EXHIBIT 10.25
Confidential Treatment Requested
under 17 C.F.R. Sections 200.80(B)(4),
200.83 and 230.406
CAYENTA, INC.
TOTAL SERVICE PROVIDER SERVICES AND LICENSE AGREEMENT
This TOTAL SERVICE PROVIDER SERVICES AND LICENSE AGREEMENT (the "Agreement"),
is made this 30th day of March, 2000, (the "Consulting Effective Date") by
and between CAYENTA, INC. ("CAYENTA"), a Delaware corporation with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
and ▇▇▇▇▇▇▇▇▇▇.▇▇▇, a division of Penton Media, Inc. ("CLIENT"), a Delaware
corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
CAYENTA is a total service provider engaged in the business of licensing
certain software applications ("Licensed Software"), providing enterprise
application outsourcing services ("Outsourcing Services"), providing hosting
services and providing its clients with services related to the evaluation of
client enterprise application needs, and the design and installation of
computer systems as necessary and desirable for its clients to take full
advantage of the Outsourcing Services of Licensed Software, and Client
desires to retain Cayenta to perform certain of such services on Client's
behalf.
NOW THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS. For purposes of this Agreement:
1.1 "ACCEPTANCE" means the time, after complete installation and
integration of the Deliverable, when the Deliverable has successfully
completed the Acceptance Tests and such other criteria as set forth in the
Statement of Work.
1.2 "ACCEPTANCE TEST" means a series of functional tests developed from
mutually developed criteria and specifications regarding Deliverables in
accordance with the Statement of Work that are constructed to exercise the
products or materials for the purpose of discovering operational deficiencies.
1.3 "CAYENTA TECHNOLOGY" means Cayenta's proprietary information,
data, technology, know how, methods and methodologies, Templates (as
hereafter defined), software code (including the Licensed Software),
Documentation (as hereafter defined), Tools, interfaces, trade secrets,
methods and methodologies, algorithms, libraries, design flows, processes,
databases, mechanical and electronic hardware, electronic components,
computers and their parts, computer languages, programs and their
documentation, encoding techniques, articles, writings, compositions, works
of authorship, and other proprietary materials that are used, conceived or
reduced to practice by Cayenta in connection with performance of the
Professional Services, including, without limitation, any and all Innovations.
1.4 "CLIENT-PROVIDED MATERIALS" means the materials and technology
owned, licensed or otherwise controlled by Client that Cayenta reasonably
requires to perform the Professional Services including, without limitation,
those items described as Client-Provided Materials in the Statement of Work,
including, but not limited to, the Customized Applications.
1.5 "CONFIDENTIAL INFORMATION" means any non-public information or
trade secret written or otherwise disclosed in any medium by one party to the
other under this Agreement and marked or otherwise designated as
"Confidential" or is clearly by its nature confidential. However,
Confidential Information shall not include any information that: (a) is or
becomes a part of the public domain through no act or omission of the other
party or otherwise available to the public other than by breach of this
Agreement; or (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; or (c) is lawfully disclosed to the
other party by a third party without restriction on disclosure; or (d) is
independantly developed by the other party without access to the Confidential
Information.
1.6 "DEFICIENCY" means any failure of any feature of any of the
Deliverables to operate in accordance with the applicable Documentation and
the Statement of Work.
1.7 "DELIVERABLES" means any tangible items described in the Statement
of Work to be delivered by Cayenta to Client.
1.8 "DOCUMENTATION" means any and all technical, engineering and user
documentation, and all training manuals, operating procedures, support
materials and tools, and all other written materials provided, whether in
printed or electronic form, proprietary to Cayenta and provided by Cayenta to
Client regarding the Deliverables or otherwise related to the Professional
Services.
1.9 "FEES" means those fees as set forth on the payment Schedule in the
Statement of Work.
1.10 "HEALTHWELL MARKET" means the alternative healthcare and natural
products industry.
1.11 "HOSTING SERVICES" means those services to be performed by Cayenta
with respect to hosting the Web Site, as more fully described in Section 2.2
of this Agreement.
1.12 "INNOVATIONS" means any improvement, invention, development or
innovation to, or related or arising from, the Cayenta Technology that is
conceived or developed solely by Cayenta or its employees in the performance
of the Professional Services under this Agreement.
1.13 "IP RIGHTS" means all intangible, intellectual, proprietary and
industrial property rights, including but not limited to: (i) all trademarks,
trade names, service marks or logos, including all registrations and
applications therefor; (ii) all copyrights, moral rights, and other rights in
works of authorship including all registrations and applications therefor;
(iii) all mask works and other rights pertaining to semiconductors including
cell libraries, microcode, tapes, tape-outs and netlists rights, including
all registrations and applications therefor; (iv) all patents and patent
applications, patentable ideas, inventions and innovations; (v) all know-how
and trade secrets; and (vi) all other rights covering intangible property
recognized in any jurisdiction.
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1.14 "PAYMENT SCHEDULE" means the payment schedule set out in the
Statement of Work.
1.15 "PRODUCTION SYSTEM" means a computer system configured to enable
Client to receive Outsourcing Services.
1.16 "PROFESSIONAL SERVICES" means those services, other than Hosting
Services, to be provided by Cayenta to Client regarding the Healthwell
Exchange, pursuant to the terms of this Agreement, as more fully described on
the Statement of Work, as may be modified or supplemented from time to time,
which include, but are not limited to designing, developing, programming,
operating, updating, maintaining, and testing for quality assurance the Web
Site.
1.17 "PROJECT SCHEDULE" means the timetable relating to the
performance of the Professional Services and delivery of Deliverables that is
set out in the Statement of Work.
1.18 "STATEMENT OF WORK" means the description of the Professional
Services and Deliverables to be provided hereunder and attached hereto as
EXHIBIT A.
1.19 "TEMPLATE" means the source code and object code versions of a
particular software application, including all Upgrades thereto, which is
comprised of any combination of Tools, technology, code, system settings, and
Documentation that is pre-existing and owned by or licensable by Cayenta
prior to the Consulting Effective Date and that may be used as a basis for,
and underlies, any Deliverable.
1.20 "THIRD PARTY COMPONENTS" means those items of hardware or
software comprising the Production System that are proprietary to or
manufactured by third parties, whether or not Client obtains such items, or
Cayenta obtains such items on Client's behalf.
1.21 "TOOLS" means certain tool kits and re-useable building blocks
that may be useful in connection with the operation, modification, and
customization of the Template.
1.22 "WEB SITE" means the web site owned by Client and found on the
World Wide Web portion of the Internet at the URL ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇,
featuring Client content and geared towards alternative healthcare and
natural products and containing on-line business transaction functions,
including the Healthwell Exchange.
2. PROFESSIONAL SERVICES.
2.1 PROVISION OF SERVICES. Provided that Client pays Cayenta in
accordance with the terms of Article 4, Cayenta will provide to Client the
Professional Services and Deliverables in accordance with the Statement of
Work. The Deliverables shall be accepted in accordance with the criteria set
forth in Article 3.
2.2 WEB SITE HOSTING SERVICES. Cayenta and Client agree to negotiate in
good faith for the provision by Cayenta to Client of Hosting Services with
respect to the Web Site, which may include such things as the provision of
infrastructure (hardware, operating systems, application software, databases
and internet hosting), 7x24 operations support, maintenance, database
administration, backup, catalog implementation support services and help desk
services. The
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obligations, relationships and arrangements of the parties with respect to
Hosting Services will arise and be governed only under and pursuant to the
terms and conditions of a definitive statement of work with respect to such
Hosting Services. If Cayenta and Client do not agree on such a statement of
work for Hosting Services, then Client may host the Web Site on its own or a
third-party's servers. Cayenta agrees that it will deliver to Client all
materials, and that Client has the rights hereunder, reasonably necessary to
so host the Web Site including the Deliverables.
2.3 PERFORMANCE. Cayenta shall use best efforts to provide the
Professional Services and obligations described hereunder. Cayenta
acknowledges and agrees that it stands in a position of trust and confidence
to Client as the provider of such services that are critical to Client's
business and the Web Site.
2.4 CHANGE ORDERS. The Statement of Work may be modified from time to
time by supplementary change orders in accordance with APPENDIX A, attached
hereto. Thereafter, the Professional Services and Deliverables shall be
deemed to include the services and deliverables, if any, described in such
change orders.
2.5 MANNER AND MEANS. The manner and means used by Cayenta to perform
the Professional Services are in the sole discretion and control of Cayenta;
provided, however, that the scope and direction of such Professional Services
will be based on a collaborative effort between the Project Managers of both
parties. Depending on the tasks(s) to be performed, work may be performed at
Cayenta's designated facilities or at Client's site. Cayenta shall ensure
that all Cayenta personnel involved in the performance of the Professional
Services on Client's premises comply with Client's security procedures and
other workplace regulations. The Professional Services shall be performed in
a manner calculated to minimize interference with Client's business.
2.6 ITEMS PROVIDED BY CLIENT.
2.6.1 Mandatory Licenses. Prior to the commencement of the Professional
Services, Client agrees to obtain and install on its relevant computer
system(s) those items of third party software set forth on EXHIBIT B. Client
understands and agrees that commencement of the Professional Services will
not take place unless and until such software is acquired and installed.
2.6.2 Third Party Components. Client understands and agrees that
Client will be solely responsible for obtaining all Third Party Components;
provided, however, that is so specified in the Statement of Work, Cayenta may
obtain all or some of the Third Party Components on Client's behalf, subject
to Client's payment to Cayenta therefor.
2.6.3 Client-Provided Materials, Facilities, Data, Systems. Client
agrees to provide Cayenta with the Client-Provided Materials, as well as
suitable working space and facilities, network connection, and such other
items as may be set forth on the Statement of Work or reasonably requested by
Cayenta from time-to-time in the course of providing the Professional
Services. Client shall provide to Cayenta on a timely basis during Client's
normal business hours access to Client's data, systems and facilities as may
be reasonably required by Cayenta to perform the Professional Services.
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2.6.4 Client Personnel. Client shall make available to Cayenta those
of its personnel, as set forth on and described in greater detail in the
Statement of Work, which may be changed from time-to-time. Client shall
appoint a qualified project manager ("Project Manager") who shall serve as
Client's primary liaison to Cayenta throughout the course of the Professional
Services. The Project Manager shall be authorized by Client to answer all
questions posed by Cayenta and convey all decisions made by Client during the
course of the Professional Services and Cayenta shall be entitled to rely on
such information as conveyed by the Project Manager. Client's appointed
Project Manager is set forth in the Statement of Work. The parties will
resolve any personnel-related issues in good faith.
2.7 PROJECT SCHEDULE. Cayenta shall use its best efforts to comply
with the Project Schedule, and Client agrees to cooperate in good faith to
allow Cayenta to achieve completion of the Professional Services in a timely
and professional manner. Client understands and agrees that Cayenta's
provision of the Professional Services may depend on certain obligations of
Client such as timely decision-making, completion of certain tasks by Client,
or availability of Client personnel. Consequently, the Project Schedule, time
of performance, and Professional Services may require adjustments in the
event such Client obligations have not been fulfilled. Cayenta shall have no
liability for delays in performance to the extent based on the
non-fulfillment of such Client obligations or Force Majeure.
3. TESTING AND ACCEPTANCE.
3.1 TESTING.
3.1.1 Establishing Acceptance Test. When applicable with respect to
Deliverables, on a project-by-project basis, Cayenta shall develop customary
Acceptance Tests, subject to the approval of Client.
3.1.2 Commencement of Acceptance Test. After installation (and
integration if applicable), Client shall commence, at the time specified in
the Statement of Work, the Acceptance Tests for each particular Deliverable.
Client will have a period of ten (10) days from the completion of the
Acceptance Test within which to notify Cayenta of any Deficiencies in the
Deliverable. Each Acceptance Test procedure will include the right of Client
to "sign-off" before a Deliverable is put into live production use. Client
shall be entitled as part of the Acceptance Test to use the Deliverables in
production use for purposes of determining whether the Deliverables contain
any Deficiencies. Cayenta shall correct such Deficiencies found in acceptance
testing at its expense. After correction of all such Deficiencies, and after
successful completion of the Acceptance Test, Customer shall accept or be
deemed to have accepted the particular Deliverables being tested.
3.1.3 Rejection and Re-Work. Within a period of time which is
reasonable in each case under the circumstances and subject to the Acceptance
Tests, Client shall either accept the Deliverable or notify Cayenta that it
rejects the Deliverable, stating in detail the Deficiencies that are its
grounds for rejection. Cayenta shall provide additional services and re-work
to correct the rejected Deliverable, and then deliver it again to Client for
acceptance. Client shall promptly review all corrections and modifications to
the Deliverables made by Cayenta, and if any Deficiencies remain in the
Deliverable, Cayenta will correct the same within ten (10) days from the date
of notice. Such services and re-work will be at Cayenta's sole expense. The
10-day
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acceptance period in SECTION 3.1.2 will be extended as required for Client to
perform Acceptance Tests on Cayenta's re-worked Deliverables.
3.1.4 Rejection. If Cayenta cannot satisfy the Acceptance Tests and
cause a Deliverable to meet the requirements of this Agreement in all
material respects within a reasonable number of iterations, Client may
reject the Deliverable and exercise its other available remedies.
4. SERVICES FEES AND EXPENSES.
4.1 FEES. For the Professional Services provided by Cayenta, Client
agrees to pay the Fees. Unless otherwise specified in the Statement of Work,
Client will be billed on a monthly basis with respect to time and materials
incurred in the previous month; Client shall make payment for all undisputed
invoices within thirty (30) days after the date of invoice.
4.2 ITEMIZED INVOICES. All invoices must be accompanied by itemization
reasonably sufficient for Client to verify the amounts due. At Client's
request, Cayenta shall provide reasonable documentation and cost-tracking
capabilities, including time reports, receipts, and back-up for out-of-pocket
expenses, to support any invoice issued by Cayenta.
4.3 EXPENSES. Client shall reimburse Cayenta for approved expenses
incurred in connection with the provision of the Professional Services and
Deliverables. Expenses shall be billed to Client on a monthly basis and
payment shall be made within thirty (30) days after the date of invoice.
4.4 TAXES. The amounts payable to Cayenta pursuant to this Agreement are
exclusive of any sales or use or other taxes or governmental charges. Client
shall be responsible for payment of all such taxes or charges, except for any
taxes based solely on Cayenta's net income.
4.5 LATE PAYMENTS. All payments not timely made pursuant to this Article 4,
shall bear interest at [...***...]
4.6 NO PAYMENT OBLIGATION. If Cayenta fails to deliver, demonstrate and
operate a fully operational version of the Deliverables for the Healthwell
Exchange in accordance with the Statement of Work, then Client may terminate
this Agreement immediately and shall not be obligated to make any payments
under this Agreement.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 RETAINED OWNERSHIP RIGHTS. Except as explicitly set forth herein,
neither this Agreement, nor the provision of Professional Services hereunder,
shall give either Cayenta or Client any ownership interest in or rights to
the IP Rights of the other party. All IP Rights that are owned or controlled
by a party at the commencement of this Agreement shall remain under the
ownership or control of such party throughout the term of this Agreement and
thereafter.
5.2 RIGHTS OF CAYENTA. Cayenta shall retain all right, title and
interest in and to any and all Cayenta Technology, Templates and Innovations
and IP Rights arising therefrom. To the extent Client retains as a matter of
law any rights to the Cayenta Technology, Templates and
* Confidential Treatment Requested
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Innovations ("Retained Rights") except as may be expressly licensed hereunder,
Client hereby irrevocably assigns to Cayenta any and all such Retained
Rights, including IP Rights.
5.3 RIGHTS OF CLIENT. The Client-Provided Materials, the Web Site, and
any and all software products, business models, documentation, or other
materials developed or prepared by Client ("Work Product") are the sole and
exclusive property of Client, and all rights, title, and interest therein,
including all IP Rights are to be owned exclusively and vest solely in
Client, and Cayenta hereby acknowledges that it has no right, title, or
interest to such Work Product or IP Rights therein. To the extent that title
to any such Work Product may not, by operation of law or of this Agreement,
vest solely in Client, then Cayenta hereby irrevocably assigns to Client any
and all rights, title, and interest including all IP Rights therein.
5.4 COOPERATION. Each party agrees to cooperate fully with the other
party, at such other party's reasonable request and expense, in connection
with all intellectual property protection in accordance with this Article 5.
6. LICENSE OF TECHNOLOGY.
6.1 LICENSE.
6.1.1 Subject to compliance with the terms and conditions hereof,
Cayenta grants to Client a worldwide, non-exclusive, irrevocable, perpetual
fully paid up right and license, without rights to sublicense, to use,
reproduce, display, perform and transmit the Deliverables and the Cayenta
Technology, Templates, and Innovations incorporated into the Deliverables
(collectively, the "Licensed Materials") as part of any web site owned or
co-branded by Client solely in connection with the Client's business purposes.
6.1.2 Notwithstanding Section 6.1.1, in and with respect to the
Healthwell Market, and subject to restrictions applicable to Cayenta under
its agreements with respect to software provided by third parties, the
license granted in Section 6.1.1 includes object and source code, files, and
system and technical documentation for the Licensed Materials (and any other
information or materials reasonably necessary to maintain, support and modify
the Licensed Materials) and includes the right to modify the Licensed
Materials, solely in connection with the Client's business purposes.
6.1.3 No license is granted to the Cayenta Technology or the Templates
separate from the Deliverables. Cayenta shall advise Client of the software
and technology being used to provide the services hereunder and the third
parties from which they are licensed. Cayenta shall collaborate with Client to
obtain third-party licenses in a manner that will provide for the maximum
flexibility of Client but without increasing Cayenta's cost of performance
hereunder.
6.2 CLIENT-PROVIDED MATERIALS. Client hereby grants Cayenta a fully
paid, royalty-free, non-exclusive limited right and license to use the
Client-Provided Materials, solely in order for Cayenta to perform the
Professional Services and develop and prepare the Deliverables hereunder.
6.3 RIGHTS RESERVED. All rights not specifically granted to Client in
Section 6.1 are retained by Cayenta. Except as permitted under Section 6.2,
Client may not reproduce, manufacture, have manufactured, modify, make
derivative works of, license, sublicense, sell,
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offer to sell, transfer, import or otherwise distribute any Cayenta
Technology, Innovations or Cayenta IP Rights.
6.4 NO REVERSE ENGINEERING. Client may not (a) reverse engineer,
decompile, or disassemble the Cayenta Technology or the Innovations, (b)
attempt to derive the source code of any Cayenta Technology or the
Innovations of Cayenta (c) permit or encourage any third party to do any of
the foregoing, except to the extent permitted by applicable law in order to
render software interoperable with other software.
6.5 ADDITIONAL RIGHTS UPON EXPIRATION. Notwithstanding the limitations
set forth above, upon the expiration or earlier termination of this
Agreement, Client shall have the right to make derivative works of the
Cayenta Technology and Innovations incorporated into the Deliverables solely
in connection with the Client's use of the Deliverables for its Web Site and
in connection with Client's business purposes. Client shall have the right to
sublicense such right to third party contractors engaged by Client, provided
that each such contractor is made subject to a written agreement that is
consistent with and no less protective of Cayenta's intellectual and
industrial property rights and other proprietary rights than the terms of
this Agreement. Client understands and agrees that (a) any such contractor
may only use the Cayenta Technology and Innovations on Client's behalf and
not on behalf of such contractor or any other third party and (b) Client
shall remain fully liable for any misuse or unauthorized use of the Cayenta
Technology and Innovations by any such contractor.
7. WARRANTIES AND LIMITATION OF LIABILITY.
7.1 DELIVERABLE WARRANTY. Cayenta warrants that (a) the Deliverables
will substantially perform to the specifications referenced herein at the
time of delivery and for the term hereof, (b) the Deliverables will be free
from all Deficiencies at the time of delivery and for a period of [...***...]
days thereafter, and (c) the Deliverables will not infringe any patent,
copyright, trademark, or trade secret, of any third party, arising or
enforceable, under the laws of the United States.
7.2 PROFESSIONAL SERVICES WARRANTY. Cayenta warrants that (a) it has
the authority to enter into this Agreement, and (b) the Professional Services
provided hereunder will be performed in a professional manner consistent with
both industry standards and the quality of Cayenta's performance of services
under similar types of engagements.
7.3 REMEDY. Client's remedy in the event of a breach of the warranty
of Sections 7.1 or 7.2 of a Deliverable is, at Client's sole discretion, the
reperformance of the Professional Services, or the correction or replacement
of the Deficiency of the Deliverable, a refund of the fees already paid for
the nonconforming Deliverable, or any other of its available remedies.
7.4 TECHNOLOGY OWNERSHIP. Cayenta warrants that it is the sole and
exclusive owner of the IP Rights in, or has received valid licenses for, the
Cayenta Technology, the Templates, and the Deliverables, in each case free and
clear of any and all liens or encumbrances and without violation of the IP
Rights or other rights of any third party. Client warrants that it is the
sole and exclusive owner of the IP Rights in, or has received valid licenses
for, the Client Provided Materials, in each case free and clear of any and
all liens or encumbrances and without violation of the IP Rights or other
rights of any third party.
* Confidential Treatment Requested
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7.5 THIRD PARTY RIGHTS. Each party warrants, to the extent that it is
responsible for obtaining third-party licenses, sub-licenses, data, software,
hardware, information, or other Third Party Components ("Third Party
Materials") under this Agreement, that each party responsible for obtaining
such Third Party Materials shall obtain all necessary permissions, licenses,
and consents, without violation of the IP Rights or other rights of such
third parties.
7.6 DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH ABOVE ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY IMPLIED WARRANTIES CONCERNING THE PROFESSIONAL
SERVICES OR THE DELIVERABLES INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING
OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE WHICH ARE
EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CAYENTA DOES
NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED,
SECURE, OR VIRUS-FREE. WITHOUT LIMITING THE FOREGOING, CAYENTA MAKES NO
REPRESENTATION OR WARRANTIES OF ANY KIND WITH RESPECT TO THE THIRD PARTY
COMPONENTS AND CLIENT AGREES THAT CLIENT SHALL LOOK SOLELY TO THE THIRD PARTY
LICENSORS OR MANUFACTURERS OF SUCH COMPONENTS IN THE EVENT OF ANY DEFECT OR
FAILURE TO PERFORM. TO THE EXTENT CAYENTA MAY NOT AS A MATTER OF LAW DISCLAIM
ANY WARRANTY, THE PARTIES AGREE THAT THE SCOPE AND DURATION OF ANY SUCH
WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
7.7 LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFIED CLAIMS SET FORTH
IN ARTICLE 8 AND FOR CLAIMS BASED ON OR ARISING FROM GROSS NEGLIGENCE AND
WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR
(A) ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID HEREUNDER AND (B) ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, DATA OR REVENUE, OR THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND UNDER ANY THEORY OF
LIABILITY INCLUDING BREACH OF WARRANTY OR CONTRACT, TORT (INCLUDING
NEGLIGENCE, STRICT LIABILITY AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. INDEMNIFICATION.
8.1 BY CAYENTA. Subject to the provisions of Section 8.3, Cayenta
hereby agrees to indemnify, defend and hold Client harmless from and against
any and all liabilities, losses, damages, costs, fees (including reasonable
attorneys' fees) and expenses ("losses") resulting from any suit or action
brought against Client relating to (a) any injuries suffered by Cayenta
employees, except for injuries caused by the gross negligence or intentional
misconduct of Client or its employees or agents; (b) infringement or
misappropriation of any third-party IP Right, or other proprietary right
based on the Cayenta Technology, Innovations or Deliverables as
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provided to Client; (c) breach of this Agreement by Cayenta; (d) breach of
any of the representations and warranties of Cayenta stated in this
Agreement; and (e) any act or omission of Cayenta or others acting on its
behalf in relation to Cayenta's obligations hereunder. Cayenta shall not be
obligated to defend or be liable for Losses to the extent any infringement
claim arises out of: (i) Cayenta's compliance with Client's specifications or
requirements requiring modifications to the Cayenta Technology; or (ii) any
addition to or modification to the Cayenta Technology not made by or
authorized by Cayenta, its agents, employees, or sub-contractors.
Notwithstanding the foregoing, should any Cayenta Technology or Deliverables
become, or in Cayenta's opinion be likely to become, the subject of any such
suit or action for infringement, Cayenta shall, at Cayenta's option and
expense, (1) procure for Client the right to continue using such Cayenta
Technology and Deliverables, or (2) replace or modify such Cayenta Technology
and Deliverables so that it becomes non-infringing.
8.2 BY CLIENT. Subject to the provisions of Section 8.3, Client hereby
agrees to indemnify, defend and hold Cayenta, its affiliates, and their
respective officers, directors, employees, and agents ("Cayenta Indemnities")
harmless from and against any and all Losses resulting from any suit or
action brought against any of the Cayenta Indemnities due to (a) any injuries
suffered by Client employees during Cayenta's performance of the Professional
Services, except for injuries caused by gross negligence or intentional
misconduct of Cayenta or its employees or agents, (b) infringement of any IP
Right due to the use or practice by the Cayenta Indemnities of the
Client-Provided Materials or the IP Rights of Client claiming or covering the
Client-Provided Materials; and (c) breach of any of the representations and
warranties of Client stated in this Agreement, and (d) breach of this
agreement by Client and (e) any act or omission of Client or others acting on
its behalf in relation to Client's obligations hereunder.
8.3 PROCEDURE. If any claim or action (a "Claim") is commenced against
a party entitled to indemnification for Losses under this Article resulting
from such Claim, such party shall give written notice to the other party
within ten (10) days of notice of such Claim. If such party receiving notice
is obligated under this Article to defend the party against such Claim, then
the indemnifying party shall take control of the defense (and any related
settlement negotiations) and investigation of the Claim. The indemnified
party shall cooperate in all reasonable respects in such investigation and
defense (and any related settlement negotiations); provided, that such party
may participate with counsel of its choosing, at its own expense. The
indemnifying party shall not enter into the settlement of any Claim without
the prior written consent of the indemnified party, which consent shall not
be unreasonably withheld or delayed.
8.4 SOLE REMEDY. The foregoing states the parties' sole and exclusive
remedies with respect to claims of infringement of third-party proprietary
rights of any kind.
9. CONFIDENTIALITY.
9.1 CONFIDENTIALITY BETWEEN THE PARTIES. By virtue of this Agreement,
each party hereto may disclose to the other party information that is
Confidential Information. Such Confidential Information shall be governed by
the terms of this Article 9. Each party agrees to use the Confidential
Information of the other party solely to the extent necessary to fulfill its
obligations or exercise its right hereunder, and not for any other purpose.
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9.2 CONFIDENTIAL INFORMATION. Each party agrees, for the term of this
Agreement and five (5) years after its expiration or termination, to hold the
other party's Confidential Information in confidence, not to disclose such
Confidential Information to third parties not authorized by the disclosing
party to receive such Confidential Information, and to disclose such
Confidential Information only to its employees and contractors with a need to
know such Confidential Information and who have the obligations of
confidentiality not to use such Confidential Information for any purpose
except as expressly permitted hereunder. Each party agrees to use at least
the same degree of care that it uses to protect its own Confidential
Information, but no less than reasonable care, to protect the other party's
Confidential Information to ensure that such Confidential Information is not
disclosed, distributed or used in violation of the provisions of this
Agreement. The foregoing prohibition on disclosure of Confidential Information
shall not apply to the extent certain Confidential Information is required to
be disclosed by the receiving party by order of a court or as a matter of
law, including, without limitation, any voluntary filing under the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
provided that the receiving party uses reasonable efforts to provide the
disclosing party with prior notice of such obligation to disclose and either
reasonably assists in obtaining a protective order therefor or reasonably
considers any requests for confidential treatment of such Confidential
Information by the disclosing party.
9.3 RETURN OR DESTRUCTION. Within fifteen (15) days after the party's
receipt of the other party's written request for the return of Confidential
Information, or the completion of the Professional Services hereunder, all of
the other party's Confidential Information and all copies thereof in such
party's possession or control shall be returned to the other party or
destroyed by such party at the other party's instruction. The party shall
then certify the same in writing and that no copies have been retained by the
party, its employees or agents.
9.4 INJUNCTION. Each party acknowledges that unauthorized disclosure
or use of the Confidential Information may cause irreparable harm to the
other party for which recovery of money damages would be inadequate, and the
other party shall therefore be entitled to obtain timely injunctive relief to
protect its rights under this Agreement, in addition to any and all remedies
available at law.
10. RIGHT TO PERFORM SIMILAR SERVICES. Nothing in this Agreement shall
restrict or limit Cayenta from performing any consulting, Outsourcing
Services or other services on behalf of any other entity; provided, however,
Cayenta shall not engage in providing Professional Services or Hosting
Services substantially similar to those outlined in this Agreement to or on
behalf of entities owning web sites focused primarily on the Healthwell
Market, during the term of this Agreement, or any agreement between the
parties providing for services with respect to the Web Site or any other
owned or co-branded website of Client in such market, and for a period of
three (3) years thereafter. To the extent that Cayenta provides services to
participants in the Web Site or any other website referred to in the
preceding sentence, Cayenta will use reasonable best efforts to coordinate
such activities with ▇▇▇▇▇▇▇▇▇▇.▇▇▇.
11
11. TERM AND TERMINATION.
11.1 DURATION OF TERM. This Agreement commences on the Consulting
Effective Date and, unless terminated earlier pursuant to the terms of this
Agreement, shall continue in force until completion of the Professional
Services.
11.2 TERMINATION FOR BREACH. This Agreement may be terminated by
either party upon [...***...] days prior written notice if the other party
materially breaches or fails to perform any material term hereof and the
breaching party fails to cure such breach within such [...***...] day period.
11.3 TERMINATION FOR CONVENIENCE. Client may terminate this Agreement
at any time for its convenience by providing [...***...] days advance written
notice to Cayenta.
11.4 Effect of Termination.
11.4.1 Licenses Survive. All licenses granted to Client hereunder shall
survive any termination of this Agreement.
11.4.2 Transition Services Upon Termination. Upon any termination of
this Agreement in accordance with Article 11, Cayenta shall provide to Client
reasonable transition services of the Web Site and any related domain names
to servers other than Cayenta servers. A detailed description of these
services will be negotiated by the parties in good faith, and Cayenta shall
provide such services for period of time sufficient for an effective
transition in accordance with Section 6.5 of this Agreement.
11.4.3 Final Payment Obligations. Within thirty (30) days after
termination of this Agreement for any reason, Cayenta shall submit to Client
an itemized invoice for any fees or expenses accrued and unpaid under this
Agreement and client shall have [...***...] days after receipt of such
invoice to pay such fees to Cayenta. Thereafter, except as set forth in
Section 12.1, neither party shall have any further obligation to the other
party.
12. MISCELLANEOUS.
12.1 INDEPENDENT CONTRACTORS. Cayenta shall perform the Services as an
independent contractor, and nothing contained in this Agreement shall be
construed to create or imply a joint venture, partnership, principal-agent or
employment relationship between the parties. Neither party shall take any
action or permit any action to be taken on its behalf which purports to be
done in the name of or on behalf of the other party and shall have no power
or authority to bind the other party or to assume or create any obligation or
responsibility, express or implied, on the other party's behalf or in its
name, nor shall such party represent to anyone that it has such power or
authority.
12.2 COMPLIANCE WITH LAWS. Each party represents and warrants that it
will comply with all applicable federal, state, and local laws and
regulations, and communications common carrier tariffs. Each party reserves
the right to take all actions, including termination of Professional
Services, which it believes necessary to comply with applicable laws,
regulations, and tariffs.
* Confidential Treatment Requested
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12.3 NON-SOLICITATION. Each party hereby agrees not to make any
offer of employment to, nor enter into a consulting relationship with, any
person who is employed by the other party during the term of this Agreement
or for a year thereafter if such person was employed by the other party
within six (6) months of the party's offer of employment.
12.4 GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by the laws of the State of Ohio as applied to agreements made,
entered into and performed entirely in Ohio and solely by Ohio residents. Any
disputes arising under this Agreement shall be brought, exclusively, in the
state courts and Federal courts located in Cuyahoga County, Ohio, and the
parties hereby irrevocably consent to the personal jurisdiction and venue of
such courts for such purpose.
12.5 NOTICES. Notices to be given or submitted by either party to
other pursuant to this Agreement shall be in writing and directed to the
addresses above.
12.6 TITLES AND HEADINGS. Titles and headings of Sections of this
Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement.
12.7 SEVERABILITY. If any term or provision of this Agreement is
determined to be invalid or unenforceable for any reason, it shall be
adjusted rather than voided, if possible, to achieve the intent of the
parties to the extent possible. In any event, all other terms and provisions
shall be deemed valid and enforceable to the maximum extent possible.
12.8 FORCE MAJEURE. Neither party will be liable to the other for
any delay or failure to perform any part of this Agreement to the extent such
delay or failure is due to explosion, accident, war, strike, embargo,
governmental action, civil or military authority, act of God, or any other
causes beyond its reasonable control ("Force Majeure"). Performance times
will be considered extended for a period of time equivalent to the time lost
because of any such delay. If the Parties are unable to agree upon an
alternative schedule, or if the delay continues for a period of 60 days or
more, this Agreement may be terminated by Client and neither party will be
liable to the other for such termination provided Client pays Cayenta for all
services rendered and expenses incurred prior to the date of termination
hereunder, and further provided that the Deliverables will be promptly
tendered and delivered by Cayenta to Client in the condition in which they
exist on the effective date of such termination.
12.9 ASSIGNMENT. Neither party shall assign, delegate, or
subcontract any portion of its rights, duties, or obligations under this
Agreement without the prior written consent of the other party and any
attempt to do so shall be void and of no legal effect.
12.10 MODIFICATION. This Agreement may be modified only by a written
instrument duly executed by an authorized representative of Cayenta and
Client. Client agrees that any terms and conditions of any purchase order or
other instrument issued by Client in connection with the Agreement that are
in addition to or inconsistent with the terms and conditions of this
Agreement shall be of no force or effect.
13
12.11 NO WAIVER. The failure of a party to enforce any provision of
this Agreement shall not constitute a waiver of such provision or the right
of such party to enforce such provision or any other provision.
12.12 SURVIVAL. Sections 5,6,7,8,9,10, and 11.4,12.3,12.4, and 12.12
survive any termination of this agreement.
12.13 COMPLETE AGREEMENT. This Agreement, including the attached
Statement of Work and other Exhibits, is the complete and exclusive statement
of the agreement between the parties regarding the subject matter hereof, and
supersedes all prior and contemporaneous agreements, negotiations or
proposals, oral or written, and all other communications between the parties
relating to such subject matter. In the event of any conflict between this
Agreement and the Statement of Work, the terms of the Statement of Work shall
control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Consulting Effective Date.
PENTON MEDIA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Chief Financial Officer
---------------------------------
Date: March 30, 2000
----------------------------------
CAYENTA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. Lake
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Lake
----------------------------------
Title: Chief Financial Officer
---------------------------------
Date: March 30, 2000
----------------------------------
14
EXHIBIT A
STATEMENT OF WORK
-------------------------------------------------------------------------------
PREPARED FOR
NEW HOPE NATURAL MEDIA
-------------------------------------------------------------------------------
The information contained herein is confidential and proprietary. The
information contained herein shall not be disclosed, in whole or part, to any
third party.
1
STATEMENT OF WORK
-------------------------------------------------------------------------------
--------------------------
STATEMENT OF WORK OVERVIEW
--------------------------
This statement of work defines the scope of work to be accomplished by
Cayenta in order to help New Hope Natural Media achieve three goals:
1. To announce and demonstrate components of the Healthwell Exchange
at targeted conventions throughout the year 2000, specifically
the Expo West Show on March 24, 2000.
2. To create a successful business-to-business product and
information exchange that evolves to serve the entire supply
chain of the alternative health products industry.
3. To create a business-to-consumer branded storefront application
service provider capability that New Hope Natural Media can
offer industry partners.
The tasks to be performed by Cayenta are defined and a schedule is provided.
Recognizing that some changes to the scope of the project may require
accommodation, a formal change control procedure is described in Appendix A.
The statement of work comprises the following sections:
- Project Scope
- Technical Approach
- Cayenta Responsibilities
- New Hope Natural Media Responsibilities
- Estimated Schedule
- Charges and Fees
- Appendix A: Change Control Procedure
STATEMENT OF WORK
-------------------------------------------------------------------------------
2
-------------------------------------------------------------------------------
PROJECT SCOPE
-------------------------------------------------------------------------------
New Hope Natural Media requires a Business-to-Business Exchange (B2B) and the
ability to sell Business-to-Consumer Branded Storefront Services (B2C) to
members of the exchange. Each capability is to be accompanied with tailored
"Exchange Performance Dashboards" that provide information for each customer
on exchange performance metrics and industry trends. The capabilities will be
sequentially announced at industry conventions with demonstrations of the
systems and followed on schedule with operational production systems. New
Hope Natural Media has set the following phasing and schedule:
1. Phase 1: B2B Catalog, Extended Listing, and Dashboards
[...***...]
[...***...]
2. Phase 2: B2B Auctions, Request For Proposals, and Dashboards
[...***...]
[...***...]
[...***...]
3. Phase 3: B2C Service Provider for Private Brand Storefronts
and Dashboards
[...***...]
[...***...]
This proposal focuses primarily on Phase 1, providing task, schedule and
pricing details. Tentative schedules are offered for Phase 2 and 3 with
suggested dates for proposals. This allows for further refinement of
requirements for those phases, and, thus, more accurate schedule and pricing
details.
STATEMENT OF WORK
-------------------------------------------------------------------------------
* Confidential Treatment Requested
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-------------------------------------------------------------------------------
PROJECT SCOPE (CONTINUED)
-------------------------------------------------------------------------------
The Phase 1 solution must integrate and extend to the later phase functions,
so a complete architecture for the entire exchange must be part of Phase 1.
The architecture must be designed with a long-term view, so that any
redevelopment and associated costs are minimized. Current investments in
industry leading solutions will be utilized and future need to modify the
marketing, content, and exchange functions as business needs dictate must be
taken into account in the design decisions.
Desirable user interface features as well as feedback from the Expo West
demonstration should be integrated into the subsequent operational system.
The Phase 1 Healthwell Exchange Production System must begin Internet
operations within [...***...] of the demonstration at Expo West. It must
provide for multi-vendor, multi-product listings, subscription sale of
extended listings; on line catalog sales; and tailored dashboards.
The B2B Catalog sales function will operate as follows:
- Seller subscribes to the exchange
- Seller posts product catalog with price by volume
- Buyer searches by product and gets a listing by selected attribute(s)
- Buyer fills shopping cart
- Buyer checks out
- Purchase order(s)(PO) are sent to Seller(s)
- Seller(s) PO acceptance is verified
- A ▇▇▇▇ for the exchange (% of purchase price) is sent to the Seller
* Confidential Treatment Requested
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STATEMENT OF WORK
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PROJECT SCOPE (CONTINUED)
-------------------------------------------------------------------------------
Buyers and Sellers registered in the exchange will be provided with a
tailored dashboard that displays key metrics regarding their purchases and
sales through the exchange. For varying levels of subscription fees, members
of the exchange may also receive various levels of detail or content in
displays of industry trends and alerts (e.g. consumer buying trends). New
Hope Natural Media will be provided a dashboard that displays the key metrics
of the exchange as well as multidimensional on-line analytical processing
tools for data analysis.
The scope of the project is identified to include the following:
Demonstration and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ Project
[...***...]
The scope may also be expanded to include the following [...***...]:
Cayenta Total Service Provider Services
[...***...]
* Confidential Treatment Requested
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STATEMENT OF WORK
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
TECHNICAL APPROACH
-------------------------------------------------------------------------------
As with the SNAP conducted with New Hope staff on February 2 and 3, 2000, the
project will use facilitated group, individual meetings and outside expertise
as specified by New Hope management to refine detailed requirements for the
system and to better understand the business processes to be supported.
This process will result in documents that detail the requirements for the
system use, dashboard formats, and metrics calculations. Cayenta will ask for
careful review and approval of these documents, as they will guide the
development and testing of the system.
All software programs will be unit tested as well as integration tested to
assure freedom from errors or bugs. The entire system will be tested prior to
implementation. During implementation, additional production tests will be
conducted to assure the system is operating properly.
Design Principles/Long Term Architectural View
The following principles will be applied to design of the Healthwell Exchange
architecture in order to assure a robust, scalable, extensible, maintainable
system that will span the evolutions of hardware and operating systems:
1. [...***...]
2. [...***...] that are [...***...]
3. [...***...] to [...***...] and [...***...] of [...***...]
4. [...***...] to [...***...] the [...***...] in an [...***...]
STATEMENT OF WORK
-------------------------------------------------------------------------------
* Confidential Treatment Requested
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-------------------------------------------------------------------------------
TECHNICAL APPROACH (CONTINUED)
-------------------------------------------------------------------------------
5. [...***...]
6. [...***...]
7. [...***...] of [...***...] and [...***...] for [...***...] and
[...***...]
8. [...***...] that [...***...]
9. [...***...] of [...***...] and [...***...]
10. [...***...] of [...***...] to [...***...] and [...***...] as [...***...]
as [...***...] of [...***...] and [...***...]
11. [...***...] for [...***...]
12. [...***...] with [...***...] for [...***...] and [...***...]
These principles combined with considerations of the [...***...] will be
applied to design of a Healthwell Exchange Architecture that will minimize
redevelopment in the
future.
Figure 2 below presents a high logical view of the components of the
architecture that will be addressed. A key task in this phase will be to turn
this logical architecture into a detailed architecture that will serve as the
technical roadmap for all phases of the B2H exchange and B2C services.
* Confidential Treatment Requested
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HEALTHWELL EXCHANGE LOGICAL ARCHITECTURE
[CHART]
8
STATEMENT OF WORK
______________________________________________________________________________
---------------------------------------
CAYENTA RESPONSIBILITIES (TASK #1)
---------------------------------------
The tasks to be performed by Cayenta are described below:
TASK #1: DESIGN, DEVELOP AND SUPPORT EXPO WEST
DEMONSTRATION OF HEALTHWELL EXCHANGE B2B CATALOG
Task Description:
-----------------
The objectives of this task are to:
1. [...***...] a [...***...] for [...***...]
2. [...***...] and [...***...]
3. [...***...]
4. [...***...] and [...***...]
5. [...***...] and [...***...]
6. [...***...]
7. [...***...] from [...***...] and [...***...] to [...***...]
Deliverable Materials:
----------------------
The following item(s) will be delivered as
a result of this task:
1. A document describing the Cayenta and New Hope responsibilities for Expo
logistics.
2. A requirements document for the demonstration system.
3. An on-site demonstration of the Healthwell Exchange B2B Catalog.
4. A document summarizing the feedback on the system obtained from Expo
participants.
COMPLETION CRITERIA:
--------------------
THIS TASK WILL BE COMPLETED WHEN:
1. THE ABOVE DOCUMENTS ARE DELIVERED TO NEW HOPE NATURAL MEDIA,
2. NEW HOPE NATUARAL MEDIA HAS SIGNED AGREEMENT WITH THE REQUIREMENTS,
3. NEW HOPE NATURAL MEDIA SIGNS AN AGREEMENT THAT THE ACCEPTANCE CRITERIA
AS SET FORTH IN ARTICLE 3 OF THIS AGREEMENT HAS BEEN MET, AND
4. THE EXPO WEST TRADE SHOW IS CONCLUDED.
* Confidential Treatment Requested
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STATEMENT OF WORK
______________________________________________________________________________
---------------------------------------
CAYENTA RESPONSIBILITIES (TASK #2)
---------------------------------------
Task #2: Design the Healthwell Exchange Architecture
Task Description:
-----------------
The objective of this task is to:
1. [...***...] to [...***...] and [...***...]
2. [...***...] to [...***...] and [...***...]
3. [...***...] and [...***...] the [...***...] that [...***...] and [...***...]
and [...***...]
4. [...***...] an [...***...]
Deliverable Materials:
----------------------
The following item(s) will be delivered as a result of this task:
* A document describing the Healthwell Exchange Architecture.
COMPLETION CRITERIA:
THIS TASK WILL BE COMPLETED WHEN NEW HOPE NATURAL MEDIA APPROVES THE
PROPOSED ARCHITECTURE. THIS APPROVAL MUST BE PROVIDED WITHIN THREE (3)
BUSINESS DAYS AFTER RECEIPT TO AVOID SCHEDULE AND COST SLIPPAGE.
* Confidential Treatment Requested
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STATEMENT OF WORK
-------------------------------------------------------------------------------
-----------------------------------------------
CAYENTA RESPONSIBILITIES (Task #3)
-----------------------------------------------
TASK #3: DETERMINE B2B CATALOG DETAILED REQUIREMENTS
TASK DESCRIPTION:
The objectives of this task are to:
1. [...***...] the [...***...] of the [...***...]
in the [...***...]
2. [...***...] of [...***...] to [...***...] and
[...***...]
3. [...***...]
DELIVERABLE MATERIALS:
The following item(s) will be delivered as a result
of this task:
1. A document describing the supported business processes and
requirements, including the manner in which users will
interact with the system, the metrics and drill-down displays
of tailored dashboards, and the formulas used to calculate
desired metrics.
COMPLETION CRITERIA:
THIS TASK WILL BE COMPLETE WHEN THE ABOVE DOCUMENT
IS DELIVERED TO NEW HOPE MEDIA FOR APPROVAL/REVISION
AND SIGNED BY NEW HOPE MEDIA.
* Confidential Treatment Requested
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STATEMENT OF WORK
-------------------------------------------------------------------------------
-----------------------------------------------
CAYENTA RESPONSIBILITIES (Task #4)
-----------------------------------------------
TASK #4: DESIGN, CONFIGURE, DEVELOP AND TEST THE B2B
CATALOG AND EXTENDED LISTING APPLICATIONS
TASK DESCRIPTION:
The objective of this task is to:
1. [...***...] and [...***...] to [...***...] in
the [...***...]
2. [...***...] and [...***...]
3. [...***...] and [...***...]
4. [...***...]
5. [...***...] and [...***...] the [...***...] and
[...***...]
DELIVERABLE MATERIALS:
The following item(s) will be delivered as a result
of this task:
- Demo of Graphical User Interface
COMPLETION CRITERIA:
THIS TASK WILL BE COMPLETE WHEN THE INTEGRATION
TESTS OF THE APPLICATIONS AND DATABASE AT THE
CAYENTA LABORATORY ARE SUCCESSFUL IN DEMONSTRATING ALL
REQUIRED FUNCTIONS WITHOUT ERROR DUE TO THE DESIGN
OR SOFTWARE.
* Confidential Treatment Requested
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STATEMENT OF WORK
______________________________________________________________________________
----------------------------------
CAYENTA RESPONSIBILITIES (TASK #5)
----------------------------------
Task #5: DESIGN, DEVELOP AND TEST TAILORED DASHBOARD REPORTING COMPONENTS
Task Description:
-----------------
The objectives of this task are:
- [...***...] the [...***...] for [...***...] as [...***...]are
[...***...] to the [...***...]
- [...***...] and [...***...] the [...***...] that will [...***...] to
[...***...] and [...***...] and [...***...]
Deliverable Materials:
----------------------
The following item(s) will be delivered as a result of this task:
- Demo of dashboard design
COMPLETION CRITERIA:
--------------------
THIS TASK WILL BE COMPLETED WHEN THE INTEGRATION TESTS OF THE DASHBOARD
PROGRAM AND THE DATABASE AT THE CAYENTA LABORATORY ARE SUCCESSFUL IN
DEMONSTRATING ALL REQUIRED FUNCTIONS WITHOUT ERROR DUE TO THE DESIGN
OR SOFTWARE.
* Confidential Treatment Requested
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STATEMENT OF WORK
______________________________________________________________________________
----------------------------------
CAYENTA RESPONSIBILITIES (TASK #6)
----------------------------------
TASK #6: INSTALL AND TEST SYSTEM AT HOSTING FACILITIES AND TRAIN USERS
Task Desciption:
----------------
The objectives of this task are to:
1. [...***...] and [...***...]
2. [...***...] and [...***...] the [...***...] at the [...***...]
3. [...***...] the [...***...]
Deliverable Materials:
----------------------
The following item(s) will be delivered as a result of this task:
1. Database loaded with initial catalogs.
2. Implementation of the extended listing function.
3. Implementation of the B2B catalog function.
4. Implementation of the tailored Dashboards function.
5. User documentation.
COMPLETION CRITERIA:
--------------------
THIS TASK WILL BE COMPLETED WHEN THE ABOVE DELIVERABLES ARE IMPLEMENTED
AND PROPERLY FUNCTIONING ON-SITE AT HOSTING FACILITIES, WHEN ACCEPTANCE
CRITERIA AS SET FORTH IN ARTICLE 3 OF THIS AGREEMENT HAS BEEN MET AND TWO
DAYS OF EXCHANGE STAFF TRAINING ARE COMPLETED.
* Confidential Treatment Requested
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STATEMENT OF WORK
______________________________________________________________________________
-------------------------------
NEW HOPE MEDIA RESPONSIBILITIES
-------------------------------
New Hope will provide working space and
telephone access as needed at no charge to
CAYENTA for the duration of the Phase 1
project.
New Hope will provide dedicated staff to
support the logistics of getting the
Demonstration System to the trade show as
well as pay all expenses for shipment and
other incidentals as required for set up
at the trade show.
New Hope will facilitate the provision of
any interface specifications to selected
manufacturers that are required for the
Production System. CAYENTA will not be
responsible for any slip in schedules due
to lack of cooperation by any of the
participating parties.
During the requirements' analysis and
training tasks, personnel from Healthwell
Exchange must be available for
participation during the timeframes
anticipated in the schedule.
Written approval/correction of the
documents delivered during the above tasks
must be delivered to Cayenta within 2
working days of receipt.
Feedback on the demonstrations of Graphic
User Interfaces must be finalized on the
day of demonstration.
15
ESTIMATED SCHEDULE
______________________________________________________________________________
The following table summarizes the high-level tasks proposed by Cayenta with
the estimated start and completion dates.
PHASE 1
TASK NAME START DATE END DATE
PHASE 1- B2B CATALOG AND DASHBOARDS [...***...] [...***...]
DEMONSTRATION SYSTEM [...***...] [...***...]
Detailed Requirements [...***...] [...***...]
Design Iterations [...***...] [...***...]
Development and unit tests [...***...] [...***...]
Integration Test and Refinement [...***...] [...***...]
Booth demo staff training [...***...] [...***...]
Setup and Operate on-site March Show [...***...] [...***...]
Integrate Feedback to Impl Team [...***...] [...***...]
PRODUCTION SYSTEM DEVELOPMENT [...***...] [...***...]
Detailed Requirements and GUI design [...***...] [...***...]
System Design and Review [...***...] [...***...]
Data admin. & partner data coordination [...***...] [...***...]
Test Planning [...***...] [...***...]
Configuration, Development and unit tests [...***...] [...***...]
Operations Manual Documentation [...***...] [...***...]
Data Load [...***...] [...***...]
Integration Test and Refinement [...***...] [...***...]
Production Testing and tuning [...***...] [...***...]
Training [...***...] [...***...]
Production Implementation [...***...] [...***...]
Post-production Tuning [...***...] [...***...]
Infrastructure, Production [...***...] [...***...]
Operations, Business Process
Support and Maintenance
* Confidential Treatment Requested
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CHARGES AND FEES
______________________________________________________________________________
-----------------------------------
SUMMARY
-----------------------------------
B2B Catalog Demonstration and DevelopmentCayenta is proposing a "Time Boxed"
contract for system development and implementation. This means the following:
- Cayenta will deliver the intended system in the time frames identified
in this document for the level of effort and price identified.
- However, details of all desired features and functions are not known
at this time. Some of those details can possibly result in significant
impacts to schedule and level of effort/price.
- Cayenta and New Hope Natural Media agree to "fix" or "box" the target
delivery dates and level of effort/price.
- Cayenta and New Hope Natural Media agree to work together cooperatively
to adjust features and functions in order to meet the target delivery
dates at the agreed upon level of effort/price.
Cayenta is proposing meeting the target dates of [...***...] for the Expo
West demonstration and [...***...] for bringing the production system on
line, with a level of effort of [...***...] hours at a blended rate of
$[...***...] per hour. This brings the total for the demonstration,
development, and implementation component to $[...***...], with an additional
estimated travel budget of $[...***...]. Travel costs will be billed monthly
based on actual costs plus [...***...]% adminstrative fee. Cayenta is
proposing that [...***...]% of the primary fee be paid in [...***...] with
the remaining [...***...]% paid in [...***...] beginning [...***...].
* Confidential Treatment Requested
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CHARGES AND FEES
______________________________________________________________________________
---------------------------------
SUMMARY
---------------------------------
Financial Recap
Phase 1 B2B Catalog System
- Development/Design
- Demonstration Capability [...***...]
- Production Ready [...***...]
Payments as follows
[...***...]
TOTAL [...***...]
* Confidential Treatment Requested
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APPENDIX A
-----------------------------------------------------------------------------
PROJECT CHANGE CONTROL PROCEDURE
-----------------------------------------------------------------------------
The following provides the process that will be followed if a change to this
Statement of Work is required.
- A Project Change Proposal (PCP) will be the vehicle for communicating
change. The PCP must describe the change, the rationale for the change, and
the effect the change will have on the project.
- The designated Project Manager of the requesting party will review the
proposed change and determine whether to submit the request to the other
party.
- Both Project Managers will review the proposed change and approve it for
further investigation or reject it. Cayenta will specify any charges for such
investigation. If the investigation is authorized, the New Hope Natural
Media Project Manager will sign the PCP, which will constitute approval
for the investigation of the change.
- The investigation will determine the effect that the implementation of the
PCP will have on price, schedule, and terms and conditions of the contract.
- A Project Change Request must be signed by both parties to authorize
implementation of the investigated changes.
19
EXHIBIT B
MANDATORY LICENSES
INTENTIONALLY LEFT BLANK.
20