INTERNATIONAL REMARKETER AGREEMENT
[LOGO]
REMARKETER PROFILE
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1. DETAILS OF OUR RELATIONSHIP
A. OTHER AGREEMENTS
The terms of the Advantis Industry Remarketer Agreement, its Amendments
and Transaction Documents supersede the terms of the International
Remarketer Agreement in the United States.
B. AGREEMENT TERM
The term of this Agreement commences on December 1, 1996 and will
terminate on December 31, 1997.
C. AUTHORIZED RELATIONSHIP AND APPROVED INDUSTRY
The term "Retail Industry" means retailers in the industry segments ("IS")
DI through D9, as further identified below, and those suppliers whose
business is to supply, by sale or consignment, finished goods to those
retailers.
The term "Transportation Customers" means those transportation carriers
whose business is to transport finished goods between those retailers
and suppliers identified above. For the purpose of this Agreement, the
term "Retail Industry" includes Transportation Customers, except where
specifically excluded.
You are approved to remarket Eligible Services as an IBM Global Network
Remarketer in the Retail Industry, including Transportation Customers.
Some countries prohibit segmentation of markets by industry. In such
countries, this provision does not apply to you. We will identify to
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Each of us agrees that the complete agreement between us about this
transaction consists of 1) this Profile, 2) any other Transaction Documents,
and 3) the International Remarketer Provider Agreement (or any equivalent
agreement signed by both of us).
Agreed to: (Remarketer name) Agreed to: (Service Provider Lead Company Name)
QUICK RESPONSE SERVICES (QRS) ADVANTIS
By /s/Shawn M. O'Connor By /s/ R.A. Giffin
--------------------------- -----------------------------------
Authorized signature Authorized signature
Name (type or print): Name (type or print): R.A. Giffin
Shawn M. O'Connor
Date: 11/11/96 Date
Remarketer Enterprise Number: Agreement number: N1071-US
5229967
Remarketer address: Service Provider Lead Company Address:
1400 Marina Way South 3405 W. Dr. Martin Luther King Jr. Blvd.
Richmond, CA 94804 U.S.A. Tampa, FL 33607 U.S.A.
Attention: Order Support Services
* Indicates that material has been omitted and confidential treatment has
been requested therefore. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
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After signing, please return a copy of this Agreement to the "Service
Provider Lead Company address" shown above.
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you the countries where you are doing business under this Agreement where
this provision does not apply.
AUTHORIZED INDUSTRY SEGMENTS
IS SIC DESCRIPTION
D1 Department Stores and Mail Order Retailers
D1 5311 Department Stores
D1 5399 Miscellaneous General Merchandise Stores
D1 5961 Mail-Order Houses
D2 Mass Merchandisers and Discount Retailers
D2 533A Discount Stores
D2 5331 Variety Stores
D3 Specialty Retailers
D3 5611 Men's and Boys' Clothing Stores
D3 5621 Women's Ready-to-Wear
D3 5632 Women's Accessory and Specialty Stores
D3 5641 Children's and Infants' Wear Stores
D3 5651 Family Clothing Stores
D3 5661 Shoe Stores
D3 5699 Miscellaneous Apparel and Accessory Stores
D3 5941 Sporting Goods and Bicycle Shops
D3 5942 Book Stores
D3 5943 Stationary Stores
D3 5944 Jewelry Stores
D3 5945 Hobby, Toy and Game Shops
D3 5946 Camera and Photographic Supply Stores
D3 5947 Gift, Novelty and Souvenir Shops
D3 5948 Luggage and Leather Goods Stores
D3 5949 Sewing, Needlework and Piece Goods
D4 Hardgoods Retailers
D4 5211 Lumber and Other Building Materials
D4 5231 Paing, Glass and Wallpaper Stores
D4 5251 Hardware Stores
D4 5261 Retail Nurseries, Lawn and Garden Stores
D4 5712 Furniture Stores
D4 5713 Floor Covering Stores
D4 5714 Drapery, Curtain and Upholstery Stores
D4 5719 Miscellaneous Home Furnishing Stores
D4 5722 Household Appliances Stores
D4 5731 Radio, TV and Electronic Stores
D4 5734 Computer and Software Stores
D4 5735 Record and Prerecorded Tape Stores
D4 5736 Musical Instruments
D5 Other General Merchandise Stores
D5 5982 Used Merchandise Stores
D5 5983 Fuel Oil Dealers
D5 5984 Liquified Petroleum Gas Dealers
D5 5989 Fuel Dealers, NEC
D5 5992 Florist Stores
D5 5993 Cigar Stores and Stands
D5 5994 News Dealers and Newsstands
D5 5995 Optical Goods Stores
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D5 5999 Miscellaneous Retail Stores, NEC
D6 Grocery Retailers
D6 5411 Grocery Stores
D6 5421 Meat and Fish Markets
D6 5431 Fruit Stores and Vegetable Markets
D6 5441 Candy, Nut and Confectionary Stores
D6 5451 Dairy Products Stores
D6 5461 Retail Bakeries
D6 5499 Miscellaneous Food Stores
D7 Drug Dealers
D7 5912 Drug Stores and Proprietary Stores
D8 Restaurant Retailers
D8 5812 Eating Places
D8 5813 Drinking Places (Alcoholic Beverages)
D9 Other Food and Drug Retailers
D9 5921 Liquor Stores
D9 5962 Vending Machine Operators
D9 5963 Direct Selling Establishments
D. ELIGIBLE SERVICES TO BE REMARKETED
You may market and sell any generally-available value-added network
Service eligible for discount which may be ordered and managed through
the IBM International Project Support System (IPSS) in the countries
listed in Schedule A of the International Remarketer Agreement. Most,
but not all, Services are eligible for discount.
E. DISCOUNTS
AMOUNT. Services eligible for discount outside the United States will
be discounted to you at *
CONDITIONS. To be eligible for the discount, you must perform your
responsibilities described in section 3 of the International Remarketer
Agreement and Section 1H of this Profile.
F. REVENUE COMMITMENT
The revenue commitment of US$80,000,000 provided for in the Advantis
Industry Remarketer Agreement shall remain unchanged and apply to all
revenue globally for the Agreement term.
G. ADJUSTMENT CHARGES
If the $80,000,000 minimum revenue commitment that QRS agrees to achieve
over the contract period of this Agreement is not met, the adjustment
charge will be calculated by using the following adjustment charge
calculation table:
*Indicates that material has been omitted and confidential treatment has
been requested therefore. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
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ADJUSTMENT CHARGE CALCULATION TABLE
If Actual Service Provider
Revenue from you is: The Adjustment Charge is:
From $00,000,000 to 34,999,999 (34,999,999 minus actual revenue) x 20% + $2,400,000
From $35,000,000 to 49,999,999 (49,999,999 minus actual revenue) x 8% + $1,200,000
From $50,000,000 to 59,999,999 (59,999,999 minus actual revenue) x 6% + $ 600,000
From $60,000,000 to 69,999,999 (69,999,999 minus actual revenue) x 4% + $ 200,000
From $70,000,000 to 79,999,999 (79,999,999 minus actual revenue) x 2%
H. ADDITIONAL QRS RESPONSIBILITIES
You will:
1. ensure that you have personnel trained in selling, installing, and
supporting IBM Global Network (IGN) Products and Services. These personnel
should attend the appropriate IGN courses available to them as soon as
possible. Courses are listed in the section 1.1.;
2. develop solutions, make proposals, and implement contracts with your
Customers for IGN Eligible Services;
3. submit orders and engage IGN project management by utilizing the
International Project Support System (IPSS);
4. perform, or have your Customer perform, any necessary planning and
preparation and training prior to the installation of Eligible Services;
5. invoice and collect payment from all your Customers. You will establish
your own invoicing system independently of us for invoicing your
Customers. We will provide you on a timely basis with invoice and usage
detail by country on paper, and where available, electronically. When
appropriate or necessary, the Consolidated Statement Facility may be used;
6. provide implementation planning, account management, and ongoing sales
support to your Customers;
7. be responsible for providing all necessary support to Customers and their
End Users for use of your value-added services;
8. provide enabling support for your Customers' applications. Your Customers
may also do their own enabling, or you may engage business partners to do
so. You, your Customers, or your business partner will distribute any IGN
enabling software under appropriate terms we provide;
9. inform your Customers and their End Users to direct problem reporting to
the QRS help desk using NOTIFY when possible. You may monitor problems in
process for IGN issues and will manage all application issues with your
Customers;
10. participate in occasional joint surveys with us to determine customer
satisfaction. Each of us will jointly share the results of such surveys;
11. gather requirements from your Customers and their End Users, and from
general participants in the retail and transportation industries, and
twice a year provide us with a report with the requirements in
consolidated form; and
12. maintain a disaster recovery plan and provide it to us for review within
60 days of a written request from us.
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1. ADDITIONAL SERVICE PROVIDER RESPONSIBILITIES
1. EDUCATION
We will provide education courses for your marketing and support
personnel during the Agreement term. Your marketing and support
personnel should attend these courses within one year of the
commencement date of this Agreement or within the first year that you
assign additional personnel to perform a particular function. The
courses we provide may include the following:
- Specialist Update:
- Marketing IBM Global Network Services:
- Marketing in the internetworking and Multiprotocol Environment:
- Host Connectively Workshop:
- LAN, TCP/IP and Router Workshop.
We have sole discretion to determine the content and availability of
education courses and the addition or deletion of courses. We will
provide these education courses to you on a tuition-free basis:
however, you are responsible or travel expenses, lodging and meals, and
expenses for educational materials not included in the tuition fee.
When your personnel complete the course of study listed above, they
should be able to perform the following activities:
- market Eligible Services plus your value-added enhancements:
- propose valid technical solutions and pricing:
- discuss terms relating to provisioning or services: and
- manage your Customers' networking requirements by proposing new or
additional services, and maintain an ongoing relationship with the
Customers.
2. PRESALE ACTIVITIES
The IGN Global Sales Solution Center may be called on to assist you in
developing the technical solution for network services. The IGN
Messaging Support Group may be called on to assist you in developing
the technical solution for messaging services.
3. FULFILLMENT ACTIVITIES
The International Support Services organization will provide project
management for all International networking activity on a fee basis.
IGN is responsible for enabling connectivity for all leased lines. The
International Messaging Enabling organizations will provide project
management and enabling for all international messaging activity on a
fee basis. IGN is responsible for provisioning account IDs and user IDs
for international messaging.
2. PROVISION OF ELIGIBLE SERVICES
You agree to provide all marketing activities required by your Customers
and their End Users, including installation and application assistance and
technical support. We provide marketing and technical sales support to you
(and not to your Customers and their End Users).
You agree to:
1. make the Eligible Services available only to Customers in the countries
listed in Schedule A:
2. demonstrate and explain the functions and expected performance of, the
Eligible Services and your services to Customers:
3. provide support (such as documentation and technical assistance) for
the Eligible Services and for your services and software. This support
includes ordering User Identifications:
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4. inform the Customers, upon their request, of applicable courses that we
provide and how to enroll in them; and
5. select, develop, procure, integrate, and install all elements of your
services and any updates to them.
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INTERNATIONAL REMARKETER AGREEMENT [LOGO]
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We welcome you as an International Remarketer for networking services. Based
on your offerings and your knowledge of our Services, your skills and
experience, we grant you a nonexclusive right to remarket our Services to
Customers. Like yours, our goal is to provide the highest quality Services
and solutions to the customer. As our remarketer, please let us know if your
have any questions or problems with our Services.
The Remarketer Lead Company and Service Provider Lead Company agree to
coordinate the activities of the local Remarketer Companies ("you") and
Service Provider Companies ("we") in their respective Enterprises listed in
Schedule A, under this International Remarketer Agreement (called the
"Agreement"). This Agreement is written and signed in English with the
understanding that the Remarketer Lead Company and the Service Provider Lead
Company are bound by its terms. In some countries, local law formally
requires the use of local language for the Agreement. A lsit of such
countries is available from the Service Provider Lead Company upon request.
You agree to purchase Eligible Services in the geographic area in which they
are to be made available; for example, the Eligible Services to be marketed
and installed in Canada will be ordered and purchased in Canada and the
Eligible Services for Western Europe will be ordered and installed in Western
Europe.
As the Service Provider Lead Company, we warrant that in signing this
Agreement. 1) we are acting on behalf of all of the local Service Provider
Companies in the countries specified in Schedule A and 2) we will ensure that
each such company is aware of, and will agree to comply with and be bound by,
the terms of this Agreement.
As the Remarketer Lead Company, you warrant that in signing this Agreement,
1) all your local Remarketer Companies are Subsidiaries or Related Companies,
2) you are acting on behalf of all of the local Remarketer Companies in the
countries specified in Schedule A and 3) you will ensure that each such
company is aware of, and will agreed to comply with and be bound by, the
terms of this Agreement.
AGREED TO: (REMARKETER LEAD COMPANY) AGREED TO:(SERVICE PROVIDER LEAD COMPANY)
QUICKRESPONSE SERVICES INC. ADVANTIS
By /s/ Shawn N. O'Conner By /s/ R.A. Giffin
------------------------------ -------------------------------
Authorized signature Authorized signature
Name (type or print): Name (type or print): R.A. Giffin
Shawn N. O'Conner
Date: 11/11/96 Date:
Enterprise Number: 5229967 Agreement Number: N1071-US
Remarketer Address:
1400 MARINA WAY SOUTH
RICHMOND, CA 94804 U.S.A.
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AFTER SIGNING, PLEASE RETURN A COPY OF THIS AGREEMENT TO THE FOLLOWING ADDRESS:
Advantis
3405 W. Dr. M. L. King Jr. Blvd
Tampa, FL 33607 U.S.A.
Attention: Order Support Services
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The Remarketer Lead Company and Service Provider Lead Company agree to
distribute copies of this Agreement to their respective local Companies,
including those added to this Agreement in the future. Ten days after
acceptance by the Service Provider Lead Company, this Agreement will become
effective in each country listed in Schedule A. However, if during this ten
day period, either the Remarketer Lead Company or Service Provider Lead
Company notifies the other that any of the parties which it represents does
not agree to this Agreement. Part B and Schedule A will be revised
accordingly. This Agreement will then become effective as modified. Each
local Remarketer Company will provide written acceptance of this Agreement to
the local Service Provider Company when initially ordering Eligible Services;
however, both of us may agree to to an alternative acceptance procedure.
Local agreements between each Remarketer Company and Service Provider Company
consist of Attachments and Transaction Documents to this Agreement. This
Agreement and its applicable Attachments and Transition Documents are the
complete agreement regarding these transactions in the countries listed in
Schedule A and replace any prior oral or written communications between us.
By signing this Agreement, both of us agree to the terms of this Agreement.
Once signed, 1) unless prohibited by local law or specified otherwise, any
reproduction of this Agreement, an Attachment, or a Transaction Document made
by reliable means (for example, photocopy or facsimile) is considered an
original and 2) all Eligible Services ordered locally referring to this
Agreement are subject to it.
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INTERNATIONAL REMARKETER AGREEMENT
TABLE OF CONTENTS
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PART A - GENERAL TERMS
SECTION TITLE PAGE
1. Definitions 4
2. Agreement Structure 5
3. Responsibilities of the Parties 6
4. Access to Eligible Services 8
5. Warranty for Eligible Services 8
6. Prices and Price Changes 9
7. Invoicing, Payment, and Taxes 10
8. Equipment Provided by Services Provider Company 11
9. Customer Transmitted Data 12
10. Electronic Communications 13
11. Ordering and Delivery 13
12. Status Change 13
13. Export of Services and Products 13
14. Liability 13
15. Trademarks 15
16. No Property Rights 15
17. Changes to the Agreement Terms 15
18. Agreement Termination 15
19. Waiver of Noncompliance 16
20. Geographic Scope 16
21. Governing Law 16
PART B - COUNTRY UNIQUE TERMS
SCHEDULE A - LIST OF REMARKETER AND SERVICE PROVIDER LOCAL COMPANIES
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INTERNATIONAL REMARKETER AGREEMENT
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1. DEFINITIONS
CUSTOMER is a party to whom you remarket Eligible Services and provide a
User Identification. A Customer may authorize an End User to use an
Eligible Service. A Customer may not remarket an Eligible Service. A
Customer may allow End Users to access an Eligible Service for the
Customer's business purposes only.
END USER is any party whom a Customer authorizes, by any means, for
example, a User Identification, to use an Eligible Service. An End User
may not remarket or authorize other parties to access an Eligible Service.
ELIGIBLE SERVICE is an Service Provider Service that a Service Provider
authorizes you to remarket.
EQUIPMENT is a machine, its features, conversions, upgrades, elements, or
accessories, or any combination of them. The term "Equipment" includes
Service Provider Equipment and any non-Service Provider Equipment we
provide to you or your Customers.
RELATED COMPANY is any corporation, company or other entity.
1. more than 50 percent of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are owned or controlled, directly or indirectly, by
either of us:
2. which owns or controls, directly or indirectly, more than 50 percent
of the outstanding voting shares of either of us; or
3. more than 50 percent of whose outstanding voting shares are owned or
controlled, directly or indirectly, by a Related Company as defined in
item 2 above.
However, any such corporation, company or other entity will be deemed to
be a Related Company only so long as such ownership or control exists.
SERVICES are described in Transaction Documents and include access to,
and use of, Equipment, programs, networking facilities, and associated
enhanced communication and support services. Except for the right to use
programs that we authorize you or your Customers to access through the
Services, we grant no other rights to those programs to you, your
Customers or End Users.
SERVICE START DATE of an Eligible Service is the date on which we make it
available to you or your Customer.
SUBSIDIARY is any corporation, company or other entity;
1. more than 50 percent of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, or
2. which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, but
more than 50 percent of whose ownership interest (representing the right
to make the decisions for such corporation, company or other entity) is,
now or hereafter, owned or controlled, directly or indirectly, by either
of us, but such corporation, company or other entity shall be deemed to
be Subsidiary only so long as such ownership or control exists.
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USER IDENTIFICATION is a code or codes which enable authorization or
access to programs, data, or equipment through a Service.
2. AGREEMENT STRUCTURE
The structure of the International Remarketer Agreement is as follows:
GENERAL TERMS
The General Terms consist of two parts:
Part A -- General Terms are applicable to all your Remarketer Companies,
except where modified by Part B. These terms accredit your local
Remarketer Companies as Authorized Remarketers in the countries listed in
Schedule A and are the general terms governing this relationship.
Part B -- Country Unique General Terms modify the terms of Part A in the
countries specified.
TERMS FOR THE ORDERING OF ELIGIBLE SERVICE
You may order Eligible Services from:
1. Service Provider Companies in the countries listed in Schedule A; or
2. any other IBM company or affiliate pursuant to the IBM company or
affiliate's then current remarketer terms. All such terms are in addition
to those of this Agreement. The applicable IBM company or affiliate will
make these terms available to you and you will accept these terms (or any
amendment or modifications to these terms) by doing either of the
following:
a. signing them; or
b. accepting a Service from that local IBM company or affiliate.
Other local Remarketer Companies may be added to this Agreement upon the
mutual written consent of both parties.
TRANSACTION DOCUMENTS
For each business transaction, we will provide to you the appropriate
"Transaction Documents" that confirm the details of the transaction or
provide additional information about our relationship. Transaction
Documents may contain terms in addition to those we specify in this
Agreement. Some Transaction Documents require signature, and others do
not. Supplements may contain descriptions of custom solutions and
associated special charges. Exhibits and Fee Schedules are unsigned
Transaction Documents that explain in detail Service Provider Services,
Programs, and associated charges.
CONFLICTING TERMS
If there is a conflict among the terms in the various documents, those of
a Transaction Document prevail over those of the International Remarketer
Agreement.
YOUR ACCEPTANCE OF ADDITIONAL TERMS
You accept the terms in a Transaction Document by doing any of the
following:
1. signing it;
2. providing an Eligible Service to your Customer; or
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3. making any payment for an Eligible Service.
3. RESPONSIBILITIES OF THE PARTIES
MUTUAL RESPONSIBILITIES
Each of us agrees that under this Agreement:
1. you are an independent contractor. Neither of us is a legal
representative or agent of the other. Neither of us is legally a
partner of the other (for example, neither of us is responsible for
debts incurred by the other), and you are not our employee or
franchisee;
2. each of us is free to enter into similar agreements with others, to
market service competitive with the Eligible Service, and to conduct
its business in whatever way it chooses, provided there is no
conflict with this Agreement. The number of our remarketers, the
types of distributions channels, and the number of participants in
such channels may vary from country to country;
3. each is free to establish its own prices and terms and neither of us
will discuss its customer prices and terms in the presence of the
other;
4. except for information and data transmitted in electronic form using
the Eligible Service, which is discussed in section 9, the terms of
this Agreement, which neither of us will disclose except as required
by law or unless both of us agree in writing to do so, and
information exchanged under a confidentiality agreement signed by
both of us, all information exchanged by both of us is
nonconfidential;
5. we will provide you with access to our information systems only in
support of your authorized marketing activities. Programs associated
with these information systems are subject to the terms of their
applicable license agreements, except that you may not transfer
them;
6. neither of us will bring a legal action against the other more than
two years after the cause of action arose, unless otherwise provided
by local law without possibility of contractual waiver; and
7. neither of us is responsible for failure to fulfill its obligations
due to causes beyond its control.
YOUR RESPONSIBILITIES
You agree not to do any of the following:
1. assign, or otherwise transfer, this Agreement or your rights, under
it, delegate you obligations, or appoint another reseller (including
a related company) or agent to represent you or to market the
Eligible Services, without our prior written consent. Any attempt to
do so is void; however, if we allow you to use an agent to represent
you, we will provide written guidelines; or
2. assume or create any obligations on our behalf, or make any
representations or warranties about us or the Eligible Services
other than those we authorize.
You agree to:
1. sell Eligible Services only to Customers, unless otherwise specified
in this Agreement;
2. be responsible for Customer satisfaction with the Eligible Services
and all your related activities, and participate in
Customer-satisfaction programs as we determine. For example, if we
request, you agree to provide us with the names and addresses of all
Customers who have acquired Eligible Services from you;
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3. report or have your Customer report promptly to us all suspected and
actual problems with Eligible Services;
4. maintain trained personnel and comply with any reasonable
certification requirements:
5. develop and maintain the capability to provide first level warranty
service support for the Eligible Services;
6. ensure that your compensation or incentive plans for your employees
who market the Eligible Services are not unfair to us in comparison
with your plans for competitive products you market;
7. retain records by location of each Eligible Service transaction (for
example, a sale or credit) for five years and of each warranty claim
for three years. Records must include (as applicable) identification
of the Eligible Service provided, the date of your Customer's
initial access to an Eligible Service, and the Customer's name and
address;
8. assist us in tracing and locating Equipment;
9. provide us with sufficient, free, and safe, access to facilities, at
a mutually-convenient time, 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 the facilities, you
agree to notify us promptly;
10. require your Customers to keep a record of End Users outsider the
Customer's enterprise which include the name and address of the End
user, the date of initial Eligible Service access by the End User,
and the Eligible Service provided;
11. comply, and require your Customers and their End Users to comply
with all applicable laws, regulations, or conventions including those
related to data privacy, international communications, consumer
transactions, and exportation of technical or personal data with
respect to your activities under this Agreement;
12. inform your Customers and their End Users that they are responsible
for obtaining all necessary governmental, regulatory, or statutory
approvals for their use of the Eligible Services, to obtain all
required permissions if they use an Eligible Service to copy,
download, display, distribute, or execute programs or perform other
works;
13. be responsible for, and inform your Customers that they are
responsible for, data, programs, or other material that you or your
Customers provide for use with an Eligible Service, and for 1)
ensuring that your use and informing your Customer that their use of
an Eligible Service to provide data, programs, or other material
does not cause us to violate anyone's rights, and 2) the disclosure
or use of the material through the Eligible Service does not breach
any contractual relationship;
14. inform, and instruct your Customers to inform, in writing, those
whom you or your Customers authorize to access Eligible Services of
the applicable terms of this Agreement (for example, the Eligible
Services warranty) and that we have no liability to them, before
their initial access to the Eligible Services.
15. inform you Customers and their End Users that we are not responsible
for the content of information and data that they transmit using our
Services; and
16. to comply with the highest ethical principals in performing under
this Agreement. You will not offer or make payments or gifts
(monetary or otherwise) to anyone for the purpose of influencing
decisions in favor of a Service Provider Company, directly or
indirectly. We may terminate this Agreement immediately in case of
1) a breach of this clause or 2) when we reasonably believe such a
breach has occurred.
OUR REVIEW OF YOUR PERFORMANCE WITH THIS AGREEMENT
We may employ an independent auditor to audit your records related to the
remarketing of Eligible Services. Audits will be conducted during normal
business hours upon twenty days'
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prior written notice, and no more often than once per year for the sole
purpose of determining compliance with this Agreement.
4. ACCESS TO ELIGIBLE SERVICES
We will provide to you User Identifications which enable access to
Eligible Services. You may authorize the Customer to access an Eligible
Service by providing a User Identification to that Customer. The Customer
may in turn provide User Identifications to its End Users of the Eligible
Services. You are responsible for the control and distribution of User
Identifications to Customers. You will require your Customers to be
responsible for the control and distribution of User Identifications to End
Users. We have no responsibility for misuse of User Identifications not
under our control.
You agree to notify us in writing of a new authorized Customer and of the
User Identifications assigned to that Customer. You also agree to provide us
with all information we reasonably require to enable your Customers and
their End Users to access an Eligible Service (or to terminate such access).
We may withdraw access to an Eligible Service from you when, in our
opinion, you, your Customers, or their End Users cause any part of an
Eligible Service to malfunction. We may withdraw access if there is a
failure to make changes which, in our judgment, are necessary to correct
malfunctions. We will promptly notify you if we withdraw access to an
Eligible Service pursuant to this paragraph.
You may acquire Eligible Services for your own internal use under the
terms, including prices, of the applicable Transaction Documents and any
other terms to which we mutually agree.
5. WARRANTY FOR ELIGIBLE SERVICES
For each Eligible Service, we warrant that we provide it:
1. using reasonable care and skill; and
2. according to its current description contained in this Agreement or a
Transaction Document.
We do not warrant uninterrupted or error free operation of an Eligible
Service. We will identify Eligible Services that we do not warrant.
If the availability, as measured by us and exclusive of maintenance
periods, of an Eligible Service listed below or the IBM Global Network
backbone network falls below 95% for two consecutive months, then you may
terminate this Agreement pursuant to section 18 and no adjustment charge
will be due:
Information Exchange
IBM-Registered Trademark- Mail Exchange
The Advantis Backbone Network extends between Service Provider Company
points of presence. It does not include the leased line or dial circuits
from the Service Provider Company point of presence to your Customer's or
End User's location nor the telecommunications equipment at those
locations.
- ------------------------
IBM is a registered trademark of the International Business Machines
Corporation.
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Misuse, accident, modification, unsuitable physical or operating
environment, improper maintenance by you, or failure caused by a service
or program for which we are not responsible, may void the warranties.
You will afford us the opportunity to correct any deficiency in an
Eligible Service before being found in breach of our obligations under
this Agreement. You will permit us to take all appropriate measures to
restore the Eligible Service to conform to its desciption. In addition, we
may, at our option, substitute for or add to Eligible Services and take such
other measures as may be necessary, in each case, to correct an Eligible
Service deficiency.
We are not responsible for the selection of, use of, and results obtained
from, Eligible Services by you, your Customers, or their End Users.
Neither party is authorized to make any warranty commitment, whether
written or oral, on the other party's behalf.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. HOWEVER, SOME LAWS DO NOT ALLOW THE EXCLUSION OF
EXPRESS OR IMPLIED WARRANTIES. IF THESE LAWS APPLY, THEN ALL EXPRESS AND
IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO
WARRANTIES APPLY AFTER THAT PERIOD.
WARRANTY FOR OTHER SERVICES, PROGRAMS, AND EQUIPMENT
For Services and programs that we do not warrant and non-Service Provider
Equipment that a Customer may reasonably believe is warranted by us, you
agree to inform your Customers in writing, before the sale or installation
as appropriate, that we do not warrant them. You also agree to inform your
Customers 1) that the Services, programs, or Equipment are non-Service
Provider, 2) of the applicable third party warranty (if any), and 3) of the
procedure to obtain any warranty service.
You are responsible for all programs, data, or equipment you, your
Customers, or their End Users provide which you, your Customers, or their
End Users use to access the Service Provider network.
6. PRICES AND PRICE CHANGES
The following are the bases on which we may require the amount payable
for an Eligible Service to be paid, with an example of each:
1. one-time (Eligible Service installation charges);
2. recurring (a periodic charge for Eligible Services);
3. usage (network traffic charges).
We will specify the amount and basis for the particular Eligible Service.
We specify discountable and non-discountable charges, adjustment
charges, credits, and education and reporting requirements in the Fee
Schedules. We may change the terms of these Fee Schedules on written notice
as specified in section 17. "Changes to the Agreement Terms."
For a discounted-charge Eligible Service, we will reduce your charges by
the applicable discount percent we specify in the Fee Schedules.
Page 9 of 27
PRICE INCREASES
We may increase recurring charges and usage charges by giving you three
months' written notice. An increase applies on the first day of the month
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) we
make the Service available to you within three months after the
announcement.
We will not increase the Eligible Service charges during the first year
of the contract period. Thereafter, we may increase Eligible Service charges
by giving you three months' written notice.
When the cumulative effect of an increase in Eligible Service charges, or
termination of an Eligible Service, in any one year of the contract
period results in a change to your Service Provider Company invoice of
more than six percent (determined by recalculating your last invoice
using the new charges), you may terminate this Agreement by giving us
written notice. We must receive the notice before the effective date of
the change. The adjustment charge does not apply in this case. The
cumulative effect of any of any of these actions resulting in such change
to your Service Provider invoice cannot be carried over to subsequent years
of the contract period.
PRICE DECREASES
For one-time charges, you receive the benefit of a price decrease when
the Service Start Date occurs on or after the effective date of the
decrease.
For recurring charges and usage charges, you receive the benefit of a
decrease on the first day of the month following the effective date of
the decrease.
7. INVOICING, PAYMENT, AND TAXES
Payment in full is due upon receipt of our invoice. You agree to pay as
we specify in the invoice. We may offset any amounts due you, or
designated for your use (for example, marketing funds or promotional
offerings), against amounts due us or any of our affiliates.
You 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 agree to provide us with valid reseller-exemption documentation for
each applicable taxing jurisdiction. Otherwise, we will charge you all
applicable state and local taxes or duties. You agree to notify us
promptly if this documentation is revoked or modified. You are liable for
any claims or assessments that result from any taxing jurisdiction refusing
to recognize your exemption.
FAILURE TO PAY ANY AMOUNTS DUE
If your account becomes delinquent, you agree that we may do one or more
of the following:
1. impose a finance charge, up to the maximum permitted by law, on the
delinquent portion of the balance due;
2. require cash payment on or before provision of any Eligible
Services;
3. terminate this Agreement; or
Page 10 of 27
4. pursue any other remedy available at law or equity.
In addition, if your account with any of our affiliates becomes
delinquent, we may invoke any of these options allowable by law or equity.
8. EQUIPMENT PROVIDED BY SERVICE PROVIDER COMPANY
We may provide Equipment to be installed on your Customers' or End Users'
premises for the purpose of providing Eligible Services. The Equipment is
and will remain the asset of the Service Provider Company or its lessor
and will not become a fixture or really.
Certain Equipment may contain licensed internal code. We will identify
this Equipment to you. Such Equipment may be subject to additional terms
specified in a Transaction Document.
No right, title, or interest in or to the Equipment, or licensed internal
code associated with it, or any related planning informantion, is passed
to you. However, we will use such Equipment to provide Eligible Services
to you, your Customers, and their End Users.
As appropriate, we will provide you physical planning information for the
Equipment. You will ensure that your Customers and their End Users comply
with that information in order to provide an environment meeting our
specifications.
OUR RESPONSIBILITIES
We agree to:
1. Install the Equipment we provide at your Customers' or their End
Users' sites unless we specify otherwise;
2. maintain the Equipment; and
3. be responsible for all return, removal, and shipping charges for the
Equipment.
YOUR RESPONSIBILITIES
You agree to:
1. ensure that your Customers provide for the physical space and
electrical power for the Equipment at your Customers' or their End
Users' sites at the Customer's or their End Users' expense;
2. be responsible for loss of or damage to the Equipment caused by
your, your employeess', your agents', your Customers' or their End
Users' intentional acts or negligence;
3. provide us or our designee with all assistance reasonable necessary
to permit us access to your Customers' or their End Users' sites to
perform inspection, installation, preparation for return, or
maintenance, as applicable;
4. ensure that your Customers or their End Users provide, at no cost to
us, adequate security to protect the Equipment from theft, loss,
damage, or misuse;
5. return to us, or permit us or our designee to remove at our
discretion, the Equipment, any licensed internal code associated
with it, and physical planning documentation at the expiration or
termination of the Eligible Service;
6. not alter the Equipment and any licensed internal code associated
with it in any manner, not move it to other locations, and not
transfer it to anyone else without our prior written approval;
7. keep the Equipment and any licensed internal code associated with it
free from all liens, charges, or encumbrances; and
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8. affix and keep in a prominent place on the Equipment any marking or
label we require.
9. CUSTOMER TRANSMITTED DATA
We agree not to disclose your, your Customers', or their End
Users' confidential information, including programs and data,
transmitted in electronic form using the Eligible Services. However,
we have no obligation of confidentiality relating to your, your
Customers', or their End Users' information, including programs and
data, which is not confidential. Information that is not
confidential includes information which is:
1. either currently publicly available or becomes publicly
available in the future without our breach of any obligation or
responsibility described in this Agreement:
2. rightfully received by either of us from a third party,
where the information was received without any obligation of
confidentiality associated with it;
3. already in our possession without an obligation of
confidentiality;
4. independently developed by us; or
5. approved for disclosure by you or your Customers.
We also have no liability for any disclosure of information
that occurs as the result of our delivery of your, your Customers',
or their End Users' information, at your, your Customers', or their
End Users' direction and to a recipient you, your Customers, or
their End Users designate, when the delivery is made in the normal
course of Eligible Service provision (for example, to an incorrect
delivery address provided by you, your Customers, or their End
Users to us). We may disclose information to the extent required by
law.
HANDLING OF YOUR, YOUR CUSTOMERS', OR THEIR END USERS'
INFORMATION
You, your Customers, and their End Users are responsible for selection
and use of the security facilities and options that we provide.
You, your Customers, and their End Users are responsible to
develop and maintain procedures (apart from the Eligible Services)
to protect your, your Customers', and their End Users' information.
You, your Customers, or their End Users are responsible for backup
and restoration of your respective information.
For the purposes of operation and maintenance we may use,
copy, display, store, and distribute internally your, your
Customers', or their End Users' information. We agree not to
reverse assemble or reverse compile your, your Customers', or their
End Users' information. We do not guarantee that these procedures
will prevent the loss of, alteration of, or improper access to,
your, your Customers', or their End Users' information. You agree that
access to your, your Customers', or their End Users' information will not
prohibit or prevent us from developing or marketing any service or
product.
For transmission carried over interexchange carriers' and
local exchange carriers' facilities, Service Provider is not
responsible for transmission errors, or corruption or security of
data.
We reassign to other customers data storage that you, your
Customers, or their End Users return to us. We do not erase data
storage and, in some cases, the next customer accessing a disk may
be able to read residual data. We are not responsible for your,
your Customers', or their End Users' failure to erase sensitive
data from disk space returned to us.
You will take appropriate measures to inform your Customers
and their End Users of these provisions.
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10. ELECTRONIC COMMUNICATIONS
Each of us may communicate with the other by electronic means,
such as IBM(registered trademark) Mail Exchange. Each of us agrees
to the following for electronic communications:
1. a User Identification 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 User Identification
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.
11. ORDERING AND DELIVERY
On our request, you agree to make reasonable efforts to use
our automated order-entry system.
CANCELLATION OF AN ORDER
You may cancel an order for an Eligible Service before we
provide it. We may charge you a cancellation charge. We will inform
you in writing of the cancellation charge. The cancellation charge
does not apply to an Eligible Service if 1) we postpone providing
it for more than 15 days from its estimated availability date and
2) you cancel your order before we provide the Eligible Service.
DELAYED PROVISION OF AN ELIGIBLE SERVICE
Circumstances may arise where we delay the provision of an
Eligible Service due to our inability to meet the original
estimated availability date. If this delay causes the estimated
date to be after the end of your contract period, the terms of this
Agreement apply to that Eligible Service. It will be treated as if
you had acquired it during the contract period.
12. STATUS CHANGE
You agree to give us prompt written notice (unless precluded
by law or regulation) or any material change, or anticipated
change, in your financial condition, business structure, or
operating environment (for example, a material change in equity
ownership or management or any change to information you have
provided to us). Such change or failure to give notice may result
in termination of this Agreement.
13. EXPORT OF ELIGIBLE SERVICES
You are not authorized to actively market Eligible Services
outside the geographic scope of this Agreement and you agree not to
use anyone else to do so.
If a Customer acquires an Eligible Service for export, our
responsibilities under this Agreement no longer apply to that
Eligible Service. You agree to ensure that your Customers and their
End Users comply with export laws and regulations of the
originating country, and any import requirements of the destination
country.
14. LIABILITY
Circumstances may arise where, because of a default or other
liability, one of us is entitled to recover damages from the other.
In each such instance, regardless of the basis on which
Page 13 of 27
damages can be claimed, the following terms apply.
OUR LIABILITY
We are responsible for:
1. bodily injury (including death), and damage to real property
and tangible personal property caused by the Eligible Services; and
2. the amount of any other actual loss or damage, up to the
greater of US$100,000 (or equivalent) or the charges (if recurring
12 months' charges apply) for the Eligible Service that is the
subject of the claim.
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 above);
2. loss of, or damage to, records or data; or
3. economic consequential damages (including lost profits or
savings) or incidental damages, even if we are informed of their
possibility.
ITEMS FOR WHICH YOU ARE LIABLE
Circumstances may arise where, because of a default on your
part or other liability, we are entitled to recover damages from
you. In each such instance, regardless of the basis on which we are
entitled to claim damages from you, you are liable only for:
1. bodily injury (including death), and damage to real
property and tangible personal property;
2. claims by others made against us (particularly regarding
statements, representations, or warranties not authorized by us)
arising out of your conduct under this Agreement or as a result of
your relations with anyone else, except where such claim is a
result of our action or failure to act;
3. the adjustment charge, if you fail to meet your minimum
revenue commitment; and
4. the amount of any other actual loss or damage, including
any lost profits associated with the product or Service to the
extent inherent in payments required to be made under this
Agreement, up to the greater of US$100,000 (or equivalent) or the
charges (if recurring, 12 months' charges apply) for the Service,
Eligible Service, or program that is the subject of the claim.
ITEMS FOR WHICH YOU ARE NOT LIABLE
Under no circumstances are you liable for any of the following:
1. third party claims against us for any losses or damages
(other than those set forth above);
2. loss of, or damages to, records or data; or
3. economic consequential damages (including lost profits or
savings) or incidental damages, even if you are informed of their
possibility; however, notwithstanding the foregoing, you will
indemnify us from consequential or incidental damages associated
with the damages for which you are liable as set forth in items 1
and 2, "Items For Which You are Liable," and you are responsible
for lost profits associated with the product or Service to the
extent inherent in payments required to be made under this
Agreement.
Page 14 of 27
15. TRADEMARKS
We will provide you with advertising guidelines for our
logos, trade and service marks, trade names, emblems, and titles
(collectively called "Trademarks"). We will notify you in writing
of the title you are authorized to use. You may use the Trademarks
only as described in the guidelines and only in association with
the Eligible Services we approve you to market.
On our request, you agree to change or stop using any
advertising or promotional material that does not comply (as we
determine) with our guidelines or this Agreement. When this
Agreement ends, you agree to promptly stop using our Trademarks. If
you do not, you agree to pay any expenses and fees that we incur in
getting you to stop.
You agree that any goodwill attaching to our Trademarks as a
result of your use of them belongs to us. You agree not to register
or use any mark that is confusingly similar to any of our
Trademarks.
16. NO PROPERTY RIGHTS
Your rights under this Agreement are not property rights and,
therefore, you cannot transfer them to anyone else or encumber them
in any way. For example, you may not sell your authorization to
market the Eligible Services or your right to use our Trademarks.
17. CHANGES TO THE AGREEMENT TERMS AND ELIGIBLE SERVICES
CHANGES TO THE AGREEMENT TERMS
In order to maintain flexibility in our relationship, 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. If you do
not accept a change, you must inform us in writing before its
effective date.
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.
CHANGES TO AND TERMINATION OF ELIGIBLE SERVICES
We will give you three months' written notice if increase Eligible
Service charges or change invoicing procedures, or when a planned
change would substantially alter an Eligible Service from its
current description. We will give you 12 months' written notice if
we terminate an Eligible Service (or if we can change this 12-month
notice period). However, if a third party claims that a product
that we provide as part of an Eligible Service infringes a patent
or copyright, we reserve the right to terminate the Eligible
Service effective immediately.
You agree to give us one month's written notice to terminate
your use of or remarketing of an Eligible Service. The termination
will be effective at month's end.
18. AGREEMENT TERMINATION
This Agreement ends when terminated or when the contract
period ends.
You may terminate this Agreement, with or without cause, on
one month's written notice. If you terminate this Agreement without
cause, you are responsible to pay any applicable adjustment charges.
Page 15 of 27
We may terminate this Agreement, with or without cause, on
three months' written notice. If the termination is for cause, we
may (at our discretion) allow you a reasonable opportunity to
cure. If you fail to do so, the date of termination is that
specified in the notice. However, certain acts or omissions are so
serious as to warrant immediate termination. If you repudiate this
Agreement, materially breach any of its terms or make any material
misrepresentation to us, we may terminate this Agreement at any
time, on written notice.
Examples of a material breach are violation of our status-change
terms, violation of our trademark terms, submission of a false
warranty claim, unauthorized sale to a reseller, and failure
to use reasonable efforts to maintain your Customers' satisfaction.
You agree that our only obligation is to provide the notice called
for in this section and we are not liable for any claims or losses
if we do so.
Any terms of this Agreement, which by their nature extend
beyond the day this Agreement ends, remain in effect until
fulfilled, and apply to respective successors and assignees.
We may permit you to continue to provide Eligible Services
after this Agreement ends. If we do so, you agree to provide those
Eligible Services under the terms of this Agreement.
19. WAIVER OF NONCOMPLIANCE
Failure by either of us to insist on strict performance or to
exercise a right when entitled, does not prevent us from doing so
at a later time, either in relation to that default or any
subsequent one.
20. GEOGRAPHIC SCOPE
All your rights and all our obligations are valid only in the
countries designated in Schedule A.
21. GOVERNING LAW
Any dispute related to this Agreement will be subject to the
law and jurisdiction of the locality in which the Agreement was
signed. And dispute regarding a Service will be subject to the law
and jurisdiction of the locality where the Service to which the
dispute relates was provided.
In no event will the "United Nations Convention on Contracts
for the International Sale of Goods" apply.
Page 16 of 27
INTERNATIONAL REMARKETER AGREEMENT
PART B - COUNTRY UNIQUE TERMS
- -------------------------------------------------------------------------------
The following terms are country amendments to Part A - General Terms. All
terms not specifically modified or deleted by these amendments remain in
effect.
Countries listed in this Part B are those with modifications to the terms of
this Agreement or where Services are provided by Service Provider Companies
other than IBM. Services are provided in some countries that are not listed
in Part B because no country unique terms apply and Services are provided by
IBM Subsidiaries or Related Companies.
The following terms are effective only if the country listed in this Part B
is also listed in Schedule A.
THE FOLLOWING COUNTRY UNIQUE TERMS APPLY TO AUSTRIA, BELGIUM/LUXEMBOURG,
DENMARK, EGYPT, FRANCE, FINLAND, GREECE, IRELAND, ISRAEL, NETHERLANDS,
NORWAY, PORTUGAL, SPAIN, SWEDEN, AND SWITZERLAND.
2. AGREEMENT STRUCTURE
YOUR ACCEPTANCE OF ADDITIONAL TERMS
Item 2, "providing an Eligible Service to your Customer," does not apply
6. PRICES AND PRICE CHANGES
PRICE INCREASES
You may withdraw a Service from an order or terminate a Service to which
an increase applies by providing us with written notice within one month
of the date of our notice of increase.
THE FOLLOWING ADDITIONAL COUNTRY UNIQUE TERMS APPLY TO FRANCE.
FRANCE
Services are provided by Axone in France.
17. CHANGES TO THE AGREEMENT TERMS
If we announce a change in accordance with this section, you may
terminate the affected Service by providing us with written notice on or
before the effective date of any such change. Continued use of a Service
after the effective date of any change shall be considered acceptance of
the change.
THE FOLLOWING ADDITIONAL COUNTRY UNIQUE TERMS APPLY TO THE NETHERLANDS.
NETHERLANDS
5. WARRANTY FOR ELIGIBLE SERVICES
Where Decree D 78-464 is relevant, the legal warranty for hidden defects
remains applicable.
8. EQUIPMENT PROVIDED BY SERVICE PROVIDER COMPANY
The first two paragraphs are replaced with the following:
We will, if applicable, provide Equipment specified in the local
Agreement Transaction Document to be installed on your premises for
the purposes of providing a Service. The Equipment is and will remain
the asset of the Service Provider Company or its lessor
Page 17 of 27
and will not become a fixture or really. Certain Equipment may
contain licensed internal code. We will specify this in the local
Agreement Transaction Document.
THE FOLLOWING ADDITIONAL COUNTRY UNIQUE TERMS APPLY TO NORWAY.
NORWAY
Services are provided by Norsk Informasjonsteknologi AS (NIT AS) in Norway.
THE FOLLOWING ADDITIONAL COUNTRY UNIQUE TERMS APPLY TO PORTUGAL.
PORTUGAL
Services are provided by COMPENSA in Portugal.
THE FOLLOWING ADDITIONAL COUNTRY UNIQUE TERMS APPLY TO SWEDEN.
SWEDEN
1. DEFINITIONS
Item 1 in the definition of "Related Companies" is replaced by the
following:
1. instituted by more than 50% of the total votes for the election
of directors or other managing authority by either of us; or
2. AGREEMENT STRUCTURE
YOUR ACCEPTANCE OF ADDITIONAL TERMS
Item 2, "providing an Eligible Service to your Customer," does not apply.
6. PRICES AND PRICE CHANGES
PRICE INCREASES
You may withdraw a Service from an order or terminate a Service to which
an increase applies by providing us with written notice within one month
of the date of our notice of increase.
14. LIABILITY
Item 3 is modified to read:
3. the amount of any other actual loss or damage, up to the greater
of SEK 500,000 or the charges (if recurring or usage, 12 months'
charges apply) for the Service that is the subject of the claim.
21. GOVERNING LAW
If any dispute is to be governed by Swedish law, if shall be settled by
arbitration in accordance with the Rules of the Arbitration Institute of
the Stockholm Chamber of Commerce by three arbitrators all appointed in
accordance with said Rules. The place of arbitration shall be Stockholm,
Sweden. The language to be used in these procedings shall be Swedish,
unless any party is not incorporated under the laws of Sweden.
Notwithstanding this, either party is free to sue before an ordinary court
of law for any debt which is due and payable and not disputed in good faith
by the other party.
Page 18 of 27
THE FOLLOWING COUNTRY UNIQUE TERMS APPLY IN THE COUNTRIES AS INDICATED.
AUSTRALIA
Services are provided by ISSC Australia in Australia.
5. WARRANTY FOR ELIGIBLE SERVICES
The following paragraph is added at the beginning of this Section:
The warranties specified in this section 5 are in addition to any
rights you may have under the Trade Practices Act or other similar
legislation.
The following is deleted from this section 5:
HOWEVER, SOME LAWS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED
WARRANTIES. IF THESE LAWS APPLY, THEN ALL EXPRESS AND IMPLIED
WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO
WARRANITES APPLY AFTER THAT PERIOD.
The following paragraph is added:
Materials delivered to you under this Agreement are provided
without warranty of any kind. We do not warrant that the materials
are correct or that they will be suitable to your needs.
6. PRICES AND PRICE CHANGES
PRICE DECREASES
For one-time charges, you receive the benefit of a price decrease for any
amount which becomes due on or after the effective date of the decrease.
14. LIABILITY
The following paragraphs are added to this section 14:
Where we are in breach of a condition or warranty implied by the Trade
Practices Act 1974:
Our liability is limited to, for Services, the payment of the cost of
having the Services supplied again, and for goods, the repair or
replacement of the goods or the supply of equivalent goods.
Where this condition or warranty relates to right to sell, quiet
possession or clear title (i.e., Section 69), or the goods are of a
kind ordinarily acquired for personal, domestic or household use or
consumption, then none of the limitations in this Section apply.
In addition to the above, the following is deleted from this section:
"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
The first line is modified to read, "Under no circumstances are we liable for
any of the following:"
CANADA
Services are provided by Advantis Canada in Canada.
5. WARRANTY FOR ELIGIBLE SERVICES
The following sentence is added to this section 5.
Warranties include both warranties and conditions.
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9. CUSTOMER TRANSMITTED DATA
HANDLING OF YOUR INFORMATION
The third paragraph is modified by the addition of the following sentence:
Any idea, concept, know-how or technique which relates to the subject
matter of a Transaction Document and is developed or provided by either of
us or jointly by both of us in the performance of a Transaction Document
(subject to applicable patents and copyrights) may be freely used by either
of us in any way either of us deem appropriate.
14. LIABILITY
Our liability for bodily injury (including death) or damage to real property and
tangible personal property shall be limited to that caused by our negligence.
This "Liability" section applies regardless of the basis on which you are
entitled to claim damages from us, including:
1. breach of contract, even if fundamental breach; or
2. tort, including, but not limited to, negligence or misrepresentation.
The limitation of liability for Canada is Canadian $100,000.00
17. CHANGES TO THE AGREEMENT TERMS AND ELIGIBLE SERVICES
Changes to and Termination of Eligible Services
We will give you three months' written notice if we terminate a Service (or if
we change this 3-month notice period).
DOMINICAN REPUBLIC
Services and are provided by GBM de Republica Dominicana S.A. in the Dominican
Republic.
GERMANY
2. AGREEMENT STRUCTURE
YOUR ACCEPTANCE OF ADDITIONAL TERMS
Item 2, "providing an Eligible Service to your Customer" does not apply.
3. RESPONSIBILITIES OF THE PARTIES
MUTUAL RESPONSIBILITIES
Item 7 is not applicable in case of tort by either of us and our agents.
5. WARRANTY FOR ELIGIBLE SERVICES
If we are not able in a timely manner to eliminate or circumvent a
substantial deviation of the Service provided compared with the current
Service description, you reserve the right either to terminate the Service
effective immediately or deduct the Service charge for the provided Service
accordingly.
6. PRICES AND PRICE CHANGES
The following example is added at the end of the list in the first
paragraph under this section:
5. a total upfront charge for a fixed contract period.
PRICE INCREASES
"Price Increases" is modified as follows:
You may withdraw a Service from an order or terminate a Service to
which an increase applies by providing us with written notice within
one month of the date of our notice of
Page 20 of 27
increase. Continued use of a Service after the effective date of
any price change shall be considered as acceptance of the change.
14. LIABILITY
The limitations and exclusions specified in the Agreement will not
apply to damages caused by us with intention or gross negligence. We
are liable for assured characteristics. The maximum amount of liability
in clause 14, subparagraph 3 is limited to one million Deutche marks.
17. CHANGES TO THE AGREEMENT AND ELIGIBLE SERVICES
If we announce a change in accordance with this Section, you may
terminate your use of the affected Service by providing us with written
notice on or before the effective date of the change.
HUNGARY
Some Services are provided by the Hungarian PTT in Hungary.
3. RESPONSIBILITIES OF THE PARTIES
YOUR RESPONSIBILITIES
Additional responsibilities are added as follows:
12. to procure communication lines from the Hungarian PTT prior
to the Start Date of a Service and to maintain the communication
lines for the duration of this Agreement. Any communication
equipment you provide must comply with specifications provided by
the IBM Computing Center;
13. to be responsible for the attachment and operation of
communication equipment you provide. IBM's responsibility ends at
the applicable interface to the IBM Equipment. IBM is not
responsible for maintenance and operation of the Hungarian PTT
communication lines including those within the IBM computing
center network.
14. LIABILITY
Item 3 is modified to read:
3. the amount of any other actual loss or damage, up to the
greater of FT 2,500,000.00 (two million five hundred thousand
Hungarian Forint) or the charges (if recurring or usage, 12
months' charges apply) for the Service that is the subject of the
claim.
21. GOVERNING LAW
The following is added to this section:
The Hungarian language version of this Agreement is the only
legally binding version. The laws of Hungary apply to this
Agreement.
INDONESIA
Services are provided by PT Sistelindo Mitralintas in Indonesia.
1. DEFINITIONS
Add the following at the end of the last sentence of the definition of
"Related Company" following "exists:"
provided that for the purpose of this definition, the Service
Provider Company's agent in Indonesia, PT Sistelindo Mitralintas,
a corporation established and domiciled in Jakarta, Indonesia.
will be categorized as a "Related Company."
2. AGREEMENT STRUCTURE
Add the following to "Terms for Ordering of Eligible Services:"
All orders must be confirmed in writing.
Page 21 of 27
6. PRICES AND PRICE CHANGES (PRICE INCREASES)
Add the following to the first paragraph:
You may withdraw a Service from an order or terminate a Service to
which an increase applies by providing us with written notice
within one month of the date of our notice of increase.
8. EQUIPMENT PROVIDED BY SERVICE PROVIDER COMPANY
The first two paragraphs are replaced with the following:
We will, if applicable, provide Equipment specified in the local
Agreement Transaction Document to be installed on your premises
for the purpose of providing a Service. The Equipment is and will
remain the asset of the Service Provider Company or its lessor and
will not become a fixture or realty. Certain Equipment may contain
licensed internal code. We will specify this in the local
Agreement Transaction Document.
18. AGREEMENT TERMINATION
Add the following to this section:
A termination hereunder shall not require a court decree: we both
waive in this regard the provision in article 1266 of the
Indonesian Civil Code, 2nd, 3rd and 4th paragraphs to the extent
the article provision requires such court decree for the
termination of an agreement creating mutual obligations.
ITALY
In Italy, Services will be provided by IN.TE.S.A. S.p.A. (hereinafter called
INTESA), according to the terms of this Agreement. The following additional
terms integrate and replace the terms stated in the Agreement. In the event
of any conflict between the clauses of the Agreement and those of such
additional clauses, the latter shall prevail.
2. AGREEMENT STRUCTURE
YOUR ACCEPTANCE OF ADDITIONAL TERMS
Item 2, "providing and Eligible Service to your Customer" does not apply.
6. PRICES AND PRICE CHANGES
The applicable charges for each Service, fixed by INTESA for INTESA's
customers, are indicated in Transaction Documents. For one-time
charges, the relevant amount will be invoiced in the month of the start
date of the Service. For periodic charges, the relevant amount will be
invoiced in advance with reference to the related period.
PRICE INCREASES
You may withdraw a Service from an order or terminate a Service to
which an increase applies by providing us with written notice within
one month of the date of our notice of increase.
7. INVOICING, PAYMENT, AND TAXES
The first invoice will be issued by INTESA in the month of the start
date of the Service. Payment shall be made cash within 30 days from the
end of the month of the invoice. If the order specifies that payment
shall be made cash via Factor, INTESA will be free to assign its
credits to the Factor specified in the Transaction Document. Without
prejudice to the provisions on cash payment via Factor, all payments
shall be made to INTESA at 125, via Servais, Turin, ITALY, which
remains the place of receipt of customer's payments, also in the event
that payment of all or part of the charges due has been otherwise
agreed in writing, or, however, made by means of delivery of promissory
notes or banking receipts.
14. LIABILITY
Our entire liability is as follows:
Page 22 of 27
1. (unchanged)
2. bodily injury (including death) and damage to real property and
tangible personal property caused solely by our negligence; and
3. as to any other actual loss or damage arising in all situations
involving our non-performance pursuant to, or in any way related to
the subject matter of this Agreement, our liability, except as
mandatory by law, will be limited to the charge paid by you for the
individual Service that is the subject of the claim.
(Applicability to subcontractors and program developers unchanged).
21. GOVERNING LAW
These additional provisions shall be governed by the laws of Italy and
the competent court will be Turin in Italy. The Attachment for Italian
Burdensome Clauses (Clausole Onerose) must be signed prior to doing
business in Italy, whenever Services will be obtained in Italy. The
Attachment must be signed whether Italy is the country where the
Remarketer Lead Company and Service Provider Lead Company are located
or when business will be transacted by other Remarketer Companies and
Service Provider Companies.
Page 23 of 27
INTERNATIONAL REMARKETER AGREEMENT
[LOGO]
ATTACHMENT FOR ITALIAN BURDENSOME CLAUSES (CLAUSOLE ONEROSE)
- -------------------------------------------------------------------------------
PURSUANT TO ARTICLES 1341 AND 1342 OF THE ITALIAN LAW - CIVIL CODE, YOU MUST
SPECIFICALLY ACCEPT THE CLAUSES LISTED IN THIS ATTACHMENT (CALLED "CLAUSOLE
ONEROSE") BY SIGNING THIS ATTACHMENT. THE INTERNATIONAL REMARKETER AGREEMENT
IS VOID IN ITALY IN THE ABSENCE OF YOUR SIGNATURE ON THIS ATTACHMENT.
You hereby specifically accept the following clauses.
PART A - GENERAL TERMS
2. Agreement Structure
3. Responsibilities of the Parties
5. Warranty for Eligible Services
8. Equipment Provided by Service Provider Company
9. Customer Transmitted Data
10. Electronic Communications
14. Liability
17. Changes to the Agreement Terms and Eligible Services
18. Agreement Termination
21. Governing Law
You specifically accept the Italian country unique terms in the following
contract Part.
PART B - COUNTRY UNIQUE TERMS
If any of the clauses mentioned above have been amended by a written document
signed by both of us, by signing this Attachment you are specifically
accepting the amended terms.
- -------------------------------------------------------------------------------
Each of us agrees that the complete agreement between us about this
transaction consists of 1) this Attachment, 2) any other Transaction
Documents, and 3) the International Remarketer Agreement (or any equivalent
agreement signed by both of us).
AGREED TO: (Remarketer Lead Company name)
QUICKRESPONSE SERVICES, INC.
By /s/Shawn M. O'Connor
---------------------------------
Authorized signature
Name (type or print): Shawn M. O'Connor
Date: 11/11/96
Remarketer Lead Company Number: 5229967 Agreement number: N1071-US
Remarketer Lead Company address: Service Provider Lead Company Name and Address:
1400 Marina Way South Advantis
Richmond, CA 94804 U.S.A. 3405 W. Dr. M.L. King Jr. Blvd.
Tampa, FL 33607 U.S.A.
Attention: Order Support Services
AFTER SIGNING, PLEASE RETURN A COPY OF THIS AGREEMENT TO THE "SERVICE
PROVIDER LEAD COMPANY ADDRESS" SHOWN ABOVE.
Page 24 of 27
JAPAN
14. LIABILITY
We are not liable for damages which have arisen through special
circumstances.
MALAYSIA
Services are provided by IBM VADS SDN BHD in Malaysia.
14. LIABILITY
Our liability for actual damages from any cause whatsoever will be
limited to the lesser of:
a) RM75,000 or
b) the total amount invoiced for your use of the Service which
is the subject of the action during the previous twelve months
before the cause of action arose.
21. GOVERNING LAW
Any dispute arising in connection with this Agreement which cannot be
settled by negotiation between the parties or their representatives
shall be submitted to arbitration in accordance with the Rules for
Arbitration of the Kuala Lumpur Regional Arbitration Centre.
The following new section is added following section 21.
22. LICENSE
The Services are made available in accordance with the terms of the
license for Value Added Network Services granted by the government of
Malaysia in 1991. In the event that such license or any successor
thereof or VADS SDN BHD's registration thereunder is revoked,
terminated or amended, VADS SDN BHD's shall, notwithstanding any other
terms, have the right to terminate this Agreement or amend it
accordingly on three months' notice.
MEXICO
Services are provided by IBM Servicios Corporativos de Informacion (ISCI) in
Mexico.
NEW ZEALAND
14. LIMITATION OF LIABILITY
The Consumer Guarantees Act 1993 will not apply in respect of any goods
or Services we provide, if you require the goods or Services for the
purposes of a business as defined in that Act (which includes any
undertaking, whether carried on for gain or reward or not).
PAKISTAN
2. AGREEMENT STRUCTURE
The following paragraph is added after the second paragraph in the
subsection titled, "Transaction Documents."
Service Supplements and Schedule of Charges are unseperable parts of
this Agreement. The charges and payment schedule is defined in the
Schedule of Charges; the Services that we will provide you under this
Agreement are defined in the Service Supplement.
Any reproduction of this Agreement, an Attachment, or a Transaction
Document, must be attested by a Court of Law, to be considered an
original.
The paragraph under "Terms for the Ordering of Eligible Services" is
modified to read:
You may order a Service by various means, including a request
written on paper and delivered to us, and a request sent via
facsimile to us.
Page 25 of 27
3. RESPONSIBILITIES OF THE PARTIES
MUTUAL RESPONSIBILITIES
A new item 8 is added:
8. we assume no responsibility for not providing Services due to
reasons arising from Pakistan's PTT or a private network operator's
inability to provide data and/or communications lines.
YOUR OTHER RESPONSIBILITIES
Item 6 is modified to read:
6. to obtain, install, and maintain suitable equipment, including
communication lines, as necessary to access the Services.
14. LIMITATION OF LIABILITY
Item 3 in the first paragraph is modified to read:
3. the amount of any other actual loss or damage, up to the greater
of this Agreement amount or the charges (if recurring or usage, 12
months' charges apply) for the Service that is the subject of the claim.
17. CHANGES TO THE AGREEMENT TERMS
The first paragraph is modified to read:
We will give you three months' written notice if we increase Service
charges or revise our prices due to an act of Government or change
invoicing procedures, or when a planned change would substantially
alter a Service from its current description. We will give you 12
months' notice if we terminate a Service (or if we change this 12-month
notice period). However, if a third party claims that a product we
provide as part of a Service infringes a patent or copyright, we
reserve the right to terminate the Service effective immediately.
SINGAPORE
6. PRICES AND PRICE CHANGES
If we have agreed not to change specified charges to you over a
specified period (period type charges), changes to those charges will
not apply to you until expiration of the protection period.
7. INVOICING, PAYMENT, AND TAXES
Usage charges are payable up-front if a) they are for the minimum usage
specified, and b) you buy units at up-front prices.
8. EQUIPMENT PROVIDED BY SERVICE PROVIDER COMPANY
The term "Equipment" in this section does not apply to Equipment
purchased by you where the asset title passes to you.
14. LIABILITY
Our liability for actual damages to you, from any cause whatsoever,
will be limited to the greater of S$100,000 or the total amount
invoiced for your use of the Service which is the subject of the action
during the previous twelve months before the cause of action arose.
This limitation will apply regardless of the form of action, whether in
contract or in tort including negligence. This limitation will not
apply to claims for bodily injury or damage to real property for which
we are legally liable.
Page 26 of 27
SOUTH AFRICA
Services are provided by Trafex Pty, Ltd. in South Africa.
SOUTH KOREA
3. RESPONSIBILITIES OF THE PARTIES
MUTUAL RESPONSIBILITIES
An additional responsibility is added as follows:
8. each of us will use only communication equipment of the type
approved by the Ministry of Communication.
TAIWAN
Services are provided by Global Communications Network (GCN Taiwan) in Taiwan.
3. RESPONSIBILITIES OF THE PARTIES
Mutual Responsibilities
Item 6 is deleted in its entirety.
14. LIABILITY
THAILAND
Some Services are provided by the Communications Authority of Thailand (CAT)
in Thailand.
With respect to Thailand, Value-added Network Services ("VAN Services") are
subject to licensing under the Telephone and Telegraph Act of 2477, Telephone
Organization of Thailand Act, and Communication Authority of Thailand Act and
their administrative regulations.
UNITED KINGDOM
2. AGREEMENT STRUCTURE
YOUR ACCEPTANCE OF ADDITIONAL TERMS
Item 2, "providing an Eligible Service to your Customer" does not apply.
6. PRICES AND PRICE CHANGES
PRICE INCREASES
You may withdraw a Service from an order or terminate a Service to
which an increase applies by providing us with written notice within
one month of the date of our notice of increase.
14. LIABILITY
1. in respect of Services, the greater of:
a. 150,000 UK Pounds; or
b. 125% of the total purchase price payable under Clause 7
(Invoicing, Payment, and Taxes) for the Services which are
directly related to the default or which are directly related to,
or rendered functionally inoperative by, a deficiency in the
Services.
UNITED STATES OF AMERICA
Services are provided by Advantis in the USA. The terms of the Industry
Remarketer Agreement between QuickResponse Services and Advantis replace the
terms of this Agreement in the United States of America.
Page 27 of 27
INTERNATIONAL REMARKETER AGREEMENT [LOGO]
SCHEDULE A
______________________________________________________________________________
THE TERMS OF THE INTERNATIONAL REMARKETER AGREEMENT APPLY TO THIS TRANSACTION.
Country Remarketer Company Service Provider Company
Name and Address Name and Address
___________ ____________________________ _________________________
Argentina QuickResponse Services IBM Argentina S.A.
1400 Marina Way South Ing. Enrique Butty 275
Richmond, CA 94804 USA 1300 Buenos Aires
Australia QuickResponse Services ISSC Australia
1400 Marina Way South Darling Park
Richmond, CA 94804 USA 201 Sussex Street
Sydney NSW 2000
Austria QuickResponse Services IBM Oesterreich GESMBH
1400 Marina Way South Obere Donaustrasse 95
Richmond, CA 94804 USA A-1020 Vienna
Belgium QuickResponse Services IBM IN Belgium
1400 Marina Way South Sq. Victoria Regina 1
Richmond, CA 94804 USA 1210 Bruxelles
Canada QuickResponse Services Advantis Canada
1400 Marina Way South 3500 Steeles Avenue East
Richmond, CA 94804 USA Business/Fin. Serv.
Markham, Ontario
Denmark QuickResponse Services IBM Denmark A.S.
1400 Marina Way South Nymoellevej 91
Richmond, CA 94804 USA 2800 Lyngby
France QuickResponse Services IBM France Axone-DRCE
1400 Marina Way South 4 Av. Montaigne
Richmond, CA 94804 USA Le Montaigne
93881 Noisy Le Grand
Germany QuickResponse Services IBM Deutschland
1400 Marina Way South Informationssysteme GmbH
Richmond, CA 94804 USA Pascalstrasse 100
70569 Stuttgart
11/96 Page 1 of 3
Country Remarketer Company Service Provider Company
Name and Address Name and Address
___________ ____________________________ _________________________
Hong Kong QuickResponse Services IBM China/Hong Kong Corp.
1400 Marina Way South 8 Connaught Road
Richmond, CA 94804 USA 46/F Two Exchange Sq.
Hong Kong
Italy QuickResponse Services IN.TE.S.A. SPA
1400 Marina Way South Via Servais, 125
Richmond, CA 94804 USA 10146 Torino
Israel QuickResponse Services IBM Israel Ltd.
1400 Marina Way South IBM Building
Richmond, CA 94804 USA 2 Welzmann Street
P.O.B. 33655
Tel Aviv 61336
Japan QuickResponse Services IBM Japan Ltd.
1400 Marina Way South 2-12 Roppongi 3-Chome
Richmond, CA 94804 USA Minato-ku
Tokyo 10G
Mexico QuickResponse Services IBM Mexico
1400 Marina Way South Avenida Casa de la Moneda
Richmond, CA 94804 USA Col Lomas de Sotelo
11200 Mexico D.F.
The Netherlands QuickResponse Services IBM Nederland N.V
1400 Marina Way South Johan Huizingerlaan 765
Richmond, CA 94804 USA 1066 VH Amsterdam
2713 HA Zoelermeer
New Zealand QuickResponse Services IBM New Zealand Ltd.
1400 Marina Way South 171 Featherston Street
Richmond, CA 94804 USA P.O. Box 38-993
Wellington
Pakistan QuickResponse Services IBM Pakistan
1400 Marina Way South 3, Avari Plaza, Fatima
Richmond, CA 94804 USA Jinnah Rd.
Karachi
Singapore QuickResponse Services IBM Singapore Pte. Ltd.
1400 Marina Way South 80 Anson Road
Richmond, CA 94804 USA IBM Towers
Singapore 0207
11/96 Page 2 of 3
Country Remarketer Company Service Provider Company
Name and Address Name and Address
___________ ____________________________ _________________________
South Africa QuickResponse Services IBM Trafex Pty. Ltd.
1400 Marina Way South 256 Kent Avenue
Richmond, CA 94804 USA Ferndale Randburg
Spain QuickResponse Services IBM ISS Spain
1400 Marina Way South Ctra. Barcelona, KM 18.40
Richmond, CA 94804 USA San Fernando de Henares
28850 Madrid
Switzerland QuickResponse Services IBM (Switzerland) Busines
1400 Marina Way South Baendiweg 21
Richmond, CA 94804 USA 8010 Zurich
Taiwan QuickResponse Services IBM Taiwan
1400 Marina Way South 12F. 2. Sec. 1
Richmond, CA 94804 USA Tun Hua S. Road
Taipei
Thailand QuickResponse Services IBM Thailand Co. Ltd.
1400 Marina Way South 388 Phaholyothin Road
Richmond, CA 94804 USA Phyathal
Bangkok 10400
United Kingdom QuickResponse Services IBM United Kingdom Ltd.
1400 Marina Way South PO Box 31
Richmond, CA 94804 USA Birmingham Road
Warwick CV34 5JL
Venezuela QuickResponse Services IBM Venezuela S.A.
1400 Marina Way South Avenida Ernesto Blohm
Richmond, CA 94804 USA Guidad Commercial
Chuao Caracas
11/96 Page 3 of 3