general liability insurance including products liability and completed operations with a minimum per occurrence limit of 5,000,000 USD (or local currency equivalent), and iii) automobile liability insurance (if a vehicle is to be used in performance of this Agreement) of at least 5,000,000 USD (or local currency equivalent). Commercial general liability insurance and automobile insurance policy limits may be met through a combination of primary and umbrella/excess liability insurance and must name IBM as an additional insured. Insurance required under a SOW or Attachment must be purchased either from insurers with an AM Best Rating of A- or better, or with a Standard & Poor’s rating of BBB and $50M in policy holder’s surplus or greater.
Record Keeping and Audit Rights
Supplier will maintain (and subject to applicable law provide to IBM upon request) relevant business, technical and accounting records i) to support Supplier's invoices; ii) show proof of required permits and professional licenses and iii) to demonstrate compliance with Supplier's performance of its obligations under this Agreement, for not less than six (6) years following completion or termination of the relevant Services. All accounting records will be maintained in accordance with generally accepted accounting principles.
Upon IBM’s notice, IBM may, at no charge to IBM, audit Supplier's compliance with its obligations under this Agreement, including verifying compliance with applicable laws and the protection and integrity of IBM Materials. In connection with an audit, Supplier shall provide IBM (including its auditors and any regulators) access at reasonable times (or in the case of regulators, at any time designated by such regulators), to any facility at which Supplier or any Subcontractor is providing or has provided Services or Deliverables under this Agreement and to all systems, data and business, technical and accounting records relating to Supplier’s (and any Subcontractor’s) compliance with its obligations. Supplier shall provide its full cooperation in any such audit, including by designating a focal point to support an audit and, if required by IBM, promptly securing the rights for IBM to directly request from any Subcontractor, and for the Subcontractor to promptly provide to IBM, access to such systems, data and records relating to the work performed by such Subcontractors.
Governing Law
Except as otherwise set forth in a SOW or in a Local Law Attachment, if any, the parties agree to: i) the application of the laws of the State of New York for all Agreements executed by International Business Machines Corporation (IBM Corp.) or Affiliates of IBM Corp. located in the U.S. or ii) for Affiliates of IBM Corp. not located in the U.S., the laws of the country where such Affiliate is located, without regard to conflict of law principles. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in the Agreement affects statutory rights that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this Agreement. The parties waive the right to a jury trial regarding disputes related to this Agreement. Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose. No right or cause of action for any third party is created by this Agreement or any transaction under it.
General
i) A party will not disclose confidential information to the other without a separate, signed confidentiality agreement governing such disclosures.
ii) Any licenses accompanying the Programs, and any shrinkwrap, clickwrap, cloud services, or online terms for Services are null and void, and the terms and conditions of the Agreement prevail.
iii) The parties will not publicize their relationship in any advertising; marketing or promotional materials without prior written consent of the other party except as may be required by law.
iv) IBM may process and store business contact information of Supplier Personnel in connection with the performance of this Agreement wherever IBM does business.
v) The Agreement is nonexclusive and either party may design, develop, manufacture, acquire or market competitive products or services. Each party is responsible for determining the assignment of its Personnel.
vi) All changes to the Agreement must be in writing signed by both parties. In the event of a conflict, the order of precedence will be: A) any mutually agreed upon changes to price, payment, quantity or delivery terms contained in the PO; B) the relevant SOW (including Attachments thereto); and C) this SRA (including Attachments hereto).
vii) Supplier is an independent contractor and this Agreement does not create an agency, partnership or joint venture relationship between IBM and Supplier or Supplier Personnel. IBM assumes no liability or responsibility for Supplier Personnel.
viii) Risk of loss of any tangible property will pass to IBM at the delivery point where IBM receives the property.
ix) Neither party may assign its rights under this Agreement to third parties or Affiliates without the prior written consent of the other party, such consent not to be unreasonably withheld; except that either party may assign this Agreement in conjunction with the sale of a substantial portion of its business utilizing the Agreement. Any unauthorized assignment of this Agreement is void. Supplier shall not delegate or subcontract any of its duties or obligations under this Agreement to any third party, Subcontractor or Affiliate, except to the extent permitted in a SOW.
x) An effective waiver under the Agreement must be in writing signed by the party waiving its right. A waiver by either party of any instance of non-compliance by the other will not be deemed a waiver of future instances of non-compliance.
xi) All notices under the Agreement must be in writing and sent to the address below, unless a party designates in writing a different address (or an Affiliate designates a different address in a Participation Attachment).
xii) The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing. This SRA, SOWs and Attachments may be signed in one or more counterparts. Any reproduction of this Agreement made by reliable means is considered an original. This Agreement supersedes any prior course of dealing, discussions or representations between the parties regarding the subject matter hereof.
xiii) Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party, excluding labor disputes, provided such party immediately notifies the other.
xiv) This SRA applies to IBM and Supplier (the signatories below) and their respective Affiliates who avail themselves of the SRA by entering into a SOW under this SRA. Such Participation Agreements and/or SOWs entered into by Affiliates of either of the parties are independent agreements between the signatories thereto.
