EXHIBIT 10.1 SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT FEDERAL STATEMENT OF WORK

 

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                                                                    EXHIBIT 10.1

 

                   SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT

                            FEDERAL STATEMENT OF WORK

 

                                                           AGREEMENT #4904FS0629

                                                                 SOW# 4904FS0630

 

This Statement of Work ("SOW") # 4904FS0630 adopts and incorporates by reference

the terms and conditions of Software and Services Engagement Agreement

#4904FS0629 ("Base Agreement") between International Business Machines

Corporation and First Virtual Communications, Inc. This SOW is effective

beginning on 5/25/2004 and will remain in effect until 12/31/04. Transactions

performed under this SOW will be conducted in accordance with and be subject to

the terms and conditions of this SOW, the Base Agreement and any applicable Work

Authorizations ("WAs"). This SOW is a WA.

 

No Certifications and Representations are required for this purchase as this is

not billable to the Federal Government.

 

1.0 SCOPE OF WORK SUMMARY

 

This document is focused on work required to integrate Click to Meet (CTM) 4.0

and Conference Server (CS) 7.3 with ***. This document does not discuss features

outside of the context of this IBM deliverable.

 

2.0 DEFINITIONS

 

Except as listed below in this section 2.0, the definitions listed in Software

and Services Engagement Agreement 4904FS0629 shall apply to this SOW.

 

3.0 PRODUCT(S) DESCRIPTION/PRICING

 

In support of initial integration of CTM 4.0 and CS 7.3 with ***, FVC will

augment its Click to Meet ("CTM") product to support ***, and FVC will make

certain modifications to the ***. FVC will provide support to IBM in evaluating

this modified software and in preparing the software for use in demonstrations

to potential customers.

 

These deliverables will be provided for a fixed cost of $90,000. See 11.3

Invoicing for details.

 

4.0 DESCRIPTION OF DEVELOPED WORKS AND RELATED DELIVERABLES AND SERVICES

 

FVC will provide the following software and services for initial development and

testing (e.g. software deliverables not productized):

 

      1)    ***.

      2)    ***.

      3)    ***.

      4)    Support to IBM in evaluating, debugging and otherwise preparing the

            software for use in demonstrations to potential customers.

 

5.0 ACCEPTANCE CRITERIA

 

The Developed Works and Related Deliverables and Services described in Sections

3.0 and 4.0, above, are deemed accepted upon IBM's execution of this SOW.

 

6.0 SUPPLIER'S RESPONSIBILITIES

 

6.1 IN ADDITION TO DELIVERING TOOLS, DEVELOPED WORKS, AND OTHER DELIVERABLES AND

SERVICES ON SCHEDULE, SUPPLIER WILL:

 

-     participate in progress reviews, as reasonably requested by Buyer, to

      demonstrate Supplier's performance of its obligations;

 

-     maintain records to verify authorship of the Developed Work for four (4)

      years after the termination or expiration of this SOW. On request,

      Supplier will deliver or otherwise make available this information in a

      form specified by Buyer;

 

-     as part of Supplier's importation requirements, provide to Buyer on the

      commercial invoice:

 

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*** The omitted portion has been filed separately with the U.S. Securities and

    Exchange Commission pursuant to a request for confidential treatment.

 

Form Title:  Software and Services  Page 1 of 9    Form Release: 05/01

             Engagement Agreement                  Revision: 4/04

Form Owner:  Global Procurement    

<PAGE>

                   SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT

                            FEDERAL STATEMENT OF WORK

 

                                                           AGREEMENT #4904FS0629

                                                                 SOW# 4904FS0630

 

1.    the Harmonized Tariff Code of the importing country for every Deliverable;

      and

 

2.    an invoice description that provides enough detail to verify the

      categorical classification of every Deliverable.

 

6.2 SUPPLIER'S USE OF SUBCONTRACTORS

 

Not applicable. Only First Virtual Communications employees will work on this

development program.

 

6.3 ASSET PROTECTION

 

In the event that assets are loaned to Supplier and there is no separate loan

agreement in place between Buyer and Supplier for those assets, Supplier will be

responsible for risk of loss and for the return of those assets to Buyer.

 

7.0 QUALITY MEASUREMENTS

 

Supplier has a product and service quality program that includes the assessment

of software engineering, development, test, configuration and change management

processes, assessment of the quality of Deliverables, Products and Services, and

Supplier will document non-conformances, and performance targets. Supplier also

has and can demonstrate the use of processes to correct errors or other

non-conformances.

 

8.0 BUYER'S RESPONSIBILITIES

 

IBM shall act as the Prime Contractor for this *** opportunity. IBM shall

provide performance oversight and monitoring of performance. IBM Purchasing

Buyers are the only ones authorized to issue, modify, or terminate a purchase

order under this SOW.

 

9.0 MUTUAL RESPONSIBILITIES

 

Not Applicable.

 

10.0 SCHEDULE FOR DELIVERABLES (OTHER THAN PROGRAM PRODUCTS)

 

There are no deliverables other than program products.

 

11.0 PAYMENTS

 

11.1 PAYMENT TERMS

 

For Services performed in accordance with this Agreement, IBM shall compensate

Supplier as described in purchase orders or work authorizations issued under

this Agreement, with terms of Net 45 days after receipt of a valid invoice.

 

11.2 HOLIDAY SCHEDULE AND NON-WORKDAYS ARE POTENTIALLY DESIGNATED AS FOLLOWS:

 

Memorial Day

Independence Day

Labor Day

Thanksgiving Day

Christmas Day

New Year's Day

Customer Designated Site Holidays

 

11.3 INVOICING

 

Supplier shall furnish the IBM Technical Coordinator with a COPY of all invoices

submitted to IBM Accounts Payable.

 

All FOX or EDI transmissions shall include at a minimum the IBM Purchase Order

Number, Purchase Order Line number, Supplier Personnel Name(s), Period of

Performance and the total number of Hours Worked verses total number of Hours

Committed. If it is an FFP order, Supplier must include IBM Purchase Order

Number, Purchase Order line number and Period of Performance.

 

Supplier shall invoice in one amount of upon completion of requirements in

Sections 3 and 4 of this SOW.

 

11.4 TRAVEL EXPENSE GUIDELINES:

 

All expenses are included within the FFP amount in Section 2 of this SOW.

 

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*** The omitted portion has been filed separately with the U.S. Securities and

Exchange Commission pursuant to a request for confidential treatment.

 

Form Title:  Software and Services  Page 2 of 9    Form Release: 05/01

             Engagement Agreement                  Revision: 4/04

Form Owner:  Global Procurement    

<PAGE>

                   SOFTWARE AND SERVICES ENGAGEMENT AGREEMENT

                            FEDERAL STATEMENT OF WORK

 

                                                           AGREEMENT #4904FS0629

                                                                 SOW# 4904FS0630

 

12.0 RESCHEDULING/CANCELLATION

 

Not applicable

 

13.0 COMMUNICATIONS

 

All communications between the parties will be carried out through the following

designated coordinators. All notices required in writing under this Agreement

will be made to the appropriate contact listed below at the following addresses

and will be effective upon actual receipt. Notices may be transmitted

electronically, by registered or certified mail, or courier. All notices, with

the exception of legal notices, may also be provided by facsimile.

 

 

                              BUSINESS COORDINATORS

 

<TABLE>

<CAPTION>

FOR SUPPLIER                                    FOR BUYER

<S>              <C>                            <C>           <C>

Name             Carolyn Wester                 Name          Paul Bury

Title                                           Title         Procurement Advisor

Address          3200 Bridge Parkway #202       Address       6300 Diagonal Highway,

                 Redwood City, CA 94065                       MS 003E  Boulder, Co.  80301

Phone            650-254-3533                   Phone         303-924-4873

Fax              650-801-6901                   Fax           303-924-0518

E-mail           cwester@fvc.com                E-mail        pbury@us.ibm.com

</TABLE>

 

                             TECHNICAL COORDINATORS

 

<TABLE>

<CAPTION>

FOR SUPPLIER                                    FOR BUYER

<S>              <C>                            <C>           <C>

Name             Mark Reid                      Name          Marty Burns

Title            VP-Engineering                 Title         Architect

Address          542 Amherst St.                Address       NA

                 Nashua, NH  03063

Phone            (603) 886-9050,                Phone         (315) 884-1173

                 ext. 345

Fax              (603) 886-9051                 Fax           N/A

E-mail           mreid@fvc.com                  E-mail        mjburns@us.ibm.com

</TABLE>

 

14.2 ELECTRONIC COMMERCE

 

Unless previously submitted by Supplier, in order to initiate electronic

transfer of payments associated with this SOW, Supplier will complete the

attached form entitled "Authorization for Electronic Funds Transfer" and fax the

completed form to Accounts Payable at the number included on the form.

 

14.0 FEDERAL ACQUISITION REGULATION REFERENCES

 

Not Applicable

 

15.0 PRIME CONTRACT FLOW DOWN PROVISIONS

 

Not Applicable

 

16.0 FEDERAL CHANGES TO THE BASE AGREEMENT

 

Not Applicable

 

17.0 ADDITIONAL TERMS AND CONDITIONS

 

17.1 EXPORT OF TECHNICAL DATA

 

Supplier will not, nor will Supplier authorize or permit Supplier Personnel to

disclose, export or re-export any of Buyer's information, or any process,

Deliverable, or Service that is produced under this Agreement, without prior

notification and compliance with all applicable Federal, State and local laws,

regulations and ordinances, including the regulation of the US Department of

Commerce and/or the US Department of S