-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PX9CDIXdG4tGCmKtK42u73Jd6TQzxmDJsst8tkRrx0iPTsM9N3yBm+IV+xe/KiwF pD381OokzhFntaQb3j7l5A== 0000912057-96-014053.txt : 19960709 0000912057-96-014053.hdr.sgml : 19960709 ACCESSION NUMBER: 0000912057-96-014053 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 14 FILED AS OF DATE: 19960708 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: USCS INTERNATIONAL INC CENTRAL INDEX KEY: 0001012459 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING SERVICES [7371] IRS NUMBER: 941727009 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS AM SEC ACT: 1933 Act SEC FILE NUMBER: 333-03842 FILM NUMBER: 96592073 BUSINESS ADDRESS: STREET 1: 2969 PROSPECT PARK DR CITY: RANCHO CORDOVA STATE: CA ZIP: 95670 BUSINESS PHONE: 9166364500 MAIL ADDRESS: STREET 1: 2969 PROSPECT DRIVE CITY: RANCHO CORDOVA STATE: CA ZIP: 95670 POS AM 1 POS AM AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 8, 1996 REGISTRATION NO. 333-3842 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ USCS INTERNATIONAL, INC. (Name of registrant as specified in its charter) DELAWARE 7371 94-1727009 (State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
2969 PROSPECT PARK DRIVE RANCHO CORDOVA, CA 95670-6148 (916) 636-4500 (Address and telephone number of principal executive offices) JAMES C. CASTLE, PH.D. CHIEF EXECUTIVE OFFICER USCS INTERNATIONAL, INC. 2969 PROSPECT PARK DRIVE RANCHO CORDOVA, CA 95670-6184 (916) 636-4500 (Name, address and telephone number, of agent for service) ------------------------ COPIES TO: GILLES S. ATTIA, ESQ. MARK A. BERTELSEN, ESQ. KEVIN A. COYLE, ESQ. ANN YVONNE WALKER, ESQ. Graham & James, LLP Wilson Sonsini Goodrich & Rosati 400 Capitol Mall Professional Corporation Suite 2400 650 Page Mill Road Sacramento, CA 95814-4411 Palo Alto, CA 94304-1050 (916) 558-6700 (415) 493-9300
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS PRACTICABLE ON OR AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT. ------------------------ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. / / If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / ------------------------ CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED TITLE OF OFFERING MAXIMUM AMOUNT OF SECURITIES TO BE AMOUNT BEING PRICE PER AGGREGATE REGISTRATION REGISTERED REGISTERED SHARE (1) OFFERING PRICE FEE (2) Common Stock, Par Value $.05 per share.......... 5,520,000 Shares $17.00 $93,840,000 $32,359 Rights to Purchase Series A Preferred Stock, par value $.05 per share.... 5,520,000 Rights $0.00 $0.00 $0.00 (1) Estimated solely for the purpose of calculating the amount of the registration fee. (2) Previously paid.
------------------------ THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT FOR THE SOLE PURPOSE OF THE ELECTRONIC FILING OF EXHIBITS WHICH WERE PREVIOUSLY FILED IN PAPER FORMAT PURSUANT TO WHICH THE COMPANY RECEIVED A TEMPORARY HARDSHIP EXEMPTION PURSUANT TO RULE 201 OF REGULATION S-T. THE PORTIONS OF THE REGISTRATION STATEMENT OMITTED FROM THIS AMENDMENT AND PREVIOUSLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ARE INCORPORATED BY THIS REFERENCE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II THE PORTIONS OF THE REGISTRATION STATEMENT OMITTED FROM PART II IN THIS AMENDMENT AND PREVIOUSLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ARE INCORPORATED BY THIS REFERENCE. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) Exhibits
EXHIBIT NO. - ------------- 1.1 Form of Purchase Agreement.* 2.1 Agreement and Plan of Merger dated April 18, 1996 among USCS International, Inc., a Delaware corporation, and U.S. Computer Services, a California corporation.* 2.2 Reference exhibits 10.37, 10.38, 10.39 & 10.40. 3.1 First Amended and Restated Certificate of Incorporation of USCS International, Inc.* 3.2 Bylaws of the Company.* 3.3 Certificate of Designation of Rights, Preferences and Privileges of Series A Preferred Stock.* 4.1 Reference Exhibit 3.1. 4.2 Shareholder Rights Agreement dated December 30, 1988 among U.S. Computer Services, Westar Capital and Enterprise Partners. 4.3 Stockholder Rights Plan.* 5.1 Opinion of Graham & James LLP, Counsel to the Registrant, as to legality of securities being registered.* 10.1 1988 Incentive Stock Option Plan.* 10.2 The Company's Employee Stock Ownership Plan ("ESOP") as amended and restated as of January 1, 1991, and as amended effective January 1, 1991, January 1, 1992, January 1, 1993, February 19, 1993, January 1, 1994, December 31, 1994, January 1, 1995, March 31, 1995, January 1, 1996 and March 21, 1996.* 10.3 1993 Incentive Stock Option Plan.* 10.4 1996 Stock Option Plan.* 10.5 1996 Directors' Stock Option Plan.* 10.6 Employee Stock Purchase Plan.* 10.7 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of December 1, 1987 between the Company and Sun Bank, as Trustee.* 10.8 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of December 1, 1987 between the Company and Sanwa Bank of California.* 10.9 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of June 30, 1989 between the Company and Sun Bank, as Trustee.* 10.10 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of June 30, 1989 between the Company and Sanwa Bank of California.* 10.11 Note Agreement dated as of February 19, 1992 (re: $22,500,000 7.91% Senior Notes due February 19, 1999) between the Company and Great-West Life and Annuity Insurance Company and Phoenix Mutual Life Insurance Company and as amended as of February 17, 1993, April 30, 1993, August 1, 1994, March 31, 1995 and February 15, 1996.* 10.12 Credit Agreement dated as of February 15, 1996 among IBS, Nationsbank of Texas and the Lender Parties named therein.* 10.13 Credit Agreement dated as of February 15, 1996 among The Company, Nationsbank of Texas and the Lender Parties named therein.* 10.14 Form of Standard On/Line Operating and License Agreement.*
II-2
EXHIBIT NO. - ------------- 10.15 Form of Standard Equipment Maintenance Agreement.* 10.16 Form of Master Lease, Lease Request and Certificate of Acceptance.* 10.17 Form of Standard Agreement for the Sale and Installation of Equipment.* 10.18 Form of Standard Statement Production Services Agreement.* 10.19 Strategic Business Agreement dated January 19, 1992 between the Company and International Business Machines Corporation and Addendum Number One to Strategic Business Agreement dated June 4, 1993 between the Company and International Business Machines Corporation.+ 10.20 Business Alliance Program Agreement between Oracle Corporation and CableData.+ 10.21 Development Agreement dated December 5, 1994 between the Company and Tandem Computers Incorporated.+ 10.22 Porting Agreement dated January 25, 1996 between CableData and Hewlett-Packard Company.+ 10.23 [Intentionally omitted] 10.24 On/Line Operating and License Agreement dated June 7, 1996 between CableData, Inc. and TCI Cable Management Corporation.+ 10.25 Master Lease Agreement No. DO4347 dated as of April 16, 1993 between the Company and First Equipment Company.* 10.26 On/Line Operating and Licensing Agreement dated December 17, 1993 between the Company dba CableData and Continental Cablevision.+ 10.27 Statement Production Services Agreement dated August 20, 1993 between the Company dba International Billing Services and Ameritech Corporation.* ***+ 10.28 Software Development Agreement dated December 27, 1995 between CableData and BellSouth Interactive Media Services.+ 10.29 CableData's Intelecable-TM- Operating and License Agreement dated December 27, 1995 between CableData. and BellSouth Interactive Media Services, Inc.+ 10.30 Software License and Service Agreement and Network User License Addendum dated May 18, 1994 between the Company and Oracle Corporation.+ 10.31 Statement Production Services Agreement dated October 9, 1990 between the Company and CBIS and First Addendum to Statement Production Services Agreement dated July 17, 1991 between the Company and CBIS.+ 10.32 Tandem Alliance Agreement dated January 1, 1995, between Tandem and CableData.+ 10.33 Contract for Computer Software (Postalsoft Software License Agreement) dated February 13, 1996 between IBS and Postalsoft, Inc.+ 10.34 Employment Agreement dated August 10, 1992 between the Company and James C. Castle.* 10.35 Employment Agreement dated June 29, 1995 with Michael McGrail.* 10.36 Form of Severance Agreement.* 10.37 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and CableData.* 10.38 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and IBS.* 10.39 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and CableLease, Inc.* 10.40 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and RPA, Inc.*
II-3
EXHIBIT NO. - ------------- 10.41 Building Lease for property located at 2969 Prospect Park Drive between the Company and F.I.A. Profile Fund I dated January 19, 1994.* 10.42 Alternate Mailing System Agreement dated March 28, 1996 between the United States Postal Service and IBS.+ 10.43 Alternate Mailing Systems Agreement dated April 18, 1996 between the United Postal Service and International Billing Services, Inc.* 10.44 Form of Directors' Indemnification Agreement.* 10.45 Form of Custody and Escrow Agreement for Selling Stockholders.* 10.46 Form of Selling Stockholders' Irrevocable Power of Attorney.* 10.47 Amendment No. 11 to the ESOP.* 21.1 List of Subsidiaries.* 23.1 Consent of Graham & James LLP (included in Exhibit 5.1). 23.2 Consent of Price Waterhouse LLP.* 24.1 Powers of Attorney.* 27.1 Financial Data Schedule.*
- ------------------------ * Indicates Exhibit previously filed. *** Indicates Exhibit was filed in paper format pursuant to a continuing hardship exemption under Rule 202 of Regulation S-T. + Portions omitted pursuant to a request for confidential treatment pursuant to Rule 406 of the Securities Act. (b) Financial Statement Schedules None. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Rancho Cordova, State of California, on the 8th day of July, 1996. USCS INTERNATIONAL, INC. By /S/ DOUGLAS L. SHURTLEFF ------------------------------------ Douglas L. Shurtleff, Chief Financial Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment to Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Dated: July 8, 1996 * ------------------------------------------- James C. Castle Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) Dated: July 8, 1996 * ------------------------------------------- George L. Argyros, Sr. Director Dated: July 8, 1996 * ------------------------------------------- George M. Crandell, Jr. Director Dated: July 8, 1996 * ------------------------------------------- Charles D. Martin Director *By /S/ DOUGLAS L. SHURTLEFF - ------------------------------------------- Douglas L. Shurtleff ATTORNEY-IN-FACT
II-5 Dated: July 8, 1996 * ------------------------------------------- Michael F. McGrail Director Dated: July 8, 1996 * ------------------------------------------- Larry W. Wangberg Director Dated: July 8, 1996 /S/ DOUGLAS L. SHURTLEFF ------------------------------------------- Douglas L. Shurtleff Senior Vice-President of Finance and Chief Financial Officer (Principal Financial Officer) Dated: July 8, 1996 /S/ ARTHUR O. HAWKINS ------------------------------------------- Arthur O. Hawkins Vice-President and Treasurer (Principal Accounting Officer) *By /S/ DOUGLAS L. SHURTLEFF - ------------------------------------------- Douglas L. Shurtleff ATTORNEY-IN-FACT
II-6 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ----------- -------------------------------------------------------------------------------------------------------- 1.1 Form of Purchase Agreement. 2.1 Agreement and Plan of Merger dated April 18, 1996 among USCS International, Inc., a Delaware corporation, and U.S. Computer Services, a California corporation.* 2.2 Reference exhibits 10.37, 10.38, 10.39 & 10.40. 3.1 First Amended and Restated Certificate of Incorporation of USCS International, Inc.* 3.2 Bylaws of the Company.* 3.3 Certificate of Designation of Rights, Preferences and Privileges of Series A Preferred Stock.* 4.1 Reference Exhibit 3.1. 4.2 Shareholder Rights Agreement dated December 30, 1988 among U.S. Computer Services, Westar Capital and Enterprise Partners. 4.3 Stockholder Rights Plan.* 5.1 Opinion of Graham & James LLP, Counsel to the Registrant, as to legality of securities being registered.* 10.1 1988 Incentive Stock Option Plan.* 10.2 The Company's Employee Stock Ownership Plan ("ESOP") as amended and restated as of January 1, 1991, and as amended effective January 1, 1991, January 1, 1992, January 1, 1993, February 19, 1993, January 1, 1994, December 31, 1994, January 1, 1995, March 31, 1995, January 1, 1996 and March 21, 1996.* 10.3 1993 Incentive Stock Option Plan.* 10.4 1996 Stock Option Plan.* 10.5 1996 Directors' Stock Option Plan.* 10.6 Employee Stock Purchase Plan.* 10.7 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of December 1, 1987 between the Company and Sun Bank, as Trustee.* 10.8 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of December 1, 1987 between the Company and Sanwa Bank of California.* 10.9 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Trust Indenture dated as of June 30, 1989 between the Company and Sun Bank, as Trustee.* 10.10 Agreement pursuant to Rule 601(b)(4)(iii)(A) to file Reimbursement Agreement dated as of June 30, 1989 between the Company and Sanwa Bank of California.* 10.11 Note Agreement dated as of February 19, 1992 (re: $22,500,000 7.91% Senior Notes due February 19, 1999) between the Company and Great-West Life and Annuity Insurance Company and Phoenix Mutual Life Insurance Company and as amended as of February 17, 1993, April 30, 1993, August 1, 1994, March 31, 1995 and February 15, 1996.* 10.12 Credit Agreement dated as of February 15, 1996 among IBS, Nationsbank of Texas and the Lender Parties named therein.* 10.13 Credit Agreement dated as of February 15, 1996 among The Company, Nationsbank of Texas and the Lender Parties named therein.* 10.14 Form of Standard On/Line Operating and License Agreement.* 10.15 Form of Standard Equipment Maintenance Agreement.* 10.16 Form of Master Lease, Lease Request and Certificate of Acceptance.* 10.17 Form of Standard Agreement for the Sale and Installation of Equipment.* 10.18 Form of Standard Statement Production Services Agreement.* 10.19 Strategic Business Agreement dated January 19, 1992 between the Company and International Business Machines Corporation and Addendum Number One to Strategic Business Agreement dated June 4, 1993 between the Company and International Business Machines Corporation.+
EXHIBIT NUMBER DESCRIPTION - ----------- -------------------------------------------------------------------------------------------------------- 10.20 Business Alliance Program Agreement between Oracle Corporation and CableData.+ 10.21 Development Agreement dated December 5, 1994 between the Company and Tandem Computers Incorporated.+ 10.22 Porting Agreement dated January 25, 1996 between CableData and Hewlett-Packard Company.+ 10.23 [Intentionally omitted] 10.24 On/Line Operating and License Agreement dated June 7, 1996 between CableData, Inc. and TCI Cable Management Corporation.+ 10.25 Master Lease Agreement No. DO4347 dated as of April 16, 1993 between the Company and First Equipment Company.* 10.26 On/Line Operating and Licensing Agreement dated December 17, 1993 between the Company dba CableData and Continental Cablevision.+ 10.27 Statement Production Services Agreement dated August 20, 1993 between the Company dba International Billing Services and Ameritech Corporation.* ***+ 10.28 Software Development Agreement dated December 27, 1995 between CableData and BellSouth Interactive Media Services.+ 10.29 CableData's Intelecable-TM- Operating and License Agreement dated December 27, 1995 between CableData. and BellSouth Interactive Media Services, Inc.+ 10.30 Software License and Service Agreement and Network User License Addendum dated May 18, 1994 between the Company and Oracle Corporation.+ 10.31 Statement Production Services Agreement dated October 9, 1990 between the Company and CBIS and First Addendum to Statement Production Services Agreement dated July 17, 1991 between the Company and CBIS.+ 10.32 Tandem Alliance Agreement dated January 1, 1995, between Tandem and CableData.+ 10.33 Contract for Computer Software (Postalsoft Software License Agreement) dated February 13, 1996 between IBS and Postalsoft, Inc.+ 10.34 Employment Agreement dated August 10, 1992 between the Company and James C. Castle.* 10.35 Employment Agreement dated June 29, 1995 with Michael McGrail.* 10.36 Form of Severance Agreement.* 10.37 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and CableData.* 10.38 Asset Acquisition Agreement dated March 31, 1995 by and between the Company and IBS.* 10.39 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and CableLease, Inc.* 10.40 Asset Acquisition Agreement dated March 15, 1995 by and between U.S. Computer Systems Leasing and RPA, Inc.* 10.41 Building Lease for property located at 2969 Prospect Park Drive between the Company and F.I.A. Profile Fund I dated January 19, 1994.* 10.42 Alternate Mailing System Agreement dated March 28, 1996 between the United States Postal Service and IBS.+ 10.43 Alternate Mailing Systems Agreement dated April 18, 1996 between the United Postal Service and International Billing Services, Inc.* 10.44 Form of Directors' Indemnification Agreement.* 10.45 Form of Custody and Escrow Agreement for Selling Stockholders.* 10.46 Form of Selling Stockholders' Irrevocable Power of Attorney.* 10.47 Amendment No. 11 to the ESOP.* 21.1 List of Subsidiaries.* 23.1 Consent of Graham & James LLP (included in Exhibit 5.1). 23.2 Consent of Price Waterhouse LLP.*
EXHIBIT NUMBER DESCRIPTION - ----------- -------------------------------------------------------------------------------------------------------- 24.1 Powers of Attorney.* 27.1 Financial Data Schedule.*
- ------------------------ * Indicates Exhibit previously filed. *** Indicates Exhibit was filed in paper format pursuant to a continuing hardship exemption under Rule 202 of Regulation S-T. + Portions omitted pursuant to a request for confidential treatment pursuant to Rule 406 of the Securities Act. EX-4.2 2 EXHIBIT 4.2 EXHIBIT 4.2 SHAREHOLDER RIGHTS AGREEMENT THIS SHAREHOLDER RIGHTS AGREEMENT (the "Agreement") is entered into as of December 30, 1988, by and among U.S. Computer Systems, a California corporation (dba "Cable Data") (the "Company"), Westar Capital, a California limited partnership and Enterprise Partners, a California limited partnership (Westar Capital and Enterprise Partners are hereinafter collectively referred to as "Westar" for purposes of this Agreement) and solely for the purposes of paragraphs 2.1(c), 2.1(d) and applicable portions of Section 7, Gerald S. Knapp and Susan A. Mathews as Trustees of the Company's Fixed Contribution Employee Stock Ownership Plan (the "Fixed Contribution Plan") and the Company's Discretionary Contribution Employee Stock Ownership Plan (the "Discretionary Contribution Plan" and, together with the Fixed Contribution Plan, the "Plans"). RECITALS A. Westar is proposing to purchase shares of the Company's Common Stock from certain shareholders of the Company pursuant to a stock purchase agreement of even date herewith. B. Westar and the Company desire to set forth certain rights to be granted to and covenants to be made with Westar in connection with its purchase of such shares and with respect to its status as a shareholder of the Company. C. Concurrently with the execution of this Agreement, the Company, Westar and the Estate of Robert J. Mathews (the "Estate") are entering into a Shareholders' Agreement providing for certain agreements regarding the transfer and voting of securities of the Company (the "Shareholders' Agreement"). AGREEMENT NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants, and conditions set forth in this Agreement, the parties mutually agree as follows: 1 SECTION 1 PAYMENT 1.1 PAYMENT BY WESTAR. On the Effective Date (as defined below), Westar shall deliver to the Company a certified check in the amount of Sixty-Three Thousand Five Hundred Ninety Dollars ($63,590), payable to the order of the Company, in consideration for the rights granted to Westar, and the obligations incurred by the Company, pursuant to this Agreement. The "Effective Date" shall mean the date which is the later to occur of (i) the date on which Westar consummates the purchase from Susan J. Teasley of all of the shares of the Company's Common Stock held by her for a purchase price not to exceed $93 per share and (ii) the date on which the parties to that certain litigation SUSAN J. TEASLEY V. SUSAN A. MATHEWS ET AL. (Case No. 330791) and SUSAN J. TEASLEY V. SUSAN A. MATHEWS (Case No. 355005) enter into a settlement agreement or agreements providing for a full mutual release of all claims and a contribution by the Company to such settlement of not more than Four Hundred Twenty-Two Thousand Five Hundred Dollars ($422,500); provided, however, that if the Effective Date has not occurred on or before January 13, 1989, this agreement shall be null and void. SECTION 2 COVENANTS OF THE COMPANY 2.1 EMPLOYEE STOCK OWNERSHIP PLANS. (a) Subject to employee stock ownership plan qualification requirements, including but not limited to Section 4975(e)(7) of the Internal Revenue Code, the Company shall not without the written consent of Westar contribute or sell any shares of capital stock to the Plans other than shares of its nonvoting Common Stock for allocation to the accounts of employee participants in the Plans. (b) The Company shall not without the written Consent of Westar contribute or sell to the Plans more than 5,000 shares of its nonvoting Common Stock during any calendar year, and in no event shall the Company without the written consent of Westar contribute or sell to the Plans during any calendar year shares having an aggregate value, as determined pursuant to the provisions of Section 3.05 of the Fixed Contribution Plan, in excess of fifty percent (50%) of the contributions required to be made by the Company to the Fixed Contribution Plan (or which would have been required to have been made had such Plan remained in effect) during such calendar year pursuant to the provisions of Section 3.01 of such Plan. 2 (c) Neither the Fixed Contribution Plan nor the Discretionary Contribution Plan shall acquire or purchase any shares of the Company's capital stock from the Company or any other person or entity without the written consent of Westar except for (i) purchases of shares from Plan participants pursuant to the distribution and repurchase provisions of each Plan, (ii) acquisitions of shares pursuant to contributions or sales by the Company as permitted by subsection (b) above, and (iii) purchases of shares from other shareholders of the Company; provided, however, that in no event shall the Plans collectively purchase from any one shareholder during any calendar year shares having an aggregate value in excess of $100,000; and provided further that in no event shall the Plans collectively acquire or purchase more than 5,000 shares in the aggregate during any calendar year (exclusive of purchases described in clause (i) above) pursuant to the provisions of this Section 2.1. (d) Subject to compliance with applicable law, the Company and the Plans shall use their best efforts to cause the consolidation of the Plans into a single discretionary contribution stock ownership plan for the benefit of the Company's employees by June 30, 1989. 2.2 RECAPITALIZATIONS. The Company shall not engage in any recapitalization, stock dividend or stock split, or other transaction in respect of its capital stock which would have the effect of converting any of its issued and outstanding shares of nonvoting Common Stock to voting Common Stock or which would alter, change or otherwise affect the voting rights of its nonvoting or voting Common Stock. 2.3 REPURCHASE OF SHARES. The Company shall not purchase any shares of its capital stock from any shareholder of the Company except as expressly provided in Sections 2.1(c), 3 and 5.2 hereof and except as otherwise expressly provided in that certain Buy-Sell Agreement dated April 26, 1988 between Susan A. Mathews and the Company (as amended as contemplated in the Shareholders' Agreement). 2.4 BOARD OF DIRECTORS; REINCORPORATION. Upon the Effective Date of this Agreement, the Company shall take corporate action to increase the number of directors of the Company to seven (7) and shall immediately name George Crandell as a director to fill one of the vacancies created thereby. The Company shall not take any corporate action to change the authorized number of directors of the Company to a number other than seven (7) or change the Company's state of incorporation without the written consent of Westar. 3 SECTION 3 SALE PROVISIONS 3.1 PURCHASE REQUEST. The Company hereby grants to Westar the right and option to request that the Company purchase from time to time after the sixth (6th) anniversary of the Effective Date (hereinafter referred to as the "Request") all or any portion of the shares of capital stock of the Company which Westar then holds (the "Shares") at a purchase price per Share equal to the greater of (i) the fair market value per share of the Company's Common Stock in the Plans as determined by the last independent appraisal performed for the Plans as of the year end of the year immediately preceding the year during which the Shares are purchased by the Company pursuant to Section 3.2 below for purposes of valuing the Company's Common Stock in connection with the administration of the Company's Plans, or, if no such appraisal has been performed within the twelve (12) month period immediately preceding the date on which the Shares are purchased by the Company, the fair market value per share of the Company's Common Stock as determined by an independent appraisal performed by the appraiser that had performed the then most recent appraisal for the Plans, the cost of which shall be borne by the Company, or (ii) a price per share equal to that price which would yield to Westar an annual compounded rate of return on its investment in the Shares, based on the cost of such investment to Westar (which cost shall include the amount paid to the Company pursuant to Section 1.1 hereof and the amount paid to the Estate pursuant to Section 1.1 of the Shareholders' Agreement) and the period for which the Shares are held, of twenty percent (20%). Such price shall be determined as of the date of the closing of the purchase pursuant to such Request (hereinafter the "Purchase Price"). 3.2 REQUEST AND PURCHASE OF SHARES. (a) Subject to the provisions of subsection (b) below, Westar may request the purchase of all or any portion of the Shares and, the Company shall have the right but not an obligation to purchase from Westar, all of the Shares as to which the Request is exercised. Westar's Request shall commence upon written notice from Westar to the Company specifying the number of Shares as to which the Request is exercised. If the Company accepts the Request, the Company shall, within one hundred eighty (180) days of the notice from Westar of its Request pay to Westar, by certified check payable to the order of Westar, the aggregate Purchase Price of the Shares as to which the Request has been exercised as determined pursuant to Section 3.1 above, subject to adjustment as provided in Section 3.3 below, plus all accumulated dividends, if any, for each Share and 4 purchased by the Company. In exchange therefor, Westar shall deliver to the Company a stock certificate or certificates representing the total number of Shares being purchased, duly endorsed in blank by Westar or having attached thereto a stock power duly executed by Westar in proper form for transfer. (b) In the event that any payment to be made by the Company is prohibited by provisions of any applicable law, then such payment shall be immediately made by the Company at the next earliest time, and to the extent possible, when compliance with said law may be effected, and the Company agrees that it will use its best efforts to expedite and effectuate to the extent possible such compliance. (c) The Company may, in its sole discretion, assign its right to purchase any Shares as to which the Request has been exercised to any person or entity selected by the Company's Board of Directors, including, without limitation, the Plans or one or more other shareholders of the Company. Notwithstanding the provisions of Section 2.1 above, the Plans may accept such assignment and purchase such shares. 3.3 ADJUSTMENT OF PURCHASE PRICE. In the event of any stock dividend, stock split, combination of shares, subdivision or other recapitalization of the Shares between the time any Request is exercised and the time the Shares as to which such Request has been exercised are purchased by the Company, then the number of Shares and the purchase price per Share as to which such Request has been exercised shall be proportionately adjusted to take into account each of any such events, so that Westar shall be entitled to sell such number of Shares and to receive such purchase price per Share, as it would have been entitled to do or receive had such event occurred immediately prior to the time such Request was exercised. 3.4 MISCELLANEOUS. The right to Request shall terminate, whether or not it has then become exercisable, upon the earlier to occur of (i) the first closing of the first firmly underwritten public offering by the Company of its Common Stock, pursuant to registration statement filed with, and declared effective by, the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933 as amended (the "Act"), covering the offer and sale of Common Stock to the public at a per share price (prior to underwriter commissions and expenses) of at least $275 (as adjusted for any combinations, consolidations, stock splits or stock dividends with the respect to such stock) and at an aggregate offering price of not less than $10,000,000 or (ii) the closing of a public offering of the Company's Common Stock 5 pursuant to the exercise by Westar of its demand registration right under Section 4.2 hereof. SECTION 4 REGISTRATION RIGHTS 4.1 DEFINITIONS. For purposes of this Section 4: (a) The term "register", "registered," and "registration" refer to a registration effected by preparing and filing a registration statement or similar document in compliance with the Act, and the declaration or ordering of effectiveness of such registration statement or document; (b) The term "Registrable Securities" means all shares of the Company's Common Stock held by Westar from time to time. 4.2 REQUEST FOR REGISTRATION. (a) In the event the Company (or its assignee as provided in Section 3.2(c) does not purchase all of the Shares as to which a Request has been exercised pursuant to the provisions of Section 3 hereof within the 180 day period set forth in Section 3.2, Westar may request in writing that the Company file a registration statement under the Act covering the registration of all or any portion of the Registrable Securities then outstanding (or a lesser percent if the anticipated aggregate offering price, net of underwriting discounts and commissions, would exceed $5,000,000). If such Request is made by Westar, the Company shall use its best efforts to effect the registration under the Act of all Registrable Securities which Westar requests to be registered and use its best efforts to effect such registration within one hundred eighty (180) days of the receipt of such Request. (b) If Westar intends to distribute the Registrable Securities covered by its request by means of an underwriting, it shall so advise the Company as a part of its request made pursuant to this Section 4.2. The underwriter will be selected by Westar and shall be reasonably acceptable to the Company. (c) The Company is obligated to effect only one (1) such registration pursuant to this Section 4.2. (d) If the underwriter has not limited the number of Registrable Securities to be underwritten, the Company may include its securities for its own account in such registration and underwriting if the underwriter so agrees and if the number of Registrable Securities which would otherwise 6 have been included in such registration and underwriting will not thereby be limited. 4.3 COMPANY REGISTRATION. If the Company proposes to register (including for this purpose a registration effected by the Company for shareholders other than Westar) any of its stock or other securities under the Act in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a Company stock plan, or a registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), the Company shall, at such time, promptly give Westar written notice of such registration. Upon the written request of Westar given within twenty (20) days after mailing of such notice by the Company the Company shall, subject to the provisions of Section 4.8, cause to be registered under the Act all of the Registrable Securities that Westar has requested to be registered at the same time as its stock is registered. 4.4 OBLIGATIONS TO THE COMPANY. Whenever required under this Section 4 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its best efforts (i) to cause such registration statement to become effective, and, (ii) upon the request of Westar, keep such registration statement effective for up to one hundred twenty (120) days. (b) Prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be reasonably necessary to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to Westar such numbers of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Act, and such other documents as Westar may reasonably request in order to facilitate the disposition of Registrable Securities. (d) Use its best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdictions as shall be reasonably requested by Westar (not to exceed twenty (20) states unless agreed to by the Company), 7 provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions. (e) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. (f) Notify Westar at any time when a prospectus relating thereto is required to be delivered under the Act of the happening of any event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing. 4.5 FURNISH INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 4 with respect to the Registrable Securities that Westar shall furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of Westar's Registrable Securities. 4.6 EXPENSES OF DEMAND REGISTRATION. All expenses incurred in connection with registrations, filings or qualifications pursuant to Section 4.2, including (without limitation) all registration, filing and qualification fees, printers' and accounting fees, fees and disbursements of counsel for the Company, and the reasonable fees and disbursements of one counsel for Westar and any other selling shareholders participating in such registration shall be borne by Westar; provided however that if the Company, or any other shareholders of the Company, participate in such registration, such costs shall be borne by Westar, the Company, and any other shareholders in proportion to the number of securities sought to be included in such registration by Westar, the Company and such other selling shareholders. 4.7 EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all expenses incurred in connection with any registration, filing or qualification of Registrable Securities with respect to the registrations pursuant to Section 4.3 for Westar, including (without limitation) all registration, filing, and qualification fees, printers and accounting fees relating or apportionable thereto but excluding the fees and disbursements of counsel for Westar and 8 any other selling shareholders participating in such registration, and also excluding underwriting discounts and commissions relating to Registrable Securities. 4.8 UNDERWRITING REQUIREMENTS. In connection with any offering involving an underwriting of shares of the Company's capital stock, the Company shall not be required under Section 4.3 to include any of Westar's Registrable Securities in such underwriting unless Westar accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by it (or by other persons entitled to select the underwriters), and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total amount of securities, including Registrable Securities, requested by shareholders to be included in such offering exceeds the amount of securities sold other than by the Company that the underwriters determine in their sole discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling shareholders according to the number of securities sought to be included therein by each selling shareholder or in such other proportions as shall mutually be agreed to by such selling shareholders) but in no event shall (i) the amount of Registrable Securities included in the offering be reduced below thirty percent (30%) of the total amount of Registrable Securities which Westar requested be included in such offering, unless such offering is the initial public offering of the Company's securities in which case Westar's Registrable Securities may be excluded if the underwriters make the determination described above and no other shareholder's securities are included or (ii) notwithstanding (i) above, any shares being sold by Westar pursuant to its exercise of its demand registration right granted in Section 4.2 be excluded from such offering. 4.9 INDEMNIFICATION. In the event any Registrable Securities are included in a registration statement under this Section 4: (a) To the extent permitted by law, the Company will indemnify and hold harmless Westar, any underwriter (as defined in the Act) for Westar and each person, if any, who controls Westar or such underwriter within the meaning of the Act or the Securities Exchange Act of 1934, 9 as amended (the "1934 Act"), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statement, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading, or (iii) any violation or alleged violation by the Company of the Act, the 1934 Act, any state securities law or any rule or regulation promulgated under the Act, the 1934 Act or any state securities law; and the Company will pay to Westar or any such underwriter or controlling person, any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 4.9(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim, damage, liability, or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by Westar or any such underwriter or controlling person. (b) To the extent permitted by law, Westar will indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the registration statement, each person, if any, who controls the Company within the meaning of the Act, any underwriter, any other shareholder selling securities in such registration statement and any controlling person of any such underwriter or other shareholder, against any losses, claims, damages, or liabilities (joint or several) to which any of the foregoing persons may become subject, under the Act, the 1934 Act or other federal or state law, insofar as such losses, claims, damages, or liabilities (or actions in respect thereto) arise out of or are based upon any Violation, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished by Westar as a selling shareholder expressly for use in connection with such registration or relating to actions or inactions required of Westar as a selling shareholder in connection with such registration; and Westar will pay any 10 legal or other expenses reasonably incurred by any person intended to be indemnified pursuant to this subsection 4.9(b), in connection with investigating or defending any such loss, claim, damage, liability, or action; provided, however, that the indemnity agreement contained in this subsection 4.9(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of Westar, which consent shall not be unreasonably withheld. (c) Promptly after receipt by an indemnified party under this Section 4.9 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4.9, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties which may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding, The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this Section 4,9, but the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Section 4.9. (d) The obligations of the Company and Westar under this Section 4.9 shall survive the completion of any offering of Registrable Securities in a registration statement under this Section 4. 4.10 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making available to Westar the benefits of Rule 144 promulgated under the Act and any other rule or regulation of the SEC that may at any time permit Westar to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company agrees to: 11 (a) use its best efforts to make and keep public information available, as those terms are understood and defined in SEC Rule 144, at all times after ninety (90) days after the effective date of the first registration statement filed by the Company for the offering of its securities to the general public; (b) use its reasonable efforts, including the voluntary registration of its Common Stock under Section 12 of the 1934 Act, to enable Westar to utilize Form S-3 for the sale of its Registrable Securities, such action to be taken as soon as practicable after the end of the fiscal year in which the first registration statement filed by the Company for the offering of its securities to the general public is declare effective; (c) file with the SEC in a timely manner all reports and other documents required of the Company under the Act and the 1934 Act; and (d) furnish to Westar, so long as Westar owns any Registrable Securities, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time.after ninety (90) days after the effective date of the first registration statement filed by the Company), the Act and the 1934 Act (at any time after it has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing Westar of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. 4.11 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the date of this Agreement, the Company shall not, without the prior written consent of Westar, enter into any agreement with any holder or prospective holder of any securities of the Company which would allow such holder or prospective holder (a) to include such securities in any registration filed under Section 4.2 hereof, unless under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that the inclusion of his securities will not reduce the amount of Westar's Registrable Securities which is included or (b) to make a demand registration. 12 4.12 MARKET STAND-OFF. Westar hereby agrees that, if so requested by the Company and the underwriter (if any), Westar shall not sell or otherwise transfer any shares or other securities of the Company during the 90-day period following the effective date of a Registration Statement of the Company filed under the Act; provided that: (a) such restriction shall only apply to the first Registration Statement of the Company to become effective which include securities to be sold on behalf of the Company to the public in an underwritten offering; and (b) all officers, directors and holders of the Company's Common Stock on the effective date of such registration statement shall have agreed to the same limitation with respect to the Registration to which this Section 4.12 is applied. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restriction until the end of such 90-day period. SECTION 5 RIGHTS OF FIRST REFUSAL 5.1 WESTAR RIGHT OF FIRST REFUSAL. The Company hereby grants to Westar the right of first refusal to purchase its pro rata share of all New Securities (as defined in subsection (d) below) that the Company may, from time to time, propose to sell and issue. Westar's pro rata share of New Securities, for purposes of this right of-first refusal, shall, in the case of each such proposed sale and issuance, be that number of New Securities which are sufficient to enable Westar to continue to hold the same percentage of the equity securities of the Company and the same percentage of the voting securities of the Company after giving effect to such sale and issuance as it held immediately prior to such sale and issuance (in all cases calculated on a fully diluted basis). Westar's right of first refusal shall be subject to the following provisions: (a) In the event that the Company proposes to undertake an issuance of New Securities, it shall give Westar written notice of its intention, describing the type of New Securities, the price, and the general terms upon which the Company proposes to issue the same. Westar shall have 30 days from the date such notice is given (as provided in Section 7.7 hereof) to irrevocably agree to purchase up to its pro rata share of such New Securities for the price and upon the general terms specified in the notice by giving written notice to the Company and stating therein the quantity of New Securities to be purchased. 13 (b) In the event that Westar fails to exercise in full its right of first refusal within said 30-day period, the Company shall have 60 days thereafter to sell the New Securities in respect of which Westar's rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in the Company's notice. In the event the Company has not sold the New Securities within such 60-day period, the Company shall not thereafter issue or sell any New Securities, without first offering such securities to Westar in the manner provided above. (c) Westar's right of first refusal granted under this Section 5.1 shall expire upon the first closing of the first firmly underwritten public offering of Common Stock of the Company that is pursuant to a registration statement filed with, and declared effective by, the SEC under the Act, covering the offer and sale of Common Stock to the public at a per share price (prior to underwriter commissions and expenses) of at least $275 (as adjusted for any combinations, consolidations, stock splits or stock dividends with the respect to such stock) and at an aggregate offering price of not less than $10,000,000. (d) For purposes of this Section 5.1, the term "New Securities" shall mean any capital stock of the Company, whether now authorized or not, and rights, options, or warrants to purchase said capital stock, and securities of any type whatsoever that are, or may become, convertible into said capital stock; provided, however, that "New Securities" does not include (i) securities offered to the public pursuant to a registration statement filed under the Act; (ii) securities issued pursuant to the acquisition of another corporation by the Company by merger, purchase of substantially all of the assets, or other reorganization whereby the Company owns not less than fifty-one percent (51%) of the voting power of such corporation; (iii) up to 15,000 shares of the Company's Common Stock (or related options) issued to employees, officers or directors of or consultants to the Company during the five (5) year period ending on the fifth (5th) anniversary of the Effective Date and up to an additional 15,000 shares of the Company's Common Stock (or related options) issued to employees, officers of directors of or consultants to the Company during the five (5) year period ending on the tenth (10th) anniversary of the Effective Date, in each case pursuant to an employee stock purchase or option plan approved by the Board of Directors or the holders of a majority of the outstanding voting shares of the Company (as may be adjusted for any combinations, consolidations or stock splits); (iv) shares of the Company's Common Stock issued in connection with any stock split or stock dividend by the Company; or 14 (v) shares contributed or sold to the Plans as permitted by Section 2.1(b) hereof. 5.2 COMPANY RIGHT OF FIRST REFUSAL. Westar hereby grants to the Company the right of first refusal to purchase any and all Registrable Securities that Westar may, from time to time, propose to sell. The Company's right of first refusal shall be subject to the following provisions: (a) In the event that Westar proposes to sell any Registrable Securities, it shall give the Company written notice of its intention, describing the price and the general terms upon which Westar proposes to sell the same. The Company shall have 30 days from the date of mailing of any such notice to irrevocably agree to purchase all of such Registrable Securities for the price and upon the general terms specified in the notice by giving written notice to Westar to that effect. (b) In the event that the Company fails to exercise in full its right of first refusal within said 30-day period, Westar shall have 60 days thereafter to sell the Registrable Securities in respect of which the Company's rights were not exercised, at a price and upon general terms no more favorable to the purchasers thereof than specified in Westar's notice. In the event Westar has not sold such Registrable Securities within such 60-day period, Westar shall not thereafter issue or sell any Registrable Securities, without first offering such securities to the Company in the manner provided above. (c) The Company's right of first refusal granted under this Section 5.2 shall expire at 12:00 A.M. on the third (3rd) anniversary of the Effective Date. (d) For purposes of this Section 5.2, the term "Registrable Securities" shall have the meaning set forth in Section 4.1 hereof. (e) The Company may, in its sole discretion, assign its right to purchase any Registrable Securities pursuant to this Section 5.2 to any person or entity selected by the Company's Board of Directors, including, without limitation, the Plans or other shareholders of the Company. Notwithstanding the provisions of Section 2.1 above, the Plans may accept such assignment and purchase such shares. (f) The Company's right of first refusal granted under this Section 5.2 shall not be applicable to (i) any sale of Registrable Securities pursuant to the exercise by Westar of its demand or piggyback registration rights under Section 4 hereof or (ii) any sale or transfer of Registrable Securities by Westar to any affiliate of Westar. 15 For purposes of this subsection (f), the term 'affiliate" shall mean any person or entity which controls, is controlled by, or is under common control with Westar. SECTION 6 REPRESENTATIONS AND WARRANTIES 6.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants that: (a) ORGANIZATION, STANDING, ETC. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of California. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (b) AUTHORIZATION. All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of the Company hereunder has been taken and this Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms. (c) NO CONFLICT. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in any violation or be in conflict with or constitute, with or without the passage of time and giving of notice, a material default under any provision of the Company's Articles of Incorporation or Bylaws or any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is bound. If the execution, delivery and performance of this Agreement is in conflict with any provision of the Company's Articles of Incorporation or Bylaws or any instrument or contract to which it is a party or by which it is bound, the Company shall use its best efforts to amend, modify or waive such provision to eliminate such conflict to the extent permitted by applicable law. 6.2 REPRESENTATION AND WARRANTIES OF WESTAR. Westar hereby represents and warrants that: (a) AUTHORIZATION. All action on the part of Westar and its partners necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of Westar hereunder has been taken and this Agreement constitutes a valid and legally binding obligation of Westar, enforceable in accordance with its terms. Westar 16 has all requisite power and authority to execute, deliver and perform its obligations under this Agreement. (b) NO CONFLICT. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not result in any violation or be in conflict with or constitute, with or without the passage of time and giving of notice, a material default under any provision of any instrument judgment, order, writ, decree or contract to which it is a party or by which it is bound. SECTION 7 MISCELLANEOUS 7.1 TERM. This Agreement shall commence on the Effective Date and shall terminate upon the earlier to occur of (a) December 31, 1998 and (b) such time as Westar owns less than 5% of the Company's outstanding voting stock. 7.2 SURVIVAL OF WARRANTIES. The warranties, representations and covenants of the Company and Westar contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of Westar or the Company. 7.3 SUCCESSORS AND ASSIGNS. Except as expressly provided in Section 3.2(c) and 5.2(e) hereof, neither this Agreement nor any of the rights hereunder are assignable, by operation of law of otherwise, without the other party's prior written consent. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 7.4 GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of California as applied to agreements among California residents entered into and to be performed entirely within California. 7.5 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 17 7.6 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 7.7 NOTICES. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or three (3) days following deposit with the United States Post Office, by registered or certified mail, postage prepaid and addressed to the party to be notified (or one (1) day following timely deposit with a reputable overnight courier with next day delivery instructions) at the address indicated for such party on the signature page hereof, or at such other address as such party may designate by ten (10) days' advance written notice to the other parties. 7.8 AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Westar. 7.9 SEVERABILITY. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. 7.10 AGGREGATION OF STOCK. All shares of Common Stock held or acquired by affiliated entities or persons of Westar shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. 7.11 CONFIDENTIALITY. The Company and the Fixed Contribution and Discretionary Contribution Plans on the one hand and Westar on the other each hereby agree that it will not, except as otherwise required by law, disclose or divulge to any third party the nature or contents of this Agreement except to the extent permitted by the other in writing. 7.12 LEGENDS. All certificates representing any Registrable Securities shall have endorsed thereon the following legends: (a) The shares represented by this certificate are subject to a right of first refusal of this 18 corporation set forth in an agreement dated as of December 30, 1988, between this corporation and the registered holder, or his predecessor in interest, a copy of which is on file at the principal office of this corporation. (b) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (B) IN COMPLIANCE WITH RULE 144 UNDER SUCH ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT NO REGISTRATION STATEMENT IS REQUIRED BY SUCH TRANSFER." 19 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. U.S. COMPUTER SYSTEMS By: /s/ Gerald S. Knapp ------------------------------- Title: President ---------------------------- Address: 2969 Prospect Park Drive Rancho Cordova, California 95670 Attention: President U.S. COMPUTER SYSTEMS FIXED CONTRIBUTION AND DISCRETIONARY CONTRIBUTION STOCK OWNERSHIP PLANS /s/ Gerald S. Knapp ----------------------------------- Gerald S. Knapp, Trustee Susan A. Mathews ----------------------------------- Trustee WESTAR CAPITAL, a California limited Partnership By: /s/ ------------------------------- Title: General Partner Address: 5000 Birch Street, Suite 3000 Newport Beach, California 92660 Attention: General Partner ENTERPRISE PARTNERS, a California Limited Partnership By: /s/ ------------------------------- Title: General Partner Address: 5000 Birch Street, Suite 6200 Newport Beach, California 92660 Attention: General Partner EX-10.19 3 EXHIBIT 10.19 Exhibit 10.19 ------------------------------------ STRATEGIC BUSINESS AGREEMENT ------------------------------------ by and between U.S. COMPUTER SERVICES a California corporation doing business as CableData ("CableData") and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation ("IBM") Dated as of January 19, 1992 TABLE OF CONTENTS Page ---- INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 2 ARTICLE II DEVELOPMENT OF DDP/I . . . . . . . . . . . . . . . . . . 3 Section 2.1 Mutual Cooperation . . . . . . . . . . . . 3 Section 2.2 [*]. . . . . . . . . . . . . . . . . . . . 3 Section 2.3 [*]. . . . . . . . . . . . . . . . . . . . 4 Section 2.4 [*]. . . . . . . . . . . . . . . . . . . . 4 Section 2.5 [*]. . . . . . . . . . . . . . . . . . . . 5 Section 2.6 Joint Planning Committee . . . . . . . . . 5 Section 2.7 Training . . . . . . . . . . . . . . . . . 5 Section 2.8 Expected Results . . . . . . . . . . . . . 5 Section 2.9 Freedom of Action. . . . . . . . . . . . . 6 ARTICLE III FINANCIAL MATTERS. . . . . . . . . . . . . . . . . . . . 6 Section 3.1 Development Financing. . . . . . . . . . . 6 Section 3.2 [*] from International Revenues. . . . . . 6 Section 3.3 [*]. . . . . . . . . . . . . . . . . . . . 7 Section 3.4 Commissions to be Paid by IBM to CableData . . . . . . . . . . . . . . . . 7 ARTICLE IV OTHER AREAS OF COOPERATION . . . . . . . . . . . . . . . 9 Section 4.1 Provision of Equipment and Software. . . . 9 Section 4.2 Technical Direction and Information. . . . 9 Section 4.3 Training and Information . . . . . . . . . 9 Section 4.4 Marketing Support. . . . . . . . . . . . . 10 ARTICLE V PROPRIETARY RIGHTS . . . . . . . . . . . . . . . . . . . 11 Section 5.1 Ownership of DDP/I, DDP/IT and DDP/SQL . . 11 Section 5.2 Licenses . . . . . . . . . . . . . . . . . 12 Section 5.3 Confidentiality. . . . . . . . . . . . . . 12 Section 5.4 Use of Trademark, Name . . . . . . . . . . 12 Section 5.5 Inventions . . . . . . . . . . . . . . . . 12 ARTICLE VI TERM AND TERMINATION . . . . . . . . . . . . . . . . . . 13 Section 6.1 Term . . . . . . . . . . . . . . . . . . . 13 Section 6.2 Termination. . . . . . . . . . . . . . . . 13 Section 6.3 Effect of Termination. . . . . . . . . . . 13 *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - i - ARTICLE VII GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 7.1 Independent Contractors. . . . . . . . . . 14 Section 7.2 Counterparts . . . . . . . . . . . . . . . 14 Section 7.3 Assignment . . . . . . . . . . . . . . . . 14 Section 7.4 Notices and Other Communication. . . . . . 14 Section 7.5 Law to Govern; Consent to Jurisdiction . . 15 Section 7.6 Subject Headings . . . . . . . . . . . . . 15 Section 7.7 No Waiver of Rights. . . . . . . . . . . . 15 Section 7.8 Settlement of Disputes . . . . . . . . . . 15 Section 7.9 Limitation of Liability. . . . . . . . . . 16 Section 7.10 Limitation of Actions. . . . . . . . . . . 16 Section 7.11 Entire Agreement . . . . . . . . . . . . . 16 Section 7.12 Expenses . . . . . . . . . . . . . . . . . 16 Section 7.13 Amendments . . . . . . . . . . . . . . . . 16 Section 7.14 Incorporation by Reference . . . . . . . . 16 Section 7.15 Severability . . . . . . . . . . . . . . . 16 Section 7.16 Licenses . . . . . . . . . . . . . . . . . 17 SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 EXHIBITS: Section Reference Exhibit A List of IBM Products Section 1.1(e) Exhibit B Schedule for Porting System Libraries Section 2.2(a) Exhibit C Schedule for National Language Support Section 2.3(a) Exhibit D Description of SQL Porting Section 2.4(a) Exhibit E Schedule for Other Internationalization Tasks Section 2.5(a) Exhibit F-1 Equipment and Program Loan Agreement Section 4.1 Exhibit F-2 RISC System/6000 Discount Section 4.1(b) Exhibit G List of Countries, Base Percentages and Tasks Section 4.4(c) Exhibit H Agreement for the Exchange of Confidential Information Section 5.3 - ii - STRATEGIC BUSINESS AGREEMENT THIS STRATEGIC BUSINESS AGREEMENT ("Agreement") is entered into as of January 19, 1992, by and between U.S. COMPUTER SERVICES, a California corporation doing business as CableData and having its principal place of business at 2969 Prospect Park Drive, Rancho Cordova, California 95670 ("CableData"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation having a place of business at 520 Capitol Mall, Sacramento, California 95814 ("IBM"). RECITALS A. CableData has rights to and currently licenses and distributes certain computer application software products used in market segments of the cable television industry, such market segments including without limitation DTH (Direct to Home), DBS (Direct Broadcast Satellite), SMATV (Single Master Antennae Television), MDS (Microwave Distribution System), MMDS (Multipoint Microwave Distribution System), CATV (Cable Television) and TVRO (Television Receiving Only), and in segments of the telephony industry, (such segments include without limitation local telephone, personal communication network, cellular, paging and land lines), including products that are designed to operate on the Tandem Guardian operating system. B. IBM and CableData wish to cooperate in the development by CableData of certain revised versions of CableData's products that will be compatible with designated IBM operating systems and hardware, including IBM's UNIX-based and POSIX-based AIX operating systems, and will be primarily suitable for use by customers outside the United States. Specifically, the parties wish to permit CableData to develop a set of CableData-owned system libraries and a separate CableData-owned application software product which can be operated on IBM equipment and which are appropriate for international customers. Therefore, as further described in SECTION 2.1, the parties wish to cooperate to assist CableData to internationalize and develop new versions of DDP/SQL (as defined below) that are ported to certain IBM products, with a goal of developing a single set of system libraries that can be conditionally compiled to supply object code that can be linked either to the existing DDP/SQL for use with the Tandem Guardian operating system or to DDP/I (as defined below) for use with IBM operating systems, in accordance with the terms and conditions of this Agreement. As set forth in SECTION 4.4(c), CableData will maintain exclusive rights to determine the countries, markets and customers to which its products will be offered, subject to reasonable advance notice to IBM under certain circumstances. C. IBM and CableData also wish to cooperate in the provision of technical assistance by IBM to CableData in connection with the activities described in RECITAL B above. Such assistance will include sharing personnel and technical expertise to facilitate the development process. The parties have agreed that IBM will provide certain financial, technical and other assistance specified in this Agreement to support CableData's development of DDP/I (as defined below), and to assist in resolving issues (performance and others) prior to CableData's release of new products, in accordance with the terms and conditions of this Agreement. Specifically, the parties have agreed that IBM shall provide reasonable technical advice, support, consulting or other assistance to CableData in the development of DDP/I in accordance with the terms and conditions of this Agreement. D. IBM and CableData also wish to cooperate in certain other areas related to the activities described above, to permit CableData to support a variety of foreign languages/countries on the versions of DDP/I to be developed, and to facilitate CableData's marketing of such revised products in certain respects. - 1 - NOW, THEREFORE, in consideration of these premises and of the mutual promises and conditions contained in this Agreement, IBM and CableData hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 AS USED IN THIS AGREEMENT: (a) "AIX" means IBM's UNIX-based computer operating system. (b) "DDP/I" means (i) a product to be developed pursuant to this Agreement based on DDP/SQL (as defined below), and (ii) such modified versions of such product as may be developed from time to time. (c) "DDP/IT" means a product to be developed from DDP/I, incorporating enhancements to features and parameterization that facilitate subscriber management for telephony and cable subscribers. DDP/IT may include interfaces to another telephony application software system. (d) "DDP/SQL" means Release 1.0 (as of December 2, 1991) of CableData's existing proprietary cable television subscriber management applications software. (e) "Eligible Products" means proprietary computer hardware and computer software operating systems of IBM, and other computer hardware and software compatible with such hardware and operating systems as mutually agreed to and identified on the list attached to this Agreement as EXHIBIT A, as amended from time to time. (f) "Internationalize" means to adapt DDP/I to allow for use with various human languages, character code sets, and local legal, government and business practices. In the context of this Agreement it means specifically: (i) To implement an NLS (as defined below) mechanism in DDP/I; (ii) To modify DDP/I so that it can accommodate differences in name, phone number and address data elements for the purposes of storage, access and display; (iii) To create a charging, statement generation and financial reporting module that can be parameterized or otherwise adapted to function in multiple countries including consideration for monetary formats, rounding, taxation, and statement formats; (iv) To create interfaces or interface specifications that allow for the exchange of data between DDP/I and external entities: financial institutions, demographic information systems, cable network design systems, and cable service authorization (addressable) systems; and (v) To create documentation in English that can be translated to foreign languages. (g) "Localize" means adapt DDP/I or DDP/IT to make it specific to a particular human language, character code set, and local legal, government and business practices. In the context of this Agreement it means specifically: (i) To translate all constant DDP/I user interface messages, screen displays and print products to the local language. (ii) To parameterize DDP/I to exhibit the appropriate operating characteristics in a given country with respect to the differences in language, character sets, collating sequences, "yes" and "no" answers, and date, time, numeric, and monetary formats. - 2 - (iii) To parameterize DDP/I to conform to local business practices, legal and government requirements. (iv) To create interfaces or interface specifications that allow for the exchange of data between DDP/I and external entities in a given country: financial institutions, demographic information systems, cable network design systems, and cable service authorization (addressable) systems. (v) To translate DDP/I documentation from English to the local language. (h) "NLS" means adapting DDP/I to support multiple languages, character code sets, collation sequences, monetary formats, numeric formats, time formats, and "yes/no" response formats. (i) "System Libraries" means the code libraries that interface DDP/SQL and DDP/I with the Guardian operating system on Tandem hardware and the IBM AIX operating system on IBM hardware. (j) "Subscriber" means, for purposes of this Agreement, each active subscriber on DDP/I software during any month. A month, for purposes of this definition, is the period between successive final month-end cutoffs for CableData's or its distributors' or agents' invoicing purposes. An active subscriber, for purposes of this definition, is a residential or business entity subscribing to one or more services in the CATV, DTH, DBS, MDS, MMDS or TVRO market segments set forth in RECITAL A of this Agreement. (k) "United States" or "U.S." means the United States of America, Puerto Rico and Guam; provided, however, that references to United States Dollars or U.S. Dollars shall have their normal commercial meaning. ARTICLE II DEVELOPMENT OF DDP/I Section 2.1 MUTUAL COOPERATION. The parties' respective obligations under this Agreement shall commence on the date first written above. Each party shall use all reasonable efforts to facilitate the completion of the development projects contemplated by this Agreement, and to cooperate in good faith with the other party to achieve the development, technical and marketing objectives described in the Recitals. Without limitation, each party shall use its reasonable efforts to facilitate the development of DDP/I as set forth in this Agreement. It is also the parties' intention that when DDP/I and Eligible Products are configured in a single system, that system will perform within agreed and commercially reasonable specifications and parameters. If the parties disagree on a technical issue during the development process, or if when DDP/I and any Eligible Products are configured in a single system, that system does not perform within agreed and commercially reasonable specifications and parameters, then the parties shall confer in good faith concerning such issue or failure to perform, and shall negotiate in good faith to agree on joint action to resolve such issue or failure. Such joint action may include additional development efforts on terms and conditions acceptable to the parties, in their discretion. Section 2.2 PORTING OF SYSTEM LIBRARIES. (a) Both parties shall cooperate as specified in this Agreement to port the System Libraries to be capable of operating on the Eligible Products, initially porting them to be capable of operating on IBM's AIX system. In such porting work, the parties will also maintain POSIX compliance of the System Libraries with either international standards or draft international standards. For the term of this Agreement, the parties agree to cooperate in future modification of - 3 - the ported System Libraries. It is the intent of the parties that such System Libraries will work with the Open System Foundation (OSF) capabilities of IBM's AIX operating system, if and when such OSF capabilities are available in production release on the AIX operating system. The parties' efforts under this SECTION 2.2(a) shall be conducted in accordance with the schedule attached to this Agreement as EXHIBIT B. (b) IBM shall use reasonable efforts to code the porting of the System Libraries as described in SECTION 2.2(a), at IBM's porting center in San Jose, California; however, CableData will retain final authority for all design and implementation decisions during the porting process. The porting activity under this SECTION 2.2 shall use only standard constructs and operating system calls available to AIX licensees. IBM shall not commence such porting efforts until CableData has reviewed and approved the porting plan. If IBM does not perform the porting process in accordance with the approved porting plan, and has not corrected such failure to perform within (30) days after notice from CableData to IBM, then CableData shall be entitled to retain a third party to perform such porting work, and IBM shall reimburse CableData for the actual costs of retaining such third party up to a maximum of $350,000. (c) In addition, during the porting process and thereafter to the extent reasonably necessary, IBM shall as it deems appropriate in its sole discretion provide the services of an adequate number of appropriate skill level software engineers with compiler, operating system and database development experience on AIX-based Eligible Products, experience in application and system software development using AIX tools and utilities, to meet its responsibilities under this Agreement. The principal assignment of such engineers shall be to consult with CableData on architecture-related issues and modify and create software for use in the System Libraries. These activities shall be done under the guidance and acceptance of CableData. Upon mutual agreement of the parties, some or all of such engineers shall be assigned to work at CableData's research facilities in El Dorado Hills, California during a portion of the System Libraries porting phase. (d) IBM shall provide technical information with respect to IBM's AIX operating system, including all AIX external call information made publicly available. (e) With respect to porting System Libraries, CableData shall make its technical personnel available to IBM as CableData deems appropriate through CableData's El Dorado Hills, California research facility to respond to IBM's technical inquiries. Section 2.3 NLS PORTING. (a) CableData shall use reasonable efforts to complete NLS for DDP/I by creating an architecture and code as required for all screen prompts, error messages, print file headers, instructions, and other literals that will use English as its default language, but can be utilized with other Western European languages using the Latin alphabet on the schedule set forth in EXHIBIT C. (b) With respect to CableData's efforts in developing NLS tools, IBM shall make technical personnel with internationalization expertise reasonably available as IBM deems appropriate for CableData to meet the agreed upon schedule set forth in EXHIBIT C to provide training and consulting in response to CableData's questions, in particular (and not by way of limitation) with respect to defining and organizing this phase. Section 2.4 APPLICATION LAYER PORTING. CableData shall use reasonable efforts to port the application layer of DDP/I as set forth on EXHIBIT D including necessary modifications to its database definition and SQL statements embedded in DDP/I, to be capable of operating on Eligible Products, porting them to be capable of operating on the AIX operating system and the POSIX standards. - 4 - Section 2.5 INTERNATIONALIZATION FEATURES. (a) CableData shall use reasonable efforts to complete such work on Internationalizing DDP/I as it may identify that will facilitate its use by customers outside the U.S., in accordance with the schedule set forth in EXHIBIT E attached to this Agreement. (b) CableData shall use reasonable efforts to create a new charging run/billing software for use by customers outside the U.S. (c) CableData shall use reasonable efforts to develop interface templates specifications, application program interfaces, and documentation and training materials, as CableData deems appropriate, for use by international distributors and developers in accordance with DDP/I. (d) With respect to the completion of Internationalization tasks relating DDP/I as described above, IBM shall make its technical personnel available as IBM deems appropriate through the IBM Sacramento Branch office to respond to CableData's technical inquiries. Section 2.6 JOINT PLANNING COMMITTEE. The parties shall consult with each other on at least a quarterly basis regarding progress in [*] DDP/I. To facilitate such consultations and to support their mutual efforts under this Agreement, the parties shall establish a Joint Planning Committee composed of representatives designated by each party. This body shall meet at least once per calendar quarter during the term of this Agreement, and more frequently as deemed necessary by the parties. The Joint Planning Committee shall consult on the [*] projects for DDP/I, [*] schedules, or other aspects of cooperation between the parties as contemplated by this Agreement. Among the representatives to the Joint Planning Committee designated by each party, one (1) person shall be a [*] to speak for that party with respect to [*] matters. The designated [*] representative for CableData shall be its [*]. IBM shall notify CableData in writing of the name of the designated [*] representative for IBM within fourteen (14) days following the execution of this Agreement by both parties. The parties' designated representatives to the Joint Planning Committee may be replaced at any time, by written notice of the designating party to the other party. The Joint Planning Committee shall meet in locations and at times reasonably acceptable to both parties. Each party shall be reasonable for its own costs and expenses in attending and participating in meetings of the Joint Planning Committee. Section 2.7 TRAINING. (a) During the [*] process, IBM shall provide a reasonable amount of comprehensive training to provide the curriculum agreed to by the [*] representatives of both parties to a reasonable number of CableData personnel, to be designated by CableData, with respect to [*] DDP/I, [*]. (b) During the [*] process, CableData shall provide a reasonable amount of DDP/SQL product familiarization sessions to a reasonable number of IBM personnel, to be designated by IBM, at CableData's facilities in Rancho Cordova or El Dorado Hills. Section 2.8 EXPECTED RESULTS. The parties acknowledge that upon completion of the development work described above, it is the parties' intention that DDP/I shall perform within commercially reasonable and acceptable parameters and specifications, consistent with the terms of this Agreement and subsequent mutual decisions of the designated technical representatives of the parties. If DDP/I fails to perform as described in the preceding sentence, each party shall use reasonable efforts to perform further development work as outlined in this Agreement to cause *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - DDP/I to operate within such parameters and specifications, and to cooperate with the other party to achieve this objective. The parties understand that development of DDP/I under this Agreement does not include development of any Localized version of DDP/I and does not include development of DDP/IT. Section 2.9 FREEDOM OF ACTION. The parties agree that the relationship contemplated by this Agreement is not an exclusive arrangement. The parties understand that as of the date of this Agreement CableData has no plans for releasing a DDP product on an IBM platform in the U.S. Each party is free to enter into similar agreements with others and develop and offer competitive products and services. ARTICLE III FINANCIAL STATEMENTS Section 3.1 DEVELOPMENT FINANCING. To assist CableData in financing a portion of the costs and expenses to be incurred by CableData in developing DDP/I as contemplated by this Agreement, IBM shall advance to CableData on a non-recourse basis (i.e., CableData shall have no liability for the repayment of any funds so advanced, except as expressly stated otherwise in this Agreement) an aggregate amount of [*], payable as follows: (a) IBM shall pay CableData an initial installment of [*] concurrently with IBM's execution and delivery of this Agreement. (b) IBM shall pay CableData five (5) further installments of [*] each, on the first business day of each calendar quarter, commencing on April 1, 1992. (c) All payments to CableData shall be paid by check, unless otherwise agreed by the parties in writing. Section 3.2 PROFIT SHARING FROM INTERNATIONAL REVENUES. (a) Except as otherwise provided in this Agreement, beginning on January 1, 1995, and continuing until termination of this Agreement, CableData shall pay fees to IBM as follows: For each customer (other than non-paying Beta site customers) running DDP/I, CableData shall pay IBM a fee at the rate of [*]; provided, however, that CableData shall have no further obligations to pay fees to IBM after the aggregate fees received by IBM under this SECTION 3.2 are equal to [*]. CableData shall pay such fees to IBM by check at IBM's office at 520 Capitol Mall, Sacramento, California 95814, unless otherwise agreed by the parties in writing. Payments under this SECTION 3.2 shall be made quarterly in arrears for the prior quarter. However, notwithstanding the foregoing sentences of this SECTION 3.2 or anything to the contrary in this Agreement, upon CableData and IBM entering into a written agreement regarding CableData marketing in the United States DDP/I or another CableData subscriber management software product comparable in function to DDP/I on an IBM platform, all payments under this SECTION 3.2 due subsequent to the date of execution of such agreement shall be suspended but shall continue to accrue (up to a maximum of [*] less payments previously made under this Section to IBM) until the earlier of (i) the date on which IBM has invoiced an aggregate of [*] of equipment sold or leased by IBM (excluding IBM's leasing subsidiary) in the United States for use with such DDP/I or other CableData subscriber management software product comparable in function to DDP/I on an IBM platform or (ii) the date this Agreement terminates. If (i) is the earlier date, CableData shall not be required to pay to IBM the amount in suspense or any other remaining amounts due under this SECTION 3.2 If (ii) is the earlier date, CableData shall pay to IBM the total amount of the suspended payments, except that if the Agreement is terminated pursuant to SECTION 6.2(a) due to breach by IBM, then CableData shall not be required to pay to IBM the amount of the suspended payments. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - (b) CableData shall keep such records of DDP/I subscribers adequate to meet CableData's responsibilities under this Agreement. Not more than once per calendar quarter, within thirty (30) days after written request to CableData, IBM shall be entitled to conduct an audit and review of the financial records of CableData available to CableData through its on-line database at a CableData location in Rancho Cordova, California, relating to DDP/I license fees, to verify the proper amounts of fees due to IBM for that quarter under this SECTION 3.2. The request shall specify the countries or markets for which records are to be provided. The audit shall occur within normal business hours, at a location in Rancho Cordova, California mutually acceptable to IBM and CableData. IBM shall be entitled to retain an independent certified public accounting firm to assist it with the audit. The parties shall be responsible for their own costs and expenses in connection with the audit. SECTION 3.3 [*] If, at any time during the term of this Agreement, IBM enters into a Cooperative Marketing Agreement (as defined below) [*] of CableData (including without limitation [*] provides subscriber management products or services similar or equivalent to DDP/I to the market segments described in Recital A), in a country in which [*] under this Agreement, [*] the terms or conditions provided to CableData in this Agreement, then: (a) Within ten (10) days of such event or of CableData providing notice to IBM pursuant to SECTION 4.4(c) that CableData intends to [*], IBM shall notify CableData in writing, providing CableData with reasonably complete information about [*]; and (b) Concurrent with such notice, IBM [*] Cooperative Marketing Agreement [*]. Within thirty (30) days after receiving the notice, CableData shall be entitled [*] Cooperative Marketing Agreement by written notice to IBM, if CableData wishes. If CableData does not [*] Cooperative Marketing Agreement within such thirty (30) days, CableData has waived its right to assert a violation of this SECTION 3.3 as to that agreement. (c) As used herein, a "Cooperative Marketing Agreement" means an agreement for resale of IBM products with a specified software product and an agreement providing commissions based on the installation of a specified software product on IBM products. "Cooperative Marketing Agreement" shall not include, but not by way of limitation, equity or other investment relationships. Section 3.4 COMMISSIONS TO BE PAID BY IBM TO CABLEDATA. (a) In return for CableData's performance of the applicable tasks set forth in EXHIBIT G, within thirty (30) days after the end of each calendar quarter, IBM shall pay CableData Commissions (as defined in SECTION 3.4(b) below) on the Invoice Price of Commissionable Products invoiced by IBM during such quarter, less withholding required by law in the applicable jurisdiction. IBM shall pay such Commissions to CableData by check at CableData's office at 2969 Prospect Park Drive, Rancho Cordova, CA 95670. Where payments to CableData under this SECTION 3.4 are based on amounts denominated in a currency other than United States Dollars, IBM shall calculate and pay the Commission to CableData in United States Dollars, using the exchange rate set forth in the "Exchange Rates" column of the "Currency Trading" section of THE WALL STREET JOURNAL for the last day of the calendar quarter for which payment is being made (or, if not available, on the last preceding day on which such rate was published in such column); if such column does not publish the applicable exchange rate, then the prevailing exchange rate offered by Citibank, N.A., at its main office in New York, New York, for that date shall apply. At the time of payment of Commission, IBM will provide CableData an analysis supporting the amount of payment of the Commission, which shall contain the following information: customer name, IBM customer's number, location, type of transaction, description of applicable Commissionable Products, date of invoices and invoice numbers, Invoice Price (as defined below), with the summation of aggregate Invoice Prices times *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 7 - applicable Base Percentage specified in EXHIBIT G (less withholding, if applicable) equating to the payment of Commission. This information shall be treated as Confidential under the terms of the Agreement for Exchange of Confidential Information set forth in EXHIBIT H without the need for further designation on any further supplement to that agreement. In addition, IBM shall promptly supply to CableData adequate detail of withholding deducted from the Commission by IBM and withholding tax receipts. (b) In this SECTION 3.4, the following definitions shall apply: (i) "Commissionable Products" means Eligible Products marketed by IBM or its wholly-owned subsidiaries, provided that such Products are or will be used primarily with DDP/I and CableData has performed the applicable tasks set forth in EXHIBIT G. Not all tasks are applicable to each transaction. (ii) "Invoice Price" means the price, charge, fee, or other consideration invoiced by IBM or IBM wholly-owned subsidiary to the end-user customer for Commissionable Products, except that, for Commissionable Products which are being invoiced as a periodic charge, the "Invoice Price" shall be deemed to be the periodic charge times the total number of periods for the charges committed by the end-user customer under the applicable agreement or three (3) years, whichever is longer. (iii) "Commission" means the amount determined by multiplying the relevant Base Percentage set forth in EXHIBIT G times the relevant aggregate Invoice Prices for Commissionable Products. Calculation of Base Commission shall be done separately for each country specified in EXHIBIT G. The tasks associated with the Commission for each group are specified in EXHIBIT G. To the extent that CableData wishes to qualify for commissions greater than the Base Percentages described in EXHIBIT G, CableData may enter into an agreement or agreements with individual IBM wholly-owned subsidiaries specifying such other commissions and associated tasks as the parties may mutually agree. (c) IBM shall keep records of the sale of Commissionable Products adequate to meet IBM's responsibilities under this Agreement. Not more than once per calendar quarter, within thirty (30) days after written request to IBM, CableData shall be entitled to conduct an audit and review of the financial records of IBM available to IBM through its on-line database at an IBM location in Sacramento, California, relating to Commissionable Products, as described in SECTION 3.4(a) above, to verify the proper amounts of Commissions due to CableData for that quarter under this SECTION 3.4. The request shall specify the countries or markets for which records are to be provided. The audit shall occur within normal business hours, at a location in Sacramento, California mutually acceptable to CableData and IBM. CableData shall be entitled to retain an independent certified public accounting firm to assist it with the audit. The parties shall be responsible for their own costs and expenses in connection with the audit. (d) IBM is acting as a collection agent for CableData in obtaining Commissions from its wholly-subsidiaries in connection with this Agreement. CableData shall be entitled to any Foreign Tax Credit under United States law associated with amounts withheld by IBM for CableData on the Commissions for CableData hereunder in foreign countries. IBM agrees to enter an agreement with each of its affected wholly-owned subsidiaries regarding its collection activities for the Commissions due hereunder. IBM will notify CableData if and when the appropriate taxing authority notifies IBM that such withheld amounts are not due and payable to such taxing authority. (e) As to each DDP/I customer, Commissions shall be payable under this SECTION 3.4 for a period of five (5) years after the date of termination of this Agreement, except in the case of termination by IBM pursuant to SECTION 6.2(a) for breach by CableData (in which case Commissions shall cease on the date of such termination). CableData must continue to perform its obligations describing in EXHIBIT G to qualify for Commissions and the terms of this Agreement apply to both -8- parties' obligations under this SECTION 3.4(e). This SECTION 3.4 shall survive the expiration or earlier termination of this Agreement as described in this SECTION 3.4(e). ARTICLE IV OTHER AREAS OF COOPERATION Section 4.1 PROVISION FOR LOAN EQUIPMENT AND SOFTWARE. (a) For the term of this Agreement, IBM agrees to loan to CableData under the terms of Exhibit F-1 IBM hardware and software for use by CableData in development of IBM-approved CableData application software; such loaned IBM hardware/software shall include at least one (1) CPU and twelve (12) workstations for each IBM-approved CableData application package to be developed and such other loaned IBM hardware/software proportionate to the development task as the parties may mutually agree. Within ten (10) days following the execution of this Agreement, IBM shall loan to CableData free of charge the hardware and software listed in, and on the terms and conditions set forth in, EXHIBIT F-1 (which is the IBM Equipment and Program Loan Agreement). Additional Loaned Hardware and Software specified at a later date will be supplied under the terms of such agreement. The duration of the loan shall be the term of this Agreement except in the event of termination of the Agreement by CableData, pursuant to SECTION 6.1(a) for breach by IBM or terminated by IBM pursuant to SECTION 6.2(c), in which case the loan shall continue on the terms and conditions set forth in Exhibit F-1 until the earlier of (i) two years from the date of termination, or (ii) January 19, 1998. CableData shall have ninety (90) days after delivery in which to elect to accept such hardware and software, and may inspect, test and use such items during the ninety (90)-day period. Thereafter, IBM shall provide free upgrades to such hardware and software under the terms and conditions of EXHIBIT F-1 as and when they become available and, in addition, IBM shall provide hardware and software for new platforms as IBM and CableData shall mutually agree. (b) CableData may purchase or license development hardware and license development software from IBM during the term of this Agreement on the terms and conditions set forth in EXHIBIT F-2 (which is the IBM Customer Agreement and its Attachment for IBM RISC System/6000 Development Discount). Such terms and conditions shall only apply to such purchase or license. Section 4.2 TECHNICAL DIRECTION AND INFORMATION. Each party shall provide to the other party advance notices of new product developments and releases that its technical representative under this Agreement has determined has applicability and appropriateness to DDP/I as soon as practical but in no event later than such information is publicly disclosed by the party providing such information. The receiving party shall keep such information confidential under the terms of EXHIBIT H without the necessity of adding such information as a supplement to said EXHIBIT H until such public disclosure by the party providing such information. At least once per calendar quarter each party shall provide to the other party a forecast of 12 to 18-month trends and directions (excluding pricing) within such party's own company and applicable industry(ies) as it applies to the IBM platform and CableData application software as each party deems appropriate. Section 4.3 TRAINING AND INFORMATION. (a) IBM shall use reasonable efforts to optimize the performance of DDP/I in its initial release. These efforts shall include training of CableData personnel in the techniques used. CableData will retain final authority for all design and implementation decisions regarding DDP/I. (b) With respect to the tasks described in ARTICLE II, IBM shall also make available to CableData the personnel and facilities of its Benchmark Center located in Austin, Texas as IBM deems appropriate to meet the agreed upon schedules set forth in EXHIBITS B THROUGH E. -9- (c) As and when IBM releases or makes available or in any country in which CableData or its distributors are marketing DDP/I any new software products for use on the RISC System/6000, then IBM's Sacramento Branch office and CableData shall jointly evaluate such products for applicability to DDP/I, and in the event that they reasonably determine such products are applicable to DDP/I, then IBM's Sacramento Branch office shall make an evaluation copy of each such new product applicable to CableData at no cost to CableData. The terms of the Equipment and Program Loan Agreement set forth as EXHIBIT F-1 shall govern CableData's rights to use such evaluation copy. Section 4.4 MARKETING SUPPORT. (a) INTERNATIONAL MARKETING MANAGER. Within thirty (30) days following the date of this Agreement, IBM shall appoint, for a minimum of two (2) years and thereafter shall have on its staff during the term of this Agreement for such time as CableData continues marketing activity for DDP/I on Eligible Products, an international marketing manager located in Sacramento, California, with primary responsibilities for managing and facilitating, as required, IBM's cooperation with CableData in marketing DDP/I and related Eligible Products. (b) JOINT MARKETING EFFORTS AND PUBLICITY. IBM and CableData shall cooperate in preparing and disseminating an initial press release describing their relationship pursuant to this Agreement, and subsequent press releases concerning the development and release of DDP/I and other products and services pursuant to this Agreement, as appropriate. Each of CableData and IBM shall appoint a designated representative to coordinate the parties' joint participation in business and trade shows, exhibitions, and similar events, cooperative marketing and communications with distributors and customers as mutually agreed between the parties. Each party shall advise the other in writing of the name (and any change) of its designated representative. Neither party shall release a press release mentioning the relationship or activities under this Agreement during the term of this Agreement without the prior written approval of the designated representative of the other. (c) MARKETING DISCRETION. Notwithstanding anything to the contrary in this Agreement, CableData shall be entitled to market its products, including DDP/I and DDP/IT, in jurisdictions and markets directly, through subsidiaries, through local distributors selected by CableData, or through other means selected by CableData. CableData will consider IBM and/or its wholly-owned subsidiaries when selecting a distributor or distributors for a country. CableData shall retain complete discretion with respect to the selection of markets in which its products will be marketed and sold, and in the appointment of local distributors for such markets, choice of its marketing mechanisms, and similar matters. Upon the request of CableData or any designated local distributor of CableData, IBM will provide reasonable marketing assistance (subject to availability of personnel) to CableData or such distributor, as the case may be, with respect to marketing efforts in such marekts. Upon the request of IBM or IBM wholly-owned subsidiaries in those countries designated as "EMEA-A" in EXHIBIT G, CableData will provide reasonable marketing assistance (subject to availability of personnel) to IBM or such distributor, as the case may be, with respect to marketing efforts in such markets. Attached to this Agreement as EXHIBIT G is a list of countries in which CableData contemplates marketing DDP/I and in which IBM's RISC System/6000 is marketed; the parties understand that CableData makes no commitment to market DDP/I in any or all of the countries listed in EXHIBIT G or any other country. CableData will give IBM reasonable advance written notice prior to marketing DDP/I in any of the countries listed in EXHIBIT G (as the same may be amended from time to time by agreement of the parties). IBM and CableData will agree to a list of IBM products applicable to their joint marketing efforts in a specific country. The list may be revised at any time by mutual agreement. IBM shall have the right to offer, at its sole discretion, any products or services in any country or countries. IBM shall have the right, at its sole discretion, to market or to withdraw from marketing IBM products, in any country at any time. However, in the event of IBM's withdrawal of an IBM -10- hardware product (A) IBM and CableData will make all reasonable efforts to identify a substitute IBM product and include such substitute IBM product in the applicable list; and (B) if such withdrawn IBM product is currently in use, or is currently committed to a specific customer(s) for use, in that country, with DDP/I, IBM will commit to such customer(s) that such withdrawn IBM product will be supported by IBM for a minimum of five (5) years following its withdrawal from marketing in such country. "Support" shall mean routine corrective maintenance to the extent available for the product prior to withdrawal. In the event of withdrawal of an IBM software product, and such withdrawn IBM product is in use, or is on the date of withdrawal committed to a specific customer(s) for use, in that country with DDP/I, IBM will commit to such customer(s) that such withdrawn IBM product will be supported by IBM for the remaining period, if any, of its program currency. ARTICLE V PROPRIETARY RIGHTS Section 5.1 (a) OWNERSHIP OF DDP/I, DDP/IT AND DDP/SQL. CableData shall retain exclusive ownership of all right, title and interest in and to DDP/SQL, DDP/I, and DDP/IT and all portions thereof (including, but not limited to, applications and systems libraries) now existing or to be developed or adapted pursuant to this Agreement by CableData, IBM, any third party or parties, or their respective employees, representatives, agents, consultants, independent contractors, successors and assigns pursuant to this Agreement, in any and all forms (including but not limited to source code and machine-executable code), all derivative works thereof and enhancements thereto developed pursuant to this Agreement or otherwise, all documentation, work papers or written materials relating to any of the foregoing, and all Intellectual Property Rights in any of the foregoing; and IBM hereby assigns to CableData all right, title, and interest in and to any of the foregoing (including but not limited to, assignment of any copyrights it may have to the porting code prepared pursuant to SECTION 2.2 of this Agreement) which it may otherwise have or be deemed to acquire, subject to IBM's ownership of and license to certain patent rights under SECTION 5.5 of this Agreement. Upon CableData's request, IBM agrees to assist CableData as may be required to perfect CableData's rights as described in this SECTION 5.1, which assistance shall include the execution of any and all instruments or documents that may be necessary or convenient to establish, evidence, maintain, defend or enforce CableData's rights as described in this SECTION 5.1. "Intellectual Property Rights" means all rights, title and interest in and to patents, patent applications, copyrights, mask work rights, trademarks, trade names and trade secrets. The assignment to CableData of trade secret rights in this SECTION 5.1(a) shall not, and shall not be construed to, preclude IBM from using, or require IBM to keep confidential, any ideas, concepts, know-how, or techniques (Knowledge) related to information handling, including use in creation or offering of products to its customers. (b) This Agreement shall not be construed or interpreted to grant to IBM any right or license, by implication, estoppel or otherwise, to sell, transfer, assign, develop, or make any use of DDP/SQL, DDP/I, or DDP/IT, except as expressly provided in this Agreement. Without limitation to the generality of the foregoing sentence, IBM shall have no rights to adapt, alter, Localize, license or sublicense to third parties any of the foregoing items, without the prior written consent of CableData, which may be granted or withheld in CableData's sole discretion. IBM shall not employ, retain, or subcontract with any third party or parties to perform any obligations or exercise any rights of IBM under this Agreement, unless IBM has first obtained the prior written consent of CableData to such action. -11- Section 5.2 LICENSES. (a) For the term of this Agreement, CableData grants to IBM a nonexclusive and nontransferable license to use one (1) copy of DDP/I in machine-executable code only, for IBM's internal purposes only in connection with this Agreement and to make one (1) archival copy for back-up purposes. (b) IBM hereby grants to CableData, its subsidiaries and distributors, and its and their respective customers, mediate and immediate, an irrevocable, non-exclusive, worldwide, non-transferrable, paid-up license under all present and future IBM patents to make, have made, use, have used, lease, license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT, including derivative works thereof, either alone or in combination with equipment, insofar as any infringement of such patents would otherwise arise in whole or in part from the performance of IBM's obligations under this Agreement. (c) Each party grants the other only the licenses specified. No other licenses, including licenses under patents, are granted. Section 5.3 CONFIDENTIALITY. (a) The parties hereby agree to be bound by the terms of the Agreement for the Exchange of Confidential Information set forth as EXHIBIT H. Unless specifically identified in this Agreement or the supplement to the Agreement for Exchange of Confidential Information as confidential, all information exchanged is non-confidential. (b) Neither party shall disclose the existence of this Agreement until such time as the parties shall mutually agree upon and implement a public announcement; thereafter, either party may disclose the existence of this Agreement, but neither party shall disclose the specifics of the Agreement to third parties without the prior written consent of the other party, except as may be required by law or to its auditors in the internal operations of its business. Section 5.4 USE OF TRADEMARK, NAME. Each party agrees not to use the other's name, trade name, trademark, service mark, or other designation without such other party's prior written consent. Section 5.5 INVENTIONS. (a) In the event employees of IBM conceive or reduce to practice a patentable invention in the course of performing this Agreement, and not jointly with any employees of CableData, and IBM applies for and is issued a patent thereon, all ownership rights in the patent shall belong solely to IBM, subject to CableData's rights under SECTION 5.2(b). (b) In the event employees of IBM and CableData jointly conceive or reduce to practice a patentable invention in the course of performing this Agreement, and either CableData or IBM elects to apply for and is issued a patent thereon, all ownership rights in the patent shall belong to IBM and CableData jointly and each party shall have the right to grant licenses to third parties or assign its rights therein without accounting to the other party; provided, however, that CableData shall have the sole and exclusive right under any such patent to make, have made, use, have used, lease, license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT products, including derivative works thereof, either alone or in combination with equipment. -12- ARTICLE VI TERM AND TERMINATION Section 6.1 TERM. This Agreement shall become effective on the date first written above and shall continue in effect thereafter for a period of six (6) years unless sooner terminated pursuant to this ARTICLE VI. After such six (6)-year period, the term of this Agreement shall be automatically renewed for successive periods of one (1) year each, unless written notice of one party's desire to terminate this Agreement is given to the other party at least three (3) months prior to the end of the then-current period. Termination at the end of the initial six (6) year period or any subsequent one (1) year period is hereinafter referred to as the "Natural Termination Date." Termination on the Natural Termination Date shall not be deemed to be a termination under SECTION 6.2(a), (b) or (c). Section 6.2 TERMINATION. (a) TERMINATION FOR BREACH. Either party may terminate this Agreement, effective upon dispatch of written notice of termination to the other party, upon breach by such other party of any of its material obligations under this Agreement and failure to cure such breach within ninety (90) days after receipt of notice specifying the breach. This right to terminate shall be in addition to any remedies available in law or equity, which remedies are expressly retained. If IBM terminates this Agreement for breach of this Agreement by CableData, then, on the effective date of termination under this SECTION 6.2(a), CableData shall refund to [*] under SECTION 3.1, less payments previously made by CableData to IBM pursuant to SECTION 3.2 and less any fees forgiven pursuant to SECTION 3.2 prior to termination. If CableData terminates this Agreement for breach of this Agreement by IBM, on the effective date of termination under this SECTION 6.2(a), IBM shall pay to CableData (1) any remaining scheduled installments that would have been due to CableData in subsequent months under SECTION 3.1 if the termination had not occurred, up to a total of [*] and (2) reimbursement pursuant to SECTION 2.2(b) if incurred. Additionally, CableData shall recover the actual amount of Commissions earned as of date of termination. (b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH. CableData may in its sole discretion, upon ninety (90) days' prior written notice to IBM, terminate this Agreement at any time, without breach by IBM. [*] (c) TERMINATION BY IBM FOR REASON OTHER THAN CABLEDATA BREACH. IBM may in its sole discretion, upon ninety (90) days' prior written notice to CableData, terminate this Agreement at any time, without breach by CableData. [*] Section 6.3 EFFECT OF TERMINATION. Except as otherwise expressly stated in SECTION 6.2(a), (b) or (c) or in the following sentence, upon any termination of this Agreement all rights and obligations of each party in this Agreement shall expire and be of no further force or effect, and each party shall be entitled to retain all funds, fees and payments that it has received from the other party under this Agreement and prior to the effective date of termination. Notwithstanding the foregoing, no expiration or earlier termination of this Agreement shall relieve either party of its rights or obligations as described in SECTION 3.4(e) or ARTICLE V of this Agreement, which rights and obligations are expressly intended to survive any such expiration or termination. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 13 - ARTICLE VII GENERAL Section 7.1 INDEPENDENT CONTRACTORS. (a) No provision of this Agreement shall make, or be construed to make, either party an agent, servant, employee, partner, or joint venturer of the other party. The parties to this Agreement are and shall remain independent contractors. Each party shall retain exclusive management, direction, and control of its employees and the work to be performed by it hereunder. (b) Without limitation, each party shall provide the personnel, products, training and other support described in this Agreement at its own cost and expense, and at no charge to the other party. All personnel assigned by one party to work with the other party pursuant to this Agreement shall remain employees of the assigning party, and shall possess suitable technical skills and expertise consistent with the requirements of their respective assignments. Each party shall cause any of its employees assigned to provide services at the other party's facilities to comply with all reasonable regulations and instructions while at such facilities. Each party shall have the right to exclude from its premises any persons. Section 7.2 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute only one and the same instrument. Section 7.3 ASSIGNMENT. Neither this Agreement nor any right or obligation hereunder is assignable in whole or in part, whether by operation of law or otherwise, except (a) upon prior written consent of the other party, which consent shall not be unreasonably withheld, (b) by a party to its wholly-owned subsidiary following notice to the other party, which consent shall not be unreasonably withheld, or (c) as otherwise expressly provided in this Agreement. Notwithstanding the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns. The successor or assign of a party hereto shall execute and deliver all documents and instruments reasonably requested by the other party to evidence and confirm its obligations under this Agreement. Section 7.4 NOTICES AND OTHER COMMUNICATION. Every notice or other communication required or contemplated by this Agreement to be given by any party shall be delivered either by (i) personal delivery, (ii) postage prepaid, return receipt requested, registered or certified mail (airmail if available), or the equivalent of registered or certified mail under the laws of the country where mailed, (iii) nationally recognized overnight courier, such as Federal Express or UPS, or (iv) facsimile with a confirmation copy sent simultaneously by postage prepaid, return receipt requested, registered or certified mail, in each case addressed to the party for whom intended at the following address: To CableData: U.S. Computer Services 2969 Prospect Park Drive Rancho Cordova, CA 95670 Attn: Sr. Vice President-General Manager of CableData Facsimile: (916) 636-5628 With a copy to: U.S. Computer Services 2969 Prospect Park Drive Rancho Cordova, California 95670 Attn: General Counsel Facsimile: (916) 636-5628 - 14 - To IBM: International Business Machines Corporation 520 Capitol Mall Sacramento, California 95814 Attn: General Manager Facsimile: (916) 326-5068 or at such other address as the intended recipient previously shall have designated by written notice to the other party. Notice by registered or certified mail shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the tenth (10th) business day after it was deposited in the mail. All notices and other communications required or contemplated by this Agreement to be delivered in person or sent by courier shall be deemed to have been delivered to and received by the addressee and shall be effective on the date of personal delivery; notices delivered by facsimile with simultaneous confirmation copy by registered or certified mail shall be deemed delivered to and received by the addressee and effective on the first business day in the location where received after the date received. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. Section 7.5 LAW TO GOVERN; CONSENT TO JURISDICTION. The validity, construction and enforceability of this Agreement shall be governed in all respects by the laws of California applicable to agreements negotiated, executed and performed in California between California corporations whether or not one or more of the parties shall now be or hereafter become a resident of another state or country. Each party hereby consents to the personal jurisdiction of the state and federal courts in Sacramento, California for the purposes of any litigation commenced in such court by CableData to enforce its rights under this Agreement, and each party hereby waives any rights it may otherwise have to request a change of venue from such court. Each party hereby further consents and agrees that service of any process necessary or convenient with respect to any such litigation may be made on it by registered mail, postage prepaid, at its address as set forth in SECTION 7.4, which service of process shall be fully effective in all respects upon receipt. The parties agree that this Agreement shall be deemed to be executed and performed in the County of Sacramento, California. Section 7.6 SUBJECT HEADINGS. The subject headings of the Articles and Sections of this Agreement are included for the purpose of convenience only, and shall not affect the construction or interpretation of any of its provisions. Section 7.7 NO WAIVER OF RIGHTS. All waivers hereunder must be made in writing, and failure at any time to require any other party's performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver or modification of the provision. Section 7.8 SETTLEMENT OF DISPUTES. (a) Any controversy or claim between the parties arising out of this Agreement shall be resolved as follows. Within thirty (30) days of the time that such dispute or controversy arises, the General Manager of each party shall confer in good faith for a period of not less than thirty (30) days in an attempt to resolve it. No judicial proceeding may be commenced until the end of such thirty (30)-day period. (b) If any judicial proceedings shall be commenced to enforce this Agreement or any provision of this Agreement, the prevailing party or parties in such proceedings shall be entitled to recover the reasonable attorneys' fees, costs and expenses incurred by such prevailing party or parties in connection with such proceedings. - 15 - Section 7.9 LIMITATION OF LIABILITY (a) Circumstances may arise where because of default on IBM's part or other liability, CableData is entitled to recover damages from IBM. In each such instance, regardless of the basis on which CableData is entitled to claim damages from IBM, IBM is liable only for: (1) bodily injury (including death), and damage to real property and tangible personal property; and (2) the amount of any other actual loss or damage, up to the greater of (i) $100,000, or (ii) the amount set forth in SECTION 6.2(c) of this Agreement and the actual amount of Commissions earned as of the date of termination, if IBM has not yet paid these amounts to CableData. Under no circumstances shall IBM liable for any of the following: third-party claims against CableData for losses or damages (other than those listed in the first item above); loss of, or damage to, CableData's records or data; or economic consequential damages (including lost profits or savings) or incidental damages, even if IBM is informed of their possibility. actual amount of Commissions earned as of the date of termination. (b) Circumstances may arise where because of default on CableData's part or other liability, IBM is entitled to recover damages from CableData. In each such instance, regardless of the basis on which IBM is entitled to claim damages from CableData, CableData is liable only for: (1) bodily injury (including death), and damage to real property and tangible personal property; and (2) the amount of any other actual loss or damage, up to the greater of [*] or the amount set forth in SECTION 6.2(c) of this Agreement if CableData has not yet paid that amount to IBM. Under no circumstances shall CableData liable for any of the following: third-party claims against IBM for losses or damages (other than those listed in the first item above); loss of, or damage to, IBM's records or data; or economic consequential damages (including lost profits or savings) or incidental damages, even if CableData is informed of their possibility. Section 7.10 LIMITATION OF ACTIONS. Neither party will bring a legal action under or related to this Agreement more than four (4) years after the cause of action arose. Section 7.11 ENTIRE AGREEMENT. This Agreement represents the entire understanding and agreement between the parties concerning the subject matter hereof and supersedes any and all prior negotiations, understandings or agreements in regard thereto, oral or written. Section 7.12 EXPENSES. Except as expressly provided herein to the contrary, each party to this Agreement shall be solely responsible for its expenses incurred in connection with the negotiation, preparation, execution, delivery and performance of this Agreement. Section 7.13 AMENDMENTS. This Agreement or the Exhibits hereto may not be modified except by an instrument or instruments in writing signed by the party or parties against whom enforcement of such modification is sought. Section 7.14 INCORPORATION BY REFERENCE. EXHIBITS A THROUGH H attached to this Agreement and referred to herein are hereby incorporated by reference into this Agreement. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 16 - Section 7.15 SEVERABILITY. Whenever possible, this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement should be prohibited or invalid under applicable law, such provision shall be construed as ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first written above. "CableData" "IBM" U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS a California corporation MACHINES CORPORATION, a New York corporation By: /s/ By: /s/ ------------------------- ------------------------ Title: SR VP & GM Title: General Manager ----------------------- ----------------------- By: By: ------------------------- ------------------------ Title: Title: ----------------------- ----------------------- - 17 - EXHIBIT A LIST OF ELIGIBLE PRODUCTS -18- [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EXHIBIT B SCHEDULE FOR PORTING SYSTEM LIBRARIES* Start: First quarter 1992 End: Second quarter 1992 Note: Primarily IBM activity with assistance from CableData *Assuming that the Agreement is executed on or before January 19, 1992 - 19 - EXHIBIT C SCHEDULE FOR NATIONAL LANGUAGE SUPPORT* Start: Fourth quarter 1991 End: First quarter 1993 Note: Primarily CableData activity with assistance from IBM *Assuming that the Agreement is executed on or before January 19, 1992 - 20 - EXHIBIT D SCHEDULE FOR APPLICATION LAYER* Start: First quarter 1992 End: Second quarter 1992 Note: Primarily CableData activity with assistance from database vendor *Assuming that the Agreement is executed on or before January 19, 1992 - 21 - EXHIBIT E SCHEDULE FOR OTHER INTERNATIONALIZATION TASKS* Start: Second quarter 1992 End: First quarter 1993 Note: Primarily CableData activity; Beta group of programs *Assuming that the Agreement is executed on or before January 19, 1992 - 22 - [LOGO] EXHIBIT F-I EQUIPMENT AND PROGRAM LOAN AGREEMENT - -------------------------------------------------------------------------------- IF YOU HAVE SIGNED THE IBM CUSTOMER AGREEMENT, ITS ATTACHMENT FOR TRIAL OR LOAN OF PRODUCTS SHOULD BE USED IN PLACE OF THIS AGREEMENT. The Recipient (you) and International Business Machines Corporation (IBM) agree that the following terms and conditions apply when IBM loans you equipment and programs including associated user manuals and similar documentation (Loaned Items). Loaned Items may also be referred to as Loaned Equipment or Loaned Programs, as applicable. 1. ASSOCIATED CONTRACT DOCUMENTS The Attachment to this Agreement (Attachment) lists the Loaned Items and specifies any additional terms and conditions. A revised Attachment sets forth any additions or deletions to the listed Loaned Items and any changes to the terms and conditions. Your continued use of the Loaned Items or acceptance of additional Loaned Items after your receipt of a revised Attachment will constitute your acceptance of such revised Attachment. When the loan is made in conjunction with a referenced Agreement, IBM will specify the Reference Agreement Number. In this event, the referenced Agreement will describe the purpose of the loan. Otherwise, the purpose of the loan is specified below (Purpose of Loan). 2. TERM AND TERMINATION This Agreement ends on the earliest of 1) the specified Agreement Expiration Date, 2) the date this Agreement is terminated in accordance with this Section, or 3) the date the referenced Agreement, if any, is terminated. The Agreement Expiration Date may only be extended by IBM's issuance and your acceptance of a revised Attachment specifying such later Date. You may terminate this Agreement by providing written notice to IBM. If you fail to meet any of your obligations under this Agreement or the referenced Agreement, IBM may terminate this Agreement by giving written notice to you, indicating the effective date of termination. 3. LOAN PERIOD IBM will provide the Loaned Items to you on or about the Estimated Delivery Date(s) specified in the Attachment. IBM provides the Estimated Delivery Date(s) to you for planning purposes only. The Loan Period for each Loaned Item will extend from the actual date IBM delivers the Loaned Item(s) to you, until the earliest of: a) the applicable Return Date specified in the Attachment or revised Return Date specified in a revised Attachment; - -------------------------------------------------------------------------------- PAGES 2 AND 3 AND 1 ATTACHMENT PAGE(S) ARE ALSO PART OF THIS AGREEMENT. The parties acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms and conditions. Further, they agree that the complete and exclusive statement of the agreement between the parties relating to the Loaned Items provided hereunder consists of 1) this Agreement, 2) its Attachment(s) and 3) the referenced Agreement, if any, including those effective in the future. This statement of the agreement supersedes all proposals or other prior agreements, oral or written, and all other communications between the parties relating to the Loaned Items provided hereunder. International Business Machines Recipient's name: Corporation U.S. Computer Services Armonk, New York 10504 d/b/a CableData By By ---------------------------------- ----------------------------------- Authorized Signature Authorized Signature Name (type or print): Name (type or print): Date: January 10, 1992 Date: January 10, 1992 This Agreement number: Reference Agreement number: Strategic Alliance Agreement IBM Office number: Recipient's Customer number: IBM Office address: Recipient's address: 520 Capitol Mall 2969 Prospect Park Drive Sacramento, CA 95814 Rancho Cordova, CA 95670 Agreement Expiration Date: January 10, 1998, subject to year to year renewals Purpose of Loan (TO BE COMPLETED ONLY IF NO REFERENCED AGREEMENT): Page 1 of 3 b) the date you acquire i) title to the Loaned Equipment or ii) a continuing license to the Loaned Program, should such acquisition or licensing be available to you under Section 13; or c) the date this Agreement ends. 4. AUTHORIZED USE IBM provides Loaned Items to you solely for use in accordance with the terms of this Agreement and for the purpose(s) described either in this Agreement or in the referenced Agreement (Authorized Use). There are no charges for Authorized Use of the Loaned Items. You may not use the Loaned Items for any other purposes. 5. OWNERSHIP AND LICENSE IBM or a third party retains title to all Loaned Items. You may not transfer Loaned Items to anyone else. For Loaned Programs which are not subject to another supplier's or publisher's license agreement, IBM grants you a license to use, store, modify and make sufficient copies to support your Authorized Use under this Agreement. Such copies will be deemed to be Loaned Items. For Loaned Programs which are subject to another supplier's or publisher's license agreement, however, the terms and conditions of that supplier or publisher are passed to you through IBM. Such terms and conditions will be shipped with the Loaned Program. Any authorized copies made by you will be deemed to be Loaned Items. 6. LICENSED INTERNAL CODE If the Loaned Equipment contains Licensed Internal Code (Code), so identified by IBM, IBM grants you a license only to execute such Code to enable the Loaned Equipment to perform in accordance with IBM's official published specifications. You may not reverse assemble, reverse compile, decode, translate, or make any other copies of the Code. You must return the original copy of the Code to IBM at the conclusion of the Loan Period. 7. DELIVERY AND INSTALLATION IBM will deliver the Loaned Items to the location(s) specified in the Attachment. You will 1) set-up all Loaned Equipment IBM designates as Customer Set-Up, 2) install all non-IBM equipment and 3) install all Loaned Programs. IBM will be responsible for the installation of all other Loaned Items. Installation by IBM will be during IBM's normal business hours. 8. RISK OF LOSS OR DAMAGE IBM relieves you of the risk of loss of, or damage to, all Loaned Items, except for loss or damage resulting from your breach of this Agreement including use other than Authorized Use. 9. SECURITY You will provide, at no cost to IBM, adequate security to protect the Loaned Items from theft, damage or misuse. You will use reasonable care in the use of all Loaned Items. You will provide an operating environment for the Loaned Items consistent with the related user documentation. You will keep the Loaned Items at the location(s) specified in the Attachment. You will not move the Loaned Items to another location without IBM's prior written approval. 10. SERVICE AND SUPPORT IBM will use reasonable efforts to provide or arrange for service and support to cause the Loaned Items to operate in accordance with applicable published specifications. Such service and support will be without charge. You will permit IBM personnel full, free and safe access to your facilities, during normal business hours, for the purpose of inspection, preventive maintenance service or remedial maintenance service. 11. ALTERATIONS AND ATTACHMENTS An alteration to Loaned Equipment may be made only upon IBM'S prior written approval. An attachment to Loaned Equipment may be made without notice to IBM. You will remove any alteration or attachment and restore Loaned Equipment to its unaltered condition before its return to IBM or upon IBM's notice to you that the alteration or attachment creates a safety hazard or renders maintenance of the Loaned Equipment impractical. 12. CHANGES IBM may make substitutions for Loaned Items or may provide additional items to you during the term of the Agreement. Such additions or deletions will be specified in a revised Attachment. 13. DISPOSITION OF LOANED ITEMS RETURN TO IBM You will return the Loaned Equipment to IBM at the end of Loan Period, except as may be provided for in this Section. You will return the Loaned Equipment to IBM in the same condition as when delivered to you, reasonable wear and tear excepted. You will return the original and all copies of the Loaned Programs at the end of the Loan Period, except as may be provided for in this Section. You will permit IBM personnel access during IBM's normal business hours to allow IBM to remove the Loaned Items. ACQUISITION AND CONTINUED LICENSING IBM will determine the availability of Loaned Equipment for your acquisition and Loaned Programs for your continued licensing beyond the applicable Loan Period. You must inform IBM, prior to the end of the applicable Loan Period, of your interest in the acquisition of specific Loaned Equipment or the continued licensing of specific Loaned Programs. IBM will then notify you in writing either 1) of the terms and conditions under which you may acquire such Loaned Equipment or continue to license such Loaned Programs or 2) that the Loaned Items are not available for acquisition or continued licensing. Purchase of Loaned Equipment will be governed by the provisions of the IBM Customer Agreement and its applicable Attachments (or any equivalent agreement signed by both of us). Continued licensing of Loaned Programs will be governed by the provisions of the applicable IBM license agreement or another supplier's or publisher's Page 2 of 3 license agreement. IBM will identify to you the applicable agreement which governs such licensing. 14. DISCLAIMER OF WARRANTY IBM PROVIDES LOANED ITEMS ON AN "AS IS" BASIS. IBM MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH ITEMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 15. PATENTS AND COPYRIGHTS If the operation of a Loaned Item becomes, or IBM believes is likely to become, the subject of a claim that it infringes a patent or copyright in the United States or Puerto Rico, you will permit IBM, at its option and expense, either to secure the right for you to continue using the Loaned Item or to replace or modify it so that it becomes noninfringing. However, if neither of the foregoing alternatives is available on terms which are reasonable in IBM's judgement, you will return the Loaned Item upon IBM's written request. IBM will have no obligation with respect to any such claim based upon your modification of IBM equipment, programs or programming or their combination, operation or use with any non-IBM apparatus, data or programs. IBM will not have any liability regarding patent or copyright infringement for non-IBM Loaned Items. This Section states IBM's entire obligation to you regarding infringement or the like. 16. CONFIDENTIAL INFORMATION The parties agree that all information exchanged hereunder will be nonconfidential. If the loan requires the exchange of confidential information or includes an unannounced IBM product, such loan will also require that you and IBM enter into a separate confidentiality agreement. 17. LIMITATION OF REMEDIES IBM's entire liability and your exclusive remedy for actual damages from any cause whatsoever relating to the subject matter of this Agreement will be limited to the amount of $25,000. This limitation will apply, except as otherwise stated in this Section, regardless of the form of action, whether in contract or in tort, including negligence. This limitation will not apply to claims by you for bodily injury or damage to real property or tangible personal property for which IBM is legally liable. In no event will IBM be liable for any lost profits, lost savings, incidental damages, or other economic consequential damages, even if IBM has been advised of the possibility of such damages. In addition, IBM will not be liable for any damages claimed by you based on any third party claim. In no event will IBM be liable for any damages caused by your failure to perform your responsibilities. 18. GENERAL You may not assign this Agreement without IBM's prior written consent. Any attempted assignment without such consent is void. Loaned items are to be installed only in the United States or Puerto Rico. IBM will pay destination charges, both from and to IBM-designated locations, for each Loaned Item shipped in accordance with IBM's then current shipping practice. You will pay any rigging charges. You will furnish all labor for unpacking and packing except as IBM otherwise specifies or when performed at an IBM-designated location. IBM may provide services described in this Agreement by using IBM-selected independent contractors. Neither party is responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control. Neither party may bring an action, regardless of form, arising out of this Agreement more than two years after the cause of action arose. In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall remain in effect beyond such expiration or termination until fulfilled. If there is a conflict between this Agreement and an Attachment, the terms and conditions of the Attachment will prevail. Except as modified by an Attachment, the terms of this Agreement remain in full force and effect. The terms of any Attachment not inconsistent with a subsequent Attachment remain in full force and effect. The laws of the State of New York govern this Agreement. Page 3 of 3 Attachment to Equipment and Program Loan Agreement Equipment to be covered by Agreement: (i) One IBM RISC System/6000 Model 540 server configured with 64MB of RAM, 3GB of disk, one 6250 BPI 9-track tape drive, one 8mm cartridge tape, 24 async ports, one async terminal as a system console, one dot matrix printer as a system logger, a CD-ROM player, a 10Base-T ethernet connection and two 8PPM laser printers for use in El Dorado Hills, California. (ii) Four IBM RISC System/6000 Model 320H systems, each configured with 64MB of RAM, 1GB of disk, a CD-ROM player, a 100MB cartridge tape, a 10Base-T ethernet connection, and a 19-inch monochrome display with keyboard and mouse. One of these machines is for use in Leeds, UK, the remaining three are for use in El Dorado Hills, California. (iii) Eleven X-terminals, each with a 19-inch monochrome display, keyboard, mouse, a 10Base-T ethernet connection, and 4MB of RAM for use in El Dorado Hills, California. (iv) Thirteen X-terminal emulator software packages for DOS PCs to connect to the servers. Two of these emulators are for PCs in Leeds, UK, the remaining eleven are for use in El Dorado Hills, California. (v) Software for items (i) and (ii) above to allow full C and SQL development in a networked X windows environment. (vi) Addresses for delivery and installation (at IBM's sole expense) of above equipment. El Dorado Hills address: 5272 Robert J. Mathews Parkway El Dorado Hills, CA 95630 Leeds, UK address: Arlington Business Centre Millshaw Park Leeds LS11 OLT England, UK (vii) IBM will provide upgrades to system software and hardware as new versions become available. -23- EXHIBIT F-2 DATA BASE: ALET - Page: 1 - ------------------------------------------------------------------------------- NUMBER 391-068 DATE 910514 CATEGORY GD70, GD00 TYPE Marketing TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM ABSTRACT The IBM RISC System/6000 (TM) Developer Discount Program (formerly the RISC System/6000 Software Development Program, described in Marketing Announcement 390-016, dated February 15, 1990) now includes selected hardware developers. The new program also updates the list of IBM hardware and software products eligible for the Developer Discount Program. This program provides eligible customers with the opportunity to acquire workstations, AIX (R) Development Toolkits, selected peripherals, and licensed RISC System/6000 programs at a substantial discount. Eligible customers include selected hardware and software developers, and selected IBM Academic Information Systems (ACIS) application authors. IBM reserves the right to modify or withdraw this offering at any time. No other discount or promotional offering can be combined with this program. (TM) Trademark of International Business Machines Corporation. (R) Registered trademark of International Business Machines Corporation. DATA BASE: ALET - IBM Internal Use Only Page: 2 IMKTG MARKETING INFORMATION MARKETING CHANNELS o IBM US Market Operations -- Direct MARKETING STRATEGY This program is intended to increase the availability of quality products by providing an attractively priced RISC System/6000 development offering to selected hardware and software developers, and selected ACIS application authors. MARKETING ACTION REQUIRED Marketing representatives should become familiar with this program and encourage the participation of qualifying developers. IADMIN ADMINISTRATIVE INFORMATION PROGRAM ELIGIBILITY: Customers must be approved by Software Vendor Operations. Approvals will be limited to US-based developers who agree to develop and market (or make available) RISC System/6000 hardware or software products. To initiate a request for a Developer Discount, submit a completed SVDDPNOM form, which is available on EZFORMS. For additional information, send a PROFS (R) note to ATLVMS/SVDDP. (R) Registered trademark of International Business Machines Corporation. CONTRACT ADMINISTRATION: Each new approved developer must sign the IBM Customer Agreement Attachment for IBM RISC System/600 Developer Discount (Z125-4740), and the IBM Customer Agreement Addendum for the IBM RISC System/6000 Developer Discount (Z125-4741). Upon completion of development, the developer must sign the IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 (Z125-4743). ORDERING INFORMATION When ordering the eligible products under this program, follow the normal ordering instructions and use Contract Number 44871. This special contract number will enable the program orders to be processed at the stated discount. If the special contract number was omitted at order entry, add it by using MODIFY prior to shipment or PURPREP after shipment but prior to installation. Eligible products are listed in the Exhibit for IBM RISC System/6000 Developer Discount (Z125-4742) and orders are based on a completed Addendum for IBM RISC System/6000 Developer Discount (Z125-4741) that is signed by the customer. ATTACHMENT INFORMATION The following are related to this announcement letter: - 391-068-1A* Z125-4740 IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount - 391-068-1B* Z125-4741 IBM Customer Agreement Addendum for IBM RISC System/6000 Developer Discount - 391-068-1C* Z125-4742 IBM Customer Agreement Exhibit for IBM RISC System/6000 Developer Discount - 391-068-1D* Z125-4743 IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 * This item may be printed on your DAWN printer via either of the following two methods: 1. While browsing this announcement letter on HONE, enter the DATA BASE: ALET - IBM Internal Use Only Page: 3 fastpath name "DAWNHOST LIST" (to allow selective printing from list) or "DAWNHOST ALL" (to print all asterisked items for this letter) at the HONE entry prompt arrow. 2. Go to the DAWN system in your branch and choose the menu option for Announcement Letter attachments. DATA BASE : ALET - Page: 4 OVERVIEW DESCRIPTION Selected hardware and software developers, and selected ACIS-approved faculty/researcher application authors may acquire with selected peripherals and licensed RISC System/6000 programs, under the terms and conditions of the IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount at a 50% discount. For each development machine purchased, the developer may select RISC System/6000 peripherals at a 50% discount. In addition, for each machine obtained, one copy of each RISC System/6000 program on the attached list may be acquired at a 50% discount. Components of the RISC System/6000 family eligible for this program are provided in the attached IBM RISC System/6000 Developer Discount Program Machines and Licensed Programs List, which has been updated to include the following products: - Additional RISC System/6000 processors: Models 32H, 550 and 950 - Upgrade RISC System/6000 processors: Model 320 to 32E, Model 520 to 530, Model 540 to 55S and Model 930 to 95E - Additional peripherals: IBM 7202 Model 900 Expansion Rack, and IBM 7235 Models 1 and 2 POWERgraphics GTO - IBM 9334 Model 10 Drawer Expansion Unit - IBM 9334 Model 500 Deskside Expansion Unit - IBM 7010 Model 130 Xstation - IBM 8515 Model 1 Color Display, and IBM 8507 Model 1 Monochrome Display - Additional programs, including: - Selected modules of PROFESSIONAL CADAM (1) Version 3 - AIX XL FORTRAN Compiler/6000 Version 2 and AIX XL FORTRAN Run Time Environment/6000 Version 2. To obtain additional information regarding program eligibility, contact your marketing representative. ACIS reserves the right to select, from a nominated pool of candidate applications, only those applications that ACIS wants supported, and thereby selectively offer the faculty/researcher application author the opportunity to participate in the RISC System/6000 Developer Discount Program. Hardware vendors will be selected based on their ability to provide products that enhance the overall marketability of the RISC System/6000 product family, with emphasis on products not currently part of the RISC System/6000 offering. (1) Registered trademark of CADAM, INC. CUSTINFO PUBLICATIONS Please refer to the individual announcements for publications concerning the hardware, licensed programs, and peripherals in this offering. EDUCATION SUPPORT Developers wishing to subscribe to a technical quarterly publication, THE AIXPERT, should call 800-627-8363. Other users may subscribe by ordering bill-of-forms number GBOF-1199 from the Systems Library Subscription Service (SLSS). Users without electronic access to SLSS may subscribe using SLSS order number G120-1816 and specify GBOF-1199 as the publication DATA BASE : ALET - Page: 5 number. ORDERING TERMS AND CONDITIONS - The developer must agree to use the products acquired for each development system to develop, test, demonstrate and/or maintain hardware and software products developed under this program for a period of 12 months following the shipment of the IBM products. - Upon completion of such development, the developer will provide to IBM the IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 (Z125-4743), and announce and make available a product that is compatible with the RISC System/6000. - Products acquired under this development program are intended primarily for development purposes and not for resale, sub-lease, or rental for a period of 12 months following the shipment of the IBM product. - Up to ten Xstation terminals may be purchased with each system. IBM reserves the right to limit the number of RISC System/6000 systems available to each development establishment. CONTRACT INFORMATION: The RISC System/6000 Software Developer's Agreement has been replaced with a new IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount, to accommodate program changes. This new contract applies to approved hardware and software vendors, and approved ACIS customers. The new documents are: - (Z125-4740) IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount - (Z125-4741) IBM Customer Agreement Addendum for IBM RISC System/6000 Developer Discount - (Z125-4742) IBM Customer Agreement Exhibit for IBM RISC System/6000 Developer Discount - (Z125-4743) IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000. Customers currently under the terms of the Software Developer's Discount Agreement (Z125-4505) will not be required to migrate to the new format unless they apply and are approved for the new hardware terms and conditions. On request by the developer, products newly added to the RISC System/6000 Developer Machines and Licensed Programs List may be added to a current contract. The following contracts are withdrawn with this announcement: - (Z125-4505) IBM RISC SYSTEM/6000 Software Developer's Discount Agreement - (Z125-4506) Schedule, IBM RISC System/6000 Software Development Program - (Z125-4507) Attachment I, Certification of Compatibility with the IBM RISC System/6000 - (Z125-4527) IBM RISC System/6000 Higher Education Software Developer's Discount Agreement DATA BASE : ALET - Page: 6 - (Z125-4528) Attachment I, Certification of Compatibility with the IBM RISC System/6000 - (Z125-4529) IBM RISC System/6000 Software Development System Schedule. IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MACHINES AND LICENSED PROGRAMS LIST Eligible Hardware - 50% Discount IBM RISC System/6000 7012 Model 320 IBM RISC System/6000 7012 Model 32H IBM RISC System/6000 7013 Model 520 IBM RISC System/6000 7013 Model 530 IBM RISC System/6000 7013 Model 540 IBM RISC System/6000 7013 Model 550 IBM RISC System/6000 7015 Model 930 IBM RISC System/6000 7015 Model 950 IBM RISC System/6000 7016 Model 730 Eligible Model Upgrades - 50% Discount IBM RISC System/6000 7012 Model 320 to 32E IBM RISC System/6000 7013 Model 520 to 530 IBM RISC System/6000 7013 Model 540 to 55S IBM RISC System/6000 7015 Model 930 to 95E Eligible Peripherals - 50% Discount IBM 5081 Model 16 Graphics Display IBM 5081 Model 19 Graphics Display IBM 6091 Model 19 Color Display IBM 6091 Model 23 Color Display IBM 6094 Model 10 Dials IBM 6094 Model 20 Lighted Programmable Functional Keyboard IBM 7202 Model 900 Expansion Rack IBM 7203 Model 001 External Portable Disk Drive IBM 7204 External Disk Drive Model 320 IBM 7207 Model 001 150MB External 1/4-Inch Cartridge Tape Drive IBM 7208 Model 001 2.3GB External 8mm Tape Drive IBM 7210 Model 001 External CD-ROM Drive IBM 7235 Models 001, 002 POWERgraphics GTO IBM 8503 Model 001 Personal System/2 (R) Monochrome Display IBM 8507 Model 001 Personal System/2 Monochrome Display IBM 8508 Model 001 Personal System/2 Monochrome Display IBM 8512 Model 001 Personal System/2 Color Display IBM 8513 Model 001 Personal System/2 Color Display IBM 8514 Model 001 Personal System/2 Color Display IBM 8515 Model 001 Personal System/2 Color Display IBM 9334 Model 10 Drawer Expansion Unit IBM 9334 Model 500 Deskside Expansion Unit IBM 9348 Model 012 External 1/2-Inch 9-Track Tape Drive IBM 7010 Model 120 Xstation IBM 7010 Model 130 Xstation Eligible Licensed Programs - 50% Discount AIX Version 3 for RISC System/6000 (5756-030) AIX Personal graPHIGS (TM) Programming Interface/6000 Version 2 (5601-230) AIX XL FORTRAN Compiler/6000 (5601-248) DATA BASE : ALET - Page: 7 AIX XL Pascal Run Time Environment/6000 (5601-251) AIX Network Management/6000 (5601-253) AIX XL Pascal Compiler/6000 (5601-254) AIX 3278/79 Emulation/6000 (5601-256) AIXwindows (TM) Environment/6000 (5601-257) AIX VS COBOL Compiler/6000 (5601-258) AIX VS COBOL Run Time Environment/6000 (5601-259) AIX 3270 Host Connection Program/6000 (5601-260) AIX Personal Computer Simulator/6000 (5601-263) AIX XL FORTRAN Run Time Environment/6000 (5601-266) AIX System Network Architecture Services/6000 (5601-287) AIX Computer Graphics Interface Toolkit/6000 (5601-386) AIX Xstation Manager (TM)/6000 (5601-457) AIX Ada/6000 (5706-291) AIX Ada Run Time Environment/6000 (5706-294) PROFESSIONAL CADAM (1) 3D Surface Design (5756-091) PROFESSIONAL CADAM Manufacturing System (5756-092) PROFESSIONAL CADAM Machining Center (5756-093) PROFESSIONAL CADAM Interactive Design (5756-094) PROFESSIONAL CADAM Access IUE (5756-095) PROFESSIONAL CADAM Interactive Solids Design (5756-096) AIX XL FORTRAN Compiler/6000 Version 2 (5765-018) AIX XL FORTRAN Run Time Environment/6000 Version 2 (5765-019) Notes: Developers may purchase a maximum of one of each unique peripheral per development system. However, with Xstation terminals, a maximum of ten per system may be purchased, and a maximum of one display per Xstation may be purchased. Development discounts will be applied to the eligible hardware, licensed programs, and peripherals ordered as part of the initial installation. Within the limitations described, peripherals, licensed programs and hardware MESs may be ordered after the initial purchase and receive the developer discount. However, these additional purchases will be restricted to the terms of the Attachment for IBM RISC System/6000 Developer Discount for a period of 12 months. For programs licensed under the primary license charge/annual license charge option, the 50% discount applies to the primary license charge only. Recurring charges, such as ESS and annual license charge, do not qualify for the 50% discount. Software MESs are not eligible for the 50% discount. (1) Registered trademark of CADAM, INC. (TM) Trademark of International Business Machines Corporation. (R) Registered trademark of International Business Machines Corporation. - - - END OF PRINTOUT - - - SOFTWARE VENDOR DEV. DISCOUNT PROG. NOMINATION FORM DATE: ___/___/___ SYSTEM TYPE: _______________ (9370 or AS/400 or RS/6000) For RS/6000: _______________ (ACIS or CASE or SV) I. NOMINATING BRANCH OFFICE DATA B/O Name and Number ___________________________________ / _______________ Address _____________________________________________________ _____________________________________________________ _____________________________________________________ Rep Name _____________________________________________________ Rep Telephone (____) ____ - _____ T/L... 8/___ - _____ Rep Node/UserID ________ / ______ Rep Serial No ______ AA Name _____________________________________________________ AA Telephone Number (____) ____ - _____ T/L... 8/___ - _____ AA Node(Userid) ________ / ______ Who from IBM is answering these questions (name, title, tele/tie, Node/UserID?) ___________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ II. SOFTWARE VENDOR DATA Organization Name ______________________________________________________ Address ______________________________________________________ ______________________________________________________ ______________________________________________________ Contact ______________________________________________________ Title ______________________________________________________ Tel. No. ______________________________________________________ Establishment no. _________________ Customer no. ____________________ Current IBM Marketing Relationship: _____________________________________ (CUSTOMER, AS, IAS, IR, NONE, ETC.) Competitive Marketing Relationship: _____________________________________ (Competitive IR, MAP, etc.) Industry Code: __________________ SIC Code: ___________________________ End User Industry (For what industry is the application code written?) __________________________________________________________________________ Any dispute or litigation with IBM? _____________________________________ __________________________________________________________________________ How long has this organization been in the software development business? _______________________________________________________________ Number of employees? ____________________________________________________ Does this organization have a Marketing Staff? __________________________ How many? _____________________ Does this organization have a Support/Development staff? ________________ How many? _________________ How is support delivered (Hotlines, Info. Data Bases, Customer Calls, Electronic Mail etc.)? __________________________________ Is there a charge for Software Maintenance Support? _____________________ How is it calculated (straight charge, % of revenue, etc.)? ---------------------------------------------------------------------------- Organization of revenue for the last two years: 1989 ---------------------- 1990 ---------------------- Today, what % of revenue is from: selling APPLICATION PACKAGES? --------------------- what % from INSTALLATION SERVICES? --------------------- what % from MODIFYING/CUSTOMIZING? --------------------- what % from MAINTENANCE/SUPPORT? --------------------- What is the total install base (how many customers)? ---------------------- What other business activity is the organization engaged in? --------------------------------------------------------------------------- What % of revenue does the activity produce? ------------------------------ III. VENDOR PRODUCT DATA Provide the name and a brief description of the available software application(s) currently being sold or distributed by this organization: APPLICATION NAME DESCRIPTION ------------------------- --------------------------------------------- ------------------------- --------------------------------------------- ------------------------- --------------------------------------------- Provide the last 12 months' sales or installations and the total customer installed base for each application described above: APPLICATION NAME LAST 12 MOS. TOTAL INSTALLED BASE -------------------- ------------------ ------------------------- -------------------- ------------------ ------------------------- -------------------- ------------------ ------------------------- What is the current hardware platform(s)? --------------------------------- What is the current operating system(s)? --------------------------------- How many systems (IBM or Competitive) have been sold in 1988/89 as a result of this application software being available? ----------------------------- Explain the length of the conversion schedule. --------------------------------------------------------------------------- --------------------------------------------------------------------------- --------------------------------------------------------------------------- If this is an ACIS RS/6000 nomination, described the planned distribution method and end user support that will be provided. --------------------------------------------------------------------------- --------------------------------------------------------------------------- Hardware and Software required for conversion effort (specify System Type and Model) ----------------------------------------------------------------- --------------------------------------------------------------------------- If RS/6000, How many systems are required (MAXIMUM 10?) ------------------- In addition to submitting a signed hardcopy of this nomination form, please provide a development plan for the application(s) that this Vendor intends to port and/or develop for the IBM platform. Include the following: - Functional description of the application and a brief discussion about this application(s) offering uniqueness. - Estimated size of the application(s) in the lines of code. - Hardware and software to be ordered, include HONE configurator printout. - Development schedule to include: -start date -design period -coding period -testing period -finish date -date application commercially available - Please attach a copy of the software vendors marketing literature with this nomination and mail to: IBM Corporation -- HO9R1 Software Vendor Operations 4111 Northside Parkway Atlanta, GA 30327-3098 IBM CUSTOMER AGREEMENT ADDENDUM FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT - -------------------------------------------------------------------------------- Revised Addendum (1) yes no Page of ----- ----- --- --- Education Institution ----- Date Attachment accepted: Hardware/Software Vendor ----- Development Location address: IBM Customer Agreement number: IBM Office address: Addendum number: IBM Office number: Number of Development Systems Customer number: Previously Ordered (2): ----- Type/Model or Program Number Description Quantity Discount - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (1) IF THIS IS A REVISED ADDENDUM, (2) YOU MAY ONLY ORDER A MAXIMUM OF 10 YOU MAY ONLY ORDER DEVELOPMENT DEVELOPMENT SYSTEMS PER DEVELOPMENT SYSTEMS DURING THE TWELVE MONTHS LOCATION. A SYSTEM CONSISTS OF AN AFTER WE ACCEPT YOUR SIGNED IBM RISC SYSTEM/6000 PROCESSOR AND ATTACHMENT. ELIGIBLE PRODUCTS. Both of us agree that the complete agreement between us about this transaction consists of 1) this Transaction Document and 2) the IBM Customer Agreement and its Attachment for IBM RISC System/6000 Developer Discount (or any equivalent agreement signed by both of us). AGREED TO: AGREED TO: Customer name: International Business Machines Corporation Armonk, New York 10504 By ___________________________________ By ___________________________________ Authorized signature Authorized signature Name (type or print): Name (type or print): Date: Date: Z125-4741-00 5/91 IBM CUSTOMER AGREEMENT EXHIBIT FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT - -------------------------------------------------------------------------------- ELIGIBLE HARDWARE DISCOUNT PROCESSORS: IBM RISC System/6000 7012 Model 320 [*] IBM RISC System/6000 7012 Model 32H [*] IBM RISC System/6000 7013 Model 520 [*] IBM RISC System/6000 7013 Model 530 [*] IBM RISC System/6000 7013 Model 53H [*] IBM RISC System/6000 7013 Model 540 [*] IBM RISC System/6000 7013 Model 550 [*] IBM RISC System/6000 7015 Model 930 [*] IBM RISC System/6000 7015 Model 950 [*] IBM RISC System/6000 7016 Model 730 [*] MODEL CONVERSIONS: IBM RISC System/6000 7012 Model 320 to 32E [*] IBM RISC System/6000 7013 Model 520 to 530 [*] IBM RISC System/6000 7013 Model 520 to 53E [*] IBM RISC System/6000 7013 Model 520 to 55E [*] IBM RISC System/6000 7013 Model 530 to 55E [*] IBM RISC System/6000 7013 Model 53H to 55E [*] IBM RISC System/6000 7013 Model 540 to 55S [*] IBM RISC System/6000 7015 Model 930 to 95E [*] DISPLAYS: IBM 5081 Model 16 Graphics Display [*] IBM 5081 Model 19 Graphics Display [*] IBM 6091 Model 19 Color Display [*] IBM 6091 Model 23 Color Display [*] IBM 8503 Model 001 Personal System/2 Monochrome Display [*] IBM 8507 Model 001 Personal System/2 Monochrome Display [*] IBM 8508 Model 001 Personal System/2 Monochrome Display [*] IBM 8512 Model 001 Personal System/2 Color Display [*] IBM 8513 Model 001 Personal System/2 Color Display [*] IBM 8514 Model 001 Personal System/2 Color Display [*] IBM 8515 Model 001 Personal System/2 Color Display [*] MAXIMUM QUANTITY = ONE DISPLAY UNIT PER PROCESSOR. STORAGE MEDIA: IBM 7203 Model 001 External Portable Disk Drive [*] IBM 7204 External Disk Drive Model 320 [*] IBM 7207 Model 001 150 MB External [*] 1/4-inch Cartridge Tape Drive IBM 7208 Model 001 2.3 GB External 8mm Tape Drive [*] IBM 7210 Model 001 External CD-ROM Drive [*] IBM 9333 Model 10 High Performance Disk Subsystem [*] IBM 9333 Model 500 High Performance Disk Subsystem [*] IBM 9334 Model 10 Drawer Expansion Unit [*] IBM 9334 Model 500 Deskside Expansion Unit [*] IBM 9348 Model 012 External 1/2-inch 9-Track Tape Drive [*] MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Z125-4742-01 11/91 Page 1 of 2 ELIGIBLE HARDWARE DISCOUNT PERIPHERALS: IBM 6094 Model 10 Dials [*] IBM 8094 Model 20 Lighted Programmable [*] Functional Keyboard IBM 7202 Model 900 Expansion Rack [*] IBM 7235 Model 1 POWERgraphics GTO [*] IBM 7235 Model 2 POWERgraphics GTO [*] MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR X-STATION: IBM 7010 Model 120 Xstation [*] IBM 7010 Model 130 Xstation [*] MAXIMUM QUANTITY = 10 XSTATIONS PER PROCESSOR. FEATURES: All features for eligible hardware [*] ELIGIBLE PROGRAMS DISCOUNT 5601-230 AIX Personal graPHIGS Programming Interface/6000 [*] 5601-248 AIX XL FORTRAN Compiler/6000 [*] 5601-251 AIX XL Pascal Run Time Environment/6000 [*] 5601-253 AIX Network Management/6000 [*] 5601-254 AIX XL Pascal Compiler/6000 [*] 5601-256 AIX 3278/79 Emulation/6000 [*] 5601-257 AIXwindows Environment/6000 [*] 5601-258 AIX VS COBOL Compiler/6000 [*] 5601-259 AIX VS COBOL Run Time Environment/6000 [*] 5601-260 AIX 3270 Host Connection Program/6000 [*] 5601-263 AIX Personal Computer Simulator/6000 [*] 5601-266 AIX XL FORTRAN Run Time Environment/6000 [*] 5601-287 AIX System Network Architecture Services/6000 [*] 5601-386 AIX Computer Graphics Interface Toolkit/6000 [*] 5601-457 AIX Xstation Manager/6000 [*] 5706-291 AIX Ada/6000 [*] 5706-294 AIX Ada Run Time Environment/6000 [*] 5756-011 AIX X-Windows 3270 Emulator Version 1 [*] 5756-030 AIX Version 3 for RISC System/6000 [*] 5756-091 Professional CADAM 3D Surface Design [*] 5756-092 Professional CADAM Manufacturing System [*] 5756-093 Professional CADAM Machining Center [*] 5756-094 Professional CADAM Interactive Design [*] 5756-095 Professional CADAM Access IUE [*] 5756-096 Professional CADAM Interactive Soldis Design [*] 5765-018 AIX XL FORTRAN Compiler/6000 [*] 5765-019 AIX XL FORTRAN Run Time Environment/6000 [*] MAXIMUM QUANTITY = ONE OF EACH LICENSED PROGRAM LISTED PER PROCESSOR. Z125-4742-01 11/91 Page 2 of 2 IBM CUSTOMER AGREEMENT CERTIFICATION OF COMPATABILITY WITH THE IBM RISC SYSTEM/6000 ______________________________________________________________________________ Name & Brief Description of Product: Target End User Description: Machines Required: Programs Required: Storage Required: Memory ____________ Disk ____________ Commercial Availability Date: Contact Address & Telephone Number for Prospective User: I certify that the above product will execute on, or attach to, the IBM RISC System/6000-TM- with the Machines, Programs, and storage requirements listed above. I grant IBM permission to publish this information in any form. ____________________________________ ___________________________________ CUSTOMER NAME SIGNATURE ____________________________________ ___________________________________ DATE NAME & TITLE - -TM- Trademark of International Business Machines Corporation Z125-4743-00 5/91 IV. REVIEW & SIGNOFF This electronic form will automatically transmit to Software Vendor Operations (SVO). Before this nomination will be considered, this form must be reviewed and signed by the Branch Manager and a hardcopy must be submitted, with the above mentioned development plan and marketing literature. By signing the nomination form, the Branch Manager will certify that this organization or individual is a legitimate software vendor. The Complementary Resources Marketing Manager (CRMM) must be informed of this nomination and acknowledges this notification by signing this nomination form. ____________________________________ ______________________________ CRMM (Signature) Date ____________________________________ Print/Type Name ____________________________________ ______________________________ Branch Manager (Signature) Date ____________________________________ Print/Type Name ____________________________________ ______________________________ SVDDP Approval (Signature) Date C. M. Ellet Manager, Vendor Loan Programs Software Vendor Operations, Atlanta, GA 03/26/1991 IBM Internal Use Only Page 4 IBM CUSTOMER AGREEMENT [Logo] ______________________________________________________________________________ Thank you for doing business with us. We are committed to providing you with the highest quality Products and Services. If, at any time, you have any questions or problems, or are not completely satisfied, please let us know. Our goal is to do our best for you. This IBM Customer Agreement (called the "Agreement") covers the major business transactions we may do with you, including: (A) sale of Machines; (B) license of Programs; and (C) provision of Services. We also make several Options available to you concerning the Products and Services we provide under this Agreement, such as volume discounts. This Agreement and its applicable Attachments and Transaction Documents are the complete agreement regarding these transactions, and replace any prior oral or written communications between us. By signing below for our respective Enterprises, each of us agrees to the terms of this Agreement. Once signed, 1) any reproduction of this Agreement, an Attachment, or Transaction Document made by reliable means (for example, photocopy or facsimile) is considered an original and 2) all Products and Services you order under this Agreement are subject to it. AGREED TO: AGREED TO: Enterprise name: INTERNATIONAL BUSINESS MACHINES CORPORATION ARMONK, NEW YORK 10504 By ___________________________ By ___________________________________ Authorized signature Authorized signature Name (type or print): Name (type or print): Date: Date: Enterprise number: Agreement number: Enterprise address: IBM Office number: IBM Office address: Z125-4575-00 1/91 Page 1 of 23 IBM CUSTOMER AGREEMENT TABLE OF CONTENTS ______________________________________________________________________________ SECTION TITLE PAGE SECTION TITLE PAGE PART 1 - GENERAL......................3 PART 4 - PROGRAMS..................14 1.1 Definitions....................3 4.1 Grant of License............14 1.2 Agreement Structure............4 4.2 License Details.............14 1.3 Delivery.......................4 4.3 Distributed Features........15 1.4 Electronic Communications......5 4.4 Additional License Copies...15 1.5 Prices and Price Changes.......5 4.5 Program Testing.............15 1.6 Invoicing, Payment, and Taxes..6 4.6 Program Packages............15 1.7 Additional Charges.............6 4.7 Program Protection..........16 1.8 Types of Service for Machines..6 4.8 Program Services............16 1.9 Patents and Copyrights.........7 4.9 Variable-Charge Programs....16 1.10 Limitation of Liability........7 4.10 License Termination.........16 1.11 Mutual Responsibilities........8 1.12 Your Other Responsibilities....8 PART 5 - SERVICES..................17 1.13 Your Additional Rights.........9 1.14 IBM Business Partners..........9 5.1 Maintenance Services........17 1.15 Changes to the Agreement Terms.9 5.2 Continuing Support Services.18 1.16 Agreement Termination..........9 5.3 Project Support Services....18 1.17 Geographic Scope...............9 5.4 IBM Information Network and 1.18 Governing Law..................9 Other Services..............20 PART 2 - WARRANTIES..................10 PART 6 - OPTIONS...................21 2.1 The IBM Warranties............10 6.1 Volume Discounts............21 2.2 Extent of Warranty............11 6.2 Maintenance Service Options.22 2.3 Items Not Covered by Warranty.11 6.3 Payment Options.............22 6.4 Special Options.............23 PART 3 - MACHINES....................12 3.1 Title.........................12 3.2 Risk of Loss..................12 3.3 Production Status.............12 3.4 Installation..................12 3.5 Licensed Internal Code........13 Z125-4575-00 1/91 Page 2 of 23 IBM CUSTOMER AGREEMENT PART 1 - GENERAL ______________________________________________________________________________ 1.1 DEFINITIONS CUSTOMER-SET-UP MACHINE is an IBM Machine that you set up according to our instructions. DATE OF INSTALLATION is the following: 1. for a Machine -- a. the business day after the day we install it or, if you defer installation, make it available to you for installation; b. the second business day after the end of a Customer-set-up Machine's standard transit allowance period. We will allocate a reasonable transit allowance period; or c. the second business day after the arrival of a non-IBM Machine. 2. for a Program, the latest of -- a. the day after its testing period ends (this does not apply to Program Packages); b. 10 days after we ship it; or c. the day, specified in a Transaction Document, on which we authorize you to make an Additional License Copy or a copy of a Distributed Feature. DESIGNATED MACHINE is the Machine, that you identify to us by type/model and serial (or plant order) number, on which you intend to use a Program for processing. When we specify that you do not have to provide this identification to us, the term "Designated Machine" means the single Machine on which you may use the Program at any one time. ENTERPRISE is any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. The term "Enterprise" applies only to the portion of the enterprise located in the United States or Puerto Rico. MACHINE is a machine, its features, conversions, upgrades, elements, or accessories, or any combination of them. The term "Machine" includes an IBM Machine and any non-IBM Machine (including other equipment) that we may provide to you. PRODUCT is a Machine or a Program. PROGRAM is the following, including features and any whole or partial copies: 1. machine-readable instructions; 2. a collection of machine-readable data, such as a data base; and 3. related materials, including documentation and listings, in any form. The term "Program" includes an IBM Program and any non-IBM Program that we may provide to you. The term does not include Licensed Internal Code or Materials. SERVICE is assistance or use of a resource (such as a network) we make available to you. SPECIFICATIONS is a document that provides information specific to a Product. For a Machine, we call the document "Official Published Specifications." For a Program, we call it "Licensed Program Specifications" or "License Information." SPECIFIED OPERATING ENVIRONMENT is the Machines and Programs with which a Program is designed to operate, as described in the Program's Specifications. Z125-4575-00 1/91 Page 3 of 23 1.2 AGREEMENT STRUCTURE ATTACHMENTS Some Products and Services have terms in addition to those we specify in this Agreement. We provide the additional terms in documents called "Attachments" which are also part of this Agreement. For example, we describe the additional terms of IBM Information Network Services in an Attachment. We make the Attachments available to you for signature. TRANSACTION DOCUMENTS For each order you place, we will provide to you the appropriate "Transaction Documents" that confirm the specific details of your order. The following are examples of Transaction Documents, with examples of the information they may contain: 1. supplements (Machine quantity and type ordered, price, estimated shipment date, and warranty period); 2. exhibits (eligible Products by category, discount schedules, and available contract periods); 3. addenda (selected contract-period duration, start date, and total quantity or revenue committed); 4. statements of work (project schedule, responsibilities, and charges); and 5. invoices (item, quantity, price, amount due, and other typical invoice information). CONFLICTING TERMS If there is a conflict among the terms in the various documents those of an Attachment prevail over those of this Agreement. The terms of a Transaction Document prevail over those of both of these documents. OUR ACCEPTANCE OF YOUR ORDER A Product or Service becomes subject to this Agreement when we accept your order. We accept your order by doing any of the following: 1. sending you a Transaction Document; 2. shipping the Product; or 3. providing the Service. YOUR ACCEPTANCE OF ADDITIONAL TERMS You accept the additional terms in an Attachment or Transaction Document by doing any of the following: 1. signing the Attachment or Transaction Document; 2. using the Product or Service, or allowing others to do so; or 3. making any payment for the Product or Service. 1.3 DELIVERY We will use our best efforts to meet your delivery requirements for Products and Services you order, and will inform you of their status. We pay normal transportation charges for Products we ship to you. Z125-4575-00 1/91 Page 4 of 23 1.4 ELECTRONIC COMMUNICATIONS Each of us may communicate with the other by electronic means. Both of us agree to the following for all electronic communications: 1. an identification code (called a "USERID") contained in an electronic document is legally sufficient to verify the sender's identity and the document's authenticity; 2. an electronic document that contains a USERID is a signed writing; and 3. an electronic document, or any computer printout of it, is an original when maintained in the normal course of business. ELECTRONIC DATA INTERCHANGE We may provide Electronic Data Interchange (call"EDI") Options to you. Electronic invoicing and electronic payment are examples of these Options. When using EDI Options, each of us agrees: 1. when a bank is involved, to pay our respective bank charges and to promptly notify the other of any changes to the bank payment process; and 2. to promptly notify the other of any changes to the technology, process, or information upon which the EDI transactions are based. We will specify respective responsibilities for the EDI Option you choose. 1.5 PRICES AND PRICE CHANGES The following are the bases on which we may require the amount payable for a Product or Service to be paid, with an example of each: 1. one-time (the price of a Machine); 2. recurring (a monthly charge for Maintenance Services); or 3. a combination of both (an initial charge and a monthly license charge for a Program). We will specify the amount and basis for the particular Product or Service. PRICE INCREASES We may increase recurring charges by giving you three months' written notice. An increase applies on the first day of the applicable invoice period on or after the effective date we specify in the notice. We may increase one-time charges and hourly rates without notice. However, an increase to one-time charges does not apply to you if 1) we receive your order before the announcement date of the increase and 2) one of the following occurs within three months after the announcement: 1. we ship you the Product; 2. with our authorization, you make an Additional License Copy of a Program or a copy of a Distributed Feature; or 3. a Program's group-upgrade charge becomes due. PRICE DECREASES You receive the benefit of a decrease in charges for amounts which become due on or after the effective date of the decrease. Z125-4575-00 1/91 Page 5 of 23 1.6 INVOICING, PAYMENT, AND TAXES We invoice: 1. recurring charges (other than usage charges) for a Program and for Maintenance Services in advance for the applicable invoice period; 2. usage charges following the period in which you incur them; and 3. all other charges when or after you incur them. For a Product with a one-time charge, payment is due on its Date of Installation. Recurring charges for a Product begin on its Date of Installation. You agree to pay as we specify in the invoice. You also agree to pay amounts equal to any applicable taxes resulting from any transaction under this Agreement. This does not include taxes based on our net income. You are responsible for personal property taxes for each Product from the date we ship it to you. 1.7 ADDITIONAL CHARGES Depending on the particular Product, Service, or circumstances, additional charges may apply. For example, if we are required to use other than private automobile or scheduled public transportation to provide Maintenance Services to you, we charge an additional amount. We will notify you in advance if these charges apply. 1.8 TYPES OF SERVICE FOR MACHINES We provide certain types of service for a Machine to keep it in, or restore it to, good working order during its warranty period or while it is under Maintenance Services. The following terms apply to both warranty service and Maintenance Services. Depending on the Machine, the service may be 1) a "Repair" service at your location (called "On-site") or at one of our service locations (called "Carry-in") or 2) an "Exchange" service, either On-site or Carry-in. We will inform you of the available types of service for a Machine. Under Maintenance Services, you may select the type of service from those available for the Machine. We require that a Machine and its features have the same type of service. We offer On-site types of service 24 hours a day, seven days a week. Carry-in types of service are available during the normal business hours of our service locations. When a type of service involves the exchange of a Machine or part, the item we replace becomes our property and the replacement becomes yours. The replacement may not be new, but will be in good working order. Under Carry-in service, instead of delivering the failing Machine to us, if you prefer, you may ship it (prepaid and suitably packaged) to a location we designate. After we have repaired or exchanged the Machine, we will return it to you at our expense. Under On-site Exchange service, depending on the nature of the failure, we may repair the failing Machine at your site instead of exchanging it. We are responsible for loss of, or damage to, your Machine while it is 1) in our possession or 2) in transit in those cases where we are responsible for the transportation charges. Z125-4575-00 1/91 Page 6 of 23 You agree to: 1. obtain authorization from the owner to have us service a Machine that you do not own; 2. where applicable, before we provide service -- a. follow the problem determination, problem analysis, and service request procedures that we provide. b. secure all programs, data, and funds contained in a Machine. c. inform us of changes in a Machine's location, and d. for a Machine with Exchange service, remove all features, parts, options, alterations, and attachments not under our service. You also agree to ensure that the Machine is free of any legal obligations or restrictions that prevent its exchange; 3. be responsible for loss of, or damage to, a Machine in transit in those cases where you are responsible for the transportation charges; and 4. on completion of Carry-in Repair service, connect a repaired Machine and verify its operation. 1.9 PATENTS AND COPYRIGHTS If a third party claims that a Product we provide infringes a patent or copyright, we will defend you against that claim at our expense and pay all costs, damages, and attorney's fees that a court finally awards, provided that you: 1. promptly notify us in writing of the claim; and 2. allow us to control, and cooperate with us in, the defense and any related settlement negotiations. If such a claim is made or appears likely to be made, you agree to permit us to enable you to continue to use the Product, or to modify or replace it. If we determine that none of these alternatives is reasonably available, you agree to return the Product to us on our written request. We will then give you a credit equal to your net book value for the Product, provided you have followed generally-accepted accounting principles. This is our entire obligation to you regarding any claim of infringement. CLAIMS FOR WHICH WE ARE NOT RESPONSIBLE We have no obligation regarding any claim based on any of the following: 1. your modification of a Product, or a Program's use in other than its Specified Operating Environment; 2. the combination, operation, or use of a Product with any product, data, or apparatus that we did not provide; or 3. infringement by a non-IBM Product alone, as opposed to its combination, operation, or use as part of a system of Products that we provide to you. 1.10 LIMITATION OF LIABILITY Circumstances may arise where, because of a default on our part or other liability, you are entitled to recover damages from us. In each such instance, regardless of the basis on which you are entitled to claim damages from us, we are liable only for: 1. payments referred to in our patent and copyright terms described above; 2. bodily injury (including death), and damage to real property and tangible personal property; and Z125-4575-00 1/91 Page 7 of 23 3. the amount of any other actual loss or damage, up to the greater of $100,000 or the charges (if recurring, 12 months' charges apply) for the Product or Service that is the subject of the claim. This limit also applies to any of our subcontractors and Program developers. It is the maximum for which we are collectively responsible. ITEMS FOR WHICH WE ARE NOT LIABLE Under no circumstances are we liable for any of the following: 1. third-party claims against you for losses or damages (other than those under the first two items listed above); 2. loss of, or damage to, your records or data; or 3. economic consequential damages (including lost profits or savings) or incidental damages, even if we are informed of their possibility. 1.11 MUTUAL RESPONSIBILITIES Both of us agree that under this Agreement: 1. neither of us will use the other's trademark, trade name, or other designation in any promotion or publication without prior written consent; 2. all information exchanged is nonconfidential. If either of us requires the exchange of confidential information, it will be made under a signed confidentiality agreement; 3. each is free to enter into similar agreements with others; 4. each grants the other only the licenses specified. No other licenses (including licenses under patents) are granted; 5. each will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations; and 6. neither of us will bring a legal action more than two years after the cause of action arose. 1.12 YOUR OTHER RESPONSIBILITIES You agree: 1. not to assign this Agreement or your rights under it, delegate your obligations, or resell any Service without prior written consent. Any attempt to do so is void; 2. to acquire Machines with the intent to use them within your Enterprise and not for reselling, leasing, or transferring to a third party, unless either of the following applies -- a. you are arranging lease-back financing for the Machines, or b. you purchase them without any discount or allowance, and do not remarket them in competition with our authorized remarketers; 3. to allow us to install mandatory engineering changes (such as those required for safety) on a Machine. Any parts we remove become our property; 4. that you are responsible for the results obtained from the Products and Services; 5. to comply with all applicable government export laws and regulations; and 6. to provide us with full, free, and safe access to your facilities for us to fulfill our obligations. If you become aware of any unsafe conditions or hazardous materials to which our personnel would be exposed at any of your facilities, you agree to promptly notify us. Z125-4575-00 1/91 Page 8 of 23 1.13 YOUR ADDITIONAL RIGHTS You may have additional rights under certain laws (such as consumer laws) which do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If these laws apply, our exclusions or limitations may not apply to you. 1.14 IBM BUSINESS PARTNERS We have signed agreements with certain organizations (called "IBM Business Partners") to promote, market, and support some of our Products and Services. We have chosen these organizations because of their skills and experience in a particular field. When you order our Products or Services (marketed to you by these organizations) under this Agreement, we confirm that we are responsible for providing them to you under the warranties and other terms of this Agreement. We are not responsible for 1) the actions of these organizations, 2) any additional obligations they may have to you, or 3) any products or services that they (and not us) may supply to you. 1.15 CHANGES TO THE AGREEMENT TERMS In order to maintain flexibility in our Products, Services, and Options, we may change the terms of this Agreement by giving you three months' written notice. However, these changes are not retroactive. They apply, as of the effective date we specify in the notice, only to new orders (those we receive on or after the date of the notice) and to on-going transactions, such as licenses and Services. Otherwise, for a change to be valid, both of us must sign it. Additional or different terms in any order or written communication from you are void. 1.16 AGREEMENT TERMINATION You may terminate this Agreement on written notice to us following the expiration or termination of all your obligations. Either of us may terminate this Agreement if the other does not comply with any of its terms, provided the one who is not complying is given written notice and reasonable time to comply. Any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assignees. 1.17 GEOGRAPHIC SCOPE All your rights, all our obligations, and all licenses (except for Licensed Internal Code and as specifically granted) are valid only in the United States and Puerto Rico. 1.18 GOVERNING LAW The laws of the State of New York govern this Agreement. Z125-4575-00 1/91 Page 9 of 23 IBM CUSTOMER AGREEMENT PART 2 - WARRANTIES - -------------------------------------------------------------------------------- 2.1 THE IBM WARRANTIES WARRANTY FOR IBM MACHINES For each IBM Machine, we warrant that it: 1. is free from defects in materials and workmanship; and 2. conforms to its Specifications. The warranty period for a Machine is a specified, fixed period. We calculate its expiration from the Machine's Date of Installation. During the warranty period, we provide warranty service under the type of service we designate for the Machine or under the alternative service you select under Maintenance Services. For us to provide warranty service for a feature, conversion or upgrade, we require that the Machine on which it is installed be 1) the designated, serial-numbered Machine and 2) at an engineering-change level compatible with the feature, conversion, or upgrade. During the warranty period, we manage and install engineering changes that apply to the Machine. If a Machine does not function as warranted during the warranty period, we will repair or replace it without charge. If we are unable to do so, you may return it to us and we will refund your money. WARRANTY FOR IBM PROGRAMS For each warranted IBM Program, we warrant that: 1. we have the right to license it; and 2. it conforms to its Specifications. The warranty period for a Program expires when its Program Services are no longer available. During the warranty period, we provide warranty service, without charge, for a Program through Program Services. Program Services are available for a warranted Program for at least one year following its general availability. Therefore, the duration of warranty service depends on when you obtain your license. If, during the first year after you obtain your license, we are unable to make the Program function as warranted, you may return it to us and we will refund your money. WARRANTY FOR IBM SERVICES For each IBM Service, we warrant that we perform it: 1. in a workmanlike manner; and 2. according to its current description contained in this Agreement, an Attachment, or a Transaction Document. Z125-4575-00 1/91 Page 10 of 23 WARRANTY FOR SYSTEMS Where we provide Products to you as a system, we warrant that they are compatible and can operate with one another. WARRANTY FOR INTEGRATED SYSTEMS For each integrated system we deliver to you under a Statement of Work for Systems Integration Services, we warrant that it meets its Completion Criteria as specified in the Statement of Work. The warranty period for an integrated system is a fixed period as specified in the Statement of Work. It begins on the date we deliver the system to you. If an integrated system does not function as warranted during the warranty period, we will correct the deficiency without charge. If we are unable to do so, you may return the system to us and we will refund your money. 2.2 EXTENT OF WARRANTY If a Machine is subject to federal or state consumer warranty laws, our statement of limited warranty included with the Machine applies in place of these Machine warranties. Misuse, accident, modification, unsuitable physical or operating environment, operation in other than the Specified Operating Environment, improper maintenance by you, or failure caused by a product for which we are not responsible may void the warranties. THESE WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 2.3 ITEMS NOT COVERED BY WARRANTY We do not warrant uninterrupted or error-free operation of a Product or Service. We will identify IBM Products and Services that we do not warrant. We provide non-IBM Products and Services on an "AS IS" basis. However, non-IBM manufacturers, suppliers, or publishers may provide their own warranties to you. Z125-4575-00 1/91 Page 11 of 23 IBM CUSTOMER AGREEMENT PART 3 - MACHINES - -------------------------------------------------------------------------------- 3.1 TITLE When we accept your order, we agree to sell you the Machine described in a Transaction Document. We transfer title to you or, if you choose, your lessor when we ship the Machine. However, we reserve a purchase money security interest in the Machine until we receive the amounts due. For a feature, conversion, or upgrade involving the removal of parts which become our property, we reserve the security interest until we receive the amounts due and the removed parts. You agree to sign an appropriate document to permit us to perfect our purchase money security interest. 3.2 RISK OF LOSS We bear the risk of loss for the Machine through its Date of Installation. Thereafter, you assume the risk. 3.3 PRODUCTION STATUS Each Machine is manufactured from new parts, or new serviceable used parts (which perform like new parts). In some cases, the Machine may not be new and may have been previously installed. Regardless of the Machine's production status, our warranty terms apply. 3.4 INSTALLATION For the Machine to function properly, it must be installed in a suitable physical environment. You agree to provide an environment meeting our specified requirements for the Machine. We design our standard installation procedures to ensure that each Machine we install is in good working order and meets its Specifications. We will successfully complete these procedures before we consider the Machine installed. You are responsible for setting up a Customer-set-up Machine (we provide instructions to enable you to do so) and for the installation of a non-IBM Machine. MACHINE FEATURES, CONVERSIONS, AND UPGRADES We sell features, conversions, and upgrades for installation only on designated, serial-numbered Machines. You represent that you have the permission of the owner (if you are not the owner of the Machine) and any lien holders to 1) install features, conversions, and upgrades and 2) transfer removed parts to us. Some of these transactions (called "Net-Priced" transactions) include associated replacement parts. We provide these parts on an exchange basis. All removed parts in a Net-Priced transaction become our property. For a Net-Priced transaction, you agree to allow us to install it within 30 days of its delivery and to recover the removed parts. Otherwise, we may terminate the transaction and you must return the feature, conversion, or upgrade to us at your expense. Z125-4575-00 1/91 Page 12 of 23 3.5 LICENSED INTERNAL CODE Certain Machines we specify (called "Specific Machines") use Licensed Internal Code (called "Code"). We own copyrights in Code. We own all copies of Code, including all copies made from them. We will identify each Specific Machine in a Transaction Document. If you are the rightful possessor of a Specific Machine, we grant you a license to use the Code (or any replacement we provide) on, or in conjunction with, only the Specific Machine, designated by serial number, for which the Code is provided. We license the Code to only one rightful possessor at a time. Under each license, we authorize you to do only the following: 1. execute the Code to enable the Specific Machine to function according to its Specifications; 2. make a backup or archival copy of the Code (unless we make one available for your use), provided you reproduce the copyright notice and any other legend of ownership on the copy. You may use the copy only to replace the original, when necessary; and 3. execute and display the Code as necessary to maintain the Specific Machine. You agree to acquire any replacement for, or additional copy of, Code directly from us in accordance with our standard policies and practices. You also agree to use that Code under these terms. You may transfer possession of the Code to another party only with the transfer of the Specific Machine. If you do so, you must 1) either give the other party all your copies of the Code or destroy them, and 2) give the other party a copy of this page with the Specific Machine's identification information filled in below. We license the other party when it accepts these terms by initial use of the Code. These terms apply to all Code you acquire from any source. Your license terminates when you no longer rightfully possess the Specific Machine. ACTIONS YOU MAY NOT TAKE You agree to use the Code only as authorized above. You may not do, for example, any of the following: 1. otherwise copy, display, transfer, adapt, modify, or distribute the Code (electronically or otherwise), except as we may authorize in the Specific Machine's Specifications or in writing to you; 2. reverse assemble, reverse compile, or otherwise translate the Code; 3. sublicense or assign the license for the Code; or 4. lease the Code or any copy of it. ---------------------------------------------------------------------- INFORMATION FOR SUBSEQUENT LICENSEE OF LICENSED INTERNAL CODE This page is copied from the IBM Customer Agreement and is provided to the subsequent licensee when Code is transferred. The Specific Machine being transferred is identified as: Type/Model____________ Serial Number ________________ The following definitions are provided for the subsequent licensee of the Code: 1. "We" means International Business Machines Corporation (IBM); 2. "Transaction Document" does not apply to you. The above Type/Model and Serial Number identify the Specific Machine to you; 3. "You" means the subsequent licensee of the Code; and 4. "Specifications" means IBM's Official Published Specifications. ---------------------------------------------------------------------- Z125-4575-00 1/91 Page 13 of 23 [IBM LOGO] CUSTOMER AGREEMENT PART 4 - PROGRAMS - -------------------------------------------------------------------------------- 4.1 GRANT OF LICENSE When we accept your order, we grant you a license for the Program. Programs are copyrighted and licensed (not sold). We do not transfer title to Programs to you. 4.2 LICENSE DETAILS Under each license, we authorize you to: 1. use the Program's machine-readable portion on only the Designated Machine, unless -- a. the Designated Machine is inoperable. You may then use the Program on a backup Machine, b. the Designated Machine cannot assemble or compile the Program. You may then assemble or compile it on another Machine, c. we grant an "Installation License." You may then use the Program on any other Machine in the same or adjoining rooms as the Designated Machine, or d. we grant a "Location License." You may then use the Program on any other Machine in the same building with the same mailing address as the Designated Machine. If you change the Designated Machine, you agree to notify us of the change and its date; 2. store the Program's machine-readable portion in, transmit it through, and display it on, Machines associated with the Designated Machine; 3. do the following to support your authorized use as described above -- a. modify the Program's machine-readable instructions or data, or merge them into another Program, and b. make copies of the Program, provided you reproduce the copyright notice and any other legend of ownership on each copy or partial copy; and 4. use any portion of the Program we mark restricted (for example, "Restricted Materials of IBM") only to -- a. resolve problems related to the use of the Program, and b. modify the Program so that it will work together with other products. You agree to comply with any additional terms (for example, a usage restriction) that a Program's Specifications may contain. We provide the Specifications to you with the Program. For an "AS IS" Program, any additional terms are contained in a document called "Notice of Availability." ACTIONS YOU MAY NOT TAKE You agree not to do any of the following: 1. sublicense, assign, or transfer the license for any Program; 2. distribute any Program to any third party; or 3. reverse assemble, reverse compile, or otherwise translate any Program. Z125-4575-00 1/91 Page 14 of 23 4.3 DISTRIBUTED FEATURES Some Programs have features (called "Distributed Features") that are designed to work with those Programs (called "Associated Programs"). After we accept your order for a Distributed Feature, we authorize you to: 1. make a copy of the Distributed Feature and its documentation; and 2. distribute the copy to, and use it on, a machine other than the Designated Machine of the Associated Program. You may use the copy on only one Machine at a time. Persons using a Machine outside of your Enterprise may use the copy only to access the Associated Program. 4.4 ADDITIONAL LICENSE COPIES You may order additional licenses for Programs. If you prefer, for each license we grant, rather than shipping you another copy of the Program, we will authorize you to make an additional copy (called an "Additional License Copy"). For some Programs, you may make a copy under a Distributed System License Option (called a "DSLO" license). We charge less for a DSLO license than we do for the original license (called the "Basic" license). In return for the lesser charge, you agree to do the following while licensed under a DSLO: 1. have a Basic license for the Program; 2. provide problem documentation and receive Program Services (if any) only through the location of the Basic license; and 3. distribute to, and install on, the DSLO's Designated Machine, any release, correction, or bypass that we provide for the Basic license. 4.5 PROGRAM TESTING We provide a testing period for certain Programs to help you evaluate if they meet your needs. The testing period for a Program starts 1) 10 days after we ship it or 2) on the day we authorize you to make an Additional License Copy. We will inform you of the duration of the Program's testing period. For the first order for each Distributed Feature, the testing period is the same as its Associated Program. We do not provide a testing period for a Program under a DSLO license. 4.6 PROGRAM PACKAGES We provide certain Programs together with their own license agreements. These Programs (called "Program Packages") are licensed under the terms of the agreements provided with them. This Agreement's patent and copyright terms apply to IBM Program Packages. For a Program Package, we may specify that: 1. Additional License Copies apply. If so, these copies are subject to the terms of the Program Package's agreement, except that you may not transfer them; and 2. a testing period applies. If so, and you return the Program Package to us before the end of the testing period, we will refund your money. If a Program Package has Distributed Features, this Agreement's terms regarding Distributed Features apply. Z125-4575-00 1/91 Page 15 of 23 4.7 PROGRAM PROTECTION For each Program, you agree to: 1. if it is a data base, allow access to it only to your employees; 2. ensure that anyone who uses it (accessed either locally or remotely) does so only for your authorized use and complies with our terms regarding Programs; and 3. maintain records of all copies. 4.8 PROGRAM SERVICES We provide Program Services for warranted Programs and for selected other Programs. If we can reproduce your reported problem in the Specified Operating Environment, we will issue defect correction information, a restriction, or a bypass. We provide Program Services for only the unmodified portion of a current release of a Program. We provide Program Services 1) on an on-going basis (with at least six months' written notice before we terminate services for a Program), 2) until the date we specify, or 3) for a period we specify. 4.9 VARIABLE-CHARGE PROGRAMS We may place a Machine in a Machine group. The charges for some Program licenses depend on the group of the Designated Machine. We call these Programs "Variable-Charge" Programs. Variable charges include graduated charges and processor-based charges. We will specify the group for a Machine and will inform you of any changes. For these licenses, the following apply: 1. if you change (including upgrade or downgrade) a Designated Machine to a Machine in another group, you may incur a group-upgrade charge or a changed recurring charge. You agree to promptly notify us of the date of such a change; 2. if we reassign a Designated Machine to a Machine group with different charges, Program licenses with one-time charges due or paid before the reassignment are not affected. Otherwise, our price change terms apply; and 3. if a change or reassignment results in a lower charge, we do not give credits or refunds for one-time charges already due or paid. 4.10 LICENSE TERMINATION You may terminate the license for a Program on one month's written notice or at any time during the Program's testing period. For some Programs, if you terminate the license and replace that Program with another we specify, we only require you to pay an upgrade charge. We may terminate any license we grant in this Part if you do not meet your obligations regarding Programs. You agree to destroy all copies of the Program within three months after license termination. However, you may keep a copy in your archives. Z125-4575-00 1/91 Page 16 of 23 [IBM LOGO] CUSTOMER AGREEMENT PART 5 - SERVICES - -------------------------------------------------------------------------------- 5.1 MAINTENANCE SERVICES You may select the type of service from those available for the Machine. When we accept your order, we agree to service the Machine described in a Transaction Document. Based on the type of service, we will restore the Machine to good working order or exchange it. We may also perform preventive maintenance, including lubrication, adjustments, and replacement of parts. We manage and install engineering changes that apply to the Machine. We will inform you of the date on which Maintenance Services begin. We may inspect the Machine within one month following that date. If the Machine is not in an acceptable condition for service, you may 1) have us restore it for a charge or 2) withdraw your request for Maintenance Services and we will refund any amounts you have paid to us for its service. For a Machine under a usage plan, you agree to provide us with the meter reading as of the last working day of the period that the minimum maintenance charge covers. We provide Maintenance Services for selected non-IBM Machines only when they are connected to certain IBM Machines. When a type of service involves the exchange of a non-IBM Machine, the replacement may not be identical. Maintenance Services do not cover accessories and certain parts, such as frames and covers. In addition, Maintenance Services do not cover service of a Machine damaged by misuse, accident, modification, unsuitable physical or operating environment, improper maintenance by you, or failure caused by a product for which we are not responsible. ALTERNATIVE SERVICE DURING WARRANTY For certain Machines, at any time during the warranty period, you may select a different type of service from that which we designate for the Machine. For example, if you prefer On-site service to Carry-in, it may be available. We will inform you of the available types of service for the Machine and the available alternative service periods. We provide the alternative type of service for an additional charge. When the alternative service ends, we will continue Maintenance Services for the Machine under the same type of service you selected. MAINTENANCE SERVICES TERMINATION You may terminate Maintenance Services for a Machine on one month's written notice to us under any of the following circumstances: 1. after it has been under Maintenance Services for at least six months; 2. if you remove it from productive use within your Enterprise; 3. as of the effective date of an increase in Maintenance Services charges; or 4. if you terminate coverage for a Maintenance Service Option under our terms for 1) removal of Machine type from eligibility or 2) increased total adjusted charges for Maintenance Services. We may terminate Maintenance Services for a Machine on three months' written notice, provided it has been under Maintenance Services for at least one year. Either of us may terminate service for any Machine if the other does not meet its obligations concerning Maintenance Services. On termination of service for a Machine, we will give you any applicable credit. Z125-4575-00 1/91 Page 17 of 23 5.2 CONTINUING SUPPORT SERVICES We provide Continuing Support Services on a contract-period basis to assist you in such areas as improving the availability of your systems and improving your productivity. We provide the terms specific to a Service in an Attachment. If we make a change to the terms of an Attachment that 1) affects your current contract period and 2) you consider unfavorable, on your request, we will defer it until the end of that contract period. We will specify the eligible Products, applicable prerequisites and minimum commitments, exit-option percents, and available contract periods for a Service. We will also inform you periodically of any changes. These changes apply only to orders that we confirm on or after the effective date of the change. When we accept your order, we will confirm the specific details of the Service in a Transaction Document. You may select a start date for the Service that is within three months following the effective date we specify in the Transaction Document. During a contract period, we may increase charges. An increase becomes effective on the next anniversary of the start of a contract period, following the effective date we specify in the notice. When an increase results in a change to your total monthly charge for a Service of more than the exit-option percent we specify, you may terminate that Service on the effective date of the increase. Adjustment or termination charges do not apply in this case. You may request a change to the Services you have selected on one month's notice. If we agree, we will confirm the change to you with applicable adjustments in charges. Each of us agrees to notify the other (before your current contract period expires) if they do not intend to renew. CONTINUING SUPPORT SERVICES TERMINATION You may terminate a Continuing Support Service by providing us one month's written notice upon fulfillment of any minimum commitments. The termination of Services with contract periods longer than one year results in adjustment charges. In this case, you agree to pay the lesser of: 1. the difference between the total charges you paid through the termination date and those you would have paid for the shorter contract period; 2. the monthly charge multiplied by the applicable adjustment charge factor; or 3. the total charges remaining to complete the contract period. 5.3 PROJECT SUPPORT SERVICES The Project Support Services we make available to you include providing general assistance on a technical task (such as writing programs), providing consulting services, acting as a prime contractor to deliver an information handling function, and providing Systems Integration Services. When we accept your order, we agree to provide the Services described in the Statement of Work. We require a separate Statement of Work, signed by both of us, for each project. We manage the project unless the Statement of Work specifies that you manage it. If you are responsible, then we only provide Services to assist you. Z125-4575-00 1/91 Page 18 of 23 The Statement of Work includes: 1. our respective responsibilities; 2. an estimated schedule which we provide for planning purposes; 3. the specific conditions, if any, (called the "Completion Criteria") that we are required to meet to fullfill our obligations; and 4. applicable charges and any other terms. Each of us agrees to make reasonable efforts to carry out our respective responsibilities according to the estimated schedule. However, if Completion Criteria are applicable, then the project is complete when we meet those criteria. CHANGES TO THE STATEMENT OF WORK When both of us agree to change a Statement of Work, we will prepare a written description of the change (called a "Change Authorization"). The Change Authorization becomes effective when we provide it to you. It need not be signed, unless either of us requests signature. Any change in the Statement of Work may affect the charges, estimated schedule, or other terms. Depending on the scope of the requested change, we may charge you for our effort to analyze it. We will then give you a written estimate of the charges for the analysis. We will perform the analysis only on your written authorization. PERSONNEL Each of us will authorize a person to represent us during the project. Each will 1) address all notices to the other's representative and 2) promptly notify the other in writing if this person is replaced. Each of us is responsible for supervising and controlling only our own personnel. We will try to honor your requests regarding the assignment of our personnel to your project. However, we reserve the right to determine the assignment of our personnel. OWNERSHIP AND LICENSE During a project, we may deliver to you work product (called "Materials"), such as programs, program listings, programming tools, documentation, reports, and drawings. The Statement of Work will specify if Materials are applicable to the project. It will identify them as being "Type I Materials," "Type II Materials," or otherwise as we both agree. Type I Materials are those, created during the project, in which you will have all right, title, and interest (including ownership of copyright). We will retain one copy of the Materials. You grant us 1) an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, distribute (internally and externally) copies of, and prepare derivative works based on Type I Materials and 2) the right to authorize others to do any of the former. Type II Materials are those in which we or third parties have all right, title, and interest (including ownership of copyright). We will deliver one copy of the Materials to you. We grant you an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, and distribute (internally only) copies of Type II Materials. Each of us agrees to reproduce the copyright notice and any other legend of ownership on any copies made under the licenses granted in this Part. Z125-4575-00 1/91 Page 19 of 23 PROJECT SUPPORT SERVICES TERMINATION You may terminate a project on written notice to us. We may terminate a project if you do not meet your obligations concerning it. Upon termination, we will stop our work in an orderly manner as soon as practical. You agree to pay us for all Services we provide and any Materials we deliver though the project's termination. Payment includes any charges we incur in terminating subcontracts. ADDITIONAL TERMS FOR SYSTEMS INTEGRATION SERVICES When the Statement of Work specifies Systems Integration Services, we provide you with an integrated system that may consist of a combination of Products, Services, Materials, and other items. We design, develop, deliver, install, and support the system as described in the Statement of Work. The Statement of Work contains the Completion Criteria. We will inform you when we meet each of them. You then have 10 days to inform us if you believe that we have not met the Completion Criteria. 5.4 IBM INFORMATION NETWORK AND OTHER SERVICES IBM INFORMATION NETWORK SERVICES The IBM Information Network (called "IBM IN") Services we make available to you include access to, and use of, IBM IN machines, programs, networking facilities, and associated communications and support services. We provide the terms specific to IBM IN Services in an Attachment. ON-LINE SERVICES We make on-line Services available to you, including access to certain of our information data bases. We provide these Services to you through a connection to IBM IN. We provide the terms specific to an on-line Service in an Attachment. We may specify that you accept the terms of IBM IN Services as a prerequisite to an on-line Service. OTHER SERVICES We make other Services available to you that are not associated with the Services described in this Part. For these Services, we provide all the additional terms in Attachments. Z125-4575-00 1/91 Page 20 of 23 IBM CUSTOMER AGREEMENT PART 6 - OPTIONS - -------------------------------------------------------------------------------- 6.1 VOLUME DISCOUNTS We provide discounts for certain Products based on the volume of business you agree to do with us (called your "Commitment") during a contract period. You may make a Commitment based on either Product quantity or revenue. Revenue for a Product is its single-unit charge, less any discounts or allowances. We will specify the eligible Products, their categories, available contract periods, upper-limit percents, and adjustment charge factors. We will inform you periodically of any changes. An unfavorable change (and all changes related to it) applies to an existing Commitment only if you accept it in writing. Related changes become effective at the same time. We will also inform you if we withdraw eligible Products from marketing. We then accept orders you place for these Products subject to their availability. Unless we specify otherwise, we do not discount Program upgrades, Program features ordered separately from Programs, accessories, or field-installed Machine features, conversions, or upgrades. END USER CERTIFICATION You agree to acquire the Products for use only within your Enterprise and not for remarketing. We call this representation "End User Certification." We provide the discounts to you based on End User Certification. HOW YOU MAY OBTAIN THE DISCOUNTS If you wish to obtain the discounts, you agree to sign an Addendum specifying your Commitment, and selected contract-period start date and duration. During the contract period, you may increase your Commitment or extend the contract period (subject to our approval) by signing a revised Addendum. If you extend, you agree to increase your Commitment so that the new discount precent is at lease equal to your current discount percent. Any increased discount percent applies to all eligible Products for which Date of Installation is on or after the date we receive your signed Addendum. HOW WE APPLY THE DISCOUNTS We apply the discount to the single-unit charges of eligible Products that you acquire from us during the contract period. The charges are the lesser of 1) those generally available at the time of acquisition or 2) the announced charges in effect on the date we receive the initial Addendum, subject to our price change terms described below. We count specified Products that you acquire from our authorized remarketers when we receive the require certification. Adjustment charges do not apply to these Products. We may place some Products in a dependent category with an associated controlling category. To determine the discount percent applicable to either category, we count quantities or revenue for only those Products in the controlling category. PRICE CHANGES During a contract period, we may increase or decrease charges. We apply your discount to the new charges as follows: 1. we establish a maximum charge (called an "Upper Limit") for each Product in a committed category for each year of a contract period. We determine the Upper Limit by increasing the announced charge in effect, as of the date we receive the initial Addendum, Z125-4575-00 1/91 Page 21 of 23 by a certain amount. We calculate this amount by multiplying that charge by the upper-limit percent we specify at the time of your Commitment; 2. for an increase, we apply the discount to either the increased charge or the Upper Limit, whichever is less; and 3. for a decrease, we apply the discount to the decreased charge, provided you accept any related changes in terms we may have made after your Commitment. Otherwise, you may select 1) the decreased charge without discount or 2) the discounted charge available to you before the decrease. ADJUSTMENT CHARGES If you have not met your Commitment by the end of the contract period, you agree to pay adjustment charges. The adjustment charge for each Product is either: 1. the difference between the discounted amount we charged you and the discounted amount which you were entitled to receive; or 2. the result of multiplying the adjustment charge factor by the number of discount percentage points between what we gave you and what you were entitled to receive. We will inform you which method we use for a particular Product. For a revenue-based Commitment, the total of the adjustment charges will not be more than the difference between your Commitment and the actual revenue you attained. INTERNATIONAL DISCOUNTS For our international customers, we provide volume discounts based on worldwide Commitments. To allow you to participate in such a Commitment, this Agreement may be modified by a signed international agreement. You, your international enterprise coordinator, and we will sign the relevant Transaction Document, unless the coordinator exempts you from signing. That Transaction Document becomes part of this Agreement. 6.2 MAINTENANCE SERVICE OPTIONS We provide Maintenance Service Options for certain Machines. If you wish to obtain the benefit of lower charges available under an Option, you agree to assume additional, specified responsibilities. We provide the terms specific to an Option in an Attachment. We will specify the eligible Machine types, eligible types of service, available disount percents and contract periods, exit-option percents, and notice requirements for termination of each contract period, as applicable to each Option. We will also inform you periodically of any changes. We will defer an unfavorable change (and all changes related to it) until the end of your contract period, if you request it in writing before the effective date of the change. Related changes become effective at the same time. 6.3 PAYMENT OPTIONS EXTENDED MAINTENANCE OPTION You may select the Extended Maintenance Option (called the "EMO") for certain Machines. Under this Option, we adjust your Maintenance Services charges based on your prepayment of those charges during an available contract period. We will specify the eligible Machine types and available contract periods. We will also inform you periodically of any changes. A change applies only to Machines you add under this Option on or after the effective date of the change. 2125-4575-00 1/91 Page 22 of 23 The Transaction Document will list the Machines covered and the dates of coverage for the contract period you have selected for each Machine. You may select EMO in addition to other Maintenance Service Options. We then adjust the machine's EMO charge based on the applicable discounts which you are entitled to receive under those Options. While under this Option, you agree to maintain coverage under all the Services and other Options on which we base the Machine's EMO charge. For a machine not yet installed or set up, coverage starts on its Date of Installation. For an installed Machine, coverage starts on a mutually-agreed-to date. If applicable, the contract period includes the machine's warranty period. We calculate the EMO charge for a Machine using the announced Maintenance Services charges and any applicable discounts in effect for the Machine when coverage begins. EMO charges are not refundable after coverage has started for the Machine. Both of us agree that if a feature, conversion, or upgrade is installed on a machine while it is under this Option 1) an additional charge may apply and 2) the feature, conversion, or upgrade is subject to the remaining portion of the contract period. If we increase the EMO charge, the increase does not apply to a Machine not yet installed or set up, unless we give you at least three months' notice before its scheduled date of shipment. If we decrease the EMO charge before coverage has begun for a Machine, you receive the benefit of the decrease. We will give you at least three months' notice of a machine's eligibility for renewal. At the end of your contract period, we will continue Maintenance Services for the Machine (if available), unless you request us not to do so. If you transfer coverage for a Machine to a third party, you agree to inform that party 1) of the applicable terms of this Agreement and 2) that it must notify us in writing of the transfer, the location of the Machine, and acceptance of coverage. If that party does not wish to maintain coverage under all the Services and other Options on which we base the Machine's EMO charge, you agree to pay the transfer charge that we specify. INVOICING OPTIONS We make Invoicing Options available to you for certain Products and Services to provide flexibility in payment terms. We provide the terms specific to an Option in an Attachment. We will specify the eligible Products, Services, and charges, and the available contract periods, invoicing schedules, and environments which may be covered by an Option. We will also inform you periodically of any changes. Together, we will estimate your requirements for the applicable Products and Services. We use this estimate to determine the total charges that we will invoice, distributed according to the schedule you select. These invoiced amounts replace the applicable charges otherwise due. Depending on the Option, the total charges may be subject to adjustments. The Transaction Document, signed by both of us, will list the date from which we provide the selected Option to you and its other details. 6.4 SPECIAL OPTIONS In order to meet your specific requirements, we may provide Special Options to you. Under these Options, we are willing to provide special terms and tailor our processes for you. We will describe our mutual commitments under a Special Option in a Transaction Document. Z125-4575-00 1/91 Page 23 of 23 EXHIBIT G BASE PERCENTAGE FOR COMMISSIONS FOR GROUP COUNTRIES IN GROUP COUNTRIES IN GROUP - ----- ------------------ ------------------ - ---------------------------------------------------------------------------- CANADA [*] - ------ Canada EMEA-A [*] - ------ United Kingdom Sweden Norway France Finland Denmark Spain Germany EMEA-B TO BE DETERMINED - ------ ---------------- Italy Hungary Russia Poland ASIA/PACIFIC-A [*] ([*] if no customer set up) - -------------- Hong Kong Taiwan Singapore Thailand Turkey New Zealand Australia Malaysia Japan ASIA/PACIFIC-B TO BE DETERMINED - -------------- ---------------- South Korea * For Sales Per Project up to [*], Percentage is [*]; for amounts between US$1-2 million, Percentage is [*]; for amounts over [*], Percentage is [*] If Invoiced Amounts reach the upper limit of the range of Base Percentage, the Commissions will be calculated by applying the higher percentage to the portion of the Invoiced Amount below such limit and the lower percentage of the balance. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 24 - TASKS FOR ELIGIBILITY* FOR COMMISSIONS WITH RESPECT TO EACH COUNTRY LISTED IN THIS EXHIBIT G: CableData (or its subsidiaries or in-country distributors) shall: A. GENERAL ACTIVITIES: 1. promote customer acquisition of CableData/IBM products and services; 2. monitor worldwide cable television market activity in the country; 3. develop a market and product strategy for CableData DDP/I products used with IBM products and services in the country; 4. provide DDP/I advertising, sales brochures and participate in cable television trade shows in the relevant country; 5. set up hardware and install software Eligible Products** (perform the work necessary for installation of Commissionable Products such that installation can be achieved in accordance with the delivery schedule); 6. provide marketing education on DDP/I products to its in-country representatives and in-country IBM personnel; 7. provide, subject to availability of personnel, marketing assistance to IBM for DDP/I cable television accounts (for countries in EMEA-A group only); 8. identify cable television market opportunity(ies) in the relevant country(ies); B. ACCOUNT-SPECIFIC ACTIVITIES: 1. provide, as CableData deems appropriate, relevant marketing activity, such as-- - responding to issued RFP/RFB/RFQ for DDP/I products used with IBM products; - monitoring and follow-up on sales leads; - actively participating in initial and follow-on DDP/I sales calls; - handling all contract negotiations for DDP/I products; - monitoring country and account activity for customer requirements for DDP/I; - advising IBM of customer's requirements for additional IBM products as CableData becomes aware of such requirements; and * IBM-Sacramento (not IBM Subsidiary within the country) is responsible for determining CableData's compliance with the tasks to maintain eligibility for payment of Commission. ** This task not required for Commission in Canada - 25 - IBM [LOGO] EXHIBIT H AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION - ------------------------------------------------------------------------------- The Customer (you) and International Business Machines Corporation (IBM) agree that the following terms and conditions apply when one of the parties (Discloser) discloses Confidential Information (Information) to the other (Recipient) under this Agreement. You and IBM agree that our mutual objective under this Agreement is to provide appropriate protection for information while maintaining our ability to conduct our respective business activities. 1. ASSOCIATED CONTRACT DOCUMENTS Each time one of the parties wishes to disclose specific information to the other, the Discloser will issue a Supplement to this Agreement (Supplement) before disclosure. The Supplement will identify the Recipient's person designated to be its Point of Contact for the disclosure and will contain the Initial and Final Disclosure Dates. If either of these dates is omitted from the Supplement, such date will be deemed to be the actual date of disclosure. Information becomes subject to this Agreement on the Initial Disclosure Date. The Supplement will also contain a nonconfidential description of the specific information to be disclosed and any additional terms and conditions for that Information. The only time you and IBM are required to sign the Supplement is when it contains additional terms and conditions. When signatures are not required, the Recipient indicates acceptance of Information under the terms and conditions of this Agreement by participating in the disclosure, after receipt of the Supplement. 2. DISCLOSURE The Discloser and the Recipient's Point of Contact will coordinate and control the disclosure. Information will be disclosed either: a) in writing; b) by delivery of items; c) by initiation of access to Information, such as may be contained in a data base; or d) by oral and/or visual presentation. Information should be marked with a restrictive legend of the Discloser. If Information is not marked with such legend or is disclosed orally, 1) the Information will be identified as confidential at the time of disclosure and 2) the Discloser will promptly provide the Recipient with written confirmation. - ------------------------------------------------------------------------------- PAGE 2 IS ALSO PART OF THIS AGREEMENT. The parties acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms and conditions. Further, they agree that the complete and exclusive statement of the agreement between the parties relating to this subject shall consist of this Agreement and its Supplements. This statement of the agreement supersedes all proposals or other prior agreements, oral or written, and all other communications between the parties relating to this subject. Any reproduction of this Agreement by reliable means will be considered an original of this document. International Business Machines Customer name: Corporation U.S. Computer Services Armonk, New York 10504 d/b/a CableData By By ----------------------------------- ----------------------------------- Authorized signature Authorized signature Name (type or print): Name (type or print): Date: January 19, 1992 Date: January 19, 1992 Agreement number: Customer number: Strategic Alliance Agreement IBM Branch Office number: Customer address: 2969 Prospect Park Drive IBM Branch Office address: Rancho Cordova, CA 95670 520 Capitol Mall Sacramento, CA 95814 Page 1 of 2 3. OBLIGATION OF CONFIDENTIALITY The Recipient will use the same care and discretion to avoid disclosure, publication or dissemination of information as its uses with its own similar information that it does not wish to disclose, publish or disseminate. The Recipient may use Information for any purpose which does not violate such obligation of confidentiality. The Recipient may disclose Information to: a) its employees and employees of its parent and subsidiary companies who have a need to know; and b) any other party with the Discloser's prior written consent. Before disclosure to any of the above parties, the Recipient will have a written agreement with such party sufficient to require that party to treat Information in accordance with this Agreement. The Recipient may disclose Information to the extent required by law. However, the Recipient must give the Discloser prompt notice and make a reasonable effort to obtain a protective order. 4. CONFIDENTIALITY PERIOD Disclosed Information continues to be subject to this Agreement for two years following the Final Disclosure Date. 5. EXCEPTIONS No obligation of confidentiality applies to any Information that the Recipient: a) already possesses without obligation of confidentiality; b) develops independently; or c) rightfully receives without obligation of confidentiality from a third party. No obligation of confidentiality applies to any Information that is, or becomes, publicly available without breach of this Agreement. In addition, no obligation of confidentiality applies to any ideas, concepts, know-how, or techniques contained in Information that are related to the Recipient's business activities (Knowledge). However, this does not give the Recipient the right to disclose, except as set forth elsewhere in this Agreement, 1) the source of Knowledge, 2) any financial, statistical or personnel data or 3) the business plans of the Discloser. Neither this Agreement nor any disclosure of Information grants the Recipient any license under any patents or copyrights. 6. DISCLAIMERS THE DISCLOSER PROVIDES INFORMATION ON AN "AS IS" BASIS. The Discloser will not be liable for any damages arising out of use of Information. Disclosure of Information containing business plans is for planning purposes only. The Discloser may change or cancel its plans at any time. Therefore, use of such information is at the Recipient's own risk. 7. GENERAL This Agreement does not require either party to disclose or to receive Information. Neither party may assign its rights or delegate its duties or obligations under this Agreement without prior written consent. Any attempt to do so is void. The Recipient will comply with all applicable United States and foreign export laws and regulations. IBM may modify the terms and conditions of this Agreement by giving you three months' written notice. Any such modification will apply only to Information for which the Initial Disclosure Date is on or after the effective date specified in the notice. Otherwise, only a written agreement signed by you and IBM can modify this Agreement. Either party may terminate this Agreement by providing one month's written notice to the other. Any provisions of this Agreement which by their nature extend beyond its termination will remain in effect beyond such termination until fulfilled and will apply to either party's successors and assigns. If there is a conflict between the terms and conditions of this Agreement and a Supplement, those of the Supplement prevail. Except as modified by a Supplement, the terms and conditions of this Agreement remain in full force and effect. The laws of the State of New York govern this Agreement. Page 2 of 2 IBM [LOGO] SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION - ------------------------------------------------------------------------------- Customer name and address: Reference Agreement number: U.S. Computer Services Strategic Alliance Agreement d/b/a CableData 2969 Prospect Park Drive Supplement number: Rancho Cordova, CA 95670 IBM Branch Office address: IBM Branch Office number: 520 Capitol Mall Sacramento, CA 95814 Customer number: - ------------------------------------------------------------------------------- Discloser: Name and Address of Recipient's Point of Contact: IBM ------- You X ------- Initial Disclosure Final Disclosure Date: [*] Date: Termination of Strategic ------------- Alliance Agreement ------------------------------ USE THE ACTUAL DATE OF DISCLOSURE OR USE THE DATE ON WHICH THE DISCLOSURE THE DATE ON WHICH ACCESS TO INFORMATION, IS TO BE COMPLETED OR THE DATE ON SUCH AS MAY BE CONTAINED IN A DATA BASE, WHICH ACCESS TO INFORMATION WILL BE IS TO BE INITIATED. INFORMATION BECOMES TERMINATED. THE CONFIDENTIALITY SUBJECT TO THIS SUPPLEMENT AND THE PERIOD FOR INFORMATION EXTENDS FROM REFERENCED AGREEMENT ON THIS DATE. THIS DATE. NOTE: BOTH DATES MUST BE PROVIDED, EVEN IF THEY ARE THE SAME. - ------------------------------------------------------------------------------- REMINDER: THE DISCLOSER MUST PROVIDE THE RECIPIENT WRITTEN CONFIRMATION PROMPTLY AFTER A DISCLOSURE THAT 1) IS AN ORAL PRESENTATION, 2) CONSISTS OF THE DELIVERY OF ITEMS THAT ARE NOT MARKED WITH A RESTRICTIVE LEGEND OF THE DISCLOSER OR 3) CONSISTS OF ACCESS TO INFORMATION THAT IS NOT MARKED WITH A RESTRICTIVE LEGEND OF THE DISCLOSER. PAGE 2 AND 1 CONTINUATION PAGE(S) ARE ALSO PART OF THIS SUPPLEMENT. The parties acknowledge that they have read this Supplement, understand it, and agree to be bound by its terms and conditions. Further, they agree that this Supplement and the referenced Agreement are the complete and exclusive statement of the agreement between the parties, superseding all proposals or other prior agreements, oral or written, and all communications between the parties relating to this subject. Any reproduction of this Supplement by reliable means will be considered an original of this document. The only time you and IBM are required to sign this Supplement is when it contains additional terms and conditions. International Business Machines Customer Name: Corporation U.S. Computer Services Armonk, New York 10504 d/b/a CableData By By ------------------------------------ ------------------------------------ Authorized Signature Authorized Signature Name (type or print): Name (type or print): Date: January 10, 1992 Date: January 10, 1992 *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 1 IBM [LOGO] SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION - -------------------------------------------------------------------------------- REFERENCE AGREEMENT NUMBER: SUPPLEMENT NUMBER: Strategic Alliance Agreement 1 - -------------------------------------------------------------------------------- CONFIDENTIAL INFORMATION: THE FOLLOWING IS A NONCONFIDENTIAL DESCRIPTION OF INFORMATION THE DISCLOSER WISHES TO DISCLOSE. U.S. Computer Services' DDP/SQL and DDP/I source code, object code, documentation, anticipated strategic business plans, anticipated targeted market countries ADDITIONAL TERMS AND CONDITIONS, IF ANY: All of the above shall be held in confidence (except where information is subject to an Exception as set forth in Paragraph 4 of the Agreement for Exchange of Confidential Information) whether or not they are marked with a restrictive legend. The Recipient may use information solely for the purpose of fulfilling its obligations under the Strategic Business Agreement between IBM and Customer dated as of January 18, 1992. - -------------------------------------------------------------------------------- / / Check this box if there are continuation pages, including attached additional terms and conditions. Also, enter the number of "Continuation Page(s)" on page 1 of this Supplement. - -------------------------------------------------------------------------------- Z125-4323-00 3/90 Page 2 ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT THIS ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT (the "Addendum") is made and entered into as of June 4, 1993 by and between U.S. COMPUTER SERVICES, a California corporation doing business as CableData and having its principal place of business at 2969 Prospect Park Drive, Rancho Cordova, California 95670-6006 ("CableData"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation having a place of business at 400 Capitol Mall, Sacramento, California 95814 ("IBM"). RECITALS A. CableData and IBM are the parties to that certain Strategic Business Agreement dated as of January 19, 1992 (the "Strategic Business Agreement") pursuant to which they were to cooperate in the development by CableData of certain revised versions of CableData's products that were to be compatible with designated IBM operating systems and hardware, including IBM's UNIX-based and POSIX-based AIX operating systems, and were to be primarily suitable for use by customers outside the U.S. It is CableData's intent to limit the number of platforms for its products. B. CableData and IBM now wish to modify the Strategic Business Agreement in order to provide for the development by CableData of certain further revised versions of CableData's products that will be compatible with IBM RISC System/6000 and IBM's UNIX-based and POSIX-based AIX operating systems ("Designated IBM Products"), but which are suitable for use by domestic customers within the U.S. NOW THEREFORE, in consideration of these premises and of the mutual promises and conditions contained in this Addendum, IBM and CableData hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 DEFINITIONS. Except as otherwise provided herein, all capitalized terms used in this Addendum shall have the meaning given to them in the Strategic Business Agreement. Notwithstanding the foregoing, when used in this Addendum, the following terms shall have the meanings provided below: - 1 - (a) "DDP/SQL" means Release 2.7 or lower number release of CableData's existing proprietary cable television subscriber management applications software. ARTICLE II DEVELOPMENT OF DOMESTIC DDP/SQL Section 2.1 MUTUAL COOPERATION. The parties' respective obligations under this Addendum shall commence on the date first written above. Each party shall use all reasonable efforts to facilitate the completion of the development by CableData of a version of DDP/SQL that will be compatible with Designated IBM operating systems and hardware, including IBM's UNIX-based and POSIX-based AIX operating systems, and will be primarily suitable for use by CableData customers within the U.S. Specifically, the parties wish to permit CableData to develop a set of CableData-owned system libraries and a separate CableData-owned application software product (DDP/SQL) which can be operated on Designated IBM Products and which is appropriate for CableData customers in the U.S. It is also the parties' intention that when DDP/SQL and Designated IBM Products are configured in a single system, that system will perform within agreed and commercially reasonable specifications and parameters. If the parties disagree on a technical issue during the development process, or if, when DDP/SQL and any Designated IBM Products are configured in a single system, that system does not perform within agreed and commercially reasonable specifications and parameters, then the parties shall confer in good faith concerning such issue or failure to perform, and shall negotiate in good faith to agree on joint action to resolve such issue or failure. Such joint action may include additional development efforts on terms and conditions acceptable to the parties, in their discretion. Each party shall further use all reasonable efforts to cooperate in good faith with the other party to achieve the [*] objectives described herein. Section 2.2 PORTING OF SYSTEM LIBRARIES. (a) Both parties shall cooperate as specified in this Addendum and in the Strategic Business Agreement to [*]. In such [*] work, the parties will also maintain [*] Libraries with domestic standards. For the term of this Addendum, the parties agree to cooperate in future modification of the [*]. (The parties understand that such cooperation for future matters does not include [*].) It is the intent of the parties that such [*] will work [*] capabilities of [*]. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 2 - (b) CableData shall [*] as described in Section 2.2(a) of this Addendum. During the [*] process and thereafter to the extent reasonably necessary, IBM shall in its sole discretion provide the services of an adequate number of [*] to assist CableData [*]. All such [*] shall have appropriate skill levels with [*] experience on [*] and experience in [*] using [*] for such purposes. The assignment of such engineers shall be to consult with CableData on [*] issues. These activities shall be done under the guidance and acceptance of CableData. Upon mutual agreement of the parties, some or all of such [*] shall be assigned to work at [*] during a portion of the [*] phase. (c) IBM shall provide technical information with respect to [*], including all [*] call information made publicly available. Section 2.3 [*]. CableData shall use reasonable efforts to [*] DDP/SQL, including necessary modifications to [*] and [*] DDP/SQL, to be capable of [*] to be capable of operating [*] and the [*] standards using an [*]. Section 2.4 JOINT PLANNING COMMITTEE. The parties shall consult with other on at least a quarterly basis regarding progress [*] DDP/SQL in accordance with an agree-to [*] schedule prepared by CableData. To facilitate such consultations and to support their mutual efforts under this Agreement, the parties shall establish a Joint Planning Committee composed of representatives designated by each party. This body shall meet at least once per calendar quarter during the term of this Agreement, and more frequently as deemed necessary by the parties. The Joint Planning Committee shall consult on the [*] DDP/SQL [*] schedules, or other aspects of cooperation between the parties as contemplated by this Agreement. Among the representatives to the Joint Planning Committee designated by each party, one (1) person shall be a [*] to speak for that party with respect to [*] matters. The designated technical representative for CableData shall be its [*]. IBM shall notify CableData in writing of the name of the designated technical representative for IBM within fourteen (14) days following the execution of this Addendum by both parties. The parties' designated representatives to the Joint Planning Committee may be replaced at any time, by written notice of the designating party to the other *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 3 - party. The Joint Planning Committee shall meet in locations and at times reasonably acceptable to both parties. Each party shall be responsible for its own costs and expenses in attending and participating in meetings of the Joint Planning Committee. ARTICLE III FINANCIAL MATTERS Section 3.1 [*]. To assist CableData in financing a portion of the costs and expenses to be incurred by CableData [*] DDP/SQL as contemplated by this Addendum, [*]: (a) IBM shall pay CableData an initial installment of [*] on July 1, 1993. (b) IBM shall pay CableData [*] each, on the first business day of each calendar quarter, commencing on October 1, 1993, provided, however, that IBM will continue to pay such installments only so long as the [*] referenced in Section 2.4 is substantially being met. (c) In the event that the parties do not enter into the further business relationship contemplated in Section 4.1 by January 1, 1994, then further installment payments shall be held in abeyance until such business relationship is entered into. If no such relationship is entered into by February 1, 1994, CableData shall repay to IBM installments previously received under this Addendum and shall not be entitled to the remaining installments, if any. (d) In the event that CableData does not make an Initial Public Disclosure (as defined Section 4.5(b)) by January 1, 1994, then further installment payments shall be held in abeyance until such Initial Public Disclosure is made. If such Initial Public Disclosure is not made by February 1, 1994, CableData shall repay to IBM installments previously received under this Addendum and shall not be entitled to the remaining installments, if any. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 4 - Section 3.2 (a) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THE STRATEGIC BUSINESS AGREEMENT. The parties acknowledge that, for purposes of Section 3.2 of the Strategic Business Agreement, this Addendum constitutes an agreement regarding CableData marketing in the United States of a CableData subscriber management software product comparable in function to DDP/I on an IBM platform and that, accordingly, pursuant to Section 3.2(a) of the Strategic Business Agreement, all payments that would otherwise be due under Section 3.2 of the Strategic Business Agreement after the date of this Addendum are hereby suspended. In accordance with Section 3.2 of the Strategic Business Agreement as now modified, such payments shall continue to accrue (up to a maximum of [*] less payments previously made under such Section 3.2 to IBM) until the earlier of (i) the date on which IBM has invoiced an aggregate of [*] of equipment sold (excluding sales by IBM to IBM's leasing subsidiary and excluding sales of IBM PCs and associated software licenses for which the IBM Central California Trading Area does not receive credit by IBM and excluding used equipment sales by any entity) or leased, software licensed or services provided by IBM in the United States for use with DDP/SQL on an IBM platform or (ii) the date this Addendum or the Strategic Business Agreement expires or terminates. If (i) is the earlier date, CableData shall not be required to pay to IBM any amounts suspended hereunder or any other remaining amounts due under this Addendum or Section 3.2 of the Strategic Business Agreement. If (ii) is the earlier date, CableData shall pay to IBM the total amount of the suspended payments hereunder; provided, however, that if this Addendum or the Strategic Business Agreement are terminated pursuant to Section 6.2(a) due to breach by IBM, then CableData shall not be required to pay to IBM any such amounts. (b) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THIS ADDENDUM. If this Addendum terminates or expires prior to the date that on which IBM has invoiced an aggregate of [*] of equipment sold (excluding sales by IBM to IBM's leasing subsidiary and excluding sales of IBM PCs for which the IBM Central California Trading Area does not receive credit by IBM and excluding used equipment sales by any entity) or leased, software licensed or services provided by IBM in the United States for use with DDP/SQL on an IBM platform in addition to the [*] referenced in Section 3.2(a) above, then CableData shall pay to IBM a prorated portion of [*], which proration shall be a percentage that is equal to the percentage by which the additional amounts invoiced in excess of those set forth in Section 3.2(a) were short of [*], provided, however, that if this Addendum or the Strategic Business Agreement are terminated pursuant to Section 6.2(a) due to breach by IBM, then CableData shall not be required to pay to IBM any such amounts. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - (c) REPORTING UNDER SECTION 3.2(a)(i) AND 3.2(b). The parties understand that sale, lease, license or service amounts in Sections 3.2 (a)(i) and 3.2(b) are for software, hardware or services provided to the end user by any entity, except as specifically excluded above, to the extent that IBM invoices some entity at some point for such hardware, software or services provided to the end-user. CableData shall periodically during the term of this Agreement provide reports to IBM setting forth sales, leases, licenses and services for which CableData determines should be credited under Section 3.2(a)(i) or 3.2(b). IBM shall have thirty (30) days to correct, verify or dispute in good faith the report and the amount claimed therein. ARTICLE IV OTHER AREAS OF COOPERATION Section 4.1 (a) ADDITIONAL BUSINESS RELATIONSHIP. Following the signature of this addendum by both parties, CableData and IBM shall begin good faith discussions for the purpose entering into, on or before December 31, 1993, an additional business relationship applicable to the marketing of IBM products for use with DDP/SQL. It is expected that this business relationship will incorporate the form and substance of an existing IBM alternate marketing channel. The choice of such channel is at the election CableData. CableData's election is subject to CableData's acceptance of the applicable alternate marketing channel's terms and conditions and IBM's approval of CableData for such channel. (b) [*]. If, at any time during the term of the Strategic Business Agreement, IBM enters into [*] business relationship to that entered into by the parties pursuant to Section 4.1(a) [*] (specifically, without limiting the generality of the foregoing, any person or entity that provides subscriber management products or [*], which is [*] the terms or conditions provided to CableData under its business relationship with IBM, [*]. Section 4.2 IBM [*] CENTER IN SACRAMENTO. CableData shall cooperate in assisting IBM to develop understanding of [*] in Sacramento, California. Such cooperation by CableData shall include [*]. In addition, CableData shall assist, [*], *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - [*] to customers of CableData who are actual or prospective users of DDP/SQL by sales leads, introductions, references and such other assistance as CableData shall determine from time to time in its discretion. In the event IBM successfully markets such selected services and software for which CableData is eligible to receive a fee under an additional business relationship with IBM, IBM will still pay such fee to CableData. Section 4.3 TECHNICAL DIRECTION AND INFORMATION. The advance notices of new product developments and releases and forecasts of 12 to 18-month trends and directions required pursuant to Section 4.2 of the Strategic Business Agreement shall after the date of this Addendum also be required with respect to new product developments and releases, and to such forecasts, by each party that its technical representative under the Strategic Business Agreement has determined have applicability and appropriateness to DDP/SQL. All such notices and forecasts shall be subject to the same restrictions as otherwise apply under Section 4.2 of the Strategic Business Agreement. Section 4.4 INFORMATION. The evaluation of [*] with respect to DDP/I required pursuant to Section 4.3(c) of the Strategic Business Agreement shall after the date of this Addendum also be provided by IBM with respect to DDP/SQL [*]. Section 4.5 MARKETING SUPPORT. (a) [*] MARKETING MANAGER (CLIENT EXECUTIVE). Within thirty (30) days following the date of this Addendum, either (i) IBM shall add the primary responsibility for managing and facilitating, as required, IBM's cooperation with CableData in marketing DDP/SQL [*] (ii) IBM shall appoint, for a minimum of two (2) years and thereafter shall have on its staff in local IBM offices in the Sacramento, California area during the term of this Addendum for such time as CableData [*] DDP/SQL [*]. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 7 - (b) JOINT MARKETING EFFORTS AND PUBLICITY. The parties agree that there shall be no public dissemination or release of information regarding this Addendum or their relationship pursuant to this Addendum until such time as CableData shall deem appropriate. It is CableData's intent to disclose to its User's Group at a meeting on [*] at the National Cable Television Convention in [*], CableData's intention [*], and to disclose to such Users Group that disclosure of the UNIX-based alternate platform vendor shall be available within 45-60 days. It is CableData's further intention that, no later than [*], it will disclose that the [*] (the "Initial Public Disclosure"). IBM understands that premature release of information could be extremely injurious to CableData. At such time as CableData shall deem appropriate for release of information, IBM and CableData shall cooperate in preparing and disseminating an initial press release describing their relationship pursuant to this Addendum, and subsequent press releases concerning [*] DDP/SQL [*] pursuant to this Addendum, as appropriate. The designated representative appointed by each of CableData and IBM pursuant to Section 4.4(b) of the Strategic Business Agreement to coordinate the parties' joint participation in business and trade shows, exhibitions, and similar events, cooperative marketing and communications with distributors and customers, shall also coordinate such joint participation by the parties with respect to DDP/SQL. Notwithstanding the foregoing or any other provision of this Addendum or the Strategic Business Agreement to the contrary, neither party shall release any press release mentioning the relationship or activities under this Addendum during the term of the Strategic Business Agreement without the prior written approval of the designated representative of the other. Without limiting the generality of the foregoing sentence, IBM shall not, without the prior written consent of CableData's designated representative, disclose the existence or terms of the domestic relationship or activities within the U.S. under this Addendum to any party, including without limitation any employee or agent of CableData, not identified in writing by CableData to IBM. Section 4.6 SALES SUPPORT. (a) IBM shall provide reasonable training and assistance to CableData's direct sales force in selling [*] products at IBM's then-current list prices for such training. (b) IBM shall further provide [*] information to CableData from IBM's [*] Center in Sacramento. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 8 - Section 4.7 EQUIPMENT UNDER IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM. CableData shall be entitled to purchase [*] systems at a discount of [*] pursuant to the terms and conditions set forth in Attachment A to this Addendum. Section 4.8 CURE FOR FAILURE TO ENTER INTO ADDITIONAL BUSINESS RELATIONSHIP. Notwithstanding the provisions of Section 3.1(c), if the business relationship is not entered into by January 1, 1994, the parties shall continue to negotiate in good faith for up to one (1) additional month. If, during this period, the business relationship is entered into, the payment that would have been made on January 1, 1994, shall be paid immediately to CableData and further installments shall be paid in accordance to the original schedule. Section 4.9 CLONES. CableData is free to sell clones of the RISC System/6000 not manufactured by IBM for use with DDP/SQL provided that it mutually agrees with IBM on a structure for allowing IBM to participate in these opportunities to a degree which is similar to IBM's participation in the porting of DDP/SQL. ARTICLE V PROPRIETARY RIGHTS Section 5.1 INCORPORATION BY REFERENCE. The terms of Sections 5.1, 5.4 and 5.5 of the Strategic Business Agreement shall apply fully to the activity contemplated by this addendum. Section 5.2 LICENSES. (a) For the term of the Strategic Business Agreement, CableData grants to IBM a non-exclusive and nontransferable license to use one (1) copy of DDP/SQL in machine-executable code only, for IBM's internal purposes only in connection with this Addendum and to make one (1) archival copy for back-up purposes. (b) IBM hereby grants to CableData, its subsidiaries and distributors, and its and their respective customers, mediate and immediate, an irrevocable, non-exclusive, worldwide, nontransferable, paid-up license under all present and future IBM patents to make, have made, use, have used, lease, license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT, including derivative works thereof, either alone or in combinations with equipment, insofar as any *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 9 - infringement of such patents would otherwise arise in whole or in part from the performance of IBM's obligations under this Addendum. (c) Each party grants the other party only the licenses specified. No other licenses, including licenses under patents, are granted. Section 5.3 CONFIDENTIALITY. The existence and terms of this Addendum shall be deemed to be confidential and subject to the restrictions applicable to confidential information as set forth in Section 5.3 of the Strategic Business Agreement, which shall apply fully to the activity contemplated by this Addendum. ARTICLE VI TERM AND TERMINATION Section 6.1 TERM AND TERMINATION. This Addendum shall become effective on the date first written above and shall continue in effect thereafter until January 19, 1998, on which date it shall expire. Any termination of the Strategic Business Agreement in accordance with its terms shall be deemed not to effect a simultaneous termination of this Addendum and any termination of this Addendum in accordance with its terms shall be deemed not to effect a simultaneous termination of the Strategic Business Agreement, unless either party elects otherwise. Section 6.2 TERMINATION. (a) TERMINATION FOR BREACH. Either party may terminate this Addendum, effective upon dispatch of written notice of termination to the other party, upon the breach by such other party of any of its material obligations under this Addendum and failure to cure such breach within ninety (90) days after receipt of notice specifying the breach. The right to terminate shall be in addition to any other remedies available in law or equity, which remedies are expressly retained. If IBM terminates this Addendum under this Section 6.2(a) for breach of this Addendum by CableData, then, on the effective date of such termination, the provisions of Section 3.2(b) of this Addendum shall apply. - 10 - If CableData terminates this Addendum under this Section 6.2(a) for breach of this Addendum by IBM, then, on the effective date of such termination, IBM shall pay to CableData any remaining scheduled installments that would have been due to CableData in subsequent months under Section 3.1 of this Addendum if the termination had not occurred, up to a total of [*]. This is IBM's sole responsibility for breach. (b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH. CableData may in its sole discretion, upon ninety (90) days' prior written notice to IBM, terminate this Addendum at any time, without breach by IBM. On the effective date of termination under this Section 6.2(b), CableData shall refund to IBM all funds advanced to CableData under Section 3.1 of this Addendum. (c) TERMINATION BY IBM FOR REASONS OTHER THAN CABLEDATA BREACH. IBM may in its sole discretion, upon ninety (90) days' prior written notice to CableData, terminate this Addendum at any time, without breach by CableData. On the effective date of termination under this Section 6.2(c), IBM shall pay to CableData any remaining scheduled installments that would have been due to CableData in subsequent months under Section 3.1 of this Addendum if the termination had not occurred. Section 6.3 EFFECT OF EXPIRATION OR TERMINATION. Except as otherwise expressly stated in Section 6.2 of this Addendum or in the following sentence, upon any expiration or termination of this Addendum all rights and obligations of each party in this Addendum shall expire and be of no further force or effect, and each party shall be entitled to retain all funds, fees and payments that it has received from the other party under this Addendum and prior to the effective date of such expiration or termination. Notwithstanding the foregoing, no expiration or earlier termination of this Agreement shall relieve either party of its rights or obligations as described in Article V of this Addendum, which rights and obligations are expressly intended to survive any such expiration or termination. ARTICLE VII GENERAL Section 7.1 BALANCE OF STRATEGIC BUSINESS AGREEMENT UNCHANGED. Except as expressly provided in this Addendum, all provisions, terms and conditions of the Strategic Business Agreement shall remain unchanged and in full force and effect. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 11 - Section 7.2 INCORPORATION BY REFERENCE. The terms of Articles V and VII of the Strategic Business Agreement are incorporated by reference herein and shall be deemed a part of this Addendum as fully as if set forth in their entirety herein. IN WITNESS WHEREOF, the parties have executed this Addendum as of the date and year first written above. "CABLEDATA" "IBM" U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS a California corporation MACHINES CORPORATION, a New York corporation By: /s/ James C. Castle By: /s/ W. Bernard Bowler -------------------------- ----------------------------- James C. Castle W. Bernard Bowler Chief Executive Officer Central California Trading Area General Manager - 12 - ATTACHMENT A TO ADDENDUM DATA BASE : ALET - PAGE: 1 - ------------------------------------------------------------------------------ NUMBER 392-216 DATE 920922 CATEGORY GD00, GD70 TYPE Marketing TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MODIFICATION CORRECTN (CORRECTED ON SEPTEMBER 25, 1992) In the title, the word "Promotion" has been changed to "Program". ABSTRACT The IBM RISC System/6000 (R) Developer Discount Program has been modified again. This document supersedes the following IBM Marketing Announcements: - 391-068, dated May 14, 1991 - 391-156, dated October 2, 1991 - 391-201, dated November 26, 1991 - 392-017, dated January 21, 1992 - 392-055, dated March 17, 1992 - 392-081, dated April 21, 1992. Effective immediately, the IBM Customer Agreement (ICA) Exhibit for the IBM RISC System/6000 Developer Discount (Z125-4742) has been withdrawn. Products eligible under this program are listed in the attached IBM RISC System/6000 Developer Discount Program's Machines and Licensed Programs list, which has been updated to include the following products: Processors: - IBM RISC System/6000 7013 Model 580 - IBM RISC System/6000 7015 Model 980 - IBM 7245 Power Visualization System Models 001, 002, 003, and 004. Model Conversions: - IBM RISC System/6000 Model 7013 Model 53H to 58F - IBM RISC System/6000 Model 7013 Model 550 to 58F - IBM RISC System/6000 Model 7013 Model 560 to 58F - IBM RISC System/6000 Model 7015 Model 930 to 98E - IBM RISC System/6000 Model 7015 Model 950 to 98E - IBM RISC System/6000 Model 7015 Model 95E to 98E - IBM RISC System/6000 Model 7015 Model 970 to 98E - IBM RISC System/6000 Model 7015 Model 97E to 98E Displays: - IBM 1091 Model O51 Display. Storage Media: - IBM 7204 Model 001 SCSI Disk Drive - IBM 7206 Model 001 Tape Drive - IBM 7207 Model 012 Tape Drive - IBM 7208 Model 011 Tape Drive - IBM 7209 Model 001 Optical Disk Drive. Peripherals: - IBM 7246 Model 001 Video Controller Eligible Programs: DATA BASE : ALET - PAGE: 2 - Encina Server for AIX/6000 (TM) (5696-240) - Encina Structured File Service for AIX/6000 (5696-237) - Encina Monitor for AIX/6000 (5696-239) - Encina Peer-to-Peer Executive for AIX/6000 (5696-238) - Encina Peer-to-Peer Gateway for AIX/6000 (5696-347) - AIX (R) Visualization Data Explorer/6000 (5756-057) - AIX High-Availability Cluster Multi-Processing/6000 (5765-111) - AIX DCE Base/6000 (5765-117) - AIX DCE Security Server/6000 (5765-118) - AIX DCE Cell Directory Server/6000 (5765-119) - AIX DCE Enhanced File Server/6000 (5765-121). This will be the last dedicated IBM Marketing Announcement to modify the list of products available through this program. In the future, customers should contact marketing representatives to determine new product eligibility. No other changes have been made to the existing terms and conditions of this program, which is described below in its entirety. The RISC System/6000 Developer Discount Program provides eligible customers with the opportunity to acquire workstations, AIX Development Toolkits, selected peripherals, and licensed RISC System/6000 programs at a substantial discount. Eligible customers include selected hardware and software vendors, and selected IBM Academic Information Systems (ACIS) application authors. No other discount or promotional offering can be combined with this program. IBM reservers the right to modify or withdraw this offering at any time. (R) Registered trademark of International Business Machines Corporation. (TM) Trademark of International Business Machines Corporation. PRODNO 7013 7208 5696-240 5696-347 5765-118 7015 7209 5696-237 5756-057 5765-119 7204 1091 5696-239 5765-111 5765-121 7206 7246 5696-238 5765-117 DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 3 IMKTG MARKETING INFORMATION This program is intended to increase the availability of quality products by providing an attractively priced RISC System/6000 development offering to selected hardware and software vendors, and selected ACIS application authors. In the future, products will be added to the program based on the following guidelines: - The product must be eligible for a Demonstration Discount of [*]; application programs eligible for a Demonstration Discount, however, do not qualify for the Developer Discount. - A hardware product must attach to the RISC System/6000. A software product must be able to run on the RISC System/6000. MARKETING CHANNELS - IBM US -- Direct MARKETING ACTION REQUIRED Marketing representatives should become familiar with this program and encourage the participation of qualifying developers. Only products that can be ordered under contract number 44871 are eligible for a developer's discount. If you have questions on information contained in this document, send a PROFS (R) note to ATLVM1(SVDDP). IADMIN ADMINISTRATIVE INFORMATION PROGRAM ELIGIBILITY Customers must be approved by Software Vendor Operations. Approvals will be limited to US-based developers who agree to develop and market (or make available) RISC System/6000 hardware or software products. To initiate a request for a Developer Discount, submit a completed RS6000SV form, which is available on AEFORMS. For additional information, send a PROFS note to ATLVM1(SVDDP). CONTRACT ADMINISTRATION Each new approved developer must sign the IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount (Z125-4740), and the IBM Customer Agreement Addendum for the IBM RISC System/6000 Developer Discount (Z125-4741). Upon completion of development, the developer must sign the IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 (Z125-4743). ORDERING INFORMATION When ordering the eligible products under this program, follow the normal ordering instructions and use contract number 44871. This special contract number will enable the program orders to be processed at the stated discount. If the special contract number was omitted at order entry, add it by using MODIFY prior to shipment or PURPREP after shipment but prior to installation. Orders are based on a completed Addendum for IBM RISC System/6000 Developer Discount (Z125-4741) that is signed by the customer. ATTACHMENT INFORMATION The following are related to this announcement letter: - 392-216-1A* Z125-4740, IBM Customer Agreement Attachment for IBM RISC System/6000 Developer Discount - 392-216-1B* Z125-4741, IBM Customer Agreement Addendum for IBM *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 4 RISC System/6000 Developer Discount - 392-216-1C* Z125-4743, IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 * This item may be printed on your 3820 printer via the following method: - While browsing this announcement letter on HONE, enter the fastpath name "DAWNHOST LIST" (to allow selective printing from list) or "DAWNHOST ALL" (to print all asterisked items for this letter) at the HONE entry prompt arrow. DATA BASE : ALET - PAGE: 5 OVERVIEW ADDITIONAL INFORMATION For each development machine purchased, the developer may select RISC System/6000 peripherals at a 50% discount. In addition, for each machine obtained, one copy of each RISC System/6000 program on the attached list may be acquired at a 50% discount. ACIS reserves the right to select, from a nominated pool of candidate applications, only those applications that ACIS wants supported, and thereby selectively offers the faculty/researcher application author the opportunity to participate in the RISC System/6000 Developer Discount Program. Hardware vendors will be selected based on their ability to provide products that enhance the overall marketability of the RISC System/6000 product family, with emphasis on products not currently part of the RISC System/6000 offering. CUSTINFO PUBLICATIONS Refer to the individual announcements for publications concerning the hardware, licensed programs, and peripherals in this offering. EDUCATION SUPPORT Developers wishing to subscribe to a technical quarterly publication, THE AIXPERT, should call 800-627-8363. Other users may subscribe by ordering bill-of-forms number GBOF-1199 from the Systems Library Subscription Service (SLSS). Users without electronic access to SLSS may subscribe using SLSS order number G120-1816 and specify GBOF-1199 as the publication number. ORDERING TERMS AND CONDITIONS - An approved developer must sign the ICA and its Attachment for IBM RISC System/6000 Developer Discount (Z125-4740), along with the ICA Addendum for the IBM RISC System/6000 Developer Discount (Z125-4741). - The developer must agree to use the products acquired for each development system to develop, test, demonstrate and/or maintain hardware and software products developed under this program for a period of 12 months following the shipment of the IBM products. - Upon completion of such development, the developer will provide to IBM the IBM Customer Agreement Certification of Compatibility with the IBM RISC System/6000 (Z125-4743), and announce and make available a product that is compatible with the RISC System/6000. - Developers who have completed development of their RISC System/6000-compatible product and have submitted the required Certification of Compatibility (Z125-4743) to IBM have an additional 12 months to acquire eligible products at a discount for their installed development systems. These products include only model conversions, peripherals and programs eligible for a developer discount. - Products acquired under this development program are intended primarily for development purposes and not for resale, sub-lease, or rental for a period of 12 months following the shipment of the IBM product. - A purchase limit of ten RISC System/6000 systems exists per development establishment. Up to ten Xstation terminals may be DATA BASE : ALET - PAGE: 6 purchased with each system. - On request by the developer, newly announced products eligible for a developer's discount may be added to a current contract. - IBM reserves the right to limit the number of RISC System/6000 systems available to each development establishment. IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED PROGRAMS The following hardware and licensed programs are eligible for a 50% discount: ELIGIBLE HARDWARE Processors: IBM RISC System/6000 7011 Model 220 IBM RISC System/6000 7011 Model 22G IBM RISC System/6000 7011 Model 22W IBM RISC System/6000 7012 Model 32H IBM RISC System/6000 7012 Model 340 IBM RISC System/6000 7012 Model 350 IBM RISC System/6000 7013 Model 52H IBM RISC System/6000 7013 Model 53H IBM RISC System/6000 7013 Model 550 IBM RISC System/6000 7013 Model 560 IBM RISC System/6000 7013 Model 580 IBM RISC System/6000 7015 Model 950 IBM RISC System/6000 7015 Model 970 IBM RISC System/6000 7015 Model 980 IBM 7245 Power Visualization System Models 001, 002, 003, and 004 Model Conversions: IBM RISC System/6000 7012 Model 320 to 32E IBM RISC System/6000 7013 Model 520 to 530 IBM RISC System/6000 7013 Model 520 to 53E IBM RISC System/6000 7013 Model 520 to 55E IBM RISC System/6000 7013 Model 530 to 55E IBM RISC System/6000 7013 Model 530 to 56F IBM RISC System/6000 7013 Model 53H to 55E IBM RISC System/6000 7013 Model 53H to 56F IBM RISC System/6000 7013 Model 53H to 58F IBM RISC System/6000 7013 Model 540 to 55S IBM RISC System/6000 7013 Model 550 to 56F ELIGIBLE HARDWARE Model Conversions: IBM RISC System/6000 7013 Model 550 to 58F IBM RISC System/6000 7013 Model 560 to 58F IBM RISC System/6000 7015 Model 930 to 97E IBM RISC System/6000 7015 Model 930 to 98E IBM RISC System/6000 7015 Model 950 to 97E IBM RISC System/6000 7015 Model 950 to 98E IBM RISC System/6000 7015 Model 95E to 97E IBM RISC System/6000 7015 Model 95E to 98E IBM RISC System/6000 7015 Model 970 to 98E IBM RISC System/6000 7015 Model 97E to 98E Displays: DATA BASE : ALET - PAGE: 7 IBM 1091 Model 051 Display IBM 5081 Model 16 Graphics Display IBM 5081 Model 19 Graphics Display IBM 6091 Model 19 Color Display IBM 6091 Model 16 Color Display IBM 6091 Model 23 Color Display IBM 8507 Model 001 Personal System/2 (R) Monochrome Display IBM 8508 Model 001 Personal System/2 Monochrome Display IBM 8512 Model 001 Personal System/2 Color Display IBM 8513 Model 001 Personal System/2 Color Display IBM 8514 Model 001 Personal System/2 Color Display IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED PROGRAMS CONT'D. ELIGIBLE HARDWARE Displays: IBM 8515 Model 021 Personal System/2 Color Display IBM 8517 Model 001 Color Display IBM 8518 Model 001 Color Display Maximum Quantity = one display unit per processor. Storage Media: IBM 7203 Model 001 External Portable Disk Drive IBM 7204 Model 001 SCSI Disk Drive IBM 7204 External Disk Drive Model 320 IBM 7206 Model 001 Tape Drive IBM 7207 Model 001 150 MB External 1/4-Inch Cartridge Tape Drive IBM 7207 Model 011 525 MB External 1/4-Inch Cartridge Tape Drive IBM 7207 Model 012 Tape Drive IBM 7208 Model 001 2.3 GB External 8mm Tape Drive IBM 7208 Model 011 Tape Drive IBM 7209 Model 001 Optical Disk Drive IBM 7210 Model 001 External CD-ROM Drive IBM 9333 Model 10 High-Performance Disk Subsystem IBM 9333 Model 500 High-Performance Disk Subsystem IBM 9334 Model 10 Drawer Expansion Unit IBM 9334 Model 500 Deskside Expansion Unit IBM 9348 Model 012 External 1/2-Inch, 9-Track Tape Drive Maximum Quantity = one of each item listed per processor. Peripherals: IBM 6093 Model 11 Cursorpad IBM 6093 Model 12 Tablet DATA BASE : ALET - PAGE: 8 IBM 6094 Model 10 Dials IBM 6094 Model 20 Lighted Programmable Functional Keyboard IBM 6097 Model 2A Screen Printer IBM 6097 Model 2B Screen Printer IBM 6180 Model 1 Color Plotter IBM 6180 Model 2 Color Plotter IBM 6184 Model 1 Color Plotter IBM 6185 Model 1 Color Plotter IBM 6185 Model 2 Color Plotter IBM 7202 Model 900 Expansion Rack IBM 7235 Model 1 POWERgraphics GTO IBM 7235 Model 2 POWERgraphics GTO IBM 7246 Model 001 Video Controller Maximum Quantity = one of each item listed per processor. Xstation: IBM 7010 Model 120 Xstation IBM 7010 Model 130 Xstation Maximum Quantity = 10 Xstations per processor. Features: All features for eligible hardware ELIGIBLE LICENSED PROGRAMS Program Number Program Name 5601-230 AIX Personal graPHIGS (TM) Programming Interface/6000 5601-248 AIX XL FORTRAN Compiler/6000 5601-251 AIX XL Pascal Run Time Environment/6000 5601-253 AIX Network Management/6000 5601-254 AIX XL Pascal Compiler/6000 5601-256 AIX 3278/79 Emulation/6000 5601-257 AIXwindows (R) Environment/6000 5601-258 AIX VS COBOL Compiler/6000 5601-259 AIX VS COBOL Run Time Environment/6000 5601-260 AIX 3270 Host Connection Program/6000 5601-263 AIX Personal Computer Simulator/6000 5601-266 AIX XL FORTRAN Run Time Environment/6000 5601-287 AIX System Network Architecture Services/6000 5601-386 AIX Computer Graphics Interface Toolkit/6000 5601-457 AIX Xstation Manager (TM)/6000 5696-037 AIX Software Development Environment (SDE) Workbench/6000 5696-108 AIX InfoCrafter (TM) Composer/6000 5696-137 AIX Software Development Environment (SDE) Integrator/6000 5696-236 NetWare for AIX/6000 from IBM v3.11 5696-237 Encina Structured File Service for AIX/6000 5696-238 Encina Peer-to-Peer Executive for AIX/6000 5696-239 Encina Monitor for AIX/6000 5696-240 Encina Server for AIX/6000 5696-347 Encina Peer-to-Peer Gateway for AIX/6000 5706-291 AIX Ada/6000 DATA BASE : ALET - PAGE: 9 5706-294 AIX Ada Run Time Environment/6000 5756-011 AIX X-Windows 3270 Emulator Version 1 5756-027 AIXwindows Interface Composer/6000 5756-030 AIX Version 3 for RISC System/6000 5756-057 AIX Visualization Data Explorer/6000 5756-091 Professional CADAM (1) 3D Surface Design 5756-092 Professional CADAM Manufacturing System 5756-093 Professional CADAM Machining Center 5756-094 Professional CADAM Interactive Design 5756-095 Professional CADAM Access IUE (2) 5756-096 Professional CADAM Interactive Solids Design (2) 5765-004 AIX Graphics Plotting System/6000 5765-005 AIX Graphics File Translator/6000 5765-018 AIX XL FORTRAN Compiler/6000 5765-019 AIX XL FORTRAN Run Time Environment/6000 5765-035 AIX XL C+ +Compiler/6000 5765-037 AIX MVS Library Connector/6000 5765-039 AIX Configuration Management Version Control Server/6000 5765-069 AIX Configuration Management Version Control Client/6000 5765-077 AIX NetView (R)/6000 5765-111 AIX High-Availability Cluster Multi-Processing/6000 (HACMP/6000) 5765-117 AIX DCE Base/6000 5765-118 AIX DCE Security Server/6000 5765-119 AIX DCE Cell Directory Server/6000 5765-121 AIX DCE Enhanced File Server/6000 (1) PROFESSIONAL CADAM is a trademark of Dassault Systemes of America licensed to IBM Corporation. (2) IUE and Interactive Solids Design are trademarks of Dassault Systemes of America. Maximum Quantity = one of each licensed program listed per processor. Notes: Developers may purchase a maximum of one of each unique peripheral per development system. However, with Xstation terminals, a maximum of ten per system may be purchased, and a maximum of one display per Xstation may be purchased. Development discounts will be applied to the eligible hardware, licensed programs, and peripherals ordered as part of the initial installation. Within the limitations described, peripherals, licensed programs and hardware MESs may be ordered after the initial purchase and receive the developer discount. However, these additional purchases will be restricted to the terms of the Attachment for IBM RISC System/6000 Developer Discount. For programs licensed under the primary license charge/annual license charge option, the 50% discount applies to the primary license charge only. Recurring charges, such as ESS and annual license charge, do not qualify for the 50% discount. Software MESs are not eligible for the 50% discount. - - - END OF PRINTOUT - - - [LETTERHEAD] June 4, 1993 Mr. W. Bernard Bowler Central California Trading Area General Manager International Business Machines Corporation 400 Capitol Mall Sacramento, California 95814 Dear Bernard, In connection with the Addendum Number One to Strategic Business Agreement by and between International Business Machines Corporation ("IBM") and U.S. Computer Services ("CableData") entered into on the date of this letter (the "Addendum"), this letter confirms that for the term of the Addendum [*]. Please confirm that this letter correctly sets forth the agreement between us on this subject by signing the enclosed copy of this letter where indicated below and returning it to me. Sincerely, /s/ James C. Castle ACCEPTED AND AGREED TO BY: INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ W. Bernard Bowler --------------------------------- W. Bernard Bowler Central California Trading Area General Manager Date: ------------------------------- *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EXHIBIT A TO LETTER DATED JUNE 4, 1993 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [LETTERHEAD] January 19, 1992 Mr. Eric Jungemann Senior Vice President U.S. COMPUTER SERVICES d/b/a CABLEDATA 2969 Prospect Park Drive Rancho Cordova, CA 95670 Dear Eric: Re: RISC System/6000 Developer Discount and RISC System/6000 Internal Use Discount --------------------------------------- This is to confirm and agree that, in order to qualify for the RISC System/6000 Developer Discount Program set forth in Attachment F-2 of the Strategic Business Agreement dated January 19, 1992 between our companies, [*]. In addition, we agree that the terms and conditions set forth in such Attachment F-2 of the Strategic Business Agreement will, as to CableData, not be modified by IBM for a [*]. This is to further confirm and agree that, for a period of [*] from today's date, IBM will offer to sell to CableData for CableData internal use, [*]. Sincerely, /s/John R. Poland John R. Poland *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [LETTERHEAD] January 19, 1992 Mr. Jerry Knapp President U.S. COMPUTER SERVICES d/b/a CABLEDATA 2969 Prospect Park Drive Rancho Cordova, CA 95670 Dear Jerry: This is to confirm and agree that the business relationship contemplated by the Strategic Business Agreement between IBM and CableData is for the international market and that we understand CableData has no current plans for releasing a DDP product in the U.S. on an IBM platform. You have informed us and IBM understands that significant harm to the relationship between CableData and IBM may result if its sales force solicits CableData's U.S. customers to put pressure on CableData to release a DDP/I or similar product on an IBM platform in the U.S., and we will conduct ourselves accordingly. Sincerely, /s/John R. Poland John R. Poland [LETTERHEAD] January 19, 1992 Mr. John R. Poland General Manager INTERNATIONAL BUSINESS MACHINES CORPORATION 520 Capitol Mall Sacramento, CA 95814 Dear John, Re: STRATEGIC BUSINESS AGREEMENT In connection with the Strategic Business Agreement between International Business Machines Corporation (IBM) and U.S. Computer Services (CableData) entered into on the date of this letter (the "Agreement"), this letter confirms [*]. The governing law and consent to jurisdiction provisions of Section 7.4 of the Agreement are incorporated into and apply to this letter agreement as if set forth herein in their entirety. Please confirm that this letter correctly sets forth the agreement between us on this subject by signing the enclosed copy of this letter where indicated below and returning it to me. Sincerely, /s/Eric Jungemann Eric Jungemann ACCEPTED AND AGREED TO BY: INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/Eric Jungemann /s/John R. Poland ---------------------------------------- Title: Sr. VP General Manager ------------------------------------- Date: 1-19-92 -------------------------------------- *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EX-10.20 4 EXHIBIT 10.20 EXHIBIT 10.20 ORACLE-Registered Trademark- BUSINESS ALLIANCE PROGRAM AGREEMENT This Business Alliance Program Agreement (the "Agreement") is between Oracle Corporation with its principal place of business at 500 Oracle Parkway, Redwood City, California 94065 ("Oracle") and CableData, Inc. (legal name) with its principal place of business at 11020 Sun Center Drive, Rancho Cordova, CA 95670 (the "Alliance Member"). The terms of this Agreement shall apply to each Program license granted and to all services provided by Oracle under this Agreement. When completed and executed by both parties, an Order Form shall evidence the Program licenses granted and the services that are to be provided. 1. DEFINITIONS 1.1 "COMMENCEMENT DATE" shall mean the date on which the Programs are delivered by Oracle, or if no delivery is necessary, the Effective Date set forth on the relevant Order Form. 1.2 "DESIGNATED SYSTEM" shall mean the computer hardware and operating system designated on the relevant Order Form or Sublicense report for use in conjunction with a Sublicensed Program, Development License, or Marketing Support License. 1.3 "ORDER FORM" shall mean the document by which the Alliance Member orders Program licenses, Sublicenses, and services, and which is agreed to by the parties. The Order Form shall reference the Effective Date of this Agreement. 1.4 "PRICE LIST" shall mean Oracle's standard commercial fee schedule that is in effect when a Program license, Sublicense, or services are ordered by the Alliance Member. 1.5 "PROGRAM" shall mean the computer software in object code form owned or distributed by Oracle for which the Alliance Member is granted a license or grants a Sublicense pursuant to this Agreement; the user guides and manuals for use of the software ("Documentation"); and Updates. "LIMITED PRODUCTION PROGRAM" shall mean a Program not specified on the Price List or which is designated as Limited Production by Oracle. 1.6 "SUBLICENSE ADDENDA" shall mean the addenda to this Agreement specifying additional Sublicense terms and Sublicense rates and fees for the various types of Sublicenses which may be granted by the Alliance Member. 1.7 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by or through the Alliance Member to an end user to use an object code copy of the Programs with the Value-Added Package under authority of a Sublicense Addendum. "Sublicensee" shall mean a third party who is granted a Sublicense of the Programs with the Value-Added Package for such party's own internal data processing purposes and not for purposes of any further distribution. 1.8 "SUPPORTED PROGRAM LICENSE" shall mean a Development License or Marketing Support License for which the Alliance Member has ordered Technical Support for the relevant time period. "TECHNICAL SUPPORT" shall mean Program support provided under Oracle's policies in effect on the date Technical Support is ordered. 1.9 "UPDATE" shall mean a subsequent release of a Program which is generally made available for Supported Program Licenses at no additional charge, other than media and handling charges. Update shall not include any release, option or future product which Oracle licenses separately. 1.10 "USER," unless otherwise specified in the Order Form or Sublicense report for a user type specified in the Price List in effect when the Program is Sublicensed, shall mean a specific individual employed by the Alliance Member or Sublicensee (as the case may be) who is authorized by such party to use the Programs, regardless of whether the individual is actively using the Programs at any given time. 1.11 "VALUE-ADDED PACKAGE" shall mean the hardware or software products or services having added value which are developed, sold, and/or licensed with the Programs to a Sublicensee by the Alliance Member, as provided under the applicable Sublicense Addenda. 2. LICENSES GRANTED 2.1 DEVELOPMENT LICENSES AND TRIAL LICENSES A. Oracle giants to the Alliance Member a nonexclusive license to use the Development Licenses the Alliance Member obtains under this Agreeement and applicable Sublicense Addenda, as follows: 1. to develop or prototype the Value-Added Package on the Designated System or on a backup system if the Designated System is inoperative, up to any applicable maximum number of designated Users or other such limitation as may be applicable; 2. to demonstrate the Programs to potential Sublicensees solely in conjunction with the Value Added Package; 3. to provide training and technical support to employees and to customers solely in conjunction with the Value-Added Package; 4. to use the Documentation provided with the Programs in support of the Alliance Member's authorized use of the Programs; and 5. to copy the Programs for archival or backup purposes; no other copies shall be made without Oracle's prior written consent. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. All archival and backup copies of the Programs are subject to the terms of this Agreement. B. The Alliance Member may order temporary trial licenses ("Trial Licenses") for its evaluation purposes only, and not for development or prototype purposes, for use during a period specified in the Order Form. Each Order Form for Trial Licenses shall clearly state the trial period and shall identify that the order is for a Trial License. 2.2 MARKETING SUPPORT LICENSES Oracle grants to the Alliance Member a nonexclusive license to use the Marketing Support Licenses the Alliance Member obtains under this Agreement and applicable Sublicense Addenda, as follows: A. to demonstrate the Programs to potential Sublicensees solely in conjunction with the Value-Added Package, up to any applicable maximum number of designated Users or other such limitation as may be applicable; B. to develop customized prototypes of the Value-Added Package for prospective Sublicensees on the Designated System if the Alliance Member does not receive any fees related to the development of such customized prototypes; C. to use the Documentation provided with the Programs in support of the Alliance Member's authorized use of the Programs; and D. to copy the Programs for archival or backup purposes; no other copies shall be made without Oracle's prior written consent. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. All archival and backup copies of the Programs are subject to the terms of this Agreement. 2.3 SUBLICENSING A. LICENSE TO SUBLICENSE PROGRAMS As further set forth in the applicable Sublicense Addenda, Oracle hereby grants the Alliance Member a nonexclusive, nontransferable license to market and grant Sublicenses as set forth in such Sublicense Addenda and at the rates and fees set forth in such Sublicense Addenda. The Alliance Member shall only have the right to Sublicense Programs pursuant to an effective Sublicense Addendum between the parties hereto. The Alliance Member shall Sublicense the Programs solely through a written Sublicense agreement as provided under Section 2.3.B. Upon Oracle's request, the Alliance Member shall provide Oracle with a copy of the Alliance Members standard Sublicense agreement. B. SUBLICENSE AGREEMENT Every Sublicense agreement shall include, at a minimum, contractual provisions which: 1. Restrict use of the Programs to object code, subject to the restrictions provided under the applicable Sublicense Addenda and consistent with the Sublicense fees payable to Oracle; 2. Prohibit (a) transfer of the Programs except for temporary transfer in the event of computer malfunction; (b) assignment, timesharing and rental of the Programs; and (c) title to the Programs from passing to the Sublicensee or any other party; 3. Prohibit the reverse engineering, disassembly or decompilation of the Programs and prohibit duplication of the Programs except for a single backup or archival copy; 4. Disclaim, to the extent permitted by applicable law, Oracle's liability for any damages, whether direct, indirect, incidental or consequential, arising from the use of the Programs; 5. Require the Sublicensee, at the termination of the Sublicense, to discontinue use and destroy or return to the Alliance Member all copies of the Programs and Documentation; 6. Prohibit publication of any results of benchmark tests run on the Programs; 7. Require the Sublicensee to comply fully with all relevant export laws and regulations of the United States to assure that neither the Programs, nor any direct product thereof, are exported, directly or indirectly, in violation of United States law; and 8. Specify Oracle as a third party beneficiary of the Sublicense agreement to the extent permitted by applicable law. C. MARKETING/SUBLICENSING PRACTICES In marketing and Sublicensing the Programs, the Alliance Member shall: 1. Not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Oracle or to the Programs; 2. Not make any representations, warranties, or guarantees to Sublicensees concerning the Programs the are inconsistent with or in addition to those made in this Agreement or by Oracle; and 3. Comply with all applicable federal, state, and local laws and regulations in performing its duties with respect to the Programs. 2.4 ACCEPTANCE OF PROGRAMS For each Program license for which delivery from Oracle is required under this Agreement, the Alliance Member shall have a 15 day Acceptance Period, beginning on the Commencement Date, in which to evaluate the Program. During the Acceptance Period, the Alliance Member may cancel the license by giving written notice to Oracle and returning the Program in accordance with Section 6.6 below. Unless such cancellation notice is given, the license will be deemed to have been accepted by the Alliance Member at the end of the Acceptance Period. 2.5 LIMITATIONS ON USE The Alliance Member shall not use or duplicate the Programs (including the Documentation) for any purpose other than as specified in this Agreement or make the Programs available to unauthorized third parties. The Alliance Member shall not (a) use the Programs for its internal data processing or for processing customer data; (b) rent, electronically distribute, or timeshare the Programs or market the Programs by interactive cable or remote processing services or otherwise distribute the Programs other than as specified in this Agreement; or (c) cause or permit the reverse engineering, disassembly, or decompilation of the Programs. 2.6 TITLE 2 Oracle shall retain all title, copyright, and other proprietary rights in the Programs and any modifications or translations thereof. The Alliance Member and its Sublicensees do not acquire any rights in the Programs other than those specified in this Agreement. 2.7 TRANSFER OF PROGRAMS The Alliance Member may transfer a Development License or Marketing Support License within its organization upon notice to Oracle; transfers are subject to the terms and fees specified in Oracle's transfer policy in effect at the time of the transfer. 2.8 USE OF PROGRAMS BY AGENTS The Alliance Member and each Sublicensee (as the case may be) shall have the right to allow each such party's own third party agents to use each such party's licensed Programs as licensed or Sublicensed under this Agreement so long as the applicable party ensures that its agents use the Programs in accordance with the terms of this Agreement or the applicable Sublicense agreement. 2.9 PRE-PRODUCTION PROGRAMS As an accommodation to the Alliance Member, Oracle may supply the Alliance Member with pre-production releases of Programs (which may be labeled "Alpha" or "Beta"). These products are not suitable for production use. 3. TECHNICAL SERVICES 3.1 TECHNICAL SUPPORT SERVICES Oracle shall provide Technical Support services ordered by the Alliance Member under Oracle's Technical Support policies in effect on the date Technical Support is ordered, subject to the payment by the Alliance Member of the applicable fees. Reinstatement of lapsed Technical Support services is subject to Oracle's Technical Support reinstatement fees in effect on the date Technical Support is reordered. The Alliance Member may obtain Technical Support services for Limited Production Programs and pre-production releases of Programs on a time and materials basis. 3.2 TRAINING SERVICES Oracle will provide training services agreed to by the parties under the terms of this Agreement. For any on-site services requested by the Alliance Member, the Alliance Member shall reimburse Oracle for actual, reasonable travel and out-of-pocket expenses incurred. 4. FEES AND PAYMENTS 4.1 LICENSE FEES AND SUBLICENSE FEES The Alliance Member may order Development Licenses or Marketing Support Licenses at the standard Program license fees set forth in the Price List or at the fees otherwise provided in a Sublicense Addendum. For each Sublicense granted by the Alliance Member, the Alliance Member agrees to pay Oracle a Sublicense fee as set forth in the applicable Sublicense Addenda. The Alliance Member shall not be relieved of its obligation to pay Sublicense fees owed to Oracle by the nonpayment of such fees by the Sublicensee. The Alliance Member is free to determine unilaterally its own license fees to its Sublicensees. If the Alliance Member or a Sublicensee upgrades the Programs to a larger computer, transfers the Programs outside the United States and/or to another operating system, or increases the licensed number of Users, the Alliance Member will pay additional Sublicense fees to Oracle as provided under Oracle's transfer policies and rates in effect at the time the Program is upgraded or transferred. 4.2 TECHNICAL SUPPORT FEES Technical Support services ordered by the Alliance Member for Development Licenses and Marketing Support Licenses will be provided under Oracle's Technical Support policies and rates in effect on the date Technical Support is ordered. 4.3 GENERAL PAYMENT TERMS Except as otherwise provided in a Sublicense Addendum, invoices for payment of license fees shall be payable 30 days from the Commencement Date. Technical Support fees for Sublicenses shall be payable as specified in the applicable Sublicense Addendum. Technical Support fees for Development Licenses and Marketing Support Licenses shall be payable annually in advance, net 30 days from the renewal date; such fees will be those in effect at the beginning of the period for which the fees are paid. Fees due by the Alliance Member shall not be subject to set off for any claims against Oracle. All payments made shall be in United States currency and shall be made without deductions based on any taxes or withholdings, except where such deduction is based on gross income. Any amounts payable by the Alliance Member hereunder which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. The Alliance Member agrees to pay applicable media and shipping charges. The Alliance Member shall issue a purchase order, or alternative document acceptable to Oracle, on or before the Effective Date of the applicable Order Form. 4.4 TAXES The fees listed in this Agreement do not include taxes; if Oracle is required to pay sales, use, property, value-added, or other federal, state or local taxes based on the licenses granted under this Agreement, or the Sublicenses granted by the Alliance Member, then such taxes shall be billed to and paid by the Alliance Member. This shall not apply to taxes based on Oracle's income. 5. RECORDS 5.1 RECORDS INSPECTION The Alliance Member shall maintain adequate books and records in connection with activity under this Agreement. Such records shall include, without limitation, executed Sublicense agreements, the information required in or related to the Sublicense reports required under a Sublicense Addendum, the number of copies of Programs used or Sublicensed by the Alliance Member, the computers on which the Programs are installed, and the number of Users 3 using the Programs. Oracle may audit the relevant books and records of the Alliance Member to ensure compliance with the terms of this Agreement upon reasonable notice to the Alliance Member. Any such audit shall be conducted during regular business hours at the Alliance Member's offices and shall not interfere unreasonably with the Alliance Member's business activities. If an audit reveals that the Alliance Member has underpaid fees to Oracle, the Alliance Member shall be invoiced for such underpaid fees based on the Price List in effect at the time the audit is completed. If the underpaid fees exceed five percent (5%) of the applicable license fees or Sublicense fees paid, then the Alliance Member shall pay Oracle's reasonable costs of conducting the audit. Audits shall be made no more than once annually. 5.2 NOTICE OF CLAIM The Alliance Member will notify the Oracle legal department promptly in writing of: (a) any claim or proceeding involving the Programs that comes to its attention; and (b) any material change in the management or control of the Alliance Member. 6. TERM AND TERMINATION 6.1 TERM This Agreement shall become effective on the Effective Date and shall be valid until the expiration or termination of all Sublicense Addenda hereunder, unless terminated earlier as set forth herein. If not otherwise specified on the Order Form, each Program license granted under this Agreement shall remain in effect perpetually under the terms of this Agreement unless the license or this Agreement is terminated as provided in this Article 6 below. The term of each Sublicense Addendum hereunder shall be as set forth in each such Addendum. 6.2 TERMINATION BY THE ALLIANCE MEMBER The Alliance Member may terminate any Program license, any Sublicense Addenda, or this Agreement at any time; however, termination shall not relieve the Alliance Member's obligations specified in Sections 6.5 and 6.6. 6.3 TERMINATION BY ORACLE Oracle may terminate any Program license, any Sublicense Addenda, or this Agreement upon written notice if the Alliance Member breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach. 6.4 FORCE MAJEURE Neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by strike, riot, fire, flood, natural disaster, or other similar cause beyond such party's control, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement if such condition continues for a period of one hundred eighty (180) days. 6.5 EFFECT OF TERMINATION Upon expiration or termination of a Sublicense Addendum or this Agreement, all the Alliance Member's rights to market and Sublicense the Programs as set forth in such Sublicense Addendum or this Agreement shall cease. The termination of this Agreement, a Sublicense Addendum, or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve the Alliance Member's obligation to pay all fees that have accrued or that the Alliance Member has agreed to pay under a Sublicense Addendum or any Order Form, other similar ordering document under this Agreement, or that appear in a Sublicense report. The parties' rights and obligations under Sections 2.5, 2.6, 2.7 and Articles 4, 5, 6, 7, and 8 shall survive termination of this Agreement. 6.6 HANDLING OF PROGRAMS UPON TERMINATION If a license granted under this Agreement expires or otherwise terminates, the Alliance Member shall: (a) cease using the applicable Programs; and (b) certify to Oracle within one month after expiration or termination that the Alliance Member has destroyed or has returned to Oracle the Programs and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. Before returning Programs to Oracle, the Alliance Member shall acquire a Return Material Authorization ("RMA") number from Oracle. 7. INDEMNITY, WARRANTIES, REMEDIES 7.1 INFRINGEMENT INDEMNITY Oracle will defend and indemnify the Alliance Member against a claim that Programs infringe a copyright or patent, provided that: (a) the Alliance Member notifies Oracle in writing within 30 days of the claim; (b) Oracle has sole control of the defense and all related settlement negotiations; and (c) the Alliance Member provides Oracle with the assistance, information and authority necessary to perform Oracle's obligations under this Section. Reasonable out-of-pocket expenses incurred by the Alliance Member in providing such assistance will be reimbursed by Oracle. Oracle shall have no liability for any claim of infringement based on use of a superseded or altered release of Programs if the infringement would have been avoided by the use of a current unaltered release of the Programs which Oracle provides to the Alliance Member. In the event the Programs are held or are believed by Oracle to infringe, Oracle shall have the option, at its expense, to (a) modify the Programs to be noninfringing; (b) obtain for the Alliance Member a license to continue using the Programs; or (c) terminate the license for the infringing Programs and refund the license fees paid for those Programs, prorated over a five year term from the Commencement Date. This Section 7.1 states Oracle's entire liability and the Alliance Member's exclusive remedy for infringement. 7.2 WARRANTIES AND DISCLAIMERS A. PROGRAM WARRANTY 4 Oracle warrants for a period of one year from the Commencement Date that each unmodified Program for which the Alliance Member has a Supported Program License will perform the functions described in the Documentation provided by Oracle when operated on the Designated System. B. MEDIA WARRANTY Oracle warrants the tapes, diskettes or other media to be free of defects in materials and workmanship under normal use for 90 days from the Commencement Date. C. SERVICES WARRANTY Oracle warrants that its Technical Support and training services will be performed consistent with generally accepted industry standards. This warranty shall be valid for 90 days from performance of service. D. DISCLAIMERS THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ORACLE DOES NOT WARRANT THAT THE PROGRAMS WILL RUN PROPERTY ON ALL HARDWARE, THAT THE PROGRAMS WILL MEET REQUIREMENTS OF THE ALLIANCE MEMBER OR THE SUBLICENSEES OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY THE ALLIANCE MEMBER OR THE SUBLICENSEES, THAT THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL PROGRAM ERRORS WILL BE CORRECTED. LIMITED PRODUCTION PROGRAMS, PRE-PRODUCTION RELEASES OF PROGRAMS, AND COMPUTER-BASED TRAINING, PRODUCTS ARE DISTRIBUTED "AS IS." The Alliance Member shall not make any warranty on Oracle's behalf. 7.3 EXCLUSIVE REMEDIES For any breach of the warranties contained in Section 7.2 above, the Alliance Member's exclusive remedy, and Oracle's entire liability, shall be: A. FOR PROGRAMS The correction of Program errors that cause breach of the warranty, or if Oracle is unable to make the Program operate as warranted, the Alliance Member shall be entitled to recover the fees paid to Oracle for the Program license. B. FOR MEDIA The replacement of defective media returned within 90 days of the Commencement Date. C. FOR SERVICES The reperformance of the services, or if Oracle is unable to perform the services as warranted, the Alliance Member shall be entitled to recover the fees paid to Oracle for the unsatisfactory services. 7.4 INDEMNIFICATION OF ORACLE The Alliance Member agrees to enforce the terms of its Sublicense agreements required by this Agreement and to notify Oracle of any known breach of such terms. The Alliance Member will defend and indemnify Oracle against: A. All claims and damages to Oracle arising from any use by the Alliance Member or its Sublicensees of any product not provided by Oracle but used in combination with the Programs if such claim would have been avoided by the exclusive use of the Programs; B. All claims and damages to Oracle caused by the Alliance Member's failure to include the required contractual terms set forth in Section 2.3.B hereof in each Sublicense agreement; and C. All claims and damages to Oracle caused by Sublicensees' breach of any of the applicable provisions required by Section 2.3 hereof. 7.5 EQUITABLE RELIEF The Alliance Member acknowledges that any breach of its obligations with respect to proprietary rights of Oracle will cause Oracle irreparable injury for which there are inadequate remedies at law and that Oracle shall be entitled to equitable relief in addition to all other remedies available to it. 8. GENERAL TERMS AND CONDITIONS 8.1 NONDISCLOSURE Neither party shall, without first obtaining the written consent of the other party disclose the terms and conditions of this Agreement, except as may be required to implement and enforce the terms of this Agreement, or as may be required by legal procedures or by law. No other information exchanged between the parties shall be deemed confidential unless the parties otherwise agree in writing. The Alliance Member shall not disclose the results of benchmark tests or other evaluation of the Programs to any third party without Oracle's prior written approval. 8.2 COPYRIGHTS The Programs are copyrighted by Oracle. The Alliance Member shall retain all Oracle copyright notices on the Programs used by the Alliance Member under its Development Licenses or Marketing Support Licenses. The Alliance Member shall include the following on all copies of the Programs in software Value-Added Packages incorporating the Programs distributed by the Alliance Member: A. A reproduction of Oracle's copyright notice; or B. A copyright notice indicating that the copyright is vested in the Alliance Member containing the following 1. A "c" in a circle and the word "copyright"; 2. The Alliance Member's name; 3. The date of copyright; and 4. The words "All Rights Reserved." Such notices shall be placed on the Documentation, the sign-on screen for any software Value-Added Package incorporating the Programs, and the diskette or tape labels. Notwithstanding any copyright notice by the Alliance Member to the contrary, the copyright to the Program included in any such application package shall remain in Oracle. Other than as specified above, on any reproduction or translation of any Programs, Documentation, or 5 promotional material, the Alliance Member agrees to reproduce Oracle's copyright notices intact. 8.3 TRADEMARKS "0racle" and any other trademarks and service marks adopted by Oracle to identify the Programs and other Oracle products and services belong to Oracle; the Alliance Member will have no rights in such marks except as expressly set forth herein and as specified in writing from time to time. The Alliance Member's use of Oracle's trademarks shall be under Oracle's trademark policies and procedures in effect from time-to-time. The Alliance Member agrees not to use the trademark "ORACLE," or any mark beginning with the letters "Ora" or any other mark likely to cause confusion with the trademark "ORACLE" as any portion of the Alliance Member's tradename, trademark for the Alliance Member's Value-Added Package, or trademark for any other products of the Alliance Member. The Alliance Member shall have the right to use the trademark "ORACLE" and other Oracle trademarks solely to refer to Oracle's Programs, products and services. The Alliance Member agrees with respect to each registered trademark of Oracle, to include in each advertisement, brochure, or other such use of the trademark, the trademark symbol "circle R" and the following statement: _____________ is a registered trademark of Oracle Corporation, Redwood City, California Unless otherwise notified in writing by Oracle, the Alliance Member agrees, with respect to every other trademark of Oracle, to include in each advertisement, brochure, or other such use of the trademark, the symbol "TM" and the following statement: _____________ is a trademark of Oracle Corporation, Redwood City, California The Alliance Member shall not market the Oracle Programs in any way which implies that the Oracle Programs are the proprietary product of the Alliance Member or of any party other than Oracle. Oracle shall not have any liability to the Alliance Member for any claims made by third parties relating to the Alliance Member's use of Oracle's trademarks. 8.4 RELATIONSHIPS BETWEEN PARTIES In all matters relating to this Agreement, the Alliance Member will act as an independent contractor. The relationship between Oracle and the Alliance Member is that of licensor/licensee. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this Agreement shall be construed to limit either party's right to independently develop or distribute software which is functionally similar to the other party's product, so long as proprietary information of the other party is not included in such software. 8.5 ASSIGNMENT The Alliance Member may not assign or otherwise transfer any rights under this Agreement without Oracle's prior written consent. 8.6 NOTICE All notices, including notices of address change, required to be sent hereunder, shall be in writing and shall be deemed to have been given when deposited in first class mail to the first address listed in the relevant Order Form (if to the Alliance Member) or to the Oracle address on the Order Form (if to Oracle). To expedite order processing, the Alliance Member agrees that Oracle may treat documents faxed by the Alliance Member to Oracle as original documents; nevertheless, either party may require the other to exchange original signed documents. 8.7 GOVERNING LAW/JURISDICTION This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the substantive and procedural laws of the State of California and shall be deemed to be executed in Redwood City, California. The parties agree that any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in San Francisco or San Mateo County, California. Oracle and the Alliance Member agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. 8.8 SEVERABILITY In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. 8.9 EXPORT The Alliance Member agrees to comply fully with all relevant export laws and regulations of the United States ("Export Law") to assure that neither the Programs, nor any direct product thereof, are (a) exported, directly or indirectly, in violation of Export Laws; or (b) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. 8.10 LIMITATION OF LIABILITY IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FARE PAID BY THE ALLIANCE MEMBER UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM THE ALLIANCE MEMBER'S USE OF THE PROGRAM OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT PROGRAM OR SERVICES GIVING RISE TO THE LIABILITY, PRORATED OVER A FIVE-YEAR TERM FROM THE COMMENCEMENT DATE OF THE APPLICABLE LICENSE OR THE DATE OF PERFORMANCE OF THE APPLICABLE SERVICES. 6 The provisions of this Agreement allocate the risks between Oracle and the Alliance Member. Oracle's pricing reflects this allocation of risk and the limitation of liability specified herein. 8.11 FEDERAL GOVERNMENT SUBLICENSES If the Alliance Member grants a Sublicense to the United States government, the Programs shall be provided with "Restricted Rights" and the Alliance Member will place a legend, in addition to applicable copyright notices, on the documentation, and on the tape or diskette label, substantially similar to the following: RESTRICTED RIGHTS LEGEND "Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Department of Defense Regulations Supplement ("DFARS") 252.227-7013, Rights in Technical Data and Computer Software (October 1988) and Federal Acquisition Regulation ("FAR") 52.227-14, Rights in Data-General, including Alternate III (June 1987), as applicable. Oracle Corporation, 500 Oracle Parkway, Redwood City, CA 94065." 8.12 WAIVER The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non-payment or breach of Oracle's proprietary rights in the Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. 8.13 ENTIRE AGREEMENT This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document. It is expressly agreed that the terms of this Agreement and any Order Form shall supersede the terms in any Alliance Member purchase order or other ordering document. This Agreement shall also supersede the terms of any shrinkwrap or break-the-seal license agreement included in any package for Oracle-furnished software, except terms contained in such license agreement that grant specific use rights for the Programs. The Effective Date of this Agreement shall be________________________________. EXECUTED BY CABLEDATA, INC. EXECUTED BY ORACLE CORPORATION: Authorized Signature: /s/ Michael McGrail Authorized Signature:___________ Name: Michael McGrail Name:___________________________ Title: President Title:__________________________ Oracle Corporation 500 Oracle Parkway Redwood Shores, CA 94065 (415) 506-7000 Oracle is a registered trademark of Oracle Corporation. 1-95 7 AMENDMENT ONE TO THE BUSINESS ALLIANCE PROGRAM AGREEMENT BETWEEN CABLEDATA, INC. AND ORACLE CORPORATION This Amendment One shall serve to amend the Business Alliance Program Agreement, and any amendments thereto, between CableData, Inc. (the "Alliance Member") and Oracle Corporation ("Oracle") dated ___________________ (the "Agreement"). The Agreement is amended as follows: 1. The following shall be inserted at the end of the introductory paragraph of the Agreement: "The term "Alliance Member" for purposes of this Agreement shall include the Alliance Member and the Alliance Member's wholly or majority owned subsidiaries which are specified on the attached Subsidiary Exhibit as of the Effective Date. Each Subsidiary must agree in writing to be bound by the terms of the Agreement." 2. In Section 6.5, delete the first paragraph and replace it with the following: "Each Sublicensee of the Alliance Member effective at the time of expiration or termination of this Agreement shall upon execution of a Sofware License and Services Agreement (the "SLSA"), have the ability to place orders for additional Programs directly with Oracle. All orders placed by the Sublicensee shall be placed pursuant to the Terms and Conditions of the SLSA between Oracle and such Sublicense." Other than the modification set forth above, the terms and conditions of the Agreement remain unchanged, and in full force and effect. The Effective Date of this Amendment One is_______________________, 1996. CABLEDATA, INC. ORACLE CORPORATION By: /s/ Michael McGrail By: --------------------------------- ----------------------------- Name: Michael McGrail Name: ------------------------------- --------------------------- Title: President Title: ------------------------------ -------------------------- SUBSIDIARY EXHIBIT CUO, Inc. CableData International Ltd. CableLease, Inc. ORACLE-Registered Trademark- FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM This document (the "Addendum") is between Oracle Corporation ("Oracle") and CableData, Inc. (the "Alliance Member") and shall be governed by the terms of the Business Alliance Program Agreement between the Alliance Member and Oracle effective __________, 19__ (the "Agreement") and the terms set forth below. 1. PROGRAM DISTRIBUTION 1.1 SUBLICENSE OF PROGRAMS AND TERMS The Alliance Member shall have the right to market and grant Sublicenses of Full Use Programs or Deployment Programs which are available in production release and listed on Oracle's Price List in effect at the time the Programs are ordered from Oracle to Sublicense to a Sublicensee; provided, however, the Alliance Member shall have no right to Sublicense any Programs designated as Oracle Applications Programs, Oracle Express Programs, Limited Production Programs, or other Programs specified by Oracle from time-to-time without the prior written consent of Oracle. The Alliance Member shall have the right to market and grant Sublicenses of Full Use or Deployment Programs for use on Designated Systems in conjunction with the Integrated System to Sublicensees. Each copy of the Full Use or Deployment Programs distributed shall be for the Sublicensee's own internal use in the Territory only on a single Designated System limited to a maximum number of Users. To acquire Programs for Sublicensing to Sublicensees, the Alliance Member shall order such Programs from Oracle. Each order shall specify the applicable Programs, maximum number of Users, computer/operating system configuration, fees, shipping location, and any other information required by Oracle for processing the order. Orders for Trial Sublicenses shall be clearly marked on the face of the Order Form. 1.2 DISTRIBUTION UNDER ORACLE AGREEMENT In addition to the Sublicense rights specified in Section 2.3.A of the Agreement and notwithstanding the terms of such Section and Section 3.2.B of the Agreement, the Alliance Member shall have the right to market and grant Sublicenses of Full Use Programs and Deployment Programs in conjunction with the Integrated System to Sublicensees under a standard Oracle Software License and Services Agreement in lieu of Sublicensing the Programs under a written Sublicense agreement. The Alliance Member may submit orders for Sublicenses to Oracle for its acceptance. With each such order, the Alliance Member shall submit a standard Oracle Software License and Services Agreement executed by the applicable Sublicensee, or shall reference on such order that the Programs will be licensed to the Sublicensee subject to an existing license agreement effective between the Sublicensee and Oracle (the "Oracle Agreement"). In addition, as part of the Oracle Agreement, the Alliance Member shall obtain the Sublicensee's written agreement that the ordered Programs and services are subject to the terms and conditions of the Oracle Agreement. If the Sublicensee is a federal agency, the Alliance Member shall submit with each such order a written document executed by an authorized Sublicensee contracting officer which contains the following provision: "This is an open market order placed pursuant to terms identical to the terms and conditions of Oracle's General Services Administration (GSA) Schedule A Contract for Oracle Programs current as of the order date, with the exception of the maximum order lineations, discounts, maintenance, training units and other discounts specific to the applicable Oracle GSA Schedule. No other pre-printed or reference terms and conditions shall apply." This written document shall be deemed the applicable Oracle Agreement. For orders which include only shrinkwrapped Oracle Programs, the Oracle Agreement may consist of a written obligation by the Sublicensee to use the Programs under the terms of the shrinkwrap license agreement. The Alliance Member shall indemnify Oracle for any claims, damages, or losses arising from failure to obtain any Oracle Agreement. If the order specifies that the Programs are to be delivered to the Alliance Member, the Alliance Member shall have the right to re-deliver the Programs with their original packaging to the applicable Sublicensee. 1.3 FULL USE AND DEPLOYMENT PROGRAMS For the purposes of this Addendum, "Full Use Programs" shall mean unaltered versions of the Programs with all functions intact. "Deployment Programs" shall mean Programs which are limited to use solely for the purpose of running applications, and may not be used to create or alter tables or reports except as necessary for operating the applications. 1.4 VALUE-ADDED PACKAGE For the purposes of this Addendum, "Integrated System" shall mean the hardware and software products having Value-Added which are developed, sold, and/or licensed with the Programs to a Sublicensee by the Alliance Member to satisfy such Sublicensee's internal business requirements and objectives. For purposes of the Agreement, the Integrated System will be regarded as the Alliance Member's Value-Added Package which is described in the attached Value- Added Attachment. The Integrated System shall be regarded as "Value-Added" if the following materials are provided as part of the Integrated System by the Alliance Member: (a) non-Oracle developed software; (b) customized programming or customized consulting; and (c) other computer products or components. 1.5 TRIAL SUBLICENSES The Alliance Member shall be entitled to grant, at no charge, up to ten (10) temporary Trial Sublicenses of the Programs at any one time. Such Sublicenses shall be for evaluation purposes only and shall be for a period not to exceed thirty (30) days. The Alliance Member shall pay Oracle Sublicense fees for any Trial Sublicenses in excess of thirty (30) days. Each such Trial Sublicense shall be Sublicensed under a Sublicense agreement which provides for such trial use or under an Oracle Trial License Agreement, as the applicable Oracle Agreement. 1.6 NO DISTRIBUTORS The Alliance Member's right to market and grant Sublicenses of Full Use Programs or Deployment Programs hereunder shall be limited to the Alliance Member only. The Alliance Member shall not appoint any third party to distribute the Programs without Oracle's prior written consent. 1.7 DOCUMENTATION Oracle shall deliver one copy of the applicable Documentation with each order of Programs for Sublicensing to Sublicensees. 2. SUBLICENSE FEES 2.1 SUBLICENSE FEES AND RATE For each copy of the Programs Sublicensed by the Alliance Member, the Alliance Member agrees to pay Oracle a Sublicense fee equal to [*] of the applicable license fee for each such Program, as specified in the applicable Price List and Alliance Member Price List supplement to such Price List in effect at the time the applicable Programs are Sublicensed to a Sublicensee. The Sublicense fee shall be calculated effective on the date of the Sublicense, which shall be the date the Programs are shipped by Oracle or the effective date of the order to Oracle for such Programs, if no shipment is required. Fees for Sublicense of Programs shall be due and payable on the date that Oracle ships the applicable Programs and shall be deemed overdue if not paid within thirty-one (31) days of the due date. The Alliance Member shall not be relieved of its obligation to pay Sublicense fees owed to Oracle by the nonpayment of such fees by the Sublicensee. 2.2 PRICE LIST As set forth in the Agreement, the applicable Price List for determining Sublicense fees shall be the standard Price List in effect at the time the Program is Sublicensed to a Sublicensee. However, pricing for any federal agency, pursuant to terms and conditions identical to the terms and conditions of Oracle's GSA Schedule A Contract for Oracle Programs current as of the order date, shall be based on Oracle's published GSA Price List. Notwithstanding any other provision of this Agreement, if the Alliance Member issues a written Sublicense quote and such quote is accepted by the applicable Sublicensee, for a period of ninety (90) days after the date of submission of the quote to the Sublicensee, the fee applicable to the Programs identified in the quote shall be based on the Price List in effect on such date. 2.3 USERS The fees for Sublicense of a Program shall be based and priced on the applicable User Level for the maximum number of Users for such Program, as specified in the Price List. The Alliance Member shall have the right to Sublicense on any User basis specified in the Price List in effect at the time the applicable Program is Sublicensed to a Sublicensee. 3. TERM This Addendum shall become effective on the Effective Date of this Addendum and shall be valid for one (1) year (the "Term"), unless terminated as provided in the Agreement. Any renewal of this Addendum shall be subject to renegotiation of terms and fees. 4. TERRITORY The Alliance Member shall have the right to market and grant Sublicenses of Full Use Programs or Deployment Programs in the United States only (the "Territory"). 5. TECHNICAL SUPPORT 5.1 TECHNICAL SUPPORT FOR SUBLICENSEES A Sublicensee may acquire Technical Support services for Full Use Programs or Deployment Programs Sublicensed under this Addendum from Oracle at Oracle's standard rates and fee in effect at the time such Technical Support services are ordered under an Oracle Technical Support Services Agreement or Oracle Agreement, as applicable. 5.2 TECHNICAL SUPPORT FEES Oracle agrees that the Alliance Member shall have the right to offer Oracle annual Technical Support services to Sublicensees in the United States that are currently acquiring Full Use Programs or Deployment Programs. The Alliance Member shall only offer Oracle Technical Support services with respect to the initial first year of Technical Support for a Sublicensed Program. The Alliance Member shall only offer Oracle annual Technical Support services to a Sublicensee provided that: A. Oracle receives from the Sublicensee an executed, standard Oracle Technical Support Services Agreement, Oracle Agreement, or other terms to govern the Technical Support services as agreed to in writing by Oracle and the Sublicensee; B. The Full-Use or Deployment Programs are currently Sublicensed by the Alliance Member; C. The Alliance Member pays Oracle its required Sublicense fee for the applicable Sublicensed Programs as provided under the Agreement, and the Alliance Member pays Oracle the applicable *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 2 Technical Support services fees as set forth herein in advance; D. The Alliance Member's Sublicense of the Full Use Programs or Deployment Programs coincides with the agreement to provide Technical Support Services for such Programs; and E. The net Technical Support services fees represent new Technical Support revenue to Oracle. The Technical Support services fees payable by Alliance Member as provided above shall be Oracle's standard rates for such services as provided under the Price List in effect at the time the Technical Support services are ordered, discounted by ten percent (10%). 6. SUBLICENSE REPORTS With each order for Programs for Sublicense to a Sublicensee, the Alliance Member shall send Oracle a report detailing for each Sublicensed Full Use Program or Deployment Program: Sublicensee name, address, make/model and operating system of the Designated System. Full Use or Deployment Programs, maximum number of licensed Users, whether the Sublicense is a Trial Sublicense, total Program fees and Technical Support Fees due to Oracle, and specific descriptions of the Integrated System and Value-Added. 7. ADDITIONAL LICENSES During the Term, the Alliance Member may order production release versions of Oracle off-the-shelf Programs available as production release as of the Effective Date of this Addendum and listed on the Price List in effect as of such date. The license fee for Development Licenses shall be equal to Oracle's standard list license fees in effect when an order is placed. The Alliance Member shall have the right to order Programs for use as Marketing Support Licenses at no further charge to the Alliance Member. The Alliance Member may obtain Technical Support services from Oracle for such Programs under Oracle's applicable Technical Support fees and policies in effect when such services are ordered. The Effective Date of this Addendum shall be________________________. EXECUTED BY CABLEDATA, INC.: EXECUTED BY ORACLE CORPORATION: Authorized Signature: /s/ Michael McGrail Authorized Signature: ------------------- ------------- Name: Michael McGrail Name: ------------------------------------ ----------------------------- Title: President Title: ----------------------------------- ---------------------------- ORACLE Oracle Corporation 500 Oracle Parkway Redwood Shores, CA 94065 (415) 506-7000 Oracle is a registered trademark of Oracle Corporation. 8-95 3 VALUE-ADDED ATTACHMENT DESCRIPTION OF INTEGRATED SYSTEM: CableData's Intelecable Solution HARDWARE COMPONENTS: IBM RS6000, SP platforms Tandem Integrity NR platform Tandem OSS/Non Stop platform SOFTWARE PRODUCTS OTHER THAN PROGRAMS: BEA Tuxedo TP monitor middleware products other 3rd party software programs that may be necessary SERVICES TO BE PROVIDED BY THE ALLIANCE MEMBER: Professional services; installation, implementation, support custom software integration projects AMENDMENT ONE TO THE FULL USE AND DEPLOYMENT SUBLICENSE ADDENDUM BETWEEN CABLEDATA, INC. AND ORACLE CORPORATION This Amendment One shall serve to amend the Full Use and Deployment Sublicense Addendum dated ______________ (the "Addendum") between CableData, Inc. (the "Alliance Member") and Oracle Corporation ("Oracle"). The Addendum is amended as follows: 1. In Section 1.5, delete the words "ten (10)" and replace them with the words "twenty (20)." Also, delete the words "thirty (30)" in each instance in which they appear in such Section and replace them with the words "ninety (90)." 2. After Section 1.2, add the following new Section: "1.2.A Pass-Through Order As set forth in Section 1.2 above, the Alliance Member shall have the right to distribute Full Use Programs and Deployment Programs under a standard Oracle Software License and Services Agreement. In addition to the procedure set forth in Section 1.2 above, if elected by the parties, Oracle shall issue an Oracle Order Form documenting (i) that the end user shall receive a license for the applicable Programs under the terms and conditions of the applicable Software License and Services Agreement between Oracle and the end user, and (ii) that the Alliance Member shall be responsible for paying Oracle for the Oracle products and services provided by Oracle to the end user under the Order Form ("Pass-Through Order"). All three parties will be required to execute the Pass-Through Order in order for such order to be effective. Also, the Alliance Member shall provide its purchase order with such Pass-Through Order. The Pass- Through Order shall constitute the end user's written agreement that the ordered products and services are ordered subject to the terms and conditions of the Oracle Agreement. The fees due to Oracle by the Alliance Member under such Pass-Through Order shall be equal to the total amount as set forth on the Pass-Through Order less ten percent (10%) of the net license fees on the Pass-Through Order." 3. After Section 1.2A, add the following new Section: "1.2B. COMMISSIONS During the Term of this Addendum, Oracle agrees to pay the Alliance Member a fee ("Commission") equal to [*] of the net license fees Oracle receives from Programs licensed by Oracle to end-users in the Territory, as a direct result of the Alliance Member's marketing efforts. Unless otherwise mutually agreed to in writing by the Alliance Member and Oracle, Commissions shall only be paid provided that: A. Oracle obtains from the end-user an Oracle Software License and Services Agreement, or other terms to govern the applicable software license as agreed to in writing by Oracle and the end-user; B. The Alliance Member provides to Oracle a completed Commission Request Form which is accepted in writing by Oracle at least five (5) days prior to the date of license of the applicable Programs, and the end user pays Oracle directly for all required license fees; C. The Alliance Member's marketing efforts precede the license grant from Oracle; and D. The net license fees represent new revenue to Oracle. The Alliance Member's Commission shall be calculated on fees for perpetual software licenses only. The Alliance Member shall not earn a Commission based on Technical Support fees or fees for other services or products provided to the end-user by Oracle. Commissions shall not be paid with respect to any distribution transactions under Sections 1.2 and 1.2.A of this Addendum, unless otherwise agreed to in writing by Oracle. Oracle reserves the right to withhold payment of the Commissions due to noncollectability of revenues from the end-user or if the Alliance Member employs marketing practices not approved by Oracle. Commissions shall be paid for Program licenses installed in the Territory. If one or *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. more other Alliance Members seek to obtain Commission for a Program license for which the Alliance Member is seeking Commission, Oracle shall reasonably reduce or adjust the Commission rate specified above to apportion payment of commissions between all Alliance Members which in Oracle's reasonable judgement are entitled to payment of commissions. A copy of the Commission Request Form is attached hereto as Exhibit A." 4. In Section 2.1, add the following new paragraph at the end of such Section: "Notwithstanding any other provision of this Section, if Oracle confirms in writing that the Sublicensee is a party to an existing and effective agreement with Oracle which allows such Sublicensee to acquire the Programs to be Sublicensed to such Sublicensee at a greater discount than the discount provided in this Section, the Sublicense Fee for the Sublicense of such Programs to such Sublicensee shall be equal to the Oracle standard Program license fee for such Program as specified in the applicable Price List specified in the applicable agreement with Oracle, discounted by the applicable discount for such Program licenses as specified in such agreement. In order to allow Oracle to verify that such discount is applicable, Oracle may require the Alliance Member to attach a copy of the applicable agreement to the Alliance Member's Order Form for such Programs." 5. In Section 2.2, add the following new sentence to the end of such Section: "All Sublicense fees for Sublicenses installed outside the United States shall be based on the Oracle Global Price List in effect at the time the Programs are Sublicensed." 6. In Section 4, delete the body of such Section in its entirety and replace it with the following: "4. TERRITORY The Alliance Member shall have the right to market and grant Sublicenses of Programs in the Application Package in all countries worldwide, (the "Territory"), subject to the terms of this Section. Oracle may from time to time deny the Alliance Member the right to Sublicense in certain countries in the Territory in order to protect Oracle's interests if, in the reasonable opinion of Oracle's counsel, such countries (i) do not provide adequate protection for Oracle's proprietary rights through copyright, trade secret, patent, or other laws; or (ii) have laws or regulations or the government has committed acts which in the opinion of Oracle's counsel, are injurious to Oracle's interests in the Programs. The Alliance Member acknowledges that the Programs are subject to export controls imposed on Oracle and the Alliance Member by the U.S. Export Administration Act, United States Departments of Commerce, Treasury, and State regulations and directives, and other United States law ("Export laws"). The Alliance Member certifies that neither the Programs nor any direct product thereof are (i) exported, directly or indirectly, in violation of Export laws; or (ii) are intended to be used for any purposes prohibited by the Export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Furthermore, the Alliance Member shall not transfer the Programs outside of the territory for which the Alliance Member has Sublicense rights under this Agreement. The Alliance Member warrants that it will not grant Sublicenses in or ship any Programs to a country until it has completed all necessary government formalities in such country and upon reasonable request by Oracle, the Alliance Member provides evidence of completion of such formalities to Oracle. The Alliance Member will indemnify Oracle for any losses, costs, liability, and damages incurred by Oracle as a result of a failure by the Alliance Member to comply with the necessary government requirements in any country. The obligations under this Section shall survive the expiration or termination of this Addendum. Upon Oracle's reasonable request, the Alliance Member shall make records available to Oracle to allow to confirm the Alliance Member's compliance with this Section." 7. In Section 7, delete the second sentence of such Section and replace it with the following: "The license fee for Development Licenses shall be at a discount of [*] off Oracle's standard list license fees in effect as of the Effective Date of this Addendum." Other than the modifications set forth above, the terms and conditions of the Addendum remain unchanged, and in full force and effect. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. The Effective Date of this Amendment One is_________________________, 1996. CABLEDATA, INC. ORACLE CORPORATION By: By: ------------------------------------ ----------------------------- Name: Michael McGrail Name: ------------------------------------ ----------------------------- Title: President Title: ----------------------------------- ---------------------------- EXHIBIT A COMMISSION REQUEST FORM Alliance Member Name:__________________________________________________________ Company Name:__________________________________________________________________ Address:_______________________________________________________________________ City:____________________________ State:__________________________ Zip:________ Contact Name/Title:________________________ Phone Number:______________________ Type of Business Organization:_________________________________________________ Annual Revenue $:___________________________ # of Employees:___________________ Existing Software:_____________________________________________________________ Proposed Software Solution:____________________________________________________ Hardware Platform/Operating System:____________________________________________ Oracle Programs:_______________________________________________________________ Projected Order Date:__________________________________________________________ Projected Dollar amount of Order:______________________________________________ Amount of Commission requested:________________________________________________ Alliance Member direct marketing efforts:______________________________________ _______________________________________________________________________________ _______________________________________________________________________________ Additional Information:________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ Any Commission payable under this Commission Request Form shall be specific to the license of Programs as specified above to the end user set forth above. The amount of Commission specified above shall not be applicable to any other Program licenses by Oracle. The Effective Date of this Commission Request Form shall be__________________. EXECUTED BY THE ALLIANCE MEMBER: EXECUTED BY ORACLE CORPORATION: Authorized Signature: Authorized Signature: ---------------- ---------------- Name: Name: -------------------------------- -------------------------------- Title: Title: ------------------------------- ------------------------------- EX-10.21 5 EXHIBIT 10.21 EXHIBIT 10.21 DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into as of __________________, 1994 (the "Effective Date"), by and between U.S. COMPUTER SERVICES, a California corporation doing business as CableData and having its principal place of business at 2969 Prospect Park Drive, Rancho Cordova, CA 95670 ("CableData"), and TANDEM COMPUTERS INCORPORATED, a Delaware corporation having a place of business at 19333 Vallco Parkway, Cupertino, CA 95014 ("Tandem"). RECITALS A. CableData owns, or has rights to, and currently licenses and distributes, certain computer application software products used in market segments of the cable television and telephony industries, including without limitation, DTH (Direct to Home), DBS (Direct Broadcast Satellite), SMATV (Single Master Antennae Television), MDS (Microwave Distribution System), MMDS (Multipoint Microwave Distribution System), CATV (Cable Television) and TVRO (Television Receiving Only). The telephony industry includes, without limitation, local telephone, personal communication networks, cellular, paging and land lines. Such products include those that are designed to operate on the Tandem Non-Stop Kernel operating system and the IBM RS6000 AIX operating system and other UNIX systems. One of these CableData products is CableData's Intelecable, which CableData owns all rights, title and interest in and to, and which currently operates only on IBM's RS6000 AIX ("CableData's Intelecable"). B. In accordance with this Agreement, CableData now wishes to develop a separate version of CableData's Intelecable to operate on Tandem's Non-Stop Kernel and Integrity NR computer platforms and to enhance it for the domestic convergence market (the "Product"), and to market, support and maintain the Product in the above referenced market segments within selected countries once it is developed. C. Tandem wishes to assist CableData in its development of the Product by providing certain [*] support specified in this Agreement. D. Tandem and CableData intend to enter into a separate Tandem Alliance Agreement (the "Alliance Agreement") on or about the Effective Date to (a) further govern CableData's marketing, sale, maintenance and support of the Product on Tandem platforms once it has been developed and (b) to govern CableData's value added reselling or system integration of certain Tandem NonStop Kernel and Integrity NR hardware and software products in the designated market segments and countries. NOW, THEREFORE, in consideration of these premises and of the mutual promises and conditions contained in this Agreement, Tandem and CableData hereby agree as follows: 1. DEFINITIONS. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-1 1.1 "Acceptance Criteria" are the mutually agreed upon written technical and operational performance and functional criteria and Documentation standards set forth in the Development Plan attached as Exhibit A. The Acceptance Criteria will be reviewed from time to time and mutually agreed upon changes made as appropriate. 1.2 "Acceptance Date" means the date Tandem accepts the completed Product in accordance with the Development Plan and this Agreement. 1.3 "Deliverable" is a deliverable under the Development Plan, including, but not limited to, object code, Specifications or Documentation. 1.4 "Development Plan" is the written development plan for the Product mutually agreed to by the parties to be set forth in Exhibit A, which includes, but is not limited to, the Acceptance Criteria, Deliverables, Documentation, Milestones and Specifications. 1.5 "Documentation" is the documents, manuals, product descriptions and other written materials for the Product, referred to, indicated or described in the Development Plan, including, but not limited to, any user manuals, operating materials or Specifications. 1.6 "Eligible Products" means Tandem's Non-Stop Kernel and Integrity NR hardware and software products described in Exhibit B attached hereto. 1.7 "Milestone" is the completion of all of the Deliverables included in a phase as described in the Development Plan. 1.8 "Specifications" are the functional specifications, external and internal design specifications, product descriptions and other Documentation prepared by CableData and approved by Tandem, which define the purpose, functions, features and performance of the Product set forth in the Development Plan. 1.9 "Subscriber" means, for purposes of this Agreement, each active subscriber on CableData's Product during any month. A month, for purposes of this definition, is the period between successive final month-end cutoffs for CableData's or its subsidiaries' distributors' or agents' invoicing purposes. An "active" subscriber, for purposes of this definition, is a residential, business, educational or governmental entity subscribing to one or more services in the Target Market. 1.10 "System Libraries" means the code libraries described in the Development Plan that interface CableData's Intelecable with the Tandem Platforms. 1.11 "The Tandem Platforms" are Tandem's NonStop Kernel and Integrity NR computer systems and their successor systems, however designated, so long as the successor platforms are binary compatible with the NonStop Kernel and Integrity NR operating systems, whichever the case may be. 1.12 "Target Market" means the CATV, DTH, DBS, MDS, MMDS, SMATV, TVRO, telephony or convergence market segments in the countries set forth in attached Exhibit C. The parties may agree from time-to-time to add certain market segments or countries to, or delete them from, the Target Market. CableData Port of Intelecable-2 2. DEVELOPMENT OF PRODUCT. 2.1 GENERALLY CableData will complete the development of the Product in accordance with the Development Plan, including, but not limited to, porting the System Libraries to be capable of operating on the Tandem Platforms. All personnel assigned by CableData to the development of the Product shall possess suitable technical skills and expertise consistent with the requirements of their respective assignments under the Development Plan. Except for the "Tandem Payment" described in Section 3.1 and the Tandem support described in Section 2.2, CableData will be responsible for all costs, facilities, equipment and support related to the development of the Product and its other obligations under this Agreement. 2.2 TANDEM SUPPORT. In addition to the Tandem Payment, Tandem will assist CableData in developing the Product by providing CableData with a combined credit for up to [*] to be applied solely towards (a) Eligible Products purchased or licensed from Tandem and (b) Tandem technical and professional services referred to in the Development Plan ("Professional Services"). Tandem may use subcontractors to provide Professional Services under this Agreement. Each time CableData acquires such Eligible Products and Professional Services, Tandem will debit the [*] credit based on the discounted price Tandem then customarily charges its Alliance Partners for the applicable Eligible Product or Professional Service (the "Discount Price"). If CableData has not exhausted the entire credit by the Acceptance Date, it will expire and unused credit amounts will be retained by Tandem. The credit will apply only to Eligible Products developed, owned and manufactured by Tandem and not to Eligible Products acquired by Tandem from third parties. CableData may purchase or license a reasonable quantity of such third party Eligible Products from Tandem at its then-current cost. If CableData exhausts the entire credit, it must pay for any additional Eligible Products and Tandem Professional Services it acquires at the Discount Price. Eligible Products acquired by CableData under this Section 2.2 will be used solely by CableData to satisfy its obligations under this Agreement and will be subject to Tandem's then-current Development System Policies and Guidelines and its then-current local standard agreement(s) for the purchase and the license of Tandem Eligible Products and the acquisition of Professional Services. The Eligible Product purchase agreement(s) and the Professional Services agreement will be mutually agreed to and entered into by the parties during the course of the development of the Product (the "Product Purchase Agreement" or the "Professional Services Agreement"). 2.3 DEVELOPMENT DEPENDENCIES. Tandem recognizes that the Product will utilize the Tuxedo transaction processing system. Tandem will use reasonable efforts to make a version of Tuxedo which is suitable for Product acceptance testing hereunder available on its Non-Stop Kernel platform no later than the third calendar quarter of 1995. Tandem also recognizes that the Product must utilize Sun Microsystems' ONC RPC protocol in order for it to be ported to the Integrity NR platform. Therefore, Tandem will use reasonable best efforts to make a version of such protocol available on the Integrity NR platform for Product acceptance testing hereunder. Tandem further agrees to use reasonable best efforts to make its D30 version of its NonStop Kernel operating system (a) POSIX 1003.1 (v. 1990) compliant in accordance with release 1 under Tandem's NonStop Kernel Open System Services (OSS) Product API implementation document dated May 13, 1994, (b) POSIX 1003.2 compliant in accordance with release 1 under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities implementation document *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-3 dated September 15, 1994 and (c) National Language Support ("NLS") XPG4-I18.N compliant, in each case for Product acceptance testing hereunder. If Tandem does not (i) make Tuxedo available, (ii) achieve POSIX 1003.1 and POSIX 1003.2 compliance, or (iii) achieve NLS XPG4-I18.N compliance, in each case as and when set forth above, then CableData's obligation to deliver the completed NonStop Kernel or Integrity NR version of the Product, whichever the case may be, on the date set forth in the Development Plan will be extended for a period of time equal to the period of time that such availability or compliance is delayed, or for such other period of time as the parties may otherwise agree upon in writing, and the parties will revise relevant Milestone due dates accordingly. 2.4 ACCEPTANCE TESTING. 2.4.1 Each Deliverable will be created by CableData in accordance with the Specifications and Development Plan to meet the Acceptance Criteria and will be subject to Tandem's approval, also in accordance with the Acceptance Criteria. Acceptance tests shall be run in the presence of representatives designated by Tandem and CableData, respectively, using mutually agreed to test data and cases corresponding to mutually agreed upon test procedures. The acceptance tests shall establish whether each Milestone satisfies the Acceptance Criteria and conforms to the Specifications applicable to such Milestone. 2.4.2 Tandem shall notify CableData in writing within five (5) business days of any failure(s) or deviation(s) of a Deliverable discovered in acceptance testing. CableData shall submit to Tandem, as soon as possible, but in any event within five (5) business days after receipt of notification of a failure, a proposed plan of action to correct such failure which shall have a reasonable opportunity for success. CableData will amend its proposed plan of action as reasonably required by Tandem, and will promptly and diligently implement the same upon Tandem's approval thereof. 2.5 PROJECT CHANGE ORDERS AND SCHEDULE CHANGES. From time to time during the development phase of this Agreement, either party may submit requests which alter, amend, enhance, add to, or reduce the other party's obligations under the Development Plan. Each party shall evaluate such requests and promptly respond to the other party, within fourteen (14) days, or such other period of time as the Project Managers may mutually agree to, with a description of the technical, price, schedule, and Deliverable impacts of the requested change for current and subsequent phases of the development. Any additions, deletions, modifications, or changes which affect any obligation of either party shall be documented in project change orders issued hereunder ("Change Orders"). Such Change Orders will include, but not be limited to, the agreed upon changes in Specifications, the impact on the development schedule and the impact, if any, on the cost of the development of the Product. Change Orders will be incorporated herein upon acceptance in writing by both parties as if attached hereto. 2.6 PROJECT MANAGEMENT. 2.6.1 TANDEM PROJECT MANAGER. Tandem shall designate a Project Manager (the "Tandem Project Manager") who shall have overall responsibility for the: (i) coordination of the development of the Product; (ii) acceptance of Deliverables; and (iii) approval of Change Orders. The CableData Port of Intelecable-4 Tandem Project Manager shall be CableData's point of contact within Tandem for the resolution of any problems that may arise in connection herewith. 2.6.2 CABLEDATA PROJECT MANAGER. CableData shall designate a Project Manager (the "CableData Project Manager"), who shall have overall responsibility for the: (i) direction and coordination of the development of the Product; and (ii) approval of Change Orders. The CableData Project Manager shall be Tandem's point of contact within CableData for the resolution of problems which may arise in connection herewith. 2.6.3 MANAGEMENT PROCEDURES. The CableData Project Manager and Tandem Project Manager shall establish and implement reasonable project management procedures. Such project management procedures shall include, without limitation, the following: (a) regularly scheduled project status meetings occurring at least once a quarter during the development of the Product and thereafter during the term of this Agreement to discuss the overall status of the development of the Product and each party's ongoing obligations and efforts under this Agreement (the "Quarterly Meetings"); (b) product design review meetings in the development of the Specifications; (c) Change Order procedures; (d) payment certification procedures; (e) acceptance testing; and (f) all other management procedures reasonably deemed necessary by the CableData Project Manager and Tandem Project Manager. The CableData Project Manager will provide a project status report which will be generated upon CableData's completion of each Milestone. In addition to the Quarterly Meetings, each Manager will meet with the other Manager at his or her reasonable request to coordinate with respect to any dispute which may arise relating to the scope, direction or performance of the development of the Product. 2.6.4 MEETINGS AND SCHEDULES. In addition to the Project Manager, each party will designate one (1) person to attend each Quarterly Meeting to be a technical specialist to speak for that party with respect to technical matters. The parties' Project Managers and technical representatives may be replaced at any time, by written notice of the designating party to the other party. Each party will cause its Project Manager and representative to attend the Quarterly Meetings in locations and at times reasonably acceptable to both parties. Each party shall be responsible for its own costs and expenses in attending and participating in such meetings. The CableData Project Manager shall also develop internal time and responsibility schedules as are necessary to accomplish the development of the Product in accordance with this Agreement and shall take appropriate action to maintain such schedules and to promptly resolve development problems and Specification issues as they arise. The CableData Project Manager shall supply copies of all such schedules to the Tandem Project Manager, upon its reasonable request. 2.7 PRODUCT MARKETING, MAINTENANCE AND SUPPORT. 2.7.1 MARKETING. CableData will actively, diligently and competitively market the Product on the Tandem Platforms in all countries within the Target Market in accordance with the Marketing Plan referred to below in Section 2.7.2. On a case-by-case basis, the parties may agree to expand the Target Market to other market segments or non-English speaking countries on mutually agreeable terms. CableData may market the Product directly, through subsidiaries, through local distributors selected by CableData, or through other means or mechanisms selected by CableData, and CableData Port of Intelecable-5 CableData shall retain complete discretion in the appointment and use of such distributors, means or mechanism, subject to its marketing obligations set forth in Section 2.7 and the Alliance Agreement. CableData's use of distributors, subsidiaries or agents to market the Product will not release it from any of its obligations under this Agreement. 2.7.2 MARKETING PLAN. The Alliance Agreement will include a mutually agreed to Marketing Plan for the Product. The Marketing Plan may provide for joint participation in business and trade shows, exhibitions, and similar events, cooperative marketing and communications with distributors and customers and appointment of a marketing representative for each party. In accordance with the Alliance Agreement, each party will cause its employees to cooperate with the other party's employees in such joint or cooperative marketing efforts agreed to under the Marketing Plan. If marketing representatives are provided for, each party may change its representative upon notice to the other party. 2.7.3 MAINTENANCE OF FUNCTIONALITY AND FEATURES. During the term of this Agreement, CableData will ensure that the Product's functionality and features are available on each Tandem Platform and are equivalent to the highest level of functionality and features CableData provides for other versions of CableData's Intelecable, or its similar software products, which operate on non-Tandem computer platforms. This will include, without limitation, assuring that the System Libraries, and the Product as a whole, comply with (a) POSIX 1003.1 (v. 1990) in accordance with release 1 under Tandem's NonStop Kernel Open System Services (OSS) Product API implementation document dated May 13, 1994, (b) POSIX 1003.2 in accordance with release 1 under Tandem's NonStop Kernel Open System Services (OSS) Product Utilities implementation document dated September 15, 1994 and (c) those portions of National Language Support XPG4-I18.N which are material to the full and proper operation of the Product in the language of any non-English speaking country that the parties may agree to add to the Target Market from time-to-time so that CableData is able to market such version of the Product in such country promptly after the parties have agreed to such addition. CableData will announce that such functionality and features will be available on the applicable Tandem Platform at the same time and to the same extent as it announces that the functionality and features are or will be available on any non-Tandem platform. CableData will provide such functionality and features on the applicable Tandem Platform no later than ninety (90) days after the date it first provides such functionality on any non-Tandem platform. Notwithstanding the foregoing, if an end-user customer dictates that the Product include third party software functionality or features that are not then available on either Tandem Platform, and CableData reasonably determines that it is not technically feasible to make such functionality or features available on either Tandem Platform under this Section 2.7.3, then before or promptly after making the functionality or features available on the non-Tandem platform CableData will give Tandem notice of that fact and the parties will thereafter promptly meet to review CableData's determination. If Tandem reasonably agrees that making such functionality or features available is technically unfeasible, then CableData need not make such functionality or features available on either Tandem Platform or the parties may agree to attempt to make the functionality or features available on mutually acceptable terms, which may include further Tandem monetary and/or technical support. On the other hand, if the parties do not agree on the technical feasibility of making such third party functionality or features available, then the dispute will be resolved in CableData Port of Intelecable-6 accordance with the dispute resolution provisions of Section 12.9 below and CableData's obligation to make the functionality or features available on the Tandem Platforms will be deferred until the dispute is resolved. If the maintenance of the functionality and features of the Product under this Section 2.7.3 results in any modifications or enhancements to or derivative works of the Product, such modifications, enhancements or derivative works will be considered part of the Product. 2.7.4 ALLIANCE AGREEMENT. Tandem and CableData will enter into the Alliance Agreement. When entered into, the Alliance Agreement will govern the marketing, sale, maintenance and support of the Product to and for Tandem customers for use with Eligible Products, as modified or supplemented by any additional or different terms in this Section 2.7, if any. The Alliance Agreement will also govern any mutually agreed to discounts or fees provided to CableData in connection with CableData acting as a value added reseller or system integrator of Eligible Products or a Tandem Alliance software house. 3. FUNDING OF THE DEVELOPMENT. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-7 [*] 4. COOPERATION. Each party shall cooperate with the other party during the term of the Agreement as follows: 4.1 TECHNICAL DIRECTION AND INFORMATION. Each party will use good faith efforts to provide the other party with advance notices of new product developments and releases that its technical representative under this Agreement has determined have applicability and appropriateness to the Product and Eligible Products as soon as practical, but in no event later than such information is publicly disclosed by the party providing such information. The receiving party shall treat such advance notices as confidential and proprietary information of the other party in accordance with Section 7.4. 4.2 NEW PRODUCTS. As and when Tandem releases or makes available in a country within the Target Market any new software products for use with Eligible Products, Tandem and CableData may jointly evaluate such products for applicability to the Product, and in the event that they reasonably agree that such products are applicable to the Product, then Tandem may provide CableData with a machine-executable copy of the product free of charge solely for evaluation purposes in accordance with the terms of the Product Purchase or Loan Agreement. 4.3 EXISTENCE OF AGREEMENT. Neither party shall disclose the existence of this Agreement until such time as the parties shall mutually agree upon and implement a public announcement, except to its employees, contractors or agents who have a strict need to know about it in order for such party to meet its obligations under this Agreement; thereafter, either party may disclose the existence of this Agreement, but neither party shall disclose the specifics of the Agreement to third parties without the prior written consent of the other party, except to its employees, contractors or agents as set forth above, as may be required by law or to its auditors in the internal operations of its business. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-8 5.1 RETAINED DISCOUNTS AND INFLUENCE FEES. Beginning on the first day of the first calendar quarter following the Effective Date and for the remaining portion of a (5) year period commencing as of the Effective Date, Tandem will retain [*] during the first year of such period, [*] during the second year of such period and [*] during the third, fourth and fifth years of such period, of (a) any and all "Discounts" (defined in the Alliance Agreement) CableData receives under the Alliance Agreement for purchases, licenses or leases of any Tandem products, including, but not limited to, Eligible Products, for value added resale, system integration, internal use, service bureau or any other purpose, except for use as a Tandem development system ("Retained Discounts"), and (b) any and all software house "Revenue Influence Fees" (defined in the Alliance Agreement), or any other fees CableData receives under the Alliance Agreement on revenue Tandem obtains from a customer's purchase or lease of Tandem hardware, which result from any and all CableData application or other software packages covered by the Agreement, including, but not limited to, the Product ("Retained Fees"). For example, if CableData is acting as a Tandem value added reseller in the second year of the retention period and is receiving a [*] Discount, then Tandem will retain [*] points of the Discount leaving CableData with a [*] percent [*] net Discount; and if in the third year of the retention period CableData then becomes a software house instead of a value added reseller and is receiving a [*] percent [*] Revenue Influence Fee, then Tandem will retain [*] percentage points of the Fee leaving CableData with a net Fee of [*] percent [*]. Cumulative Retained Discounts and Retained Fees during the retention period will be capped at [*]. 5.2 SUBSCRIBER FEE. Beginning on the Effective Date and for a period of five (5) years thereafter, CableData will accrue for Tandem's benefit a Subscriber count fee as follows: For each customer of CableData providing Subscriber services in the Target Market (other than non-paying Beta site customers) who uses the Product on or with any Eligible Product in any manner (including, without limitation, via licensing or in a service bureau arrangement), no matter who owns, leases, possesses, operates or controls the Eligible Product itself, Tandem shall earn a fee of [*] per month per subscriber (the "Subscriber Fee"). Cumulative Subscriber Fees during the five (5) year Subscriber Fee period will be capped at [*]. 5.3 FEE OFFSETS. Within thirty (30) days after Tandem receives each monthly Subscriber Fee report from CableData described in Section 5.5 below, it will, for CableData's benefit, (a) offset accrued and previously unoffset Retained Discounts and Retained Fees against all accrued Subscriber Fees which have not been previously offset against and (b) provide CableData with a written report of the offset. For example, if at the end of the first month there are [*] in Retained Discounts and Retained Fees and CableData's Subscriber Fee report shows [*] in Subscriber Fees, the offset will leave no remaining unoffset Retained Discounts and Retained Fees to carry forward for the next month and [*] in remaining accrued Subscriber Fees. If in the next month there are [*] in new Retained Discounts and Retained Fees and [*] in new Subscriber Fees, then the [*] in newly accrued Retained Discounts and Retained Fees will be offset against a total of $100,000 in new and previously accrued and unoffset Subscriber Fees leaving a zero balance in both the accrued Retained Discount and Retained Fees account and the accrued Subscriber Fee account to carry forward for the next month. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-9 5.4 FINAL RECONCILIATION OF FEES. At the end of the five (5) year period described in Sections 5.1 and 5.2 above, if there are any remaining unoffset Subscriber Fees CableData will pay this amount to Tandem by check at Tandem's office at 19333 Vallco Parkway, Cupertino, CA 95014 within thirty (30) days after the end of the (5) year period. If at the end of the five (5) year period the cumulative amount of all accrued Subscriber Fees, including those which have received an offset, does not equal [*] CableData does not have to pay Tandem the difference between such cumulative amount and [*]. If at the end of the five (5) year period, all remaining Retained Discounts and Retained Fees exceed all remaining Subscriber Fees, CableData will not be entitled to the excess which will be retained by Tandem. 5.5 RECORDS AND REPORTS. CableData shall keep complete and accurate written records of Subscriber Fees and Tandem will keep complete and accurate written records of Retained Discounts and Retained Fees. Beginning with the second month following the Effective Date, for each calendar month during the five (5) year period referred to in Section 5.1 and 5.2 above, CableData will provide, within fifteen (15) days after the end of each month, a written report so that Tandem can determine the Fees offset for that month. Not more than once per calendar quarter, within thirty (30) days after written request to the other party, Tandem or CableData shall, through an independent third party, be entitled to conduct an audit and review of the financial records and reports of the other party relating to Subscriber Fees and counts or Retained Discounts and Retained Fees in order to verify the proper amounts of accrued Subscriber Fees and offsets. The audit shall occur within normal business hours, at the corporate headquarters in California of the party being audited. The auditing party shall be entitled to retain an independent certified public accounting firm to assist it with the audit. The parties shall be responsible for their own costs and expenses in connection with the audit, unless the independent auditor determines that the audited party's financial records were materially incomplete or inaccurate by at least [*] percent [*], in which case it will bear the other party's costs and expenses of that audit. 5.6 TAXES. All taxes, duties, fees and other governmental charges of any kind, including withholding taxes (except based on Tandem's net income), which are levied, assessed, or otherwise imposed by or under the authority of any government or any political subdivision thereof, on revenues derived by CableData, its subsidiaries, distributors or agents in connection with licenses of the Product or Retained Discounts and Retained Fees and Subscriber Fees, will not be considered a part of, deducted from, or offset against any Subscriber Fees payable to or Discounts and Fees retained by Tandem under this Section 5. 6. NON-EXCLUSIVITY. The parties agree that the relationship between them set forth in this Agreement is non-exclusive and each party is free to enter into similar or other agreements with third parties. 7. PROPRIETARY RIGHTS. 7.1 OWNERSHIP OF THE PRODUCT. CableData shall retain exclusive ownership of all right, title and interest in and to the Product, and all portions thereof (including, but not limited to System Libraries), now existing or to be developed or adapted pursuant to this Agreement by *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-10 CableData, Tandem, any third party or parties, or their respective employees, representatives, agents, consultants, independent contractors, successors and assigns, in any and all forms (including but not limited to source code and machine-executable code), all derivative works thereof and enhancements thereto, all Product documentation, work papers or written development materials relating to any of the foregoing developed pursuant to this Agreement, and all Intellectual Property Rights in any of the foregoing; and Tandem hereby assigns to CableData all right, title, and interest in and to any of the foregoing (including but not limited to, assignment of any copyrights it may have to the System Libraries), which it may otherwise have or be deemed to acquire in the Product. Upon CableData's request, Tandem agrees to assist CableData at CableData's sole expense as may be reasonably required to perfect CableData's rights as described in this Section 7.1, which assistance shall include the execution of any and all instruments or documents that may be necessary or convenient to establish, evidence, maintain, defend or enforce CableData's rights as described in this Section 7.1. "Intellectual Property Rights" means all right, title and interest in and to patents, patent applications, copyrights, mask work rights, trademarks, trade names and trade secrets. 7.2 OWNERSHIP OF ORIGINAL WORKS OF TANDEM. CableData does not claim any rights to original works created or owned by Tandem which are not part of the Product, including but not limited to any Eligible Products. All Intellectual Property produced by Tandem created prior to the effective date of this Agreement or which is not part of the Product will be owned by Tandem, except to the extent such work contains any portion of the Product or any other original work of CableData. CableData recognizes and agrees that Tandem has and retains any and all know-how, ideas, design concepts or techniques employed by Tandem in rendering Professional Services to CableData under this Agreement which are not covered by Section 8.1, including all Intellectual Property rights therein, and may provide similar services to third parties. 7.3 NO IMPLIED LICENSES. This Agreement shall not be construed or interpreted to grant to either party any right or license, by implication, estoppel or otherwise, to sell, transfer, assign, develop, or make any use of this Product or any of the Eligible Products, except as expressly provided in this Agreement or in the Alliance Agreement. Without limiting the generality of the foregoing sentence, except as set forth in the Alliance Agreement, neither party shall have any rights to adapt, alter, localize, license or sublicense to third parties any of the foregoing items, without the prior written consent of the other party, which may be granted or withheld in the other party's sole discretion. Except as expressly set forth in this Agreement or the Alliance Agreement, neither party shall employ, retain, or subcontract with any third party or parties to perform any obligations or exercise any rights it may have under this Agreement, unless such party has first obtained the prior written consent of the other party to such action, which consent will not be unreasonably denied. 7.4 CONFIDENTIALITY. 7.4.1 PROTECTION OF CONFIDENTIAL INFORMATION. Should either party disclose any of its confidential information for any purpose in connection with this Agreement, the party receiving the information shall maintain the information in confidence, shall use at least the same degree of CableData Port of Intelecable-11 care to maintain the secrecy of the information as it uses in maintaining the secrecy of its own proprietary, confidential and trade secret information, shall always use at least a reasonable degree of care in maintaining the secrecy of the information, shall use the information only for the purpose of performing its obligations under this Agreement unless hereafter agreed in writing by the other party. Neither party shall disclose any such information to any person except those of its employees, agents and contractors having a need to know in order to accomplish the sole purpose stated above, and shall require each employee, agent and contractor before he or she receives direct or indirect access to the information, to acknowledge the confidential, proprietary and trade secret nature of the information and to agree to be bound by this Section 7.4. Each party shall deliver to the other party, in accordance with any request from the other party, all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the other party's confidential information. 7.4.2 LIMITATION ON OBLIGATIONS. Neither party shall have an obligation with respect to any portion of such information which (i) was known to it prior to receipt from the other party, (ii) is lawfully obtained by either party from a third party under no obligation of confidentiality or (iii) is or becomes publicly available other than as a result of any act or failure to act of either party. Confidential Information must be marked or otherwise clearly designated as such in writing by the disclosing party prior to disclosure or within five (5) days of disclosure if provided orally. 7.4.3 INCLUDED WITHIN CONFIDENTIAL INFORMATION. For purposes of this Section 7.4, confidential information made available to Tandem by CableData may include, without limitation, the Product and other CableData software application products made available to Tandem in the course of performance of this Agreement, and all documentation and code relating thereto, and confidential information made available to CableData by Tandem may include without limitation all information relating to the Eligible Products and any other hardware or software Products Tandem provides CableData in the course of performance of this Agreement, and all documentation and code related thereto. Confidential information shall also include, but is not limited to, either party's proprietary, technical, developmental, marketing, sales, operating performance, cost, know-how, business and process information, computer programming techniques, and all record-bearing media containing or disclosing such information and techniques, as well as any samples, models or prototypes, or parts thereof. 7.5 USE OF TRADEMARK, NAME. Except as set forth in the Alliance Agreement, each party agrees not to use the other's name, trade name, trademark, service mark, or other designation without such other party's prior written consent. 8. WARRANTY. CableData represents and warrants that (a) it owns all right, title and interest in and to CableData's Intelecable and in and to all of the Intellectual Property it will use to develop the Product and perform its obligations under this Agreement or (b) it has the authority to do so without infringing the rights of any third party or creating any financial obligation to any third party. 9. INDEMNIFICATION. CableData will defend or settle any claim against Tandem (a) resulting from the performance or use of the Product and any information CableData supplies about the same, or (b) that the Product CableData Port of Intelecable-12 infringes any patent, utility model, industrial design, copyright, trade secret, mask work, trademark or servicemark, provided Tandem promptly notifies CableData in writing of the claim and cooperates with CableData in and grants it sole authority to control the defense and any related settlement. CableData will pay the costs of such defense and settlement and any costs and damages finally awarded against Tandem. THE ABOVE STATES TANDEM'S EXCLUSIVE REMEDY AND CABLEDATA'S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT BY THE PRODUCT. 10. NO CONSEQUENTIALS. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY IS INFORMED OF THEIR POSSIBILITY, INCLUDING, BUT NOT LIMITED TO, LOSS OF RECORDS OR DATA, GOODWILL, PROFITS, USE OF MONEY OR PRODUCTS, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS, ARISING OUT OF CONTRACT OR TORT. 11. TERM AND TERMINATION. 11.1 TERM. This Agreement shall become effective on the date first written above and shall continue in effect thereafter for a period of five (5) years unless sooner terminated pursuant to this Section 11. 11.2 TERMINATION. 11.2.1 TERMINATION FOR BREACH OR INSOLVENCY. A party may terminate this Agreement, effective upon dispatch of written notice of termination to the other party, without judicial notice or resolution, if: (a) the other party breaches any of its material obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of notice specifying the breach; or (b) the other party ceases to conduct business in the normal course; becomes insolvent; enters into suspension of payments, moratorium, reorganization or bankruptcy; makes a general assignment for the benefit of creditors; admits in writing its inability to pay debts as they mature; suffers or permits the appointment of a receiver for its business or assets; or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-13 [*] 11.2.2 TERMINATION OTHER THAN FOR BREACH. 11.2.2.1 ELECTION TO TERMINATE. Notwithstanding anything to the contrary in this Agreement, prior to Tandem's acceptance of both the final Development Plan and the final Marketing Plan referred to in Section 3.1(b) above, if for any reason whatsoever, Tandem or CableData decides in its sole and absolute discretion not to agree (a) to the preliminary Development Plan, or any part thereof, (b) to the final Development Plan, or any part thereof, (c) to the final Marketing Plan, or any part thereof or (d) to enter into the Alliance Agreement, then either party (the "Terminating Party") may provide the other party (the "Non-Terminating Party") with notice that it elects to end its participation in the development of the Product and terminate the Agreement. However, within five (5) business days of the date of the Non-Terminating Party's receipt of such notice, the Non-Terminating Party may provide the Terminating Party with notice requesting that a Vice President designated by each party jointly meet with all Project Managers and technical representatives at an agreed upon date and time within five (5) business days of the Terminating Party's receipt of such notice to confer regarding the Terminating Party's election to terminate. If the meeting is requested, each party will cause such persons to attend the meeting. If the parties have not agreed in writing within five (5) days from the date of the meeting to continue the Agreement it will be considered terminated at the end of such (five) 5 day period. Each party may change its designated Vice President with notice to the other party and the decisions of the Vice Presidents will bind the respective party. If the Non- Terminating Party does not request the above described meeting in the time provided for above, then the Agreement will be deemed terminated as of the date of the Terminating Party's notice of election to terminate. [*] 11.2.2.2 REMEDY FOR ELECTION TO TERMINATE. If the Agreement is terminated by either party in the manner set forth in Section 11.2.2.1 above, a party's election to terminate will not be considered a breach of this Agreement by such party. In addition, no matter which party elects to terminate the Agreement, within thirty (30) days of the date of termination, [*] and notwithstanding anything to the contrary in this Agreement, neither party will have any further liability of any kind to the other party in connection with this Agreement and the development of the Product, except for liability for any breach of the Agreement which occurred prior to such termination and *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-14 any liability in connection with rights and obligations under this Agreement which survive its termination under Section 12.18 or survive under the relevant provisions of a Product Purchase Agreement or a Professional Services Agreement. 11.3 EFFECT OF TERMINATION. Except as otherwise expressly stated in this Section 11.2 or in Section 12.18 below (Survival), upon any termination of this Agreement all rights and obligations of each party to this Agreement shall expire and be of no further force or effect. Upon the termination of this Agreement for any reason, each party will promptly deliver to the other party all of the other party's Confidential Information in its possession or control. 11.4 EXCLUSIVE REMEDY. THE REMEDIES PROVIDED FOR IN SECTIONS 11.2.1.1, 11.2.1.2 AND 11.2.2.2, AND ANY REMEDIES EXPRESSLY PROVIDED FOR ELSEWHERE IN THIS AGREEMENT, STATE THE ENTIRE LIABILITY OF A PARTY, AND THE SOLE AND EXCLUSIVE REMEDY OF THE OTHER PARTY, FOR THE ACTS OR OMISSIONS OF A PARTY WHICH GIVE RISE TO SUCH REMEDIES, EXCEPT FOR ANY REMEDIES PROVIDED FOR BREACH OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT. [*] 12. MISCELLANEOUS PROVISIONS. 12.1 INDEPENDENT CONTRACTORS. 12.1.1 No provision of this Agreement shall be construed to constitute either party as the agent, servant, employee, partner, or joint venturer of the other party. The parties to this Agreement are and shall remain independent contractors. Each party shall retain exclusive management, direction, and control of its employees and the work to be performed by it hereunder. 12.1.2 All personnel assigned by one party to work with the other party pursuant to this Agreement shall remain employees of the assigning party, and shall possess suitable technical skills and expertise consistent with the requirements of their respective assignments. Each party shall cause any of its employees assigned to provide services at the other party's facilities to comply with all reasonable regulations and instructions while at such facilities, which were previously provided to the other party or the employee. Each party shall have the right to exclude from its premises any persons who refuse to individually sign a nondisclosure and confidentiality agreement substantially in the form of and no more restrictive than the provision of Section 7.4 herein. The assigning party shall indemnify and hold the other party harmless from any and all damages and losses finally awarded for any claims, suits or liability for bodily injury, death, or damage to real property or tangible personal property, which results from any failure by such personnel to comply with such regulations and instructions (other than the negligence of the party to whom the personnel were assigned). The indemnifying party shall have sole control of any litigation and/or settlement and the indemnified party will promptly *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-15 notify the indemnifying party when it first learns of such suit, claim or action. The indemnified party will provide the indemnifying party with reasonably requested assistance in the defense or settlement of the suit, claim or action. 12.2 NO ENDORSEMENT. TANDEM DOES NOT APPROVE, ENDORSE, WARRANT OR GUARANTEE THE PRODUCT. CABLEDATA WILL NOT REPRESENT TO ANY THIRD PARTY THAT TANDEM HAS APPROVED, ENDORSED, WARRANTED OR GUARANTEED THE PRODUCT WITHOUT THE SPECIFIC PRIOR WRITTEN CONSENT OF TANDEM. 12.3 COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original instrument, but both of which together shall constitute only one and the same instrument. 12.4 ASSIGNMENT. Neither this Agreement nor any right or obligation hereunder is assignable or delegatable in whole or in part, whether by operation of law or otherwise, except (a) as otherwise expressly set forth in this Agreement or (b) upon prior written consent of the other party, which consent will not be unreasonably withheld. Any assignment or delegation which violates this Section is void. Notwithstanding the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns. The successor or assign of a party hereto shall execute and deliver all documents and instruments reasonably requested by the other party to evidence and confirm its obligations under this Agreement. 12.5 NOTICES AND OTHER COMMUNICATION. Every notice or other communication required or contemplated by this Agreement to be given by any party shall be delivered either by (i) personal delivery, (ii) postage prepaid, return receipt requested, registered or certified mail (airmail if available), or the equivalent of registered or certified mail under the laws of the country where mailed, (iii) nationally recognized overnight courier, such as Federal Express or UPS, or (iv) facsimile with a confirmation copy sent simultaneously by postage prepaid, return receipt requested, registered or certified mail, in each case addressed to the party for whom intended at the following address: To CableData: U.S. Computer Services 2969 Prospect Park Drive Rancho Cordova, CA 95670 Attn: Bob Crowley, VP Marketing Division Facsimile: (916) 636-5750 With a copy to: General Counsel Facsimile: (916) 636-4561 To Tandem: Tandem Computers Incorporated 19191 Vallco Parkway Cupertino, CA 95014 Attn: Vice President & General Manager Communications Division Facsimile: (408) 285-5458 or at such other address as a party previously shall have designated by written notice to the other party. Notice by registered or certified mail CableData Port of Intelecable-16 shall be effective on the date it is officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the 5th business day after it was deposited in the mail. All notices and other communications required or contemplated by this Agreement to be delivered in person or sent by courier shall be deemed to have been delivered to and received by the addressee and shall be effective on the date of personal delivery; notices delivered by "tested" telex or by facsimile with simultaneous confirmation copy by registered or certified mail shall be deemed delivered to and received by the addressee and effective on the first business day in the location where the facsimile was received after the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. 12.6 LAW TO GOVERN. The validity, construction and enforceability of this Agreement shall be governed in all respects by the laws of California, except its choice of law provisions, whether or not one or more of the parties shall now be or hereafter become a resident of another state or country. 12.7 SUBJECT HEADINGS. The subject headings of the Articles and Sections of this Agreement are included for the purpose of convenience only, and shall not affect the construction or interpretation of any of its provisions. 12.8 NO WAIVER OF RIGHTS. All waivers hereunder must be made in writing, and failure at any time to require any other party's performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation or any other obligation under this Agreement. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver of modification of the provision or any other provision of this Agreement. 12.9 SETTLEMENT OF DISPUTES. Any controversy or claim between the parties arising out of or in connection with this Agreement shall first be submitted for resolution as follows. Within thirty (30) days of the time that such dispute or controversy arises, a Vice President of each party shall confer in good faith in an attempt to resolve the controversy or claim. The decisions of the Vice Presidents will be final and binding on the parties. Either party may change its representative at any time with prior notice to the other party. A party's election to terminate this Agreement under Section 11.2.1.1 or 11.2.1.2 is not subject to the foregoing. A party's election to terminate this Agreement under Sections 11.2.2 and 12.19 will be resolved solely in the manner described in those Sections. 12.10 STATUTE OF LIMITATIONS. Neither party will bring a legal action related to this Agreement more than four (4) years after the cause of action arose. Nothing in this Agreement will affect the limitation period applicable to any action or proceeding for (i) unauthorized use or disclosure of confidential information provided under this Agreement or (ii) infringement of proprietary rights. 12.11 ENTIRE AGREEMENT. This Agreement represents the entire understanding and agreement between the parties concerning the subject matter CableData Port of Intelecable-17 hereof and supersedes any and all prior negotiations, understandings or agreements in regard thereto, oral or written. 12.12 EXPENSES. Except as expressly provided herein to the contrary, each party to this Agreement shall be solely responsible for its expenses incurred in connection with the negotiation, preparation, execution, delivery and performance of this Agreement. 12.13 AMENDMENTS. This Agreement or the Exhibits hereto may not be modified except by an instrument or instruments in writing signed by the party or parties against whom enforcement of such modification is sought. 12.14 INCORPORATION BY REFERENCE. Exhibits A through F attached to this Agreement and referred to herein are hereby incorporated by reference into this Agreement. 12.15 SEVERABILITY. Whenever possible, this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement should be prohibited or invalid under applicable law, such provision shall be construed as ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. 12.16 EXPORT CONTROLS. CableData acknowledges that the Eligible Products, and all related confidential and technical information, documents and materials, are subject to export controls under the U.S. Export Administration Regulations. CableData will, cause its subsidiaries, affiliates, agents, distributors, and customers to: (i) comply strictly with all legal requirements established under these controls; (ii) cooperate fully with Tandem in any official or unofficial audit or inspection that relates to these controls and (iii) not export, re- export, divert, transfer or disclose, directly or indirectly, any Eligible Products, or related confidential or technical information, document or material, or any direct product thereof, to any of the countries currently or subsequently listed in the U.S. Export Administration Regulations, or to any national or resident thereof, without obtaining the prior written authorization of Tandem and the U.S. Commerce Department. 12.17 UNLAWFUL PAYMENTS. Neither CableData nor Tandem will use any payment or other benefit derived from the other to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement, while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to (i) any person acting in an official capacity for any government or its instrumentalities (including government-owned or controlled corporations) or any non-governmental client or prospective client or (ii) any political party, party official or candidate for political office. 12.18 SURVIVAL. Each party's rights and obligations under Sections 5 (Recoupment of Tandem Payment) and Section 12.19 (Export Controls) are expressly intended to survive the expiration or termination of this Agreement. However, if the Agreement is terminated in accordance with Sections 11.2.1.1 or 11.2.1.2 of Section 11.2.1, then each party's rights and obligations under Section 5 will not survive, except with respect to the Integrity NR version of the Product if it is completed before termination and CableData Port of Intelecable-18 [*] In addition, no expiration or earlier termination of this Agreement shall relieve either party of its rights or obligations under Section 7 of this Agreement (Proprietary Rights), which rights and obligations are expressly intended to survive any such expiration or termination. 12.19 FORCE MAJEURE. Neither party will be liable for any failure or delay in performing an obligation that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations or labor strikes. If any such cause continuously prevents or delays performance of this Agreement for more than sixty (60) days, the party awaiting performance may elect to terminate this Agreement by providing notice to the other party in the manner set forth in Section 11.2.2.1, and the other party may invoke the request for meeting procedures set forth in such Section. In the event a force majeure event occurs prior to Tandem's acceptance of the completed Product and Tandem is the party awaiting performance, if Tandem thereafter terminates this Agreement as provided for above, [*]. IN WITNESS WHEREOF, the parties have caused their authorized representatives to execute this Agreement in each party's name as of the Effective Date. "CableData" "Tandem" U.S. COMPUTER SERVICES, TANDEM COMPUTERS INCORPORATED a California corporation By: /s/ Robert D. Crowey By: /s/ John Sims --------------------------- -------------------------- Name: Robert D. Crowey Name: John Sims ------------------------- ------------------------ Title: Senior Vice President Title: Vice President _____________________________ ___________________________ *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CableData Port of Intelecable-19 EXHIBIT A Development Plan CableData Port of Intelecable-20 EXHIBIT B Eligible Tandem Products The following Tandem hardware and software products described in Tandem's published Price List as of the Effective Date: 1. All servers running the Guardian operating system and all associated attached peripheral devices. 2. Himalaya series servers (currently K100, K1000 and K10000) running the NonStop Kernel operating system and all associated attached peripheral devices, including systems designated by Tandem as their successors. 3. Integrity NR servers (NR4401, NR4412, NR4436 designations) running UNIX operating system 5.4 (IRIX or Tandem based UNIX operating systems) and all associated attached peripheral devices, including systems designated by Tandem as their successors. CableData Port of Intelecable-21 EXHIBIT C Target Market Countries United States of America; Guam; Puerto Rico; Canada; United Kingdom of Great Britain and Northern Ireland; Australia CableData Port of Intelecable-22 EX-10.22 6 EXHIBIT 10.22 EXHIBIT 10.22 [LOGO] HEWLETT PACKARD PORTING AGREEMENT This Porting Agreement ("Agreement") is made effective JANUARY 25, 1996 (the ---------------- "Effective Date"), between CABLEDATA INC., ("Supplier"), --------------- a CALIFORNIA CORPORATION, and HEWLETT-PACKARD COMPANY ("HP"), a California ---------------------- Corporation. 1. PORT AND ENHANCEMENTS 1.1. Supplier has developed TELECOM APPLICATION software that facilitates SUBSCRIBER MANAGEMENT FOR INTEGRATED CABLE AND TELEPHONY as more particularly described in Exhibit A ("Programs'). 1.2. HP and Supplier desire to have the Programs ported to run on the HP 9000 computer systems in all their supported configurations and with all associated peripherals ("HP Products"). 1.3. Supplier shall port the Programs to the HP Products in accordance with the deliverables, specifications, development schedule, and other requirements contained in Exhibit A. 1.4. In order to assist Supplier in its porting obligations under this Agreement, HP shall provide access to HP Products in accordance with Exhibit B. 1.5. Any versions, releases, modifications. updates, upgrades, error corrections, new features, or new functionalities developed by Supplier for the Programs ("Enhancements") shall be made commercially available by Supplier on the HP Products no later than the date by which each such Enhancement is commercially available on Supplier's development platform. 1.6. Except to the extent of any performance limiting features of an HP Product, all ported Programs and Enhancements shall perform on the HP Products with features, functionality, and speed no less than that of the performance of the Programs and Enhancements on IBM & TANDEM platforms. 1.7. Supplier shall adapt all Programs and Enhancements to operate on object code compatible revisions, releases and successors to the HP Products. 1.8. Supplier shall conduct performance tests on each ported Program or Enhancement consistent with the criteria and procedures specified in Exhibit C. When a Program or Enhancement successfully passes those tests, Supplier shall deliver to HP a copy of the Program or Enhancement, together with the test results and all other deliverables required under this Agreement. 1.9. A port shall be complete when the ported Program or Enhancement operates on the HP Products in accordance with sections 1.3, 1.6, and 1.8 above. 1.10. Except as provided in section 1.4 above and in Exhibit B&E Supplier shall bear all costs and expenses with respect to performing its obligations under this Agreement. 2. MARKETING 2.1. Supplier shall be solely responsible for all marketing and distribution of Programs and Enhancements. Supplier shall market and distribute all Programs and Enhancements on the HP Products to the same extent and for the same duration as on comparable non-HP platforms. 2.2. Supplier shall promote all Programs and Enhancements on the HP Products in a commercially reasonable fashion. Such promotion shall include a statement in Supplier's literature of the availability of the Programs and Enhancements on the HP Products. 2.3. Except as expressly provided in this Agreement, neither HP nor Supplier has made any promise or other representation regarding any Program or Enhancement, including with respect to the success of any Program or Enhancement in the marketplace. 2.4. Upon completion of the port of the Programs initially ported pursuant to sections 1.3, 1.8, and 1.9 above, HP may assist Supplier in becoming a U.S. Value Added Business in accordance with HP's standard programs and agreements. 2.5. Supplier shall provide HP with 0 (ZERO) free copies of each Program and Enhancement. including all associated documentation. Such copies shall be for demonstration, benchmarking, support, and training purposes. 2.6. In addition to the free copies specified above, Supplier shall grant HP a N/A percent discount from its standard published price list for all Programs and Enhancements purchased by HP. 3. SUPPORT 3.1. Supplier shall be solely responsible for all maintenance and support of Programs and Enhancements on the HP Products, which maintenance and support shall be at least equal to that which Supplier provides on IBM & TANDEM platforrns. At a minimum, Supplier shall: (a) Cure defects in the Programs. Enhancements, and associated documentation pursuant to the requirements set forth in Exhibit C; (b) Maintain a telephone number for HP and end-users to call during Supplier's business hours to report defects and to otherwise receive assistance; and (c) Coordinate problem resolution with HP when operational problems appear traceable to HP Products. 3.2. Supplier and HP have designated, in Exhibit D. Account Managers to facilitate communication between Supplier and HP. The Account Managers may be changed by either party upon notice to the other. 3.3. Supplier shall support each Program and Enhancement for five years after the date that Supplier discontinues distributing the Program or Enhancement on the HP Products. 4. WARRANTY AND INDEMNITY 4.1 Supplier warrants that: (a) It has all rights necessary to perform this Agreement, without restriction; and (b) The Programs, Enhancements, and associated documentation and intellectual property do not violate or infringe any third party's intellectual property rights. 4.2. As used in this Agreement, the term "intellectual property" means all patents, tradenames, trade secrets, trademarks, service marks, copyrights, and other similar proprietary rights. 4.3. Supplier shall defend at its sole expense any claim, suit, or proceeding brought against HP or end-users that any Program, Enhancement, or associated documentation violates or infringes any third party's intellectual property right (collectively "Infringement Action"). HP shall give Supplier the authority, information, and assistance (at Supplier's expense) to defend the Infringement Action. Supplier shall pay all damages and costs awarded in any Infringement Action against HP or end-users. 4.4. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT. THE FOREGOING EXCLUSION OF DAMAGES SHALL APPLY REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 5. PROGRAMMING MATERIALS 5.1 Supplier hereby grants HP and its subsidiaries a present, worldwide, non-exclusive, fully paid-up license to use the Programming Materials to support and maintain the Programs on the HP Products. HP's license shall be exercisable only in the event Supplier ceases to do business in the normal course or enters into any proceeding in bankruptcy, whether voluntary or involuntary. 5.2 The term "Programming Materials" includes the source code version of each Program and Enhancement, in a format acceptable to HP, together with all associated printouts, listings, programmers' notes, technical documentation, custom compilers, utilities, libraries, test suites, build scripts, and other materials necessary for HP to exercise its license. 5.3. Supplier shall provide all Programming Materials to HP on request at any time after exercise of the license by HP. 5.4. Except as provided in this article 5, this Agreement grants no license in the Programs or Enhancements to HP. 6. MISCELLANEOUS 6.1. All notices under this Agreement shall be in writing and shall be considered given as of twenty-four hours after sending by electronic means (such as telecopy) or by air courier service, or as of forty- eight hours after deposit in the U.S. Mail (certified, return receipt requested). All notices shall be sent to the respective Account Manager at the address listed on Exhibit D. 6.2. Neither party may, without the prior written consent of the other party, publicize or otherwise disclose the terms or existence of this Agreement to any third party. 6.3. Neither party shall assign or otherwise transfer any rights or responsibilities set forth in this Agreement. 6.4. The following Exhibits are fully incorporated in this Agreement by the first reference in this Agreement to each such Exhibit: (a) Exhibit A, the Programs, Program Specifications, and Deliverables; (b) Exhibit B, Access to HP Products; (c) Exhibit C, Performance Criteria and Error Definitions; (d) Ecxhibit D, Account Managers; and (e) Exhibit E, PAYMENT MILESTONES 6.5. The remedies contained in this Agreement are in addition to any other remedies available at law or in equity. 6.6. Neither party's failure to exercise any right under this Agreement shall be deemed a waiver of such right. 6.7. This Agreement represents the entire understanding and agreement between the parties as to the matters set forth. Any representation, promise, or condition not explicitly set forth in this Agreement shall not be binding on either party. 6.8. This Agreement may only modified by a writing signed by authorized representatives of both Supplier and HP. CableData, Inc. HEWLETT-PACKARD COMPANY - ------------------------------------- By: /s/ Jerry Johnson By: /s/ Nancy Burgess ---------------------------------- ------------------------------------ Typed Name: Jerry Johnson Typed Name: Nancy Burgess -------------------------- ---------------------------- Title: Chief Technology Officer Title: Industry Marketing Manager ------------------------------ --------------------------------- EXHIBIT A 1 Programs to be Ported: All programs associated with the market release of Intelecable 2.61. Release 2.61 will include all programs and system libraries currently in the full version of the Intelecable product. 2. Program Specifications: All features, functional and performance criteria that are associated with Intelecable 2.61. 3. Deliverables: Deliverables will include all Intelecable 2.61 executables and product documentation. Intelecable executables will be provided on HP-UX acceptable media and format. User and system documentation will be provided to HP in hard copy form. [*] Any changes in the development schedule shall be mutually agreed upon in writing by both parties. Additionally, the next available release after Intelecable 2.61 supporting the HP platform will be Intelecable 2.91, since the porting project duration extends beyond the Intelecable 2.71 release date. 5. Supplier and HP will enter into an Independent Software Vendor (ISV) agreement for computer products under HP's Channel Partner program. In order to qualify for demo/development discounts, a demo/development agreement or a PA-RISC Developer agreement will also be required. 6. Supplier agrees to provide HP with an annual business plan and quarterly sales forecasts on an ongoing basis. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EXHIBIT B ACCESS TO HP PRODUCTS --------------------- 1. To assist Supplier in its porting obligations under the Agreement, HP will load Supplier the following HP Products- HP 9000 SERIES 800 MODEL K400 AND MODEL E55 (CONFIGURATIONS ATTACHED) TO BE USED AT SUPPLIER SOFTWARE DEVELOPMENT CENTER (the "Loaner Products"). The description of the Loaner Products is subject to any changes evidenced in miscellaneous shippers issued from time to time by HP. HP retains title and ownership to the Loaner Products, although Supplier shall be responsible for all risk of loss or damage to the Loaner Products until returned to HP. 2. The Loaner Products will be loaned to Supplier UNTIL 24 MONTHS FOLLOWING RECEIPT OF EQUIPMENT (the "Loan Period"). If Supplier does not purchase the Loaner Products from HP pursuant to section 7 below, the Loaner Products shall be returned to HP immediately upon the expiration of the Loan Period, at Supplier expense. 3. Subject to availability, HP shall ship the Loaner Products to Supplier as soon as practical after all necessary documents to evidence and perfect HP's security interests in the Loaner Products, as required by applicable law and as elected by HP, are recorded or filed. Supplier hereby irrevocable appoints HP as its attorney-in-fact to execute any document necessary for HP to protect its right, title, and interest in the Loaner Products. 4. During the Loan Period, HP will provide, at no charge to Supplier, remedial hardware maintenance on the Loaner Products on an as-needed basis to cover equipment failures. Support for HP software on the Loaner Products throughout the Loan Period shall be handled as follows: CABLEDATA WILL PURCHASE SOFTWARE SUPPORT FOR THEIR ENVIRONMENT FOR A PERIOD COVERING THE LOAN. 5. Supplier's right to user the Loaner Products is non-transferable, and Supplier shall not encumber the Loaner Products in any manner. Supplier shall use the Loaner Products only at Supplier's principal office and primarily for porting and testing purposed incident to this Agreement. 6. All software in the Loaner Products shall be licensed from HP under HP's standard software license terms. 7. Upon completion of the Loan Period, Supplier may purchase the Loaner Products for $ FAIR MARKET VALUE AS DETERMINED BY HP. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EXHIBIT B K-Series Loaner Configuration for CableData, Inc.
QTY PRODUCT/OPTION DESCRIPTION --- -------------- ----------- 1 A3181A Model K400, one 100MHz PA7200 CPU, 128MB 1 A2993A Additional 100 MHz PA7200 CPU 4 A3027A OD1 128MB High Density ECC Memory Module 1 A2992A OD1 Memory Carrier (Increase capacity to 32 SIMM Slots) 2 A3145A ODZ 2GB disk Drive,Fast/Wide SCSI-2,Half-Height 1 A3184A ODS CD-ROM Drive, 650MB,SCSI-2(Complementary) 1 A3183A ODZ 4-8GB DDS DAT Drive SCSI-2 1 C1064GX ABA 700/96 System Console, Green Screen 1 28696A ODZ 20MB/Sec Fast/Wide SCSI-2 Interface Card 1 J2092AZ ABA 16-Port RS-232 Direct Connect Mux (RJ45) 1 A2440A APS,ABA,OD1 HP-UX10.0,2-user license,Instant Ignition 1 B3897A AJG+AGM HP-UX 10.0, CD-ROM Media 1 B3921AA OBC HP C/ANSI C Developer's Bundle License 1 B3901AA APS,ODI,AAU HP C/ANSI C Media & Doc on CD-ROM 1 B3651DA X Terminal Software & Documentation 1 Glance Plus (up to 1-year time bomb) 1 C5264RZ lx4GB F/W Disc 1 002 800 Series Option 2 C5266U 4GB upgrade/add on 2 002 800 Series Option 2 OS4 Factory Install 1 A1897A 1.6 Meter Cabinet 1 ABA US Power - ------------ Note: Base system includes 802.3 LAN (Ethernet) with auto-sensing twisted pair and AUI connect
EXHIBIT B E-Class Loaner Configuration for CableData
QTY PRODUCT/OPTION DESCRIPTION --- -------------- ----------- 1 A2959AW HP9000 E Class Server Package 1 A3194AW Model E55 Processor 4 A3131A ODZ 128MB Memory Module 1 A2442A ODU MUX Personality Card For Base System I/O 2 A3304A OD1 2GB SE SCSI-2 Disk Drive 1 A3184A ODZ 650MB CD-ROM Drive 1 A3183A ODZ 4GB DDS DATA Drive with Data Compression 1 C1064WX ABA System Console, White Screen, US Version 1 28696A ODZ BP-PB FWD SCSI-2 Host Adapter 1 A2943A ODZ Upgrade from 2 to 4 HP-PB slots in E-class server 1 A2962AZ Rackmount kit for E-class server 1 A2440A APS,ABA,0D1 HP-UX 2 User license & manuals 1 B3897A AJG HP9000 Server HP-UX licenses and Media for all levels 1 A1897A 021 1.6 Meter Standard 19" EIA rack 1 A2997A ODZ,017 1.8 kVA Rackmounted BP PowerThrust UPS 1 A3196A 5 Meter Power Cord 1 C526ORZ Factory racked 5x2 FWD SCSI-2 Disk Storage System 1 C5258R 002 2 GB FWD SCSI-2 Disk in rack enclosure 1 B3921AA OBE,OBC HP-UX 10.0 Server Documentation - ------------- Note: Base system includes EtherTwist LAN and AU1 connector
EXHIBIT C 1. Performance Criteria: The same procedures and criteria will be used for the ported deliverables as for other Intelecable supported platforms. CableData uses performance benchmarks as capacity and reliability guidelines for system performance. Capacity involves transaction rates, and reliability relates to the availability of the Intelecable software without interruption. The guidelines are used as a guide for determining whether or not analysis and corrective action are indicated. 2. Test Procedures: CableData's automated performance test lab will be used for all feature and performance regression testing. 3. Error Definitions:
Problem Solution Objectives - --------------------------------------------------------------------------------------------- CABLEDATA DEFECT ISOLATION, SEVERITY LEVEL DESCRIPTION CONFIRMATION AND FIX 1. System Down System Down, Immediate Cannot Do Business 2. High Impact, No Business Functions Cannot ASAP - Between Workaround Be Performed Maintenance Releases 3. High Impact, Workaround Heavily Impacted, Can Do Next Maintenance Release Daily Business 4. Low Impact, Workaround Slightly Impacted, Can Do Deferred; Future Daily Business Maintenance Release 5. No Impact No Impact On Daily Business Possible, Future Maintenance Release - ----------------------------------------------------------------------------------------------
4. CableData procedures for remedying errors in the Intelecable product will be followed. EXHIBIT D ACCOUNT MANAGERS ---------------- Supplier Hewlett-Packard Name Mark R. Breunig Name Patricia C. Wilcox Title Product Manager Title Manager, Business Support Systems Address 11020 Sun Center Drive Address 19091 Pruneridge Ave. Rancho Cordova, CA 95670 Cupertino, CA 95014 Telephone Number 916-636-4709 Telephone Number 408-447-1319 Fax Number 916-636-5808 Fax Number 408-447-6452 EXHIBIT E PAYMENT MILESTONES ------------------ 1. In consideration for Supplier's performance of the Agreement, HP shall pay Supplier the amounts specified below: [*] 2. Supplier shall repay to HP the sum of [*] in accordance with the following formula: - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- Such payments shall be due within N/A after the end of each calendar quarter, and shall be sent to ----------------------------------------------------------- - ------------------------------------------------------------------------------- 3. In the event Supplier fails to perform its obligations under Exhibit A of this Agreement by [*] AFTER THE HP HARDWARE/SOFTWARE IS DELIVERED AND OPERATIONAL, Supplier shall immediately refund to HP all sums paid by HP pursuant to this Agreement. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. AMENDMENT TO PORTING AGREEMENT WHEREAS, CABLEDATA, INC., a California corporation (hereinafter "Supplier"), and HEWLETT-PACKARD COMPANY (hereinafter "HP") have entered into that Porting Agreement (hereinafter called the "Agreement") dated of an even date herewith; and WHEREAS, Supplier and HP desire to modify the Agreement such that wherever language contained in this Amendment conflicts with the terms of the Agreement, the language contained in this Amendment shall control; NOW, THEREFORE, the parties agree as follows: 1. Paragraph 1.5 of the Agreement is deleted in its entirety, and the following is substituted therefor: 1.5 Any versions, releases, modifications, updates, upgrades, error corrections, new features, or new functionalities developed by Supplier for the Programs ("Enhancements") shall be made commercially available by Supplier on the HP Products no later than [*] from the date by which each such Enhancement is commerically available on Supplier's development platform. 2. Paragraph 1.7 of the Agreement is amended by adding the following language at the end thereof: ", provided these are made available to Supplier." 3. The second sentence of Paragraph 2.1 of the Agreement is deleted in its entirety, and the following is substituted therefor: [*] 4. Paragraph 2.5 of the Agreement is deleted in its entirety, and the following is substituted therefor: 2.5 Supplier shall provide HP with one (1) free copy of each Program and Enhancement, including all associated documentation. Such copies shall be for demonstration, benchmarking, support and training purposes. HP's use of such Program and Enhancement shall be subject to Supplier's standard license terms. 5. Paragraph 3.3 of the Agreement is deleted in its entirety, and the following is substituted therefor: 3.3 Supplier shall support each Program and Enhancement for the remaining support life of the Program or Enhancement following the date that Supplier discontinues distributing the Program or Enhancement on the HP Products. 6. New Paragraphs 6.9 and 6.10 are added to the Agreement as follows: 6.9 This Agreement shall be governed by the laws of the State of California. 6.10 The term of Supplier's obligations under Section 2 of this Agreement shall be for *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. All other terms and conditions of the Agreement shall remain in full force and effect unchanged. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the 31st day of January, 1996 HEWLETT-PACKARD COMPANY CABLEDATA, INC. By: /s/ Nancy Burgess By: /s/ Jerry Johnson ----------------------------------- --------------------------------- Nancy Burgess Jerry Johnson ----------------------------------- --------------------------------- (Print Name) (Print Name) Industry Marketing Manager Vice President ----------------------------------- --------------------------------- (Title) (Title) January 31, 1996 January 30, 1996 ----------------------------------- --------------------------------- (Date) (Date) EX-10.26 7 EXHIBIT 10.26 EXHIBIT 10.26 ON/LINE OPERATING & LICENSE AGREEMENT between U.S. COMPUTER SERVICES dba CABLEDATA 2969 Prospect Park Drive Rancho Cordova, California 95670 and Customer Continental Cablevision --------------------------------------------------------------------- Principal Office Address The Pilot House, Lewis Wharf ------------------------------------------------------ City Boston State MA Zip 02110 ---------------------- ------------- ------------------- U.S. Computer Services (hereinafter called "USCS"), a California corporation doing business as CableData, agrees to provide Customer and Customer agrees to subscribe exclusively to the services and products offered through USCS' proprietary DDP FINANCIALS AND ON/LINE APPLICATIONS SOFTWARE (hereinafter collectively called "Software") and the constituent Software, products and services (hereinafter individually called "Product" and collectively called "Products") for all Customer Cable Systems listed in Attachment A, subject to the following terms and conditions: 1. TERM OF AGREEMENT 1.1 The initial term of this Agreement shall be for a period of [*] commencing on the date of full execution of this Agreement. After the initial term, this Agreement shall be automatically renewed for one (1) year periods unless either party hereto provides to the other written notice of intent not to renew at least one hundred eighty (180) days prior to the expiration date of the initial term or succeeding terms, if any. 2. LICENSE 2.1 For each Software Product requested by Customer, USCS grants to Customer a non-exclusive, nontransferable license, without right of sublicense, to use, perform, or execute such Product or portions thereof solely for Customer's own use at the Computer Facilities or Remote Sites designated in Attachment A of this Agreement. Customer may, at its option from time to time by giving USCS prior notice, request to add new Computer Facilities, Remote Sites, or Products and services; USCS may then add such new sites to Attachment A and such Products and services and the prices therefor to Attachment B. 2.2 Any use of the Product at other than the designated installation address(es) set forth in Attachment A will require the extension of the licenses herein granted for each additional installation address. Such extension(s) shall be made by amendment to Attachment A upon written request by Customer and approval by USCS of the additional installation address(es), which approval shall not be unreasonably withheld. If Customer temporarily is unable to use the Product at the designated Computer Facility or Remote Site because of conditions beyond Customer's control, the affected license may be temporarily extended, upon prior approval by USCS, to permit Customer to use the Product at another designated Computer Facility. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -1- 2.3 The license granted herein for each Product specified in Attachment B shall be effective on the installation date of, or conversion date to, the Product and shall continue through the end of the term, including any renewal terms as set forth in Paragraph 1.1, subject to the provisions of Sections 12 and 19. 2.4 THIS AGREEMENT COVERS USCS' APPLICATIONS SOFTWARE AND DOES NOT COVER COMPUTER OPERATING SYSTEM SOFTWARE. NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO TANDEM OR OTHER OPERATING SYSTEM SOFTWARE. 3. PRE-CONVERSION TRAINING 3.1 USCS will provide the standard initial training program for Customer's employees at a USCS regional service center. The initial training is included in the Conversion Fee and will consist of the classes required by USCS. Equipment and materials used in the instruction are provided by USCS. 3.2 Customer is responsible for all transportation to and from the regional service center, lodging and food for Customer's employees that attend the USCS training. 3.3 Customer agrees to send qualified employees who will be fulfilling System-related job roles to those classes designed for their job roles before the conversion, in accordance with the job roles and the required classes defined by USCS. In the event the employee does not fulfill the requirements of the class, Customer agrees to provide a replacement and said replacement will attend the required class(es) before conversion. 4. CONVERSION TO THE SOFTWARE 4.1 USCS will install the Software Products requested by Customer on Customer's equipment in consideration of Customer's payment of the relevant conversion fee and reasonable travel and expenses reimbursement. 4.2 USCS will provide, at time of conversion, a standard on-site training program for Customer's employees at the designated Computer Facility(ies) as set forth in Attachment A. The on-site training is included in the Conversion Fee. In the event Customer requests on- site training at Remote Sites, such additional training will be provided at then current prices. 4.3 USCS will convert Customer's data and initialize data on the Software. In the event data is not in a defined computer format and available on magnetic tape, 9-track 800/1600 bpi, then an additional charge is applicable. USCS' services to convert and initialize Customer's data shall include all reasonable actions necessary to make such data compatible with the Software and the Product, including reformatting of such data if needed. 4.4 USCS will provide one complete set of documentation at no charge. Customer can purchase additional copies at then current prices. 5. USCS' CUSTOMER SUPPORT FOR USCS APPLICATIONS SOFTWARE 5.1 USCS will provide telephone Software support for Customer for the duration of this Agreement. 5.2 Customer support telephone calls to a USCS regional service center will be handled immediately or returned within sixty (60) minutes by a qualified USCS employee. Customer must provide qualified individuals in Customer's Cable System(s) who have attended USCS' relevant classes, with whom USCS will deal. Customer will be required to maintain a level of expertise to properly utilize the Software during the term of this Agreement. -2- 5.3 Excluded from Software support under this Agreement are (a) operational procedures for loading and shutting down the computer system; (b) setting computer operating system command parameters; (c) nightly procedures for database backup and file maintenance, (d) defining whether any problems are hardware or Software-based; (e) database recovery necessitated by an operating system software or operational problem; (f) balancing file allocation and disk space management; (g) operational procedures to support lockbox, cutoff, and Transmit-X; and (h) conducting performance analysis of the computer system. These operational support services are available at USCS' then current prices. 5.4 The telephone Software support provided under this Agreement covers only USCS applications Software licensed hereunder and does not include support of any computer operating system software (such as Tandem's Guardian software). 6. USE OF THE SOFTWARE BY CUSTOMER 6.1 Customer will be responsible for determining the appropriate uses to be made of the Products and establishing the features through the setting of Product parameters. 6.2 Customer will utilize the Software as set forth in the Software documentation. 6.3 Customer is not authorized to make modifications to the Software. Should Customer make such modifications, USCS will not be responsible for support of any Software as modified, nor for the compatibility of such modified Software with any equipment, with the unmodified Software or with any future Software releases. 7. ON-GOING TRAINING 7.1 Customer can purchase additional instruction at then current prices for all classes taught at the regional service center. Customer can also purchase customized on-site training at then current prices. Customer is responsible for all transportation to and from the regional service center, lodging and food for Customer's employees that attend the USCS training. 8. CHANGES TO THE SOFTWARE BY USCS 8.1 USCS reserves the right to make changes, updates and enhancements to the existing Software as determined by developments in the Cable TV industry. USCS may modify its charges to Customer to reflect the new services, updates and enhancements and the cost thereof. It is understood that Customer shall not, without its prior written approval, be obligated to convert to such modified Product if such conversion would substantially increase Customer's obligations under this Agreement. 8.2 USCS may, during the term of this Agreement, add new Products at prices to be published at the time of introduction. Customer may elect such new Products as set forth in Section 2. 8.3 USCS is not responsible for the inability of any software or other product purchased or licensed from third parties to function because of changes to USCS Software. 8.4 At Customer's request, custom modifications to the Software will be made by USCS at the discretion of USCS and at Customer's expense. Such custom modifications shall belong exclusively to USCS. If such modification(s) increases USCS' processing costs, Customer agrees that the prices for the Products may be increased because of such modification(s). 8.5 Customer agrees that USCS will have the right to levy charges for services resulting from Customer's modification of the Software or for Customer's failure to utilize current procedures. 8.6 CUSTOMER AGREES THAT USCS WILL HAVE THE RIGHT TO LEVY A SOFTWARE SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT CUSTOMER IS TWO OR MORE MAJOR SOFTWARE RELEASES BEHIND THE CURRENT SOFTWARE RELEASE. As used herein, a "Major Software Release" means release by USCS to its customer -3- base of a version of the Software which contains (i) a major revision in database structure or design; or (ii) modifications of more than 50 application programs; or (iii) changes made pursuant to 100 or more SARs (Software Assistance Requests) or DCRs (Database Change Requests); or (iv) addition or modification of two or more major components or schemes (i.e. rate codes, collections). 9. DATA PROCESSING, REPORTS AND STATEMENT PRODUCTION SERVICES 9.1 WITHIN THIRTY (30) DAYS OF EXECUTION OF THIS AGREEMENT, CUSTOMER MUST PROVIDE TO USCS A CUTOFF SCHEDULE AGREEABLE TO USCS FOR THE NEXT SUCCEEDING TWELVE (12) MONTH PERIOD FOR EACH CUSTOMER CABLE SYSTEM UNDER THIS AGREEMENT, AND CUSTOMER MUST UPDATE SUCH SCHEDULE(S) EACH NOVEMBER FOR THE NEXT SUCCEEDING CALENDAR YEAR. 9.2 Transmission of all data to and from USCS shall be via telecommunications (including, but not limited to Transmit-X) or shipment of tape(s) and shall be at Customer's expense. 9.3 The normal turnaround time for a processing cycle of any file update at USCS' International Billing Services facility, defined as the elapsed time between USCS' complete receipt of usable data transmission, or tape(s), and the return transmission of processed data, disk pack(s) or tape(s), is an average of sixty (60) hours over twelve (12) consecutive processing cycles. Statement production will be completed within twenty-four (24) hours of the successful completion of the cycle update and transmission of processed data back to customer and the approval to proceed with statement production by the customer. 9.4 In the event Customer requests special processing, USCS may, at its discretion, increase this turnaround time by an additional twenty-four (24) to forty-eight (48) hours. In no event should turnaround time exceed one hundred eight (108) hours except in the case of force majeure or delays caused by Customer. 9.5 Customer reports and Customer billing statements and other products shall be provided in accordance with options selected by Customer. 10. PRICE 10.1 The Price Schedule for utilizing the Software and Products selected by Customer is set forth in Attachment B. Such prices shall be subject to increase upon forty-five (45) days' prior notice, provided however that the percentage of such increase or increases shall not exceed the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Department of Labor (a) from the date of last general price increase prior to the effective date of this Agreement (b) to the date of price increase under this Agreement. Prices for all USCS products and services ordered and used by Customer but not set forth in Attachment B shall be the prices in effect on the date of use of the product or service. 10.2 In order to be eligible for Inclusive Bundled Price and Inclusive Package Bundled Price, the Cable System must have not less than 20,000 Subscribers. 10.3 The following definitions are applicable to, and incorporated in, Attachment B: a. "Computer Facility" means a single Customer cable property location where the Processor(s) is located. b. "Remote Site" means a Customer cable system(s) operating by telecommunications from Customer's or USCS' Computer Facility. c. "Corp(s)" means Customer cable system(s) identified by a unique corp-city number as set forth in Attachment B. d. "Subscribers" or "Subs" means the number of historical ledger records produced (including all active and inactive subscribers with a balance or a transaction.) e. "Update" means the processing of Customer's DDP Financials master file for the purpose of updating some or all of the Subscriber records on that master file. -4- f. "Processor" means the central processing unit, memory and addressable peripherals on which the Software functions. g. "Multiple System Operator" or "MSO" means a cable operator owning or managing not less than four (4) cable systems using USCS with an aggregate Subscriber count on USCS in excess of one hundred thousand (100,000). 10.4 Printing and graphics, inserts, supplies and other materials and services not listed in Attachment B shall be available at then current USCS prices. Said prices are subject to change without notice. Customer may purchase such forms, supplies, and materials from other vendors, provided materials which impact the statement production process (including inserts) or the Software meet USCS' reasonable specifications necessary to ensure proper operation. 10.5 Customer agrees that USCS will have the right to charge in accordance with USCS' then current prices for special projects requested by Customer and performed for Customer by USCS that are outside the scope of day-to-day customer service. 11. TAXES 11.1 Customer will pay, or reimburse, USCS for all taxes and charges imposed on Customer or USCS on any interest in or use of any service, Software, or tangible good provided hereunder, or upon this Agreement, excluding, however, all taxes on or measured by USCS' income. 12. PAYMENT TERMS 12.1 USCS shall invoice Customer monthly for services and products, postage prepayment, taxes and other charges. The monthly charges in Attachment B for all software license fees will be billed one (1) month in advance. Postage prepayment will be billed as set forth in Section 13. All other fees and charges for products and services, unless otherwise noted, shall be billed in arrears. 12.2 Standard payment terms are net cash, without discount, due and payable within thirty (30) days from the date of the invoice. In the event that Customer does not render full payment of all undisputed amounts within thirty (30) days of the date payable, USCS may, after notifying Customer, cease any and all services until such account is brought to a current status. 12.3 If Customer fails to pay any charges when due and payable, Customer agrees that USCS will have the right to invoice and Customer will pay a late payment service charge of 1.5 percent per month, but not in excess of the lawful maximum, on the past due balance. 12.4 In the event that Customer should dispute a particular charge, Customer will, within fifteen (15) days of the USCS invoice, notify USCS in writing of the disputed charge and the reason for the dispute. USCS will attempt to resolve such dispute as soon as possible. In all events, Customer is obligated to pay all undisputed charges on each invoice when due. Charges not disputed by Customer within three (3) months of invoice date shall be final and non-disputable. 13. POSTAGE 13.1 Customer agrees to prepay Customer's postage for billing statements no later than one (1) week prior to Customer's cutoff date. Customer shall remit to USCS an amount equal to the number of Customer's current month Subscribers multiplied by an average postage rate. This amount will be adjusted to actual postage on the following month's invoice. This amount will be indicated on the postage invoice mailed to Customer at least fifteen (15) days prior to the due date. In the event Customer does not prepay postage, as set forth above, USCS reserves the right to hold Customer's billing statements until sufficient postage prepayment is received. 13.2 In the event of an increase in U.S. postage rates, postage prepayment shall be increased by the amount of such postage rate increase. -5- 14. NON-DISCLOSURE OBLIGATIONS 14.1 USCS agrees that all information disclosed by Customer during performance of this Agreement shall be considered proprietary, to be held in confidence and used only in performance of this Agreement. No information provided by Customer under this Agreement shall be duplicated or furnished to another party without prior written consent of Customer except as required by law. USCS will exercise the same standard of care to protect Customer's proprietary data as is used to protect its own proprietary data from unauthorized disclosure. 14.2 Customer understands the proprietary nature of the Software designed and developed solely by USCS. Customer agrees to exercise similar care to prevent unauthorized disclosure of any information that could be injurious to the business operations and welfare of USCS and/or third parties, including Tandem. Customer further acknowledges that the Software and Products of USCS are provided in confidence and are trade secrets of USCS and will be so protected by Customer. Customer agrees to maintain the Products in confidence and not to disclose any portion of the Products to any third party, and to utilize its best efforts to protect the contents of the Products or any part thereof from unauthorized disclosure by its agents, employees or representatives. Customer agrees to take appropriate action, by notice to its employees and all others who are permitted access to the Products, to satisfy its obligations under this Agreement. 15. TITLE 15.1 Customer recognizes and agrees that, during the term of this Agreement and thereafter, title to, ownership of, and all proprietary and intellectual property rights in the Products licensed under this Agreement, and all copies and derivative works thereof, will at all times remain in USCS. Customer agrees to use the Products only as provided in this Agreement. The existence of a copyright notice shall not cause, or be construed as causing, a Product to be a published copyrighted work or to be in the public domain. Customer agrees that it will not make or have made any more copies of the Products or any part(s) thereof than are necessary for the use hereunder by Customer and that it will cause such copies upon reproduction to have the same copyright or proprietary legends that appear on the Products or any part(s) thereof. Customer recognizes that certain parts of the Products may have been copyrighted by USCS or by third parties. Customer agrees that it will affix to any and all reproductions of those parts of the Products which are copyrighted, the form of copyright notice indicated by USCS and/or third parties. 16.LIMITATION OF REMEDY 16.1 USCS agrees that it will maintain, in machine readable form, in off- site premises, a duplicate copy of Customer's master file as most recently updated, to enable regeneration of the DDP Financials master file data in the event of loss of such items due to machine failure, conduct of USCS' employees, fire or other calamity at USCS' International Billing Services facility. Customer agrees to maintain duplicate backup disk packs and/or tapes as provided for in the Software in the event of loss of such items due to the reasons stated above. 16.2 USCS' liability for loss of any Software data or materials shall be limited to the replacement or regeneration of the lost items by the method or means deemed most suitable by USCS. 16.3 Neither USCS nor Customer shall be considered in default due to any failure in performance of this Agreement, in accordance with its terms, should such failure arise out of causes beyond their control and without their fault or negligence. 16.4 In the event of an error or omission, whether human or mechanical, on the part of USCS or its employees, USCS may elect to reprocess the data at no extra cost to Customer to correct said error or omission. USCS' liability to Customer for any losses or damages, direct or indirect, arising out of this Agreement shall not exceed the total amount billed or billable to Customer for the performance of the particular task which gave rise to the loss or damage. USCS shall not be liable for any special or consequential damages in any event. - 6 - 16.5 EXCEPT AS PROVIDED IN THIS SECTION 16, NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. 17. INSPECTION 17.1 It is understood that Customer may inspect all work being performed under this Agreement to the extent practical at all reasonable times and places. However, it is also understood that such inspections by Customer shall not be performed in any way that shall unduly delay the work being performed. Reasonable facilities and assistance shall be provided for Customer's inspection if any inspection is made by Customer on the premises of USCS. Such facilities and assistance shall be provided without extra charge. However, should Customer perform inspection at a place other than the premises of USCS, such inspection shall be at the expense of Customer. 18. INFRINGEMENT 18.1 USCS warrants that the Products and all components thereof, and their use in the manner contemplated by this Agreement, do not and will not infringe any United States patent or copyright. 18.2 If any action is instituted against Customer based upon a claim that the Products or any component or use thereof infringe a United States patent or copyright, USCS shall, for and on behalf of Customer, defend and indemnify such action at USCS' expense, provided Customer promptly notifies USCS in writing of said action and USCS has sole control of the defense and any settlement negotiations. 18.3 USCS shall have no liability to Customer for any infringement action or claim which is based upon or arises out of: a. Any modification of the Products by Customer without the express written permission of USCS; or b. Any use of the Products in combination with any other system, equipment or software which is not furnished by USCS or approved by USCS in writing. 19. TERMINATION 19.1 Notwithstanding any other provision herein, USCS will have the right to terminate this Agreement or all or any licenses granted herein if Customer fails to comply with any of its material obligations under this Agreement. Should USCS elect to exercise this right to terminate for nonperformance, it must be done in writing specifically setting forth those items of nonperformance. Customer will then have fifteen (15) days from receipt of notification to remedy the items of nonperformance. Should Customer fail to correct these items of nonperformance, then USCS shall have the right to enter upon Customer's premises to repossess and remove any USCS-owned or licensed Products. In addition, USCS' termination of this Agreement or such taking of possession shall be without prejudice to any other remedies USCS may have, including, without limitation, all remedies with respect to the unperformed balance of this Agreement; provided, however, that if Customer has not made payment of the fees or charges due hereunder and such nonpayment continues after thirty (30) days' prior written notice by USCS, USCS may then terminate this Agreement or any license granted herein. 19.2 Upon expiration of the term (including any extensions thereof) of this Agreement or upon the termination of this Agreement or of any license granted hereunder for any reason, all rights of Customer to use the Products will cease and Customer will immediately (i) grant to USCS access to its business premises and the Products and allow USCS to remove the Products (ii) purge all copies of all Products from all computer processors or storage media on which Customer has installed or permitted others to install such Products, and (iii) when requested by USCS, certify to USCS in writing, signed by an officer of Customer, that all copies of the Products have been returned to USCS or destroyed and that no copy or any Product remains in Customer's possession or under its control. - 7 - 19.3 USCS will, within ten (10)days after termination of this Agreement, return Customer's most recent fixed master(s), provided Customer has paid in full the fee for the fixed master(s) and all outstanding monies owed. In the event there are outstanding balances due, USCS may withhold master file data until said balances are paid in full. 19.4 Any termination pursuant to this Section 19 shall be in writing to the address of the other party as indicated on the first page of this Agreement or to such other address as the other party may, by prior written notice, have specified. 20. GENERAL 20.1 The parties agree that in the event it is necessary to employ attorneys to enforce the terms of this Agreement, the prevailing party in any lawsuit shall be entitled to an award of reasonable attorneys' fees and court costs. 20.2 This Agreement may not be assigned without prior written mutual consent of Customer and USCS. 20.3 This Agreement may be amended only by an instrument in writing, executed by Customer and USCS. 20.4 This Agreement will be governed in all respects by the laws of the State of California. 20.5 This Agreement and Attachments represent the entire agreement between the parties and supersede and replace all prior oral and written proposals, communications and agreements with regard to the subject matter hereof between Customer and USCS. 20.6 SECTION 14 (Nondisclosure) and SECTION 13 (Title), and Paragraph 16.4 (Limitation of Remedies) shall survive the termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the __________ day of ____________, 19____. U.S. Computer Services CONTINENTAL CABLEVISION dba CableData ------------------------------ (Customer Name) By: /s/ J.T. Delorme By: /s/ Arthur O. Hawkins - ------------------------------------- -------------------------------- J.T. Delorme Arthur O. Hawkins - ------------------------------------- --------------------------------- (typed name) (typed name) EVP - ------------------------------------- ---------------------------------- (title-must be an officer) (title-must be an officer) 11/22/93 - ------------------------------------- ---------------------------------- (date) (date) - 8 - AMENDMENT TO OPERATING AND LICENSE AGREEMENT WHEREAS, U.S. COMPUTER SERVICES, a California corporation doing business as CableData (hereinafter "USCS"), and CONTINENTAL CABLEVISION (hereinafter "Continental") have entered into that OPERATING AND LICENSE AGREEMENT (hereinafter called the "Agreement") of an even date herewith; and WHEREAS, USCS and Continental desire to modify the Agreement such that wherever language contained in this Amendment conflicts with the terms of the Agreement, the language contained in this Amendment shall control; NOW, THEREFORE, the parties agree as follows: 1. TERM OF AGREEMENT: Paragraph 1.1 of the Agreement is deleted in its entirety and the following is replaced therefor: 1.1 The initial term of this Agreement shall commence eighteen (18) weeks after the date on which this Agreement is signed by both parties, and shall extend until the expiration date of [*]. Notwithstanding the foregoing, Continental may, upon written notice to USCS, begin to deconvert its systems from USCS' DDP/SQL product to another vendor's product as early as ninety (90) days prior to the expiration date of the initial term of this Agreement and may continue such deconversion for a period of up to ninety (90) days after the expiration date of the initial term of this Agreement. Upon deconversion, Continental will no longer be required to pay USCS for use of its software. This Agreement may be extended beyond [*] as set forth in Paragraph 10.7 below. 1.2 Continental may convert Continental's St. Paul, Minnesota system from another vendor to USCS' DDP/SQL products in July 1994 upon the termination of the current contract with the vendor and may add said system to Attachment A for the then remaining term of the Agreement. 2. REPLACEMENT OF PRIOR AGREEMENT: Upon commencement of this Agreement, the Master Agreement--On/Line Exclusive System Operating and License Agreement between USCS and Continental dated June 29, 1989 shall be deleted in its entirety and replaced with this Agreement. 3. CONVERSION/MIGRATION PLAN: Paragraphs 4.5 and 4.6 are added to the Agreement as follows: 4.5 Continental has agreed to migrate its Cable Systems listed in Attachment A from USCS' DDP/TBOL product to USCS' DDP/SQL product; Continental and USCS will mutually agree on a pre-conversion training and migration schedule. Continental recognizes that migration cannot take place until telephone lines are installed at its Cable Systems, and that installation of telephone lines may take up to forty-five (45) days. No fees will be charged to Continental for conversion pursuant to Paragraph 1.2 above or migration pursuant to this Paragraph 4.5. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -1- 4.6 The roles and responsibilities of each party in connection with migrations are set forth in Appendix 4 to this Agreement, which appendix is incorporated herein by this reference. 4. QUARTERLY SENIOR MANAGEMENT MEETINGS: USCS agrees that its senior management will meet with Customer on a quarterly or more often basis throughout the term of this Agreement. 5. ON-GOING TRAINING: Paragraph 7.1 of the Agreement is deleted in its entirety, and the following is substituted therefor: 7.1 USCS shall provide Continental with [*] days of training at each of Continental's three data centers, or at a USCS regional service center on a space-available basis, during each twelve (12) months of this Agreement. Continental may, subject to space availability at a USCS regional service center, choose the location of such training and may aggregate and allocate the training as it chooses for a total of [*] days in each twelve (12) month period. USCS will bear all costs of such training at Continental's data centers, including transportation, lodging and food expenses for USCS personnel; Continental will be responsible for transportation, lodging and food for its personnel attending training at a USCS regional service center. In addition to such training, USCS will provide Continental with one copy per data center of each self-directed learning and, when available, each computer-based training module requested by Continental. Continental can purchase additional instruction at then current prices for all classes taught at the regional service center. Continental can also purchase additional customized on-site training at then current prices. Continental is responsible for all transportation to and from the regional service center, lodging and food for Continental's employees that attend the USCS training. 6. CHANGES TO THE SOFTWARE BY USCS: Paragraph 8.1 of the Agreement is amended by adding the following language at the end thereof: [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -2- Paragraph 8.3 of the Agreement is deleted in its entirety, and the following is substituted therefor: 8.3 USCS is not responsible for the inability of any software or other product purchased or licensed from third parties to function because of changes to USCS Software. USCS will, however, ensure that third-party software for which USCS has developed an interface will continue to work with future versions of the DDP/SQL product provided that (a) Continental has informed USCS in writing of its intent to use the third- party product; (b) USCS has approved the specifications of the third- party product; and (c) there have been no changes to the third-party product. 7. SOFTWARE SUPPORT SURCHARGE: The first sentence of Paragraph 8.6 of the Agreement is deleted in its entirety, and the following language is substituted therefor: "During the initial term of this Agreement, there will be no additional charge for software support in the event Continental is two or more major software releases behind the current software release. THEREAFTER, CONTINENTAL AGREES THAT USCS WILL HAVE THE RIGHT TO LEVY A SOFTWARE SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT CONTINENTAL IS TWO OR MORE MAJOR SOFTWARE RELEASES BEHIND THE CURRENT SOFTWARE RELEASE." 8. FUNCTIONALITIES; PROGRAMMING "CREDITS": Paragraphs 8.7, 8.8, 8.9 and 8.10 are added to the Agreement as follows: 8.7 Except for those items marked "third party" and "separate FSN product," USCS commits to developing and delivering the DDP/SQL software functionalities set forth in Appendix 1 in accordance with the schedules set forth therein, subject to the following conditions: (a) For those functionalities that USCS is to develop exclusively or primarily for Continental ("Custom Programs"), such delivery is contingent on the parties mutually agreeing to contents in a timely manner. Mutual agreement must be in writing signed by both parties, specifically describing the contents of the functionality. Both parties agree to take all reasonable steps necessary to ensure timely agreement on contents. USCS further agrees that if, in its opinion, a scheduled delivery date will be missed because of lack of agreement on contents, it will promptly notify Continental of such possibility. (b) For those functionalities that USCS is to deliver to Continental and to other USCS customers as part of USCS' general software development process ("Core Programs"), the provisions of this Paragraph 8.7 pertaining to mutual agreement shall not apply. -3- Delivery dates in Appendix 1 refer to beta first site test. USCS will provide Continental with at least fifteen (15) days' notice of its intention to deliver each software functionality. Promptly after the delivery of each software functionality, Continental shall test such functionality. Within fifteen (15) days after such delivery, Continental shall notify USCS in writing, specifically identifying the basis of nonacceptance, if, in Continental's sole reasonable discretion, a Custom Program functionality does not perform in accordance with the contents mutually agreed to by Continental and USCS. In addition to such written notification, Continental shall, no later than five (5) days after the notification date, return the Custom Program to USCS. Failure to so notify USCS within such period or to return the program to USCS shall be deemed acceptance of the software functionality in question. In the event Continental notifies USCS that a Custom Program is not acceptable, such software shall not be deemed delivered or available for purposes of this Paragraph 8.7 and Appendix 1 and USCS shall have thirty (30) days to continue to develop such functionality. If USCS fails to deliver a Core Program on the originally scheduled delivery date or a Custom Program within thirty (30) days after notification of unacceptability then Continental's sole and exclusive remedies shall be as set forth in Paragraph 8.10 below. 8.8 Continental understands that certain functionalities in Appendix 1 will require additional hardware acquisition by Continental and that additional charges may be applicable for those items marked "custom module" and for acceleration of delivery dates where noted. USCS will provide Continental with its best estimate of the costs of any additional hardware required to support specific functionalities or combinations of functionalities upon Continental's initial request for those functionalities, provided that the parties have reached agreement on specifications. Such estimate, as well as any hardware estimates included in Appendix 1, is intended merely to assist Continental with its own internal planning and may be relied on only for such purpose. All estimates are subject to change and will not be binding on the parties. Upon disclosure of USCS' estimate, Continental may elect to withdraw its request or to modify it so that it better satisfies Continental's objectives. The additional hardware requirements and the parties' responsibilities in connection therewith are further detailed below: (a) For those functionalities identified in Class A of Appendix 1, no additional hardware will be required; (b) For those functionalities identified in Class B of Appendix 1, some additional hardware may be required, depending on Continental's actual use of the software. In the event additional hardware is required, the parties will share equally USCS' purchase costs of such additional hardware; (c) For those functionalities identified in Class C of Appendix 1, significant additional hardware may be required. The selection, acquisition, installation and all associated costs of such additional hardware will be the sole responsibility of Continental. -4- 8.9 [*] 8.10 [*] 9. MERGE PROGRAM: New Paragraph 8.11 is added to the Agreement as follows: 8.11 USCS will use its best efforts to have a DDP/SQL merge program ready for beta testing in January of 1994. Corp merges may be performed during the migration process; however, merging Corps will be required to use paper backlog, and the expected additional backlog time will be two to three days. A normalization program will be available when the merge program is ready for beta testing. 10. Paragraph 9.3 of the Agreement is deleted in its entirety, and the following is substituted therefor: 9.3 Over twelve (12) consecutive processing cycles, the normal turnaround time for a processing cycle of any file update at USCS' International Billing Services facility, defined as the elapsed time between USCS' complete receipt of usable data transmission, or tape(s), and the return transmission of processed data, disk pack(s) or tape(s), is a pre-Hold average of forty-eight (48) hours and the normal turnaround time for statement mailing, defined as the elapsed time between USCS' complete receipt of usable data transmission, or tape(s), and the entry of the USPS tray containing the individual statement into the U.S. Postal system, is a pre-Hold average of seventy-two (72) hours. Except in the case of causes beyond the reasonable control of USCS, in the event either average is not maintained over any twelve (12) consecutive processing cycles, Continental may deliver written notice of nonperformance to USCS; whereupon USCS will have sixty (60) days to cure the problem. If the problem is not cured within that time, Continental may give USCS thirty (30) days' written notice of intent to terminate. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - 11. PRICE: Paragraph 10.1 of the Agreement is deleted in its entirety, and the following is substituted therefor: 10.1 The Price Schedule for utilizing the Software and Products selected by Continental is set forth in Attachment B. Such prices shall not be subject to increase during the initial [*] of this Agreement. Thereafter, such prices shall be subject, in addition to any price increase that may be applicable at such time, to a percentage increase upon forty-five (45) days' prior notice not to exceed the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Department of Labor (a) from the date of last general price increase prior to the effective date of this Agreement (b) to the date of price increase under this Agreement. Prices for all USCS products and services ordered and used by Continental but not set forth in Attachment B shall be the prices in effect on the date of use of the product or service. Notwithstanding the foregoing, USCS will provide Continental with Esprit SQL prom upgrades at no additional charge for the equipment or its installation. 12. MERGES AND SPLITS: New Paragraph 10.6 is added to the Agreement as follows: [*] 13. EXTENSION BEYOND INITIAL TERM: New Paragraph 10.7 is added to the Agreement as follows: 10.7 Following the initial twenty-four (24) month term of this Agreement, Continental may elect to extend the Agreement for an additional period of twelve (12), twenty-four (24) or thirty-six (36) months. Such extension is contingent on a corresponding extension of the term of the lease agreement between Continental and U.S. Computer Systems Leasing, if applicable. Upon Continental's election of an extension term, Continental's DDP/SQL Exclusive Bundle price for software processing will be increased, in addition to any applicable CPI-U increase, as follows: (a) twelve (12) month extension - [*] per Subscriber; (b) twenty-four (24) month extension - [*] per Subscriber; (c) thirty-six (36) month extension - [*] per Subscriber. Prices for Products and Services not included in the Bundle will be USCS' then-current standard prices. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - 14. PAYMENT TERMS: Paragraph 12.3 of the Agreement is deleted in its entirety, and the following is substituted therefor: 12.3 If Continental fails to pay any charges when due and payable, Continental agrees that USCS will have the right to invoice and Continental will pay a late payment service charge of [*] per month, but not in excess of the lawful maximum, on the past due balance. 15. USCS' LIABILITY: Paragraph 16.2 is amended by adding the following language at the end thereof: "In any event, Continental shall not be required to pay for any work or service not actually received, whatever the reason for nonreceipt." 16. STANDARDS OF WORK: New Paragraph 16.6 is added to the Agreement as follows: 16.6 USCS warrants that the performance of work and services provided to Continental under this Agreement shall be in conformance with the requirements of this Agreement and with high industry standards. 17. TERMINATION: The third sentence of Paragraph 19.1 of the Agreement is deleted in its entirety, and the following is substituted therefor: "Continental will then have thirty (30) days from receipt of notification to remedy the items of nonperformance." 18. TERMINATION BY CONTINENTAL FOR BREACH; CO-OPERATION IN CONVERSION TO ANOTHER VENDOR AFTER TERMINATION: The following is added to the Agreement as Paragraphs 19.5, 19.6 and 19.7: 19.5 Except as otherwise provided in this Agreement, Continental will have the right to terminate this Agreement if USCS fails to comply with any of its material obligations under this Agreement. Should Continental elect to exercise this right to terminate for nonperformance, it must be done in writing specifically setting forth those items of nonperformance. USCS will then have thirty (30) days (sixty (60) days in the event of a performance deficiency pursuant to Section 21 hereof) from receipt of notification to remedy the items of nonperformance. Should USCS fail to correct these items of nonperformance, then Continental shall have the right to terminate this Agreement. In addition, Continental's termination of this Agreement shall be without prejudice to any other remedies Continental may have under this Agreement. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 7 - 19.6 In the event Continental terminates this Agreement for breach as set forth in Paragraph 19.5 or upon the natural termination of this Agreement at the end of the term set forth in Paragraph 1.1, USCS agrees to fully cooperate in good faith with Continental and Continental's new vendor with regard to Continental's conversion to the new vendor for a period of up to ninety (90) days following such termination. Continental understands that Continental will be responsible for paying for Fixed Masters, at a cost of [*] per Fixed Master for single Corps and [*] per Fixed Master for multiple Corps where the Fixed Masters are being sent to the same vendor, and that any use of USCS software or billing services by Continental during the ninety (90) day period will be subject to the terms and conditions of this Agreement, including pricing. 19.7 USCS agrees to deposit and maintain in the possession of Capitol Bank Sacramento as escrow agent (or other mutually agreed-upon qualified escrow agent in Sacramento, California) a copy of all versions of USCS software currently used by the Continental (including source code, compilers, interpreters, utilities, documentation, operating system code) necessary for Continental to assume maintenance of USCS Systems and Programs. In the event that USCS is in default as set forth in Paragraph 19.5, Continental shall be allowed to obtain these materials to continue operating the USCS System and Program until the later of (1) the end of the term of the Agreement or any extensions thereto or (2) for twelve (12) months. Continental agrees that in the event it obtains these materials from the escrow agent, it shall pay USCS for possession and use of the materials at the times and in the amounts provided in this Agreement, and the use of the materials shall be further governed by Sections 2 (License), 14 (Non- Disclosure Obligations), 15 (Title), 16 (Limitation of Remedy), and 18 (Infringement) of this Agreement. 19. PERFORMANCE STANDARDS: New Section 21 is added to the Agreement as follows: 21. EXCLUSIVE SYSTEM PERFORMANCE STANDARDS 21.1 In conjunction with Continental's use of the Exclusive On/Line system, USCS will commit to performance criteria set forth below, provided Continental maintains all related system components, provides necessary staff, and adheres to Operating Limitations set forth in Appendix 2 and Hardware Configuration Criteria set forth in Appendix 3. 21.2 Terminal response time for a new customer install processed will be [*] cursor movement will be [*] provided Continental adheres to local system maintenance criteria determined by USCS and further provided that Continental is not running any of the batch jobs listed in Appendix 2, does not run non-USCS applications and does not perform any ad hoc queries during the relevant measurement period. Response time and cursor movement will be measured using a USCS-supplied measurement tool, or such other measurement tools as USCS determines to be satisfactory, on a PC (at least a 486) at Continental's data center. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 8 - 21.3 [*] 21.4 The above performance standards are based upon the following assumptions: a. Continental's Subscriber base will not have grown appreciably as of the effective date of the Agreement and will grow only moderately (no more than 5% Subscriber growth/no more than 10% PPV growth per data center) over the remaining term of the Agreement; b. Continental complies in all material respects with the limitations set forth in Appendix 2 and the equipment configurations set forth in Appendix 3; c. Continental adheres to the estimations of future usage provided to USCS, upon which the Hardware Configuration Criteria in Appendix 3 are based; and d. Continental will provide USCS with raw data on a semi- annual basis for review with Continental and for determination of adherence to the above criteria. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 9 - The standards set forth above do not take into account currently unreleased USCS software, including versions of DDP/SQL beyond Release 2.9, third-party software, acquisitions by Continental of additional systems, or abnormal Subscriber growth (beyond 5% Subscriber growth/10% PPV growth per data center). Should Continental desire to move onto a currently unreleased version of USCS software, USCS will share with Continental any projected changes in these performance standards prior to such transition. If additional hardware is required to enable Continental to realize the performance standards set forth above given the criteria set forth in this Section 21 and allowing for Subscriber growth up to 5% and not more than 3 million Subscribers, then, upon request from Continental, [*]. For purposes of this Section 21, Subscriber and PPV growth measurements will be based on figures in effect on the execution date of this Agreement. 21.5 In the event that Continental's growth exceeds 5% Subscriber base/10% for its PPV, as set forth in Paragraph 21.4 (a), and its Subscriber base is less than 3 million Subscribers, then USCS agrees to sell to Continental, at [*] the equipment necessary to continue to meet the response time obligations set forth in Paragraph 21.1. 21.6 USCS will use its best efforts to assist Continental's efforts through third parties to develop an off-line reporting system. "Best efforts" means that USCS will cooperate with Continental's systems integrator to the best of USCS' ability, including making available USCS personnel in Sacramento to assist with development of the off-line system. If necessary and agreed to by the parties, USCS will be reimbursed by Continental or its integrator for reasonable travel and lodging expenses for USCS personnel required to travel to one of Continental's sites in connection with development of the off-line system. It is Continental's desire that implementation of the off-line system be accomplished prior to migration of Continental's Cable Systems; however, in no way will development of an off-line system delay the effective date of this Agreement as set forth in Paragraph 1.1. [*] 20. New Section 22 is added to the Agreement as follows: 22. DISPUTE RESOLUTION 22.1 In the event of any disagreement, controversy or dispute regarding performance under or interpretation of this Agreement, the parties agree to attempt to reach a negotiated resolution. If a dispute remains unresolved for a period of thirty (30) days after one party has provided written notice of such dispute to the other, then each party shall designate an officer to meet to endeavor to resolve the dispute. Arbitration in accordance with this section may not be commenced by either party until such officers determine in good faith that a negotiated resolution is unlikely, provided, however, that if one or both parties refuse to meet within ninety (90) days of the original written notice of the dispute set forth above, then arbitration may be instituted by either party. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -10- 22.2 In the event that a negotiated resolution is not reached, the disagreement, controversy or dispute shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in Sacramento, California by three arbitrators. One arbitrator shall be selected by Continental, one arbitrator shall be selected by USCS and the third arbitrator shall be selected by the American Arbitration Association and shall be subject to approval by both Continental and USCS. 21. CUSTOMER SERVICE SUPPORT: New Section 23 is added to the Agreement as follows: 23. QUALIFICATIONS FOR DISCOUNT INCLUDED IN ATTACHMENT B BUNDLED PRICE FOR CUSTOMER SUPPORT 23.1 The DDP/SQL Exclusive Bundle pricing in Attachment B includes [*] per Subscriber per month discount. This [*] per Subscriber per month discount shall be in effect for each Continental Cable System only so long as each of Continental's divisions has, upon written notification to USCS, agreed to provide customer service support to each of Continental's Cable System offices within the division, so that USCS will then support Continental only through Continental's division data processing staff. 23.2 All of Continental's existing Cable Systems are eligible for the customer service support program. In order for a division to qualify as "providing customer service support," it must meet the following criteria: a. Maintain at least three (3) people on its software support staff who have successfully completed relevant USCS training. USCS agrees to provide the additional training, at no charge, except for travel related expenses, to the division. b. Provide front-line telephone customer service support to all Cable System offices and remote sites on a twenty-four (24) hour basis; and c. Review all requested DDP/F Type 30 changes from the individual systems for completeness and accuracy prior to forwarding the completed paperwork to USCS for processing; and d. Complete all Rate Increase/Prorate Run projects for the individual systems by preparing a letter to USCS defining the proposed project, filling out and submitting to USCS all of the necessary paperwork for Type 30 changes, message selects, and/or insert plans. Make all changes to the DDP/SQL Director file at the appropriate time, run the program(s), review the results on DDP/SQL and send the files to DDP/F at the time of cutoff. Review, complete USCS- provided checklist and sign off on the DDP/F Reports prior to releasing the bills and running the DDP/SQL update program; and *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -11- e. Review all requests for message selects, alters, or other special DDP/F projects from the individual systems. Prepare a letter to USCS defining the project and include paperwork for all required changes on DDP/F. If DDP/SQL is involved, make any necessary changes to the Director file parameters, run the appropriate program(s), review the results, and forward the files to DDP/F at the time of cutoff; and f. Forward all requests for inserts or special statements to USCS Insert Control for handling; and g. Handle customer service support conversion as well as splits and merges for all Software functions including addressability for all systems with USCS assisting in problem solving. USCS will assume responsibility for any and all problems requiring use of the Dump Modification or Move Group programs except for those specific problems for which USCS has given Continental written permission to fix. Continental will perform file diagnostics, history purges, and customer purges on a regular basis; and h. The Continental division will perform all system maintenance and database management functions, including proper database back-up procedures, disk free space maintenance, SQL table partitioning, CPU balancing, and port configurations. Perform disk defrags, file purges and table reorganizations regularly. i. Continental also agrees that, should a division fail to comply with all of the above requirements, and such failure requires USCS to provide support for repair of database discrepancies, Continental shall pay [*] per man hour as well as any additional expenses which may be incurred. USCS shall do all database repair. 23.3 USCS agrees to continually review each division's ability to qualify for the discount described above and reserves the right to discontinue the discount of [*] if three (3) violations to the above terms and conditions occur in one (1) month or if there are any violations in three (3) consecutive months to any of the above terms and conditions set forth in Paragraph 23.2 of this Agreement. The discount may be reinstated after one (1) month with no violations. In the event a division ceases to qualify as providing customer service support, then the DDP/SQL Exclusive Bundle shall increase by [*] per Subscriber per month for those Continental Cable Systems that no longer are eligible for the discount as set forth in Paragraph 23.1. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -12- 22. The following is added to the Agreement as Paragraph 24.1: [*] 23. The following Appendices are a part of this Amendment: Appendix 1: Function Matrix Appendix 2: Operating Limitations for Performance Standards Appendix 3: Hardware Configuration Requirements for Performance Standards Appendix 4: Migration Roles and Responsibilities; Key Personnel All other terms and conditions of the Agreement shall remain in full force and effect unchanged. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the _____ day of October, 1993. CONTINENTAL CABLEVISION U.S. COMPUTER SERVICES By: /s/ Jeffrey T. Delorme By: /s/ Arthur O. Hawkins ---------------------- ------------------------ Jeffrey T. Delorme - --------------------------- ------------------------ (Print Name) (Print Name) Executive Vice President - --------------------------- ------------------------ (Title) (Title) December 17, 1993 - --------------------------- ------------------------ (Date) (Date) *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -13- ON/LINE OPERATING & LICENSE AGREEMENT ATTACHMENT A CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES PRIMARY SITE - ------------ Corp Number 250-32 ------ Installation Address 3443 DEER PARK DRIVE -------------------- City STOCKTON State CA County Zip 95219 -------- -- ----- REMOTE SITE - ----------- Corp Number 222-35 ------ Installation Address 550 N. CONTINENTAL BOULEVARD ---------------------------- City EL SEGUNDO State CA County Zip 90245 ---------- -- ----- REMOTE SITE - ----------- Corp Number 222-19 ------ Installation Address 2808 METROPOLITAN PLACE ----------------------- City POMONA State CA County Zip 91767 ------ -- ----- REMOTE SITE - ----------- Corp Number 222-20 ------------------------- Installation Address ONE CABLE PLACE --------------- City INGLEWOOD State CA County Zip 90302 --------- -- ----- Page 1 REMOTE SITE - ----------- Corp Number 222-21 ------ Installation Address 20930 E. BONITA --------------- City CARSON State CA County Zip 90746 ------ -- ----- REMOTE SITE - ----------- Corp Number 222-26 ------ Installation Address 13325 BECH AVENUE ----------------- City MARINA DEL RAY State CA County Zip 90746 -------------- -- ----- REMOTE SITE - ----------- Corp Number 222-27 ------ Installation Address 10839 LA REINA AVENUE --------------------- City DOWNEY State CA County Zip 90241 ------ -- ----- REMOTE SITE - ----------- Corp Number 222-28 ------ Installation Address 2204 N. LONG BEACH ------------------ City COMPTON State CA County Zip 90221 ------- -- ----- REMOTE SITE - ----------- Corp Number 222-29 ------ Installation Address 2900 CRENSHAW BOULEVARD ----------------------- City LOS ANGELES State CA County Zip 90016 ----------- -- ----- Page 2 REMOTE SITE Corp Number 222-33 Installation Address 550 N. CONTINENTAL #115 City EL SEGUNDO State CA County Zip 90245 REMOTE SITE Corp Number 250-20 Installation Address 6505 TAM O'SHANTER City STOCKTON State CA County Zip 95210 REMOTE SITE Corp Number 250-28 Installation Address 16006 S. VIRGINIA City RENO State NV County Zip 89511 REMOTE SITE Corp Number 250-29 Installation Address 111 N. MOONEY BOULEVARD City TULARE State CA County Zip 93274 REMOTE SITE Corp Number 250-30 Installation Address 1945 N. HELM AVENUE City FRESNO State CA County Zip 93727 Page 3 REMOTE SITE Corp Number 250-31 Installation Address 311 B STREET City YUBA CITY State CA County Zip 95991 REMOTE SITE Corp Number 250-49 Installation Address 1945 NORTH HELM City FRESNO State CA County Zip 93727 REMOTE SITE Corp Number 259-04 Installation Address 189 BUSINESS CENTER DRIVE City CORONA State CA County Zip 91720 REMOTE SITE Corp Number 259-05 Installation Address 13816 RED HILL ROAD City TUSTIN State CA County Zip 92680 REMOTE SITE Corp Number 259-06 Installation Address 302 E. ROWLAND City COVINA State CA County Zip 91723 Page 4 REMOTE SITE Corp Number 250-16 Installation Address 27800 FRANKLIN ROAD City SOUTHFIELD State MI County Zip 48034 REMOTE SITE Corp Number 250-15 Installation Address PRINCETON & GULLEY ROAD City DEARBORN HEIGHTS State MI County Zip 48127 REMOTE SITE Corp Number 250-18 Installation Address 27432 GROESBECK HIGHWAY City ROSEVILLE State MI County Zip 48066 REMOTE SITE Corp Number 250-97 Installation Address 1575 ROHLWING ROAD City ROLLING MEADOWS State IL County Zip 60008 REMOTE SITE Corp Number 250-37 Installation Address 1575 ROHLWING ROAD City ROLLING MEADOWS State IL County Zip 60008 Page 5 REMOTE SITE Corp Number 250-22 Installation Address 688 INDUSTRIAL DRIVE City ELHURST State IL County Zip 60126 REMOTE SITE Corp Number 250-41 Installation Address 8101 AUSTIN AVENUE City MORTON GROVE State IL County Zip 60053 REMOTE SITE Corp Number 250-23 Installation Address 14150 CHICAGO ROAD City DOLTON State IL County Zip 60419 PRIMARY SITE Corp Number 250-00 Installation Address 335 MAIN STREET City READING State MA County Zip 01867 REMOTE SITE Corp Number 222-03 Installation Address 81 MYSTIC STREET City ARLINGTON State MA County Zip 02174 Page 6 REMOTE SITE Corp Number 222-04 Installation Address 27 HALE STREET City NEWBURYPORT State MA County Zip 01950 REMOTE SITE Corp Number 222-05 Installation Address 81 SCHOOL STREET City QUINCY State MA County Zip 02169 REMOTE SITE Corp Number 222-07 Installation Address 149 WAREHAM ROAD City MARION State MA County Zip 02738 REMOTE SITE Corp Number 222-08 Installation Address 15 FARRAR FARM ROAD City NORWELL State MA County Zip 02061 REMOTE SITE Corp Number 222-10 Installation Address 15 LOCUST ROAD City ORLEANS State MA County Zip 02653 Page 7 REMOTE SITE Corp Number 222-12 Installation Address ONE VAN CORTLANDT AVENUE City OSSINING State NY County Zip 10562 REMOTE SITE Corp Number 222-13 Installation Address 12 SAMSONDALE AVENUE City W. HAVERSTRAW State NY County Zip 10993 REMOTE SITE Corp Number 222-17 Installation Address 88 SHERMAN STREET City CAMBRIDGE State MA County Zip 02141 REMOTE SITE Corp Number 222-23 Installation Address 26 WILLIAMS STREET City CLINTON State MA County Zip 01510 REMOTE SITE Corp Number 250-01 Installation Address 8 COMMERCIAL STREET City CONCORD State NH County Zip 03301 Page 8 REMOTE SITE Corp Number 250-02 Installation Address 4 FRANKLIN STREET City BROCKTON State MA County Zip 02401 REMOTE SITE Corp Number 250-04 Installation Address 1123 MAIN STREET City SPRINGFIELD State MA County Zip 01103 REMOTE SITE Corp Number 250-05 Installation Address 116 MAIN STREET City WATERTOWN State MA County Zip 02172 REMOTE SITE Corp Number 250-07 Installation Address 55 JACKSON STREET City SAUGUS State MA County Zip 01906 REMOTE SITE Corp Number 250-08 Installation Address NIBLICK ROAD City ENFIELD State CT County Zip 06082 Page 9 REMOTE SITE Corp Number 250-09 Installation Address 360 WASHINGTON STREET City STOUGHTON State MA County Zip 02072 REMOTE SITE Corp Number 250-10 Installation Address 150 GREENLEAF AVENUE City PORTSMOUTH State NH County Zip 03801 REMOTE SITE Corp Number 250-11 Installation Address 1 DELAWARE DRIVE City SALEM State NH County Zip 03079 REMOTE SITE Corp Number 250-12 Installation Address 186 MAIN STREET City N. HAMPTON State MA County Zip 01060 REMOTE SITE Corp Number 250-13 Installation Address 335 MAIN STREET City READING State MA County Zip 01867 Page 10 REMOTE SITE Corp Number 250-14 Installation Address 294 MAIN STREET City SACO State ME County Zip 04072 REMOTE SITE Corp Number 250-15 Installation Address PRINCETON & GULLEY ROAD City DEARBORN HEIGHTS State MI County Zip 48127 REMOTE SITE Corp Number 250-24 Installation Address 1110 E. MOUNTAIN City WESTFIELD State MA County Zip 01086 REMOTE SITE Corp Number 250-25 Installation Address 159 EAST GROVE STREET City MIDDLEBORO State MA County Zip 02346 REMOTE SITE Corp Number 250-27 Installation Address WEST CENTRAL City NATICK State MA County Zip 01760 Page 11 REMOTE SITE Corp Number 250-33 Installation Address 7 B WHEELING AVENUE City WOBURN State MA County Zip 01801 REMOTE SITE Corp Number 250-34 Installation Address 115 EPPING ROAD City EXETER State NH County Zip 03833 REMOTE SITE Corp Number 250-44 Installation Address 681 FALMOUTH ROAD, BUILDING C City MASHPEE State MA County Zip 02649 REMOTE SITE Corp Number 250-45 Installation Address 172 CENTRAL STREET City MILFORD State MA County Zip 01757 REMOTE SITE Corp Number 250-46 Installation Address 41 MARBLE STREET City REVERE State MA County Zip 02151 Page 12 REMOTE SITE Corp Number 250-50 Installation Address 100 BRADY DRIVE City PORTSMOUTH State NH County Zip 03801 REMOTE SITE Corp Number 058-29 Installation Address 5934 RICHARD STREET City JACKSONVILLE State FL County Zip 32216 REMOTE SITE Corp Number 170-01 Installation Address 141 N.W. 16TH STREET City POMPANO BEACH State FL County Zip 33060 REMOTE SITE Corp Number 170-02 Installation Address 6781 W. SUNRISE BOULEVARD City PLANTATION State FL County Zip 33313 REMOTE SITE Corp Number 250-38 Installation Address 5934 RICHARD STREET City JACKSONVILLE State FL County Zip 32216 Page 13 REMOTE SITE Corp Number 250-39 Installation Address 5934 RICHARD STREET City JACKSONVILLE State FL County Zip 32216 REMOTE SITE Corp Number 250-42 Installation Address 5934 RICHARD STREET City JACKSONVILLE State FL County Zip 32216 REMOTE SITE Corp Number 250-51 Installation Address 5934 RICHARD STREET City JACKSONVILLE State FL County Zip 32216 Page 14 ON/LINE OPERATING & LICENSE AGREEMENT ATTACHMENT A CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES PRIMARY SITE Corp Number 250-00 Installation Address 335 Main Street City Reading State ma County Zip 1867 REMOTE SITE Corp Number 250-19 Installation Address 100 Main Street City Dover State NH County Zip 3820 REMOTE SITE Corp Number 222-30 Installation Address 8 N. Main Street City Attleboro State MA County Zip 2703 ON/LINE OPERATING & LICENSE AGREEMENT ATTACHMENT A CUSTOMER'S COMPUTER FACILITIES AND REMOTE SITES PRIMARY SITE Corp Number 250-97 Installation Address 1575 Rohlwing Road City Rolling Meadows State IL County Zip 60008 REMOTE SITE Corp Number 250-40 Installation Address 1304 Marquette Dr. City Romeoville State IL County Zip 60441 ON/LINE OPERATING & LICENSE AGREEMENT ATTACHMENT B SELECTED PRODUCTS AND SERVICES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 1 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 2- [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 3 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 4 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 7 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 8 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 9 - ATTACHMENT B ON/LINE OPERATING AND LICENSE AGREEMENT BENCHMARK STATEMENTS DISCOUNT LEVEL
PRODUCT STANDARD 1ST 2ND 3RD 4TH 5TH 6TH 7TH 8TH [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] Benchmark Statement Benchmark Statement (100% MSO) [*] Benchmark Statement (100% Division)
DISCOUNT LEVEL MSO SUBSCRIBERS -------------- --------------- 1st 100,000 - 249,999 2nd 250,000 - 499,999 3rd 500,000 - 999,999 4th 1,000,000 - 1,499,999 5th 1,500,000 - 1,999,999 6th 2,000,000 - 2,999,999 7th 3,000,000 - 3,999,999 8th 4,000,000 - and up *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -10- APPENDIX 1 FUNCTION MATRIX NOTE: All functionality that has not been moved forward to Continental requested dates is "core" to DDP/SQL and therefore, the USCS available dates are our best delivery date. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 1 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 2 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 3 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 4 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 5 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 6 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 7 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 8 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 9 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 10 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 11 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 14 APPENDIX 1 FUNCTION MATRIX [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 15 ON/LINE OPERATING AND LICENSE AGREEMENT APPENDIX 2 OPERATING LIMITATIONS 1) The Programs listed below, and no others, can be run at any time; however, these Programs are to be run primarily during normal business hours (response measurement period). Program # Description --------- ----------- 100 Order Entry 250 Dispatch 260 Check-in 600 Pay/Adjust 607 Lockbox Processing 200 Select CDW File 224 Route Cards 211 Route/Assign 220 Work Orders 130 Director File Maintenance 140 Personnel File Maintenance 110 Quota File Maintenance 160 Forms Writer 900 Keyboard Training 025 Customer Repair 300 Box File Maintenance 350 Addressable Box Driver (ARU/ANI) 370-375 ANI Drivers 342,345 ARU Drivers Terminal In-Truck Driver 700 Print Spooler 150 Complex File Maintenance 610 Post/Print Batches -1- 2) The following batch jobs should only be run after normal business hours. In the event any of these batch jobs are running, the response time criteria will no longer be applicable. Description ----------- Daily Performance Unreturned Converter Capitalized Drops Month-End Performance Print Cost by Aging Print Customer Products Rate Increase Run M/T Builder Customer Purge Change Group Events Hot Move/Disc Reports Customer Labels EFTS Processing Inst/Tech/Equip Report Refunds Run Write-offs Not Dones/Cancels Program Log Maintenance Collection Summary Supplier Activity Sales Commission Mass Correction-Print Box Select Status Summary Event Select WIP File Select Unreturned Converters Universal Select-when avail. Mass Correction-Key-in Collections Run House/Customer Select -2- APPENDIX 3 HARDWARE CONFIGURATION REQUIREMENTS PERFORMANCE STANDARDS READING DATA CENTER POMPANO - K1010 JACKSONVILLE - B SYSTEM 484 PORTS 375K ACTIVE SUBSCRIBERS Description Qty - ----------- --- K1008, Scal Parallel Srvr Pkg, 8 proc 1 Base System Cabinet 4 Processors (32mb Mem) 8 Multifunction Controllers 8 RMI Modem 1 I/O Expansion Cabinet, Dual Row 5 Substitute 96MB for 32MB Pr. 4 Non-Stop Kernel - Per Proc 8 Run-Time SQL 1 Pathway 1 Exchange - RJE 1 X.25 Access Method 1 Expand 1 Measure 1 C Compiler 1 Additional Hardware Components - ------------------------------ Scal Parallel Srvr Add-on, 2 Proc 1 Substitute 95mb for 32mb, Pair 1 Non-Stop Kernel 2 3650 Communications Subsystem 1 Fiber Optic Cable, 25m 2 4 Port Async LIU 10 Comm Stacking Pedestal 3 Cable Mgmt Kit 5 Dual Row Configuration Base Kit 1 Disk Drive, 1.038gb Internal 4 4510 12 Pak 2gb Disk Drive 1 4510 4 Pak 2gb Disk Drive 1 3128 Controllers 6 5175 Tape Drive 1 517-025W 25' Tape Cable Subst. 3 Pedestal, Modular Storage Sys 1 Enable Placement Kit 1 SCSI BIC 1 3214 Tape Controller 3 DISC SPACE ANALYSIS SHOWED 890MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA. 30 OF 60 I/O SLOTS ARE POPULATED USE (4) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER ASYNCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION APPENDIX 3 HARDWARE CONFIGURATION REQUIREMENTS PERFORMANCE STANDARDS READING DATA CENTER K1014 READING - SPRINGFIELD - A SYSTEM 861 PORTS 825K ACTIVE SUBSCRIBERS Description Qty - ----------- --- K1012, Scal Parallel Srvr Pkg, 12 proc 1 Base System Cabinet 6 Processors (32mb Mem) 12 Multifunction Controllers 12 RMI Modem 1 Substitute 96MB for 32MB Pr. 6 Non-Stop Kernel - Per Proc 12 Run-Time SQL 1 Pathway 1 Exchange - RJE 1 X.25 Access Method 1 Expand 1 Measure 1 C Compiler 1 Scal Parallel Srvr, Add-on, 2 Proc 1 Substitute 96mb for 32mb, Pair 1 Non-Stop Kernel 2 1038mb Disk Drives 4 4510 30 Pack 2GB Disk Drives 1 4510 4 Pak 2gb disk 1 3128 Controllers 12 I/O Expansion Cabinet, Dual Row 7 5175 Tape Drive 1 517-025W 25' Tape Cable Subst. 3 Enable Placement Kit 2 Pedestal, Modular Storage Sys 2 3850 Comm Subsystem 15 Fiber Optic Cables 30 Cable Management Kit 10 Comm Pedestal 5 4 Port Async LIU 216 3214 Tape Controller 3 SCSI BIC 1 Dual Row Base Configuration Kit 1 Cable, 10156-01 2 DISC SPACE ANALYSIS SHOWED 890MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA. 49 OF 84 I/O SLOTS ARE POPULATED USE (5) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER ASYCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION APPENDIX 3 HARDWARE CONFIGURATION REQUIREMENTS PERFORMANCE REQUIREMENTS ROLLING MEADOWS DATA CENTER K1000 6 PROCESSOR ROLLING MEADOWS 256 PORTS 245K ACTIVE SUBSCRIBERS Description Qty - ----------- --- K1006, Scallable Parallel Srvr Pkg. 1 System Cabinet 3 Processor (32MB) 6 Multifunction Controllers 6 RMI Modem 1 Substitute 96MB for 32MB Pr. 3 NonStop Kernel (per CPU) 6 NonStop SQL Runtime 1 Expand 1 Pathway NonStop Systems 1 C Compiler 1 Measure 1 X.25 Access Method 1 Exchange 1 I/O Expansion Cabinet 3 4510 12 Pack 2gb Disk Drive 1 3128 Controllers 4 5175 Tape Drive 1 517-025W 25' Tape Cable Subst. 3 Internal 1.038gb Disk Drive 4 Pedestal, Modular Storage Sys 1 Enable Placement Kit 1 Async Controllers (3606) 16 Sync Controllers (3605) 1 Universal Printer Controller 1 Cable, 10156-01 1 3214 Tape Controller 3 SCSI BIC 1 DISC SPACE ANALYSIS SHOWED 155MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA. 26 OF 36 I/O SLOTS ARE POPULATED USE (4) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER ASYNCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION APPENDIX 3 HARDWARE CONFIGURATION REQUIREMENTS PERFORMANCE REQUIREMENTS STOCKTON DATA CENTER K1000 2 PROCESSOR SOUTHFIELD 118 PORTS 141K ACTIVE SUBSCRIBERS Description Qty - ----------- --- K1002 Scalable Parallel Srvr Pkg 1 System Cabinet 1 Processor (32MB) 2 Multifunction Controllers 2 RMI Modem 1 Substitute 96MB for 32MB Pr. 1 NonStop Kernel (per CPU) 2 NonStop SQL Runtime 1 Expand 1 Pathway NonStop Systems 1 C Compiler 1 Measure 1 X.25 Access Method 1 Exchange 1 4510 6 Pak 2gb Disk Drive 1 Enable Placement Kit 1 Pedestal, Modular Storage Sys 1 3128 Controllers 2 Internal 1.038gb Disk Drive 4 Universal Printer Controller 1 System Printer Conversion Kit 1 3214 Tape Controller 1 5175 Tape Drive, 6250bpl 1 517-025W 25' Tape Cable Subst. 2 I/O Expansion Cabinet 1 Cables 10156 (system printer) 1 3650 Communications Subsystem 2 4 Port Async LIU 30 Fiber Optic Cable,25m 4 Comm. Stacking Pedestal 1 SCSI BIC 1 Cable Mgmt. Kit 1 USE (2) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER 10 OF 12 I/O SLOTS ARE POPULATED DISC SPACE ANALYSIS SHOWED 193MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA. 7 ASYNCS FROM SOUTHFIELD CAN'T BE USED DUE TO I/O SLOT LIMITATIONS. SEND TO STOCKTON FOR EL SEGUNDO (1) SCSI BIC FROM EL SEGUNDO ASYNCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION APPENDIX 3 HARDWARE CONFIGURATION REQUIREMENTS PERFORMANCE STANDARDS STOCKTON DATA CENTER STOCKTON & EL SEGUNDO 656 PORTS 621K ACTIVE SUBSCRIBERS Description Qty - ----------- --- K1012 Scalable Parallel Srvr Pkg 1 System Cabinet 6 Processor (32MB) 12 Multifunction Controllers 12 RMI Modem 1 Substitute 96MB for 32MB Pr. 6 NonStop Kernal (per CPU) 12 NonStop SQL Runtime 1 Expand 1 Pathway NonStop Systems 1 C Compiler 1 Measure 1 X.25 Access Method 1 Exchange 1 Additional Hardware Components - ------------------------------ 4510 24 Pak 2gb Disk Drive 1 4510 2 Pak 2gb Disk Drive 1 Enable Placement Kit 2 Pedestal, Modular Storage Sys 2 3128 Controllers 10 5175 Tape Drive 1 517-025W 25' Tape Cable Subst. 3 Internal 1.038gb Disk 4 Async Controllers (3606) 3 Universal Printer Controller 1 System Printer Conversion Kit 1 SCSI BIC 1 3214 Tape Controller 3 I/O Expansion Cabinet, Dual Row 6 Dual-Row Config. Base Kit 1 Cables 10156 (system printer) 1 USE (5) 648MB DISK FOR S/I AND MISC. STATIC FILES FROM EXISTING INVENTORY CONFIGURATION INCLUDES DATA STORAGE FOR EXPANDED LEDGER 57 OF 72 I/O SLOTS ARE POPULATED DISC SPACE ANALYSIS SHOWED 959MB OF NON-CABLEDATA, NON-TANDEM SOFTWARE/DATABASE. NEED TO ADD ONE ADDITIONAL VOLUME, (2 DRIVES), TO ACCOMMODATE THIS DATA. (7) ASYNCS FROM SOUTHFIELD, (4) ASYNCS FROM FRESNO, (27) ASYNCS FROM EL SEGUNDO ASYCHRONOUS CABLING TO BE INCLUDED IN HARDWARE CONFIGURATION APPENDIX 4 MIGRATION RESPONSIBILITIES CABLEDATA - - 1 on-site migration rep for every 50,000 active subscribers - - Migration rep(s) on site at 9:00 a.m. on the day files are loaded down. Rep(s) leave site 2 days later at 5:00 p.m. after corp is "live" for 2 days. - - ABL Prep and Extract Programs to be run by Data Center on-site migration coordinator - - Data Center on-site migration coordinator to remain on-site for 5 Days after Data Center has completed migrations - - 24 hour support provided during migration period - - A set of 7 training videos with workbooks will be provided to each corp and Data Center - - A playcorp will be provided for each Data Center for training purposes - - Test files created for each corp 1 month prior to migration - - QSP upgrade kit installation to be done by Computerland or corp, coordinated by migration coordinator - - Database administrator to be on-site at Data Centers to load down corp files - - Programmer on site in Reading, MA; Jacksonville, FL, and Pompano, FL for 1 to 2 days to assess what effort will be needed to convert Continental's custom programs CONTINENTAL CABLEVISION - - Corp employees need to be trained utilizing the training videos before migration rep(s) arrive on site. - - At least 1 crt at each corp will need to be upgraded to Quick Screen Plus for training(or 1 pc upgraded with the QSP emulator) - - Non-CableData reports will need to be provided to CableData for conversion if desired - - All corps must be on DDP Release 8.11 in order to be migrated to SQL Release 2.5 - - Data Center must save each corp's Manager, Event, and Batch files the night that ABL is started and backed up to tape - - Data Center must run a PPV charging run and reformat the Manager file the night prior to the backup for live files - - Data Center must run special rev "V" TBOL programs during migration period - - Data Center must have at least 1 upgraded crt in order to run ABL programs - - Bank needs to be notified of sequence number change - - Corps and Data Centers need to have management representative on-site at all times while CableData personnel are on-site - - If any corp is using ANI, it must be converted to OLVQ before the migration - - Corps must not cutoff during migration period - - Backup for live files must not be done during twilight period USCS KEY PLAYERS Migration Department Manager Jill Grant Migration Scheduling Manager Larry Alsbrook Database Administrator (Chicago) Sallia Bandy Data Center Coordinator (Chicago) Debbie Persram Database Administrator (Stockton) Mike Staahl Data Center Coordinator (Stockton) Diana Oatis Database Administrator (Reading) Ed Hewett Data Center Coordinator (Reading) Linda Lorusso CONTINENTAL CABLEVISION KEY PLAYERS Data Center Coordinator (Chicago) Joan Polaski Data Center Coordinator (Stockton) Glen Calloway Data Center Coordinator (Reading) Bob Gatesy EX-10.28 8 EXHIBIT 10.28 EXHIBIT 10.28 SOFTWARE DEVELOPMENT AGREEMENT THIS SOFTWARE DEVELOPMENT AGREEMENT ("Agreement") is made and entered into this 27th day of December, 1995 by and between BellSouth Interactive Media Services, Inc., a California corporation ("BIMS"), and CableData, Inc., a California corporation ("CableData"). WHEREAS, BIMS is in the process of establishing a network for the provision of interactive media and other services to consumers and other entities, and has determined the need for an integrated subscriber management system (i.e., to handle billings, various customer support functions, etc.) as an integral part of such network; WHEREAS, CableData is in the business of developing and providing integrated subscriber management and billing systems to customers, and has responded to BIMS' request for proposals by the submission of a proposal which it has represented will meet BIMS' requirements through the use of CableData's standard product, CableData's Intelecable -TM- (which is the subject of a separate, but related, Operating and License Agreement), and various enhancements and customizations thereto; WHEREAS, based upon CableData's proposal, BIMS desires to have CableData develop and furnish to BIMS such an integrated subscriber management system in accordance with specifications mutually agreed upon by BIMS and CableData and as documented in various agreements entered into by and between BIMS and CableData, including, without limitation, this Agreement and the Operating and License Agreement entered into concurrently herewith; WHEREAS, part of the integrated subscriber management system includes custom software and certain enhancements and other features to be developed by CableData and licensed on an unrestricted basis to BIMS, all of which will operate in concert with, among other things, the CableData's Intelecable -TM- software program to be provided by CableData and certain additional software programs to be provided by third parties; WHEREAS, it was previously the parties' intention to have assigned to BIMS ownership of the custom software and the enhancements and other features referenced in the preceding -1- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. paragraph on either an exclusive basis or on a joint basis with CableData, and BIMS has agreed, for certain consideration described further herein the sufficiency of which is hereby acknowledged, to forego such ownership in favor of CableData; WHEREAS, CableData's parent company, U.S. Computer Services ("USCS"), and BIMS have previously entered into an Interim Services Agreement, dated December 5, 1994, pursuant to which CableData has commenced the development of specific features of an integrated subscriber management system for BIMS, and which the parties agreed would be superseded and replaced by a more definitive agreement; WHEREAS, CableData and BIMS agree that the terms and conditions set forth herein shall constitute such definitive agreement and shall govern and determine the rights and obligations of the parties with respect to the services described herein, whether such services are rendered after the date of this Agreement or were rendered prior to the date of this Agreement under the auspices of the Interim Services Agreement; and WHEREAS, CableData is ready, willing and able to continue the provision to BIMS, and BIMS is ready, willing and able to accept, the software development and related provided for herein, pursuant to the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the foregoing, as well as the obligations herein made and undertaken, the parties, intending to be legally bound, do hereby agree as follows: 1. DEFINITIONS. (a) "Acceptance" means the completion of the Work Order whereby BIMS has completed its Acceptance Testing and CableData has corrected any defects reported relating to the applicable Software Release. BIMS shall notify CableData in writing upon Acceptance of each Software Release. (b) "Acceptance Testing" means the process used by BIMS to verify that the Software Release provided to BIMS by CableData meets the specifications contained in the Business Requirement Specification and in the Detailed Design Specifications. (c) "Affiliate" means, with respect to BIMS, any entity designated by BIMS for inclusion under this Agreement which controls, is controlled by or is under common control with BIMS, or any other entity in which BIMS or its Affiliates have any material form of ownership or managerial interest, as further described and qualified in the License Agreement. -2- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (d) "Application Program Interfaces", or "APIs", and "Remote Procedure Calls", or "RPCs", mean those portions of the Interface Software required to enable external third party applications to interface with the Core Software and the Custom Software for purposes of passing transactions and data to and from the Core Software and Custom Software. References herein to APIs and/or RPCs shall be deemed to include the APIs and/or RPCs developed under the Interim Services Agreement. (e) "Business Day" means (i) with respect to any time period within which BIMS must respond, Monday through Friday, excluding any holidays recognized by BIMS as company-wide holidays; and (ii) with respect to any time period within which CableData must respond, Monday through Friday, excluding any holidays recognized by CableData as company-wide holidays. (f) "Business Requirement Specification" means mutually approved business specifications for features and functionality to be contained in the Software Release. (g) "Confidential Information" means any data or information, other than Trade Secrets, that is of value to BIMS and is not generally known to competitors of BIMS. To the extent consistent with the foregoing, Confidential Information includes, but is not limited to, lists of any information about BIMS' or its Affiliates' executives and employees, marketing techniques, price lists, pricing policies, business methods, and contracts and contractual relations with customers and suppliers. Confidential Information also includes any information described in this paragraph which may be obtained from another party which BIMS treats as proprietary or designates as confidential information, whether or not owned or developed by BIMS. Unless otherwise agreed by the parties in connection with an individual Work Order (s), the Deliverables to be provided by CableData under this Agreement shall not be considered to be Confidential Information. (h) "Content Providers" mean the content providers which are delivering their products and/or services over BIMS' broadband network. (i) "Core Software" is the existing CableData's Intelecable -TM- subscriber management information system, as such may be modified, updated and upgraded from time to time on BIMS' System, to be provided by CableData pursuant to the terms of the License Agreement and as more particularly described in that License Agreement. -3- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (j) "Custom Software" means the software which performs the functions described in and complies with the Business Requirement Specification and the Detailed Design Specifications. The Custom Software shall be deemed to include the "Custom Work Product", as defined in the Interim Services Agreement, and the Enhancements to the Core Software. [*] (l) "Deliverables" mean all deliverables which CableData is required to provide to BIMS pursuant to this Agreement and/or any Work Order hereunder, and shall include, without limitation, the Custom Software, the Interface Software and the Documentation. (m) "Detailed Design Specifications" means the written plan for building the applicable Software Release code based upon the Business Requirement Specification. (n) "Documentation" means all operator and user manuals, guides, listings, specifications, data dictionaries, logical data models, entity relationship models, and other materials necessary for the complete understanding and utilization of the functionality of the Custom Software, including materials necessary for the complete understanding and utilization of the functionality of the Custom Software, including materials useful for design (e.g., logic manuals, flow diagrams and principles of operation) and machine-readable text or graphic files subject to display or print-out. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -4- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (o) "Enhancements" mean those portions of the Custom Software which represent new functionality, capabilities and table changes made to or within the pre-existing code of the Core Software. References herein to Enhancements shall be deemed to include the Enhancements made under the Interim Services Agreement. (p) "Fixed Development Fee and Incentive Pricing" means a mutually agreed single price with an incentive to CableData for early delivery of the defined Software Release associated with a specific Work Order. (q) "Implementation Schedule" means a document that sets forth the timing of the Deliverables specified in the Work Order. (r) "Information" means technical information, computer or other specifications, documentation, works of authorship or other creative works, ideas, knowledge, or data, written, oral or otherwise expressed (i.e., other than in connection with the APIs, RPCs or Enhancements), originated by CableData or any of its employees, consultants, representatives or agents as a result of work performed under or in anticipation of this Agreement. (s) "Interface Software" means the software necessary to provide interfaces and interoperability between and among the Custom Software delivered under this Agreement, the Core Software provided pursuant to the License Agreement, and other foreign and ancillary systems existing at BIMS and/or being provided to BIMS by third parties. The Interface Software shall be deemed to include the APIs and RPCs. (t) "Interim Services Agreement" means the Interim Services Agreement between BIMS and USCS, dated December 5, 1994, pursuant to which CableData has commenced the provision of software development and related services to BIMS, and which the parties agreed would be superseded and replaced by a more definitive agreement. (u) "Inventions" mean inventions, discoveries, or improvements which are conceived, first reduced to practice, made or developed in anticipation of, or in the course of, work performed under this Agreement by CableData or by one or more of CableData's employees, consultants, representatives or agents. (v) "License Agreement" means the Operating and License Agreement between BIMS and CableData of even date herewith pursuant to which CableData licenses the Core Software to BIMS. -5- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (w) "Proposal" means USCS' Initial Response to BIMS' Request for an Intelecable/Oracle Interface dated August 29, 1994, as modified by the facsimile transmission from Dave H. Williams to Larry E. Ryan dated September 1, 1994, the letter from Robert Crowley to Larry E. Ryan dated September 23, 1994 and the Memorandum of Understanding dated December 5, 1994, between USCS and BIMS. (x) "Self-Help Code" means any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity other than BIMS. Self-Help Code does not include software routines in the Custom Software, Interface Software or Core Software, if any designed to permit BIMS (or a third party authorized by BIMS) to obtain access to the System (e.g., remote access via modem) for purposes of maintenance or technical support. (y) "Software Change Management Plan" means the procedure to manage requests for changes after approval of the Business Requirement Specification and/or the Detailed Design Specifications, as set forth in Exhibit "A" attached hereto. (z) "Software Release" means the software to be provided to BIMS by CableData pursuant to any Work Order hereunder. (aa) "Source Code" shall mean the source code corresponding to the applicable software, plus any pertinent commentary or explanation that may be necessary to render the Source Code understandable and usable by highly-trained computer programmers who are generally familiar with Oracle database products and the C and C++ programming languages. The Source Code shall be in a format and on a storage medium suitable for loading into BIMS' computer equipment, and shall not be encrypted. The Source Code shall include system documentation and schematics, all as necessary or useful for the effective understanding and use of the Source Code. Insofar as the "development environment" employed by CableData for the development, maintenance and implementation of the Source Code includes any device, programming, or documentation not commercially available to BIMS on reasonable terms through readily known sources other than CableData, the Source Code shall include all such devices, programming and documentation; provided, however, that IBM's obligation to provide such devices and/or programming shall only extend to the object code form of such devices and/or programming. The foregoing reference to such "development environment" is intended to apply to any programs, including compilers, "workbenches," tools, and higher-level (or) -6- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. "proprietary") languages, used by CableData for the development, maintenance and implementation of the Source Code. (bb) "System" shall consist of the Custom Software and Interface Software provided to BIMS hereunder, the Core Software (as defined in the License Agreement) provided to BIMS pursuant to the License Agreement, and the computer hardware and software identified or described in the Operating Environment Attachment to the License Agreement, as supplemented by Work Orders agreed to by the parties in accordance with the terms of this Agreement. (cc) "Time and Materials" means development fees based upon actual time spent on the Software Release and based on hourly rates established in this Agreement and cost of travel and materials required to create the Deliverable(s) associated with the Work Order. (dd) "Trade Secrets" mean any information of BIMS, including but not limited to technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers, without regard to the form of such information regarding actual or potential customers or suppliers, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secrets shall include, but are not limited to , unpatented information relating to the development, manufacture or servicing of products, information concerning proposed new products, market feasibility studies, proposed or existing marketing techniques or plans, and computer software, including, without limitation, source and object codes, flow charts, algorithms, coding sheets, doctrines, sub-routines, compilers, assemblers, design concepts and related documentation and manuals. Trade Secrets also include any information of the type described above which BIMS obtains from another party and which BIMS treats as a Trade Secret, whether or not owned or developed by BIMS. Unless otherwise agreed by the parties in connection with an individual Work Order(s), the Deliverables to be provided by CableData under this Agreement shall not be considered to be Trade Secrets. (ee) "Unauthorized Code" means any virus, Trojan horse, worm, or other software routines designed to permit unauthorized access, or to disable, erase, or otherwise harm software, hardware, -7- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. or data. The term Unauthorized Code does not include Self-Help Code. (ff) "Walk-thru" means a technical presentation prepared by CableData and presented to BIMS for review, understanding and BIMS inputs relating to the Business Requirement Specification and the Detailed Design Specifications. (gg) "Work Order" means the statement of work relating to a BIMS initiated request for Deliverables. 2. BUSINESS REQUIREMENT SPECIFICATION. (a) The Business Requirement Specification sets forth the functional, performance and operational features and characteristics of a Software Release, and of the services to be rendered by CableData hereunder, as set forth or identified in Work Orders agreed to by the parties in accordance with the terms of this Agreement. (b) CableData will arrange and request BIMS' presence at a requirements review meeting. At this meeting, CableData will conduct a Walk-thru for BIMS of the proposed Business Requirement Specification. BIMS shall make modifications as appropriate. Upon agreement by both parties to the final Business Requirement Specification, CableData will prepare the document for approval by both parties. The development by CableData of the Business Requirement Specification shall be at no cost to BIMS unless otherwise expressly provided for in a Work Order signed by both parties. (c) Once signed by both parties in connection with the execution of a Work Order, the Business Requirement Specification becomes the preliminary specification upon which CableData shall build the Software Release under the Work Order provisions of this Agreement. (d) BIMS and CableData hereby acknowledge and agree that Exhibit "C" attached hereto and incorporated herein by this reference sets forth BIMS' initial Work Order pursuant to this Agreement (the "Initial Work Order"). The parties further acknowledge that they have mutually agreed to the Business Requirement Specification, the Implementation Schedule, the Fixed Development Fee and all other information identified or set forth therein. CableData will develop the Deliverables identified in Exhibit "C" hereto and deliver same to BIMS in accordance with Exhibit "C" and the terms and conditions of this Agreement. The -8- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Custom Software and Interface Software will be furnished in Source Code and machine-readable object code form. 3. SOFTWARE CHANGE MANAGEMENT PLAN. All changes to the Business Requirement Specification and/or the Detailed Design Specifications must be requested in writing and require mutual agreement, in accordance with the procedure set forth in the Software Change Management Plan (Exhibit "A") attached hereto and by this reference made a part hereof. Evaluation and/or implementation of requested changes may or may not result in any modification to CableData's price, Implementation Schedule or other terms of this Agreement. CableData assumes the risk of any work performed or action taken by CableData based upon oral statements, or on documents or notations, not in accordance with the Business Requirement Specification, the Detailed Design Specifications, this Section 3 and Exhibit "A" hereto. 4. DETAILED DESIGN SPECIFICATIONS. CableData shall, with BIMS' cooperation and joint participation, develop and deliver to BIMS a set of Detailed Design Specifications based upon the Business Requirement Specification. The Detailed Design Specifications shall include, as appropriate, system flow chats, program descriptions, file layouts, database structures, report layouts and screen layouts, data dictionaries, logical data models, entity relationship models, interface requirements and layouts, conversion requirements and layouts and refined equipment requirements for the Custom Software. In addition, the Detailed Design Specifications shall specifically address the program specifications for the Interface Software. CableData will arrange and request BIMS' presence at a product design and architecture meeting(s). At this meeting(s), all known architecture and design alternatives for the product(s) will be discussed and agreed upon by both parties. If the parties cannot reach agreement on the Detailed Design Specifications within ten (10) Business Days of the initial product design and architecture meeting referred to above, BIMS shall have the right to terminate this Agreement and/or the applicable Work Order pursuant to Section 18 herein. Once accepted by BIMS, the Detailed Design Specifications shall supplement the Business Requirement Specification, and CableData shall commence programming for the Custom Software and the Interface Software. -9- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. 5. DEVELOPMENT FEES AND COMPENSATION. The parties contemplate the need for flexibility in the development fees for Software Releases created by CableData for BIMS. Time and Materials and Fixed Development Fee and Incentive Pricing are two methods the parties agree to follow with Fixed Development Fee as the preferred method. The parties will mutually agree upon the appropriate Development Fee method for each Work Order. a. ALTERNATIVE PRICE DETERMINATION METHODS (i) FIXED DEVELOPMENT FEE AND INCENTIVE PRICING can be used when the parties have sufficiently detailed requirements for CableData sizing and quoting of a fixed price. CableData will evaluate the Business Requirement Specification, and size the effort to build the Custom Software and/or Interface Software. CableData will then produce a schedule based on the amount of development and testing required to satisfy the Business Requirement Specification. Where applicable to a particular Work Order, the parties shall specify in such Work Order the Fixed Development Fee and Implementation Schedule. CableData agrees to invoice BIMS for services provided to BIMS by CableData under each Work Order which specifies that services performed thereunder are to be performed on a Fixed Development Fee basis, in accordance with the schedule of payments set forth in such Work Order. (ii) TIME AND MATERIALS can be used when the parties do not have sufficiently detailed requirements upon which CableData can appropriately size the Software Release and quote a fixed price to BIMS. Upon written agreement of both parties, CableData will bill BIMS based on actual Time and Materials. Price ceilings and other controls shall be as set forth herein and as specified by the parties and contained in the specific Work Order, and BIMS shall not be liable for any charges and/or expenses thereunder in excess of the price ceilings specified or incurred by CableData other than in accordance with the applicable controls established. Time and Materials rates will be based on the rates contained in Exhibit "B" attached hereto and incorporated herein by reference, which Time and Materials rates shall be in no event more than the lower of (1) the rates set fort in the Pricing Attachment to the License Agreement, or (2) the rates which CableData charges to its other customers for comparable work. CableData agrees to invoice BIMS, upon achieving each milestone set forth in the associated Implementation Schedule, for services provided to BIMS by CableData under each Work Order which specifies that services performed thereunder are to be performed on a Time and Materials basis, in accordance with the applicable Time and Materials rates. CableData -10- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. shall submit with each invoice, copies of time reports which relate to the services being invoiced. In addition to the foregoing, the requirements and procedures set forth below shall apply to services performed under any Work Order on Time and Materials basis: (A) CableData shall invoice BIMS, monthly in arrears, for expenses incurred as a result of performing services in accordance with any Work Order. Such expenses shall be limited to reasonable out-of-pocket expenses necessarily and actually incurred by CableData in the performance of its services hereunder, provided that: (1) such expenses have been estimated in the Work Order and BIMS has given its prior written consent for any such expenses; (2) the expenses have been detailed on a form acceptable to BIMS and submitted to the appropriate BIMS Project Manager for review and approval; and (3) if reasonably requested by BIMS, CableData submits supporting documentation in addition to the approved expense form. It is understood that BIMS shall not reimburse CableData for commutation expenses under any circumstances. It is also understood that any air transportation reimbursable hereunder shall be coach-economy and that entertainment by or on behalf of CableData shall be at no cost to BIMS. (B) CableData will submit the charges and/or expenses to be invoiced for services performed and the applicable time reports or documentation under any Work Order to the BIMS Project Manager for that Work Order, for review and comment prior to actual invoicing. BIMS will have five (5) days to review all such documentation, following which CableData will issue and invoice for payment. Subject to Section 5(b) below, the charges and/or expenses invoiced in accordance with this Section, except for any amounts disputed by BIMS, shall be payable by BIMS within thirty (30) days of BIMS's receipt of each invoice. Any disputed charges and/or expenses shall not affect payment of non-disputed charges and/or expenses, in accordance with the terms of this Agreement. (C) CableData shall maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles, to substantiate CableData's charges and expenses -11- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. hereunder and CableData shall retain such records for a period of three (3) years from the date of final payment under any Work Order. (D) BIMS shall have the right to have audited through an independent certified public accountant the books and records of CableData relating to the amounts invoiced to BIMS hereunder (other than for services performed on a Fixed Development Fee basis), for the purpose of verifying the amounts due and payable hereunder, upon at least five (5) Business Days' notice to CableData. The cost of such audit shall normally be at BIMS' expense; provided, however, that CableData will bear the cost of the audit if the audit reveals any overpayment which, in the aggregate, is greater than three percent (3%) of the amount which was actually due for the period being audited. b. RETAINAGE Notwithstanding any amount invoiced by CableData hereunder, BIMS shall be obligated to pay only eighty percent (80%) of the undisputed amounts of each invoice and the remainder shall constitute retainage, which shall be retained by BIMS and shall not be payable until Acceptance of the Deliverables under the applicable Work Order(s) and delivery to BIMS of all Documentation with respect to the System or the Software Release, as applicable, together with the Source Code corresponding to such Software Release. Upon Acceptance of the Deliverables under the applicable Work Order(s), BIMS shall pay fifty percent (50%) of the retainage under such Work Order(s) to CableData within thirty (30) days of receipt by BIMS of a request for such payment. Upon delivery to BIMS of all final Documentation with respect to the System or the Software Release, as applicable, together with the Source Code corresponding to such Software Release, BIMS shall pay the remaining fifty percent (50%) of the retainage under such Work Order(s) to CableData within thirty (30) days of receipt by BIMS of a request for such payment. c. INCENTIVE PAYMENTS ON FIXED DEVELOPMENT FEE QUOTES Should the Deliverables associated with a particular Fixed Development Fee Work Order be provided ahead of schedule, provided that such Deliverables are capable of Acceptance by BIMS pursuant to Section 7 herein and/or in the applicable Work Order without modification by CableData during the course of such Acceptance Testing, BIMS shall pay CableData the Fixed Development -12- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Fee plus an incentive amount to be mutually agreed upon by the parties in connection with such Work Order. Should CableData fail to provide the Deliverables on schedule due to causes other than the acts or omissions of BIMS or causes beyond CableData's control, such as delays attributable to third parties providing products or services directly to BIMS under contract with BIMS (i.e., as opposed to CableData's suppliers and/or subcontractors), all as identified to BIMS by CableData in the appropriate progress report at such time as required pursuant to Section 9(b) herein, BIMS shall pay CableData the Development Fee less a Delay Damages amount to be mutually agreed upon by the parties in connection with each such Work Order, as provided for in subsection (d) below. In the event the Deliverables associated with a particular Work Order are not acceptable in accordance with Section 7 herein and/or as provided in the applicable Work Order, no incentive payments will be due, regardless of delivery time. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -13- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. [*] E. DEVELOPMENT FEE DISCOUNTS As consideration for BIMS's commitment to engage CableData for future development of Custom Software and/or Interface Software, and in consideration for BIMS' agreement that CableData will own all Custom Software and Interface Software created pursuant to the Interim Services Agreement, as included in the Initial Work Order hereunder, and in recognition of the value of the ownership of such Custom Software and Interface Software by CableData, CableData hereby agrees to grant to BIMS discounts off of the Development Fees associated with the Initial Work Order, as well as with certain subsequent Work Orders, whether such Development Fees are on a Fixed Development Fee basis or are on a Time and Materials basis. The discounts shall be calculated as follows: (i) BIMS shall receive a discount of [*] off of the Development Fees associated with any and all Work Orders issued by BIMS and accepted by CableData on or before December 31, 1996 (collectively, the "1996 Work Orders"), until such time as the discounts under this Section 5(e)(i) reach a total of [*]. (ii) Thereafter, BIMS shall receive a discount off of the Development Fees associated with all 1996 Work Orders based upon the level of commitment made by BIMS with respect to such 1996 Work Orders, which commitment shall be made by BIMS within forty-five (45) days of BIMS' receipt of an estimate from CableData of the Development Fees anticipated for such 1996 Work Orders. The discounts shall be as follows: (A) in the event that BIMS' aggregate commitment for 1996 Work Orders is less than or equal to [*] then BIMS *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -14- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. shall receive a discount of [*] off of the Development Fees associated with all 1996 Work Orders; (B) in the event that BIMS' aggregate commitment for 1996 Work Orders is more than [*] but less than [*], then BIMS shall receive a discount of [*] percent [*] off of the Development Fees associated with all 1996 Work Orders; and (C) in the event that BIMS' aggregate commitment for 1996 Work Orders exceeds [*], then BIMS shall receive a discount of [*] off of the Development Fees associated with all 1996 Work Orders. In the event that BIMS fails to achieve the level of commitment it had made with respect to the 1996 Work Orders, the Development Fees for such 1996 Work Orders shall be adjusted at the end of the year to reflect the lower discount, if one would have been applicable under this Section 5(e)(ii), applied to the actual undiscounted Development Fees payable by BIMS for such 1996 Work Orders. Conversely, in the event that BIMS attains the threshold amount of Development Fees for a higher level of discount under this Section 5(e)(ii) than was applicable to the level of commitment which BIMS had made with respect to the 1996 Work Orders, then BIMS shall receive the higher discount off of the Development Fees for all 1996 Work Orders from and after the Work Order submitted by BIMS which causes the undiscounted Development Fees to exceed the threshold for the higher level of discount under this Section 5(e)(ii). By way of example, but not by way of limitation, in the event that BIMS' aggregate commitment for 1996 Work Orders is [*], and BIMS actually achieves undiscounted Development Fees of [*] with respect to the 1996 Work Orders, the followng will apply: (x) during the year, BIMS would have received a discount of [*] off of the Development Fees associated with the 1996 Work Orders, such that it would have paid [*] (i.e., [*] of [*] during the course of the year (note that, for ease of illustration only, the discount *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -15- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. provided for in Section 5(e)(i) has not been reflected in this example); and (y) based upon the actual undiscounted Development Fees of [*], the actual discounted Development Fees would be recomputed to reflect the lower [*] discount (i.e., [*] and BIMS will be obligated to pay to CableData the difference of [*]. Conversely, assuming the same level of commitment of [*] if BIMS issues (and CableData accepts) a 1996 Work Order which would cause the Development Fees for all 1996 Work Orders to exceed [*], then BIMS shall receive a discount of thirty percent [*] off of the Development Fees associated with such 1996 Work Order and for all subsequent 1996 Work Orders, but such event shall not result in a price adjustment (e.g., in the form of invoice credits or otherwise) for Development Fees previously paid to CableData under prior 1996 Work Orders. (iii) Following 1996, BIMS will be granted discounts as negotiated between the parties on the basis of BIMS's commitment to certain levels of f. PAYMENT TERMS CableData's standard payment terms are net cash, without discount, set-off or deferment, due and payable within thirty (30) days of the date of invoice, or the date of postmark if the postmark date is more than one (1) Business Day after the invoice date (collectively, the "Invoice Date"); payment of all undisputed charges is due in U.S. dollars. In the event that BIMS does not render full payment of all undisputed charges within sixty (60) days of the date payable, CableData may, after notifying BIMS, cease any and all services hereunder until such account is brought current. In addition, if BIMS fails to pay all undisputed charges within thirty (30) days of the Invoice Date, BIMS agrees that upon the expiration of a fifteen (15) day cure period following the effective date of written notice from CableData of such failure to pay, CableData will have the right to invoice and BIMS will pay a late payment service charge of one and one half percent (1.5%) per month, but not in excess of the lawful maximum interest allowed, on the past due balance from and after the expiration of such fifteen (15) day cure period. Should BIMS in good faith dispute any *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -16- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. portion of an invoice submitted by CableData, BIMS shall advise CableData in writing within thirty (30) days of the Invoice Date of such dispute and pay, when due, all non-disputed charges. CableData will consider BIMS' dispute in good faith. g. TAXES BIMS agrees to pay CableData all legally due sales, use or similar taxes in connection with the purchase of any services or tangible personal property pursuant to the terms of this Agreement. CableData shall separately state all applicable sales, use or similar taxes on each invoice as prescribed by the applicable terms of this Agreement or legal authority. CableData shall be legally responsible for remitting all taxes collected for BIMS to the proper taxing authority. In the event the taxability of any purchase under this Agreement is disputed by a taxing authority as the result of an audit or otherwise, CableData shall provide timely written notice to BIMS of this dispute prior to any settlement or action on this dispute. Notwithstanding the foregoing, any fines, penalties or interest imposed on BIMS or CableData, unless such fines, penalties or interest result from the actions taken by CableData at the written direction of BIMS. BIMS shall not be responsible for paying or reimbursing CableData for any corporate franchise tax, capital tax, net worth tax or taxes measured by reference to CableData's net income. 6. IMPLEMENTATION SCHEDULE. (a) The Implementation Schedule sets forth the time(s) for delivery of Deliverables specified in the Work Order. Unless otherwise specified in any individual Work Order, CableData recognizes that time and timely performance are of the essence in this Agreement and of each Work Order hereunder. (b) Both parties will agree upon appropriate delivery dates for the Deliverables and other milestone events including but not limited to the estimated date for the software architecture and design Walk-thru, schedule for conference calls initiated by CableData to provide Software Release progress and status (in addition to those required pursuant to Section 9 (b) herein), delivery of the Software Release Installation Plan and the date for installation of the Software Release at BIMS' site, and the Acceptance Testing period at BIMS' site. (c) If CableData is delayed at any time during the course of its performance under any Work Order due to acts of God or causes beyond its reasonable control, then CableData may request -17- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. that the affected Implementation Schedule date(s) be extended. BIMS shall review such request and grant an extension of time commensurate with the circumstances, subject to the following conditions: (i) The cause of the delay (A) is beyond CableData's control and arises without its, or any of its subcontractors' or suppliers', fault or negligence, and (B) arises or becomes known after the date of execution of the applicable Work Order; (ii) CableData demonstrates that the affected Implementation Schedule date(s) is reasonable certain to be delayed; and (iii) CableData provides a written request to BIMS within five (5) Business Days after the time CableData knows or reasonably should have known of any cause or circumstances which might, under reasonably foreseeable circumstances, result in a delay for which CableData may claim an extension of time. If CableData shall fail to give the foregoing notice, the right to request an extension for such cause may be waived. A delay meeting all of the foregoing conditions shall be deemed an "Excusable Delay". The period of any extension of time shall be only that which is necessary to make up the time actually lost. BIMS reserves the right to rescind or shorten any extension previously granted if BIMS subsequently determines that any information provided by CableData in support of its request for an extension of time was erroneous or that there has been a material change in the facts stated; provided, however, that such information or facts, if known, would have resulted in a denial of the request for an Excusable Delay. In the event of a delay, CableData shall proceed continuously and diligently with the performance of the unaffected portions of the applicable Work Order and/or other Work Order(s) not affected by the delay. 7. ACCEPTANCE TESTING (a) After CableData has certified to BIMS in writing that all of the Deliverables associated with each Work Order have been delivered and installed in the facility specified by BIMS for purposes of Acceptance Testing, and that such Deliverables meet the operational, performance and integration specifications contained herein, in the Business Requirement Specification, in the Detailed Design Specifications, and in any applicable change request -18- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. documents, BIMS shall conduct Acceptance Testing of the System at its location pursuant to this Section 7. BIMS shall prepare an Acceptance Test Plan for the Initial Work Order and shall submit such plan to CableData for approval, which approval shall not be unreasonably withheld. For purposes of Acceptance Testing, performance of the Deliverable will be measured on the basis of a commercially reasonable standard unless some other standard or specific performance criteria are specified in the applicable Work Order. "Acceptance" shall be deemed to occur at the earlier of (i) that point in time at which BIMS notifies CableData of the successful completion of the acceptance test period provided for in this Section 7, or (ii) that point in time at which BIMS places the Deliverables into productive use in connection with paying Subscribers (as defined in the License Agreement). (b) BIMS shall conduct its Acceptance Testing of the Deliverables under each Work Order for a period of forty-five (45) days (the "Initial Acceptance Test Period"), commencing (i) with respect to the Deliverables under the Initial Work Order, as set forth in Exhibit "C" attached hereto, upon the last to occur of (A) receipt by BIMS of CableData's certification, as provided in subsection (a) above, with respect to such Deliverables, or (B) November 8, 1995, and (ii) with respect to Deliverables under Work Order(s) other than the Initial Work Order, upon receipt by BIMS of CableData's certification with respect to each such Work Order. Notwithstanding the previous sentence, BIMS shall have the right to toll the running of the forty-five (45) day Initial Acceptance Test Period at any time, and from time to time, in connection with each Work Order hereunder, pending the delivery and installation of third party products with which BIMS desires to test the Deliverables hereunder; provided, however, that in no event will the running of the Initial Acceptance Test Period under any Work Order be tolled by more than sixty (60) days, cumulatively. The Initial Acceptance Test Period shall be successfully completed, and Acceptance shall be deemed to have occurred with respect to the applicable Deliverables, upon notice from BIMS to CableData that BIMS has determined that all of the functions of the Deliverables have been provided and perform in accordance with the Business Requirement Specification, as referenced or set forth in the applicable Work Order, and the Detailed Design Specifications, as provided for in Section 4 of this Agreement, including without limitation, that all reliability and performance standards set for herein and in the Business Requirement Specification and Detailed Design Specifications have been met or exceeded. If any of the Deliverables under a particular Work Order fail to pass the Initial Acceptance Test Period, BIMS shall so notify CableData in writing specifying the nature of such failure(s) in reasonable detail and CableData shall correct the specified failure(s) within -19- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. the ten (10) day period following BIMS' notice to CableData. The parties acknowledge and agree that BIMS' identification of failure(s) of the Deliverables, and CableData's correction of such failures, shall be an ongoing process throughout the Acceptance Test Period (hereinafter defined). Accordingly, BIMS shall notify CableData periodically during the course of the Acceptance Test Period of failure(s) of the Deliverables to conform to the Business Requirement Specification and Detailed Design Specifications therefor, and shall not, by any such notification, waive its right to notify CableData of subsequent failure(s) identified during the Acceptance Test Period. (c) Following CableData's certification that it has corrected all failures specified by BIMS to date during the Acceptance Test Period, BIMS shall commence another acceptance test period ("Re-Test Period") which will expire upon the later of (i) the expiration of the forty-five (45) day Initial Acceptance Test Period, or (ii) twenty (20) days after the commencement of the Re-Test Period. The Initial Acceptance Test Period and each Re-Test Period hereunder are referred to individually as an "Acceptance Test Period," and collectively (with respect to each Work Order) as the "Acceptance Test Period". The Acceptance Test Period shall be successfully completed, and Acceptance shall be deemed to have occurred with respect to the applicable Deliverables, upon notice from BIMS to CableData that BIMS has determined that all of the functions of the Deliverables have been provided and perform in accordance with the Business Requirement Specification and Detailed Design Specifications, including without limitation, that all reliability and performance standards set forth herein and therein have been met or exceeded. (d) In the event that any of the Deliverables under a Work Order fail to pass the third or any subsequent Re-Test Period, as provided for in subsection (c) above, CableData acknowledges that BIMS shall have the option, upon written notice to CableData, to either (i) extend CableData's right to continue attempting to cure the failure(s) for a specified period of time, upon the completion of which BIMS shall commence another Re-Test Period, or (ii) terminate: (A) for Acceptance Testing associated with Work Order(s) entered into pursuant to this Agreement other than the Initial Work Order set forth in Exhibit "C" hereto, any or all Work Order(s) issued under this Agreement which are then in progress. Upon such termination, BIMS shall have the right to return the Deliverables provided for in such terminated Work Order(s) and receive a refund of all amounts paid under such terminated Work Order(s), with no -20- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. liability on the part of BIMS to CableData for any portion of such Work Order(s), whether or not already ordered, performed or developed on BIMS' behalf; or this entire Agreement and the License Agreement, for (x) Acceptance Testing involving the Initial Work Order set forth in Exhibit "C" hereto and/or (y) the acceptance testing of the Core Software provided pursuant to the License Agreement, in the event that the failure of the Core Software to pass such acceptance testing involves Severity Level 1 or 2 Defects, as defined in the Maintenance/Support Attachment to the License Agreement. Upon such termination, BIMS shall have the right to return all Deliverables provided for hereunder and under the License Agreement, including without limitation, the Core Software, and receive a refund of all amounts paid under this Agreement and the License Agreement, with no liability on the part of BIMS to CableData for any portion of the Deliverables hereunder or thereunder, whether or not already ordered, performed or developed on BIMS' behalf. In any event, BIMS shall be entitled to receive such damages and remedies as BIMS might have pursuant to this Agreement and/or the License Agreement, or at law or in equity, including without limitation, Delay Damages pursuant to Section 5(d) of this Agreement. (e) For efficiency and project management purposes, informal testing, in addition to the Acceptance Testing provided for herein and/or in any Work Order(s), may be conducted on a component basis at various times as the work progresses, but neither such informal testing nor any provisional acceptance of the results thereof by BIMS shall constitute acceptance of any aspect of the System or any Software Release, as applicable, by BIMS or relieve CableData of the responsibility to ensure that the System and/or such Software Release, as a whole, successfully completes Acceptance Testing as a precondition to its entitlement to certain payments under this Agreement. 8. WORK ORDERS. It is contemplated that BIMS will desire to have CableData develop and furnish to BIMS, and that CableData will agree to provide to BIMS, periodic Software Releases and other Deliverables during the term of this Agreement. BIMS and CableData will use Work Orders, signed by both parties, as the primary method of initiating software development and other services by CableData. -21- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. The terms and conditions of this Agreement shall apply to each such Work Order proposed by BIMS which is accepted by CableData for the furnishing of such software development and other services. Separate Work Orders will be created for each Software Release. The Work Orders may include the following information: 1. Business Requirement Specification a. Descriptions and specifications for all custom Software Deliverables, including all features, functions and performance and integration requirements therefor. The Initial Work Order include a description of all Custom Work Products created pursuant to the Interim Services Agreement. i. The foregoing description includes identification of all Enhancements to be made to the Core Software. b. Descriptions and specifications for all Interface Software Deliverables. c. Identification of Documentation to be provided. d. Identification of any and all other Deliverables to be provided by CableData. 2. Implementation Schedule, including without limitation, estimated dates for the software architecture and design Walk-thrus (i,e., resulting in the Detailed Design Specifications), schedule for conference calls to be initiated by CableData to provide Software Release progress and status, delivery of the Software Release Installation Plan and the dates for installation of the Software Release(s) at BIMS' site, and the Acceptance Testing periods at BIMS' site. 3. Designation of whether work is to be performed on a Time and Materials basis or pursuant to a Fixed Development Fee (with Incentive Pricing). a. If Fixed Development Fee, a Milestone Payment Schedule (reflecting a hold-back of twenty percent (20%) pending CableData's correction of all defects identified during BIMS Acceptance Testing). -22- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. b. If Fixed Development Fee, incentive amounts for early delivery and Delay Damages amounts and schedules, if applicable. c. If Time and Materials, Delay Damages amounts and schedules, if applicable. d. If Time and Materials, overall price ceilings for Work Order, plus additional project management controls, if any, on fees and charges to be submitted by CableData. e. Estimation of allowable expenses to be incurred by CableData, if any (e,g., number of trips to Atlanta, together with estimates for airfare, lodging, meals, etc. for each trip). 4. Number of days to be allocated to BIMS' Acceptance Testing of the System upon completion of the Deliverables associated with the Work Order. 5. Acceptance Criteria and Schedule. Upon both parties' approval of the Work Order, the Work Order becomes incorporated into this Agreement as an Exhibit hereto. 9. PROJECT MANAGEMENT; DELIVERY. (a) DESIGNATION OF PROJECT COORDINATORS. CableData shall designate a Technical Project Manager and a Program Manager (together, the "CableData Project Coordinators"), each of whom shall be acceptable to BIMS and assigned by CableData to supervise the provision of the Deliverables. BIMS shall designate a Project Manager and a Program Manager (together, the "BIMS Project Coordinators"), each of whom shall be, assigned by BIMS to coordinate BIMS' involvement in the work hereunder. The BIMS Project Manager shall serve as CableData's primary point of contact for the resolution of problems. Each Program Manager shall be responsible for obtaining the express authority necessary to carry out his or her obligations and responsibilities hereunder, and may assume that the other Program Manager is acting within the scope of his or her authority. CableData and BIMS may change their Project Coordinators from time to time upon prior written notice to the other party, subject to subsection (d) below. (b) REVIEW MEETINGS AND PROGRESS REPORTS. Every two (2) weeks, or as often as the parties mutually agree, during the period in which CableData is performing services hereunder, the BIMS -23- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Project Coordinators and CableData Project Coordinators, as well as appropriate additional personnel involved in the particular tasks under way, shall meet at a mutually agreed upon site or arrange a conference call to discuss the progress made by CableData and BIMS. In order to facilitate proper project management, CableData shall provide BIMS and BIMS shall provide CableData, at each such meeting or conference call with a progress report specifying: (i) Any "critical issue" (defined as a problem that may delay the timely achievement of a milestone event) encountered by CableData or BIMS during the preceding two (2) week period, including without limitation, the failure of either party or a third party to perform, any delay of either party or a third party in performing or the inadequate performance of either party or a third party, which may prevent or tend to prevent CableData from completing any task by the completion date; (ii) An estimated length of any delay which may result from any critical issues; and (iii) The cause of any critical issue and the specific steps taken or proposed to be taken by CableData or BIMS as appropriate to remedy such critical issue. Each progress report provided by CableData and BIMS pursuant to this Section 9(b) shall include critical issues discussed and dealt with during the preceding two (2) week period. In any event, critical issues shall be discussed and dealt with as soon as possible after identification by CableData, BIMS or a third party partner. In the event CableData, BIMS or any such third party partner fails to specify in writing any critical issue with respect to a given two (2) week period in the appropriate progress report and in such manner and at such time as required pursuant to this Section 9(b), it shall be presumed that no critical issue arose during such two (2) week period, (c) USE OF THIRD PARTY CONTRACTORS. CableData shall have the right to retain third parties to furnish services to it in connection with its provision of the Deliverables and/or to provide services to BIMS on behalf of CableData; provided, however, that all third parties who perform work in furtherance of CableData's obligations hereunder shall execute appropriate documents consistent with the provisions of this Agreement undertaking obligations of confidentiality respecting such work. (d) REMOVAL OF PERSONNEL. In the event that any CableData employee performing services hereunder is found to be unacceptable to BIMS, BIMS shall notify CableData of such fact and -24- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. CableData shall remove said employee from performing services for BIMS and provide a qualified replacement no later than thirty (30) days thereafter. Except as provided for in the preceding sentence, CableData agrees to use best efforts to ensure the continuity of CableData personnel assigned to perform services under this Agreement. Except as provided for in the first sentence of this subsection (d), any reassignment by CableData of those of its key employees assigned to perform services under any Work Order must be with BIMS' prior written consent, which consent shall not be unreasonably withheld. In the event CableData reassigns any of its personnel assigned to perform services under this Agreement, CableData shall promptly provide a qualified replacement acceptable to BIMS. (e) ON-SITE SUPPORT. In addition to the provision of maintenance and support services pursuant to Sections 15 and 16 herein, upon request by BIMS, CableData shall identify and assign the number of CableData representatives requested by BIMS to be on site at BIMS' facilities and shall require such representatives to devote all of their business time during such assignment to the technical support of the Custom Software and Interface Software and to facilitate the support of the Core Software through CableData's customer service and support organization. As consideration for the provision of such on-site support, BIMS shall pay CableData pursuant to the fully-loaded rates set forth in Exhibit "B" hereto. All such payments due hereunder shall be invoiced by CableData to BIMS on a monthly basis. 10. INVENTIONS. (a) In the event that the parties specifically agree in a particular Work Order that BIMS will own the Deliverable(s) to be provided by CableData in connection with such Work Order, CableData hereby assigns and agrees to assign to BIMS all of CableData's and each of its employees', consultants', representatives' and agents' ("Associates") entire right, title and interest in and to all Inventions created in connection with such Work Order ("BIMS-Owned Inventions"), and any and all patents that may be granted thereon in any country of the world. In the event that the parties fail to so designate the ownership of the Deliverable(s) in connection with a particular Work Order, such Deliverable(s) shall be deemed to be wholly owned by CableData. (b) CableData shall promptly share with BIMS all information relating to any BIMS-Owned Inventions. With respect to such BIMS-Owned Inventions, CableData will promptly have its Associates sign all papers and, without charge to BIMS, do all acts which may be necessary, desirable or convenient to enable BIMS at -25- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. its expense to file and prosecute applications for patents on such BIMS-Owned Inventions, and to maintain patents granted thereon. CableData also agrees to acquire from its Associates who perform work in connection with the applicable Work Order, such assignments, rights and covenants as to assure that BIMS shall receive the rights provided for in this Section 10. The expenses and fees for preparing, filing and prosecuting each application or patent for a BIMS-Owned Invention shall be borne by BIMS; provided, however, that CableData will, at its expense, furnish BIMS with all documents, information, or other assistance, that may be necessary for the filing and prosecution of each such application. 11. DEVELOPED INFORMATION. (a) CableData agrees to disclose and promptly furnish to BIMS any and all Information. In tho event that the parties specifically agree in a particular Work Order that BIMS will own the Deliverable(s) to be provided by CableData in connection with such Work Order, BIMS shall own all right, title and interest in and to the Information created under such Work Order ("BIMS- Owned Information"), including all copyrights and proprietary rights therein. CableData expressly acknowledges that the parties have agreed that all aspects of the BIMS-Owned Information and all work in process in connection therewith are to be considered "works made for hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"), and that BIMS is to be the "author" of such BIMS-Owned Information within the meaning of such Act. All such copyrightable BIMS-Owned Information, as well as all copies of such BIMS-Owned Information in whatever medium fixed or embodied, shall be owned exclusively by BIMS as its creation, and CableData hereby expressly disclaims any interest in any of them. (b) In the event (and to the extent) that any BIMS-Owned Information created by CableData hereunder or any part or element thereof is found as a matter of law not to be a "work made for hire" within the meaning of the Act, CableData hereby conveys and assigns to BIMS the sole and exclusive right, title and interest in the ownership to all such BIMS-Owned Information, and all copies of any of them, without further consideration, and agrees to assist BIMS to register, and from time to time to enforce, all copyrights and other rights and protections relating to the BIMS-Owned Information created hereunder in any and all countries. CableData shall place a copyright notice in favor of BIMS on the BIMS-Owned Information at BIMS' request. (c) With respect to BIMS-Owned Information, CableData agrees to execute and deliver all documents requested by BIMS in connection with the foregoing assignments, and irrevocably -26- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. designates and appoints BIMS its agent and attorney-in-fact to act for and in its behalf and stead to execute, register and file any such copyright applications, and to do all other lawfully permitted acts to further the registration of copyrights or similar protections with the same legal force and effect as if executed by CableData. 12. UNRESTRICTED LICENSE. (a) In conjuction with the parties' agreement to the Business Requirement Specifications for all software Deliverables to be provided by CableData in connection with the applicable Work Order as modified by the parties in conjunction with their agreement to the Detailed Design Specifications therefor, and as part of the consideration for BIMS's payment of Development Fees hereunder, CableData hereby grants and agrees to grant to BIMS an unrestricted, paid-up, perpetual, irrevocable, non-exclusive license to use, distribute, copy, display, modify, enhance and create derivative works based upon the Information and Inventions associated with such Deliverables. Such license in favor of BIMS shall include the royalty-free right to sublicense any or all aspects of the Information and Inventions (including derivative works thereof) to third parties, without any duty on the part of BIMS to account to CableData for any income or compensation BIMS receives for any such sublicensing or distribution to third parties. The foregoing license in this subsection (a) shall not apply to CableData's pre-existing application libraries, pre-existing system libraries, third party libraries, source code to pre-existing application programs, or the development environment used to create "Pre-existing Materials" (hereinafter defined). (b) In furtherance of CableData's grant to BIMS of the license described above, CableData shall provide to BIMS Source Code for the Software Deliverables, together with the program executables which are derived from the linking of the software Deliverables and CableData's pre-existing application libraries, pre-existing system libraries and various third party libraries. CableData shall not be required to make available to BIMS, as a separate deliverable hereunder, a copy of CableData's pre-existing application libraries, pre-existing system libraries or any third party libraries. CableData hereby grants and agrees to grant to BIMS an unrestricted, royalty-free, run-time license to use, copy, distribute, display and perform the program executables which are derived from the linking of the software Deliverables and CableData's pre-existing application libraries, pre-existing system libraries and various third party libraries. The license so granted to BIMS includes the right to grant to BellSouth Corporation and any subsidiary or other affiliate to BellSouth -27- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Corporation, unrestricted, royalty-free licenses to use, copy, distribute, display and perform the program executables which are derived from the linking of the software Deliverables and CableData's pre-existing application libraries, pre-existing system libraries and various third party libraries. (c) In addition to the foregoing, CableData shall provide to BIMS, and to any third party designated by BIMS, at no additional charge to BIMS or any such third parties, copies of that object library specially created for BIMS pursuant to this Agreement, or derived from the APIs created for BIMS pursuant to this Agreement, which contains the necessary APIs for BIMS' and such third parties' applications to interface and interact with the System, including without limitation, the Core Software. CableData grants and agrees to grant to BIMS, and to any third party designated by BIMS, an unrestricted, royalty-free license to use, copy, distribute, display and perform such library. The parties understand and acknowledge that this libary was created by CableData to operate BIMS' Operating Environment (as defined in the License Agreement) and may not work in a third party's environment without modifications. Any such modifications would be subject to a Work Order to be mutually agreed to by the parties. In no event shall CableData be required to provide to BIMS or any third parties designated by BIMS libraries for APIs that have not been developed specifically for BIMS under this Agreement, or derived from APIs created for BIMS under this Agreement. (d) If the exercise of BIMS' rights under the licenses granted in Sections 12(a), (b) and (c) above requires the use of inventions or materials previously made, developed or copyrighted by CableData or others, and not originated or developed hereunder (the "Pre-existing Materials"), then CableData, to the extent that it has the right to do so, shall also make available to BIMS such Pre-existing Materials, in object code or other form, as may be required, but only to the extent necessary for BIMS to exercise such rights. CableData shall not be required to make available to BIMS, as a separate deliverable, a copy of CableData's pre-existing application libraries, pre-existing system libraries, third party libraries, source code to pre-existing application programs, or the development environment used to create Pre-existing Materials. CableData grants and agrees to grant to BIMS an unrestricted, royalty-free license to use, copy, modify, distribute, display and perform the inventions, information or other aspects of the Pre-existing Materials, as described above. The license so granted to BIMS includes the right to grant to BellSouth Corporation and any subsidiary or other affiliate of BellSouth Corporation unrestricted, royalty-free licenses to use, copy, modify, distribute, display and perform the inventions, information and -28- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. other aspects of the Pre-existing Materials, but only to the extent necessary to use, copy, modify, distribute, display and perform the software Deliverables. Nothwithstanding the foregoing, BIMS' use of the Core Software will be governed by and subject to the terms and conditions of the License Agreement between the parties. 13. CONFIDENTIALITY. (a) CableData acknowledges that in the course of providing the Deliverables it may have access to BIMS's Trade Secrets and Confidential Information. Accordingly, CableData agrees that (i) during the term of this Agreement and after the termination or expiration hereof, CableData will not, except as expressly authorized or directed by BIMS, use, copy, or disclose, or permit any unauthorized person access to, any Trade Secrets, and (ii) during the term hereof and for a period of three (3) years after the termination or expiration of this Agreement, CableData will not use, copy, or disclose, or permit any unauthorized person access to, any Confidential Information. (b) Upon BIMS' request and in any event upon the termination or expiration of this Agreement, CableData will deliver to BIMS all memoranda, notes, records, tapes, documentation, disks, manuals, files or other documents, and all copies thereof, concerning or containing Confidential Information or Trade Secrets that are in CableData's possession. Further, CableData shall ensure that upon the termination or expiration of this Agreement all Trade Secrets and Confidential Information are purged from CableData's computer memory. (c) BIMS acknowledges that the Core Software is provided in confidence and is a trade secret of CableData and will be so protected by BIMS, as required by the License Agreement between BIMS and CableData. 14. WARRANTIES AND REPRESENTATIONS. CableData hereby warrants and represents to BIMS as follows: (a) The content of the Proposal, which was relied upon by BIMS in entering into this Agreement, was true and accurate and contained no material omissions or misrepresentations as of the date of the Proposal and, except for changes that have been made to the software components, estimated costs of software development and professional fees, and except as otherwise expressly set forth herein, remains true and accurate and contains no material omissions or misrepresentations as of the date hereof. The Proposal is hereby incorporated herein by this reference and shall -29- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. constitute part of this Agreement as if fully set forth herein. To the extent of any conflict between the terms and conditions of this Agreement, including the Exhibits attached hereto, and the terms and conditions of the Proposal, the terms and conditions of this Agreement shall control. (b) The work to be performed hereunder shall conform to generally accepted standards for software in the software development field. Any services performed by CableData which are determined by BIMS to be of less than these standards or which contain errors or defects shall be corrected by CableData without additional charge during the Warranty Period (hereinafter defined). (c) The Deliverables will contain only (i) original material created by CableData or (ii) material which has been properly licensed from third parties and has been used by CableData in accordance with the licenses for such materials, provided that the inclusion of all such third party materials shall have been agreed to by BIMS. (d) The Deliverables are original works, and CableData has not entered into any contract or agreement which would prohibit or affect this Agreement to BIMS' detriment. (e) The Custom Software has not been nor will it be assigned, transferred or otherwise encumbered, and none of the Deliverables, and no portion thereof, infringes any patents, copyrights, trade secrets, or other proprietary rights of any third party, and CableData has no reason to believe that any such infringement or claims thereof could be made by anyone. (f) CableData has obtained all necessary rights and licenses to third party materials included in the Deliverables to enable BIMS to use the Deliverables for any purpose and for no additional charge beyond the amounts expressly set forth in this Agreement or in the License Agreement, and has provided, or will upon BIMS' request provide, to BIMS copies of documents granting all such rights and licenses. (g) CableData is aware that BIMS is relying on its skill and judgment in providing the Deliverables. CableData believes that it has been made generally aware of BIMS' documented business requirements and intended uses for the Deliverables, as more clearly described in the Business Requirement Specification, and, based upon such belief, CableData warrants that the Deliverables shall satisfy such requirements and will be fit for such intended uses. -30- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (h) Neither the Custom Software nor the Interface Software contains nor will contain any Self-Help Code or any Unauthorized Code, and CableData agrees to ensure against any data lost as a result of same. (i) If the Custom Software or Interface Software contains authorization codes allowing access to a database or other software system, CableData warrants that such codes shall be perpetual and non-expiring. (j) For a period commencing upon Acceptance, pursuant to Section 7 hereof and/or the associated Work Order(s), as applicable, and ending ninety (90) days thereafter (the "Warranty Period"), and for the period during which CableData is providing continuing support for the Custom Software and the Interface Software pursuant to Section 16 below and the License Agreement (the "Support Period"), the Custom Software and Interface Software shall perform as described in the Business Requirement Specification and in the Detailed Design Specifications when operated within the operating environment identified or described in the Operating Environment Attachment to the License Agreement, as supplemented by Work Orders agreed to by the parties in accordance with the terms of this Agreement. Except as otherwise provided herein, CableData does not warrant: (i) that the Custom Software and Interface Software will run properly on all hardware, (ii) that the Custom Software and the Interface Software will operate in the combination of hardware/software which may be independently selected by BIMS, or (iii) that the use of the Custom Software and Interface Software will be uninterrupted or error-free. During the Warranty Period, CableData shall correct such defects identified by BIMS at no additional cost to BIMS, and shall respond to and resolve problems with the Custom Software and Interface Software in accordance with the procedures set forth in the License Agreement, at no additional cost to BIMS. (k) During the Warranty Period and subsequent Support Period, the Core Software and the Custom Software shall be compatible with each other without degraded System response time, except as set forth in the Work Order and the License Agreement. CableData further warrants that during the Warranty Period and subsequent Support Period, the Custom Software will interface with -31- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. all foreign and ancillary systems existing at BIMS and/or being provided to BIMS by third parties (including Sybase, Inc.), as identified in the Business Requirement Specification, without degrading response time and without breaching any of the warranties set forth in this Agreement. (l) Each of CableData's employees, agents, representatives or subcontractors assigned to perform any work hereunder shall have the proper skill, training and background so as to be able to perform in a competent and professional manner, and all work will be so performed. (m) The Warranties set forth in this Section 14 will not apply if malfunctions of Custom Software occur as a result of (i) natural disasters, including fire, flood or lightning, (ii) armed conflict or civil disturbance, (iii) electrical fluctuations or failures, (iv) gross neglect or intentional misuse of the Custom Software products, (v) corrections or modifications to the Custom Software not provided by or approved in writing by CableData or (vi) the failure to install promptly a correction provided by CableData. (n) EXCEPT AS PROVIDED IN THIS AGREEMENT OR IN THE LICENSE AGREEMENT, NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE WARRANTIES SET FORTH HEREIN APPLY ONLY TO THE CUSTOM SOFTWARE AND INTERFACE SOFTWARE AS PROVIDED TO BIMS BY CABLEDATA OR AS SUCH CUSTOM SOFTWARE AND/OR INTERFACE SOFTWARE IS MODIFIED BY CABLEDATA, AND DO NOT EXTEND TO THE CUSTOM SOFTWARE AS MODIFIED BY BIMS OR A THIRD PARTY WITHOUT CABLEDATA'S WRITTEN APPROVAL. 15. CUSTOM SOFTWARE SUPPORT. During the Warranty Period, CableData shall do the following without additional charge to BIMS: (a) Promptly notify BIMS of any defects or malfunctions in the Custom Software and/or Interface Software of which it learns from any source, correct any such defects or malfunctions and provide BIMS with corrected copies of same; (b) Promptly provide to BIMS copies of the Custom Software and/or Interface Software revised to reflect any enhancements to the Core Software made by CableData, or to any other software or systems with which the Custom Software interfaces (e,g., software provided to BIMS by Sybase, Inc.), as identified in the Business Requirement Specification; -32- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (c) Twenty-four (24) hours per day, seven (7) days per week, provide to BIMS all telephone (toll-free in the United States) or written consultation requested by BIMS in connection with its use and operation of the Core Software, Custom Software and Interface Software, or any problems therewith; (d) Remedy any services performed by CableData which are determined by BIMS to be of less than the highest professional quality; and (e) Respond to and resolve problems with the Custom Software and/or Interface Software identified by BIMS in accordance with the response time hierarchy included in the License Agreement. 16. CONTINUING SUPPORT OF CUSTOM SOFTWARE. Effective upon the expiration of the Warranty Period, CableData shall provide maintenance, additional support and enhancements in connection with the Custom Software and the Interface Software pursuant to the terms of the License Agreement at no cost to BIMS for a period of [*]. At the end of such [*] CableData will provide BIMS a price quote for continued support of the Custom Software and Interface Software. Post-Warranty support shall include, but not be limited to, revisions to the Custom Software and/or Interface Software which are necessary to enable the Custom Software and/or Interface Software to continue to operate with the enhancements, updates or revisions to the Core Software and to the other software and systems with which the Custom Software interfaces (e.g., software provided to BIMS by Sybase, Inc.), as identified in the Business Requirement Specification. In addition, such post-warranty support shall include the provision by CableData to BIMS, upon request by BIMS, of revisions to the Custom Software and Interface Software, in both Source Code and object code form, as necessary to enable BIMS to fully utilize new features and functionality that may have been added to the Core Software. The Unrestricted License, as provided for in Section 12 above, shall apply to all revisions to the Custom Software and Interface Software provided to BIMS hereunder. 17. INDEMNITY. (a) CableData shall indemnify, defend and hold BIMS and its Affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments, including reasonable attorneys' fees, and costs and expenses incidental thereto, which may be suffered by, accrued *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -33- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. against, charged to or recoverable from BIMS or any of its Affiliates, or any of their respective officers, directors, agents or employees, arising out of a claim that any Deliverable or any portion thereof infringes or misappropriates any United States or foreign patent, copyright, trade secret or other proprietary right. CableData shall have no liability to BIMS for any infringement action or claim which is based upon or arises out of: (i) any modification of the Deliverables by BIMS without the express written permission of CableData; or (ii) any use of the Deliverables in combination with any other system, equipment or software which is not furnished by CableData or approved by CableData in writing. (b) CableData shall indemnify, defend and hold BIMS and its Affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments, including reasonable attorneys' fees, and costs and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from BIMS or any of its Affiliates, or any of their respective officers, directors, agents or employees, arising out of or resulting from (i) claims of bodily injury, including death, or loss or damage to property or physical destruction of property arising out of or in connection with any act, error or omission of CableData or any of its officers, directors, agents, representatives, employees and subcontractors, during the performance of this Agreement; (ii) intentional acts or gross negligence on the part of CableData or any of its agents, representatives, employees or subcontractors in the course of its performance under this Agreement, or (iii) a reclassification or attempt to reclassify CableData or any of CableData's employees, agents, representatives or subcontractors as an employee of BIMS or any of its Affiliates, including, without limitation, any tax liability (including interest and penalty) resulting from BIMS' or any of its Affiliates' failure to pay, deduct or withhold income taxes, Federal Insurance Contribution Act taxes, or Federal Unemployment Tax Act taxes with respect to CableData or any of its employees, agents, representatives or subcontractors. (c) CableData's duty to indemnify BIMS hereunder shall include all attorneys' fees which BIMS reasonably incurs in connection with the defense of any claims covered by this Section 17 and all settlement costs, except as otherwise provided in this Section 17. Promptly after receipt by BIMS of a threat of any action, or a notice of the commencement or filing of any action against which BIMS may be indemnified hereunder, BIMS shall give notice thereof to CableData, provided that failure to give or delay in giving such notice to CableData shall not relieve CableData of -34- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. any liability it may have to BIMS hereunder except to the extent that CableData demonstrates that the defense of such action is prejudiced thereby. CableData or CableData's attorney(s) shall keep BIMS reasonably apprised of the continuing status of the claims covered by this Section 17, including any lawsuits resulting therefrom, and shall permit BIMS, upon BIMS' written request, to participate in the defense or settlement of any such claim, provided that CableData shall have no obligation to indemnify for, be bound by or otherwise incur any liability with respect to, any settlement terms to which it has not agreed. CableData shall assume the cost of defending against any such claim and shall select the attorney(s) to defend them against such claim subject to BIMS' approval, which shall not be unreasonably withheld. 18. TERMINATION. (a) Either party may terminate this Agreement at any time in the event of a material breach of the terms hereof by the other party if such party shall fail to cure such material breach within thirty (30) calendar days of receipt of written notice thereof. (b) BIMS may terminate this Agreement: (i) upon written notice to CableData in the event that: (A) BIMS terminates the License Agreement pursuant to the terms thereof; (B) BIMS reasonably rejects the Detailed Design Specifications prepared pursuant to Section 4 hereof, for the Initial Work Order set forth in Exhibit "C" hereto; (C) CableData fails to deliver the version of the System which includes the Software Releases prepared in connection with the Initial Work Order set forth in Exhibit "C" hereto within sixty (60) days of the delivery date set forth in the Implementation Schedule; or (D) the version of the System which includes the Software Releases prepared in connection with the Initial Work Order set forth in Exhibit "C" hereto fail to pass Acceptance Testing, as more -35- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. particularly described in Section 7 hereof; or (ii) without cause upon seven (7) calendar days prior written notice to CableData, in which event BIMS shall pay CableData for CableData's development work hereunder through the effective date of termination on a Time and Materials basis, to be determined in accordance with Exhibit "B," up to the amount of the unpaid portion of the Development Fee associated with the development work performed through the effective date of termination. (c) BIMS may terminate any Work Order entered into pursuant to this Agreement: (i) upon written notice to CableData in the event that: (A) BIMS reasonably rejects the Detailed Design Specifications prepared pursuant to Section 4 hereof with respect to such Work Order; (B) CableData fails to deliver the version of the System which includes the Software Release prepared in connection with such Work Order within sixty (60) days of the delivery date set forth in the Implementation Schedule set forth in the Work Order; or (C) the version of the System which includes the Software Release prepared in connection with such Work Order fails to pass Acceptance Testing, as more particularly described in Section 7 hereof and/or in such Work Order. (d) In the event of termination pursuant to subparagraph (b)(i)(B) or (b)(i)(C) of this Section, then BIMS shall have the option to either (i) return to CableData all Deliverables under the Initial Work Order, upon reimbursement by CableData of all amounts paid by BIMS in connection with such terminated System or Work Order, or (ii) retain all such Deliverables in lieu of any reimbursement by CableData of any amounts paid by BIMS in connection with the Initial Work Order, and pursue such other -36- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. damages and remedies as BIMS might have pursuant to this Agreement and/or the License Agreement, or at law or in equity, including without limitation, Delay Damages pursuant to Section 5(d) of this Agreement. In the event of termination pursuant to subparagraph (c)(i)(A) or (c)(i)(B) of this Section, then BIMS shall have the option to either (i) return to CableData all Deliverables related to the terminated Work Order, upon reimbursement by CableData of all amounts paid by BIMS in connection with such terminated Work Order, or (ii) retain all such Deliverables in lieu of any reimbursement by CableData of any amounts paid by BIMS in connection with such terminated Work Order, and pursue such other damages and remedies as BIMS might have pursuant to this Agreement, or at law or in equity, including without limitation, Delay Damages pursuant to Section 5(d) of this Agreement. In the event of termination pursuant to subparagraph (b)(i)(D) or (c)(i)(C) of this Section, then BIMS shall have the rights set forth in Section 7(d) of this Agreement. (e) Any termination of this Agreement or any Work Order by BIMS shall be in addition to any and all other legal or equitable remedies which may be available to BIMS. 19. COORDINATION AND COOPERATION WITH OTHER CONTRACTORS/CONTENT PROVIDERS. (a) Throughout the term of this Agreement, other contractors and persons (including personnel of BIMS) may be required to render services in or install equipment or software at BIMS' facilities, including, but not limited to, Sybase, Inc., Hewlett-Packard Company and Scientific-Atlanta Inc. BIMS reserves the right to permit and put such other contractors and persons to work and to afford them access to such facilities at such times and under such conditions as do not unreasonably interfere with CableData. CableData shall perform continuously and diligently and shall so conduct and coordinate its aspects of this Agreement so as to minimize interference with such other work. Upon CableData's receipt from BIMS of written notification as set forth in the License Agreement, CableData shall also cooperate with BIMS in providing such information and assistance as requested by BIMS for such coordination in a timely manner, subject to the provisions of Paragraph 6(b) of the License Agreement. If BIMS determines that CableData is failing to coordinate its work with the work of other contractors engaged by BIMS or is failing to cooperate with such contractors, then CableData shall be responsible for all damages, costs and expenses suffered or incurred by BIMS by reason of CableData's failure. -37- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (b) Throughout the term of this Agreement, certain Content Providers and other third party contractors and/or providers of related products and services will be required to configure and/or develop the necessary software in order to deliver their products and services over BIMS's broadband network, the usage of which products and services may be tracked by and/or maintained within the System. Upon written notification from BIMS, CableData shall cooperate with the Content Providers and such third parties in providing such information and assistance as is necessary for such persons or entities to configure and/or develop the necessary software in a timely manner, subject to the provisions of Paragraph 6(b) of the License Agreement. CableData acknowledges and agrees that the injury that BIMS will suffer in the event of CableData's breach of the foregoing covenant cannot be compensated by monetary damages alone, and CableData therefore agrees that BIMS, in addition to and without limiting any other remedies or rights which it may have either under this Agreement or otherwise, shall have the right to obtain injunctive or other equitable relief against CableData, from any court of competent jurisdiction, enjoining any such breach. 20. RELATIONSHIP OF PARTIES. CableData acknowledges, agrees, represents and warrants that it is and has been engaged as an independent contractor, and not as an employee, of BIMS, and nothing in this Agreement shall be construed as creating an employer-employee relationship or any partnership or joint venture between BIMS and CableData. CableData shall be responsible for payment of all federal, state and local taxes arising out of CableData's and its agents', representatives' and subcontractors' activities, including by way of illustration, but not limited to, federal and state income taxes, social security taxes, unemployment insurance taxes, where applicable, and business license fees, where required. CableData shall not incur any liability on behalf of BIMS or in any way represent or bind BIMS in any manner or thing whatsoever and nothing herein shall be deemed to make either party the agent or legal representative of the other. 21. REGULATORY AUTHORITY. BIMS' provision of services in connection with the broadband trial will be subject to the provisions of the order(s) of the Federal Communications Commission ("FCC") approving BellSouth Telecommunications Inc.'s application for authority to conduct the trial. ("214 Application") and applicable tariffs. BIMS and its affiliates shall use reasonable efforts to pursue any regulatory and local authority required to perform the broadband trial. BIMS -38- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. may terminate this Agreement if it or its affiliates are unable to obtain the required approvals and authority. Any such termination shall be as set forth in this Agreement, and shall be without any further charge, obligation and/or liability on the part of BIMS to CableData. 22. ASSIGNMENT TO VANGUARD. In addition to BIMS' assignment rights under this Agreement, including without limitation, BIMS' right to assign this Agreement to one or more Affiliates, BIMS shall have the right to assign its rights and delegate its duties under this Agreement either in whole or in part, at any time and without CableData's consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give CableData written notice of such assignment or delegation. Upon the written notice to CableData and receipt by CableData of Vanguard's written assumption of rights and obligations under this Agreement, BIMS shall be released and discharged, to the extent of the assignment, from further duties under this Agreement. 23. GENERAL. (a) INSURANCE. CableData shall procure and maintain for itself and its employees all insurance coverages as required by federal or state law, including worker's compensation insurance. CableData also agrees to maintain (a) insurance in the minimum amount of [*] comprehensive general liability coverage, including blanket contractual liability, broad form property damage, and products completed operations coverage, and naming BIMS as an additional insured, and (b) insurance in the minimum amount of [*] coverage of software errors and omissions, including services rendered and intellectual property infringement claims, with respect to the computer software developed hereunder. CableData shall furnish to BIMS a certificate of insurance evidencing such coverage. Said certificate will include a provision whereby fifteen (15) calendar days notice must be received by BIMS prior to coverage change or cancellation by either CableData or the insurer. CableData waives its rights of subrogation against BIMS. (b) GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia. The parties agree that the exclusive jurisdiction for any action relating to this Agreement shall be a federal or state court in Atlanta, Georgia and the parties hereby consent to such jurisdiction. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -39- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (c) ANNOUNCEMENTS. CableData shall not use the name of or refer to BIMS, BellSouth or any of their affiliates directly or indirectly in any advertisement, press release or professional or trade publication without receiving prior written approval from BIMS. (d) NOTICES. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service, express courier (such as UPS), telecopy, or by United States certified mail, return receipt requested, postage prepaid to the addresses set forth below, or such other address as changed through written notice to the other party. If to BIMS: BellSouth Interactive Media Services 1100 Abernathy Road, Suite 414 500 NorthPark Town Center Atlanta, Georgia 30328 Attn: Larry E. Ryan Telecopy: (770) 481-2959 With a copy to BIMS General Counsel (same address) Telecopy: (770) 673-2886 If to CableData: CableData, Inc. 2969 Prospect Park Drive Rancho Cordova, California 95670-6006 Attn: Barry Madrid and Bob Archibald Telecopy: (916) 636-5750 With a copy to CableData's General Counsel (same address) Telecopy: (916) 636-4561 Notice given by personal service shall be deemed effective on the date it is delivered, notice sent by express courier shall be deemed effective one Business Day after dispatch, notice given by telecopy shall be deemed effective on the date of transmission, and notice mailed shall be deemed effective on the third Business Day following its placement in the mail. (e) CAPTIONS. The Captions appearing in this Agreement have been inserted as a matter of convenience and in no way define, limit or enlarge the scope of this Agreement or any of the Sections hereto. -40- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. (f) NO WAIVER. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision. (g) SEVERABILITY. In the event that any one or more of the provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, unenforceable or illegal, such invalidity, unenforceable or illegality shall not affect any other provisions of this Agreement and the Agreement shall be construed as if the challenged provision had never been contained herein. The parties further agree that in the event such provision is an essential part of this Agreement, they will immediately begin negotiations for a suitable replacement provision. (h) ASSIGNMENT. It is understood and agreed by the parties that the services of CableData are unique and personal in nature and CableData shall not delegate or assign all or any portion of its required performance to any other individual, firm or entity without the express written consent of BIMS. (i) SURVIVAL. The provisions of Sections 10, 11, 12, 13, 17 and 20, of this A Agreement shall survive the expiration or other termination of this Agreement. (j) REMEDIES. The rights and remedies of BIMS set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. (k) BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors-in-interest, legal representatives, heirs and assigns. (1) AMENDMENT OR MODIFICATION. No amendment to or modification of this Agreement shall be binding upon any party unless such amendment or modification is reduced to writing, dated and executed by the parties to this Agreement. (m) MULTIPLE COUNTERPARTS. This Agreement may be executed, in counterparts, all of which taken together shall constitute one single agreement between the parties. (n) PERSONNEL RULES AND REGULATIONS. While on BIMS" premises, CableData representatives will comply with all security practices and procedures generally prescribed by BIMS. In -41- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. addition, unless otherwise agreed to by the parties, CableData representatives shall observe the working hours, working rules, holiday schedules and policies of BINS while working on BIMS' premises. (o) ENTIRE AGREEMENT. This Agreement constitutes and expresses the entire agreement and understanding between the parties in reference to all matters referred to herein, and any and all previous agreements, discussions, promises, representations, and understandings between the parties relative thereto, including without limitation, the Interim Services Agreement, are merged herein and superseded hereby, except that BIMS shall continue to have the benefit of all provisions of prior agreements protecting the confidentiality of and the proprietary rights of BIMS in and to its materials. (p) EXHIBITS. The following exhibits are attached to this Agreement and incorporated herein by reference: Exhibit "A" - Software Change Management Plan Exhibit "B" - CableData Development and Consulting Fee Schedule Exhibit "C" - Initial Work Order Exhibit "D" - Work Order No. 2 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. :_______________________________________ BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. CABLEDATA, INC. BY: /S/ JAMES R. GADD BY: /S/ JERRY JOHNSON -------------- ------------- NAME PRINTED: JAMES R. GADD NAME PRINTED: JERRY JOHNSON -------------- ------------- TITLE: PRESIDENT TITLE: VICE PRESIDENT --------- -------------- DATE: DECEMBER 22, 1995 DATE: DECEMBER 27, 1995 ----------------- ----------------- -42- December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. EXHIBIT A BELLSOUTH - CABLEDATA SOFTWARE CHANGE MANAGEMENT PLAN SCOPE The Software Change Management Plan ("SCM") covers changes to the Business Requirement Specification and Detail Design Documents. Managing and correcting trouble reports are out of the scope of this document. SOFTWARE CHANGE MANAGEMENT OBJECTIVES - Control, manage and evaluate changes to the various development phases of the project (requirements, design, development) that occur after baseline requirements are approved. - Establish responsibilities for carrying out change management functions. - Identify requirements that will be controlled. - Establish change management procedures. - Manage approved changes into specific release schedules. - Develop a status reporting procedure. - Have only one official requirements document. - Control, manage and evaluate maintenance changes in production. DEFINITION OF TERMS Change Control means the ability to manage change, (to specifications and systems), in an ordered means. Change Control is a procedure which will be adhered to rigorously, to ensure changes are not lost, or inappropriate or disruptive to current schedules. Configuration management means the ability to hold different versions of the system simultaneously, and reproduce a version at a moments notice. It also refers to controlling the version upon which new coding appropriately take place. Control procedures means written processes that Control how change is introduced into the project. VERSION CONTROL A baseline is established on documentation when a document has been approved. The approved baseline version for all documents is 1.0. Subsequent versions of Business Requirement Specification and Detail Design Documents will be numbered and dated, e.g., 1.1 (2-1-95). The Project Director at CABLEDATA will maintain these documents. December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. To become an official request, a Requirement/Design Change Request and Evaluation Form (DCR) (see attached) must be completed and sent to the Review Team. Informal change requests, such as those made in meetings or between users and CABLEDATA staff, must be followed up and documented by completing a Requirements/Design Change Request and Evaluation Form. BIMS will have responsibility for initiating and managing the Software Change Management Process. CHANGE REQUEST CLASSIFICATION-ENHANCEMENTS AND NEW DEVELOPMENT 1. Mandatory. Change must be made to accommodate regulatory requirements, correct a system design failure, implement a BellSouth corporate policy, etc. 2. New Market or Functional Necessity Change is required for system to meet existing or anticipated marketing requirements or represent a successful competitive entry in the market. System technical design contains elements that are inconsistent, new products (HW/SW) are being added require system modifications, etc. Change will improve productivity, profitability, etc. 3. Discretionary development and enhancements Change is desirable for system consistency, appearance, performance, reliability, or other reason - but is not necessary immediately. 4. Administrative/wish list Typos, document structure, "wish lists" to be recorded for future consideration, etc. CONTROL PROCEDURES a) BIMS AND CABLEDATA PROJECT MANAGERS WILL EXAMINE THE NEED FOR NEW OR CHANGED REQUIREMENTS OR DESIGN. Contact likely effected paws about the desired change and the resulting scope of ramifications. b) IF THE CHANGE IS DETERMINED TO BE DESIRABLE, BIMS PROJECT MANAGER WILL COMPLETE A REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM (DCR). Fill out a softcopy version of the DCR form, including all descriptive, category and classification elements. Fill out list of effected vendors/components, if known. Consider what & who the proposed change will effect. d) SUBMIT THE DCR TO THE BELLSOUTH REQUIREMENTS COORDINATOR ("GATEKEEPER") Print a hardcopy version, and provide both hardcopy and softcopy to the BellSouth Requirements Coordinator ("Gatekeeper"). e) GATEKEEPER WILL LOG REQUEST AND BEGIN REVIEW PROCESS Gatekeeper will assign a log number for tracking and add the item to the DCR database. f) GATEKEEPER WILL EXAMINE PRIORITY AND EVALUATE WHEN THE DCR MUST BE REVIEWED BASED ON THAT PRIORITY. g) GATEKEEPER WILL COORDINATE AND SCHEDULE REVIEW MEETINGS AS NECESSARY. Reviews will likely be with team members and vendors to ensure that the review is adequate and all necessary estimates are completed. This process will include clarifications and acquisition of more detailed information if necessary. h) GATEKEEPER WILL MAKE OR OBTAIN A DECISION (REJECT/APPROVE) AS NECESSARY. December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. If approved, the Gatekeeper will ensure that all necessary signatures are acquired from project leaders and executives. i) GATEKEEPER AND PROJECT DIRECTORS WILL OBTAIN ESTIMATES FOR RAMIFICATIONS OF CONTRACT CHANGES NECESSARY. If the request involves any contract changes, the Gatekeeper will obtain estimates for the ramifications of those contract changes, and will forward with justifications and impacts, the request to premier BellSouth and vendor executive teams. This may involve legal, financial and other resource participation. j) THE GATEKEEPER WILL DETERMINE AND ARRANGE SCHEDULING FOR IMPLEMENTATION. After approval, if the change results in an impact to current development costs, schedules or resources, the BIMS and CableData Project Managers will create a Work Order using the Work Order concept detailed in the Software Development Agreement. If the change does not impact costs, schedules or resources, a Work Order is not necessary. However, a copy of the DCR should be attached to any affected Work Orders. k) CABLEDATA WILL UPDATE ALL NECESSARY BUSINESS REQUIREMENT SPECIFICATION AND DETAIL DESIGN DOCUMENTS. Approved DCRs will effect at least one of the current documents. CableData will reissue the changed documents, with new version numbers and dates. l) THE GATEKEEPER WILL ARRANGE FOR AN UPDATE OF ALL NECESSARY REQUIREMENTS AND DESIGN DOCUMENTS. Approved DCRs will effect at least one of the current documents. Therefore, some republishing of those documents may be necessary, depending on the scope of change. December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. BELLSOUTH RBB TRIAL REQUIREMENTS/DESIGN CHANGE REQUEST AND EVALUATION FORM Log Number: Final Decision: Accept/Reject Abstract (one line): Requester: Submission Date: Organization: Telephone Number: Component: Subcomponent: Version: Type of Request: Requirements: Clarification Modification New Remove Design/Specifications: Clarification Modification New Remove Priority: 1 2 3 4 Change Will Result In: Requirements Document only (Yes No) Internal component implementation (Yes No) External API Modification (Yes No) User Interfaces (Yes No) Other (specify) (Yes No) Status: Submitted Accepted Implemented Does Complete Summary: Justification: Proposed Changes: (wording, page #, Requirement ID, etc. desired) APPROVALS AND CONCURRENCES (AS NECESSARY) SIGNATURE DATE BELLSOUTH PROJECT MGR. BELLSOUTH COMPUTER TECHNICAL TEAM LEAD BELLSOUTH QA & TEST MGR. Vendor Project Mgr. BellSouth Executive (If Contract Change Required) Vendor Executive (If Contract Change Required) December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Anticipated Effects Headcount Hours Required Required Related Requirements/Design (all vendors and components) Software/Hardware Development (All vendors & components) Documentation (User & System) System Integrator Testing (Unit & System) BellSouth/Vendor Contract Ramification Evaluation (To be completed by BellSouth) Net Effects on Trial Service Delivery (To be completed by BellSouth) PRIORITY DESCRIPTIONS: 1. Mandatory. Change must be made to accommodate regulatory requirements, correct a system design failure, implement a BellSouth corporate policy, etc. 2. New Market or Functional Necessity. Change is required for system to meet existing marketing requirements or represent a successful competitive entry in the market. System technical design contains elements that are inconsistent, new products (HW/SW) are being added require system modifications, etc. Change will improve productivity, profitability, etc. 3. Discretionary development and enhancements Change is desirable for system consistency, appearance, performance, reliability, or other reason - but is not necessary immediately. 4. Administrative/wish list Typos, document structure, "wish lists" to be recorded for future consideration, etc. December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Exhibit B CableData Development and Consulting Fee Schedule Project Director/Project Manager [*] Member of the Technical Staff [*] Manager [*] Staff member/On-site [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. December 21, 1995 PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR CABLEDATA, INC. EXCEPT PURSUANT TO A WRITTEN AGREEMENT. EXHIBIT C CABLEDATA WORK ORDER FOR BELLSOUTH INTERACTIVE MEDIA SERVICES This Work Order is a part of the Software Development Agreement dated December _____, 1995, between BellSouth Interactive Media Services, Inc., a Georgia corporation ("BIMS"), and CableData, Inc., a California corporation ("CableData"). All work performed under this Work Order is subject to the terms and conditions of the Software Development Agreement. 1. GENERAL Date of Work Order: 8/18/95 Work Order Number: 1 This work order is referred elsewhere to be the "Initial Work Order" 2. DESCRIPTION OF WORK Installation of Intelecable -TM- Version 2.5 pursuant to the Operating and License Agreement. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -2- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. [*] 3.SERVICE BILLING METHOD: COMBINATION FIXED PRICE AND TIME AND MATERIAL METHOD(REF. PARAGRAPH 5.A OF DEVELOPMENT AGREEMENT) [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -3- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. a. MILESTONE PAYMENT SCHEDULE (Ref. paragraph 5.a.i of development agreement) The following amounts will be withheld until completion of acceptance testing and acceptance of software. This is in lieu of a normally withheld 20% of a workorder amount, with 1 0% paid upon acceptance, and final 10% upon delivery of final documentation. Milestone Event(s) Amount(s) [*] Final Payments made upon delivery and acceptance of all documentation: [*] B. INCENTIVE PAYMENT SCHEDULE (Ref. paragraph 5.c of development agreement) Deliverable Item(s) Milestone #days Incentive Date(s) early Amount(s) NONE *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -4- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -5- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. d. Additional Allowable Expenses To Be Incurred (Ref. paragraph 5.a.ii.A of DEVELOPMENT agreement) (Note: this item covers all expenses to be incurred such as trip expenses, etc.) [*] 4. OPERATING ENVIRONMENT (Ref. paragraph 7g of Operating and License Agreement) (NOTE: this section is to describe changes that may be necessary to the operating environment to accommodate this WORK Order.) No changes are necessary to the operating environment established for this work order. 5, DELIVERABLES/SOFTWARE RELEASE (Ref. paragraph 6.b of development AGREEMENT) [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -6- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. a. OWNERSHIP (Ref. paragraphs 10 and 11 of the development agreement) Ownership falls into these categories: 1. CableData retains full ownership 2. BIMS retains full ownership 3. Joint ownership between BIMS and CableData [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -7- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. [*] 6. IMPLEMENTATION SCHEDULE (Ref. paragraph 6 of development agreement) *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -8- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. Item(s) Date(s) [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -9- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. 7.ACCEPTANCE TEST CRITERIA: Acceptance test criteria for the core software will be the Documentation, i.e. CableData supplied Reference Manuals and Release notes. For the custom software, acceptance test criteria will be Business Functionality Specification and Detail design documents, attached to this work order. -10- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. 8. ATTACHMENTS: Attachment A Approved Requirements of Business Functionality documents Attachment B Detailed design documents -11- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. 8. APPROVALS All of the terms, covenants and conditions set forth in the Software Development Agreement are incorporated herein by reference as if the same had been set forth herein in full. CABLEDATA, INC. BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. Jerry Johnson James R. Gadd - ------------- ------------- Name Name Vice President Vice President - -------------- -------------- Title Title /s/Jerry Johnson /s/James R. Gadd ------------- ------------- Signature Signature December 27, 1995 December 22, 1995 - ----------------- ----------------- Date Date -12- PRIVATE/PROPRIETARY CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION MAY NOT BE USED OR DISCLOSED OUTSIDE THE BELLSOUTH COMPANIES OR U.S. COMPUTER SERVICES EXCEPT PURSUANT TO A WRITTEN AGREEMENT. EX-10.29 9 EXHIBIT 10.29 EXHIBIT 10.29 CABLEDATA'S INTELECABLE -TM OPERATING AND LICENSE AGREEMENT THIS AGREEMENT IS BETWEEN CABLEDATA, INC. (hereinafter called "CableData"), a California corporation located at 2969 Prospect Park Drive, Rancho Cordova, CA 95670, and BELLSOUTH INTERACTIVE MEDIA SERVICES, INC. (hereinafter called "BIMS"), a Georgia corporation located at 1100 Abernathy Road, Suite 414, Building 500, Atlanta, GA 30328. BIMS and CableData, by their execution of this Operating and License Agreement, hereby agree that CableData shall provide and BIMS shall utilize CableData's Intelecable proprietary subscriber management software (hereinafter called "Core Software") and Services, throughout the period of this Agreement. 1. PERIOD OF AGREEMENT This Agreement shall be for a period of [*] months, commencing on the date of full execution of this Agreement ("the Effective Date"). BIMS shall have the right to extend the Agreement for up to [*] following the expiration of the initial term, subject to the adjusted pricing set forth in the Pricing Attachment. Thereafter, the parties may agree to extend the Agreement for an additional period to be mutually agreed upon. 2. DEFINITIONS The following definitions are applicable to this Agreement: a. Affiliate - with respect to BIMS, any entity designated by BIMS for inclusion under this Agreement which controls, is controlled by or is under common control with BIMS, or any partnership or other such entity in which BIMS or its Affiliates have any material form of ownership, and for entities having 100,000 or more Subscribers, which CableData has consented to be included under this Agreement. For purposes of this definition of Affiliate, "material form of ownership" shall be deemed to mean partnerships or other entities in which BellSouth Corp. or a BellSouth subsidiary has in excess of a fifty percent (50%) ownership interest. BIMS shall submit to CableData's Project Manager the names of all entities having 100,000 or more Subscribers that it wishes to include within the definition of Affiliate, and CableData shall have fifteen (15) days thereafter to notify BIMS in writing if, in its sole reasonable discretion, it objects to the inclusion of such entity under this Agreement, in which case the entity will not be included within the definition of Affiliate under this Agreement. If CableData fails to give such notice, the entity will be deemed to be added to this Agreement as an Affiliate. Entities with fewer than 100,000 Subscribers will be added to the list of Affiliates at BIMS's sole discretion. In no event shall an entity be deemed to be an Affiliate if it offers Subscriber Management Software products or services in the open market in direct or indirect competition with CableData's Software. All references to BIMS in this Agreement will be deemed to include Affiliates. b. Agreement - CableData's Intelecable Operating and License Agreement and the Attachments thereto between BIMS and CableData, as the same may be amended from time to time. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 1 - c. Authorized Parties -- third parties who provide services over BIMS's facilities and network and who have been approved by CableData to use the Core Software, which approval shall not be unreasonably withheld. For purposes of this definition, CableData consents to the inclusion of Vanguard Cable Corp. as an Authorized Party. Additional third parties may be approved by CableData as follows: upon receipt of written notice from BIMS, CableData shall have fifteen (15) days thereafter to notify BIMS in writing if, in its sole reasonable discretion, based on an assessment of the third party's competitive position relative to CableData, CableData objects to the inclusion of such entity as an Authorized Party. If CableData does not respond within such time period, the third party will be deemed to be approved by CableData. d. BIMS's Computer -- the equipment made available by BIMS, or an Authorized Party, that has been configured to conform to the processing requirements of the Core Software, as set forth in the Operating Environment Attachment hereto. e. BIMS's Site -- a location at which BIMS's Computer is or is to be located for the purpose of using the Core Software by or on behalf of BIMS or any of its Affiliates or Authorized Parties. f. Business Day -- (i) with respect to any time period within which BIMS must respond, Monday through Friday, excluding any holidays recognized by BIMS as company-wide holidays; and (ii) with respect to any time period within which CableData must respond, Monday through Friday, excluding any holidays recognized by CableData as company-wide holidays. All time period references in this Agreement to "days" other than Business Days shall be deemed to refer to calendar days. g. Custom Software -- the software, including any enhancements, modifications and additions to the Core Software, developed by CableData pursuant to the terms of the Software Development Agreement. The Custom Software shall include, without limitation, the "Custom Software" and the "Interface Software," as those terms are defined and used in the Software Development Agreement. h. Documentation -- all detailed User and operational manuals, instructions and other materials required to fully utilize the Core Software, and all training manuals and routines designed to train Users in the operation of the Core Software. The term "User(s)" includes both the user/operators of any server-based portions of the Core Software as well as the end-users of any terminal-based portions of the Core Software. The term "Documentation" shall also include any and all reference documentation and release documentation, to the extent provided or otherwise available to be provided to any of CableData's other customers, defining the operation and/or performance of the Core Software and/or any releases of the Core Software made available by CableData. The initial delivery of Documentation hereunder shall include, without limitation, release documentation for all releases of the Core Software through and including Version 2.5 of the Core Software. All Documentation supplied on disks will be in machine readable form. i. Laboratory System -- a System used by BIMS and/or Authorized Parties other than for processing transactions and records for Subscribers. A Laboratory System is used primarily for testing, training and back-up purposes. j. License -- the license set forth in Section 3 of this Agreement providing BIMS and Authorized Parties with permission to use the Core Software. - 2 - k. Maintenance -- the software maintenance which CableData provides BIMS for the on-going maintenance of the Software. l. Production System -- a System used by BIMS and/or Authorized Parties for processing transactions and records for Subscribers. m. Products -- all products provided by CableData to BIMS pursuant to this Agreement, including Core Software and Documentation. n. Proposal - U.S. Computer Services (predecessor in interest to CableData) Initial Response to BIMS's Request for an Intelecable/Oracle Interface dated August 29, 1994, as modified by the facsimile transmission from Dave H. Williams to Larry E. Ryan dated September 1, 1994, the letter from Robert Crowley to Larry E. Ryan dated September 23, 1994 and the Memorandum of Understanding dated December 5, 1994, between USCS and BIMS, all of which documents are attached hereto as Exhibit and incorporated herein by reference except as specified in Paragraph 7.a. o. Self-Help Code -- any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity other than BIMS. Self-Help Code does not include software routines in the Core Software, if any, designed to permit BIMS (or a third party authorized by BIMS) to obtain access to the System (e.g., remote access via modem) for purposes of maintenance or technical support. p. Services -- all work performed by CableData for BIMS pursuant to this Agreement including, but not limited to, Maintenance and Support. q. Software -- the Core Software, the Documentation and the Custom Software. r. Software Compatibility Matrix -- the then current version of CableData's "Software Vendors, Configurations, Versions Supported by the Center," the current version of which is attached hereto as Attachment E. CableData acknowledges and agrees that none of the third party product(s) listed on the Software Compatibility Matrix will be removed from any subsequent versions of the Software Compatibility Matrix, but that only the versions (i.e., identified by release number) for such third party product(s) may change. s. Software Development Agreement -- the Software Development Agreement between BIMS and CableData of even date herewith pursuant to which CableData is to provide the Custom Software to BIMS. t. Source Code -- the source code corresponding to the applicable software, including all updates, upgrades and revisions thereto, plus any pertinent commentary or explanation that may be necessary to render the Source Code understandable and usable by trained computer programmers who are generally familiar with Oracle database products and the C and C++ programming languages. u. Subscriber -- active subscribers having a balance or a transaction posted on BIMS's Computer as of a specific date during any given month, excluding subscribers who are not subject to collection activity. A month, for purposes of this definition, is the period between successive final month-end cutoffs for BIMS's invoicing purposes. - 3 - v. Support - software support services provided by telephone by CableData employees who are trained customer service representatives from the Support Facility. w. Support Facility - CableData's office in Sacramento, California or such other office as CableData shall from time to time designate for the purpose of providing BIMS Support. x. System - the Core Software, the Custom Software, the Third Party Software and the computer equipment on which the Core Software, Custom Software and Third Party Software will be installed, as described in the Operating Environment Attachment hereto. y. Third Party Software - the computer programs which are (i) owned by third parties, (ii) provided by CableData to BIMS hereunder or licensed by BIMS from a third party, and (iii) listed in the Third Party Software Attachment hereto. z. Unauthorized Code - any virus, Trojan horse, worm, or other software routines designed to permit unauthorized access; to disable, erase, or otherwise harm software, hardware, or data; or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code. 3. LICENSE GRANT a. CableData hereby grants BIMS non-transferable (except as otherwise provided herein) non-exclusive Licenses, without right of sublicense, to use the Core Software and associated Documentation listed in the Pricing Attachment solely for BIMS's own internal use at BIMS Sites, sites at which BIMS's customer contact personnel have remote access to BIMS's Computer and sites operated by Authorized Parties designated in the Site Attachment of this Agreement, as well as for the use of such Authorized Parties, in accordance with the terms and conditions of this Agreement. Such Licenses shall be for use in connection with BIMS's Production System and for use in connection with BIMS's Laboratory System. No more than one License will be required for any single BIMS Corp (as "Corp" is further defined in Paragraph 9(c)). BIMS may, at its option from time to time by giving CableData prior notice, add new BIMS Sites or Products or Services; CableData will then add such new sites to the Site Attachment and such Products and Services to the Products/Services Attachment. b. BIMS shall have the right to use the Core Software and Documentation on BIMS's Computer(s) and to make copies of the Core Software (object code version only) and Documentation for backup, archival and testing purposes only; provided, however, that BIMS shall have the right to make copies of insubstantial portions of Documentation, subject to the limitations and obligations set forth in the last sentence of the Paragraph 3(b). BIMS agrees to maintain appropriate records of the number and location of all such copies of the Core Software and to make the records available to CableData upon request. With respect to Documentation, BIMS shall use due care to protect such Documentation from unauthorized disclosure and to ensure that copies made for BIMS's own internal use, and for use by Authorized Parties, shall not be substantial portions of the Documentation and shall be appropriately protected. c. Except as otherwise permitted hereunder, BIMS agrees not to modify the Core Software of attempt to de-compile or reverse engineer the Core Software. BIMS understands that upon termination of this License, neither BIMS nor anyone acting under BIMS may make any use whatsoever of the Core Software or any part thereof. - 4 - d. CableData shall deliver to and install the initial copy of the Core Software at the initial BIMS Site designated by BIMS in the Site Attachment hereto, together with the required Documentation. As soon as reasonably possible after installation of the Core Software and implementation of the Custom Software, BIMS shall conduct the acceptance testing procedures for the Software set forth in Section 7 of the Software Development Agreement. e. Interface Disclosures. CableData will make available for purchase to third parties on a non-discriminatory basis descriptive documentation concerning the use of CableData's application program interfaces (APIs), communication protocols and interface specifications (a current list of which is contained in the Interface Attachment) necessary to enable third party developers to write applications which interface/communicate with the Core Software. Licenses for all such software, with the exception of software developed by CableData for BIMS pursuant to the Software Development Agreement, will be available at the prices set forth in CableData's standard Interface Specification Fee and Non-Disclosure Agreement, a copy of which is attached hereto as part of the Interface Attachment and incorporated herein by reference. If no price is included in the attachment for a particular interface, the license will be made available at CableData's then-current prices, which will be quoted to BIMS no later than five (5) business days after BIMS's request therefor. 4. PRICES a. The prices for the Core Software and Services under this Agreement are set forth in the Pricing Attachment. b. Pricing for the Core Software Basic System and the associated modules is inclusive of an unlimited site license for the DOS Windows version of CableData's Intelecable Emulator (inclusive of maintenance). c. All prices are F.O.B. (freight on board) Sacramento, California, USA; and are exclusive of transportation charges, which, if applicable, will be invoiced separately. CableData will arrange for insurance on the Software and Products while in transit at BIMS's expense. d. The Price Schedule for utilizing the Software and Products selected by Customer shall be subject to increase upon forty-five (45) days' prior notice commencing eighteen (18) months from the effective date of this Agreement, provided however, that the percentage of such increase or increases shall not exceed the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) published by the U.S. Department of Labor (a) from the date of last general price increase upon which the following pricing were based (b) to the date of price increase under this Agreement. Prices for all CableData products and services ordered and used by BIMS but not set forth in the Pricing Attachment shall be the prices in effect on the date the product or service is ordered by BIMS. e. In the event that CableData provides new Core Software or Services, CableData may modify the Pricing Attachment to reflect the new services and options and the prices thereof which are available to be ordered by BIMS hereunder. This may include new releases of existing software that contain significant enhancements and functions that increase the value of the solution to BIMS, and are offered by CableData to its other customers for an additional charge, as well as new Core Software modules that are made available to CableData customers at an additional charge. New "Major Software Releases" (as defined in Paragraph 15(d) below) that are made available to Cable Data customers as part of standard Maintenance will be made available to BIMS at no cost beyond the cost of periodic Maintenance hereunder. - 5 - f. If BIMS elects to obtain a paid-up License for the Core Software, BIMS will be charged a one-time fee for the License (which fee includes basic Support), or will pay the fee in periodic installments. BIMS may elect to obtain a paid-up License for the Core Software at or any time after the one-year anniversary of this Agreement. Cable Data will provide BIMS with a price quote for a paid-up License for the Core Software at least thirty (30) days prior to the one year anniversary of this Agreement. Following the Warranty Period (hereinafter defined), BIMS will be required to pay annually for on-going Maintenance. In the event that BIMS elects to pay its License fees on a monthly per-Subscriber basis, it agrees to pay a monthly minimum charge, as set forth in the Pricing Attachment, for both the License and the ongoing Maintenance; provided, however, that the obligation to pay such monthly License fees under this Agreement shall commence. [*] g. CableData represents that the prices provided hereunder are equivalent to or better than the prices being offered by CableData to its other similarly situated customers of comparable size for comparable orders of similar products and services, subject to substantially similar terms and conditions. Annually, on the anniversary date of this Agreement, CableData will review its prices to all other customers. If CableData has entered into agreement with other customer(s) of comparable size for substantially similar products and services subject to substantially similar terms and conditions and has extended to such customer(s) more favorable pricing for such products and services, this Agreement shall be deemed amended to extend such pricing to BIMS. 5. PAYMENT a. CableData shall invoice BIMS annually for all Products and Services that are billable on an annual basis and monthly for Products and Services that are billable on a monthly basis, in accordance with the Pricing Attachment and other applicable Attachments. One-time charges will be billed by CableData in advance. Standard payment terms are net cash, without discount, set-off or deferment, due and payable within thirty (30) days from the Invoice Date (hereinafter defined); payment of all undisputed charges is due in U.S. dollars. In the event that BIMS does not render full payment of all undisputed charges within sixty (60) days of the date payable, CableData may, after notifying BIMS, cease any and all Services until such account is brought current. b. If BIMS fails to pay all undisputed charges within thirty (30) days of the date of invoice, or the date of postmark if the postmark date is more than one (1) Business Day after the invoice date (collectively, the "Invoice Date"), BIMS agrees that upon the expiration of a fifteen (15) day cure period following the effective date of written notice from CableData of such failure to pay, CableData will have the right to invoice and BIMS will pay a late payment service charge of one and one half percent (1.5%) per month, but not in excess of the lawful maximum interest allowed, on the past due balance from and after the expiration of such fifteen (15) day cure period. c. BIMS agrees to pay CableData all legally due sales, use or similar taxes in connection with the purchase of any services or tangible personal property pursuant to the terms of this Agreement. CableData shall separately state all applicable sales, use or similar taxes on each invoice as prescribed by the applicable terms of this Agreement or legal authority. CableData shall be legally responsible for remitting all taxes collected from BIMS to the proper taxing authority. In the event the taxability of any purchase under this Agreement is disputed by a taxing authority as the result of an audit or otherwise, CableData shall provide timely written notice to BIMS of this dispute prior to any settlement or action on this dispute. Notwithstanding the foregoing, any fines, penalties or interest imposed on BIMS or CableData because of late payment by CableData shall be borne by CableData, unless such fines, penalties or interest result from the actions taken by CableData at the written direction of BIMS. BIMS shall not be responsible for paying or *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - reimbursing CableData for any corporate franchise tax, capital tax, net worth tax, or taxes measured by reference to CableData's net income. d. Should BIMS in good faith dispute any portion of the invoice submitted by CableData, BIMS must advise CableData in writing within thirty (30) days of Invoice Date of such dispute and pay, when due, all non-disputed charges. CableData will consider BIMS's dispute in good faith. Any charges not disputed or corrected by either party within six (6) months of the Invoice Date will be deemed to be final an nondisputable unless the party disputing the charge can provide the other with satisfactory proof that it could not have known of the existence of a dispute within that period. Except as otherwise provided herein, in no event will any amounts be refundable more than one (1) year after payment was made. 6. CONFIDENTIALITY AND TITLE a. CableData agrees that all confidential information disclosed to it by BIMS, or otherwise obtained by CableData, during performance of this Agreement shall be considered proprietary and shall be held in confidence by CableData and used by it only in performance of this Agreement. Such confidential information of BIMS shall include, without limitation, any and all information regarding the identity of, or in any way relating to, BIMS's customers, including without limitation, Subscribers. No confidential information provided by BIMS under this Agreement, or otherwise obtained by CableData, shall be duplicated or furnished to another party without the prior written consent of BIMS. CableData will exercise the same standard of care to protect BIMS's proprietary data disclosed hereunder as is used to protect CableData's own proprietary data from unauthorized disclosure; provided, however, that CableData will comply, at a minimum, with any and all rules, regulations and orders of the Federal Communications Commission, or of any other applicable federal or state regulatory agency, relating to the confidentiality of customer information. b. BIMS recognizes and agrees that, during the term of this Agreement and thereafter, title to, ownership of, and all proprietary rights to the Core Software (and the Custom Software except as may otherwise be agreed to between the parties), and all copies thereof will at all times remain the property of CableData or its licensors, as the case may be. BIMS agrees to maintain the confidentiality of the Core Software and not to disclose any portion of the Core Software to any third party other than to BIMS's employees and to third parties who are subject to a nondisclosure agreement with BIMS. Nothing herein shall preclude BIMS from sharing with third parties, including prospective CableData customers, general information about the features and functionality of the Core Software, general information about BIMS's actual and intended uses of the Core Software , or information concerning the existence and nature of the relationship between CableData and BIMS; provided, however, that BIMS shall not permit any unauthorized third party to copy any part of the Core Software of Documentation. BIMS will exercise the same standard of care to protect CableData's proprietary data disclosed hereunder (exclusive of the Custom Software), as well as confidential information such as CableData's pricing, prospective customers and CableData-owned development tools and system libraries disclosed under the Software Development Agreement, as is used to protect BIMS's own proprietary data from unauthorized disclosure. c. CableData recognizes and agrees that, notwithstanding the foregoing, title to, ownership of, and all proprietary rights to the data processed by the Core Software pursuant to this Agreement will at all times remain the property of BIMS. d. Nothing herein shall prohibit either party from using or disclosing any information which is or comes into the public domain through no fault of that party or which that party in good - 7 - faith receives from a third party entitled to disclose the same without restriction, or which that party proves was already known to it prior to disclosure by the disclosing party. 7. LIMITED WARRANTY; LIMITATION OF REMEDIES a. Proposal. CableData warrants that the content of the Proposal, which was relied upon by BIMS in entering into this Agreement, was true and accurate and contained no material omissions or misrepresentations as of the date of the Proposal and, except as otherwise expressly set forth herein, remains true and accurate and contains no material omissions or misrepresentations as of the date hereof. Exceptions to the Proposal are changes from the Proposal to the Agreement to the new software components, estimated costs of software development and professional fees. The Proposal is hereby incorporated herein by this reference and shall constitute part of this Agreement as if fully set forth herein. To the extent of any conflict between the terms and conditions of this Agreement, including the Attachments attached hereto, and the terms and conditions of the Proposal, the terms and conditions of this Agreement shall control. b. Ownership. CableData warrants that it is the owner of the Core Software or otherwise has the right to grant to BIMS the License to use the Core Software granted hereunder without violating or infringing any law, rule, or regulation, or any United States or foreign copyright, patent, trade secret or other proprietary right of any third party. c. BIMS's Reliance. CableData warrants that it is aware that BIMS is relying on its skill and judgment in providing the Software. CableData believes that it has been made generally aware of BIMS's documented business requirements and intended uses for the Software, and based on such belief CableData warrants that the Software shall satisfy such requirements and is fit for such intended uses. The Core Software is at the current release level. d. Warranty Period. CableData warrants that, for a period of ninety (90) days from the date of Acceptance of the Software pursuant to the Software Development Agreement, the Core Software provided to BIMS will perform as described in the Documentation and will be capable of operating on BIMS's network in conformity with such Documentation. In the event that the Documentation includes any disclaimer of warranty or liability which conflicts with any of the terms and conditions of this Agreement, or otherwise purports to reduce or limit CableData's obligations under this Agreement, the terms and conditions of this Agreement shall control and such disclaimers and limitations shall not apply. e. Performance Assurances. The benchmarks set forth in the Capacity Reference Guidelines Attachment are provided as capacity and reliability guidelines and are not a warranty of System performance. Capacity involves transaction rates, and reliability relates to the availability of the Core Software without interruption. The guidelines are offered to BIMS as a guide for determining whether or not analysis and corrective action are indicated. Such corrective action might include adding hardware or software or reconfiguring the operating system or the RDBMS. In the event System performance falls below the benchmarks set forth in the attachment, CableData will consult with BIMS, at BIMS's request, on the most cost-effective course of action for BIMS to pursue to achieve the desired System performance. Nothing contained in this paragraph diminishes or otherwise undermines the other warranties set forth in this Section 7. - 8 - f. Compatibility. i. Core Software. CableData warrants that all updates, upgrades and revisions to the Core Software furnished hereunder will be implemented in such a manner as to maintain backward compatibility with previous versions or releases of the Core Software furnished hereunder so that such previous versions or releases shall continue to be operable with the Core Software as updated, upgraded, or revised, in materially the same manner and with materially equivalent performance. The addition of new features and functions to the Core Software may result in degradation of performance that will require additional system resources to overcome. CableData will make reasonable efforts through quality assurance and performance analysis to minimize any degradation of performance due to the addition of new features and functions to the Core Software and will assist BIMS in identifying and defining any additional resources that may be necessary, both prior to and after the delivery of the update, upgrade or revision. ii. Custom Software. In addition, CableData will continue to preserve the APIs so as to ensure that applications written to the API within earlier versions of the Core Software and Custom Software will work with all subsequent updates, upgrades and revisions to the Core Software and Customer Software in materially the same manner and with materially equivalent performance. iii. Third Party Software and Operating Environment. CableData further warrants that it will continue to preserve the APIs so as to ensure that the following items will work with all subsequent updates, upgrades and revisions to the Software, in materially the same manner and with materially equivalent performance; (i) Third Party Software specifically identified in the then current version of CableData's Software Compatibility Matrix, and (ii) the hardware/software identified in the Operating Environment Attachment hereto. g. Operating Environment. CableData warrants that the Software as delivered to BIMS by CableData in connection with the Initial Work Order and Work Order Number 2 under the Software Development Agreement, and each module or component and function thereof, will be capable of operating fully and correctly on the computer equipment and within the Operating Environment specified in the Operating Environment Attachment hereto. Any and all compilers or other computer programs which must be present in order for such Software to function fully are also specified in the Operating Environment Attachment. CableData will ensure that future releases of the Core Software will operate properly with versions of the products identified in CableData's then-current Software Compatibility Matrix. h. Self-Help Code. The Software neither contains nor will contain any Self-Help Code nor any Unauthorized Code, and CableData agrees to ensure against any data lost as a result of same. i. Software Support Personnel. CableData warrants that each of CableData's employees, agents, or subcontractors assigned to perform any work hereunder shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be so performed. j. Limited Warranty. CableData does not warrant that (i) the Core Software will run properly on all hardware, (ii) the Core Software products will operate in the combination of hardware/software which may be independently selected by BIMS, (iii) the use of the Core Software products will be uninterrupted or error-free, or (iv) all Core Software product program errors will be corrected. - 9 - k. Defects. In the event of a material (Severity Level 1 or 2, as defined in the Maintenance/Support Attachment) defect in any Core Software product commencing upon delivery of Custom Software pursuant to the Initial Work Order under the Software Development Agreement, CableData will, at its option (at no additional charge) during the Warranty Period; thereafter, subject to the payment of the periodic Maintenance fees) correct or replace it. If a defective Core Software product cannot be corrected to BIMS's reasonable satisfaction or replaced within a reasonable amount of time, BIMS may return the defective Core Software product [*] [*] m. Exclusions. The warranties and remedies specified in this Section 7 will not apply if the malfunctions of the Core Software products are due to (i) natural disasters, including fire, flood, or lightning, (ii) armed conflict or civil disturbance, (iii) electrical fluctuations or failures, (iv) gross neglect or intentional misuse of the Core Software products or other failure to comply with the instructions set forth in the most current Documentation provided by CableData, (v) corrections or modifications to the Core Software solution or its operating environment not provided by or approved in writing by CableData through the change control procedures described in the Software Development Agreement executed concurrently herewith, or (vi) the failure to install promptly a correction provided by CableData. n. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN THE SOFTWARE DEVELOPMENT AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO CABLEDATA'S CORE SOFTWARE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENT BY CABLEDATA OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AS TO SKILL AND CARE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. o. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER OR UNDER THE SOFTWARE DEVELOPMENT AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 10 - LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. EXCEPT AS OTHERWISE PROVIDED, CABLEDATA'S LIABILITY TO BIMS FOR ANY LOSSES OR DAMAGES, DIRECT OR INDIRECT, ARISING OUT OF THIS AGREEMENT SHALL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT BILLED OR BILLABLE FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. p. BIMS acknowledges that (i) the prices for the Core Software contemplated under this Agreement are based on the limited warranties, disclaimers and exclusions specified in this Section 7 and (ii) such prices would be substantially higher if any of these provisions were unenforceable. q. EXCEPT AS SET FORTH HEREIN, THIS AGREEMENT COVERS CABLEDATA'S SOFTWARE AND DOES NOT COVER THIRD PARTY OR COMPUTER OPERATING SYSTEM SOFTWARE. NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO OPERATING SYSTEM SOFTWARE. 8. TRAINING a. CableData will provide pre-installation Core Software training programs for BIMS's employees at CableData's Education Center. The Core Software training courses are available at the prices set forth in the Pricing Attachment and will consist of the classes required by CableData. Equipment and materials used in the instruction are provided by CableData. b. BIMS is responsible for all transportation to and from CableData's Education Center, lodging and food for BIMS's employees that attend CableData's training. c. BIMS can purchase additional instruction at the prices specified in the Pricing Attachment for all classes taught at CableData's Education Center. BIMS can also purchase customized on-site training at the daily rates specified in the Pricing Attachment. d. In addition to the provision of Maintenance and Support services pursuant to Section 9 herein, upon request by BIMS, CableData shall identify and assign the number of CableData professional services employees requested by BIMS to be on-site at BIMS's facilities and devote all of their business time during such assignment to the technical support of the Software and to facilitate the support of the Software through CableData's customer service and support organization. As consideration for the provision of such on-site support, BIMS shall pay CableData pursuant to the rates set forth in the Pricing Attachment. All such payments due hereunder shall be invoiced by CableData to BIMS on a monthly basis. 9. SOFTWARE MAINTENANCE AND SUPPORT a. Maintenance. Maintenance, as further defined in the Maintenance/Support Attachment, is required for all CableData-provided Core Software components. Breach by BIMS of its obligation to pay a Maintenance fee component of its monthly License fees following the Warranty Period will render the Licenses granted hereunder immediately null and void, except in - 11 - the event that CableData is in material breach of the Agreement and BIMS elects to maintain the Core Software pursuant to Section 17 herein. As provided for in the Software Development Agreement, CableData shall provide Maintenance for the Custom Software, pursuant to the terms of this Section 9 and the Maintenance/Support Attachment, at no charge to BIMS during the term of this Agreement until the earlier of the date on which BIMS ceases to use the Custom Software, or [*] following the expiration of the Warranty Period for the Custom Software, as provided for in Section 14 of the Software Development Agreement. At no additional charge during the Warranty Period and thereafter as part of the monthly License fees or periodic Maintenance fees, as applicable, set forth in the Pricing Attachment, CableData shall provide BIMS with the following Maintenance Services: (i) CableData shall notify BIMS of any defects or malfunctions in the Software or Documentation that could impact BIMS's ability to operate the Software in a not insignificant manner and shall correct any such defects or malfunctions in accordance with the Maintenance/Support Attachment and provide BIMS with corrected copies of same in accordance with the Maintenance/Support Attachment; (ii) CableData shall provide BIMS with copies of the Core Software and, as soon as reasonably available, Documentation revised to reflect any upgrades of the Core Software released by CableData and/or enhancements to the Core Software made by CableData, including, without limitation, modifications to the Core Software which can increase the speed, efficiency or ease of operation of the Core Software or add additional functionality or capabilities to or otherwise improve the functions of the Core Software, and modifications to the Core Software which support new releases of the operating systems and other third party software with which the Core Software is designed to operate or interface; and [*] b. Support. Twenty-four (24) hours per day, seven (7) days per week during the Warranty Period and during Business Hours (hereinafter defined) during the Post-Warranty Period, CableData shall provide to BIMS Telephone Support (toll-free in the United States) as defined in the Maintenance/Support Attachment, or written consultation as requested by BIMS, in connection with its use and operation of the Software or any problems therewith. CableData will respond to and resolve problems with the Software in accordance with the following procedures: (i) With respect to any problem involving the Software whereby BIMS's use of the Software is adversely affected (Severity Level 1 or 2 in the Maintenance/Support Attachment), CableData will respond to BIMS's request for service by telephone response by a qualified and knowledgeable representative within one (1) hour from the time CableData receives BIMS's call and will complete such repairs within [*] of receipt of the call for a Severity Level 1 problem, and within [*] of receipt of the call for a Severity Level 2 problem. For purposes of this Section 9(b)(i), CableData will be deemed to have remedied the problem if it provides BIMS with a reasonable work-around that enables BIMS to continue to operate the Software or to perform the affected function for a reasonable period of time until a more permanent correction can be effected, as long as CableData is rendering continuous effort to effect the permanent correction. CableData repair personnel shall render continuous effort with respect to such problems. With respect to each Severity Level 1 or 2 *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 12 - problem, CableData will provide progress status reports to BIMS at least twice daily until a remedy for each such problem can be provided. [*] (ii) With respect to any other problem involving the Software (i.e., Severity Levels 3,4 or 5 in the Maintenance/Support Attachment), CableData will respond during Business Hours to BIMS's request for service by telephone response by a qualified and knowledgeable representative within four (4) Business Hours from the time CableData receives BIMS's call. [*] (iii) Unless and until a software support surcharge is levied upon BIMS by CableData, as provided for in Paragraph 15(d) hereof, CableData will have no obligation to provide Support for defects that have been corrected in releases of the Core Software (exclusive of the Custom Software) that have not been installed by BIMS within six (6) months of release to BIMS of the version of the Software which represents the computer code merged from the Customer Software provided pursuant to the Software Development Agreement into the applicable Core Software release then under general release by CableData; provided, however, that CableData will provide Support for such defects on a time and materials basis until the surcharge commences. c. Exclusions. Notwithstanding the provisions of Paragraphs 9(a) and (b) above, unless and until a software support surcharge is levied upon BIMS by CableData, as provided for in Paragraph 15(d) hereof, CableData shall have no obligation to notify BIMS of, or to provide timely resolution of, defects that have been effectively remedied in a subsequent Core Software release (exclusive of the Custom Software) made available to BIMS as part of its standard Maintenance which BIMS has elected not to install within six (6) months of release to BIMS of the version of the Software which represents the computer code merged from the Custom Software provided pursuant to the Software Development Agreement into the applicable Core Software release then under general release by CableData; provided, however, that CableData will provide timely resolution of such defects on a time and materials basis. In addition, CableData will provide Support to BIMS for only one production Corp (a "Corp" is a BIMS System identified by a BIMS-requested unique corp number and having a single database) and one Playcorp (a "Playcorp" is used for utility purposes such as training, testing, development and studies) for each Core Software License granted hereunder; provided however that Support for additional production Corps will be provided to BIMS at no additional charge until such time as (i) expanded features of the Core Software have been added by CableData which are capable of handling expanded services groups and tax jurisdictions; and (ii) BIMS shall have had a reasonable period of time to convert data in multiple Corps into a single database. Thereafter, if BIMS chooses to continue the use of multiple Corps (other than those provided for above), CableData will charge BIMS an annual Support charge, as set forth in Attachment A, for each additional Corp. CableData will advise BIMS of appropriate methods to use in setting up additional production Corps. These methods are intended to make the subsequent conversion process less costly than it would otherwise be. In addition, CableData will perform the conversion at no charge for a period of ninety (90) days *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 13 - following the general release of the version of the Core Software having the aforementioned capabilities; provided, however, that BIMS shall comply with CableData's reasonable recommendations regarding the setting up of Corps to facilitate conversion. Should BIMS choose to implement conversion any time after such ninety (90) day period, the conversion will be performed at CableData's then-current time and materials rates. 10. USE OF THE SOFTWARE BY BIMS a. BIMS will be responsible for determining the appropriate uses to be made of the Products based on the relevant Product Documentation and specifications, as well as on its own unique business requirements, and should establish those features that will enable it to meet its business requirements through the setting of its own selected Product parameters. b. BIMS will utilize the Core Software as set forth in the Documentation. c. Except as otherwise provided herein, BIMS is not authorized to make modifications to the Core Software. To the extent that BIMS or a third party not authorized by CableData make such modifications, CableData will not be responsible for repair of database impacted by the modifications, for support of any Core Software as modified, or for the compatibility of such modified Core Software with any equipment, with the unmodified Core Software or with any future Core Software releases. d. CableData is not responsible for any changes to BIMS's database caused by BIMS or any third party not authorized by CableData. Any repair or regeneration of database damaged by BIMS or an unauthorized third party will be undertaken by CableData upon request at CableData's then-current rates, but CableData does not warrant that such repair or regeneration will be successful. 11. FORCE MAJEURE a. Neither party to this Agreement shall be in default hereunder by reason of its delay in the performance of or failure to perform, in whole or in part, any of its obligations hereunder if such delay or failure resulted from acts of God or other occurrences beyond its reasonable control and without its fault or negligence. Such acts or occurrences shall include, but not be limited to, earthquakes, floods, fire, power failures, communications failures, epidemics, strikes, lockouts, war, terrorist activity or government or other applicable authority regulations which went into effect after the effect date of this Agreement. 12. INDEMNITY a. CableData shall indemnify, defend and hold BIMS and its Affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments, including reasonable attorneys' fees, and costs and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from BIMS or any of its Affiliates, or any of their respective officers, directors, agents or employees, arising out of a claim that the Core Software or any portion thereof infringes or misappropriates any United States or foreign patent, copyright, trade secret or other proprietary right. In the event that the Core Software or any portion thereof is held in suit or proceeding to infringe any rights of any other third party, and the use of the Core Software or portion thereof is enjoined, CableData shall, at its sole cost and expense, either (i) procure for BIMS and its Affiliates the right to continue using the Core Software, or (ii) replace the same with non-infringing software or materials of equivalent functionality and performance. - 14 - CableData shall have no liability to BIMS for any infringement action or claim which is based upon or arises out of: (i) any modification of the Core Software by BIMS without the express written permission of CableData; (ii) any use of the Core Software in combination with any other system, equipment or software which is not furnished by CableData or approved by CableData in writing; or (iii) use of other than a current unaltered release of the Core Software. b. CableData shall indemnify, defend and hold BIMS and its Affiliates, and their respective officers, directors, agents and employees, harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments, including reasonable attorneys' fees, and costs and expenses incidental thereto, which may be suffered by, accrued against, charged to or recoverable from BIMS or any of its Affiliates, or any of their respective officers, directors, agents or employees, arising out of or resulting from (i) claims of bodily injury, including death, or loss or damage to property or physical destruction of property arising out of or in connection with any act, error or omission of CableData or any of its officers, directors, agents, employees and subcontractors, during the term of this Agreement; (ii) intentional acts or gross negligence on the part of CableData in the course of its performance under this Agreement; or (iii) a reclassification or attempt to reclassify any of CableData's employees as an employee of BIMs, including, without limitation, any tax liability (including interest and penalties) resulting from BIMS's failure to pay, deduct or withhold income taxes, Federal Insurance Contribution Act taxes, or Federal Unemployment Tax Act taxes with respect to any of CableData's employees. c. CableData's duty to indemnify BIMS hereunder shall include all attorneys' fees which BIMS reasonably incurs in connection with the defense of any claims covered by this Section 12 and all settlement costs, except as otherwise provided in this Section 12. Promptly after receipt by BIMS of a threat of any action, or a notice of the commencement or filing of any action against which BIMS may be indemnified hereunder, BIMS shall give notice thereof to CableData, provided that failure to give or delay in giving such notice to CableData shall not relieve CableData of any liability it any have to BIMS hereunder except to the extent that CableData demonstrates that the defense of such action is prejudiced thereby. CableData or CableData's attorney(s) shall keep BIMS reasonably apprised of the continuing status of the claims covered by this Section 12, including any lawsuits resulting therefrom, and shall permit BIMS, upon BIMS's written request, to participate in the defense or settlement of any such claim, provided that CableData shall have no obligation to indemnify for, be bound by or otherwise incur any liability with respect to, any settlement terms to which it has not agreed. CableData shall assume the cost of defending against any such claim and shall select the attorney(s) to defend them against such claim subject to BIMS's approval, which shall not be unreasonably withheld. 13. DISPUTE RESOLUTION a. Each party agrees that any disagreement, controversy or dispute between the parties relating to performance under or interpretation of this Agreement will first be submitted in writing by one party to the other. If a dispute remains unresolved for a period of fifteen (15) days after such notice, then it shall be submitted in writing to a panel of two senior executives, one from each party, who shall promptly meet and confer in an effort to resolve such dispute. Each party's executives shall be identified by notice to the other party, and may be changed at any time thereafter by notice to the other. The executives shall each hold the position of president or above within their respective organizations. Any decisions of the executives must be in a writing signed by both executives and will be final and binding on the parties. In the event the executives are unable to resolve any dispute within fifteen (15) days after submission to them, either party may then refer such dispute to arbitration in accordance with subsection b. of this Section. Arbitration in accordance with this section may not be commenced by either party until such executives determine - 15 - in good faith that a negotiated resolution is unlikely; provided, however, that if one or both parties refuse to meet within fifteen (15) days of the original written notice of the dispute set forth above, then arbitration may be instituted by either party. Nothing herein shall prevent either party from exercising its right to terminate the Agreement pursuant to the provisions hereof. b. In the event that a negotiated resolution is not reached as set forth in subsection (a) above, the disagreement, controversy or dispute shall be settled by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Rules, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in Atlanta, Georgia, before a panel of three (3) neutral arbitrators selected by the AAA, at least two (2) of whom shall have experience with and knowledge of the customer care and cable service billing industry, and at least one (1) of whom will be an attorney, who shall be the chair of the arbitration panel. The arbitrators will have no authority to award punitive or any other damages not measured by the prevailing party's actual damages, and may not, in any event make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. In addition, neither party nor any of the arbitrators may disclose the existence, content or results of any arbitration hereunder without the consent of both parties. The award of the arbitrators shall be accompanied by a reasoned opinion. Both parties shall allow and participate in discovery in accordance with the Federal Rules of Civil Procedure for a period of ninety (90) days after the filing of the Answer or other responsive pleading. Unresolved discovery disputes may be brought to the attention of the chair of the arbitration panel, and may be disposed of by the chair of the panel. c. Notwithstanding the foregoing, either party shall have the right to seek immediate legal redress in the event of breach of the provisions of Section 6 or Section 12 or Section 17 hereof. 14. TERMINATION a. CableData acknowledges and agrees that the Core Software to be provided to BIMS by CableData hereunder may be of no value to BIMS without the Custom Software to be provided pursuant to the Software Development Agreement. Accordingly, in the event that the System fails to pass the acceptance testing procedures set forth in the Software Development Agreement, CableData shall refund to BIMS all monies paid by BIMS hereunder and under the Software Development Agreement, which remedy shall be in addition to any other remedies available to BIMs hereunder, under the Software Development Agreement or otherwise available at law or in equity. The parties agree that for purposes of this section, the Software will be deemed to have passed the acceptance testing procedures in the Software Development Agreement upon BIMS's acceptance of the Custom Software as delivered by CableData pursuant to the Initial Work Order under the Software Development Agreement. b. Notwithstanding any other provision herein, either party will have the right to terminate this Agreement if the other party fails to comply with any of its material obligations under this Agreement. Should a party elect to exercise this right to terminate for nonperformance, it must be done in writing specifically setting forth these items of nonperformance. The other party will then have thirty (30) days from the receipt of notification to cure the default. Should the defaulting party fail to correct these items of nonperformance, then the notifying party shall have the right to terminate this Agreement. Termination of this Agreement pursuant to this provision shall be without prejudice to any other remedies either party may have. c. Within thirty (30) days after termination of any License for any reason, BIMS shall - 16 - immediately cease using the Core Software and shall return or destroy the Core Software and Documentation. CableData represents that BIMS will be capable of accessing its data following the return or destruction of the Core Software so long as it maintains a license to use Third Party Software as identified by CableData as required for access in the Third Party Software Attachment. Nothing contained herein shall require BIMS to deliver to CableData any of BIMS's proprietary data. d. In addition to BIMS's right to terminate this Agreement for breach by CableData, BIMS shall have the right to terminate this Agreement without incurring any early termination charges by giving CableData at least thirty (30) days' prior written notice and certification signed by and officer of BIMS of: (i) the termination/cancellation of all broadband trials by BIMS, for any reason, and not plans by BIMs for any trials for at least twelve (12) months from the date of termination/cancellation; or [*] Unless otherwise specified herein, BIMS's sole and exclusive liability to CableData with respect to *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 17 - such termination shall be limited to payment of all fees due hereunder and under the Software Development Agreement through the effective date of the termination. In the event that BIMS terminates the Agreement prior to the natural expiration of the initial term or any renewal term for any reason other than breach by CableData, as provided for in this Agreement, or for either of the occurrences set forth above in this Paragraph 14(d), BIMS agrees that, if it is subject to monthly or annual License fees, it shall pay to CableData, as an early termination fee (liquidated damages) and not as a penalty, an amount equal to what CableData would have received under the Agreement until the end of the term. All payments made pursuant to this Paragraph 14 (d) shall be in the nature of liquidated damages and shall be accepted by CableData in full satisfaction of all claims, including but not limited to, lost profits, overhead and other consequential damages, against BIMS arising out of termination. e. Should BIMS terminate this Agreement due to material breach by CableData, then it shall be entitled to exercise the rights provided in Section 17, Escrow, and shall be deemed to have a license to use the Core Software without a corresponding obligation to pay periodic Maintenance. 15. CHANGES TO THE SYSTEM a. BIMS may at any time request CableData to change the design of the Core Software, but CableData shall not be obligated to accede to any request of BIMS unless, in the opinion of CableData, such changes represent a significant benefit. b. Contemporaneously with the execution of this Agreement, the parties shall execute the Software Development Agreement. That Agreement sets forth the terms and conditions upon which all software development for BIMS shall be undertaken. c. CableData shall be entitled to make changes to the Software from time to time as CableData in its discretion considers warranted by developments in the industry in which it is used. Subject to CableData's obligations pursuant to Paragraph 7(e) hereof, CableData is not responsible for the inability of any software or other products purchased or licensed from third parties, other than software or products approved by CableData in writing, to function because of changes to the Software. CableData will provide to BIMS, on a periodic basis, Software Compatibility Matrices that details any associated changes to third party software that are part of the Operating Environment Specification that may be required. d. BIMS AGREES THAT CABLEDATA WILL HAVE THE RIGHT TO LEVY A SOFTWARE SUPPORT SURCHARGE (ADDITIONAL CHARGE) IN THE EVENT BIMS FALLS AT LEAST EIGHTEEN (18) MONTHS BEHIND THE RELEASE TO BIMS OF THE VERSION OF THE SOFTWARE WHICH REPRESENTS THE COMPUTER CODE MERGED FROM THE CUSTOM SOFTWARE PROVIDED PURSUANT TO THE SOFTWARE DEVELOPMENT AGREEMENT INTO THE THEN CURRENT MAJOR CORE SOFTWARE RELEASE PROVIDED PURSUANT TO THE MAINTENANCE (i.e., at no cost beyond the cost of periodic Maintenance hereunder). As used herein, a "Major Core Software Release" means release by CableData to its customer base of a version of the Software which contains (i) a major revision in database structure or design; or (ii) modification of more than 15 application programs; or (iii) changes made pursuant to 30 or more SARs (Software Assistance Requests) or DCRs (Database Change Requests); or (iv) in addition or modification of two or more major components or schemes (i.e. rate codes, collections). 16. DATA TRANSMISSION AND REMOTE FILE ACCESS - 18 - a. Transmission of all data to and from CableData when requested by BIMS shall be via telecommunications or tape(s), at CableData's discretion, and at BIMS's expense. b. BIMS is responsible for the installation and cost of at least one (1) business grade telephone line which is to be placed at the location of the BIMS's Computer. The telephone lines are to be on separate trunk lines not running through BIMS's switchboard or other such devices. These telephone lines will be used solely for the transmission of data between any Support Facility and BIMS for Maintenance and Support purposes, and for running routines or subroutines within the Core Software, at the end of each month, to count the number of BIMS's Subscribers. BIMS is responsible for the expense of BIMS's data communication. It is also highly recommended that a telephone be installed near BIMS's Computer for purposes of Support. 17. SOURCE CODE ESCROW a. BIMS shall be entitled to a copy of the Source Code for the Core Software, including system libraries and other pre-existing materials needed to fully maintain and support the Software, and may use same for its own benefit (i) upon expiration of the License term and all extension terms provided for in Section 1 hereof, at an annual fee, to be negotiated by the parties, if CableData ceases to market and/or support the Core Software and such marketing/support is not continued by another corporation or entity, or is continued by another corporation or entity which BIMS for reasonable cause deems unsatisfactory; (ii) prior to expiration of the License term and any extension terms provided for in Section 1 hereof, at no additional charge if CableData ceases to maintain and/or support the Core Software and such maintenance/support is not continued by another corporation or entity, or is continued by another corporation or entity which BIMS for reasonable cause deems unsatisfactory; (iii) at no additional charge if CableData becomes insolvent or party to any bankruptcy or receivership proceedings or makes an assignment for the benefit of creditors; or (iv) should BIMS terminate this Agreement due to material breach by CableData. b. No later than the time of CableData's delivery of the Core Software to BIMS, CableData shall place the Source Code in escrow pursuant to an escrow agreement to be mutually agreed and entered into prior to the date of such delivery (the "Escrow Agreement"). The parties shall share equally all charges incurred in establishing and maintaining such escrow account; provided, however, that in the event the escrow account is maintained for other CableData customers in addition to BIMS, then CableData shall bear all costs associated with such account. For purposes of payment under the Agreement, delivery of the Core Software shall be deemed to include and require delivery of the copy of the Source Code pursuant to the Escrow Agreement. BIMS shall be entitled to receive a copy of such Source Code under the circumstances set forth in Section 17(a) above and pursuant to the procedures set forth in the Escrow Agreement, and may use same for its own benefit. If CableData corrects any defects in, or provides any revision to, the Core Software under this Agreement or under any software maintenance agreement between the parties, CableData shall simultaneously furnish the escrow agent with a corrected or revised copy of the Source Code for the Core Software. c. BIMS may periodically, but not more frequently than once per year, trigger fresh escrow deposits. BIMS shall reimburse CableData and the escrow agent under the Escrow Agreement for the reasonable expenses incurred in the preparation of such fresh escrow deposits. In addition to triggering fresh deposits, BIMS shall have the right, either itself or through a third party designated by BIMS, to validate the materials on deposit upon thirty (30) calendar days prior written notice to and in the presence of CableData, but no more frequently than two (2) times per year. Any third Party designated by BIMs to validate the materials on deposit shall be required to execute a nondisclosure agreement with CableData, in a form reasonably satisfactory to CableData, - 19 - which nondisclosure agreement shall require that such third party's report to BIMS contain only a non-confidential description of the results of such validation. Verification shall take place at CableData's convenience during normal business hours on mutually-designated hardware. Such verification shall be at BIMS's expense unless the materials on deposit are not current, in which event CableData shall bear all costs associated therewith. d. The Source Code shall be in a format and on a storage medium suitable for loading into the computer equipment described in the Operating Environment Attachment hereto, and shall not be encrypted. The Source Code shall include system documentation, statements of principles of operations, and schematics, all as necessary or useful for the effective understanding and use of the Source Code. Insofar as the "development environment" employed by CableData for the development, maintenance and implementation of the Source Code includes any device, programming, or documentation not commercially available to BIMS on reasonable terms through readily known sources other than CableData, the Source Code shall include all such devices, programming and documentation. The fore- going reference to such "development environment" is intended to apply to any programs, including compilers, "workbenches," tools, and higher-level (or "proprietary") languages, used by CableData for the development, maintenance, and implementation of the Source Code. e. In the event that the Source Code is released to BIMS pursuant to this Section 17, any and all modifications to such Source Code made by or on behalf of BIMS shall be the sole property of BIMS. 18. TRANSFER AND ASSIGNMENT a. Except as otherwise provided herein, neither party shall have the right to assign or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, except with the written consent of the other party, except that CableData shall have the right to assign to its parent or to any wholly-owned subsidiary without such consent. Prohibited assignment shall be null and void. b. BIMS may assign or Transfer this Agreement and its rights hereunder, without the payment of any transfer fees or additional license fees, (i) to any entity controlling, controlled by or under common control with BIMS, or (ii) upon the prior written consent of CableData, which consent shall not be unreasonably withheld, to any one or more of BIMS's other Affiliates, or (iii) to any entity which acquires all or substantially all of BIMS's business or Subscriber base; provided, however, that the use of the Core Software by any such transferee(s) under this Paragraph 18(b) shall be subject to the terms of this Agreement. c. In addition to BIMS's assignment rights under this Agreement, BIMS shall have the right to assign its rights and delegate its duties under this Agreement either in whole or in part, at any time and without CableData's consent, to Vanguard Cable Corp. ("Vanguard"). BIMS shall give CableData written notice of such assignment or delegation. Upon the written notice to CableData, BIMS shall be released and discharged, to the extent of the assignment, from all further duties under this Agreement. 19. MISCELLANEOUS PROVISIONS a. BIMS and/or its Affiliates may, at their option from time to time, by giving CableData prior written notice, add new or additional Computer Facilities and Remote BIMS Sites at the prices set forth in the Pricing Attachment hereto. - 20 - b. BIMS agrees not to remove any Core Software from the location at which it is originally installed, except in an emergency (and then only for the period of the emergency), without prior written notice to CableData. BIMS will not, during or after the term of this Agreement, re-export or otherwise transfer the Core Software or related technical data, or any direct products thereof, other than in compliance with the U.S. Export Administration Regulations or other applicable law. c. This Agreement shall not be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by both parties. d. Should any clause, provision, or portion of this Agreement be ruled invalid, void, illegal or otherwise unenforceable by any court, it shall be deemed to be deleted and the remainder of this Agreement shall continue to be in effect and fully enforceable. e. This Agreement supersedes all prior proposals, oral or written, and all negotiations, conversations or discussions between the parties related to the Core Software or Services (excepting the Software Development Agreement executed concurrently herewith). BIMS acknowledges that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly referred to herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance with the terms and conditions of any order or other instrument submitted by BIMS. f. References herein to this Agreement include the Attachments, and the headings in this Agreement are for convenience only and do not affect the interpretation hereof. g. The parties agree that in the event it is necessary to employ attorneys to enforce the terms of this Agreement, the prevailing party in any lawsuit shall be entitled to an award of reasonable attorneys' fees and court costs. h. This Agreement will be governed in all respects by the laws of the State of Georgia. i. Regulatory Authority. BIMS's provision of residential broadband services will be subject to the provisions of the applicable order(s) of the Federal Communications Commission ("FCC") and applicable tariffs. S and its Affiliates shall use reasonable efforts to pursue any regulatory and local authority required to provide residential broadband services. BIMS may terminate this Agreement if it or its Affiliates are unable to obtain the required approvals and authority. Any such termination shall be as set forth in this Agreement, and shall be without any further charge, obligation and/or liability on the part of BIMS to CableData. j. Coordination and Cooperation with other Contractors. Throughout the term of this Agreement, other contractors and third parties (including personnel of BIMS) may be required to render services in or install equipment or software at BIMS's facilities, including, but not limited to, Sybase, Inc., Scientific- Atlanta, Inc. and Hewlett-Packard Company. BIMS reserves the right to permit and put such other contractors and third parties to work and to afford them access to such facilities at such times and under such conditions as do not unreasonably interfere with CableData. CableData shall perform continuously and diligently and shall so conduct and coordinate its aspects of the Agreement so as to minimize interference with such other work. Upon CableData's receipt from BIMS of written notice identifying contractors or other third parties with whom CableData shall be required to cooperate (i.e., in addition to those listed above in this Section 19(j)), together with any information and/or assistance requested, CableData shall cooperate with BIMS in providing such information and assistance as requested by BIMS for such coordination and cooperation in a timely manner. If BIMS determines that CableData is failing to coordinate its - 21 - work with the work of other contractors engaged by BIMS or is failing to cooperate with such contractors as required by BIMS's notice, then CableData shall be responsible for all damages, costs and expenses suffered or incurred by BIMS directly by reason of CableData's failure. k. Insurance. CableData shall procure and maintain for itself and its employees all insurance coverages as required by federal or state law, including worker's compensation insurance. CableData also agrees to maintain (a) insurance in the minimum amount of [*], for comprehensive general liability coverage, including blanket contractual liability, broad form property damage, and products and completed operations coverage, and naming BIMS as an additional insured, and (b) insurance in the minimum amount of [*] for coverage of software errors and omissions, including services rendered and intellectual property infringement claims, with respect to the computer software provided hereunder. CableData shall furnish to BIMS a certificate of insurance evidencing such coverage. Said certificate will include a provision whereby fifteen (15) calendar days notice must be received by BIMS prior to coverage change or cancellation by either CableData or the insurer. CableData waives its rights of subrogation against BIMS. l. Notices. Except as otherwise provided herein, and except for notices of failures, errors or other problems with the Software, which may be delivered by phone and confirmed in writing, all notices, requests, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and shall be given by personal service, express courier (such as UPS), telecopy, or by United States certified mail, return receipt requested, postage prepaid to the addresses set forth below, or such other address as changed through written notice to the other party. If to BIMS: BellSouth Interactive Media Services, Inc. 1100 Abernathy Road Suite 414, Building 500 Atlanta, Georgia, 30328 Attn: Mr. Larry E. Ryan Telecopy: (770) 481-2959 With a copy to BIMS's General Counsel (same address); Telecopy: (770) 392- 4575 If to CableData: CableData, Inc. 2969 Prospect Park Drive Rancho Cordova, California 95670 Attn: Barry Madrid Telecopy: (916) 636-5750 With a copy to CableData's General Counsel (same address); Telecopy: (916) 636-4561 Notice given by personal service shall be deemed effective on the date it is delivered, notice sent by express courier shall be deemed effective one Business Day after dispatch, notice given by telecopy shall be deemed effective on the date of transmission, and notice mailed shall be deemed effective on the third Business Day following its placement in the mail. m. Counterparts. This Agreement may be executed in any number of counterparts, *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 22 - each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same Agreement. n. Remedies. The rights and remedies of the parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to them at law or in equity. o. Personnel Rules and Regulations. While on BIMS's premises, CableData, personnel will comply with all security practices and procedures generally prescribed by BIMS. In addition, unless otherwise instructed by BIMS, CableData personnel shall observe the working hours, working rules, holiday schedules and policies of BIMS while working on BIMS' premises. THE FOLLOWING ATTACHMENTS ARE INTEGRAL PARTS OF THIS AGREEMENT AND ARE INCORPORATED BY REFERENCE: Att A Pricing Attachment Att B Product/Services Attachment Att C Maintenance/Support Attachment Att D Site Attachment Att E Intelecable Software Compatibility Matrix Att F Capacity Reference Guidelines Attachment Att G Operating Environment Attachment IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date last set forth below. BELLSOUTH INTERACTIVE MEDIA CABLEDATA, INC. SERVICES, INC. By: /s/ James R. Gadd By: /s/ Michael McGrail --------------------- ------------------------- James Gadd Michael F. McGrail ------------------------- ----------------------------- Print Name Print Name President President ------------------------- ----------------------------- Title Title December 22, 1995 December 27, 1995 ------------------------- ----------------------------- Date Date - 23 - INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-1 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-2 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-3 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-5 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-6 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-7 Confidential INTELECABLE PRICING ATTACHMENT ATTACHMENT A [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 12/20/95 A-8 Confidential PRODUCT/SERVICES ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Intelecable Basic System Content 12/8/95 CableData Confidential 1 PRODUCT/SERVICES ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Intelecable Optional ModuleContent 12/8/95 CableData Confidential 2 INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C These Maintenance and Support provisions are in addition to Section 9 of the License Agreement and Sections 15 and 16 of the Software Development Agreement. In the event of a conflict between this attachment and either the License Agreement or the Software Development Agreement, the License Agreement or the Software Development Agreement as applicable will apply. DEFINITIONS 1. MAINTENANCE: Bug fixes, correction of defects, including those that impede the ability to access files or perform routine operations using the Software, and periodic issuance of Maintenance Releases. Excluded from Maintenance are (a) operational procedures for loading and shutting down the computer system; (b) setting computer operating system command parameters; (c) nightly procedures for database backup and file maintenance; (d) defining whether any problems are hardware or Software- based; (e) database recovery necessitated by an operating system software or operational problem; (f) balancing file allocation and disk space management; (g) conducting performance analysis of the computer system. These operational support services are available at CableData's then current prices. 2. SUPPORT: Telephone Support for problems encountered in the use of the Software, as defined and described in the Agreement. Support services beyond the scope of normal Telephone Support are: - Assistance on the general usage of any or all components in the Software where adequate assistance is provided by the Documentation. - Assistance on the administration and management of any or all components in the Software where adequate assistance is provided by the Documentation. - Assistance in performing problem determination, isolation and resolution of problems unrelated to the Software. - Customized training programs. PROBLEM SOLUTION OBJECTIVES SEVERITY LEVELS DESCRIPTION CABLEDATA DEFECT ISOLATION, CONFIRMATION, AND FIX - ------------------------------------------------------------------------------- 1. System Down System Down, Cannot Do Immediately Business - ------------------------------------------------------------------------------- 2. High Impact, No Business Function Cannot ASAP-Between Maintenance Workaround Be Performed Releases - ------------------------------------------------------------------------------- 3. High Impact, Heavily Impacted, Can Next Maintenance Release Workaround Do Daily Business - ------------------------------------------------------------------------------- 4. Low Impact, Slightly Impacted, Can Deferred; Future Maintenance Workaround Do Daily Business Release - ------------------------------------------------------------------------------- 5. No Impact No Impact On Daily Possible; Future Maintenance Business Release COVERAGE - - SOFTWARE: BIMS has elected to purchase 24 hours per day x 7 days/week x 365 day/year Telephone Support for the Software as defined in the Agreement. Telephone Support calls to the Support Facility will be handled, immediately or returned within an average of sixty (60) minutes by a qualified CableData employee. - - CableData will support the current release of Intelecable Core Software, as well as the prior major release. Maintenance for older releases will be provided by CableData subject to the limitations set forth in the Agreement. Telephone Support covers the Core and Custom Software licensed under this Agreement and the Software Development Agreement and does not include support of any computer operating system software. 12/8/95 C-1 INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C - - Third-Party Software: Third-party software (i.e., Oracle-Registered Trademark - and Tuxedo-Registered Trademark-)should be licensed directly from the licensor, who will be primarily responsible for supporting the licensed product. Telephone support may be provided by CableData, however, if Customer actually licenses the third-party software from CableData and contracts for CableData to provide support for such software. CUSTOMER RESPONSIBILITIES - - Customer is responsible for performing problem determination and isolation procedures to determine whether the problem is attributed to a component covered by CableData Maintenance or Support. Customers may be charged for Maintenance and Support, on a time and materials basis, if a problem is logged by CableData and found to be attributable to a component NOT covered by CableData Maintenance or Support. Such charges will be assessed only if CableData has notified the Customer that the problem is not covered and the Customer has elected to use CableData for support. - - Customer must provide individuals in its site(s) who have attended the required CableData classes listed by job category on pages 3-5 of this attachment, with whom CableData will deal. Cabledata recommends that BIMS maintain a level of expertise to property utilize the Core Software during the term of the Agreement. Customer must designate, by name, specific individuals who may contact CableData for Maintenance and Support. These individuals are to be listed below and should be certified by CableData based on completing required courses indicated in pages 3-5 of this attachment. CableData may not support Maintenance or Support requests from individuals who are not listed. BIMS may add names as individuals become certified. CHARGES - - CABLEDATA'S INTELECABLE CORE SOFTWARE AND CUSTOM SOFTWARE: Fees for Maintenance and Support are set forth in the Pricing Attachment. Additional support (for problems that are outside the scope of normal Telephone Support) is billed on an hourly time and materials basis. There will be no charge for Maintenance and Support of the Software during the Warranty Period and for a period of six years thereafter for Custom Software. - - THIRD-PARTY SOFTWARE: If Customer contracts with CableData to provide Support, an annual Support fee is charged. Support outside the scope of a contract is performed on an hourly time and materials basis. Maintenance is provided only if the third-party software is licensed from CableData and Customer pays the required annual Maintenance fee for such software. CUSTOMER CONTACTS: Name:_____________________ Title:______________________ Name:_____________________ Title:______________________ Name:_____________________ Title:______________________ C-2 INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C Intelecable Training Matrix
INTELECABLE COURSEWARE MODULES(2) TARGET INTELECABLE DAILY SYSTEM STANDARD TELEPHONY PROJECTS NETWORK GROUP(1) OVERVIEW PROCESSING MANAGEMENT REPORTS MANAGEMENT MANAGEMENT MANANGEMENT - --------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------- I.THE CUSTOMER SERVICE GROUP - --------------------------------------------------------------------------------------------------------------- CUSTOMER SERVICE REQUIRED REQUIRED REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- II.THE ENGINEERING GROUP - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE REQUIRED REQUIRED REQUIRED DISPATCHER - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- STORES AND INVENTORY REQUIRED OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- III.THE TELEPHONY GROUP - ---------------------------------------------------------------------------------------------------------------- BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL - ---------------------------------------------------------------------------------------------------------------- TELEPHONY NETWORK REQUIRED OPTIONAL REQUIRED REQUIRED REQUIRED SUPPORT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- IV.THE FINANCIAL GROUP - ---------------------------------------------------------------------------------------------------------------- CREDIT CONTROL REQUIRED REQUIRED OPTIONAL - ---------------------------------------------------------------------------------------------------------------- DEBT COLLECTION REQUIRED REQUIRED OPTIONAL - ---------------------------------------------------------------------------------------------------------------- PAYMENT COUNTER REQUIRED REQUIRED REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- ACCOUNTS MANAGEMENT REQUIRED REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- V.THE SALES GROUP - ---------------------------------------------------------------------------------------------------------------- SALES FORCE REQUIRED OPTIONAL - ---------------------------------------------------------------------------------------------------------------- SALES MANAGEMENT REQUIRED OPTIONAL REQUIRED - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VI.THE MARKETING GROUP - ---------------------------------------------------------------------------------------------------------------- MARKETING COORDINATOR REQUIRED OPTIONAL REQUIRED - ---------------------------------------------------------------------------------------------------------------- MARKETING MANAGEMENT REQUIRED OPTIONAL REQUIRED - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VII.THE DATA PROCESSING GROUP - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- DATABASE ADMINISTRATOR REQUIRED OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VIII.THE SENIOR MANAGEMENT GROUP - ---------------------------------------------------------------------------------------------------------------- GENERAL MANAGER OPTIONAL - ---------------------------------------------------------------------------------------------------------------- SENIOR MANAGEMENT OPTIONAL OPTIONAL OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- (1) The Target Group represents a generic structure of the end-user's organization. However, the cross-section of responsibilities generally remains valid to the Cable Television and Telephony industries. Intelecable training is targeted to the individual and departmental responsibilities and can be customized to meet the end-user's business structure. (2) The Intelecable Courseware Modules are a set of sixteen (16) training modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered Trademark- AIX-Trade Mark- are the responsibility of the end- users and can be scheduled through the local Oracle-Registered Trademark- and IBM-Registered Trademark- offices respectively.
C-1 Intelecable Training Matrix - Continued
INTELECABLE COURSEWARE MODULES(2) TARGET THE CHARGING COLLECTIONS MONEY ADDRESS SHARING FINANCIAL PAY-PER-VIEW MIS GROUP(1) PROCESS MANAGEMENT PROCESSING MANAGEMENT REPORTS MANANGEMENT PROCESSES - --------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------- I.THE CUSTOMER SERVICE GROUP - --------------------------------------------------------------------------------------------------------------- CUSTOMER SERVICE REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- CUTSOMER SERVICE REQUIRED REQUIRED REQUIRED OPTIONAL REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- II.THE ENGINEERING GROUP - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE OPTIONAL OPTIONAL DISPATCHER - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE REQUIRED REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- STORES AND INVENTORY REQUIRED - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- III.THE TELEPHONY GROUP - ---------------------------------------------------------------------------------------------------------------- BUSINESS TELEPHONY REQUIRED REQUIRED REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- TELEPHONY NETWORK SUPPORT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- IV.THE FINANCIAL GROUP - ---------------------------------------------------------------------------------------------------------------- CREDIT CONTROL OPTIONAL OPTIONAL REQUIRED - ---------------------------------------------------------------------------------------------------------------- DEBT COLLECTION OPTIONAL REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- PAYMENT COUNTER REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- ACCOUNTS MANAGEMENT REQUIRED REQUIRED REQUIRED REQUIRED OPTIONAL - --------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- V.THE SALES GROUP - ---------------------------------------------------------------------------------------------------------------- SALES FORCE - ---------------------------------------------------------------------------------------------------------------- SALES MANAGEMENT OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VI.THE MARKETING GROUP - ---------------------------------------------------------------------------------------------------------------- MARKETING COORDINATOR OPTIONAL - ---------------------------------------------------------------------------------------------------------------- MARKETING MANAGEMENT OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VII.THE DATA PROCESSING GROUP - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING STAFF REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- DATABASE ADMINISTRATOR OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL OPTIONAL REQUIRED - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VIII.THE SENIOR MANAGEMENT GROUP - ---------------------------------------------------------------------------------------------------------------- GENERAL MANAGER - ---------------------------------------------------------------------------------------------------------------- SENIOR MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- (1) The Target Group represents a generic structure of the end-user's organization. However, the cross-section of responsibilities generally remains valid to the Cable Television and Telephony industries. Intelecable training is targeted to the individual and departmental responsibilities and can be customized to meet the end-user's business structure. (2) The Intelecable Courseware Modules are a set of sixteen (16) training modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered Trademark- AIX-Trade Mark- are the responsibility of the end-users and can be scheduled through the local Oracle--Registered Trademark- and IBM-Registered Trademark- offices respectively.
C-2 INTELECABLE MAINTENANCE AND SUPPORT ATTACHMENT C - ------------------------------------------------------------------------------ Intelecable Training Matrix - Continued
INTELECABLE COURSEWARE MODULES(2) TARGET xxx INTELECABLE ORACLE-Registered Trademark- IBM-Registered Trademark- GROUP(1) MANAGEMENT DATABASE MANAGEMENT AIX-Trade Mark- - --------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------------------------- I.THE CUSTOMER SERVICE GROUP - --------------------------------------------------------------------------------------------------------------- CUSTOMER SERVICE REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- CUTSOMER SERVICE REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- II.THE ENGINEERING GROUP - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE OPTIONAL DISPATCHER - ---------------------------------------------------------------------------------------------------------------- FIELD SERVICE REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- STORES AND INVENTORY - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- III.THE TELEPHONY GROUP - ---------------------------------------------------------------------------------------------------------------- BUSINESS TELEPHONY - ---------------------------------------------------------------------------------------------------------------- TELEPHONY NETWORK SUPPORT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- IV.THE FINANCIAL GROUP - ---------------------------------------------------------------------------------------------------------------- CREDIT CONTROL - ---------------------------------------------------------------------------------------------------------------- DEBT COLLECTION - ---------------------------------------------------------------------------------------------------------------- PAYMENT COUNTER REPRESENTATIVE - ---------------------------------------------------------------------------------------------------------------- ACCOUNTS MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- V.THE SALES GROUP - ---------------------------------------------------------------------------------------------------------------- SALES FORCE - ---------------------------------------------------------------------------------------------------------------- SALES MANAGEMENT OPTIONAL - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VI.THE MARKETING GROUP - ---------------------------------------------------------------------------------------------------------------- MARKETING COORDINATOR - ---------------------------------------------------------------------------------------------------------------- MARKETING MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VII.THE DATA PROCESSING GROUP - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING STAFF REQUIRED OPTIONAL REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- DATABASE ADMINISTRATOR OPTIONAL REQUIRED REQUIRED REQUIRED - ---------------------------------------------------------------------------------------------------------------- DATA PROCESSING REQUIRED REQUIRED REQUIRED REQUIRED MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- VIII.THE SENIOR MANAGEMENT GROUP - ---------------------------------------------------------------------------------------------------------------- GENERAL MANAGER - ---------------------------------------------------------------------------------------------------------------- SENIOR MANAGEMENT - ---------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------- (1) The Target Group represents a generic structure of the end-user's organization. However, the cross-section of responsibilities generally remains valid to the Cable Television and Telephony industries. Intelecable training is targeted to the individual and departmental responsibilities and can be customized to meet the end-user's business structure. (2) The Intelecable Courseware Modules are a set of sixteen (16) training modules. Oracle-Registered Trademark- RDBMS Management and IBM-Registered Trademark- AIX-Trade Mark- are the responsibility of the end-users and can be scheduled through the local Oracle-Registered Trademark- and IBM-Registered Trademark- offices respectively.
C-3 INTELECABLE SITE ATTACHMENT ATTACHMENT D - ------------------------------------------------------------------ CUSTOMER SITES ATTACHMENT CableData's Intelecable-Trade Mark- Master Operating and Licensing Agreement Date: December 8, 1995 Corp. Number: 360-01 The Customer sites subject to this Agreement and the associated hardware and software installed are as follows: Computer Facility: Bell South System Number: 360-01 Installation Address: 1100 Abernathy Road, Suite 414 500 Northpark Town Center City, State: Atlanta, GA 30328 Remote Facility: n/a System Number: Installation Address: City, State: INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-1 INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-2 INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-3 INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-4 INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-5 INTELECABLE SOFTWARE COMPATABILITY MATRIX ATTACHMENT E [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page E-6 CAPACITY REFERENCE GUIDELINES ATTACHMENT F The following are provided as capacity and reliability guidelines and are not a warranty for performance. They are offered to BIMS as a guide in determining whether or not analysis and corrective action are indicated. Any further Software releases may require additional resources as described in Paragraph 7.f.(i) of the Agreement. Such corrective action might include adding hardware or software or reconfiguring the OS or the RDBMS. CableData would consult with BIMS on the most cost effective course of action for BIMS to pursue. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 1 - CAPACITY REFERENCE GUIDELINES ATTACHMENT F [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 2 - ATTACHMENT G BIMS INTELECABLE OPERATING ENVIRONMENT IBM 590 AIX 3.2.5 Operating System Oracle 7.0.1.6 Tuxedo /T v 4.2.1 Tuxedo /Q v4.2.1 Intelecable 512MB Ram 6GB Disk The IBM 590 is used as a test and development environment for the Intelecable subscriber management system. The IBM 590 interfaces with the Sybase Staging Server which runs on an HP G70. Connectivity is standard TCP\IP-based, with Tuxedo acting as the interface software for API's used by Sybase and CableData. The IBM 590 may, on a temporary basis, be connected to the Scientific Atlanta SM10 via an RS-232 link for testing the provision of Analog Channel Authorizations. The IBM 590 is connected to the BIMS office network using TCP/IP. A QuickScreen Plus emulator provided by CableData, running on Intel-based pc's, is used to access the Intelecable application. IBM RS 6000 - SP2 AIX 3.2.5 Operating System HACMP 3.1.1 Oracle 7.0.1.6 Tuxedo /T v 4.2.1 Tuxedo /Q v4.2.1 Intelecable Per node: 1GB Ram 12 GB Disk The IBM SP2 is the production machine for the Intelecable subscriber management system. The SP2 is running with multiple nodes using High Availability Rotating mode, although plans are to run it in Concurrent Mode. The IBM SP2 interfaces with the Sybase Staging Server, which runs on an HP E45 at present but may move to an HPG70. Connectivity is standard TCP/IP-based, with Tuxedo acting as the interface software for API's used by Sybase and CableData. The IBM Sp2 is connected to the Scientific Atlanta SM10 via an RS-232 link. The IBM SP2 is connected to the BIMS office network using TCP/IP. A QuickScreen Plus emulator provided by CableData, running on Intel-based pc's, is used to access the Intelecable application. HP G70 HP-UX operating system Sybase System 10 Sybase Replication Server Sybase Open Client/Server Tuxedo / WS Custom API's 512MB Ram 8GB Disk G-1 The HP G70 contains the HP MediaStream Server and Sybase IMS (Intermedia Server), and may contain the Sybase Staging Server. The Staging Server contains the Replication Server, the Staging Database, and the External Business Systems Accessors. External Business Systems Accessors are API's used to connect to the Intelecable application via Tuxedo for passing customer information, including authorizations, and billing transactions with the Intelecable subscriber management system. Scientific Atlanta SM10 DOS 6.2 Windows 3.1 IBM PS2 The Scientific Atlanta System Manager 10 (SM10) is used to manage the analog functions of all set-top boxes connected to the BIMS network. Specific management functions include the following: Channel Authorizations Set Top Box Auditing Set Top Box Reinitialization The IBM SP2 is connected to the Scientific Atlanta SM10 via an RS-232 link. HP-E45(MKIS) HP-UX operating system Oracle 7.0.1.6 Tuxedo / WS Sybase Replication Server Sybase Open Client/Server Custom API's 64MB Ram 6GB Disk The HP-E45 is used to run the Marketing Information System (MKIS). The MKIS system is part of the BIMS network and as such will receive information from the Intelecable subscriber management system. In addition, the Sybase Staging Server currently runs on the E45. The Staging Server contains the Replication Server, the Staging Database, and the External Business Systems Accessors. External Business Systems Accessors are API's used to connect to the Intelecable application via Tuxedo for passing customer information, including authorizations, and billing transactions with the Intelecable subscriber management system. Intel Based Pcs (486 and Pentium processors) DOS 6.2 Windows for Workgroups 3.11 Quick Screen Plus for Windows version 3.11a 486 and Pentium processors 8MB Ram 327MB Disk Various pcs will be used on the BIMS network for accessing the Intelecable subscriber management system. Intel Based PC (Pentium Processors) DOS 6.2 Windows NT 3.51 Tuxedo for Windows NT Custom API's This machine will access the API's Get Account and Send Transaction. Billing transactions will be formatted on this and sent to ITC for processing via the Send Transaction API. Customer information will be obtained via the Get Account API. G-2 EX-10.30 10 EXHIBIT 10.30 EXHIBIT 10.30 SOFTWARE LICENSE AND SERVICES AGREEMENT This Software License and Services Agreement (the "Agreement") is between Oracle Corporation with its principal place of business at 500 Oracle Parkway, Redwood City, California 94065 ("Oracle") and U.S. COMPUTER SERVICES (legal name) with its principal place of business at 11020 SUN CENTER DRIVE, RANCHO CORDOVA, CA 95670 ("Client"). The terms of this Agreement shall apply to each Program license granted and to all services provided by Oracle under this Agreement. When completed and executed by both parties, an Order Form shall evidence the Program licenses granted and the services that are to be provided. I. DEFINITIONS 1.1. "Program" or "Programs" shall mean the computer software in object code form owned or distributed by Oracle for which Client is granted a license pursuant to this Agreement; the user guides and manuals for use of the software ("Documentation"); and Updates. 1.2. "Order Form" shall mean the document by which Client orders Program licenses and services, and which is agreed to by the parties. The Order Form shall reference the Effective Date of this Agreement. 1.3. "Price List" shall mean Oracle's standard commercial fee schedule that is in effect when a Program license or any other products or services are ordered by Client. 1.4. "Designated System" shall mean the computer hardware and operating system designated on the relevant Order Form. 1.5. "Supported Program License" shall mean a Program license for which Client has ordered Technical Support for the relevant time period. "Technical Support" shall mean Program support provided under Oracle's policies in effect on the date Technical Support is ordered. 1.6. "Commencement Date" shall mean the date on which the Programs are delivered to Client, or if no delivery is necessary, the Effective Date set forth on the relevant Order Form. 1.7. "Update(s)" shall mean subsequent releases of the Programs which are generally made available for Supported Program Licenses at no additional charge, other than media and handling charges. Updates shall not include any releases, options or future products which Oracle licenses separately. 1.8. "User", unless otherwise specified in the Order Form, shall mean a specific individual employed by Client who is authorized by Client to use the Programs, regardless of whether the individual is actively using the Programs at any given time. 1.9. "Application Programs" shall be Programs designated as application software by Oracle. 1.10. "Limited Production Programs" shall be Programs not specified on the Price List or specified as Limited Production, Tier 3 or with special restrictions on the Price List. II. PROGRAM LICENSE 2.1. RIGHTS GRANTED A. Oracle grants to Client a nonexclusive license to use the Programs Client obtains under this Agreement, as follows: i. to use the Programs solely for Client's own internal data processing operations on the Designated System or on a backup system if the Designated System is inoperative, up to any applicable maximum number of designated Users (if any User limitation applies). Client may not use the Programs for third-party training, commercial timesharing, rental or service bureau use; ii. to use the Documentation provided with the Programs in support of Client's authorized use of the Programs; iii. to copy the Programs for archival or backup purposes; no other copies shall be made without Oracle's prior written consent. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies. All archival and backup copies of the Programs are subject to the terms of this Agreement; and iv. to modify the Programs or combine them with other software products. The Programs or such portions thereof included in such derivative software products shall remain the property of Oracle and shall be governed by the terms of this Agreement. Client shall not copy or use the Programs (including the Documentation) except as otherwise specified in this Agreement. B. Client agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Programs. C. Oracle shall retain all title, copyright and other proprietary rights in the Programs. Client does not acquire any rights, express or implied, in the Programs, other than those specified in this Agreement. D. The Programs are not intended for use in any nuclear aviation, mass transit, medical or other inherently dangerous applications. It shall be Client's responsibility to take all appropriate measures to ensure the safe use of such applications if the Programs are used for such purposes, and Oracle disclaims liability for any damages caused by such use of the Programs. E. To use a Program specified on an Order From ("ordered Program"), Client may need to use an ancillary Program embedded in or delivered with the ordered Program. The ancillary Program may be used only as described in the Order Form or Documentation for implementation of the ordered Program and for no other purpose. Client shall have no right to use any other software Program that may be delivered with ordered Programs. 2.2. ACCEPTANCE OF PROGRAM For each Program License for which delivery is required under this Agreement, Client shall have a 15 day Acceptance Period, beginning on the Commencement Date, in which to evaluate the Program. During the Acceptance Period, Client may cancel the license by giving written notice to Oracle and returning the Program in accordance with paragraph 4.5 below. Unless such cancellation notice is given, the license will be deemed to have been accepted by Client at the end of the Acceptance Period, if Client is granted a right to copy license and no delivery is necessary, subsequent copies shall be deemed accepted upon acceptance of the master copy. 2.3. TRANSFER AND ASSIGNMENT A. Within the United States, a Program license may be transferred to another computer system of like configuration (same model and operating system), or the Designated System may be transferred to another location within Client's organization, upon written notice to Oracle. All other transfers, including transfer of a Program license outside the United States, shall be permitted only with Oracle's prior written consent and shall be subject to Oracle's standard transfer fees in effect at the time of the transfer. B. The rights granted herein are restricted for use solely by Client. Client may not authorize or allow the use or the remarketing of the Programs by a third party, and may not assign or transfer the Programs or the Agreement to a third party, without the prior written consent of Oracle. 2.4. VERIFICATION On Oracle's written request, not more frequently than annually, Client shall furnish Oracle with a signed certification (a) verifying that the programs are being used pursuant to the provisions of this Agreement, including any User limitations; and (b) listing the locations, types and serial numbers of the Designated Systems on which the Programs are run. Oracle may, at its expense, audit Client's use of the Programs. Any such audit shall be conducted during regular business hours at Client's facilities and shall not unreasonably interfere with Client's business activities. If an audit reveals that Client has underpaid fees to Oracle, Client shall be invoiced for such underpaid fees based on the Price List in effect at the time the audit is completed; if the underpaid fees exceed 5% of the license fees paid, then Client shall also pay Oracle's reasonable costs of conducting the audit. Audits shall be conducted no more than once annually. III. TECHNICAL SERVICES 3.1. TECHNICAL SUPPORT SERVICES Technical Support services ordered by Client will be provided under Oracle's Technical Support policies in effect on the date Technical Support is ordered, subject to the payment by Client of the applicable fees. At Client's request, Oracle will provide remote assistance in the installation of each Supported Program license. Reinstatement of lapsed Technical Support services is subject to Oracle's Technical Support reinstatement fees in effect on the date Technical Support is re-ordered. Limited Production Programs and pre-production releases of Programs may not be eligible for standard Technical Support services; Client may obtain Technical Support services for Limited Production Programs on a time and materials basis. 3.2. CONSULTING AND TRAINING SERVICES Oracle will provide consulting and training services agreed to by the parties under the terms of this Agreement. All consulting services shall be billed on a time and materials basis unless the parties expressly agree otherwise in writing. Any consulting services acquired from Oracle shall be bid separately from the Program licenses and Client may acquire the Program licenses without acquiring any consulting services. 3.3. INCIDENTAL EXPENSES For any on site services requested by Client, Client shall reimburse Oracle for actual, reasonable travel and out-of-pocket expenses incurred, plus an administrative fee of 15% of such amount. IV. TERM AND TERMINATION 4.1. TERM Each Program license granted under this Agreement shall remain in effect perpetually (if not otherwise specified on the Order Form), unless a license or this Agreement is terminated as provided in Paragraph 4.2 or 4.3 below. 4.2. TERMINATION BY CLIENT Client may terminate any Program license at any time; however, termination shall not relieve Client's obligation to pay all fees that have accrued or that Client has agreed to pay under any Order Form or other similar ordering document under this Agreement. 4.3. TERMINATION BY ORACLE Oracle may terminate this Agreement or any license upon written notice if Client breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach. 4.4. EFFECT OF TERMINATION Termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Client's obligation to pay all fees that have accrued or that Client has agreed to pay under any Order Form or other similar ordering document under this Agreement. The parties' rights and obligations under Paragraphs 2.1.B, 2.1.C, 2.1.D, and 2.3.B, and Articles IV, V, VI and VII shall survive termination of this Agreement. If Client materially breaches this Agreement, including failing to make any payments required hereunder when due under any Order Form or other similar ordering document to this Agreement, then Oracle may declare all sums due and to become due hereunder immediately due and payable. 4.5. RETURN OF PROGRAMS UPON TERMINATION If a license granted under this Agreement expires or otherwise terminates, Client shall (a) cease using the applicable Programs, and (b) certify to Oracle within one month after expiration or termination that Client has destroyed or has returned to Oracle the Programs and all copies. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory, and whether or not modified or merged into other materials. Before returning Programs to Oracle, Client shall acquire a Return Material Authorization ("RMA") number from Oracle at (415) 508-1500. V. INDEMNITY, WARRANTIES, REMEDIES, LIMITATION OF LIABILITY 5.1. INFRINGEMENT INDEMNITY Oracle will defend and indemnify Client against a claim that Programs furnished and used within the scope of this Agreement infringe a United States copyright or patent, provided that: (a) Client notifies Oracle in writing within 30 days of the claim; (b) Oracle has sole control of the defense and all related settlement negotiations; and (c) Client provides Oracle with the assistance, information and authority necessary to perform Oracle's obligations under this paragraph. Reasonable out-of- pocket expenses incurred by Client in providing such assistance will be reimbursed by Oracle. Oracle shall have no liability for any claim of infringement based on: (a) use of a superseded or altered release of Programs if the infringement would have been avoided by the use of a current unaltered release of the Programs that Oracle provides to Client; or (b) the combination, operation or use of any Programs furnished under this Agreement with software, hardware or other materials not furnished by Oracle if such infringement would have been avoided by the use of the Programs without such software, hardware or other materials. In the event the Programs are held or are believed by Oracle to infringe, Oracle shall have the option, at its expense, to (a) modify the Programs to be noninfringing; (b) obtain for Client a license to continue using the Programs; or (c) terminate the license for the infringing Programs and refund the license fees paid for those Programs, prorated over a five year term from the Commencement Date. This Paragraph 5.1 states Oracle's entire liability and Client's exclusive remedy for infringement. 5.2. WARRANTIES AND DISCLAIMERS A. Warranties i. Program License Warranties For each Supported Program License, Oracle warrants for a period of one year from the Commencement Date that the Programs, unless modified by Client, will perform the functions described in the Documentation provided by Oracle when operated on the Designated System. Oracle will undertake to correct any reported error condition in accordance with its technical support policies. Oracle does not warrant that the Programs will meet Client's requirements, that the Programs will operate in the combinations which Client may select for use, that the operation of the Programs will be uninterrupted or error- free, or that all Program errors will be corrected. If Client does not obtain Technical Support services, the Programs are distributed "as is." ii. Media Warranty Oracle warrants the tapes, diskettes or other media to be free of defects in materials and workmanship under normal use for 90 days from the Commencement Date. iii. Services Warranty Oracle warrants that its Technical Support and consulting services will be performed consistent with generally accepted industry standards. This warranty shall be valid for 90 days from performance of service. B. Limitations on Warranties i. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ii. As an accommodation to Client, Oracle may supply Client with Limited Production Programs or with pre-production releases of Programs (which may be labeled "Alpha" or "Beta"). These products are not suitable for production use. Oracle does not warrant Limited Production Programs, pre-production releases or computer-based training products; these products are distributed "as is." 5.3. EXCLUSIVE REMEDIES For any breach of the warranties contained in Paragraph 5.2 above, Client's exclusive remedy, and Oracle's entire liability, shall be: A. For Programs The correction of Program errors that cause breach of the warranty, or if Oracle is unable to make the Program operate as warranted. Client shall be entitled to recover the fees paid to Oracle for the Program license of Update, as applicable. B. For Media The replacement of defective media returned within 90 days of the Commencement Date. C. For Services The reperformance of the services, or if Oracle is unable to perform the services as warranted, Client shall be entitled to recover the fees paid to Oracle for the deficient services. 5.4. LIMITATION OF LIABILITY In no event shall either party be liable for any indirect, incidental, special or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages. Oracle's liability for damages hereunder shall in no event exceed the amount of fees paid by Client under this Agreement, and if such damages result from Client's use of the Program or services, such liability shall be limited to fees paid for the relevant Program or services giving rise to the liability, prorated over a five-year term from the Commencement Date of the applicable license or the date of performance of the applicable services. The provisions of this Article V allocate the risks under this Agreement between Oracle and Client. Oracle's pricing reflects this allocation of risk and the limitation of liability specified herein. VI. PAYMENT PROVISIONS 6.1. INVOICING AND PAYMENT Invoices for payment of license fees shall be payable 30 days from the Commencement Date. Technical Support fees shall be payable annually in advance, net 30 days from the renewal date; such fees will be those in effect at the beginning of the period for which the fees are paid. All other applicable fees shall be payable 30 days from the invoice date, and shall be deemed overdue if they remain unpaid thereafter. Any amounts payable by Client hereunder which remain unpaid after the due date shall be subject to late penalty fees equal to 1.5% per month from the due date until such amount is paid. Client agrees to pay applicable media and shipping charges. Client shall issue a purchase order, or alternative document acceptable to Oracle, on or before the Effective Date of the applicable order form. 6.2. TAXES The fees listed in this Agreement do not include taxes; if Oracle is required to pay sales, use, property, value-added or other federal, state or local taxes based on the licenses or services granted in this Agreement or on Client's use of Programs or services, then such taxes shall be billed to and paid by Client. This paragraph shall not apply to taxes based on Oracle's income. VII. GENERAL TERMS 7.1. NONDISCLOSURE By virtue of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Programs, the terms and pricing under this Agreement, and all information clearly identified as confidential. A party's Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. Client shall not disclose the results of any benchmark tests of the Programs to any third party without Oracle's prior written approval. The parties agree to hold each other's Confidential Information in confidence during the term of this Agreement and for a period of two years after termination of this Agreement. The parties agree, that unless required by law, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. 7.2. GOVERNING LAW This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California, and shall be deemed to be executed in Redwood City, California. 7.3. JURISDICTION Any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in San Francisco or San Mateo County, California. Oracle and Client agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding. 7.4. NOTICE All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Order Form (if to Client) or to the Oracle address on the Order Form (if to Oracle). To expedite order processing, Client agrees that Oracle may treat documents faxed by Client to Oracle as original documents; nevertheless, either party may require the other to exchange original signed documents. 7.5. SEVERABILITY In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. 7.6. WAIVER The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Oracle's proprietary rights in the Programs, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. 7.7. EXPORT ADMINISTRATION Client agrees to comply fully with all relevant export laws and regulations of the United States to assure that neither the Programs, nor any direct product thereof, are exported, directly or indirectly, in violation of United States law. 7.8. RELATIONSHIP BETWEEN THE PARTIES Oracle is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each party will maintain appropriate workers' compensation for its employees. 7.9. ENTIRE AGREEMENT This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. It is expressly agreed that all terms of any Client purchase order or other ordering document shall be superseded by the terms of this Agreement. This Agreement shall also supersede the terms of any unsigned license agreement included in any package for Oracle-furnished software, except terms contained in such unsigned license agreement that limit usage of the Programs. The Effective Date of this Agreement shall be MAY 18TH, 1994 Executed by Client: Authorized Signature: /s/Scott M. Langdoc ------------------- Name: SCOTT M. LANGDOC ---------------- Title: VICE PRESIDENT, CORP MIS ------------------------ Executed by Oracle Corporation: Authorized Signature: /s/Robert Hughes ------------------- Name: ROBERT HUGHES ------------- Title: SENIOR DIRECTOR, USA REVENUE ---------------------------- NETWORK USER LICENSE ADDENDUM BETWEEN U.S. COMPUTER SERVICES AND ORACLE CORPORATION This Network User License Addendum ("User Addendum") shall be governed by the terms of the Software License and Services Agreement between U.S. Computer Services ("Client") and Oracle Corporation ("Oracle") effective May 18, 1994 (the "Agreement") and the terms set forth below. 1. PROGRAMS AND DEFINITIONS 1.1 LICENSED PROGRAMS A. PROGRAM SETS "Licensed Programs" means the Programs in the Program Set(s) that are currently available in production release as of the Effective Date for use on the corresponding Hardware and as specified in the License Type. Program Set: A Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- Oracle7 IBM RS 6000 /AIX Procedural Option Silicon Graphics/UNIX Distributed Option PC Compatible/Netware SQL*Net PC Compatible/Windows SQL*Net TCP/IP PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: B Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- Pro*C IBM RS 6000 /AIX Silicon Graphics/UNIX PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: C Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- SQL*Forms w/Menu IBM RS 6000 /AIX SQL*ReportWriter Silicon Graphics/UNIX SQL*Plus PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: D Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- Oracle7 IBM RS 6000 /AIX Procedural Option Silicon Graphics/UNIX Distributed Option PC Compatible/Netware Parallel Server Option PC Compatible/Windows SQL*Net PC Compatible/Windows NT SQL*Net TCP/IP Apple Macintosh/OS Pro*C SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: E Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- SQL*Forms w/Menu IBM RS 6000 /AIX SQL*ReportWriter Silicon Graphics/UNIX SQL*Plus PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: F Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- Oracle Data Browser IBM RS 6000 /AIX Silicon Graphics/UNIX PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: G Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- CASE/Tools Bundle** IBM RS 6000 /AIX Silicon Graphics/UNIX PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: H Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- CASE/Tools Bundle** IBM RS 6000 /AIX Silicon Graphics/UNIX PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 Program Set: I Hardware PROGRAMS (COMPUTER/OPERATING SYSTEM) -------- --------------------------- SQL*Forms w/Menu IBM RS 6000 /AIX SQL*ReportWriter Silicon Graphics/UNIX SQL*Plus PC Compatible/Netware PC Compatible/Windows PC Compatible/Windows NT Apple Macintosh/OS SCO 386 UNIX/UNIX SUN/Solaris PC Compatible/OS2 **CASE/Tools Bundle may include: CASE Dictionary, CASE Designer, CASE Generator for SQL*Forms w/Menu, CASE Generator for SQL*ReportWriter, SQL*Forms w/Menu, SQL*ReportWriter, SQL*Plus, SQL*Net and SQL*Net TCP/IP. B. HARDWARE The "Hardware" shall be defined as up to a combined total of twenty-five (25) Computers of the Computer/Operating System combinations listed above that are owned, leased to, or under the sole control of Client. During the User Addendum Term, Client may add up to three (3) Computer/Operating System combinations ("Additional Hardware") to the Hardware specified above at no additional charge, provided: (i) the Licensed Programs are available in production release status on the Additional Hardware at the time Client elects to add the Additional Hardware; (ii) Client has continuously maintained Technical Support for the Licensed Programs; and (iii) the Additional Hardware is in an equal or lesser value Oracle price tier as the Hardware. Oracle shall ship to the Client Location a single master copy of the Licensed Programs for each Additional Hardware added. These Licensed Programs may only be copied and installed in accordance with Section 4 of this User Addendum. Client acknowledges that the Licensed Programs for use on the Additional Hardware may not be currently available. Client agrees that it has not relied on the availability of such Licensed Programs in executing this User Addendum and that the availability of such Licensed Programs will not affect Client's payment obligations under Section 2. Oracle is under no obligation to make available any Programs or Program/Hardware combinations. C. UPDATES During the User Addendum Term, for each current Program below which has been licensed to Client the no charge technical support update shall be made available to Client on the applicable Hardware and License Type when and if such Program is made available in production release; provided Client has continuously maintained Technical Support services from Oracle for the Licensed Programs from the Effective Date: CURRENT PROGRAMS UPDATE ---------------- ------ SQL*Forms w/Menu Oracle Forms SQL*ReportWriter Oracle Reports Pro*C, Oracle Precompilers Oracle Data Browser Oracle Browser Client acknowledges that the Programs above may not be available. Client agrees that it has not relied on the availability of such Programs in executing this User Addendum and that the availability of these Programs will not affect Client's payment obligations in this User Addendum. Oracle is under no obligation to make available any Programs or Program/Hardware combinations. 1.2 LICENSE TYPE "Full Use Programs" are defined as unaltered versions of the Licensed Programs with all functions intact. "Deployment Programs" are limited to use solely for the purpose of running applications, and may not be used to create or alter tables or reports except as necessary for operating the applications. 1.3 USER A. INITIAL USERS ON EFFECTIVE DATE "Named User" is defined as an individual employed by Client who is authorized by Client to use the Licensed Programs under the terms of this User Addendum, regardless of whether the individual is actively using the Licensed Programs at any given time. "Concurrent User(s)" is defined as each session connected to the database by individuals employed by Client on the specified Computer at the same point in time. This includes all batch processes and on-line users. If multiplexing software or hardware (e.g. a TP monitor) is used to reduce the number of sessions directly connected to the database, the number of Concurrent Users must be measured as the number of distinct inputs to the multiplexing front-end. The maximum number of Named Users and Concurrent Users of the Program Sets on the Hardware shall be as follows: PROGRAM SET NUMBER OF USERS LICENSE TYPE ----------- --------------- ------------ Program Set A 498 Named Users Full Use Program Set B 213 Named Users Full Use Program Set C 357 Named Users Deployment Program Set D 32 Concurrent Users Full Use Program Set E 1 Concurrent User Deployment Program Set F 1 Concurrent User Full Use Program Set G 1 Named User Full Use Program Set H 1 Named User Full Use Program Set I 30 Named Users Full Use B. ADDITIONAL USERS During the User Addendum Term, Client shall have the option to increase the number of Users of the Licensed Programs, in any combination of Users for the Program Sets below for use on the relevant Hardware provided, however, that the minimum amount of license fees per order is equal to or greater than [ * ] per order. LICENSE ADDITIONAL FEE PER PROGRAM SET TYPE USER INCREMENT USER INCREMENT ----------- ---- -------------- -------------- Program Set A Full Use 1 Named User [ * ] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Program Set B Full Use 1 Named User [ * ] Program Set C Deployment 1 Named User [ * ] Program Set D Full Use 1 Concurrent User [ * ] Program Set E Deployment 1 Concurrent User [ * ] Program Set F Full Use 1 Concurrent User [ * ] Program Set G Full Use 1 Named User [ * ] Program Set H Full Use 1 Named User [ * ] Program Set I Full Use 1 Named User [ * ] For each order, applicable sales tax will be added to the Additional Fee. All applicable fees shall be due and payable on the date that Client notifies Oracle in writing of its exercise of this option. Upon election, this payment obligation is noncancelable, and the sum paid is nonrefundable. At the time of election Client may obtain Technical Support services from Oracle under Oracle's applicable Technical Support fees and policies in effect when such services are ordered. 1.4 USER ADDENDUM TERM The "User Addendum Term" shall be from the Effective Date to May 18, 1996. 1.5 TERRITORY The "Territory" shall be defined as all Client facilities in the United States. 1.6 CLIENT Client represents and warrants that International Billing Services is a division of Client. With respect to the use the Licensed Programs in Program Sets D, E, F, and G under this User Addendum, the term "Client" means International Billing Services. Prior to using the Licensed Programs in Program Sets D, E, F and G International Billing Services must agree in writing with Client to be bound by the terms of this User Addendum and the Agreement. 2. FEES AND PAYMENTS The license fee for this User Addendum shall be [ * ]. This fee does not include fees for Technical Support services which are as specified in Section 6.1. This fee shall be due and payable within thirty (30) days of the Effective Date specified below. This payment obligation is noncancelable and the sum paid is nonrefundable. The pricing specified herein is specific to this User Addendum, and the specified fees may not be reduced by any existing credits or any other discounts. Except as otherwise specified herein, licenses for any additional Users, except as specified under Section 1.3 above, Programs, or Hardware shall be at terms and fees as determined when the additional licenses are acquired. Applicable sales tax shall be charged to Client based on the point of delivery of the master copy and paid under the terms of the Agreement. Client is responsible for payment of any use or other tax arising from use of the Licensed Programs in any other location. Client agrees to pay applicable media and shipping charges. As specified in the Assignment attached hereto as Exhibit A, SQL*Integrators has assigned and transferred the Program licenses granted under the Customer Support Identification (CSI) numbers specified in such Exhibit to Client. Further, SQL*Integrators has previously sublicensed to Client the Program licenses granted under the CSI numbers specified in Exhibit B under its Systems Integrator Agreement with Oracle, dated November 17, 1992. As of the Effective Date of this User Addendum and in consideration for the rights granted under this User Addendum, Client agrees that the Program licenses granted under the specified CSI numbers acquired under the Assignment Form are hereby terminated, and agrees to terminate the Sublicense of the Programs granted under the *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. specified CSI numbers identified on Exhibit B which were sublicensed to Client by SQL*Integrators. 3. LICENSE GRANT In consideration for the payment specified in Section 2 above, Oracle grants to Client a non-exclusive, non-transferable license to use the Licensed Programs on the applicable Hardware in the Territory under the terms of the Agreement, for up to the maximum number of Users specified above. 4. DELIVERY AND INSTALLATION Oracle shall deliver to Client one (1) copy of the software media and five (5) sets of documentation ("master copy") for each Licensed Program in the applicable Program Sets to the addresses set forth below (the "Client Locations"). PROGRAMS SET CLIENT LOCATIONS ------------ ---------------- Program Sets A, B, C, H and I U.S. Computer Services 11020 Sun Center Drive, Rancho Cordova, CA 95670 Program Sets D, E, F and G International Billing Services 5220 Robert J. Matthews Parkway, El Dorado Hills, CA 95762 Client shall be responsible for copying the software media and installing the Licensed Programs. Unless otherwise specified herein, Client shall acquire no right to copy documentation. The Acceptance Period for each of the Licensed Programs shall commence on delivery of the master copy of the Licensed Programs, and all subsequent copies shall be deemed accepted upon acceptance of the master copy. The number, location, and identification of Computers in the Territory, the licensed number of Users on each Computer, and the configuration of the Licensed Programs on each Computer shall be fixed as of the expiration of the User Addendum Term. Upon fixing of the Licensed Programs on the Computers, the Program licenses shall be perpetual subject to the terms of the Agreement. Thereafter, unless this User Addendum is extended or modified, Program licenses for use on additional Computers or licenses for additional Users shall be acquired separately. 5. REPORTING Beginning one hundred eighty (180) days after the Effective Date, Client shall notify Oracle semi-annually in writing of: (i) the location, models, and serial numbers of all Computers on which the Licensed Programs are installed; (ii) the configuration of the Licensed Programs on each Computer; and (iii) the number of Users on each Computer. When reporting, ordering or communicating with Oracle under this User Addendum, Client shall reference: (a) this User Addendum (include Effective Date); and (b) the Effective Date of the Agreement. 6. TECHNICAL SUPPORT 6.1 Until May 18, 1997, Client shall receive annual Standard Technical Support services for all Programs licensed in the U.S. under this User Addendum, except as otherwise provided herein, for a total fee of four hundred seventy-eight thousand two hundred twenty-nine dollars ($478,229) payable in advance in annual installments as specified below. Thereafter, Client may obtain annual Technical Support services from Oracle under Oracle's Technical Support fees and policies in effect when such services are ordered. A description of Oracle's Technical Support services is listed in Exhibit C. SUPPORT YEAR TECHNICAL SUPPORT FEE ------------ --------------------- First Year [ * ] Second Year [ * ] Third Year [ * ] 6.2 Client shall designate and provide to Oracle the name of one (1) Client employee per Client Location who shall serve as on-site technical contacts ("Technical Contacts") to act as the sole liaisons between Client and Oracle for the Technical Support services provided under this User Addendum. Client shall also provide the names of two (2) employees who shall serve as backups to the Technical Contacts. Client shall notify Oracle whenever the designated Technical Contacts responsibilities are transferred to another employee. For any Technical Support updates to the applicable Licensed Programs provided during the User Addendum Term, Oracle shall ship to the Client Locations specified above one (1) Technical Support update copy for each Hardware type. Client shall be responsible for copying and installing the updates on the Computers for which the Licensed Programs are licensed. 7. VERIFICATION Oracle may, at its expense, audit Client's use of the Licensed Programs. Any such audit shall be conducted during regular business hours at Client's facilities and shall not interfere unreasonably with Client's business activities. If an audit reveals that Client has underpaid fees to Oracle, Client shall be invoiced for such underpaid fees based on the Price List in effect when the audit is completed; if the underpaid fees exceed five percent (5%) of the license fees paid, then Client shall also pay Oracle's reasonable costs of conducting the audit. Audits shall be conducted no more than once annually. 8. EDUCATION In consideration of the payment of the fees set forth in Section 2, Client shall receive ten (10) Oracle standard Training Units which are valid for one (1) year from the Effective Date of this User Addendum. Each Training Unit may be used to acquire one (1) day of instruction for one (1) Client employee at an Oracle Education Center in the U.S., exclusive of expenses. 9. CONSULTING In consideration for the payment of the fees set forth in Section 2, Client shall receive two (2) days of consulting services to be performed during the User Addendum Term by a staff level member of Oracle's Consulting organization. Client shall reimburse Oracle for any reasonable travel and out-of-pocket expenses. Client understands that it has the right to acquire and use the Program licenses acquired hereunder or under the User Addendum without acquiring any consulting services, and that Client has the right to acquire the Program licenses and the consulting services separately at the fees stated in the User Addendum. 10. CONFIDENTIALITY Client and Oracle agree that the pricing and terms of this User Addendum shall not be disclosed without the prior written consent of the other party. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 11. ASSIGNMENT The rights granted under this User Addendum may not be assigned or transferred to any third party without the express written consent of Oracle Corporation. The Effective Date of this User Addendum is May 18, 1994. U. S. COMPUTER SERVICES ORACLE CORPORATION By: /s/Arthur O. Hawkins By: /s/Robert Hughes -------------------- -------------------- Name: Arthur O. Hawkins Name: Robert Hughes ------------------ ------------------ Title: V.P. & C.F.O. Title: SENIOR DIRECTOR, USA REVENUE ----------------- ---------------------------- EXHIBIT A ASSIGNMENT SQL*Integrators ("Assignor") hereby assigns to U.S. Computer Services ("Assignee") all its right, title and interest to the Program licenses granted under Customer Support Identification (CSI) numbers 616666, 616668, 521358, 590121, 589669, 589672, 589670, 521739 which were licensed under the Preferred Systems Integrator Agreement dated November 11, 1992, and any amendments and addenda thereto (the "Agreement") between Assignor and Oracle Corporation ("Oracle"). Date: 5/19/94 SQL*INTEGRATORS ------- By: /s/John Zalud ------------------------------------ Name: John Zalud ---------------------------------- Title: President --------------------------------- ACCEPTANCE OF ASSIGNMENT Assignee hereby accepts the foregoing assignment and agrees to perform all duties and obligations to be performed by Assignor with respect to the applicable Programs under the above-mentioned Agreement to the same extent as if it had been an original party thereto. Date: 5/18/94 U.S. COMPUTER SERVICES ------- By: /s/Arthur C. Hawkins ------------------------------------ Name: Arthur C. Hawkins ---------------------------------- Title: V.P. & C.F.O. --------------------------------- CERTIFICATION OF NONPOSSESSION Assignor hereby certifies that upon execution of the above-mentioned assignment, it will discontinue use of all of the Program licenses granted under the above CSI numbers, and that all copies of such programs will be erased from Assignor's computer, whether partial or complete and whether or not merged with other programs. All documentation and other materials received from Oracle will be immediately transferred to Assignee. Date: 5/19/94 SQL*INTEGRATORS ------- By: /s/John Zalud ------------------------------------ Name: John Zalud ---------------------------------- Title: President --------------------------------- CONSENT TO ASSIGNMENT Subject to the terms and conditions of the above-mentioned Assignment, Acceptance of Assignment and Certification of Nonpossession, Oracle hereby consents to the foregoing assignment. Date: 5/25/94 ORACLE CORPORATION ------- By: /s/Robert Hughes ------------------------------------ Name: Robert Hughes ---------------------------------- Title: Senior Director, USA REVENUE --------------------------------- EXHIBIT B SUBLICENSE PROGRAMS PROGRAMS SUBLICENSED TO CLIENT BY SQL*INTEGRATORS AND GRANTED UNDER THE FOLLOWING CUSTOMER SUPPORT IDENTIFICATION (CSI) NUMBERS: CSIs: 522634, 521539, 513070 Exhibit C ORACLE TECHNICAL SUPPORT SERVICES TECHNICAL SUPPORT FEES Technical Support fees are calculated based on a percentage of the non- discounted, then-current license fees for the supported products and such fees are due and payable in advance of the term of Support. REINSTATEMENT FEES In the event Technical Support services lapse or were never originally procured, a reinstatement fee shall be assessed upon startup of Technical Support. MINI/MAINFRAME SUPPORT AND FEES New Oracle Customer Care Packages: ORACLE BRONZE SUPPORT Oracle Bronze Support includes: - - Real Time Telephone Technical Assistance - 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday - Problem solving, bug reporting, documentation clarification, technical guidance - - Program updates - Patches and fixes - General maintenance releases - Documentation updates - - Real Time Support System (RTSS) dial-in access - - Quarterly newsletter - - Mail server access - Read/Write access to RTSS via Electronic Mail over the Internet - Technical Assistance Requests can be opened, closed or updated - General Communication with Oracle Worldwide Support - - Oracle Electronic Support--Read/Write access to Oracle's private Support Forum on CompuServe** ** CLIENTS WILL NEED TO REGISTER WITH COMPUSERVE TO OBTAIN COMPUSERVE ACCESS. THIS SERVICE WILL BE OFFERED IN THE UNITED STATES ONLY. ORACLE SILVER SUPPORT Oracle Silver Support includes Oracle Bronze Support plus the following: - - Real Time Telephone Technical Assistance - Toll-free 800 number - 24 hours a day/7 days a week - - SupportNotes-TM- - Oracle Book based technical information repository - - Management reports - Faxed upon request - - Proactive Alerts - Contain known problem and problem resolution information - Proactively faxed as applicable ORACLE GOLD SUPPORT Oracle Gold Support (for which a minimum fee applies) includes Oracle Silver Support plus the following: - - Priority Processing - Priority Processing over Silver, Bronze, Standard and Extended support tiers - - Personal Support Team - Designated Support Team located within Oracle Worldwide Support - Monitor Client call/TAR activity The following Basic, Standard, and Extended Support packages are expected to be phased out in calendar year 1995: BASIC ANNUAL SUPPORT Basic Annual Support includes: - - Telephone Technical Assistance - 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday - Problem solving, bug reporting, documentation clarification, technical guidance - - Program updates and associated documentation - - Real Time Support System (RTSS) dial-in access - Log/Update/Review TARs - Review Bugs - Access the Support Bulletin Board - - Quarterly newsletter STANDARD SUPPORT Standard Support includes Basic Support plus the following: - - Telephone Technical Assistance - 24 hours a day/7 days a week EXTENDED SUPPORT Extended Support includes Standard Support plus the following: - - Toll-free 800 number DESKTOP SUPPORT AND FEES Each Desktop Program License entitles Clients to thirty (30) days of telephone installation support. Clients may also purchase Technical Support services for Desktop Program Licenses. DESKTOP BASIC ANNUAL SUPPORT Desktop Basic Annual Support includes: - - Telephone Technical Assistance - 5:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday - Problem solving, bug reporting, documentation clarification, technical guidance - - Program updates and associated documentation - - Real Time Support System (RTSS) dial-in access - Log/Update/Review TARs - Review Bugs - Access the Support Bulletin Board - - Quarterly newsletter DESKTOP UPDATES Desktop Updates include only: - - Program updates and associated documentation INFORMATION CLIENTS NEED WHEN CALLING SUPPORT Before Support can begin work on any problem, information about the nature and location of the problem is required. Whenever a call is placed to the hotline, the following information should be provided: - - The Customer Support Identification (CSI) number or PC registration number - - The area code and phone number listed under the CSI number - - Operating system and version on which Oracle Programs are installed - - The Oracle product component and its version number that this call concerns. Support questions involve product components -- that is, constituent parts of an Oracle product. For example, with the ORACLE kernel, Client receives components such as RDBMS, IMP, EXP and SQL*Loader. SQL*Forms Subject to Change components include IAD (design) and IAP (Runtime). - - The relevant Program version(s) - - Any Program error number that appeared - - Brief description of the problem - - Severity of the problem. Oracle Worldwide Support classifies problems according to how they impact the Client's business. See list below for explanation of Technical Assistance Request (TAR) Severity Levels. TECHNICAL ASSISTANCE REQUEST (TAR) SEVERITY LEVELS The chart below lists standard Technical Assistance Request Severity Levels. Oracle Worldwide Customer Support responds to TARs based on Severity Level. SEVERITY LEVEL SEVERITY 1 CRITICAL BUSINESS IMPACT Customer's work, regardless of the environment or product usage, is stopped or so severely impacted that the customer cannot reasonably continue to work. SEVERITY 2 SEVERE BUSINESS IMPACT Customer's work is continuing (not stopped) however there is a serious impact on the customer's productivity and/or service levels. SEVERITY 3 MINOR BUSINESS IMPACT Customer is in full working mode - there is no work being impeded at the time - information or solutions are requested by the customer as soon as possible in order to maintain this condition. SEVERITY 4 NO BUSINESS IMPACT Customer is in full working mode - there is no work being impeded at the time - information is requested but has no impact on the operation of the products. TARS are logged and tracked in Support's Real Time Support System (RTSS). Response will be given to the Client by telephone and logged directly into the RTSS problem-tracking system. The Client may dial-in to RTSS to track the progress of their TAR at any time. Support's response may include a written response, patch tape, supplementary documentation, a temporary means of circumventing the problem pending a new release, or other correctional aids. CUSTOMER SUPPORT IDENTIFICATION (CSI) NUMBER Clients shall receive a CSI Number upon purchasing Oracle Technical Support services. The CSI number identifies the Client with respect to the following information: - - Company Name and Address - - Product Set and Version - - Support Level and Duration - - Operating System - - Technical Contact Information Worldwide Customer Support uses the CSI number to identify the Client's Support contract when a Client calls the Support Hotline or dials-in to RTSS. Desktop Program Clients are assigned a PC Registration Number with the original shipment of the Program. The PC Registration entitles the Client to thirty (30) days of free installation support. CSI Numbers appear as follows: - - On the packing slip located outside the shipping container - - On the packing slip located inside the shipping container - - On the order information/CSI postcard distributed by USA Client Relations - - In the Welcome Package distributed by Worldwide Customer Support Subject to Change - - On the invoice - - On the Worldwide Customer Support Welcome Letter TECHNICAL SUPPORT LIAISON ("TECHNICAL CONTACT") Clients shall designate one (1) primary and two (2) backup Client employees ("Technical Contacts") to serve as liaisons with Oracle Worldwide Customer Support. The designated "Technical Contact" is the sole liaison between technical support and Clients for all product support and shall be based on the Client site. Client may elect to add Technical Contacts for an additional fee. To receive uninterrupted Technical Support service, Clients must notify Client Relations at (415) 506-1500, option 9, whenever Technical Contact responsibilities are transferred to another individual. UPDATES Updates shall mean subsequent releases of the programs which are generally made available for Program Licenses covered under Oracle technical support at no additional charge, other than media and handling charges. Updates do not include any options or future products which Oracle licenses separately. TERMS OF SUPPORT Oracle Worldwide Customer Support's technical assistance is limited to licenses which are fully supported and to problems which are demonstrable in the current release of the licensed program, running unaltered on the proper hardware configuration. Current release information is posted on-line in RTSS. Technical Support for older versions of Oracle products or for non-Oracle products is subject to additional fees. TERMINATION Client may terminate technical support at any time by notifying Oracle in writing at least thirty (30) days before the desired date of termination. Technical Support shall be terminated upon receipt of such notice. On termination, Oracle shall refund the unused portion of technical support fees paid by the Client for the licenses for the allocable period for which technical support is terminated. PHONE NUMBERS AND ADDRESS INFORMATION CUSTOMER SUPPORT HOTLINE (FOR TECHNICAL SUPPORT, NON-TECHNICAL SUPPORT, AND SUPPORT SALES INFORMATION) 415-506-1500 TECHNICAL SUPPORT DIAL-IN NUMBER RTSS Dial-in 415-598-9350 TECHNICAL SUPPORT ADDRESS Oracle Worldwide Technical Support 500 Oracle Parkway Box 659313 Redwood Shores, CA 94065 Subject to Change EX-10.31 11 EXHIBIT 10.31 EXHIBIT 10.31 STATEMENT PRODUCTION SERVICES AGREEMENT between U. S. COMPUTER SERVICES 2969 PROSPECT PARK DRIVE RANCHO CORDOVA, CALIFORNIA 95670 and CINCINNATI BELL INFORMATION SYSTEMS INC. 600 VINE STREET CINCINNATI, OHIO 45202 U. S. Computer Services (hereinafter called "USCS"), a California corporation, agrees to provide Cincinnati Bell Information Systems Inc. (hereinafter called "CBIS") and CBIS agrees to purchase Statement Production Services described in Attachments A and B (hereinafter collectively called "Services") subject to the following terms and conditions: 1. TERM OF AGREEMENT 1.1 The term of this Agreement shall be [*]. This agreement shall be automatically renewed for [*] periods thereafter unless either party hereto provides to the other written notice of intent not to renew at least ninety (90) days prior to the expiration date of the original term or succeeding terms, if any. 1.2 Testing of the systems necessary to provide Statement Production Services as set forth in Paragraph 5 of this Agreement will occur as mutually agreed. This will include exercising all aspects of the services package provided for in this Agreement, and may include live statement runs. For those instances in which live statement runs (resulting in statements being mailed by USCS for CBIS) occur prior to the commencement date of this Agreement, the parties shall be bound by the terms and conditions of this Agreement as to such statements. 1.3 During the time of the initial conversion of systems on CBIS (at the time of the signing of this contract) to the USCS bill production system neither the custom programming charges nor the timetable in paragraph 1.4 *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 1 - shall be applicable. USCS and CBIS will mutually agree upon the initial conversion schedule. CBIS will provide USCS with camera-ready art and specifications for forms and envelopes along with print files that match the forms and envelopes. 1.4 USCS and CBIS will mutually agree on statement format, envelope format, print file format, tape format, Transmit 56 protocol (if applicable), and statement cutoff dates. Once the above information is agreed upon, CBIS will provide written notification for any changes or new CBIS customer according to the following schedule: Forms Printing [*] Envelope Printing [*] Insert ("Stuffer") Printing [*] Electronic Forms [*] Print File Format [*] Tape Format [*] Transmit 56 Protocol [*] Statement Cutoff Dates [*] Inserting Plan Setup [*] Certain changes may involve custom programming charges which will be quoted in advance. Changes involving a change in paper and/or envelope stock which result in unused inventory of such stock are subject to an unused stock fee as described in Paragraph 7.5. 2. NATURE OF RELATIONSHIP 2.1 CBIS is currently a vendor to the U.S. cellular industry offering products and services that include MIS packages and bill production. Under this Agreement, USCS would become a vendor to CBIS for [*]. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 2 - [*] 2.4 USCS does intend to have a marketing presence in the cellular industry. This would include but not be limited to participation in industry trade shows, advertising in industry trade publications, sales calls, and other direct marketing efforts. [*] [*] 2.7 USCS and CBIS agree that the further intent in this developing relationship is to pursue other opportunities in the areas of domestic and international cellular, international bill production, domestic BOC bill production, and other areas as might be deemed mutually appropriate. 3. DELIVERY OF MATERIAL AND DATA FOR PROCESSING 3.1 Delivery of the print file to the USCS statement production facility will be by high speed data line (Transmit 56). [*] USCS and CBIS shall each share operational responsibility for this data transmission. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 3 - 3.2 CBIS may, at its option, ship or transmit system data before a final accuracy check has been made. In such case, USCS will hold the cutoff in abeyance until a written release by facsimile has been issued by CBIS. Should new system data be necessary, CBIS will be responsible for all costs associated with delivering or transmitting the new print file to USCS. Should a release be issued that is later rescinded, CBIS shall reimburse USCS for work performed at USCS standard rates including, but not limited to, data transmission, printing, inserting, postal presorting, and postage. This reimbursement shall be limited to work performed after the release and before the rescission. Should CBIS' statements already have been released to the U.S. Postal system after the rescission is issued, USCS shall incur no liability for incorrect statements. 4. CBIS DATA 4.1 CBIS will provide USCS a print file of data to be processed by USCS and used to provide Statement Production Services. This print file will be in the format mutually agreed to by USCS and CBIS. 4.2 USCS requires [*] for purposes of internal control and postal presort. This requirement may increase as postal regulations change. 5. STATEMENT PRODUCTION SERVICES 5.1 Attachment A describes the components of USCS Statement Production Services. 6. NORMAL TIME FOR PROCESSING [*] 6.2 Should CBIS, after the transmission and release of data, request USCS to place a hold on statement production, the turnaround time shall be extended by the time of the hold. Likewise, should a hold on statement production be necessary due to submission by CBIS of changes to print file format, tape format, forms, envelopes, *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 4 - inserts, Transmit 56 protocol or statement cutoff dates later than the limits outlined in Paragraph 1.3, the turnaround time shall be extended by the time of the hold. [*] 7. PRICE [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 6 - 8. PAYMENT FOR SERVICES 8.1 USCS shall invoice CBIS monthly for Services. Standard payment terms are [*]. In the event that CBIS does not render full payment within sixty (60) days of the date payable, USCS may, after notifying CBIS, cease any and all Services until such account is brought current. 8.2 CBIS agrees to prepay the postage expense for mailing statements. CBIS agrees to set up a postage deposit account with USCS. [*] In the event CBIS does not prepay postage, as set forth above, USCS reserves the right to hold statements until sufficient funds are received. 8.3 In the event of an increase in postage rates, the postage expense for mailing statements by USCS shall be increased by the amount of USCS' actual cost of such increase. [*] 8.5 CBIS will pay directly, or reimburse USCS for, all taxes and charges imposed on any interest in or use of any Services, supply, or upon this Agreement, excluding, however, all taxes on or measured by USCS' income. 8.6 If CBIS fails to pay any charges when due and payable, CBIS agrees that CBIS will pay a late payment service charge of [*] per month, but not in excess of the lawful maximum, on the past due balance. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 7 - 9. STANDARDS OF WORK 9.1 USCS warrants that the performance of work and Services provided to CBIS under this Agreement shall be in conformance with the requirements of this Agreement and with industry standards. 10. PROPRIETARY INFORMATION AND DISCLOSURE 10.1 USCS agrees that all information disclosed by CBIS during performance of this Agreement shall be considered proprietary, be held in confidence and used only in performance of this Agreement. No information provided by CBIS under this Agreement shall be duplicated or furnished to another party without prior written consent of CBIS. USCS will exercise the same standard or care to protect CBIS' proprietary data as is used to protect its own proprietary data from unauthorized disclosure. 10.2 In a like manner, CBIS understands the proprietary nature of the system designed and developed solely by USCS, and CBIS will exercise similar care to prevent unauthorized disclosure of any information that could be injurious to the business operations and welfare of USCS. 10.3 The obligations in this Section 10 shall survive the termination of this Agreement for a five (5) year period. 11. LIMITATION OF REMEDY 11.1 USCS' liability for loss of any CBIS data or materials shall be limited to the replacement or regeneration of the lost items by the method or means deemed most reasonable by USCS. 11.2 Neither USCS nor CBIS shall be considered in default due to any failure in performance of this Agreement, in accordance with its terms, should such failure arise out of causes beyond its control and without its fault or negligence. 11.3 In the event of an error or omission, whether human or mechanical, on the part of USCS or its employees, USCS may elect to reprocess the work at no extra cost to CBIS to correct said error or omission. USCS shall indemnify and hold CBIS harmless from and against any claims initiated against CBIS by third parties arising from the procedural errors or omissions by USCS. USCS' liability to CBIS for any losses or damages, direct or indirect, arising out of this Agreement shall not exceed the total - 8 - amount billed or billable to CBIS for the performance which gave rise to the loss or damage. USCS shall not be liable for any special or consequential damages in any event. 12. INSPECTIONS 12.1 It is understood that CBIS may inspect all work being performed under this Agreement to the extent practical at all reasonable times and places. However, it is also understood that such inspections by CBIS shall not be performed in any way that shall unduly delay the work being performed. Reasonable facilities and assistance shall be provided for CBIS' inspection if any inspection is made by CBIS on the premises of USCS. Such facilities and assistance shall be provided without extra charge. However, should CBIS perform inspection at a place other than the premises of USCS, it shall be at the expense of CBIS. 13. MISCELLANEOUS 13.1 ATTORNEYS' FEES. The parties agree that in the event it is necessary to employ attorneys to enforce the terms of this Agreement, the prevailing party in any lawsuit shall be entitled to an award of reasonable attorneys' fees and court costs. 13.2 ASSIGNMENT. This Agreement may not be assigned by either party without prior written consent of the other party. This agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors and permitted assigns. 13.3 AMENDMENT. This Agreement may be amended only by an instrument in writing, executed by CBIS and USCS. 13.4 GOVERNING LAW. This Agreement will be governed in all respects by the laws of the State of California. 13.5 ENTIRE AGREEMENT. This Agreement and Attachments represent the entire agreement between the parties and supersede and replace all prior oral and written proposals, communications, and agreements with regard to the subject matter hereof between CBIS and USCS. 13.6 PLANT RULES AND SECURITY REQUIREMENTS. The employees and agents of each party shall, while on the premises of the other, comply with all plant rules and regulations in effect at such premises, including security requirements. 13.7 PUBLICITY. The parties shall not, without prior written - 9 - permission from the other party, issue or release for publication any articles or advertising or publicity matter relating to the work performed hereunder or the existence of this Agreement. 13.8 INFRINGEMENT. The following terms apply to any infringement, or claims of infringement, of any patent, trademark, copyright, trade secret or other proprietary interest based on the manufacture, normal use or sale of any material, equipment, programs or services furnished by USCS to CBIS hereunder or in contemplation hereof. USCS shall indemnify CBIS and its subsidiaries, jointly and severally, for any loss, damage, expense or liability that may result by reason of any such infringement. USCS shall defend or settle, at USCS' own expense, any action or suit for which USCS is responsible hereunder. CBIS shall notify USCS promptly of any claim of infringement for which USCS is responsible, and shall cooperate with USCS in every reasonable way to facilitate the defense of any such claim. 13.9 LIABILITY. Neither USCS nor its subcontractors nor the employees or agents of any of them, shall be deemed to be employees or agents of CBIS, it being understood that USCS is an independent contractor for all purposes and at all times; and USCS shall be solely responsible for the withholding or payment of all federal, state and local personal income taxes, social security, unemployment and sickness disability insurance and other payroll taxes with respect to its employees, including contributions from them when and as required by law. [*] 13.11 SECTION HEADINGS. The headings of the several Sections are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. 13.12 WAIVER. No provision of this Agreement shall be deemed waived, amended, or modified by either party, unless such waiver, amendment or modification be in writing and signed by the party against whom it is sought to enforce the waiver, amendment or modification. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 10 - 13.13 SEVERABILITY. If any provision, or portion thereof of this Agreement, is deemed to be invalid under any applicable statute or rule of law, it is only to that extent to be deemed omitted. 14. TERMINATION 14.1 BREACH. Either party shall have the right to terminate the Agreement if the other fails to substantially comply with any of its material obligations under the Agreement. Should either party elect to exercise this right to terminate for breach, it must be done in writing specifically setting forth the claimed breach. The other party shall then have thirty (30) days from receipt of notification to remedy the breach. If such party corrects the breach within this period, then the Agreement shall not be terminated pursuant to this provision. Should such party fail to correct the breach within the period, then the party claiming breach shall have the right to terminate the Agreement forthwith. In the event that this Agreement is terminated due to a breach by USCS, the provisions of paragraph 2.5 shall survive such termination for a period of three (3) years. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 9th day of October, 1990. CINCINNATI BELL INFORMATION SYSTEMS, INC. U.S. COMPUTER SERVICES By: /s/ Rudolph J. Frank By: /s/ Raymond W. Matteson --------------------- ------------------------ Rudolph J. Frank Raymond W. Matteson President Vice President Communications Systems Group Business Development Date: October 9, 1990 Date: October 9, 1990 ---------------------- ------------------------- - 11 - ATTACHMENT A SPECIFICATIONS FOR FORMS AND ENVELOPES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 12 - ATTACHMENT A DESCRIPTION OF SERVICES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 13 - ATTACHMENT A DESCRIPTION OF SERVICES CON'T [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 14 - USCS/International Billing Services RATE SHEET CBIS ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 1 USCS/International Billing Services RATE SHEET CBIS ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 2 USCS/International Billing Services RATE SHEET CBIS ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 3 USCS/International Billing Services RATE SHEET CBIS ATTACHMENT B [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 4 ATTACHMENT C [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -14- INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 1 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 2 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 3 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 4 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 5 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 6 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 7 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 8 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 9 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 10 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 11 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 12 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 13 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 14 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 15 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 16 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 17 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 18 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 19 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 20 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 21 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 22 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 23 INTERNATIONAL BILLING SERVICES CBIS PRESENTATION OF RATES [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 24 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 1 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 2 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 3 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 4 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 5 INTERNATIONAL BILLING SERVICES CBIS REMINDERS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 6 EXHIBIT 10-31E ATTACHMENT "D" TO STATEMENT PRODUCTION SERVICES AGREEMENT 1. Section 6.1 is amended by inserting the words, "... for each category comprised of regular statements and reminder or treatment notices." at the end of the first sentence thereof. 2. Section 6.1 is amended by adding the following at the end thereof: [*] 3. Section 7.3 is amended by adding the following: [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 4. Section 13.4 is amended by the following: "The parties agree that the forum for any suit or action under this Agreement shall be the State or Federal Courts sitting in Cincinnati, Ohio." CINCINNATI BELL INFORMATION U.S. COMPUTER SERVICES SYSTEMS INC. /s/ Rudolph J. Frank /s/ Raymond W. Matteson ---------------------------- ----------------------- Rudolph J. Frank Raymond W. Matteson President Vice President Communications Systems Group Business Development Oct. 9, 1990 October 9, 1990 ---------------------------- ------------------------- Date Date FIRST ADDENDUM TO STATEMENT PRODUCTION SERVICES AGREEMENT INTRODUCTION: On October 9, 1990, U.S. COMPUTER SERVICES (USCS) and CINCINNATI BELL INFORMATION SERVICES (CBIS) entered into a Statement Production Services Agreement (the "Agreement"). Subsequent to entering into the Agreement, CBIS requested USCS to change certain forms and envelope pricing under the Agreement. USCS was willing to make such changes based on minimum quantities and provided that CBIS made certain commitments. This Addendum is the result of negotiations on these issues. Wherever language contained in this Addendum conflicts with the terms of the Agreement, the language contained in this First Addendum shall control. The parties agree as follows: 1. DEFINITIONS AND SPECIFICATIONS. The "Replacement Attachment A" attached to this Addendum replaces Attachment A of the Agreement. The specifications set forth in Replacement Attachment A meet or exceed in all instances the specifications in the CBIS Request for Proposal (RFP) dated October 25, 1990. 2. TERMINATION OF PRIOR FORMS/ENVELOPE PRICING. For the term of this Addendum, the parties hereby delete the prices in Items II, IV, V, VI and XIII in Attachment B of the Agreement and Paragraph 7.5 of the Agreement. 3. NEW FORMS/ENVELOPE PRICING. Forms and envelope prices will be: a. FORMS: [*] per thousand;[*] b. SEND ENVELOPE: [*] per thousand in minimum Gang Run of [*] includes 2 color preprinting c. RETURN ENVELOPE: [*] per thousand in minimum Gang Run of [*] includes 1 color preprinting d. 9 X 12 FLAT ENVELOPE: [*] per thousand in minimum Gang Run of [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 1 - e. ENVELOPE MODIFICATIONS: Additional colors Add [*] per color per thousand; Minimum Job Run of [*] or [*] Set-Up Fee; total colors per envelope limited to 3 outside and 1 inside Inside Privacy Add [*] per thousand; Minimum Job Run of [*] or [*] Set-Up Fee Glassine Add [*] per thousand; Minimum Job Run of [*] or [*] Set-up Fee Move window [*] charge per thousand; Minimum Job Run of [*] or [*] Set-Up Fee. All window locations specified by CBIS must meet U.S. Postal Service requirements and USCS' manufacturing and inserting requirements. Peel & Seal flap Add [*] per thousand; available for 9 X 12 Flat Envelope only "Gang Run" means press run(s) which are (a) ordered at the same time and (b) involve forms or envelopes of the same size, paper weight, paper quality, and method of construction. "Job Run" means a portion of a Gang Run in which all print parameters and window parameters are identical, including (but not limited to) color, one- or two-side printing, print location(s) on the envelope, window placement, window numbers, window material etc. 4. INVENTORY MANAGEMENT FEE. USCS will charge and CBIS agrees to pay an inventory management fee of [*] per one thousand Forms/Envelopes. Said fee shall be assessed based on the number of Forms/Envelopes purchased by CBIS from USCS or handled by USCS but provided from other vendors of CBIS customers' choice. The foregoing notwithstanding, the parties agree that USCS shall waive such fee for forms and envelopes during the interim conversion period until [*] for forms and envelopes existing in CBIS inventory as of [*] (new orders for forms and envelopes placed after *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 2 - [*] during the interim conversion period shall be subject to this inventory management fee). The inventory management fee shall be invoiced when forms/envelopes are ordered from USCS or received by USCS from other vendors, as relevant. 5. FORMS/ENVELOPES PURCHASING PROCESS. a. In order to be eligible for the prices in Paragraph 2, CBIS must place firm orders once for each calendar quarter in the following minimum amounts: (1) FORMS: [*] million per quarter (2) SEND ENVELOPES: Minimum Gang Run of [*] per quarter (3) RETURN ENVELOPE: Minimum Gang Run of [*] per quarter (4) 9 X 12 FLAT ENVELOPE: Minimum Gang Run of [*] per quarter b. CBIS must place firm orders once each quarter conforming to the following schedule: Order Date For forms/envelopes to be used in-- ---------- ----------------------------------- December 1 January, February, March March 1 April, May, June June 1 July, August, September September 1 October, November, December To the extent that forms/envelopes are changed or established for new CBIS customers, the written notification to USCS must also comply with the time frames in Paragraph 1.4 of the Agreement. c. USCS waives the minimum purchase requirements of Paragraph 5a until [*]. d. CBIS agrees that orders for systems with less than [*] subscriber statements per month shall be placed once per year rather than once per quarter. Yearly orders may be placed on any of the Order Dates referenced in b above. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 3 - e. Quarterly and yearly orders will be invoiced by USCS to CBIS approximately ten to fifteen days after the order is received. Payment in full is due within 30 days of the invoice date. f. To the extent that any CBIS Customer needs additional forms or envelopes outside of the quarterly or yearly amounts ordered by CBIS for whatever reason (including, but not limited to, those needed because of new systems converted to USCS, changes in design or under-ordering by CBIS), then such additional forms and envelopes shall be supplied by USCS to CBIS on a mutually agreed as-quoted basis. g. If changes in design by CBIS or CBIS customers after a quarterly or yearly order has been placed results in unusable forms or envelopes in inventory or on order, CBIS shall not be entitled to any credit or any refund of the order or the Inventory Management Fee. 6. PRICING IF MINIMUMS NOT MET. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 4 - [*] 9. CBIS EXCLUSIVITY COMMITMENT; USCS RIGHT TO BID ON CUSTOMER FORMS/ENVELOPES. CBIS agrees that it will not, during the term of the Agreement, directly or indirectly solicit or purchase from another entity any forms or envelopes used for its customers. The parties understand that CBIS's customers may solicit bids from outside vendors for forms and envelopes and CBIS agrees, in good faith and to the extent possible, to urge such customers to allow USCS to take part in the bidding process, either through CBIS under this Agreement or on its own behalf. 10. STORAGE FEES FOR 3RD PARTY FORMS/ENVELOPES. The Parties agree that, Paragraph 2.3 of the Agreement notwithstanding, CBIS customers may have forms and/or envelopes produced by a party or parties other than USCS (hereinafter referred to as "Third Party Forms/Envelopes"), provided that such Third Party Forms/Envelopes meet the specifications set forth in Replacement Attachment A and the terms, conditions and specifications in the CBIS RFP dated October 25, 1990, and further provided that CBIS pays to USCS the Inventory Management fee as set forth in Paragraph 4 of this Addendum. [*] 13. MISCELLANEOUS. Paragraph 3 of Attachment D of the Agreement is hereby deleted. 14. TERM OF ADDENDUM. Paragraphs 4, 7, 9 and 12 of this Addendum shall remain in effect for the term of the Agreement. The term of the remainder of this Addendum shall be from the date of its execution until October 9, 1993. At that time, forms *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. - 5 - and envelope prices, terms, and specifications shall be subject to good faith renegotiation. It is the intent of the parties to have forms and envelopes production included in the Agreement during the entire term of the Agreement. Except as modified herein, all other terms and conditions of the Agreement shall remain in full force and effect unchanged. IN WITNESS WHEREOF, the parties hereto have executed this First Addendum as of the ___________ day of _________________________, 1991. CINCINNATI BELL INFORMATION U.S. COMPUTER SERVICES SYSTEMS, INC. By: /s/ D R Cornely By: /s/ Raymond W. Matteson - --------------------------------- ---------------------------- Daniel R. Cornely Raymond W. Matteson - --------------------------------- ---------------------------- (typed name) (typed name) 7/17/91 7/17/91 - --------------------------------- ---------------------------- (date) (date) - 6 - REPLACEMENT ATTACHMENT A SPECIFICATION FOR FORMS AND ENVELOPES A. "FORMS" means forms for CBIS customer billing statements meeting the following specifications - ------------------------------------------------------------------------------ MINIMUM SATISFACTORY RANGE MAXIMUM Reject Lower Upper Reject Test Names Below: Limit Target Limit Above: - ------------------------------------------------------------------------------ WEIGHT 25X38/500 [*] CALIPER MULLEN TEAR MD TEAR CD SMOOTHNESS FS SMOOTHNESS WS STIFFNESS (TABOR)MD STIFFNESS (TABOR)CD BRIGHTNESS FS OPACITY FOTOSIZE FS POROSITY ASH MOISTURE WAX PICK FS CURL HOT PH ABRASION WS FLUORESCENCE STARCH LB/TON DIRT *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 1 of 5 A. "FORMS" (continued) FINISHED FORM CHARACTERISTICS VALUE OR SPECIFICATION [*] 1. INK a. COLOR [*] b. TYPE [*] i. WEB FED PRESS [*] 2. FLATNESS (2 REAMS) [*] 3. PERFORATION a. LOCATION [*] b. TYPE [*] 4. OFF-SET IMAGE PLACEMENT [*] 5. SHEET SIZE 8 1/2 X 11 [*] 6. PACKAGING a. 500 SHEETS/REAM PACKAGE b. CHIPBOARD TOP AND BOTTOM OF PACKAGE c. LOOSE SHRINK WRAP (NO HEAT) POLYETHYLENE - FULLY SEALED d. 2500 (5 REAMS) PER CARTON TAPED FLAP 7. CURL (IN REAM) [*] 8. PERFORATION LOCATION [*] SPECIFICATIONS 9. COLOR VOLUME IN LASER PRINT AREA [*] B. "SEND ENVELOPE" means an envelope meeting the following specifications: SIZE [*] SEAM [*] PAPER WEIGHT [*] PAPER TYPE [*] PRINT [*] FLAP [*] WINDOW [*] CONSTRUCTION [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 2 of 5 C. "RETURN ENVELOPE" means an envelope meeting the following specifications: Size [*] Seam [*] Paper Weight [*] Paper Type [*] Print [*] Flap [*] Window [*] Construction [*] D. "9 X 12 FLAT ENVELOPE" means an envelope meeting the following specifications: Size [*] Seam [*] Paper Weight [*] Print [*] Flap [*] Window [*] Construction [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 3 of 5 REPLACEMENT ATTACHMENT A DESCRIPTION OF SERVICES BILLING STATEMENT PRODUCTION SERVICES USCS will provide Customer the following services for prices set forth in ATTACHMENT "B": [*] DETAIL OF PRODUCTS FOR ATTACHMENT "B" I. STATEMENT PRINTING PER IMAGE Printing per image. Image is defined as one print cycle where printing may take place on one side of one sheet of paper no greater than 8.5 X 11 in size. Duplex printing, in which an image may be placed on both sides of a piece of paper, thereby using two print cycles, is counted as two (2) images. The imaging price includes inserting the statement and where appropriate collating and folding. II. [deleted] III. ELECTRONIC FORM Forms created and printed by laser. Restrictions apply to usage if form density slows the print process. IV. [deleted] V. [deleted] VI. [deleted] VII. PRE SORTING, PER MAIL PIECE Optimization of each mail piece for maximum postal discount; the level discount is based on the address accuracy and density. VIII. INSERTING, PER PIECE Placement of each piece of paper, with the exception of sheet-fed statement pages, into the sending envelope. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Page 4 of 5 IX. MAILING, PER PIECE Preparation of each mail piece for placement into the US Postal Service mail stream. X. PRIORITY HANDLING, PER PIECE Per piece premium for accelerated average 12 hour turnaround (only available on statements averaging three or less pages). XI. MICROFICHE 14 X 18 frame Microfiche at 48 X magnification. XII. SPECIAL HANDLING One-time fees applicable to special processing required by individual situations. See "RATE SHEET - CBIS" for descriptions and pricing. XIII. [deleted] Page 5 of 5 [LETTERHEAD] October 5, 1993 Mr. Tom Clear Vice President - Wireless Product Management CINCINNATI BELL INFORMATION SYSTEMS, INC. 851 Trafalgar Court Maitland, FL 32751 Dear Mr. Shouse: Re: AMENDMENT TO FORMS AND ENVELOPES ADDENDUM On July 17, 1991, Cincinnati Bell Information Systems, Inc. ("CBIS") and U.S. Computer Services ("USCS") entered into that First Addendum (the "Forms and Envelopes Addendum") to the Statement Production Services Agreement dated October 1, 1990 (the "Agreement"). Under Paragraph 14 of the Forms and Envelopes Addendum, [*] When countersigned by CBIS, this letter will be an amendment to the Forms and Envelopes Addendum. The terms of the amendment are as follows: 1. Paragraph 14 of the Forms and Envelopes Addendum is deleted in its entirety and replaced with the following: "14. TERM OF ADDENDUM. The First Addendum shall remain in effect for the term of the Agreement. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Mr. Tom Clear October 5, 1993 Page 2 2. Paragraph 3a of the Forms and Envelopes Addendum is deleted in its entirety and replaced with the following: "3.a. Forms: [*] 3. Subparagraph entitled "Inside Privacy" of Paragraph 3e (Envelope modifications) of the Forms and Envelopes Addendum is deleted and replaced with the following: "3.e. Envelope modifications ... Inside Privacy [*] 4. Except as modified above, all other terms and conditions of the Forms and Envelopes Addendum remain in force and effect unchanged. If the above conforms with your understanding of our agreement, please execute in the space provided below on both duplicate originals of this letter, retain one original for CBIS' records and return the other duplicate original to USCS for our records. Sincerely, U.S. COMPUTER SERVICES /s/ Sally Shuler Sally Shuler Vice President - Major Accounts MGJ/jhs AGREED AND ACCEPTED this 29 day of November, 1993. Cincinnati Bell Information Systems, Inc. By: Thomas H. Clear ------------------ Mr. Tom Clear Vice President - Wireless Product Management *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EX-10.32 12 EXHIBIT 10.32 EXHIBIT 10.32 Agreement No. 8003 TANDEM ALLIANCE AGREEMENT THIS AGREEMENT is made between TANDEM COMPUTERS INCORPORATED, a Delaware corporation having offices at 19333 Vallco Parkway, Cupertino, California 95014 ("Tandem"), and CableData, Inc., a California corporation and a wholly owned subsidiary of U.S. Computer Services, having offices at 2969 Prospect Park Drive, Rancho Cordova, California 95670, on behalf of itself and its parent, affiliates and subsidiaries ("Alliance Member"). Tandem appoints Alliance Member as a VAR and Software House, on a non-exclusive basis, in accordance with the terms and conditions of this agreement which consists of this signature page and the following initialed Schedules and Exhibits, each of which is incorporated herein by this reference ("Agreement"). SCHEDULES/EXHIBITS: TA-A GENERAL TERMS AND CONDITIONS A1 Export Restricted Countries TA-B VAR TERMS AND CONDITIONS B1 Application Package Description B2 Discounts by Product B3 Mandatory Software Sublicense Terms TA-C PROFESSIONAL SERVICES TERMS AND CONDITIONS TA-E SOFTWARE HOUSE TERMS AND CONDITIONS E1 Prospect Form E2 Notification of Software House Fee Eligibility E3 Software House Fee Payment Approval E4 Application Package Description TA-F SOFTWARE SERVICE PLANS TA-G PRODUCT RENTAL AGREEMENT THE PARTIES HAVE READ THE ENTIRE AGREEMENT, UNDERSTAND THAT THE GENERAL TERMS AND CONDITIONS APPLY FULLY TO ALL SCHEDULES AND EXHIBITS, AND HAVE THE LEGAL AND OTHER AUTHORITY TO EXECUTE AND PERFORM HEREUNDER. CABLEDATA, INC. "Alliance Member" TANDEM COMPUTERS INCORPORATED "Tandem" By: James C. Castle By: John J. Sims -------------------------- -------------------------------- Name: JAMES C. CASTLE Name: JOHN J. SIMS ------------------------ ------------------------------ Title: CHAIRMAN & ceo Title: VICE PRESIDENT ----------------------- ----------------------------- Date: Effective Date: January 1, 1995 ------------------------ -------------------- Agreement # _________ SCHEDULE TA-A GENERAL TERMS AND CONDITIONS 1. DEFINITIONS. "CUSTOMER" means a current or prospective end-user of the Products, excluding any entity that directly or indirectly owns or controls or is owned or controlled by Alliance Member. "HARDWARE" means hardware products sold by Tandem. "PRODUCTS" mean Hardware and Software. "INSOLVENT" means that a party (i) ceases to conduct business in the normal course, (ii) becomes insolvent, (iii) enters into suspension of payments, moratorium, reorganization or bankruptcy, (iv) makes a general assignment for the benefit of creditors, (v) admits in writing its inability to pay debts as they mature, (vi) suffers or permits the appointment of a receiver for its business or assets, or (vii) avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights. "SERVICES" mean any of the Integration Services described in Schedule TA-D or the Custom Services described in Schedule TA-F performed by Alliance Member for a Customer. "SOFTWARE" means software, in object code only, including documentation and related materials, furnished by Tandem under this Agreement, excluding software provided with a shrink-wrap license. As to a shrink wrap license, Alliance Member agrees to be bound by the terms set forth therein, unless it notifies Tandem of any objections and returns the applicable software to Tandem within 10 days of receipt thereof. "SOFTWARE PACKAGE" means any (i) Application Package described in Schedules TA-B or TA-E, (ii) Integrator Software Product described in Schedule TA-D or (iii) Custom or Utilities Package described in Schedule TA-F, which is developed and/or licensed by Alliance Member for use with Products. "TANDEM" means Tandem Computers Incorporated and any wholly owned Tandem subsidiary, except U-B Networks. 2. TERM AND TERMINATION. The Agreement is effective as of January 1, 1995 ("Effective Date") and will continue for an initial term of five (5) years. Any Schedules entered into as part of this Agreement will be coterminous with it regardless of when signed. A party may terminate this Agreement or any Schedule upon notice to the other party if the other party (i) fails to perform any of its obligations under this Agreement for a period of 30 days after receipt of notice of such failure, (ii) undergoes a direct or indirect change in ownership or control existing on the Effective Date and the notified party determines in its sole reasonable discretion that the change may adversely affect its on-going business or (iii) becomes Insolvent. 3. COOPERATION AND IMPLEMENTATION. The parties agree to cooperate in marketing efforts directed towards Customers. Neither party will knowingly contradict the other's technical recommendations to Customers without its prior consent. Upon request, a party will sign any local agreements and take other steps required to implement this Agreement and comply with local law. 4. ALLIANCE MEMBER OBLIGATIONS. Alliance Member will maintain each Software Package to ensure proper operation and performance at the then-current revision level of Tandem's applicable operating system, including revisions resulting from mandatory field change orders for Hardware and periodic updates or releases for Software. Alliance Member will use reasonable efforts to actively market its Software Packages and Services to Customers for use with Products and will install and support Software Packages and provide Services in accordance with its agreements with Customers. Alliance Member will purchase, lease or continuously have access to one or more Tandem computer systems operating at the then-current revision level of the applicable Tandem operating system ("Development System") to be used exclusively by Alliance Member in the country ordered solely in accordance with Tandem's then-current Development System Policy & Guidelines (the "Development System Guidelines"). 5. RELATIONSHIP OF PARTIES. The parties are independent contractors and no other relationship is intended. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor. This Agreement is not exclusive in any respect and either party may enter into similar or other agreements with third parties. 6. NO ENDORSEMENT. NEITHER PARTY WILL HAVE ANY RIGHT OR AUTHORITY TO ACT ON BEHALF OF THE OTHER PARTY NOR WILL EITHER PARTY REPRESENT THAT IT HAS SUCH RIGHT OR AUTHORITY OR THAT THE OTHER PARTY HAS ENDORSED, GUARANTEED OR WARRANTED ITS PRODUCTS, SOFTWARE PACKAGES OR SERVICES. 7. LIMITATION ON LIABILITY. Except for payment obligations, a party will not be liable for any failure or delay in performing an obligation that is due to causes beyond its reasonable control, so long as the party gives prompt notice to the other party and makes all reasonable efforts to perform. IN NO EVENT WILL A PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, LOST PROFIT OR DATA. 8. CONFIDENTIAL INFORMATION. a. Protection of confidential information. Should either party disclose any of its information for any purpose in connection with this Agreement, the party receiving the information shall maintain the information in confidence, shall use at least the same degree of care to maintain the secrecy of the information as it uses in maintaining the secrecy of its own proprietary, confidential and trade secret information, shall always use at least a reasonable degree of care in maintaining the secrecy of the information, shall use the information only for the purpose of performing its obligations under this Agreement unless hereafter agreed in writing by the other party. Neither party shall disclose any such information to any person except those of its employees having a need to know in order to accomplish the sole purpose stated above, and shall require each employee, before he or she receives direct or indirect access to the information, to acknowledge the confidential, proprietary and trade secret nature of the information and to agree to be bound by this Section 8. Each party shall deliver to the other party, in accordance with any request from the other party, all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the other party's confidential information. Schedule TA-A-1 b. Limitation on obligations. Neither party shall have an obligation with respect to any portion of such information which (i) was known to it prior to receipt from the other party, (ii) is lawfully obtained by either party from a third party under no obligation of confidentiality, (iii) is or becomes publicly available other than as a result of any act or failure to act of either party or (iv) is independently developed by the receiving party. c. Included within confidential information. For purposes of this Section 8, confidential information made available to Tandem by Alliance Member may include, without limitation, the Application Packages and all documentation and code relating thereto, and confidential information made available to Alliance Member by Tandem may include without limitation all information relating to the Products. Tandem reserves all proprietary rights in and to all designs, inventions, patents, know-how, techniques, and engineering details and other data pertaining to the Products. Alliance Member reserves as proprietary all rights in and to all copyrights, designs, inventions, patents, know-how, techniques, and engineering details and other data pertaining to the Application Packages. 9. INDEMNIFICATION. Tandem will, with respect to Products, and Alliance Member will, with respect to Software Packages and Services, defend or settle any claim against the other party (i) resulting from the performance or use of Products, Software Packages or Services, and any information the indemnifying party supplies about the same, or (ii) that a Product, Software Package or Service infringes any patent, utility model, industrial design, copyright, trade secret, mask work, trademark or servicemark, provided the other party (a) promptly notifies the indemnifying party in writing of the claim, and (b) cooperates with the indemnifying party in and grants it sole authority to control the defense and any related settlement. The indemnifying party will pay the costs of such defense and settlement and any costs and damages finally awarded against the other party. With respect to Products sold or licensed by Tandem to Alliance Member, if a claim of infringement is made or appears likely to be made, Tandem may procure the right for Alliance Member to continue using the Product, may modify it or may replace it; but, if use of a Product is enjoined by a court or Tandem determines that none of the foregoing alternatives is reasonably available, Tandem will take back the Product and refund its depreciated value. Tandem has no liability for any such claim arising from (i) Tandem's compliance with any designs, specifications or instructions of Alliance Member, (ii) modification of a Product by Alliance Member or a third party, (iii) use of a Product in a way not specified or approved in writing by a Tandem Vice President or higher, or (iv) use of the Product with products not supplied by Tandem. THE ABOVE TERMS STATE THE INDEMNIFIED PARTY'S EXCLUSIVE REMEDY AND THE INDEMNIFYING PARTY'S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT. 10. TRADEMARKS. All trademarks, service marks, trade names, logos or other words or symbols identifying the Products, Services, Software Packages or businesses of either party (the "Marks") will remain the exclusive property of the respective party, whether or not specifically recognized or perfected under local laws. Neither party will acquire any right, or take any action that jeopardizes the proprietary rights in the Marks of the other party, except the right to use such Marks during the term of this Agreement to advertise and promote Products, Services and Software Packages in accordance with this Agreement. All advertisements and promotional materials will (i) clearly identify the respective party as the owner of its Marks, (ii) conform to the respective party's then-current trademark or logotype guidelines, and (iii) otherwise comply with any local notice or marking requirement. Any use by a party of the Marks of the other party during the term of this Agreement will inure to the benefit of such other party. 11. EXPORT CONTROLS. Alliance Member acknowledges that the Products, Confidential Information and all related technical documents and materials are subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Alliance Member will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with Tandem in any official or unofficial audit or inspection that relates to these controls and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product, Confidential Information or related technical documents or materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer or disclosure is restricted, without obtaining the prior written authorization of Tandem and the applicable U.S. Government agency. If Alliance Member is located outside of the United States, see Exhibit A1 for the list of export restricted countries. 12. UNLAWFUL PAYMENTS. Neither Alliance Member nor Tandem will use any payment or other benefit derived from the other to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions affecting this Agreement, while knowing or having reason to know that any portion of this money, gift or thing will, directly or indirectly, be given, offered or promised to (i) any person acting in an official capacity for any government or its instrumentalities (including government-owned or controlled corporations) or any non-governmental client or prospective client or (ii) any political party, party official or candidate for political office. 13. ASSURANCE OF PAYMENTS. U.S. Computer Services guarantees the timely payment by its Subsidiaries and Affiliates of all amounts due to Tandem for Products and Services under this Agreement. 14. TARGETED MARKET: a. To Cable Television Multiple System Operators (CATV MSO) customers, Alliance Member will provide products as a Value Added Reseller ("VAR") for the NonStop Kernel Products under Schedule TA-B and as a Software House ("SWH") for Integrity Products under Schedule TA-E. This Section 14.a applies to Alliance Member's existing DDP/SQL Applications as well as to the Intelecable products under development by Alliance Member. b. To all other potential customers outside the CATV MSO market defined in 14.a above. Alliance Member will provide both NonStop Kernel and Integrity Products as a SWH only. Schedule TA-A-2 c. Alliance Member will act as a non-exclusive VAR or SWH of Products for sale and licensing solely in conjunction with Application Packages and Application Computer Systems in the markets ("Targeted Markets") as defined in Schedules TA-B and TA-E. d. All countries outside of this Targeted Market will be addressed by the parties on a case by case basis and sales outside of the Targeted Market will be quoted to Alliance Member by Tandem on a country by country basis, subject to local agreements with Tandem subsidiaries or distributors. In the event the Targeted Market includes one or more countries within the European Community, nothing in Schedule TA-B shall be construed as preventing Alliance Member from licensing or selling Application Systems in any part of the European Community on the conditions set forth in Schedule TA-B. 15. ALLIANCE MEMBER AUTHORIZED TO SELL WITHIN THE TARGETED MARKET; TANDEM'S RIGHT OF FIRST REFUSAL ON CERTAIN RESALE EQUIPMENT. Tandem Products purchased or licensed under this Agreement by Alliance Member shall be resold, leased or licensed under this Agreement only to End-User Customers within the Targeted Market. Alliance Member shall not license, lease, sell or otherwise transfer Products to customers other than to End-User Customers within the Targeted Market. However, should Hardware sold and used by Alliance Member within the Targeted Market become available for resale, then Alliance Member may sell said Hardware to a broker for users outside the Targeted Market, provided that Alliance Member shall first offer said Hardware to Tandem for purchase and Tandem and Alliance Member shall have a period of ten (10) working days from the date of notification by Alliance Member, or such longer period as agreed to by the parties, to reach agreement on the terms and conditions of such purchase. Alliance Member shall not be required to offer Hardware designated as discontinued from Tandem's then-current product and price guide to Tandem prior to such resale outside the Targeted Market. The parties agree that Software cannot be transferred with any Hardware resale. 16. PROMOTION OF TANDEM PRODUCTS BY ALLIANCE MEMBER WITHIN A LOCATION. Alliance Member shall actively and aggressively promote and market Tandem's Products to the End-User Customers as described herein. The preceding notwithstanding, the parties understand that this arrangement is non-exclusive, and that Alliance Member may promote and market other products in addition to Tandem's Products. Tandem reserves the right to enter into agreements with others for the purpose of marketing and distributing Products and related support, or any other products providing the same or similar function as Application Packages within the Targeted Market. Tandem reserves the right to act on its own behalf, or enter into agreements with others, for the purpose of marketing and distributing Products and related support, or any other products providing the same or similar function as Application Packages, either directly or indirectly, outside the Targeted Market. 17. SERVICE BUREAU. In all cases where Alliance Member, in the capacity of a service bureau, provides full service computing to a Customer, Alliance Member may purchase the necessary Hardware and Software Products from Tandem under the terms and conditions of Schedules TA-A and TA-B and TA-F of this Agreement. 18. HARDWARE MAINTENANCE. Hardware maintenance will be provided to Alliance Member under the terms and conditions of the Agreement for Maintenance Services between Tandem and Alliance Member dated 2-15-92, as amended, or any subsequent maintenance agreement between the parties. 19. SOFTWARE LICENSE AND SOFTWARE SERVICES. Where Alliance Member, in the capacity of a service bureau, provides computing service to a Customer, Tandem will provide to Alliance Member end-user Software licenses under the Software Sublicense Terms set forth in Exhibit B3-1 of TA-B. Tandem will provide Software Services under the terms and conditions of the Software Service Plans in Schedule TA-F, hereof. 20. RENEWALS. The Discounts and Fee structures set forth in Schedules TA-B and TA-E shall be in effect through January 1, 1997. Thereafter, Discounts and Fee structures are subject to change and will be renewable annually ("Renewal Period"). Tandem agrees to give Alliance Member preferential consideration in the establishment of Discounts and Fee structures for subsequent Renewal Periods under this Agreement based upon Alliance Member's volume relative to other Tandem VARs with similar volumes and irrespective of other contract terms, unless such other contract terms are material and substantial and reasonably justify Tandem providing more favorable discounts and fee structures to any other Tandem VAR. 21. INTRODUCTION OF NEW PRODUCTS: a. Tandem reserves the right to make available new Products at different Discount levels and Fee structures which may be included hereunder during the term of this Agreement. b. In addition to DDP/SQL and Intelecable, Alliance Member may introduce additional applications which may be included hereunder during the term of this Agreement. 22. HOLDBACK TERMS. Pursuant to the Holdback Provisions of the Development Agreement of December 6, 1994 between Tandem and Alliance Member ("Development Agreement"), the parties agree that fees and discounts as stated in Schedules TA-B and TA-E will be reduced as payment is made to Tandem for amounts owed to Tandem by Alliance Member pursuant to the Development Agreement. The following Holdback amounts shall be credited by Tandem toward amounts owed under the Development Agreement, which will be amended to reflect the Holdback terms stated herein: Schedule TA-A-3 a. From the VAR Agreement, Schedule TA-B: For the first year: [*] discount holdback for repayment For the second year: [*] discount holdback for repayment For the third thru fifth years: [*] discount holdback for repayment b. From the SWH, Schedule TA-E: 1. In the North American CATV market: For the first year: [*] discount holdback for repayment For the second year: [*] discount holdback for repayment For the third thru fifth years: [*] discount holdback for repayment 2. In the rest of market: For the first year: [*] discount holdback for repayment For the second year: [*] discount holdback for repayment For the third thru fifth years: [*] discount holdback for repayment 23. NOTICES. Any notice, request or consent under this Agreement will be given in writing and will be sent by confirmed telefax, personal delivery, overnight courier service or registered or certified mail, postage prepaid, to the address for each party stated on the first page of this Agreement, or to such other address as such party may designate by notice in accordance with the provisions of this Section. Notices to Tandem will be directed to both the Vice President and the Group Counsel of Tandem Alliance Group, and notices to Alliance Member will be directed to the signatory to this Agreement or as otherwise designated by Alliance Member. Any notice delivered by confirmed telefax or personal delivery will be deemed to have been received the day it is sent. Any notice sent by overnight courier service will be deemed to have been received the day after it is sent. Any notice sent by registered or certified mail will be deemed to have been received on the 5th business day after its date of posting. 24. ESCALATION. Any dispute between the parties relating to this Agreement will first be submitted in writing to a designated senior executive of both Tandem and Alliance Member who will meet and confer in an effort to resolve such dispute. Any decisions of the executives will be final and binding on the parties. In the event the executives are unable to resolve any dispute within 30 days after submission to them, either party may refer any dispute to a court of final jurisdiction or, if both parties agree, to arbitration. 25. MISCELLANEOUS PROVISIONS. All currency conversions will be based on the closing exchange rate quoted in the edition of the Wall Street Journal available in the geographical location of the Customer for the last business day of the month before the date that Tandem receives a payment under this Agreement. All taxes and governmental charges, including any penalties and interest, assessed or imposed by any jurisdiction ("Taxes") will be borne by Alliance Member and Tandem will withhold such from payments as required by law. Any holding that a provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of the other provisions of this Agreement. This Agreement is the parties' entire agreement relating to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals and representations concerning the same. Modifications to this Agreement must be in writing and signed by an authorized representative of each party. Any waiver of any provision of this Agreement, or a delay by either party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver, nor create an expectation of non-enforcement of that or any other provision or right. Neither party may assign or delegate this Agreement or any of its rights or obligations without prior consent from the other party, except that Tandem may assign its right to payment, and any attempt to do so will be void. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, excluding its conflict of laws rules and principles. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods from this Agreement. Any action brought in connection with this Agreement must be commenced within two years and one day after the cause of action has accrued. Nothing in this Agreement will affect the limitation period applicable to any action or proceeding for (i) the unauthorized use or disclosure of Confidential Information or (ii) the infringement of either party's proprietary rights. The terms, limitations and warranties contained in this Agreement that by their sense and context are intended to survive the term shall so survive, including, without limitation, its confidentiality, export control and limitation on liability provisions and all payment obligations. In the event of an inconsistency between Schedule TA-A and another Schedule, the other Schedule will prevail. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Schedule TA-A-4 EXHIBIT A1 EXPORT RESTRICTED COUNTRIES Albania Armenia Azerbaijan Belarus Bulgaria Cambodia Cuba Estonia Georgia Haiti Iran Iraq Kazakhstan Kyrgyzstan Laos Latvia Libya Lithuania Moldova Mongolia North Korea The People's Republic of China Poland Romania Russia South Africa Military and Police entities Syria Tajikistan Turkmenistan Ukraine Uzbekistan Vietnam Federal Republic of Yugoslavia (Serbia and Montenegro and Serbia held areas in Croatia and Bosnia) Exhibit A1-1 Agreement # ________ SCHEDULE TA-B VAR TERMS AND CONDITIONS 1. DEFINITIONS. "APPLICATION PACKAGE" means any of the software application products described in Exhibit B1 developed and/or licensed by Alliance Member for use with Products. "APPLICATION SYSTEM" means a computer system consisting of an Application Package and Products which Alliance Member resells and sublicenses to Customers within the Targeted Market, and which may include other products developed or procured by Alliance Member. "DISCOUNT" means the discount off the List Price of a Product set forth in Exhibit B4, B5 or B6 which applies so long as Alliance Member satisfies its obligations under this Agreement. "DISCOUNTED PRICE" means the List Price of a Product, less its Discount. "LIST PRICE" means the price of a Product set forth in the Price Guide on the date of acceptance of an Order for the country where the Product will be installed and used. "ORDER" means a written order for Products submitted by Alliance Member to the Tandem office from which Products are purchased or licensed. "PRICE GUIDE" means Tandem's then-current published price guide for the country from which Products are purchased or licensed. "SOFTWARE LICENSE FEE OR CHARGE" means the license fee or charge for Software set forth in the Price Guide on the date of acceptance of an Order. "SUBLICENSE AGREEMENT" means the agreement used by Alliance Member to sublicense the Software to Customers. For Customers located outside the United States, the Sublicense Agreement will contain any additional or different terms required by the local Tandem subsidiary or local law, and may be subject to governmental approval, registration or notification in a particular country. "TARGETED MARKET" means the North American market area described in this Agreement. "TOOLS" means any computer program developed or provided by Tandem hereunder and used to standardize or simplify routines or functions, enhance productivity, or assist in the maintenance of any Product. Tools may include metrics, routines, diagnostics, templates or other devices. 2. APPOINTMENT. Tandem appoints Alliance Member and Alliance Member accepts such appointment as a non-exclusive value-added reseller ("VAR") of Products for sale or licensing solely as a component of Application Systems in the Targeted Market. 3. RESELLER OBLIGATIONS. 3.1 BEST EFFORTS AND ADDED VALUE. During the term of this Schedule, Alliance Member will use reasonable best efforts to actively and diligently develop, promote, market, solicit orders for, maintain and support the Application Systems solely within the Targeted Market, consistent with ethical business practices and in a manner that reflects favorably on the Products and the good will and reputation of the parties. Except for Development Systems, all Products purchased or licensed by Alliance Member under this Schedule will be incorporated into Application Systems containing an Application Package which is a significant functional and value enhancement to Products. To the extent new Product information is made generally available, Alliance Member will use reasonable best efforts to notify Customers of new Products (e.g., Hardware announcements and Software releases). 3.2 SUPPORT. Alliance Member will operate as an independent turnkey provider of Application Systems and related maintenance and support, including system configuration, requiring no maintenance or support from Tandem, except as expressly provided in this Schedule. In addition to the obligations in Section 4 of Schedule TA-A, Alliance Member will make available to Customers, at a reasonable charge to be determined by Alliance Member, first-class Hardware maintenance and Software support services, including but not limited to, first- call support of Software according to Tandem's then-current local first-call support policy. Alliance Member may subcontract with Tandem for Hardware maintenance or Software support or use best efforts to cause Customers to execute Tandem's then-current Hardware maintenance or Software support agreement. Other than warranties described in Section 10 below, Tandem is not obligated to support or maintain Products hereunder unless Alliance member or Customer enters into a separate maintenance or support agreement with Tandem. All Sublicense Agreements must describe the Software support obligations of Alliance Member under this Section. 3.3 WARRANTY OF TITLE. Alliance Member warrants that it has clear title to and ownership of each Application Package or has the legal right to market and sublicense the Application Package. 4. PERFORMANCE OF ALLIANCE MEMBER OBLIGATIONS BY TANDEM. If Tandem performs any of Alliance Member's material obligations, whether at the request of Alliance Member or the reasonable request of a Customer due to Alliance Member's failure to promptly perform such obligations following notification of such failure by Customer, Tandem may charge Alliance Member Tandem's then-current rates for such services. Such services may include, but are not limited to, sales and marketing assistance, first-call support for Software and systems analyst support. 5. ORDERS AND DELIVERY. 5.1 ORDERS AND SHIPMENT. All Orders are subject to acceptance by Tandem. Preprinted terms on an Order will not be effective. Additional or different terms will be effective only if Tandem accepts them in writing. All Orders accepted before this Agreement expires which provide for shipment within 90 days of expiration will be honored, if Alliance Member is not in default under this Schedule. Tandem and Alliance Member will establish a shipment schedule for each Order. Tandem will select the carrier and method of shipment. In countries where Tandem has a wholly-owned subsidiary, Tandem will arrange for off-loading and customs clearance of Products in such country and transportation to the initial delivery point specified in the accepted Order. Alliance Member will pay transportation costs from customs to the initial delivery point and all other associated charges and duties. Schedule TA-B-1 5.2 TITLE AND RISK OF LOSS. Title to Hardware will pass to Alliance Member upon shipment from Tandem. Tandem will bear the risk of loss or damage to the Products to the initial delivery point, except for loss or damage caused by Alliance Member, war, nuclear reaction or radiation, or radioactive contamination. Alliance Member will promptly inspect all shipments upon arrival at the initial delivery point, immediately report to Tandem any loss or damage, and retain any damaged Product in its original packaging for inspection by Tandem or its insurer. 5.3 CANCELLATION AND RESTOCKING FEES. Alliance Member will pay a cancellation fee of 10% of the Discounted Price for any ordered Product canceled less than 30 calendar days prior to its planned shipment date and a restocking fee of 15% of the Discounted Price if Tandem accepts return of a Product which was delivered as ordered. For Discount purposes, canceled and returned Products will not count toward the required "Purchase Volume" (described in Exhibits B4- B6). 5.4 DOCUMENTATION. Alliance Member will receive one set of customary Product documentation free of charge. 5.5 NO DUTY TO SHIP. Tandem is not obligated to sell, license or ship Products if Alliance Member stops doing business, becomes insolvent, materially breaches the Agreement or, in Tandem's reasonable judgment, represents in any way a financial risk to Tandem. Alliance Member will furnish to Tandem any financial or business information reasonably requested by Tandem to determine that Alliance Member is financially capable of performing its obligations. 6. TAXES. All amounts payable under this Agreement are exclusive of Taxes based on (i) gross revenue, (ii) payments under this Agreement, (iii) the delivery, possession or operation of the Products, (iv) the execution or performance of this Agreement, or (v) otherwise. Taxes shall not include net income, net worth or franchise taxes assessed on Tandem. Alliance Member will pay all Taxes or provide Tandem with a certificate of exemption acceptable to the appropriate taxing authority prior to shipment of the Product. If any Taxes are required to be withheld, Alliance Member will furnish Tandem with official tax receipts and other evidence of the payment of any income tax required to be withheld on behalf of Tandem sufficient to permit Tandem to substantiate Tandem's claim for a credit against Tandem's United States federal income tax. In the event Alliance Member fails to furnish Tandem official Tax receipts as stated herein within a reasonable time, Alliance Member agrees to pay Tandem an amount such that the net amount after withholding of such Taxes will equal the amount that would have been otherwise payable under this Agreement. 7. SECURITY INTEREST. In the normal course of business Tandem will not request, nor will Alliance Member be required to file and perfect, any UCC security filing. Tandem will provide Alliance Member with a variable unsecured credit line that will be determined by Tandem which will be subject to periodic review by Tandem and may be adjusted or withdrawn as Tandem deems necessary. Alliance Member's orders for Tandem Products in excess of the unsecured credit line shall be secured by Alliance Member with a stand-by letter of credit. No Tandem Products in excess of the unsecured credit line will be shipped until Alliance Member has, at Tandem's request, delivered to Tandem a stand-by letter of credit acceptable to Tandem. 8. PRICES, DISCOUNTS AND PAYMENT TERMS. Alliance Member will pay the Discounted Price for each accepted Order. A Product's List Price will not increase if shipment is made within 3 months of the date Tandem accepts an Order. If a Product's price set forth in the Price Guide is lower on the date of shipment than the List Price, Alliance Member will receive the lower price. If Alliance Member sells, licenses, leases or otherwise transfers a Product other than to a Customer within the Targeted Market, Tandem may invoice Alliance Member for the difference between the Product's Discounted Price and its List Price. Alliance Member will pay each invoice in full within sixty (60) days of the date of the invoice in the currency in which the List Price was quoted. 9. SOFTWARE LICENSE. 9.1 RIGHT TO SUBLICENSE. Tandem grants Alliance Member a non-exclusive, non-transferable right to sublicense the Software to Customers for use solely on designated Application Systems within the Targeted Market. Before delivering any Software to a Customer, Alliance Member will cause each Customer to execute a Sublicense Agreement containing terms for the sublicensing of the Software no more favorable to Customer than the terms set forth in this Agreement and containing the mandatory software sublicense terms attached hereto as Exhibit B3. The Sublicense Agreement will not be modified without Tandem's prior written consent. Upon request, Alliance Member will provide Tandem with a copy of each executed Sublicense Agreement and will assist Tandem in any review or verification of Alliance Member's or a Customer's use of the Software or compliance with the Sublicense Agreement. 9.2 SOFTWARE LICENSE FEES OR CHARGES. For each sublicense of Software to a Customer, Alliance Member will pay Tandem the Software License Fee or Charge, regardless of whether similar fees have been applied to, or received from, the Customer by Alliance Member. 9.3 ENFORCEMENT. At its own expense, Alliance Member will promptly and effectively take all necessary steps to enforce the Sublicense Agreement, including bringing actions for seizure or injunctive relief against a Customer who has breached it. Alliance Member will notify Tandem of such breach and Alliance Member's corrective steps. If, in Tandem's sole discretion, Alliance Member fails to take timely and adequate corrective steps, Tandem may take them in its own or Alliance Member's name and at Alliance Member's expense. In such event, Alliance Member will assign to Tandem, at Tandem's sole option, any rights Alliance Member has against the Customer for breach of the Sublicense Agreement and will cooperate with Tandem in any action against the Customer. 9.4 USE AND COPYING. Alliance Member will use the Software only to perform its marketing and support obligations and may make one back-up copy of each user-loadable program. Alliance Member may make only enough copies of updates or revisions to Software required for delivery to Customers that have executed a Sublicense Agreement. Alliance Member will not otherwise copy the Software and will accurately reproduce all Tandem copyright, confidentiality and proprietary notices on each of the copies. Schedule TA-B-2 9.5 RECORDS. Alliance Member will keep complete and accurate records of each copy of the Software received from Tandem or manufactured by Alliance Member ("Copy Records"). Copy Records will include: (a) the date when each copy (by revision number) was created and shipped (by designated system number) to a Customer and how it was created, (b) the name and address of the Customer receiving the copy and (c) a copy of each executed Sublicense Agreement, by designated system. Upon Tandem's written request, Alliance Member will provide Tandem with information contained in the Copy Records for any period of the Agreement. With reasonable notice, Tandem will have access to the Copy Records to verify compliance with Alliance Member's obligations. 9.6 MODIFICATIONS. Alliance Member will not translate, modify, adapt, decompile, disassemble or reverse engineer any part of the Software without Tandem's prior written consent. If Tandem allows Alliance Member to modify, translate or make a "derivative work" (defined in the United States Copyright Act of 1976, as amended) of the Software, Tandem will also grant Alliance Member a non-exclusive, non-transferable license to use, copy and sublicense the same, subject to the terms of this Agreement, including the limitations regarding Software. Subject to such license, Tandem will own any translation, modification, adaptation or derivative work of the Software, including any improvement to or development of the same, and all associated patents, copyrights, or other intellectual property rights. 9.7 FEDERAL GOVERNMENT SUBLICENSE. If Alliance Member sublicenses the Software to the United States Government, in addition to applicable copyright notices Alliance Member will also place a legend on the tape or diskette label in substantially the following form: "Restricted Rights Legend. Use, duplication or disclosure by the government is subject to restrictions for commercial computer software and will be deemed to be Restricted Rights Software under federal law." 9.8 THIRD PARTY SOFTWARE. Alliance Member may sublicense to Customers certain Software which Tandem licenses from third parties. Alliance Member will incorporate any necessary additional terms into the Sublicense Agreement for such third-party Software. Tandem may provide updates to such additional terms at any time upon written notice to Alliance Member. Tandem may terminate Alliance Member's right to sublicense any third party Software if the license between Tandem and the third party is terminated or expires. 9.9. USE OF SOFTWARE WITH RETURNED HARDWARE. Tandem agrees that for Tandem Software licensed with Hardware originally owned by an end-user Customer and transferred from that end-user Customer to Alliance Member for use in Alliance Member's internal business operations (such as, but not limited to, its billing facility), Alliance Member shall not be required to pay any License Fee for the use of the Software, provided a one-time License Fee has been paid for such Software. Such License use will be governed by the terms and conditions of Schedule TA-B, Exhibit B3. In no event shall Software be transferred from one Designated System to another or from one Customer to another. 10. WARRANTIES. 10.1. HARDWARE AND SOFTWARE WARRANTY. Tandem warrants that for the applicable published warranty period, or the period required by local statute, when properly installed and operated (a) each item of Hardware will meet its then-current specifications published by Tandem and (b) each item of Software will perform as described in Tandem's then-current user documentation for the Software. Hardware and/or replacement parts may include remanufactured or used parts which are warranted equivalent of new in performance and reliability. The warranty period will begin 30 days following the shipment date of the Product. 10.2 EXCLUSIVE REMEDY. CUSTOMER'S EXCLUSIVE REMEDY AND TANDEM'S SOLE OBLIGATION AND LIABILITY FOR ANY BREACH OF WARRANTY CONTAINED IN THIS SECTION 10 WILL BE TANDEM'S FURNISHING OF STANDARD, NONENHANCED WARRANTY SERVICES DESCRIBED IN TANDEM'S THEN-CURRENT LOCAL (A) END-USER WARRANTY SERVICE ATTACHMENT OR (B) END-USER AGREEMENT, FOR THE PURCHASE AND/OR LICENSE OF THE PARTICULAR HARDWARE OR SOFTWARE. INDEMNIFICATION UNDER SECTION 9 OF SCHEDULE TA-A WILL BE ALLIANCE MEMBER'S SOLE AND EXCLUSIVE REMEDY AGAINST TANDEM FOR BREACH OF ANY WARRANTY OF TITLE TO THE HARDWARE. 10.3 LIMITATION. Tandem's warranty service obligations will not apply to any Product if adjustment, repair, or parts replacement is required because of (a) accident, neglect, misuse, failure of electric power, failure to provide appropriate environmental conditions, relocation of Hardware, or causes other than ordinary use, (b) repair or alteration, or attempted repair or alteration, of any Product by persons other than Tandem personnel, (c) failure caused by a product for which Tandem is not responsible, (d) connection of another machine or device to Hardware which makes warranty service impractical or which has caused damage to such Hardware, or (e) damage or destruction caused by natural or man-made acts or disasters. In addition, warranty services do not include cosmetic repairs, refurbishment, furnishing consumables, supplies or accessories, making accessory changes, or attaching additional devices. Tandem will not be required to provide warranty service for any item of Hardware on which neither the current nor the immediately preceding release of Software has been installed. 10.4 TANDEM DISCLAIMER. THE WARRANTIES CONTAINED IN THIS SECTION 10 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TANDEM AND ITS SUPPLIERS DO NOT WARRANT THAT NETWORK PRODUCTS WILL OPERATE IN ALL COMBINATIONS OF HARDWARE AND SOFTWARE WHICH MAY BE SELECTED FOR USE OR THAT SOFTWARE IS ERROR-FREE. Schedule TA-B-3 10.5 TOOLS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 10, TOOLS ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11. LIMITATION ON LIABILITY. TANDEM WILL BE LIABLE FOR ACTUAL DAMAGES IN CONTRACT OR TORT UP TO THE GREATER OF $300,000 OR THE CHARGES PAID TO TANDEM FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM, AND FOR DAMAGES FOR BODILY INJURY OR DEATH, TO THE EXTENT THAT ALL SUCH DAMAGES ARE DETERMINED BY A COURT OF FINAL JURISDICTION TO HAVE BEEN DIRECTLY CAUSED BY TANDEM. TANDEM WILL ALSO BE LIABLE FOR PAYMENTS REFERRED TO IN SECTION 9 OF SCHEDULE TA-A (INDEMNIFICATION). 12. TERMINATION. 12.1 TERMINATION OBLIGATIONS. Alliance Member's right to sublicense the Software will terminate upon the termination or expiration of this Schedule or the Agreement. At that time, Alliance Member will assign to Tandem any or all Sublicense Agreements upon Tandem's reasonable request. 12.2 PURCHASE OPTION. Tandem will have the exclusive option, exercisable upon notice to Alliance Member within 30 days after expiration or termination of this Schedule, to purchase all or any part of Alliance Member's stock of Products. During such 30-day period, Alliance Member will withhold its entire stock of Products from sale to Customers or other parties, except for Products needed to fulfill valid contractual commitments made before the beginning of the option period. Any Tandem purchases will be at the Product's Discounted Price, less depreciation and allowances. Alliance Member will promptly make its stock available to Tandem for inspection and testing prior to the exercise of the option. 13. MISCELLANEOUS PROVISIONS. 13.1 AUDIT. Alliance Member will permit Tandem to conduct periodic audits of records regarding Alliance Member's performance, including without limitation, records of the sale or licensing of Products. 13.2 GEOGRAPHIC LIMITATION. Tandem's obligations under this Schedule are strictly limited to the Targeted Market, and in no event will Tandem be required to ship Products to, or to provide warranty, licensing, service or support in a country or region outside the Targeted Market, including, but not limited to, countries where Tandem has an independent distributor. Any Tandem sale, licensing, service or support of Products outside of the Targeted Market but within those countries where Tandem has a wholly-owned subsidiary is subject to the terms and conditions, including, without limitation, price terms, of the country agreement with the local Tandem subsidiary. Schedule TA-B-4 EXHIBIT B1 APPLICATION PACKAGE DESCRIPTION 1. Name of Application Package: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2. Functional Description of Application Package: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 3. Products on which Application Package operates: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 4. Additional comments or remarks that identify Application Package: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Attach additional copies of this Exhibit B1 for other Application Packages.) Exhibit B1-1 EXHIBIT B2 DISCOUNTS BY PRODUCT The following Discount Terms and conditions are applicable to all Discounts and Products set forth below in Sections 1 through 4 of this Exhibit B: The Product Discounts granted to Alliance Member in this Exhibit B shall be in effect for a period of two years from the Effective Date of January 1, 1995 and are subject to the Holdback Provisions of Schedule TA-A. DETERMINATION OF PURCHASE VOLUME. Alliance Member's Purchase Volume during a Period shall be the sum of the U. S. List Prices of new Products and the actual purchase prices of re-manufactured Hardware purchased during a Period, less any credit for trade-in Products ("Cumulative Prices"). Although Excluded Products do not receive Discounts, the Cumulative Prices of those Products may be included in determining actual Purchase Volume, but only if the trade-in or promotional program allows it for Excluded Products purchased under such programs. RENEGOTIATION OF DISCOUNT LEVEL. Before the end of a Period, the parties will determine a new Discount Level for the next Period based on Alliance Member's actual Purchase Volume for the preceding Period. If the parties extend the initial or any subsequent term of the Agreement, then before the extended term becomes effective they will determine a new Discount Level for such term based on Alliance Member's actual Purchase Volume for the preceding term. With 60 days prior written notice, Tandem may alter any Discount as part of a programmatic change to Tandem VAR discounts in the following situations: (i) for Products manufactured by Tandem, if Tandem reduces the List Price, provided that the new Discounted Price for Hardware will not exceed its immediately preceding Discounted Price; (ii) for Products acquired by Tandem from a third party, when Tandem determines that the alteration is necessary or appropriate. 1. NONSTOP KERNEL PRODUCTS APPLICABILITY. This Section 1 applies to Tandem's NonStop Kernel family of Products listed in the Price Guide on the Effective Date. It excludes (a) NonStop Kernel technology upgrades, (b) Integrity Products, (c) Tandem Source Company Products, (d) Tandem Telecom Division Products, (e) Atalla Products, and (f) Products purchased under special promotional and trade-in programs ("Excluded Products"). DISCOUNTS. Tandem grants the following Discounts to Alliance Member: CERTAIN CLX/R AND HIMALAYA PRODUCTS. CLX/R Products currently identified by number G11x0 and Himalaya Products currently identified by numbers K11x will receive a [*] Discount. CLX/R Products currently identified by product number G12x0, Himalaya Products currently identified by number K12x and all system printers will receive a [*] Discount. NETWORK PRODUCTS. Network Products (previously Ungermann-Bass Products) will receive a [*] Discount. OTHER NONSTOP KERNEL PRODUCTS. K2000 - K20000 Himalaya Range: [*] Discount K1000 - K10000 Himalaya Range [*] Discount K2 - K200 Himalaya Range: [*] Discount SOFTWARE LICENSE FEES AND CHARGES. Only initial license fees and paid up fees for Non-Himalaya Range System Software and one-time charges for Himalaya Range System Software will receive Discounts. 2. INTEGRITY PRODUCTS APPLICABILITY. This Section 2 applies to Tandem's Integrity family of Products listed in the Price Guide on the Effective Date. It excludes (a) Integrity NR Workstations, other than Indigo and Indigo 2 servers, (b) Integrity technology upgrades, (c) NonStop Kernel Products, (d) Tandem Source Company Products, (e) Tandem Telecom Division Products, (f) Atalla Products, (g) Network Products and (h) Products purchased under special promotional and trade-in programs ("Excluded Products"). DISCOUNTS. Tandem grants the following Discounts to Alliance Member: INTEGRITY NR AND FT SERVERS (INDIGO AND INDIGO 2 WORKSTATIONS): [*] Discount OTHER INTEGRITY PRODUCTS (INDY WORKSTATIONS): [*] Discount SOFTWARE LICENSE FEES AND CHARGES. Only initial license fees and paid up fees for Integrity Software will receive Discounts. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Exhibit B2-1 3. TANDEM SOURCE COMPANY ("TSC") PRODUCTS (WORKSTATION PRODUCTS) DISCOUNTS. PRODUCT DISCOUNTS. Tandem grants a [*] Discount to Alliance Member for TSC Products: Category C (terminals and options; personal printers and options) Category D (PC Connectivity Products such as LAN and WAN cards) Category E (PSX systems and options; NDX systems and options) SOFTWARE LICENSE FEES. Only paid up fees or one time license fees will receive Discounts. 4. DESCRIPTION OF TARGETED MARKET GEOGRAPHIC AREA. United States of America, Canada, Mexico, Guam, and Puerto Rico. DESCRIPTION OF INDUSTRY. Alliance Member will act as a VAR for NonStop Kernel Products for Cable Television (CATV), Direct Broadcast Satellite (DBS), Television Receive Only (TVRO), Microwave Multichannel Distribution Systems (MMDS) and Microwave Distribution Systems (MDS). DATA PROCESSING NEEDS OF CUSTOMER WITHIN INDUSTRY. Subscriber/customer management, financial management and reporting, bill processing and other related MIS needs for DDP/SQL or Intelecable (and subsequent generation) Applications. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Exhibit B2-2 EXHIBIT B3 MANDATORY SOFTWARE SUBLICENSING TERMS 1. GRANT [Alliance Member] hereby grants Customer a non-transferable, non-exclusive license, without right to sublicense, to use the software developed or acquired by Tandem Computers Incorporated ("Tandem") and delivered to Customer under this Sublicense Agreement ("Software"), exclusively on the Tandem computer system owned, possessed and operated by Customer and specified in [Alliance Member]'s invoice ("Designated System"). No source code or license to use source code is provided hereunder. Software includes the programs delivered to Customer, all related documentation and any update, revision, translation, adaptation, modification, derivation or copy of the foregoing. Software does not include software delivered to Customer with a shrink-wrap license. As to such licenses, Customer agrees to be bound by the terms set forth therein, unless it notifies [Alliance Member] of any objections and returns the software within 10 days of receipt thereof. 2. Customer will use the Software only in its own internal business operations. Customer will not permit any other person to use the Software, except to enter or retrieve information in the ordinary course of processing transactions. If the Designated System becomes temporarily inoperable due to natural disaster, accident or other cause beyond Customer's control, Customer may use the Software on another Tandem computer until the Designated System becomes operable. Customer may make one back-up copy of the Software upon which it will reproduce all confidentiality and proprietary notices. Customer will not otherwise copy, translate, modify, adapt, decompile, disassemble or reverse engineer the Software. 3. OWNERSHIP. Title to the Software and all patents, copyrights, trademarks, mask works, circuit layout rights, design rights, trade secrets and other proprietary rights in or related to the software are and will remain the exclusive property of Tandem or its licensor, whether or not specifically recognized or perfected under the laws of the country where the Software is located. Customer will not take any action that jeopardizes such proprietary rights nor will it acquire any right in the Software, except the limited use rights specified herein. 4. CONFIDENTIALITY. The Software incorporates confidential and proprietary information developed or acquired by Tandem. Customer will protect the confidentiality of the Software and all such information with the same degree of care as it employs to protect its own confidential and proprietary information, but at least with reasonable degree of care. Customer will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Software, which notice will not constitute publication or otherwise impair the Software's confidential nature. Customer will have no confidentiality obligation with respect to any confidential or propriety information incorporated within the Software which (i) was in Customer's lawful possession prior to receipt of the Software without any obligation to keep it confidential, (ii) is later lawfully obtained by Customer from a third party under no obligation of secrecy, (iii) is independently developed by Customer, (iv) is, or later becomes, available to the public through no act or failure to act by Customer. Customer will not disclose the Software to any person, except to those of its employees, agents or consultants who require access for Customer's authorized use of the Software. Before disclosure to such parties, Customer will require that they expressly: (i) recognize Tandem's or its licensor's confidential and proprietary rights in the Software, (ii) agree to comply with the use, ownership, confidentiality and export control restrictions applicable to the Software, and (iii) acknowledge Tandem's, its licensors and [Alliance Member]'s right to enforce these restrictions in each case in writing. Customer will be liable for non-compliance by its agents and contractors to the same extent it would be liable for non-compliance by its employees. 5. NO WARRANTIES; LIMITATION ON DAMAGES. THIS SUBLICENSE AGREEMENT DOES NOT INCLUDE ANY WARRANTIES, EXPRESS OR IMPLIED, BY OR ON BEHALF OF TANDEM OR ANY ENTITY GRANTING TANDEM LICENSE RIGHTS TO THE SOFTWARE. IN NO EVENT WILL TANDEM OR ITS LICENSOR (A) BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, LOST PROFIT OR DATA OR (B) INCUR AGGREGATE LIABILITY IN ANY ACTION OR PROCEEDING WHICH EXCEEDS THE TOTAL AMOUNT ACTUALLY PAID TO TANDEM BY ALLIANCE MEMBER FOR THE SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE. 6. TERMINATION. This Sublicense Agreement will automatically terminate if Customer stops owning, possessing or operating the Designated System, and it may be otherwise terminated with 30 days prior written notice if the Customer violates any of its terms or conditions. Upon any such termination, all rights granted to Customer, including but not limited to the right to use to the Software, will immediately cease, and Customer will promptly (i) purge the Software from the Designated System and all other computer systems and storage media, (ii) deliver to [Alliance Member] the Software and any other item within Customer's possession or control that contains confidential information relating to the Software, and (iii) certify in writing that Customer has complied with its termination obligations hereunder. Any provision of this Sublicense Agreement which by its sense and context deals with Software use, disclosure, ownership, confidentiality, inspection, re-exportation, and third party enforcement rights will survive its expiration or termination for any reason. 7. EXPORT CONTROLS. The confidential information of Tandem, and all related technical documents and materials are subject to export controls under the U.S. Export Administration Regulations and related U.S. laws. Customer will (i) comply strictly with all legal requirements established under these controls, (ii) cooperate fully with Tandem in any official or unofficial audit or inspection that relates to these controls and (iii) not export, re-export, divert, transfer or disclose, directly or indirectly, any Software, confidential information of Tandem, or related technical documents and materials or any direct product thereof to any country (or to any national or resident thereof) which the U.S. Government determines from time to time is a country (or end-user) to which such export, re-export, diversion, transfer, or disclosure is restricted, without obtaining the prior written authorization of Tandem and the applicable U.S. Government agency. If Customer is located outside the United States, see Attachment A for the list of export-restricted countries. 8. ASSIGNMENT-ENFORCEMENT. Customer may not assign, delegate or otherwise transfer the Software, this Sublicense Agreement or any of its rights or obligations without Tandem's and [Alliance Member]'s prior approval. Any assignment, delegation or transfer which violates the foregoing will be void. If [Alliance Member] ceases to be Tandem's authorized value-added reseller for any reason, then [Alliance Member]'s rights against Customer may be assigned to Tandem or its designee. Customer hereby consents to any such assignment and, at Tandem's request, will execute any instrument which may be required to perfect the assignment. The provisions of this Sublicense Agreement are intended to insure to the benefit of Tandem and its licensor. Tandem or its licensor has the right to enforce these provisions directly against Customer, whether in Tandem's, its licensor's or [Alliance Member]'s name, and Tandem and its licensor accept this right. Exhibit B3-1 SCHEDULE TA-C PROFESSIONAL SERVICES TERMS AND CONDITIONS 1. DEFINITIONS. "Order" is a written order for Professional Services by which Alliance Member engages Tandem to furnish Professional Services (i) directly to Alliance Member for its own internal business use, or (ii) to Alliance Member for delivery and resale or pass-through to a Customer. "PROFESSIONAL SERVICES" are those packaged or custom services Tandem offers to Alliance Member including, without limitation: project management support; computer system design, implementation and maintenance; computer programming; software analysis; sales presentations; proposal creation or other services applicable to a Customer's data processing and/or sales and marketing requirements. "TOOLS" means any computer program and associated documentation, including utilities, developed or provided by Tandem, which are used to standardize or simplify routines or functions, enhance productivity, or assist in the maintenance of any Product, as more particularly identified in a Statement of Work. Tools are provided to Alliance Member on an unsupported basis and may include metrics, routines, diagnostics, templates or other devices. "STATEMENT OF WORK" is the statement attached to a particular Order describing the Professional Services to be provided. 2. TANDEM RESPONSIBILITIES. Upon acceptance of an Order, Tandem will perform for Alliance Member the Professional Services specified therein using Tandem employees, subcontractors or other agents having the appropriate background and knowledge to perform the Professional Services. 3. ALLIANCE MEMBER RESPONSIBILITIES. 3.1 SUBMISSION OF ORDERS. Alliance Member will submit to Tandem a separate Order for each Professional Service required, which Order will become binding upon the parties' written acceptance thereof. Unless otherwise mutually agreed, the terms of this schedule will supersede and will not be amended by the preprinted terms of any Order. Additional or different terms and conditions of an Order will be of no force and effect. 3.2 COMPENSATION. Alliance Member will pay Tandem a fee for the Professional Services, regardless of whether Professional Services will be passed-through to a Customer or similar fees will be charged to or received from such Customer by Alliance Member. Tandem's standard fees for Professional Services will apply unless otherwise agreed. Expenses incurred by Tandem in performing the Professional Services will also be paid by Alliance Member. Fees and expenses will be invoiced, and will be due and payable, according to the terms of the Statement of Work. 3.3 ALLIANCE MEMBER CONTACT. Alliance Member will designate an individual to serve as the primary contact under this schedule. Tandem personnel will direct all inquiries and requests regarding the performance of Professional Services to such individual. Alliance Member will assign other personnel to participate as specified in the Statement of Work. 3.4 USE OF FACILITIES. Alliance Member will permit Tandem to make reasonable use of Alliance Member's facilities, or will arrange for Tandem to use Customer's facilities, as the case may be, at no cost to Tandem, for the purpose of providing the Professional Services, including use of work space, telephone equipment, office services, electricity, water, heat, waste disposal facilities and parking. In addition, Alliance Member will provide, or will arrange to have Customer provide, as the case may be, the computer system time to enable Tandem's personnel to perform the Professional Services. 4. SCHEDULE. The Statement of Work will specify an estimated schedule for the milestones, deliverables, and performance of the Professional Services. Both parties agree to make reasonable efforts to carry out their responsibilities in accordance with such schedule. 5. CHANGES TO STATEMENT OF WORK. Either party may request a change to a Statement of Work and will submit its change request in writing to the other party. Tandem will prepare a written change order which will describe the requested change and set forth any resulting modifications to the performance schedule, fees or other terms contained in the Statement of Work. The change order will become effective upon the written authorization of the parties and will modify and take precedence over any inconsistent terms in the Statement of Work or an earlier change order. 6. EMPLOYEE RELATIONSHIP. All personnel furnished by Tandem to perform Professional Services will be Tandem's employees or agents. Under no circumstances will such personnel be considered the employees or agents of Alliance Member or a Customer. 7. RIGHTS IN AND TO INTELLECTUAL PROPERTY. 7.1 Tandem does not claim any rights to original works created or owned by Alliance Member or Customer. All intellectual property produced by Tandem under this schedule which is a derivative work of an original work of Alliance Member or Customer will be owned by Alliance Member or Customer, respectively, upon Alliance Member's payment to Tandem of all fees, including all patent rights, copyrights, trade secret rights and other intellectual property rights, except to the extent such work contains any portion of a Product or an original work of Tandem, including the Tools. Alliance Member agrees that Tandem is not precluded from developing and marketing products which provide the same or similar functionality as the original works of Alliance Member or Customer, provided that such Tandem product is not based on the products or efforts of Alliance Member or Customer, but is created independently without the use of any confidential information of Alliance Member or Customer. Schedule TA-C-1 7.2 Alliance Member does not claim any rights to original works created or owned by Tandem. All intellectual property produced by Tandem under this schedule which is a derivative work of an original work of Tandem will be owned by Tandem, including all patent rights, copyrights, trade secret rights and other intellectual property rights, except to the extent such work contains any portion of a product or original work of Alliance Member or Customer. Alliance Member recognizes and agrees that Tandem has and retains any and all know-how, ideas, design concepts or techniques employed by Tandem in rendering Professional Services to Alliance Member, including all proprietary rights therein. 7.3 ALL OTHER INTELLECTUAL PROPERTY PRODUCED BY TANDEM UNDER THIS SCHEDULE WILL BE OWNED BY TANDEM, INCLUDING ALL PATENT RIGHTS, COPYRIGHTS, TRADE SECRET RIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS, UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY ALLIANCE MEMBER AND A VICE PRESIDENT OF TANDEM FOR A SPECIFIC ORDER OR STATEMENT OF WORK. 7.4 In the event Tandem furnishes Professional Services directly to Alliance Member for its own internal business use, Tandem grants Alliance Member a non-exclusive, non-transferable, perpetual, fully paid license to use, for its own internal business use, intellectual property produced and owned by Tandem under this schedule, excluding any Software and Tools ("Tandem Intellectual Property"). In the event Tandem furnishes Professional Services to Alliance Member for delivery and resale or pass-through to a Customer, Tandem grants Alliance Member a non-exclusive, non-transferable, perpetual, fully paid license to sublicense the Tandem Intellectual Property to Customer, for its own internal business use. 8. TOOLS. Any Tools to be developed or provided by Tandem in connection with performance of Professional Services: (i) will be identified in the applicable Statement of Work; (ii) will be considered Software under this Agreement; and (iii) will be furnished to Alliance Member pursuant to Tandem's standard terms and conditions for license and sublicense of Software, except as modified herein. 8.1 DISCLAIMER. THE TOOLS ARE PROVIDED "AS IS" AND ALL WARRANTIES REGARDING SUCH TOOLS, WHETHER EXPRESS OR IMPLIED, ARISING BY ANY MEANS WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. 8.2 SUPPORT. Tandem is not obligated to provide installation, support or maintenance of the Tools, but may, in its sole discretion, provide Alliance Member with limited support on an "as available" basis. 8.3 AVAILABILITY OF NEW RELEASES. Tandem is under no obligation to make new versions of Tools available to Alliance Member. Tandem may, however, at its discretion, make such versions available provided Alliance Member agrees to Tandem's then current terms and conditions. 8.4 CHANGE IN SUPPORT. Notwithstanding the above, if Tandem chooses to make the Tools available as a supported product, it will give Alliance Member sixty (60) days notice and the option to continue to use the Tools on an unsupported basis or convert to the new product and receive standard support under Tandem's then-current terms. 9. RESCHEDULE, CANCELLATION, OR TERMINATION OF ORDER. A request by Alliance Member to change the date for performance of Professional Services which is received by Tandem less than 15 calendar days prior to the planned performance date will be subject to a fee of 2% of the cost of the Professional Services for each month that performance is delayed, up to a maximum of 10%. For the cancellation of an Order, Alliance Member will pay Tandem a cancellation fee of 10% of the cost of the Professional Services ordered. Upon 10 days written notice to Tandem, Alliance Member may terminate an Order after performance of the Professional Services has begun, provided that Alliance Member pays to Tandem any fees for Professional Services already performed and any expenses already incurred, up to the termination date of the Order. 10. TERMINATION OF SCHEDULE. Upon termination of this schedule pursuant to Section 2 of Schedule TA-A, Alliance Member will immediately pay to Tandem any fees due for Professional Services already performed and any expenses already incurred by Tandem up to the termination date. Section 7 hereof will survive any such termination. 11. INDEMNIFICATION. 11.1 INDEMNIFICATION OF TANDEM. Alliance Member will indemnify Tandem according to the terms of Section 9 of Schedule TA-A for damages which result in any way from any allegation that the Professional Services, or any results thereof, infringe any patent, copyright or other intellectual property right of a third party, to the extent that such damages, liabilities and expenses result from any methodology, specification or Statement of Work initiated or defined by Alliance Member. 11.2 INDEMNIFICATION OF ALLIANCE MEMBER. Tandem will indemnify Alliance Member according to the terms of Section 9 of Schedule TA-A for damages which result in any way from any allegation that the Professional Services, or any results thereof, infringe any patent, copyright or other intellectual property right of a third party, if the performance of such Professional Services was in the sole discretion of Tandem. 11.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF A PARTY, AND THE SOLE AND EXCLUSIVE REMEDY OF THE OTHER PARTY, FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE PROFESSIONAL SERVICES. 12. LIMITATIONS. 12.1 EXCLUSIVE REMEDY. The provisions of Section 11 of this schedule apply in addition to this section. Alliance Member's sole and exclusive remedy and Tandem's sole and exclusive, for any breach by Tandem of any of its obligations under this Schedule TA-C-2 schedule will be, at Tandem's sole option, either the re-performance of the applicable Professional Services at no additional charge to Alliance Member, or the refund to Alliance Member of the fees paid to Tandem for the applicable Professional Services. 12.2 LIMITATION OF DAMAGES. Notwithstanding any other provisions of this Agreement, in no event will Tandem's total liability for any damages in contract, warranty, tort, product liability or any other basis which arise from this schedule exceed the total amount paid to Tandem for the Professional Services that directly caused the damage. 13. TANDEM DISCLAIMER. ALL WARRANTIES REGARDING THE PROFESSIONAL SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY ANY MEANS WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. Schedule TA-C-3 SCHEDULE TA-E SOFTWARE HOUSE TERMS AND CONDITIONS 1. DEFINITIONS. "ADD-ON" is an item of Integrity Hardware or NonStop Kernel Hardware that a Customer orders after an Initial Order of Integrity Hardware or NonStop Kernel Hardware, whichever the case may be, for which Tandem paid a base fee, provided that the same Application Package for which Customer qualified for the base fee was the Essential Factor in the Customer's purchase of the Add-on. "ADD-ON PERIOD" is the twelve (12) month (or, in the event that Alliance Member provides Tandem with a copy of its Intelecable software application product for demonstration on the Integrity platform no later than October 15, 1995, the eighteen (18) month) period following the shipment date of the Initial Order for which Tandem paid a particular base fee. "APPLICATION PACKAGE" means any of the software application products described in Exhibit E4 developed, sold and/or licensed by Alliance Member to Customers for use with the Products. "ESSENTIAL FACTOR" means any Application Package which is the primary and essential cause of an Initial Order. "INITIAL ORDER" means a Customer's first order of Integrity or NonStop Kernel Hardware consisting of at least one processor required to support an Application Package and not for the primary purpose of replacing or upgrading existing Products. "INTEGRITY HARDWARE" means Integrity FT, or Integrity NR servers, Hardware and "NONSTOP KERNEL HARDWARE" means NonStop Kernel Hardware that Tandem makes generally available during the term of this Agreement, except technology upgrades, Integrity NR workstations and all Atalla, U-B Network Products, Tandem Source Company and Tandem Telecom Division Products. "REVENUE INFLUENCE" means the Hardware revenue Tandem receives on an Initial Order or an Add-on in a transaction where an Application Package is the Essential Factor, less all applicable shipping, insurance and installation charges, Taxes-except net income, net worth or franchise taxes assessed on Tandem-custom duties, discounts, rebates or trade-ins. 2. PAYMENT OF FEES. Alliance Member will develop and/or license, market, maintain and support Application Packages in a manner which causes the sale of Hardware for use with Application Packages. If an Application Package is the Essential Factor, subject to the Holdback Provisions of Schedule TA-A, Alliance Member will earn (i) a base fee of 10% of the Revenue Influence for an Initial Order of NonStop Kernel Hardware and Software for which a one time License Fee is paid, (ii) a base fee of 6% of the Revenue Influence for an Initial Order of Integrity Hardware and Software for which a one time License Fee is paid,. (iii) an Add-on fee of 10% of the corresponding Revenue Influence for NonStop Kernel Add-on purchased during the Add-on Period and (iv) an Add-on fee of 6% of the corresponding Revenue Influence for Integrity Add-on purchased during the Add-on Period. 3. CONDITIONS FOR PAYMENT OF FEES. Tandem will pay fees only if the following conditions are satisfied: (i) Tandem determines that the Application Package sold or licensed to the Customer was the Essential Factor in the Customer's purchase of Hardware; (ii) Tandem approves payment of the fees (Exhibit E3); (iii) The Customer purchases or licenses and installs and accepts both the Hardware and the Application Package; (iv) Alliance Member is not materially in default under this Schedule; and (v) Alliance Member submits to Tandem an application for fees (Exhibit E2) within 120 days after the shipment of the Initial Order. At its option Alliance Member may identify prospective Customers and submit a Prospect Form (Exhibit El) to Tandem for acknowledgment that Prospect qualifies for fees hereunder. 4. LIMITATIONS ON PAYMENT OF FEES. Tandem's obligation to pay fees is limited as follows: (i) Alliance Member must own or have the legal right to license and distribute the Application Package; (ii) Hardware must be shipped while this Schedule TA-E is in effect, unless this Schedule is renewed or the parties enter into a new written agreement within 30 days of its termination or expiration, in which case Tandem will pay the fees under the terms of the renewed Schedule or new agreement; (iii) Tandem must first receive payment in full for the Hardware; (iv) Hardware must be sold directly to a Customer by Tandem; (v) Tandem may set- off against any fee any amounts Alliance Member owes Tandem; and (vi) if Tandem determines that the Application Package and software products of another Tandem Alliance Partner are both Essential Factors, Tandem may apportion the fee between Alliance Member and the Partner in any manner Tandem deems appropriate. 5. TERMS FOR CREDIT OR PAYMENT OF FEES. Tandem will pay fees within 45 days after it receives payment in full for the Products (or if payment is made in installments, after it receives each installment payment). All fees will be paid in United States dollars or, at Tandem's sole option, in the currency of the country and in the country in which the Customer pays Tandem for the Products. 6. DESCRIPTION OF TARGETED MARKET: Geographic Area: Worldwide Description of Industry: Rest of Market Data Processing Needs of Customer: Alliance Member will provide Intelecable and follow-on applications for subscription/customer management billing system Application Products on both the Tandem Integrity and NonStop Kernel Products (except as provided in Schedule TA-B). Schedule TA-E, Page 1 of 1 EXHIBIT E1 PROSPECT FORM CABLEDATA/TANDEM ALLIANCE AGREEMENT This form is intended to notify Tandem Computers Incorporated of a potential Tandem hardware/software sale related to CableData's Intelecable-TM- Solution applications programs. Such a sale would entitle CableData to an Influence Fee as described in the Tandem Alliance Agreement dated January 1, 1995. 1. PROSPECT/CUSTOMER INFORMATION Name and address: Contact name/telephone no.: Tandem Customer? YES___ NO___: Current Platform(s): 2. AUTHORIZED PRODUCT: (HIMALAYA, INTEGRITY NR, PUMA, ETC.) Name: Quantity: 3. ANTICIPATED INFLUENCE FEE:__________ Received and Acknowledged by Tandem Computers Incorporated By: ----------------------------------- Authorized Signature Name: --------------------------------- Date: --------------------------------- TA-E, Exhibit E1-1 EXHIBIT E2 NOTIFICATION OF SOFTWARE HOUSE FEE ELIGIBILITY Tandem has, within the past 120 days, completed the following sale in which [Name of Alliance Member]'s Application Package, listed in Exhibit E3 of the Alliance Member Agreement dated ___________________________, was necessary to Customer's decision to purchase Products. By submitting the following facts of the sale, we request that Tandem recognize and confirm that an influence fee is due. Customer Name: ------------------------------------------------------------- Install Location: ---------------------------------------------------------- - --------------------------------------------------------------------------- System/Add-on Number: ------------------------------------------------------ Base Fee or Add-on Fee: ---------------------------------------------------- Tandem Sales Representative: ----------------------------------------------- Application Package: ------------------------------------------------------- Date of Application Package License Agreement: ----------------------------- (Note: To be considered complete, this application must be supported by a copy of the signature page of the Application Package license agreement and a copy of the Customer invoice.) Estimated Date of Application Package Installation: ------------------------ Estimated Date of Acceptance of Application Package: ----------------------- Are any other Alliance Partner's products licensed to this system? --------- - --------------------------------------------------------------------------- Tandem approval, pursuant to Section 3.(ii) of Schedule TA-E, will be conducted by the following Jurisdictional Entity in the following Tandem Divisions: Europe Selling Country Manager Asia/Pacific Selling Country Manager The Americas Alliance Business Operations IN THE EUROPE AND ASIA/PACIFIC DIVISIONS, SUBMIT COMPLETED FORM TO YOUR PARTNERSHIP MANAGER. IN THE AMERICAS DIVISION, SUBMIT COMPLETED FORM TO TAG FEES VIA INFOWAY OR FORWARD TO YOUR PARTNERSHIP MANAGER. COPIES OF SALES DOCUMENTATION SHOULD ALSO BE SENT TO YOUR PARTNERSHIP MANAGER. TA-E, Exhibit E2-1 EXHIBIT E3 SOFTWARE HOUSE FEE PAYMENT APPROVAL (TANDEM LETTERHEAD] [Alliance Member Contact] [Alliance Member Name] [Alliance Member Address] [Date] Dear [Alliance Member Contact]: Tandem has completed review of the Notification of Software House Fee Eligibility submitted on [date received] involving a sale to [Customer] under Tandem System [System/Add-on Number]. Based upon the sales documentation provided by your organization as well as supporting information from Tandem personnel involved in the sale, I am pleased to inform you that Tandem will acknowledge [Application Package] as an essential factor in the sale of System [System/Add-on Number] and will approve payment of the influence fee. The influence fee due for this sale has been computed at [value] and is based upon Revenue Influence, as defined in your Alliance Member Agreement. The fee amount is approximate pending Tandem's receipt of payment in full from [Customer] for the Products. You may expect payment of the fee within forty-five (45) days after Tandem receives such payment in full. Your Alliance contact has been apprised of the outcome of this petition and should be your point of contact for any questions you might have. Congratulations on the sale of your application. Tandem eagerly anticipates future joint successes. Very truly yours, [Jurisdictional Entity] [Title] [Alliance Division] TA-E, Exhibit E3-1 EXHIBIT E4 APPLICATION PACKAGE DESCRIPTION Name of Application Package: - -------------------------------------------------------------------------------- Functional Description of Application Package: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Products on which Application Package operates: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Additional comments or remarks that identify Application Package: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Attach additional copies of this Exhibit E3 for other Application Packages.) TA-E, Exhibit E4-1 SCHEDULE TA-F SOFTWARE SERVICE PLANS GENERAL PROVISIONS At any time during the Warranty Period of any Licensed Product, warranty Service can be enhanced to the level of a Service Plan at the charges indicated in Tandem's Price Guide. Corrective Service will be furnished via the Tandem NonStop Support Center ("TNSC") and will include action to verify the existence of a defect, determine the severity or impact of the defect, and determine conditions under which the defect may recur. During such verification, Tandem may request further information about the defect from Alliance Member. After such information is provided to enable Tandem to duplicate or verify the defect, Tandem will, at its option: 1. for a Critical Defect (as defined in the Agreement), commence action within the work-shift hours specified in the selected Service Plan using commercially reasonable efforts to provide a temporary solution of or workaround to the defect; or 2. for a non-critical defect, commence action within the workshift hours specified in the selected Service Plan to provide either the action set forth in 1. above or a statement that the defect will be corrected in a future Release; or 3. provide a statement that the Licensed Product operates as described in Tandem's current user documentation or that the defect arises when such Product is used other than in a manner for which it was designed. Prior to contacting Tandem for corrective Service for noncritical defects, Alliance Member is responsible for researching the Tandem database to determine if there is an interim product modification ("IPM") that will address the problem. Software media. Releases and updates to Releases, and documentation and updates to documentation via CD are provided with each Service Plan. SELF SUPPORT PLAN includes: For a Critical Defect, Alliance Member may request corrective Service via electronic mail or fax to the TNSC between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays. Except for workstation Software, Tandem will commence action within 2 work-shift hours and provide on-site assistance when deemed necessary by Tandem. For a non-critical defect or any defect in workstation Software, Alliance Member may request Service via electronic mail to the TNSC between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays. Tandem will commence action within 4 work-shift hours or within 8 work-shift hours for workstation Software. Problem support on a time and expense basis is not available under the Self Support Plan. SUPPORT CENTER ASSISTANCE PLAN includes usage problem support through the TNSC and: For a Critical Defect, Alliance Member may request corrective Service via phone or fax to the TNSC 24 hours a day, 7 days a week, excluding national holidays. Except for workstation Software, Tandem will generally commence action during the initial contact and provide on-site assistance when deemed necessary by Tandem. For a non-critical defect or any defect in workstation Software, Alliance Member may request Service via phone to the TNSC between the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding national holidays. Tandem will generally commence action during the initial contact or within 4 work-shift hours for workstation Software. A service planning meeting will be provided at least once annually between Tandem and Alliance Member to discuss the current Service Plans and Alliance Member's future requirements. MULTIPLE SYSTEMS SUPPORT OPTION (AVAILABLE ONLY IF SUPPORT CENTER ASSISTANCE PLAN IS SELECTED) is designed for Alliance Members with more than one System. "Multiple System" means a System for which the Alliance Member elects to receive support through a Primary System. "Primary System" means each System that is not a Multiple System. Alliance Member must identify each Primary System and its corresponding Multiple Systems. Multiple Systems Support will be provided under the following conditions: - - The Primary System must be approved by Tandem per current policy and supported under Support Center Assistance; - - All Licensed Products on a Multiple System(s) must be licensed on the Primary System; - - Service on a Multiple System will be furnished through the identified Primary System; - - The Alliance Member will reproduce on the identified Primary System any Multiple System problem requiring support; - - Alliance Member's key contact for a Primary System will be responsible for working all problems with Tandem; - - Tandem will provide Releases and Release updates to a Primary System only, and Alliance Member will distribute such Releases and Release updates to) each designated Multiple System; and - - Service requested directly on a Multiple System will be provided at Tandem's published time and expense rates. Tandem retains the right to refuse to provide Multiple System Support in cases where the above conditions are not met. NETWORK PRODUCTS SERVICE PLANS The Premier24, Flex12 and Base9 Hardware Service Plans for Network Products include Support Center Assistance for Network Licensed Products as described in the Software Service Plans above at no additional charge, except that corrective Service will be furnished only during the hours specified in the selected Hardware Service Plan. Schedule TA-F, Page 1 of 2 SOFTWARE SERVICE PLAN ORDER FORM Tandem Quote No._______________ and/or Alliance Member P.O. No._______ Alliance Member agrees to obtain and Tandem agrees to provide Service for Products at the charges indicated on the attached quotation or purchase order under the Service Plan selected herein, in accordance with the terms and conditions of the above Agreement and the attached Service Plans and Options. NOTE: NOT ALL SERVICE PLANS AND OPTIONS ARE AVAILABLE FOR ALL PRODUCTS OR AT ALL LOCATIONS. TANDEM SYSTEM NUMBER(S): #_________ #_________ #_________ #_________ #_________ SOFTWARE SERVICE PLAN SELECTION: BASIC PLANS: WARRANTY ENHANCEMENT: Yes / No (Circle One) ____SELF SUPPORT SERVICE COMMENCEMENT DATE: ____SUPPORT CENTER ASSISTANCE ____Date of Installation ____Date of Warranty Expiration ____Other______/______/______ OPTIONS: (available with Support Center Assistance only unless otherwise indicated) MULTIPLE SYSTEM SUPPORT Primary System(s): #_________ #_________ #_________ ____HOLIDAY COVERAGE ____CRITICAL PROBLEM SUPPORT FOR WORKSTATION SOFTWARE (available with both Basic Plans) NAME: CABLEDATA, INC. "Alliance Member" ---------------------------------------------------------------------- BY: DATE: ------------------------------------------------- ------------- PRINT NAME: TITLE: ----------------------------------------- ------------ DO NOT COMPLETE: TANDEM INTERNAL USE ONLY Alliance Member #__________ Discount Site/Volume ___% Minimum Term___% Other____@____% Service Reference #________ Primary CE or SE ____________________________ Schedule TA-F, Page 2 of 2 SCHEDULE TA-G PRODUCT RENTAL AGREEMENT Alliance Member hereby contracts for and TANDEM COMPUTERS INCORPORATED ("Tandem"), by its acceptance and execution hereof, agrees to rent to Alliance Member and Alliance Member agrees to rent from Tandem, computer hardware ("Hardware") and software ("Software") (collectively "Products"). Products may be ordered on a Rental Order Form (example attached) or on Alliance Member's order form containing equivalent information ("Rental Order") subject to acceptance by Tandem, for delivery and use in the United States, in accordance with the terms and conditions of this Agreement (the "Agreement"). 1. RENTAL PERIOD The rental period will commence on the Date of Installation as defined in Section 4 and continue for the period specified in a Rental Order unless sooner terminated by Alliance Member upon 30 days prior written notice. In addition, should Alliance Member (i) fail to perform any of its obligations under this Agreement for a period of 30 days after written notice of such failure, or (ii) breach any of its confidentiality obligations under this Agreement, Tandem will have the right to terminate this Agreement immediately upon delivery of written notice to Alliance Member of its election to do so. Tandem's rights of termination are in addition to any other rights and remedies provided in the Agreement or by law. 2. TRANSPORTATION AND INVOICES a. All transportation to and from Alliance Member's site will be paid by Alliance Member and will be set forth separately on Tandem's invoice to Alliance Member. b. Rental charges, including any applicable license charges and service charges, will commence on the Date of Installation and will be invoiced monthly in advance. Alliance Member will pay all invoices, in full, within 30 days of the date of invoice. 3. TITLE AND RISK OF LOSS a. Title to, and ownership of, the Hardware will remain with Tandem unless Alliance Member exercises its option to purchase under Section 8 below. Tandem will bear risk of loss or damage to the Products during transportation and during the rental period except for loss or damage caused by Alliance Member. b. Title to, ownership of, and all proprietary rights, including patent rights, copyrights, trade secret rights, and other intellectual property rights, in each item of Software, including all copies and derivative works thereof are reserved to and will at all times remain the property of Tandem or its suppliers. 4. INSTALLATION a. Unless Alliance Member requests Tandem to do so, Alliance Member will install Products in accordance with Tandem's published specifications. If the Product is installed by Alliance Member, the 10th day following the shipment date for such Product will be deemed the "Date of Installation" for all purposes of this Agreement. b. If Alliance Member requests Tandem to install Products: 1) Alliance Member will place each Product in its desired location. Products will be subject to Tandem's published installation charges, if any. 2) The first business day following the day on which Tandem installs the Product will be deemed the "Date of Installation" for all purposes of this Agreement. Should installation not occur within 30 days of shipment through no fault or delay of Tandem, the 30th day following the shipment date will be deemed the "Date of Installation." 5. SERVICES a. During the rental period, Tandem will provide Hardware and Software services for Products rented under this Agreement in accordance with the Service Plans selected by Alliance Member on a Software Service Plan Order Form subject to the charges set forth on a Rental Order pursuant to the Agreement for Maintenance Services between Tandem and Alliance Member dated 2-15-92, as amended, and Schedule TA-F. b. Neither the service obligations contained in this Section 5, nor the warranty contained in Section 11, applies to any Product if adjustment, repair or parts replacement is required because of (i) accident, neglect, misuse, failure of electrical power, failure of Alliance Member to provide appropriate environmental conditions, relocation of Hardware, or causes other than ordinary use, (ii) Alliance Member repair or alteration, or attempted repair or alteration, of any item of Hardware or spare part, where such activity is not authorized by Tandem, (iii) Alliance Member's connection of any item of Hardware to another device making warranty service impractical or which has caused damage to such Hardware; or (iv) Alliance Member-supplied software or the addition of a non-Tandem product or interface, or (v) damage arising from natural or man-made disaster, vandalism or destruction caused by acts of nature c. Additional zone charges will apply to on site service for systems located more than 100 miles from a Tandem support location, and desktop and network products located more than 50 miles from a Tandem support location. Service outside the scope of a Service Plan will be furnished at Tandem's then-current published rates. Consumable items are not provided by Tandem. 6. SOFTWARE LICENSE a. "Software" means a software product in object code only, user documentation and related materials that are furnished by Tandem under this Agreement. No source code and no license to use source code is provided hereunder. b. Tandem hereby grants to Alliance Member a non-exclusive, nontransferable license, without right to sublicense, for the use of each item of Software on the Hardware set forth in the Rental Order for Alliance Member's business use only. Except for agents or contractors who need to use such item of Software in the performance of their duties for Alliance Member, Alliance Member will not permit any item of Software to be used by any other person or on any other computer system. c. Alliance Member will not reverse engineer, decompile or reverse compile, disassemble, list, print or display any Software or otherwise attempt to obtain the source code or other Confidential Information from any Software. Alliance Member will not modify, or permit any person other than Tandem to modify Software or any part thereof. d. No Software or part thereof may be duplicated by Alliance Member except that Alliance Member may make one copy of any machine-readable portion solely for Alliance Member's normal archival or security backup purposes. Alliance Member will properly reproduce on each such copy all notices of patent rights, copyrights, trademark rights or trade secret rights in such Software or any part thereof. e. Use of certain Software Products may be limited to a maximum number of users. Schedule TA-G PAGE 1 OF 4 f. Upon expiration of any rental period including any extensions thereof or upon the termination of this Agreement or of any license granted hereunder for any reason other than Alliance Member's exercise of its purchase option contained in Section 8 hereof, all rights of Alliance Member to use the Products listed in the Rental Order will cease and Alliance Member will immediately (i) grant access to the Products to Tandem to remove the Products, (ii) purge all copies of all Software from all computer processors or storage media on which Alliance Member has installed or permitted others to install such Software, and (iii) when requested by Tandem, certify to Tandem in writing, signed by an officer of Alliance Member, that all copies of the Software have been returned to Tandem or destroyed and that no copy of any Software remains in Alliance Member's possession or under its control. g. The terms of any shrink-wrap license included with Software ordered hereunder will supersede and take precedence over the terms of this section 6. 7. CONFIDENTIALITY a. "Confidential Information" means the confidential and proprietary data or information developed or acquired by either party and marked or clearly designated in writing. b. The receiving party will keep all Confidential Information in confidence and will not disclose any item of Confidential Information to any person other than its employees, agents or contractors who need to know the same in the performance of their duties. The receiving party will protect and maintain the confidentiality of all Confidential Information with the same degree of care as it employs to protect its own Confidential Information, but at least with a reasonable degree of care including requiring agents and contractors to sign a nondisclosure agreement. The receiving party will be liable to the disclosing party for any non-compliance by its agents or contractors to the same extent it would be liable for noncompliance by its employees. c. Alliance Member recognizes that each item of Software (i) is considered by Tandem to be a trade secret, (ii) is furnished by Tandem to Alliance Member in confidence, and (iii) contains proprietary and Confidential Information, and that, accordingly, such Software constitutes Confidential Information under this Section. d. Confidential Information does not include any data or information which (i) was in the receiving party's lawful possession prior to the submission thereof by the disclosing party, (ii) is later lawfully obtained by the receiving party from a third party under no obligation of secrecy, (iii) is independently developed by the receiving party, or (iv) is, or later becomes, available to the public through no act or failure to act by the receiving party. 8. OPTION TO PURCHASE a. Alliance Member may, at any time, purchase any item of Hardware or re-license the Software specified in a Rental Order by entering into Tandem's then current purchase and/or license agreement and placing an order thereunder with respect to such Products. The effective date of purchase/license will be the date Tandem issues the invoice for such Products. In such event: 1) Upon the effective date of purchase, title to each item of Hardware so purchased will pass to Alliance Member. 2) Software may be re-licensed under any license term and fee option available for that Software. 3) The item will be deleted from this Agreement and rental charges for such item will cease. 4) The effective date of purchase/license will be the date of warranty commencement, if applicable, for each Product. b. Tandem will grant a credit based on the total rental charges paid for an item of Hardware during the rental period toward the applicable purchase price for that item. Credits will be equal to 100% of rental charges paid for Hardware purchased during the first 3 months of the rental period and 50% of rental charges paid for Hardware purchased during months 4 through 6 of the rental period. 9. ALTERATIONS Alliance Member agrees not to employ or use any additional attachment, feature or device on the Hardware listed in a Rental Order without the written consent of Tandem. Alliance Member will remove any such attachment or alteration immediately upon termination of rental. After the rental termination date, Tandem will restore the Hardware to its original configuration (ordinary wear and tear excluded) and Alliance Member agrees to pay the cost of restoration. Alliance Member may not relocate the Products without Tandem's prior written consent 10. WARRANTY; EXCLUSIVE REMEDY a. Tandem warrants to Alliance Member that the Products listed in a Rental Order, when properly installed, will meet the specifications published by Tandem for such Products on the Date of Installation. b. THE WARRANTY CONTAINED IN SECTION 10.a. IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. TANDEM AND ITS SUPPLIERS DO NOT WARRANT THAT THE LICENSED PRODUCTS ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED. c. Alliance Member's exclusive remedy, and Tandem's sole obligations and liability, for any breach of the warranty contained in Section 10.a. will be Tandem's furnishing the services provided in Section 5 hereof. 11. LIMITATION OF LIABILITY a. Tandem will be liable for actual damages in contract or tort under this Agreement up to the greater of $10,000 or the charges paid to Tandem for the Product that is the subject of the claim, and for damages for bodily injury or death, to the extent that all such damages are determined by a court of final jurisdiction to have been directly caused by Tandem. b THE REMEDIES IN THIS AGREEMENT ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT WILL TANDEM OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFIT OR DATA. 12. ASSIGNMENT Neither party may assign this Agreement or any of its rights or obligations without prior written consent from the other party. 13. SURVIVAL The terms and limitations, exclusions, and warranties contained in this Agreement that by their sense and context are intended to survive the performance thereof by either or both parties hereunder shall so survive the completion of performance and termination of this Agreement, including without limitation the confidentiality provisions and the making of any and all payments due hereunder. Schedule TA-G Page 2 of 4 14. ENTIRE AGREEMENT; GOVERNING LAW; MISCELLANEOUS a. This Agreement is the parties' entire agreement relating to the Products furnished hereunder. It supersedes all prior proposals and representations with respect to its subject matter and prevails over any conflicting or additional terms of any quote, order, acknowledgment or similar communications between the parties. b. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, excluding conflict of law rules and principles. ALLIANCE MEMBER HAS READ THIS RENTAL AGREEMENT AND AGREES TO BE BOUND THEREBY. Agreed to: Accepted by: CABLEDATA, INC "Alliance Member" TANDEM COMPUTERS INCORPORATED By By ---------------------------- ------------------------------- ---------------------------- ------------------------------- (Print Name) (Print Name) Title Title ---------------------------- ------------------------------- Date Effective Date ---------------------------- ---------------------- Schedule TA-G, Page 3 of 4 Agreement No.________ RENTAL ORDER FORM Tandem Quote No.____________________ and/or Alliance Member P.O. No.____________ Alliance Member agrees to rent the Products described in this Rental Order Form in accordance with the terms and conditions of the above Agreement. RENTAL PERIOD: __________months HARDWARE LIST: Product # Description Monthly Rent --------- ----------- ------------ SOFTWARE LIST: Product # Description Monthly Rent --------- ----------- ------------ SERVICE CHARGES: (Attach Software Service Plan Order Form with selected plans and options) Hardware Basic Monthly Maintenance Charge (BMMC): $________ Software Monthly Service Charge (MSC): $_________ MONTHLY TOTAL: $________ In the event further rental of the products listed herein are desired beyond the expiration of the rental period, Alliance Member will be invoiced an amount equal to Tandem's then current standard published price for the additional rental. CABLEDATA, INC "Alliance Member" By Title --------------------------------- --------------------------------- - ----------------------------------- Date (Printed Name) -------------------------------- Schedule TA-G, Page 4 of 4 EX-10.33 13 EXHIBIT 10.33 EXHIBIT 10.33 CONTRACT FOR COMPUTER SOFTWARE POSTALSOFT SOFTWARE LICENSE AGREEMENT This Contract Agreement is entered into effective the 13TH day of FEBRUARY, 1996, by and between INTERNATIONAL BILLING SERVICES, INC., with offices at 5220 ROBERT J. MATTHEWS PARKWAY, EL DORADO HILLS, CALIFORNIA 95762, hereinafter referred to as "Customer," and Postalsoft, Inc., a Wisconsin corporation engaged in the business of distributing computer hardware and software with principal offices at 4439 MORMON COULEE RD., LA CROSSE, WISCONSIN 54601-6245, hereinafter referred to as "POSTALSOFT." In consideration of the payments, agreements, covenants, and mutual undertakings hereinafter set forth, the parties agree as follows: This Agreement consists of this document together with the following attachments, which are incorporated herein by reference: ATTACHMENT A: Designated Postalsoft Software Schedule ATTACHMENT B: Designated Performance Schedule ATTACHMENT C: Designated Extended Service Program (ESP) Schedule POSTALSOFT and CUSTOMER agree that the terms set out below will apply to any CUSTOMER order for POSTALSOFT Licensed Software. Under these terms and conditions Postalsoft will furnish such Licensed Software to CUSTOMER, and grant to CUSTOMER a perpetual, nontransferable and nonexclusive limited license of the software for the Territory known as the United States of America, subject to the terms set forth below. For the purpose of simplifying the ordering procedure under this Agreement, CUSTOMER and POSTALSOFT may amend this Agreement to allow future additional Licensed Software to become subject to this Agreement when a written POSTALSOFT PRODUCT ADDENDUM is signed by Customer and accepted by POSTALSOFT. THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT INCLUDING THE TERMS SET FORTH BELOW, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS, CONCURRENT OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. GENERAL PROVISIONS A. DEFINITIONS 1. LICENSED SOFTWARE. For purposes of this Agreement, "Licensed Software" shall mean licensed data processing programs consisting of a series of computer instructions or statements and any related licensed materials, such as data base files and operating instructions, which programs and materials are listed in ATTACHMENT A and the POSTALSOFT PRODUCT ADDENDUM. 1 2. ESP. For purposes of this Agreement, "ESP", shall mean Extended Service Program comprising changes or corrections to Licensed Software to make the Licensed Software perform the functions described in the User Manuals, or to otherwise correct errors contained in Licensed Software. B. LICENSE TERMS AND RESTRICTIONS 1. Each license granted under this Agreement authorizes the CUSTOMER to: a. use the Licensed Software only at a specific installation site and on a specific computer as designated in ATTACHMENT A and/or the POSTALSOFT PRODUCT ADDENDUM and b. utilize operating instructions and User Manuals in support of the use of the Licensed Software, and c. make one (1) copy of the Licensed Software in machine-readable form solely for backup purposes. Additional copying of Licensed Software is unauthorized. 2. Licensed Software documentation, including User Manuals and instructions in printed form, may not be copied. Additional copies of printed materials may be obtained under license from POSTALSOFT at the charges then in effect. 3. The CUSTOMER is authorized to transfer any license to and use the Licensed Software on a backup machine, installation or location designated in ATTACHMENT A and/or the POSTALSOFT PRODUCT ADDENDUM, if the designated site is temporarily inoperable or unusable and POSTALSOFT is immediately notified of such use in writing, but in no event shall such temporary period exceed ninety (90) days. 4. This License does not include the right to sublicense, transfer, or assign the Licensed Software without the prior written consent of POSTALSOFT and any such attempted sublicense, transfer, or assignment is unauthorized. 5. The Customer agrees not to remove or obscure Postalsoft's property rights notices, or alter, decompile or disassemble the programs supplied in object code form. C. CUSTOMER RIGHTS AND OBLIGATIONS 1. INSTALLATION AND ACCEPTANCE. Installation of the Licensed Software can be performed by POSTALSOFT or CUSTOMER. Installation responsibility is designated in the CONTRACT FOR INSTALLATION AND TRAINING. The Licensed Software shall be deemed accepted once the Licensed Software performs the functions described in the User Manual. 2. ESP. CUSTOMER shall purchase the Extended Service Program (ESP) for the Licensed Software as set forth in ATTACHMENT C. Following the initial ESP period, CUSTOMER shall have the option to renew for successive twelve (12) month periods. POSTALSOFT shall notify the CUSTOMER thirty (30) days or more prior to the end of each ESP period. Subject to the provisions of Section E.2. hereof, under no circumstances shall CUSTOMER cancel or terminate the ESP midterm and shall only terminate for the successive period by nonrenewal. 3. CONFIDENTIALITY. The performance of this Agreement may provide each party with confidential information concerning the other party's business or business practices. Both parties agree to hold all such information in strict confidence and not to disclose or divulge same to any third party for any reason whatsoever without the prior written consent of the 2 other party. Such confidential material and information must be designated in writing at the time of disclosure. 4. INVOICING AND PAYMENT. Invoices shall be issued by POSTALSOFT upon delivery of the Licensed Software and sixty (60) days prior to the renewal of any ESP service. Such invoices shall be due and payable within thirty (30) days for the Licensed Software and ESP service. Invoices not paid within such thirty (30) days will have a one (1) percent per month interest charge, or the maximum interest allowed by law if less, assessed against the unpaid balance. D. PROPRIETARY RIGHTS OF POSTALSOFT 1. PROPRIETARY RIGHTS. The Licensed Software and all programs developed hereunder and all copies thereof are proprietary to POSTALSOFT and title thereto remains in POSTALSOFT. All applicable rights to patents, copyrights, and trade secrets in the Licensed Software or any modifications or derivative works made at CUSTOMER'S request are and shall remain in POSTALSOFT. CUSTOMER shall not sell, transfer, publish, disclose, display, or otherwise make available the Licensed Software or copies thereof to others without Postalsoft's prior written consent. CUSTOMER agrees to secure and protect each module, software product, documentation, and copies thereof in a manner consistent with the maintenance of Postalsoft's rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each program or software product to satisfy its obligations hereunder. All copies made by the CUSTOMER of the Licensed Software and other programs developed hereunder, including translations, compilations, partial copies with modifications, and updated works, are the property of POSTALSOFT. Violation of any provision of this paragraph shall be the basis for immediate termination of this License Agreement. CUSTOMER, in recognition of the fact that the Licensed Software contains highly confidential and proprietary POSTALSOFT information and that POSTALSOFT will be irreparably damaged if the security of the Licensed Software is breached, agrees that POSTALSOFT is entitled to injunctive relief and damages as may be determined by a court of competent jurisdiction. 2. TERMINATION AND SURVIVAL BEYOND TERMINATION. The terms and provisions contained in this Section D shall survive the termination of this Agreement or any license hereunder. Upon any termination of a license hereunder, CUSTOMER shall return the Licensed Software and delete all copies thereof from its libraries. At POSTALSOFT'S request, CUSTOMER shall certify in writing, in a form acceptable to POSTALSOFT, that it has complied with its obligations under this Section D. E. LIMITED WARRANTY AND LIABILITY 1. LIMITED WARRANTY a. POSTALSOFT warrants, that for a period of ninety (90) days from acceptance , not to exceed one hundred twenty (120) days from installation of any Licensed Software as provided in Section C. 1 hereof, such Licensed Software, when properly installed, will perform the functions described in its User Manuals subject to the understanding that the Licensed Software and information in any database will become dated if CUSTOMER fails to subscribe to ESP, and accordingly, all warranties and obligations of POSTALSOFT shall terminate with any ESP termination. After ninety (90) days from the acceptance date, error corrections made to the Licensed Software will only be made available as a service of the Extended Service Program. Notwithstanding the foregoing, as enhanced versions of the Licensed Software are released to current ESP CUSTOMERS, POSTALSOFT'S obligations to correct problems in the 3 Licensed Software shall only apply to the most recent version of same. POSTALSOFT shall not be obligated to correct any error in an old version of the Licensed Software if the error has been corrected in a newer version, notwithstanding that the CUSTOMER may not have received such newer version by reason of its failure to have elected to receive ESP hereunder. b. POSTALSOFT further warrants its rights to enter into this Agreement and/or the right to grant this License and agrees to defend or settle, at its expense, any action at law against CUSTOMER arising from a claim that any Licensed Software infringes any intellectual property right, or at POSTALSOFT'S option, it may terminate this License and refund the license fee paid, proratably, based upon a thirty-six (36) month useful life of the Licensed Software subject to CUSTOMER'S obligation under Section D.2 hereof. c. POSTALSOFT MAKES NO FURTHER WARRANTY AND DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER WRITTEN OR VERBAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF RESULTS, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RESOURCE UTILIZATION, RESPONSE TIME, OR SYSTEM OVERHEAD. 2. LIMITED LIABILITY. POSTALSOFT'S entire liability and CUSTOMER'S exclusive remedy shall be as follows: a. In situations involving performance or nonperformance of Licensed Software furnished under this Agreement, CUSTOMER'S sole remedy is replacement or correction of the Licensed Software by POSTALSOFT so that it will perform the functions as described in the User Manuals. In the event POSTALSOFT is unable to correct the deficiency within a reasonable period of time, which in no event shall be less than sixty (60) days, POSTALSOFT'S liability shall be limited to: (1) a refund of the license fee paid by CUSTOMER to POSTALSOFT for the specific Licensed Software in question, provided the claim of nonperformance is made by CUSTOMER and received by POSTALSOFT within the ninety (90) day warranty period as set forth in Section E. 1. a. hereof, or (2) a refund of the unused, prepaid, prorata ESP fee, if the claim is received after the expiration of the ninety (90) day warranty period. All claims made by CUSTOMER hereunder must be in writing. b. In no event shall POSTALSOFT be liable for any lost profits, or other special consequential or punitive damages, even if POSTALSOFT has been advised of the possibility of such damages, or for any claim against CUSTOMER by any other party, except with regard to an action for infringement of intellectual property rights. 3. MODIFICATION TO SOFTWARE. In the event CUSTOMER changes or modifies the Licensed Software in any manner, all warranties given hereunder are canceled and same shall release POSTALSOFT of any further obligation or liability. F. DEFAULT In the event CUSTOMER fails to make any payment within thirty (30) days of the due date or breaches any other material covenant contained in this Software License Agreement or any Addendum or Supplement hereto, the license granted hereunder shall immediately terminate and CUSTOMER shall return the Licensed Software and delete all copies thereof from its libraries. In addition, CUSTOMER agrees to pay all costs, including reasonable attorneys fees, incurred by POSTALSOFT as a result of any such default, including costs of collection. 4 G. INDEMNIFICATION 1. CUSTOMER shall indemnify and hold POSTALSOFT harmless from any costs, expenses, or liability resulting from any claim based on CUSTOMER'S use or possession of the licensed program, excluding claims based upon POSTALSOFT'S negligence or patent, copyright, or similar infringement of third-party rights. Such indemnity will survive the termination or expiration of this Agreement. 2. If any action is instituted against CUSTOMER based upon a claim that the Licensed Software or any component or use thereof infringes a U.S. patent or copyright, POSTALSOFT shall, for and on behalf of CUSTOMER, defend and indemnify such action at POSTALSOFT'S expense, provided CUSTOMER has promptly notified POSTALSOFT in writing of such action and POSTALSOFT has sole control of the defense and any settlement negotiations. POSTALSOFT shall have no liability if the action arises out of any modifications to the Licensed Software without the express written permission of POSTALSOFT; or any use of the Licensed Software in combination with any other system, equipment or software not furnished by POSTALSOFT or approved by POSTALSOFT in writing. Notwithstanding the foregoing, if a claim of such infringement is made and appears likely to result in the entry of an injunction against the use of the Licensed Products or portions thereof, POSTALSOFT may choose to do any of the following: (a) modify the Licensed Product so that it is not infringing, (b) obtain the right for the CUSTOMER to continue to use the Licensed Products, (c) substitute non-infringing software which provides substantially comparable functions, or (d) terminate this License Agreement and return all License Fees paid by CUSTOMER on a pro-rata basis based on a three (3) year useful life of the Licensed Products. H. ASSIGNMENT OR TRANSFER Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by CUSTOMER without the prior written consent of POSTALSOFT. I. MISCELLANEOUS 1. AMENDMENTS AND NOTICES. All Amendments, Addendums and Supplements to this Agreement shall be in writing and signed by both parties. In no event shall terms contained in any related purchase order or invoice be made a part of this Agreement. All notices and claims shall be made only in writing and shall be deemed made upon receipt. Any nonwritten notice or claim shall be of no effect. 2. NOT BINDING UNTIL ACCEPTED. This Agreement and all Supplements thereto shall not be binding until it is signed and accepted by POSTALSOFT at its headquarters in the State of Wisconsin. 3. FORCE MAJORA. Neither party shall be responsible for failure to perform caused by reason of any act of God, labor dispute, nondelivery by supplier, fire, flood, legal action, governmental order or regulation, or any other causes beyond its control. 4. CAPTIONS AND HEADINGS. All captions, headings, and titles contained in this Agreement are for convenience and reference purposes only and shall not be deemed a part of this Agreement. 5. PARTIAL INVALIDITY. If any part of this Agreement, or the application thereof, is for any reason held or otherwise found to be unenforceable, it shall be deemed severable and the 5 validity of the remainder of this Agreement or the application of such provisions to other circumstances shall not be affected thereby. 6. TAXES. CUSTOMER shall, in addition to the other amounts payable under this License Agreement pay all sales and other taxes, federal, state, or otherwise, however designated, which are levied or imposed by reason of transactions contemplated by this License Agreement. Without limiting the foregoing, CUSTOMER shall promptly pay to POSTALSOFT an amount equal to any such item actually paid, or required to be collected or paid by POSTALSOFT. 7. GOVERNMENT LAW AND JURISDICTION. This Agreement shall be governed and enforced under the laws of the State of Wisconsin. Any paragraph, subparagraph, sentence or phrase of this Agreement that is contrary to the laws of the State of Wisconsin and/or unenforceable shall not affect the validity or enforceability of any other paragraph, subparagraph, sentence, or phrase of this Agreement, and shall be modified or deleted to conform with the applicable laws of the State of Wisconsin. 8. BENEFIT. This Agreement shall be binding upon and inure to the benefit of POSTALSOFT'S successors and assigns. 9. U.S. GOVERNMENT RESTRICTED RIGHTS. The software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights In Technical Data and Computer Software clause at DFARS 252.227-7018 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52-227 as applicable. Manufacturer is POSTALSOFT, Inc. 4439 Mormon Coulee Rd., La Crosse, Wisconsin 54601-8231. IN WITNESS WHEREOF, the CUSTOMER aud POSTALSOFT have executed this Agreement effective as of the date established on Page 1. ATTEST: POSTALSOFT, INC. BY: --------------------------- TITLE: CONTRACTS MANAGER ------------------------ DATE: 2/14/96 ------------------------- ATTEST: Customer BY: --------------------------------- TITLE: SR. V.P., Systems & Technology ------------------------------ DATE: 2/26/96 ------------------------------- 6 ATTACHMENT A LIMITED VOLUME LICENSE - 1 BILLION RECORD CEILING QTY DESCRIPTION PRICE 1 PW ACE Canada Library [*] 1 PW Presort Plus 4x [*] 1 PW 1st Cl PST Plus 4x [*] 1 Piece Variable Size & Dimension [*] TOTAL SOFTWARE COSTS [*] The above licensed PostWare will be used in the following Operating System Environment: REGS utilizing the following Central Processing Unit: SILICON GRAPHICS INC. *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. ATTACHMENT B DESIGNATED PERFORMANCE SCHEDULE MILESTONE APPROXIMATE DAYS FROM CONTRACT SIGNING Place Order for Software On Execution Test and Install Software On Execution Software Invoiced to CUSTOMER On Execution Invoices shall be issued by POSTALSOFT upon delivery of the Licensed Software and sixty (60) days prior to the renewal of any ESP service. Such invoices shall be due and payable within thirty (30) days and thirty (30) days for the Licensed Software and ESP service, respectively. ATTACHMENT C DESIGNATED EXTENDED SERVICE PROGRAM (ESP) SCHEDULE QTY DESCRIPTION PRICE 3 yr PW ACE Canada Library [*] 3 yr PW Presort Plus 4x [*] 3 yr PW 1st Cl PST Plus 4x [*] 3 yr Piece Variable Size & Dimension [*] 3 yr Canadian Directory [*] TOTAL ESP COSTS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. EX-10.42 14 EXHIBIT 10.42 EXHIBIT 10.42 ALTERNATE MAILING SYSTEM AGREEMENT BETWEEN THE UNITED STATES POSTAL SERVICE AND INTERNATIONAL BILLING SERVICES, INC. 5220 ROBERT J MATHEWS PARKWAY EL DORADO HILLS, CA 95762-5712 Bulk Third-Class PURPOSE: This service agreement, and any attachments, set forth the terms and conditions for International Billing Services, Inc. of El Dorado Hills, California for use of an Alternate Mailing System Agreement (AMS) as described and authorized by the United States Postal Service in accordance with Domestic Mail Manual (DMM) P730. If there is any difference between this agreement and the mailing standards in the Domestic Mail Manual, the postal standards in the DMM will govern. An Alternate Mailing System Agreement provides for other methods of accepting permit imprint mail, not established in Domestic Mail Manual P710 or P720, that show proper postage payment and mail preparation without verification by weight. CONDITIONS: The conditions of authorization for Alternate Mailing System Agreements (DMM P730.2.2) are: - - Authorization to use AMS must benefit the USPS - - Authorization to use AMS must include a signed agreement - - An AMS agreement must specify the terms and conditions of the AMS - - All postage must be paid by permit imprint unless otherwise permitted in writing by the RCSC - - There must be no additional costs to the USPS for an AMS agreement beyond the costs of current mail acceptance procedures for the mail in question - - The mailer must implement a quality control program that ensures proper mail preparation and accurate documentation, subject to USPS approval. The service agreement must include details of this program that ensure proper mail preparation and accurate documentation, subject to USPS approval. The service agreement must include details of this program. Each AMS mailing must include a statement from the mailer certifying that the approved quality control verification is done. - - Authorization must not exceed 2 years. - 1 - ARTICLE 1: This Alternate Mailing System Agreement is for third-class Bulk Rate nonidentical weight permit imprint mailings for The Sacramento Bee for which the documentation and maintenance of records as outlined in Article 9 are maintained by the mailer. This agreement is for specific mailings at the mailer's plant (known as: IBS II) located in: Sacramento, California The mailer may request other AMS agreements for additional mailer plant locations by submitting a written request to the postmaster at the office of mailing. The request must include a complete description of the types of matter to be mailed; the proposed method of paying postage; the proposed method to determine correct mail preparation; and a statement of the reasons for requesting the alternate mailing system. The USPS may review the mailer's operation before ruling on the application. ARTICLE 2: Mailings under this agreement are limited to third-class Bulk Rate mail for The Sacramento Bee. Mailings will be prepared as required by the applicable mailing standards in the Domestic Mail Manual. Specific primary and secondary documents are listed for use with this system. The mailings will be produced at the IBS II plant in Sacramento, California. ARTICLE 3: The Postmaster or designee, Rancho Cordova, California will verify mailings at the mailer's Sacramento, California plant. All mailings verified under this agreement at the mailer's Sacramento, California plant will have funds withdrawn from permit imprint account number 300 held with the Postmaster, Rancho Cordova, California. ARTICLE 4: Mailer's Responsibilities: 1. International Billing Services, Inc. is responsible for complying with all postal laws and regulations which may apply to the mailings including the proper classification of materials as set forth in the DMM. Mailings must be prepared and presented to the Postal Service in accordance with this agreement. International Billing Services, Inc., will tender mail prepared in accordance with this Agreement only at entry points specifically approved in advance by the Postal Service. The mailer's plant in Sacramento, California will be the entry point for all mail entered under this Agreement. - 2 - 2. International Billing Services, Inc., will provide unrestricted access to mail preparation areas for employees of the Postal Service to observe mail preparation and to verify mailing records. 3. At the time mail is presented for acceptance and/or released by the Postal Service, the mailer must be able to provide: - - Primary Documents as described in Article 9 - - "Postal Accumulated Manifest Report" for each rate category - - Consolidated Register of Mailing Statement (Business Day 3800 Summary with Grand Totals) - - Coding Accuracy Support System Report (PS Form 3553) or computer-generated facsimile (DMM A950.5.2) for automation rate mailings - - Carrier-Route Listings for Carrier-Route mailings - - Any other documentation required by the Domestic Mail Manual for rate eligibility. ARTICLE 5: International Billing Services, Inc., must maintain sufficient funds in an advance deposit account at the Rancho Cordova, California Post Office for any mailings entered and released by the United States Postal Service. (DMM P040.5.6 Prepayment) ARTICLE 6: The mailer will document and/or process damaged or withdrawn mailpieces as outlined in Attachment "A" (Mailer's Quality Control Procedures). The mailer will adhere to all quality control procedures and documentation as outlined in the Quality Control Procedures attached to this agreement (Attachment "A") ARTICLE 7: Attachment "B" includes sample copies of mailing documentation covered by this agreement. The Manager, RCSC must be notified 80 days in advance for approval to any proposed changes to this documentation which may affect correct calculation/assessment of postage for mail released by the Postal Service under this Agreement or affects any primary or secondary postal audit documentation used to support this agreement. ARTICLE 8: Postal audit documents for this AMS will be maintained at the mailer's plant in El Dorado Hills, California. If requested by the Postal Service audit documents will be available for postal inspection at the Sacramento IBS II plant with seven (7) days prior notice to International Billing Services, Inc., A sample pack will be maintained at the mailer's plant located in El Dorado Hills, California for mailings submitted by International Billing Services, Inc., under the AMS agreement. The sample pack will include some of the required documents as specified in Article 9 of this agreement and any additional documentation and information desired by the mailer. Some documentation for this agreement is maintained electronically (Article 10) and certain documentation is maintained by the Postal Liaison because of space limitations in the sample pack. The sample pack will consist of information for a particular "corp" or "plan." - 3 - The mailer defines a corp as a select client with an exact plan(s) consisting of select envelopes and inserts (stuffers.) The plan may differ numerous times for the same corp/client during a mailing day. Maintenance of the documentation is required to permit reconciliation with the statements of mailing and to enable the Postal Service to verify the accuracy of the computations for individual mailings as well as for the aggregate of all mailings. These records will be maintained centrally and retained for a period of one year. The mailer has been authorized to maintain in electronic format the following providing the conditions in Article 10 are met: - -The primary document, the "Postal Manifest Postage Listing," shows the number of pieces of mail, postage for each piece by destination and "corp/plan" or ":S-Key" and summarizes the postage and piece counts for each mailing under this authorized Alternate Mailing System Agreement. ARTICLE 9: PRIMARY MAILING RECORDS FOR IMAGE BILLS POSTAL MANIFEST LISTING - Shows rate qualification by ZIP Code for mailpieces by route number, 5-digit, 3-digit ZIP Codes and by residual. Customer has authorization in Article 10 to maintain this documentation electronically if approved by the Manager, Business Mail Entry in Sacramento, California. SECONDARY MAILING RECORDS 1. Sample Pack enclosures for each corp/plan: - - Plan Job Card (shows the number pieces, corp/plan, file number, inserts, quality control checks initialed by each department as mail is processed through printing, inserting, sealing, packaging, traying, etc.,) - - Sample of job tray/sack labels for the exact corp/plan - - Sample of mailing envelope with permit imprint including all inserts - - Sample of tray labels for the exact corp/plan mailing - - StatementsPLUS Close Out Index (used for monitoring all activities and documents handling needed to close-out the corp/plan) - - StatementsPLUS Plan Summary Report - - Customer Return Letter - - Turnabout Analysis Summary Information - - Transmission Audit Report - - Facsimile Work Request Customer Invoice - 4 - - - Customer Statement of Accounts or Billing Statistics/Billing Validation Report ARTICLE 10: Electronic Storage of the "Postal Manifest Listing" for any mailing generated, is acceptable under this Agreement providing: - - The mailer must be able to provide the Postal Service the entire "Postal Manifest Listing" for any mailing generated within seven days after the date of mailing. The information must be provided by the mailer to the Postal Service within 24 hours. - - The information can be extracted from the electronic media for a single mailpiece by keying the unique keyline from a specific mailpiece into the computer - - The mailer will ensure that for any mailing selected for postage verification by the Postmaster or designee of Rancho Cordova, California that the mailer will generate a complete hard copy of the "Postal Manifest Listing" for the entire contents of one or more tray or containers within that same mailing to the postal clerks verifying a mailing. The information must be produced for verification of a mailing before a mailing is released - - The mailer will require 15 days advance notice to provide requests for the "Postal Manifest Listing" beyond seven days from the date of mailing ARTICLE 11: Postal verification may occur at anytime. Verification will be conducted as required to meet postal standards. If mailings are accepted at the mailer's plant they are subject to Plant Load Operations approval by the Sacramento District of the Postal Service. This may entail preliminary notice of mail volume in advance to allow the Postal Service adequate time for truck/trailer dispatches. ARTICLE 12: Overpayments and underpayments identified during USPS verification require a postage adjustment. Verification samples are deemed to be representative of the entire mailing and postage adjustments calculations are based on the total mailing. The mailer must pay a penalty surcharge when the sampling verification shows that the error exceeds 1.5% of the claimed postage. The total corrected postage for the entire mailing and a penalty equal to 10% of the postage error calculation is deducted from the permit imprint advance deposit account (DMM P730.1.2.) Additionally, the mailer agrees to notify the RCSC, in writing, regarding the reason for the error and how it will be prevented in the future. ARTICLE 13: Any underpayment of postage to the USPS detected by International Billing Services, Inc., must be reported to the administering post office within five (5) working days from the date of detection. The reporting office will advise the administering RCSC of all underpayments. - 5 - Any refund request or deficiency (underpayment) will trigger an investigation by the administering RCSC and International Billing Services, Inc. to determine how and why the error occurred, why it was not detected by the system, and what corrective measures have or should be taken. A joint audit will be performed if determined necessary by the manager of the administering RCSC. If the Manager, RCSC, determines excess postage was paid or postage was underpaid because of an error by International Billing Services, Inc. the cost of conducting the audit to identify and correct the cause of the problem and the total administrative costs and processing costs incurred by the Postal Service will be charged to International Billing Services, Inc. ARTICLE 14: The Manager, Rates and Classification Service Center may revoke this AMS authorization if the mailer (DMM P730.2.7): - - Provides incorrect data for mailing and appears unable or unwilling to correct all problems - - Is not conducting required quality control procedures as described by the mailer in Attachment A - - No longer meets the criteria established by standard or the AMS agreement - - Does not present a mailing under this AMS for six (6) months - - Continues to present improperly prepared mailings ARTICLE 15: Duration and terms of this Agreement The mailer may cancel this agreement at any time by giving written notice to the San Bruno Manager, Rates and Classification Service Center. ARTICLE 16: Annual system reviews will be conducted by the San Bruno RCSC. Monthly reviews will be conducted by either the Manager, Business Mail Entry, Sacramento District, the Postmaster, Rancho Cordova, California or their designees. ARTICLE 17: This agreement will remain in effect for a one-year period beginning December 18, 1995 and ending December 17, 1996. - 6 - ARTICLE 18: This agreement consists of 18 articles and five (5) attachments and can only be changed or modified by addendum with the approval of the Manager, San Bruno Rates and Classification Service Center. ATTACHMENTS DESCRIPTION - - Attachment A Mailers Quality Control Procedures - - Attachment B Primary Documentation Samples - - Attachment C Mailer's Request for Alternate Mailing System - - Attachment D Mailer's Definition of Terms - 7 - SIGNATURE PAGE - ALTERNATE MAILING SYSTEM AGREEMENT FOR THE POSTAL SERVICE J. M. Long Acting Manager, Customer Service Support - --------------------------------- ----------------------------------------- Name Title /s/J. M. Long 916 373-8703 - --------------------------------- ------------------------------------------ Signature Telephone 3/26/96 Sacramento, CA 95799-0070 - --------------------------------- ------------------------------------------- Date City, State, ZIP + 4 FOR THE POSTAL SERVICE Larry Groce Postmaster - --------------------------------- ------------------------------------------- Name Title /s/Paulette Mahoney for Larry Groce 916 574-3062 - ---------------------------------- -------------------------------------- Signature Telephone 3/18/96 Rancho Cordova, CA 95670-9998 - ---------------------------------- -------------------------------------- Date City, State, ZIP + 4 FOR INTERNATIONAL BILLING SERVICES, INC. Mury Salls Vice President Postal Relations - ---------------------------------- -------------------------------------- Customer Name Title /s/Mury Salls 916 939-4670 - ---------------------------------- -------------------------------------- Signature Telephone Number 3/21/96 El Dorado Hills, CA 95762-5712 - ---------------------------------- ---------------------------------------- Date City, State, ZIP + 4 For Rates and Classification Service Center /s/Linda A. Deaktor Manager, Rates and Classification Service Center - ------------------------------ ------------------------------------------------ Linda A. Deaktor Title 3/28/96 San Bruno, California 94096-9599 - ------------------------------ --------------------------------------------- Date of Approval City, State, ZIP + 4 Attachment A --------------------------------------------------- Mailer's Quality Control Procedures [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SAMPLE VERIFICATION CHECKLIST [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 MAIL VERIFICATION [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 9 CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 10 CST 1 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. 11 ATTACHMENT B SAMPLE DOCUMENTATION [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Postage Summary [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. SAMPLE VERIFICATION CHECKLIST [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. ATTACHMENT C - MAILER'S REQUEST FOR ALTERNATE MAILING SYSTEM AGREEMENT [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. ATTACHMENT D -- MAILER'S DEFINITION OF TERMS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. PG 1 OF 5 DEFINITION OF TERMS [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. PG 2 OF 5 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Pg 3 OF 5 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Pg 4 OF 5 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Pg 5 OF 5 [*] *PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. -----END PRIVACY-ENHANCED MESSAGE-----