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EXHIBIT 10.1
IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
DISTRIBUTOR/RESELLER PROFILE FOR WORKSTATION SOFTWARE
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We welcome you as our remarketer of workstation software which includes
Programs and Services from the IBM Corporation or the Lotus Development
Corporation, an IBM Company, or both.
This Profile covers the details of your approval as our Business
Partner-Distributor for Workstation Software or as our Business
Partner-Reseller for Workstation Software, to actively market and diligently
promote Programs and Services.
By signing below, each of us agrees to the terms of the following (collectively
called the "Agreement"):
(a) this Profile;
(b) General Terms (Zl25-5478);
(c) the applicable Attachments referred to in this Profile; and
(d) Exhibits.
This Agreement and its applicable transaction documents are the complete
agreement regarding this relationship, and replace any prior oral or written
communications between us. Once this Profile is signed, 1) any reproduction of
this Agreement or a transaction document made by reliable means (for example,
photocopy or facsimile) is considered an original, to the extent permissible
under applicable law and 2) all Programs and Services you market and Services
you perform under this Agreement are subject to it. If you have not already
signed an Agreement for Exchange of Confidential Information (AECI), your
signature on this Profile includes your acceptance of the AECI.
After signing this Profile, please return a copy to the address shown below.
Revised Profile (yes/no): No Date received by IBM/Lotus:
---------------- ----------------
Agreed to: (Business Partner name) Agreed to:
Software Spectrum, Inc. (IBM/Lotus Country Organization Name)
By /s/ [ILLEGIBLE] By
---------------------------------------- ----------------------------------------
Authorized signature Authorized signature
Name (type or print): Name (type or print): Joseph P. McLaughlin
Date: Date:
Business Partner no.: IBM/Lotus address:
Business Partner address: Lotus Development Corporation
55 Cambridge Parkway
Software Spectrum, Inc. Cambridge, MA 02142
2140 Merritt Drive
Garland, TX 75041
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DETAILS OF OUR RELATIONSHIP
Contract Start Date (month/year): 7/97 Duration: 2 years
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RELATIONSHIP APPROVAL/ACCEPTANCE OF ADDITIONAL TERMS:
For each approved relationship and additional terms, each of us agrees to the
terms of the following by signing this Profile. Copies of the Attachments are
included.
APPLICABLE
APPROVED RELATIONSHIP (YES/NO) ATTACHMENT
Remarketer Terms Attachment for Workstation Software yes Z125-5496-00 11/96
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Distributor Attachment for Workstation Software no Z125-5493-00 11/96
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You are approved to market to:
Remarketers no
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Reseller Attachment for Workstation Software yes Zl25-5492-00 11/96
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You are approved to market to:
End Users yes
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Remarketers no
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ADDITIONAL TERMS:
Advantage Attachment for Distributors Z125-5367-03 3/97
of Workstation Software no
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Advantage Attachment for Resellers Z125-5368-03 3/97
of Workstation Software yes
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Passport Attachment for Distributors Z125-5565-00 03/97
of Workstation Software no
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Passport Attachment for Resellers Z125-5566-00 03/97
of Workstation Software yes
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Academic Programs Attachment Z125-5563-00 03/97
for Distributors of Workstation Software no
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Academic Programs Attachment Z125-5564-00 03/97
for Resellers of Workstation Software yes
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Federal Alliance Offering Attachment Z125-5347-01 03/97
for Distributors of Workstation Software no
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Federal Alliance Offering Attachment Z125-5346-01 03/97
for Resellers of Workstation Software yes
-----
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PROGRAMS AND SERVICES:
You are approved to market the Programs and Services listed in the Workstation
Software Exhibit.
Workstation Software Programs requiring certification are specified in the
Exhibit.
The terms of the Exhibit apply to the Programs and Services listed in it.
MINIMUM ANNUAL ATTAINMENT (annual objective of your sales of Programs to your
Customers. The amount of a sale is the price you paid us for the Program):
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Resellers: $3.OM in combined Lotus and IBM Programs
A minimum of $1.0M of the $3.OM must be in each of the
Lotus and IBM brands
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
GENERAL TERMS
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TABLE OF CONTENTS
SECTION TITLE PAGE
1. Definitions ............................................................. 2
2. Agreement Structure and Contract Duration ............................... 3
3. Our Relationship ........................................................ 4
4. Status Change ........................................................... 5
5. Confidential Information ................................................ 5
6. Marketing Funds and Promotional Offerings ............................... 6
7. Production Status ....................................................... 6
8. Patents and Copyrights .................................................. 6
9. Liability ............................................................... 7
10. Trademarks .............................................................. 7
11. Changes to the Agreement Terms .......................................... 8
12. Internal Use Products ................................................... 8
13. Demonstration, Development and Evaluation
Products ................................................................ 8
14. Electronic Communications ............................................... 9
15. Geographic Scope ........................................................ 9
16. Governing Law ........................................................... 9
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
GENERAL TERMS
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1. DEFINITIONS
BUSINESS PARTNER is a business entity which is approved by us to market
Products and Services under this Agreement.
CUSTOMER is either an End User or a Remarketer. We specify in your
Profile if we approve you to market to End Users or Remarketers, or
both.
END USER is anyone, who is not part of the Enterprise of which you are a
part, who uses Services or acquires Products for its own use and not for
resale.
ENTERPRISE is any legal entity (such as a corporation) and the
subsidiaries it owns by more than 50 percent. An Enterprise also
includes other entities as IBM and the Enterprise agree in writing.
LICENSED INTERNAL CODE is called "Code". Certain Machines we specify
(called "Specific Machines") use Code. International Business Machines
Corporation or one of its subsidiaries owns copyrights in Code or has
the right to license Code. IBM or a third party owns all copies of Code,
including all copies made from them.
MACHINE is a machine, its features, conversions, upgrades, elements,
accessories, or any combination of them. The term "Machine" includes an
IBM Machine and any non-IBM Machine (including other equipment) that we
approve you to market.
PRODUCT is a Machine or Program, that we approve you to market, as we
specify in your Profile.
PROGRAM is an IBM Program or a non-IBM Program provided by us, under its
applicable license terms, that we approve you to market.
RELATED COMPANY is any corporation, company or other business entity:
1. more than 50 percent of whose voting shares are owned or controlled
indirectly, by either of us, or
2. which owns or controls, directly or indirectly, more than 50
percent of the voting shares of either of us, or
3. more than 50 percent of whose voting shares are under common
ownership or control directly or indirectly with the voting shares
of either of us.
However, any such corporation, company or other business entity is
considered to be a Related Company only so long as such ownership or
control exists. "Voting shares" are outstanding shares or securities
representing the right to vote for the election of directors or other
managing authority.
REMARKETER is a business entity which acquires Products and Services, as
applicable, for the purpose of marketing.
SERVICE is performance of a task, provision of advice and counsel,
assistance, or use of a resource (such as a network and associated
enhanced communication and support) that we approve you to market.
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2. AGREEMENT STRUCTURE AND CONTRACT DURATION
PROFILES
We specify the details of our relationship (for example, the type of
Business Partner you are) in a document called a "Profile." Each of us
agrees to the terms of the Profile, the General Terms, the applicable
Attachments referred to in the Profile, and the Exhibit (collectively
called the "Agreement") by signing the Profile.
GENERAL TERMS
The General Terms apply to all of our Business Partners.
ATTACHMENTS
We describe, in a document entitled an "Attachment", additional terms
that apply. Attachments may include, for example, terms that apply to
the method of Product distribution (Remarketer Terms Attachment or
Complementary Marketing Terms Attachment) and terms that apply to the
type of Business Partner you are, for example, the terms that apply to
a Distributor relationship as described in the Distributor Attachment.
We specify in your Profile the Attachments that apply.
EXHIBITS
We describe in an Exhibit, specific information about Products and
Services, for example, the Products and Services you may market, and
warranty information about the Products.
TRANSACTION DOCUMENTS
We will provide to you the appropriate "transaction documents." The
following are examples of transaction documents, with examples of the
information and responsibilities they may contain:
1. invoices (item, quantity, price, payment terms and amount due); and
2. order acknowledgements (confirmation of Products and quantities
ordered).
CONFLICTING TERMS
If there is a conflict among the terms in the various documents, the
terms of:
1. a transaction document prevail over those of all the documents;
2. an Exhibit prevail over the terms of the Profile, Attachments and
the General Terms;
3. a Profile prevail over the terms of an Attachment and the General
Terms; and
4. an Attachment prevail over the terms of the General Terms.
If there is an order of precedence within a type of document, such
order will be stated in the document (for example, the terms of the
Distributor Attachment prevail over the terms of the Remarketer Terms
Attachment, and will be so stated in the Distributor Attachment).
OUR ACCEPTANCE OF YOUR ORDER
Products and Services become subject to this Agreement when we accept
your order by:
1. sending you a transaction document; or
2. providing the Products or Services.
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ACCEPTANCE OF THE TERMS IN A TRANSACTION DOCUMENT
You accept the terms in a transaction document by doing any of the
following:
1. signing it (those requiring a signature must be signed);
2. accepting the Product or Services;
3. providing the Product or Services to your Customer; or
4. making any payment for the Product or Services.
CONTRACT DURATION
We specify the contract start date and the duration in your Profile.
Unless we specify otherwise in writing, the Agreement will be renewed
automatically for subsequent two year periods. Each of us is
responsible to provide the other with three months written notice if
this Agreement will not be renewed.
3. OUR RELATIONSHIP
RESPONSIBILITIES
Each of us agrees that:
1. you are an independent contractor, and this Agreement is
non-exclusive. Neither of us is a legal representative or legal
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 neither of us is an employee or franchise of the
other, nor does this Agreement create a joint venture between us;
2. each of us is responsible for our own expenses regarding
fulfillment of our responsibilities and obligations under the terms
of this Agreement;
3. neither of us will disclose the terms of this Agreement, unless
both of us agree in writing to do so, or unless required by law;
4. neither of us will assume or create any obligations on behalf of
the other or make any representations or warranties about the
other, other than those authorized;
5. any terms of this Agreement, which by their nature extend beyond
the date this Agreement ends, remain in effect until fulfilled and
apply to respective successors and assignees;
6. we may withdraw a Product or Service from marketing at any time;
7. we will allow the other a reasonable opportunity to comply before
it claims the other has not met its obligations, unless we specify
otherwise in the Agreement;
8. 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 the possibility of contractual
waiver;
9. failure by either of us to insist on strict performance or to
exercise a right when entitled does not prevent either of us from
doing so at a later time, either in relation to that default or any
subsequent one;
10. neither of us is responsible for failure to fulfill obligations
due to causes beyond the reasonable control of either of us;
11. IBM reserves the right to assign, in whole or in part, this
Agreement and any orders hereunder, to any other IBM Related
Company;
12. IBM does not guarantee the results of any of its marketing plans;
and
13. each of us will comply with all applicable laws and regulations
(such as those governing consumer transactions).
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OTHER RESPONSIBILITIES
You agree:
1. to be responsible for customer satisfaction for all your
activities, and to participate in customer satisfaction programs as
we determine;
2. that your rights under this Agreement are not property rights and,
therefore, you can not transfer them to anyone else or encumber
them in any way. For example, you can not sell your approval to
market our Products or Services or your rights to use our
Trademarks;
3. to maintain the criteria we specified when we approved you;
4. to achieve and maintain the certification requirements for the
Products and Services you are approved to market, as we specify in
your Profile;
5. not to assign or otherwise transfer this Agreement, your rights
under it, or any of its approvals, or delegate any duties, unless
expressly permitted to do so under this Agreement. Otherwise, any
attempt to do so is void;
6. to conduct business activities with us (including placing orders)
which we specify in the operations guide, using our automated
electronic system if available. You agree to pay all your expenses
associated with it such as your equipment and communication costs;
7. that when we provide you with access to our information systems, it
is only in support of your marketing activities. Programs we
provide to you for your use with our information systems, which are
in support of your marketing activities, are subject to the terms
of their applicable license agreements, except you may not transfer
them;
8. to promptly provide us with IBM documents we may require from you
or the End User (for example, our license agreement signed by the
End User) when applicable; and
9. to comply with the highest ethical principles in performing under
the Agreement. You will not offer or make payments or gifts
(monetary or otherwise) to anyone for the purpose of wrongfully
influencing decisions in favor of IBM, directly or indirectly. IBM
may terminate this Agreement immediately in case of 1) a breach of
this clause or 2) when IBM reasonably believes such a breach has
occurred.
OUR REVIEW OF YOUR COMPLIANCE WITH THIS AGREEMENT
We may periodically review your compliance with this Agreement. You
agree to provide us with relevant records on request. We may reproduce
and retain copies of these records. We, or an independent auditor, may
conduct a review of your compliance with this Agreement on your
premises during your normal business hours.
If, during our review of your compliance with this Agreement, we find
you have materially breached the terms of this relationship, in
addition to our rights under law and the terms of this Agreement, for
transactions that are the subject of the breach, you agree to refund
the amount equal to the discount (or fee, if applicable) we gave you
for the Products or Services or we may offset any amounts due to you
from us.
4. STATUS CHANGE
You agree to give us prompt written notice (unless precluded by law or
regulation) of any 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 substantive
change to information supplied in your application). Upon notification
of such change, (or in the event of failure to give notice of such
change) IBM may, at its sole discretion, immediately terminate this
Agreement.
S. CONFIDENTIAL INFORMATION
This section comprises a Supplement to the IBM Agreement for
Exchange of Confidential Information. "Confidential Information"
means:
1. all information IBM marks or otherwise states to be confidential;
2. any of the following prepared or provided by IBM:
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a. sales leads,
b. information regarding Prospects,
c. unannounced information about Products and Services,
d. business plans, or
e. market intelligence;
f. any of the following written information you provide to us on
our request and which you mark as confidential:
1) reporting data,
2) financial data, or
3) the business plan.
All other information exchanged between us is nonconfidential, unless
disclosed under a separate Supplement to the IBM Agreement for
Exchange of Confidential Information.
6. MARKETING FUNDS AND PROMOTIONAL OFFERINGS
We may provide marketing funds and promotional offerings to you. If we
do, you agree to use them according to our guidelines and to maintain
records of your activities regarding the use of such funds and
offerings for three years. We may withdraw or recover marketing funds
and promotional offerings from you if you breach any terms of the
Agreement. Upon notification of termination of the Agreement,
marketing funds and promotional offerings will no longer be available
for use by you, unless we specify otherwise in writing.
7. PRODUCTION STATUS
Each IBM Machine is manufactured from new parts, or new and used
parts. In some cases, the IBM Machine may not be new and may have been
previously installed. You agree to inform your Customer of these terms
in writing (for example, in your proposal or brochure).
8. PATENTS AND COPYRIGHTS
For the purpose of this section only, the term Product includes
Licensed Internal Code (if applicable).
If a third party claims that a Product we provide under this Agreement
infringes that party's patents or copyrights, we will defend you
against that claim at our expense and pay all costs, damages, and
attorneys' fees that a court finally awards, provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If you maintain an inventory, and such a claim is made or appears
likely to be made about a Product in your inventory, you agree to
permit us either to enable you to continue to market and use the
Product, or to modify or replace it. If we determine that none of
these alternatives is reasonably available, you agree to return the
Product to us on our written request. We will then give you a credit,
as we determine, which will be either 1) the price you paid us for the
Product (less any price-reduction credit), or 2) the depreciated
price.
This is our entire obligation to you regarding any claim of
infringement.
CLAIMS FOR WHICH WE AM NOT RESPONSIBLE
We have no obligation regarding any claim based on any of the
following:
1. anything you provide which is incorporated into a Product;
2. your modification of a Product, or a Program's use in other than
its specified operating environment;
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3. the combination, operation, or use of a Product with any Products
not provided by us as a system, or the combination, operation, or
use of a Product with any product, data, or apparatus that we did
not provide; or
4. infringement by a non-IBM Product alone, as opposed to its
combination with Products we provide to you as a system.
9. 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 damages can be
claimed, the following terms apply as your exclusive remedy and our
exclusive liability.
OUR LIABILITY
We are responsible only for:
1. payments referred to in the "Patents and Copyrights" section above;
2. bodily injury (including death), and damage to real property and
tangible personal property caused by our Products; and
3. the amount of any other actual loss or damage, up to the greater of
$100,000 or the charges (if recurring, 12 months' charges apply)
for the Product that is the subject of the claim.
ITEMS FOR WHICH WE ARE NOT LIABLE
Under no circumstances (except as required by law) 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 in the subsection entitled
'Our Liability');
2. loss of, or damage to, your records or data; or
3. special, incidental, or indirect damages, or for any economic
consequential damages (including lost profits or savings) even if
we are informed of their possibility.
YOUR LIABILITY
In addition to damages for which you are liable under law and the
terms of this Agreement, you will indemnify us for claims made against
us by others (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.
10. TRADEMARKS
We will notify you in written guidelines of the IBM Business Partner
title and emblem which you are authorized to use. You may not modify
the emblem in any way. You may use our Trademarks (which include the
title, emblem, IBM trade marks and service marks) only:
1. within the geographic scope of this Agreement;
2. in association with Products and Services we approve you to market;
and
3. as described in the written guidelines provided to you.
The royalty normally associated with non-exclusive use of the
Trademarks will be waived, since the use of this asset is in
conjunction with marketing activities for Products and Services.
You agree to promptly modify any advertising or promotional materials
that do not comply with our guidelines. If you receive any complaints
about your use of a Trademark, you agree to promptly notify us. When
this Agreement ends, you agree to promptly stop using our Trademarks.
If you do not, you agree to pay any expenses and fees we incur in
getting you to stop.
You agree not to register or use any mark that is confusingly similar
to any of our Trademarks.
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Our Trademarks, and any goodwill resulting from your use of them,
belong to us.
11. CHANGES TO THE AGREEMENT TERMS
We may change the terms of this Agreement by giving you one month's
written notice.
We may, however, change the following terms without advance notice:
1. those we specify in this Agreement as not requiring advance notice;
2. those of the Exhibit unless otherwise limited by this Agreement;
and
3. those relating to safety and security.
Otherwise, for any other change to be valid, both of us must agree in
writing. Changes are not retroactive. Additional or different terms in
an order or other communication from you are void.
12. INTERNAL USE PRODUCTS
You may acquire Products you are approved to market for your internal
use within your Business Partner operations. Except for personal
computer Products, you are required to advise us when you order
Products for your internal use.
We will specify in your Exhibit the discount or price, as applicable,
at which you may acquire the Products for internal use. Except for
personal computer Products, such Products do not count toward 1) your
minimum annual attainment 2) toward determination of your discount or
price, as applicable or 3) for determining your marketing or
promotional funds.
Any value added enhancement or systems integration services otherwise
required by your relationship is not applicable when you acquire
Products for internal use. You must retain such Products for a minimum
of 12 months, unless we specify otherwise in the Exhibit.
13. DEMONSTRATION, DEVELOPMENT AND EVALUATION PRODUCTS
You may acquire Products you are approved to market for demonstration,
development and evaluation purposes, unless we specify otherwise in
the Exhibit. Such Products must be used primarily in support of your
Product marketing activities.
We will specify in your Exhibit the Products we make available to you
for such purposes, the applicable discount or price, and the maximum
quantity of such Products you may acquire and the period they are to
be retained. The maximum number of input/output devices you may
acquire is the number supported by the system to which they attach.
If you acquired the maximum quantity of Machines, you may still
acquire a field upgrade, if available.
We may decrease the discount we provide for such Products on one
month's written notice.
You may make these Products available to a Customer for the purpose of
demonstration and evaluation. Such Products may be provided to an End
User for no more than three months. For a Program, you agree to ensure
the Customer has been advised of the requirement to accept the terms
of a license agreement before using the Program.
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14. ELECTRONIC COMMUNICATIONS
Each of us may communicate with the other by electronic means, and
such communication is acceptable as a signed writing to the extent
permissible under applicable law. Both of us agree that for all
electronic communications, an identification code (called a "user ID")
contained in an electronic document is legally sufficient to verify
the sender's identity and the document's authenticity.
15. GEOGRAPHIC SCOPE
All the rights and obligations of both of us are valid only in the
United States and Puerto Rico.
16. GOVERNING LAW
The laws of the State of New York govern this Agreement.
The "United Nations Convention on Contracts for the International Sale
of Goods" does not apply.
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
REMARKETER TERMS ATTACHMENT FOR WORKSTATION SOFTWARE
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TABLE OF CONTENTS
Section Title Page
1. Our Relationship ............................ 2
2. Ordering and Delivery ....................... 2
3. Returns ..................................... 3
4. Price, Invoicing, Payment and Taxes ......... 3
5. Export ...................................... 5
6. Title ....................................... 5
7. Risk of Loss ................................ 5
8. Warranty .................................... 5
9. Ending the Agreement ........................ 5
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
REMARKETER TERMS ATTACHMENT FOR WORKSTATION SOFTWARE
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1. OUR RELATIONSHIP
As our Business Partner, you market to your Customers the Programs and
Services (including shrink-wrap Services) we provide to you. These
terms apply to Business Partners whose method of distribution is under
this Agreement and includes Distributors and Resellers for Workstation
Software.
RESPONSIBILITIES
Each of us agrees:
1. each of us is free to set its own prices and terms;
2. neither of us will discuss its Customer prices and terms in the
presence of the other; and
3. we offer a money back guarantee for IBM and Lotus Programs to End
Users. You agree to 1) accept their return within the time frame we
specify, 2) refund the full amount the Customer paid for the
returned Programs, and 3) dispose of them (including all the
components) as we specify.
OTHER RESPONSIBILITIES
You agree to:
1. provide high quality technical support, including effective
"hot-line" (or equivalent) support to your Customers, as
applicable;
2. provide us with sufficient, free and safe access to your
facilities, at a mutually convenient time, for us to fulfill our
obligations;
3. retain records, as we specify in the operations guide, of each
Program and Service transaction (for example, a sale or credit) for
three years;
4. maintain sufficient inventory to meet Customer demands;
5. provide us with marketing, sales, and inventory information for our
Programs and Services as we specify in the operations guide;
6. provide a dated sales receipt (or its equivalent, such as an
invoice) to your Customers before or upon delivery of Programs and
Services; and
7. when you are approved to market to Remarketers, market Programs and
Services which require certification only to Remarketers who are
certified to market them.
2. ORDERING AND DELIVERY
You may order from us as we specify in the operations guide.
We will agree to a location to which we will ship. We may establish
criteria for you to maintain at such location (for example, certain
physical characteristics, such as a loading dock).
Upon becoming aware of any discrepancy between our shipping manifest
and the Programs and Services received from us, you agree to notify us
immediately. We will work with you to reconcile any differences.
Although we do not warrant delivery dates, we will use reasonable
efforts to meet your requested delivery dates.
We select the method of transportation and pay associated charges for
Programs and Services we ship.
If we are unable to stop shipment of an order you cancel, and you
return such Programs or Services to us after shipment, our returns
terms apply.
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3. RETURNS
You must request and receive approval from us to return Programs and
Services. We will inform you in writing of the schedule by which you
may return Programs and Services to us. Such Programs and Services
must have been acquired directly from us. We will issue a credit to
you when we accept the returned Programs and Services. The credit will
be based on the price you paid for the Programs and Services, less any
price adjustments. They must be received by us within one month of our
approving their return, unless we specify otherwise to you in writing.
You agree to ensure that the Programs and Services are free of any
legal obligations or restrictions that prevent their return. We accept
them only from locations, within the country, to which we shipped
them. We will reject any that do not comply with these terms.
Additional information will be provided to you in writing.
CURRENT PROGRAMS AND SERVICES
Current Programs and Services are those that are currently marketed by
us. For purposes of rebalancing your inventory, any current Programs
and Services may be returned to us for credit. You agree to pay
shipping and associated charges for Programs and Services you return.
Returned Programs and Services must be in our unopened and undamaged
packages.
WITHDRAWN PROGRAMS AND SERVICES
Withdrawn Programs and Services are those which are no longer marketed
by us. Requests to return withdrawn Programs and Services must be
submitted within seven months from the date of withdrawal or
"end-of-life" date. You agree to pay shipping and associated charges
for Programs and Services you return. Returned Programs and Services
must be in their unopened and undamaged packages.
UNSALABLE PROGRAMS
Unsalable Programs are those which are:
1. defective;
2. damaged;
3. returned by the End User under our money-back guarantee;
4. returned because the End User did not accept the terms of the
license agreement; or
5. returned by the End User under the terms of their warranty.
You agree to refund the amount paid for Programs returned by your
customer for any of the above reasons.
We are responsible for transportation charges we authorize for the
return of Unsalable Programs.
4. PRICE, INVOICING, PAYMENT AND TAXES
PRICE
The price for each Program and Service will be made available to you
in a communication which we provide to you in published form or
through our electronic information systems or a combination of both.
The price for each Program or Service is the lower of the price in
effect on the date we receive your order or the date we ship a Program
or Service to you, if it is within six months of the date we receive
your order.
However, if we receive your order after a price increase notification,
but before the effective date of the price increase, the price in
effect is the higher price. An exception to this is for orders for
shrink-wrap Programs (including "use pack" and "license pack") for
quantities the sum of which is not more than your prior four weeks
sales as reported to us. For such orders, the price in effect is the
lower price.
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PRICE CHANGES
We may change prices at any time. We will inform you of any price
changes and endeavor to give you prior price change notification.
You will receive the benefit of a price decrease for Programs or
Services we ship on or after the effective date of the decrease.
If we decrease the price for a Program or Service, you will be
eligible to receive a price decrease credit for those in your
inventory in the country from which they were acquired from us.
However, if acquired from us under a special offering (for example,
promotional price or other special incentive), they may not be
eligible for a full credit. They must have been acquired directly from
us.
Such inventory is your on-hand inventory level, your returns in
transit to us, and those in transit from us to you, all on the day
prior to the effective date of the price decrease. You are required to
report, in a format we specify in the operations guide, such inventory
level within one month of the price decrease.
The price decrease credit is the difference between the price you
paid, after any adjustments, and the new price. We reserve the right
to audit your inventory and records on your premises.
INVOICING, PAYMENT AND TAXES
Amounts are due upon receipt of invoice and payable as specified in a
transaction document. You agree to pay accordingly, including any late
payment fee.
Details of any late payment fee will be provided upon request at the
time of order and will be included in the invoice.
You may use a credit only after we issue it.
If any authority requires us to include in our invoice to you a duty,
tax, levy, or fee which they impose, excluding those based on our net
income, upon any transaction under this Agreement, then you agree to
pay that amount.
RESELLER TAX EXEMPTION
You agree to provide us with your valid reseller exemption
documentation for each applicable taxing jurisdiction to which we ship
Programs and Services. If we do not receive such documentation we will
charge you applicable taxes and duties. You agree to notify us
promptly if this documentation is rescinded or modified. You are
liable for any claims or assessments that result from any taxing
jurisdiction refusing to recognize your exemption.
PURCHASE MONEY SECURITY INTEREST
You grant us a purchase money security interest in your proceeds from
the sale of, and your accounts receivable for, Programs and Services,
until we receive the amounts due. You agree to sign an appropriate
document, (for example, a "UCC-1") to permit us to perfect our
purchase money security interest.
FAILURE TO PAY ANY AMOUNTS DUE
If you fail to pay any amounts due in the required period of time, you
agree that we may do one or more of the following, unless precluded by
law:
1. impose a finance charge, as we specify to you in writing, up to the
maximum permitted by law, on the portion which was not paid during
the required period;
2. require payment on or before delivery of Programs or Services;
3. repossess any Programs and Services for which you have not paid. If
we do so, you agree to pay all expenses associated with
repossession and collection, including reasonable attorneys' fees.
You agree to make the Programs and Services available to us at a
site that is mutually convenient;
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4. not accept your order until any amounts due are paid;
5. terminate this Agreement; or
6. pursue any other remedy available at law.
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 Related Companies.
In addition, if your account with any of our Related Companies becomes
delinquent, we may invoke any of these options when allowable by
applicable law.
5. EXPORT
You may actively market Programs and Services only within the
geographic scope specified in this Agreement. You may not market
outside this scope and you agree not to use anyone else to do so.
6. TITLE
We do not transfer a Program's title.
7. RISK OF LOSS
We bear the risk of loss of, or damage to, a Program until its initial
delivery from us to you. Thereafter, you assume the risk.
8. WARRANTY
Warranty terms for Programs are described in the Program's license
terms. Unless we specify otherwise, we provide other vendor Programs
WITHOUT WARRANTY OF ANY KIND. However, other vendors may provide their
own warranties.
9. ENDING THE AGREEMENT
Either of us may terminate this Agreement, with or without cause, on
three months' written notice. If, under applicable law, a longer
period is mandatory, then the notice period is the minimum notice
period allowable.
If we terminate for cause (such as you not meeting your minimum annual
attainment) 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, if either party breaches a material term of the Agreement,
the other party may terminate the Agreement on written notice.
Examples of such breach by you are: if you do not maintain customer
satisfaction; if you do not comply with the terms of a transaction
document; if you repudiate this Agreement; or if you make any material
misrepresentations to us. 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.
At the end of this Agreement, you agree to:
1. pay for or return to us, at our discretion, any Programs or
Services for which you have not paid; and
2. allow us, at our discretion, to acquire any other Programs or
Services in your possession or control, at the price you paid us,
less any credits issued to you.
Programs to be returned must be in their unopened and undamaged
packages and in your inventory (or in transit from us) on the day this
Agreement ends. We will inspect the Programs, and reserve the right to
reject them. You agree to pay all the shipping charges.
At the end of this Agreement, each of us agrees to immediately settle
any accounts with the other. When allowable by applicable law, we may
offset any amounts due you against amounts due us or any of our
Related Companies.
You agree that if we permit you to perform certain activities after
this Agreement ends, you will do so under the terms of this Agreement.
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18
IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
RESELLER ATTACHMENT FOR WORKSTATION SOFTWARE
- -------------------------------------------------------------------------------
These terms prevail over and are in addition to or modify the Remarketer Terms
Attachment for Workstation Software.
1. MARKETING APPROVAL
You are approved as a Reseller for Workstation Software under
remarketer terms for workstation software to market Programs and
Services.
2. YOUR RESPONSIBILITIES TO US
You agree:
1. to develop a mutually acceptable business plan with us. Such plan
will document your marketing plans as they apply to our
relationship. We will review the plan, at a minimum, twice a year;
2. that, unless precluded by applicable law, one of the requirements
for you to retain this relationship is that you achieve the minimum
annual attainment, as we specify in your Profile;
3. to order Programs and Services, as we specify in the operations
guide;
4. to maintain trained personnel for the Programs and Services you are
approved to market;
5. to provide us, on our request, relevant financial information about
your business so we may, for example, use this information in our
consideration to extend credit terms to you. We will require, at a
minimum, an annual audited financial report;
6. to maintain the capability to demonstrate the Programs, as we
specify in writing;
7. to report Program defects to us, as applicable; and
8. to support our marketing strategy by maintaining an inventory of
selected Programs and Services, as we specify in writing.
3. YOUR RESPONSIBILITIES TO END USERS
You agree to:
1. identify and select the required technology based upon the End
User's requirements; inform the End User of Program installation
requirements, and provide configuration support;
2. comply with the terms regarding Program upgrades as we specify on
the Program package and in the Exhibit;
3. fulfill all valid orders for Programs and Services which you
market;
4. inform the End User that the sales receipt (or other documentation,
such as Proof of Entitlement, if it is required) will be necessary
for proof of warranty entitlement;
5. provide defect-related Program Services by copying and providing
service materials (for example, "slipstream" or "corrective service
diskettes") to your End Users who are licensed for the Program. You
may provide an enhanced version of this support through our
applicable Services you market to the End User. If you do, we
assume customer satisfaction for such support;
6. be the primary contact for Program information and technical
support. Such support responsibility may be provided through our
applicable Services you market to the End User. If you market our
Services, we assume customer satisfaction responsibility for such
support; and
7. assist your End User in Program problem determination and
resolution, unless this responsibility is delegated as specified in
items 5 and 6 above.
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[IBM LOGO]
IBM BUSINESS PARTNER AGREEMENT
UNITED STATES
EXHIBIT FOR WORKSTATION SOFTWARE
The Exhibit for Workstation Software consists of terms and conditions specific
to Workstation Software Programs and Services, and an Eligible Programs and
Services List (Lotus/IBM Channel Price List). In order to provide you with the
most current Programs and Services information, we will update the Lotus/IBM
Channel Price List database electronically. You may access the list on the
Lotus Notes Network (LNN).
ELIGIBLE PROGRAMS AND SERVICES
You are eligible to order and market all Programs and Services maintained on
the Eligible Programs and Services List except those Programs identified as
certification or authorization required.
You become eligible to order and market Certified Programs once you have met
the certification criteria. Distributors may only market Certified Programs to
Remarketers who have met the certification criteria. Certification requirements
will be included in the announcement of Certified Programs.
You become eligible to order and market Authorized Programs when you are
authorized under the terms of the applicable Attachment. These include Programs
only available under the terms of the Passport, Advantage, Academic Programs
and the Federal Alliance Offering Attachments.
PROGRAM WARRANTY
Warranty terms are as specified in the Remarketer Terms Attachment for
Workstation Software.
PROGRAM UPGRADES AND LOTUS MAINTENANCE
The upgrade designation and the upgrade qualification criteria will be
identified on Program upgrade packages.
End user Customers may acquire upgrades or Lotus Maintenance only up to the
number for which they are currently authorized.
You must assist your Customers to understand the qualifying criteria, as
applicable.
DEMONSTRATION AND EVALUATION PROGRAMS
A reasonable number of copies for most Programs may be made available to you at
no charge for the purpose of demonstration to, and evaluation by, your
Customers. Demonstration and Evaluation copies are specially marked as not for
resale packages and may be provided to End Users for no longer than three
months. Such Programs must be returned by the End User with all media, any
Program copies, and documentation included. Ordering procedures and information
regarding eligible Demonstration and Evaluation Programs are included in the
operations guide. Development copies are not available for Workstation Software
Programs.
INTERNAL USE
Workstation Software Programs will be available to you for your internal
Business Partner operations. Your price for such Programs will be based on the
best discounted price available to End Users through our standard volume
offerings, but will not be subject to any volume requirement. Ordering
procedures for internal Use Programs are included in the operations guide.
INTERNAL USE FOR DISTRIBUTOR'S CUSTOMERS
If you are approved as a Distributor of Workstation Software, as an exception
to your Distributor Marketing Approval (which does not allow you to market to
End Users), you may provide Programs to your Remarketers for use within their
internal remarketer operations. Such Programs are available to you at standard
Distributor or volume offering prices, as applicable. All Lotus Passport and
IBM Software Advantage End User volume requirements apply.
20
IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
FEDERAL ALLIANCE OFFERING ATTACHMENT FOR
RESELLERS OF WORKSTATION SOFTWARE
- -------------------------------------------------------------------------------
These terms are in addition to or modify and prevail over the terms of the
Remarketer Terms Attachment for Workstation Software.
YOUR RESPONSIBILITIES
Each year for which you are approved for the terms of this Attachment, we
will provide you with a Letter of Supply in support of your response
requirements for GSA awards. We may provide other documentation, as
required by the GSA, upon your request.
You are protected for price increases for Programs you market under a GSA
award. We will specify the price protection terms to you in writing.
For an open bid opportunity, on an exception basis, you may provide
Programs to qualifying Remarketers (system integrators, prime
contractors, subcontractors and 8A companies) when such Remarketers
provide Programs under the terms of a Federal award to End Users who
qualify for GSA terms. We may provide you with a rebate on Programs you
provide to Remarketers. Any such rebate will be a percent of the price
you paid us for the Program, less any credits we issued to you. We will
inform you in writing of that percent. In order to obtain the rebate, you
agree to report to us in a time frame and format we specify, certain
information regarding the Programs provided to such Remarketers.
For Programs you market to qualifying Remarketers for their sale to a
Federal agency or department, you agree to:
1. prior to your distribution of Programs to a Remarketer, obtain a copy
of the documentation substantiating that the Remarketer has a valid
award in effect from the Federal agency for the specific Programs and
quantities to be provided to the agency by the Remarketer. A valid
award must include the award number, the Federal End User (agency)
name and ship-to zip code;
2. maintain for one year from the transaction date, a copy of the award
documentation with a copy of your invoice to the Remarketer;
3. perform an audit, at our request, of the Remarketers to whom you
provided Programs, under the terms of this offering, to ensure the
awards have been fulfilled in accordance with the award terms;
4. report to us, in a time frame and format we specify, your sales, under
the terms of this offering, to a Federal agency or department, or to
Remarketers who provide Programs to a Federal agency or department;
5. ensure that the terms in any agreement you may have with your
Remarketers are not in conflict with this Agreement;
6. distribute Programs and Services to them on an equitable basis;
7. inform them that you provide sales and technical support (you are
responsible for their satisfaction with such support);
8. provide configuration support to them for Programs that require it;
9. maintain sufficient inventory of Programs and Services to meet
Remarketer demand;
10. provide defect-related Program Services by copying and providing to
your Remarketers the service materials (for example, "slipstream" or
"corrective service diskettes") we provide to you;
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11. fulfill all valid orders from Remarketers for eligible Programs and
Services;
12. provide Programs for demonstration, evaluation and internal use
purposes to Remarketers on their request;
13. assist your Remarketer in Program problem determination and
resolution; and
14. provide the following items to Remarketers when we give such items to
you for distribution to them:
a. promotional offerings and material;
b. incentives;
c. marketing funds;
d. support documentation; and
e. advertising material.
You agree to distribute them proportionally and according to the
procedures we specify, and require the Remarketer to properly
implement or distribute them, as applicable.
Your Remarketers' Responsibilities
You agree to inform your Remarketers of their responsibility to:
1. identify and select the required technology based upon the End User's
requirements; inform the End User of Program installation
requirements; and provide configuration support;
2. be the primary contact for Program information and technical support.
Such support responsibility may be provided through our applicable
Services they market to the End User. If they market our Services, we
assume customer satisfaction responsibility for such support;
3. report Program defects to you, as applicable;
4. refund the amount paid for a Program returned because the End User:
a. returned it under the terms of its warranty;
b. does not accept the terms of the license; or
c. returned it under the money-back guarantee.
5. comply with the terms regarding Program upgrades as we specify on the
Program package and in the Exhibit;
6. fulfill all valid orders for Programs and Services which they market;
7. provide defect-related Program Services by copying and providing
service materials (for example, "slipstream" or "corrective service
diskettes") to their End Users who are licensed for the Program. They
may provide an enhanced version of this support through our applicable
Services they market to the End User. If they do, we assume customer
satisfaction responsibility for such support;
8. assist the End User in Program problem determination and resolution,
unless this responsibility is delegated as specified in item 7 above;
9. retain records of each sales transaction for three years;
10. provide the support necessary to maintain customer satisfaction;
11. provide a dated sales receipt or its equivalent (such as an invoice)
to the End User; and
12. inform the End User the sales receipt the Remarketer provides (or
other documentation, such as Proof of Entitlement, if it is required)
will be necessary for proof of warranty entitlement.
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
ACADEMIC PROGRAMS ATTACHMENT FOR RESELLERS
OF WORKSTATION SOFTWARE
- -------------------------------------------------------------------------------
These terms prevail over and are in addition to or modify the Remarketer Terms
Attachment for Workstation Software.
We approve you to market Academic Programs, specified as such by us, to
Academic End Users.
1. YOUR RESPONSIBILITIES
You agree:
1. to market Academic Programs only to End Users who are those who
have enrolled as full or part-time students, faculty, or
instructional staff of academically accredited not-for-profit
institutions (called Academic End Users). Additionally,
academically accredited not-for-profit institutions are Academic
End Users;
2. when you sell to individual Academic End Users, to require them to
provide you with a valid photo identification, or a similar
identification commonly used by the institution at which they are
enrolled, that validates their status as an Academic End User. You
also agree to retain a record of such documentation for a period of
one year;
3. when you sell to an institutional Academic End User, to obtain a
purchase order from that institution;
4. to create unique stock keeping unit (SKU) numbers for Academic
Programs, such that they may be distinguished within your inventory
from their non-Academic Program equivalents;
5. when you display Academic Programs in a retail environment, to
clearly display their status as Academic Programs;
6. to maintain and produce, on our request, your record of Academic
Program sales. In the event you are unable to produce evidence that
such Programs were sold to Academic End Users, we will invoice you
for the difference in price between the Academic Programs and their
non-Academic Program equivalents;
7. to report to us your sales of Academic Programs, as we specify in
the operations guide; and
8. that if you breach the terms of this Attachment, we may suspend or
terminate our approval of you to market Academic Programs.
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
PASSPORT ATTACHMENT FOR RESELLERS OF WORKSTATION SOFTWARE
- -------------------------------------------------------------------------------
These terms prevail over and are in addition to or modify the Remarketer Terms
Attachment for Workstation Software.
1. DEFINITIONS
PASSPORT CONTRACT OPTION
The Passport Contract Option is a Lotus worldwide purchasing option
designed for End Users who can commit to buying quantities of Lotus
software, maintenance and support we specify totaling 1,000 points or
more during the End User's initial two-year contract period. Passport
Contract Option End Users sign a two year Lotus Passport Program
Agreement.
PASSPORT ENTERPRISE OPTION
The Passport Enterprise Option is a Lotus worldwide purchasing option
designed for End Users who can commit to purchasing Lotus software we
specify for a minimum of 500 users. Enterprise Option End Users sign a
two-year Lotus Passport Program Agreement.
PASSPORT TOTAL CAMPUS OPTION
The Passport Total Campus Option is a Lotus purchasing option designed
for educational End Users who may purchase Lotus academic software for up
to the total number of Full Time Equivalent (FTE) students, faculty and
staff at their institution. Eligible educational End Users sign a three
year Lotus Academic Passport Program Total Campus Option Enrollment form.
PASSPORT GOVERNMENT CONTRACT OPTION
The Passport Government Contract Option is a Lotus purchasing option
designed for United States Federal, State and Local Government End Users
that are able to forecast their software needs and manage software
acquisitions and upgrade requirements over an extended period. It is
structured to accommodate the specific requirements of Government
contracts. Government Contract Option End Users sign the Government
Contract Option Volume Purchase Forecast Schedule.
2. LIMITATIONS
MARKETING APPROVAL
You may market the Contract, Enterprise, Total Campus, and Government
Contract Options of the Lotus Passport Program (Passport) to End Users
with whom Lotus has a signed Lotus Passport Program Agreement (Passport
End Users).
INTERNATIONAL FULFILLMENT
You may initiate and be named by Passport End Users as a Passport
Reseller on all their Passport Agreements in any geography in which
Passport is available. Purchases you make from Lotus will be in the
currency of the country in which the purchase is made, or in a currency
we otherwise specify. Passport End User certificates resulting from such
transactions, regardless of installation location, will be in the
language of the country of the Lotus facility from which you purchased
Passport. These certificates will be distributed by us to the location
specified in the Passport End User's enrollment form.
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PASSPORT MEDIA AND DOCUMENTATION PACKS
Passport media containing Lotus software and documentation packs
containing Lotus software documentation will be available to you for
distribution only to your Passport End Users and other End Users we
specify. You may inventory Passport media and documentation packs as you
would any Lotus shrink-wrap packages.
3. YOUR RESPONSIBILITIES
Each Passport End User may have an unlimited number of Sites (Site as
defined in the End User's Lotus Passport Program Agreement), all
contributing to one single contract commitment. Whenever a Site of an End
User designates you as their Passport Reseller, this designation will be
communicated to you. You agree to then process all orders for Programs
from this Site as we specify to you.
You agree to accept all Site orders from End Users throughout the term of
their Lotus Passport Program Agreement and to report such sales to us as
we specify in the operations guide.
When we advise you that one of your Passport End Users is deficient and
is approaching, or has reached, their contract performance milestone date
or their maintenance renewal anniversary date, you agree to solicit
purchase orders from that Passport End User until the Passport End User
is in compliance with their Lotus Passport Program Agreement.
You agree to:
1. pass through to your Passport End Users, at the time of all applicable
transactions, any Lotus special reduction incentives designed to
encourage Passport End User purchasing activity, as defined by Lotus;
2. communicate to your Passport End Users all Passport promotions,
exceptions, and special offers, when informed of such by Lotus;
3. advertise Passport to prospective Passport End Users on a regular
basis;
4. install and use a Notes server and the Notes Passport databases, or
their equivalents, as we specify in the operations guide;
5. name and maintain a Passport Staff to competently administer Passport
both within your organization as well as when interacting with Lotus,
as we specify in the operations guide. You may not begin ordering
Passport from Lotus until each member of your Passport Staff has been
trained to perform their Passport related functions competently. We
have the sole right to evaluate the Passport competency of each such
staff member. You also agree to notify Lotus of any changes to your
Passport Staff as we specify in the operations guide.
6. on our request, send at your expense, a qualified representative to
participate in a specialized Passport training session as we specify.
In addition, you agree to have your representative attend, at your
expense, other Passport training and to participate in conference
calls as announced by Lotus.
4. SUSPENSION AND TERMINATION
If you breach the terms of this Attachment we may, immediately on notice
to you, suspend or terminate your Passport approval. If we do, you may no
longer accept Passport orders from Passport End Users. We may allow you a
reasonable opportunity to cure. If you fail to do so, we will take the
action we specified in our notice to you.
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IBM BUSINESS PARTNER AGREEMENT [IBM LOGO]
SOFTWARE ADVANTAGE ATTACHMENT FOR RESELLERS OF WORKSTATION SOFTWARE
- -------------------------------------------------------------------------------
These terms are in addition to or modify and prevail over the Remarketer Terms
Attachment for Workstation Software.
Under this Attachment, End Users who have in effect an IBM Software Advantage
for Workstations International Discount Agreement (Software Advantage
Agreement), who have named you on a Software Advantage Supplement (Supplement),
may fulfill their Software Advantage requirements through you. You must submit
the Supplement and any other applicable documentation to us. A copy of the
Software Advantage Agreement and applicable Supplement will be returned to you
after our acceptance. Additional End User Software Advantage orders may be
fulfilled during the Software Advantage Agreement period.
ELIGIBLE PRODUCTS
The Software Advantage Products (Eligible Products) that End Users may
acquire from you in fulfillment of a Software Advantage Agreement are
1) Eligible Programs, 2) Upgrade Protection, and 3) Media Packs,
listed on the IBM Software Advantage for Workstations Eligible Product
List (Eligible Product List).
Eligible Programs provide the End User with right-to-copy and use
licenses, or right-to-use licenses, as applicable. We also grant the
End User the right to copy Program documentation. Program media and
documentation are not included with Eligible Programs and must be
acquired separately. Once an End User acquires an initial Program and
The Program's documentation, the End User may use such Program and
documentation to make copies.
Upgrade Protection provides the End User with upgrade security
protection for Eligible Programs acquired under their Software
Advantage Agreement and for Eligible Programs the End User has already
installed. By acquiring Upgrade Protection, End Users are entitled to
future Program upgrades (i.e., new versions, releases or other
enhancements, as IBM determines) that are announced within the period
of the End User's Software Advantage Agreement.
A Media Pack consists of the Program on separate media, without
documentation or a copy of the license agreement. Media Packs may only
be marketed to End Users who acquire them under the terms of a
Software Advantage Agreement. Media Packs are available at an
additional charge. End Users may elect to fulfill their right to copy
license requirements through any combination of Media Packs and by
making copies, the total of which may not exceed the number of
Eligible Programs as specified in the End User's Software Advantage
Agreement.
PRICES, AND PAYMENT
We will specify to you in writing, our pricing for Eligible Programs
and Upgrade Protection, which is based on the total Suggested Retail
Price (SRP) value of the End User's Software Advantage Agreement being
fulfilled. When the End User acquires Eligible Programs and Upgrade
Protection for such Programs during the Software Advantage Agreement
period, the charges for Upgrade Protection will be prorated based on
the full remaining quarters of the End User Software Advantage
Agreement. The price for a Media Pack is the price as specified in the
Software Advantage price list we provide to you.
We will invoice you when we match your order for Eligible Products to
an initial or subsequent Supplement, or to your monthly report.
YOUR RESPONSIBILITIES
You agree:
1. to market Eligible Products to your End Users only in fulfillment
of their Software Advantage Agreement;
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2. to submit to us by the effective date of the Software Advantage
Agreement or a revised Software Advantage Agreement, as applicable,
your matching order for Eligible Products included on a Supplement,
3. to report to us, subsequent End User acquisitions taken in
fulfillment of their Software Advantage Agreement. The report must
be received by us within ten business days after the last day of
the month in which the End User acquired "he Eligible Products;
4. to provide Media Packs 1) only to eligible End User's, under the
terms of the Software Advantage Agreement, and 2) in lieu of, and
not in addition to, copies an End User acquires as right-to-copy
licenses;
5. if we withdraw an Eligible Product, you will not market such
Product after the effective date of the withdrawal without our
prior written approval:
6. to communicate to your Software Advantage End Users all Software
Advantage promotions, exceptions and special offerings, when
informed of such by us; and
7. to advertise Software Advantage to prospective Software Advantage
End Users on a regular basis.
TERMINATION
Either of us may terminate this Attachment at any time. When this
Attachment is terminated you agree to report to us, and immediately
pay us, all amounts due for any End User acquisitions not yet
reported.
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