EXHIBIT 4.9
SERVICE CHANGE ORDER TRANSMITTAL SHEET
ADDENDUM TO
SERVICE AGREEMENT FOR HP OPERATIONS SERVICES (SLA)
CHANGE REQUEST CONTROL NUMBER: 010604-01
INITIATED BY: X HEWLETT PACKARD VIALINK
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SERVICE CHANGE ORDER DESCRIPTION:
The parties entered into a Service Level Agreement for Operations Services (SLA)
dated June 3, 1999, and certain Support Agreement nos. 3112M8401, 3112M8391,
3112M8361, 0000X0000, 3112M8411, 3112M8381, 0000X0000, 3185G9881, and 3182B2621,
in each case, as amended from time to time, including pursuant to that certain
Addendum 69d to Service Agreement for Operations Services dated August 8, 2001,
that certain Settlement, Amendment and Mutual Release Agreement dated as of
November 13, 2001, that certain Second Settlement and Amendment Agreement dated
as of January 17, 2002, that certain Addendum 69e to the Service Agreement for
Operations Services dated January 18, 2002, that certain Global Amendment dated
July 10, 2002, that certain Second Global Amendment Agreement dated September 3,
2002, and that certain Addendum 200 to the Service Agreement for Operations
Services dated November 8, 2002 (collectively, the "Service and Support
Agreements"). The term ("Term") of the Service and Support Agreements expires on
April 20, 2004, without further renewal, absent the agreement of the parties.
This addendum extends the Term for two additional months; provided, that such
extension shall (a) be subject to the terms of this change order, and (b) shall
be without further renewal, absent the agreement parties.
PURPOSE OF CHANGE:
Adjust SLA availability requirements due to decreased hardware support (MCOS to
BOS support).
Define the Operations Services and BOS fee schedule for months 50 through 60
(August, 2003 through June, 2004).
DEPENDENCIES:
viaLink's and Hewlett Packard's approval of this Change Request.
COMMUNICATION PLAN:
As previously established by the parties and as necessary using email and voice
mail.
PRE-CHANGE TESTING:
N/A
BACK OUT PLAN:
Not required.
POST-CHANGE TESTING :
Not required
DOCUMENTATION CHANGE :
N/A
RISK ANALYSIS:
N/A
PRIMARY HP CONTACT:
Xxxx Xxxxx
CONTACT/ REQUESTER:
Xxxxx Xxxxxx
DATE OF REQUEST:
1/06/04
EFFECTIVE DATE OF SERVICE CHANGE:
5/1/04
SERVICE FEES:
See "Affected Exhibits" section of this change order for amended Exhibit C,
Service Fee Schedule.
SERVICE ASSUMPTIONS:
None
TERMS AND CONDITIONS:
1. Except as expressly provided in this addendum, the execution, delivery
and effectiveness of this addendum shall not (i) limit, impair,
constitute a waiver of, or otherwise affect any right, power or remedy
of HP under the Service and Support Agreements, or any other agreement
between the parties as of the date hereof, (ii) constitute a waiver of
any provision of the Service and Support Agreements, or any other
agreement between the parties as of the date hereof, or (iii) alter,
modify, amend, or in any way affect any of the terms, conditions,
obligations covenants, or agreements contained in the Service and
Support Agreements, or any other agreement between the parties as of
the date hereof, all of which are ratified and affirmed in all respects
and shall continue in full force and affect. This addendum preserves
HP's rights with respect to all prior amendments to the Service and
Support Agreements and all other documents between HP and viaLink
related thereto. Upon the effectiveness of this addendum, all
references contained in any agreement between HP and viaLink as of the
date hereof (including, without limitation, all references to the
agreements referenced in the Service Change Order Description herein)
shall be deemed to refer to the Service and Support Agreements as
amended by this addendum.
2. The revised Fee Schedule for the extension is contingent upon viaLink
paying in advance for Operations Services by not later than May 7th,
2004 for services to be rendered in May 2004, and June 7th for services
to be rendered in June 2004.
3. This addendum extends the Term for two additional months; provided,
that such extension shall (a) be subject to the terms of this change
order, and (b) shall be without further renewal, absent the agreement
parties.
SECTION 1.12.3 OF THE SLA IS AMENDED AS FOLLOWS:
In addition to its other rights under this Agreement, viaLink may take
credits against the fees set forth in Exhibit C based upon the availability
achieved by HP in comparison with the Service Level Objectives for the
Functional Environment and/or for the Non-Redundant Servers as determined
pursuant to Exhibit B. To the extent not taken on a monthly basis, these
credits will be settled on an annual basis on the contract anniversary. The
schedule is as follows:
Availability Percentage as determined Availability Percentage as determined Amount of credits which viaLink may
by Exhibit B to the Agreement during a by Exhibit B to the Agreement during a take against future amounts due
given Reporting Period of the given Reporting Period of the Agreement pursuant to Exhibit C
Agreement for a Non-Redundant Server for the Functional Environment
98% or greater 98.5% or greater None
Greater than or equal to 97% but Greater than or equal to 97.5% Ten percent (10%) of amount
less than 98% but less than 98.5 % payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
Greater than or equal to 96% but Greater than or equal to 96.5% Fifteen percent (15%) of amount
less than 97% but less than 97.5% payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
Greater than or equal to 95% but Greater than or equal to 95.5% Twenty percent (20%) of amount
less than 96% but less than 96.5% payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
Greater than or equal to 94% but Greater than or equal to 94.5% Twenty-five percent (25%) of
less than 95% but less than 95.5% amount payable by viaLink to HP
for each month in which the
availability achieved was in
this range.
Less than 94% Less than 94.5% Thirty percent (30%) of amount
payable by viaLink to HP for
each month in which the
availability achieved was in
this range.
AFFECTED EXHIBITS:
EXHIBIT C OF SLA DATED 6/3/99 IS MODIFIED AS FOLLOWS:
EXHIBIT C, SERVICE FEE SCHEDULE
13.2.2 SERVICE FEES PAYMENT SCHEDULE THROUGH MONTH 56 (FEBRUARY, 2004)
Month 50 (August, 2003) $105,645
Month 51 (September, 2003) $105,645
Month 52 (October, 2003) $105,645
Month 53 (November, 2003) $105,645
Month 54 (December, 2003) $105,702
Month 55 (January, 2004) $105,714
Month 56 (February, 2004) $105,714
Month 57 (March, 2004) $105,714
Month 58 (April, 2004) $105,714
Month 59 (May, 2004) $105,714
Month 60 (June, 2004) $105,714
This supplemental fee schedule reflects total amounts due for Operations
Services, and hardware and software maintenance (BOS) for Months 50 through 57
(August 1, 2003 through April, 2004), which follows immediately after month 49
of the existing Service Fee Payment Schedule. The extension provided for in this
addendum and the supplemental fee schedule relating thereto is contingent upon
viaLink paying in advance for Operations Services by wire transfer not later
than the 5th business day of each month starting with month 50. In the event
viaLink fails to make payment in advance pursuant to the above, HP will
immediately terminate the SLA and deactivate the viaLink production environment,
and viaLink shall be obligated to pay to HP all Service Fees due up to the date
of termination together with all other charges due under the Service and Support
Agreements.
This Service Change Request has been prepared pursuant to the Change Management
Procedures (Exhibit B) incorporated in the Service Agreement for HP Operations
Services between HP and viaLink dated June 3, 1999. Your signature below
indicates acceptance of this Service Change Order, and it also authorizes HP to
provide and invoice viaLink for these services according to the terms and
Service Fees stated above.
IN WITNESS WHEREOF, HP and viaLink each acting with proper authority, have
caused this Service Change Order to be executed as of the date set forth below.
Hewlett-Packard Company The
viaLink Company
Signature: Signature:
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Name: Xxxx Xxxxx Name: Xxxxx Xxxxxx
Title: Client Manager Title: Vice President
Date: Date:
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