ENGINEERING
Chief Project Engineer $ 275
Managing Project Engineer $ 250
Senior Project Engineer $ 250
Project Engineer $ 225
Associate Project Engineer $ 175
37
WEB OPERATIONS
Chief Hosting Engineer $ 275
Senior Hosting Engineer $ 250
Hosting Engineer $ 225
Associate Hosting Engineer $ 175
Statistics Engineer $ 200
Release Engineer $ 200
Database Administrator $ 200
QUALITY ASSURANCE
Quality Manager $ 250
Quality Engineer $ 200
Quality Coordinator $ 175
Quality Tester $ 150
Technical Proofreader $ 175
MEDIA
Media Director $ 275
Media Manager $ 250
Media Supervisor $ 225
Senior Media Planner $ 215
Media Planner $ 200
Assistant Media Planner $ 150
Media Buying Manager $ 250
Senior Media Buyer $ 200
Media Buyer $ 175
Assistant Media Buyer $ 150
Performance Analyst Manager $ 250
Senior Performance Analysis $ 200
Performance Analyst $ 175
Performance Analyst Assistant $ 140
Traffic Manager $ 175
Traffic Coordinator $ 165
Traffic Monitor $ 140
COMMUNICATIONS
General Manager $ 325
Director $ 300
Account Director $ 265
Senior Account Manager $ 225
Account Manager $ 190
Account Assistant $ 160
38
OFFICERS
Chief Creative Officer $ 400
Chief Technology Officer $ 400
Vice President of Engineering $ 350
Vice President, Communications $ 350
Vice President, Managing Director $ 350
39
OSA Components:
I. APPLICABLE SPECIFICATIONS (SECTION 1.2)
Final IDFS and Site Architecture September 16, 1999
Design Review 4 July 6, 1999
Design Review 3 June 10, 1999
Design Review 2.5 June 1, 1999
Design Review 2 May 12, 1999
Exploratory Design Review 1 March 24, 1999
Final Creative Investigations April 12, 1999
Final Editorial Platform March 24, 1999
Final Creative Direction Document April 2, 1999
AssignCorp Report of Titles w/o BB item numbers October 1, October 14, 1999
Filtering Rules October 22, 1999
Functional Test Cases (ZIP file) September 20, 1999
High Level Test Plan September 2, 1999
Wireframe Testing, Key Findings and Recommendations May 17, 1999
draft Measurement and Analysis Strategy April 26, 1999
draft M&A Strategy Appendix 2 (Excel file) April 26, 1999
Final Strategic Assessment March 2, 1999
Order Processing Flow (gif files): OrderTrust
Flow, diagram 1 10/18/99
OrderTrust Flow, diagram 2 10/18/99
OrderTrust Flow, diagram 3 10/18/99
FINAL Content Randomization Chart 10/05/99
Xxxxxxxxxxx.xxx Overview 9/02/99
Technical Specifications (ZIP) 9/2/99 and 9/29/99
Data Components & Interfaces Diagram 6/28/99
Redundant Network Diagram 6/28/99
Physical Systems & Network Diagram 6/28/99
Project Requirements April 13, 1999
High Level System Architecture diagram
Roles and Responsibilities diagram
Project Requirements Appendix A April 13, 1999
II. REMAINING DELIVERABLES SCHEDULE (SECTION 2.1.3)
A. Usability Testing SOW - Remaining Deliverables:
Delivery Acceptance
-------- ----------
Discussion Guide 10/26/99 10/28/99
Interviews 11/9 and 11/11/99 n/a
Report of Findings 1/18/99 11/29/99
Video Tapes 11/18/99 n/a
B. Sub-system, System and Integration Testing SOW - Remaining Deliverables:
Delivery Acceptance
-------- ----------
Hard Launch Acceptance Criteria 10/29/99 11/2/99
C. Xxxxx X XXX - Remaining Deliverables:
Delivery Acceptance
-------- ----------
Functional Test Cases (Xxxxxxx) (Xxxxxxx)
Tech Spec 11/15/99 11/17/99
40
D. Phase 1&2 SOW - Remaining Deliverables:
Delivery Acceptance
-------- ----------
Style Guide 11/15/99 11/17/99
AssignCorp Design Doc 11/15/99 11/17/99
AssignCorp Datamodel 11/15/99 11/17/99
Data Components and Interfaces Diagram 11/15/99 11/17/99
Redundant Network Diagram 11/15/99 11/17/99
Physical Systems and Network Diagram 11/15/99 11/17/99
Content Feeds Diagram 11/15/99 11/17/99
Final Project Requirements 11/15/99 11/17/99
Operations Manual 4/20/00 4/24/00
III. ADDITIONAL STATEMENTS OF WORK (SECTION 2.3)
SOW Title Delivery Signed Date
--------- -------- -----------
Usability Testing 8/23/99 8/27/99
Subsystem, System and Integration Testing 8/23/99 8/27/99
Clair V 8/23/99 8/27/99
Core Team 8/23/99 8/27/99
GiftCards 8/27/99 9/1/99
IV. TOOLS (SECTION 8.5)
A. Standards and protocols that cannot be licensed to Blockbuster in the event
of termination due to the fact that they are public domain. Note that this
is NOT an all-inclusive list, but merely indicates some of the public
domain types of tools used to develop the site.
1) Blowfish algorithm for credit card encryption
2) MD5 algorithm
3) HTTP (Hypertext Transfer Protocol)
4) HTML (Hypertext Xxxx-up Language
5) FTP, SCP, SSH (File Transfer Protocol, Secure Copy, Secure Shell)
6) TCP/IP (Transmission Control Protocol/Internet Protocol)
7) SMTP (Simple Mail Transfer Protocol)
8) CVS (Source code control system)
9) Sendmail
10) Other programming languages (Java, Javascript, PERL, UNIX shells,
etc.)
B. Still working on the tools list that can in fact be transferred to
Blockbuster in the event of a termination of agreement.
41
SCHEDULE B - ORGANIC SOFTWARE
The following is a list of the Organic Software, as defined in Section 1.10 of
the Omnibus Services Agreement (OSA), that is owned by Organic, Inc. and
licensed in Section 3.1 of the OSA to Blockbuster Inc. This list is composed of
individual Java source code files, representing classes, packages, and
interfaces, database stored procedures, shell scripts, and other programs.
Collectively, these files are used by Organic to implement standard, reusable
functionality for electronic commerce web sites. Some of these files are used as
extensions to ATG's Dynamo product while others are general Java utility code.
In addition, common web interfaces, common monitoring and administration
scripts, and database tables and code developed to support the standard,
reusable functionality are components in this list.
WEB SITE APPLICATION FUNCTIONALITY:
Login
Registration (except for Blockbuster Updates)
Forget Password
Shopping Cart
Back Order
Product Catalog
Product sort (by title, rank)
Product Search, Search Results page
Product Type, Attribute, Value, SKU associations
User Password and Credit Card Encryption
Email Address Validation
Credit Card:
Validation and Verification
Authorization
Response
Order Submission
Inventory Check
Shipping Options
Shipping Charge Calculation
Calculate Subtotal
Calculate Total
Calculate Tax
Verify City, State, Zip
Alphabetical Navigation
SSL services
Static Content lookup
Error Handling
User Event Tracking
Session History
Database Connectivity
Garbage collection services
URL menu handler
Message Format utility
String parsing utility
Test code to test order conveyance and inventory check
42
WEB SITE MONITORING AND ADMINISTRATION FUNCTIONALITY:
Database backup/recovery scripts
Database monitoring scripts - to monitor performance, database growth, and
general "health" of the system
Web server admin/monitoring scripts - check that web servers are up, restart
web servers automatically
App server admin/monitoring scripts - check that app servers are up, restart
app servers automatically
System backup/recovery scripts
Operating system admin/monitoring scripts - monitor performance, utilization,
disk growth, memory, i/o, uptime
DATABASE TABLES:
Database tables to support the functionality listed above
Database tables that support the notion of people, and relationships
between people
DATABASE CODE (STORED PROCEDURES):
Address maintenance
Error Handling
Orders
Person
Product
Person and Product association
OTHER CODE:
Perl scripts to extract CLOB data into flat files
43
SCHEDULE C1 - DEVELOPED SOFTWARE
The following is a list of the Software components developed by Organic
specifically for Blockbuster, as defined in Section 1.5 of the Omnibus Services
Agreement (OSA), that is owned by Blockbuster Inc. and licensed in Section 3.1
of the OSA to Organic Inc.
SERVER ENGINEERING CODE:
Calculate Shipping Cost
Game List
Product Sort by Release Date
Field Validation enforcing CX01 format
Code to determine if user is a Blue or Gold Rewards member
Blockbuster Store and StoreDBManager subclass of ATG class
Blockbuster Category subclass of ATG class
Blockbuster Sku subclass of ATG classes
Blockbuster Shipping Cost Service subclass of ATG class
Blockbuster Debug subclass of ATG classes
Blockbuster Servlet Request subclass of ATG classes
Blockbuster Session History subclass of ATG class
Blockbuster Range subclass of ATG classes
Blockbuster Sort and Sortable subclass of ATG classes
OrderTrust subclasses of ATG classes
OrderTrust services
Blockbuster Recommends:
Valet Client, Connection, and Service
Pick Categories
Rate Movies
Recommended Movie
WEB OPERATIONS CODE:
Xxxxxxx search monitoring and administration - monitor performance, usage, and
pyramid build Image server monitoring - monitor performance, usage
Recommendation engine monitoring and administration - monitor performance,
usage, data transfer scripts
CONTENT ENGINEERING CODE:
All JHTML templates
DATABASE ENGINEERING CODE:
Content Load Scripts that load from the Content Integration System developed by
AssignCorp into the Xxxxxxxxxxx.xxx product catalog
Stored procedures that deal with specific Sound and Game functionality that is
not generically handled by the generic Product stored procedure.
DATABASE TABLES THAT SUPPORT BLOCKBUSTER CONTENT PERTAINING TO:
Works (Movies, Video Games, Soundtracks)
Work Associations
Work Credits
Work Keywords
Work Ratings
Movie plots, actors, keywords, categories, awards
Video Game descriptions, game characters, game categories
Soundtrack track listings, images, credits,
44
Alternate titles
Filmography
45
SCHEDULE C2 - DEVELOPED MATERIALS
The following is a list of the Materials developed by Organic specifically for
Blockbuster, as defined in Section 1.6 of the Omnibus Services Agreement (OSA),
that is owned by Blockbuster Inc. and licensed in Section 3.1 of the OSA to
Organic Inc.
Final IDFS and Site Architecture September 16, 1999
Design Review 4 July 6, 1999
Design Review 3 June 10, 1999
Design Review 2.5 June 1, 1999
Design Review 2 May 12, 1999
Exploratory Design Review 1 March 24, 1999
Final Creative Investigations April 12, 1999
Final Editorial Platform March 24, 1999
Final Creative Direction Document April 2, 1999
AssignCorp Report of Titles w/o BB item numbers October 1, October 14, 1999
Filtering Rules October 22, 1999
Functional Test Cases (ZIP file) September 20, 1999
High Level Test Plan September 2, 1999
Wireframe Testing, Key Findings and Recommendations May 17, 1999
draft Measurement and Analysis Strategy April 26, 1999
draft M&A Strategy Appendix 2 (Excel file) April 26, 1999
Final Strategic Assessment March 2, 1999
Order Processing Flow (gif files): OrderTrust
Flow, diagram 1 10/18/99
OrderTrust Flow, diagram 2 10/18/99 OrderTrust
Flow, diagram 3 10/18/99
FINAL Content Randomization Chart 10/05/99
Xxxxxxxxxxx.xxx Overview 9/02/99
Technical Specifications (ZIP) 9/2/99 and 9/29/99
Data Components & Interfaces Diagram 6/28/99
Redundant Network Diagram 6/28/99
Physical Systems & Network Diagram 6/28/99
Project Requirements April 13, 1999
High Level System Architecture diagram
Roles and Responsibilities diagram
Project Requirements Appendix A April 13, 1999
