[IBM LOGO]
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PERSONAL SYSTEMS GROUP EXECUTED DOCUMENT
CONFIRMATION
CONTRACT OPERATIONS
IBM PERSONAL SYSTEMS GROUP
3039 CORNWALLIS RD.
BLDG. 203
RESEARCH TRIANGLE PARK, NC 27709
FAX: (919) 517-1860
DATE: DECEMBER 3, 1999
BUSINESS PARTNER LEGAL NAME: IGO CORPORATION
ENCLOSED IS AN EXECUTED COPY OF THE FOLLOWING BETWEEN YOU AND
THE IBM PERSONAL SYSTEMS GROUP:
IBM Business Partner Agreement Distributor Profile
Contract Duration: 24 Months Contract Expiration: November 30, 2001
Please contact me if there are any questions.
Lisa Fitzgerald
Contract Operations
IBM Personal Systems Group
(919) 517-0119
Enclosure
IBM Business Partner Agreement [IBM LOGO]
Distributor Profile
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We welcome you as an IBM Business Partner-Distributor.
This Profile covers the details of your approval to actively market Products and
Services, as our Distributor.
By signing below, each of us agrees to the terms of the following (collectively
called the "Agreement"):
(A) this Profile;
(B) General Terms (Z125-5478-04 12/98);
(C) the applicable Attachments referred to in this Profile; and
(D) the Exhibit.
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 Products 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 IBM address shown below.
Revise Profile (yes/no): YES Date received by IBM: December 3, 1999
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AGREED TO: (IBM Business Partner AGREED TO:
Name) International Business Machines
iGo Corporation Corporation
By: /s/ Robert Bauer By: /s/ Diane Godbee
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Authorized signature Authorized signature
Name (type or print): Robert Bauer Name (type or print): Diane Godbee
Date: November 15, 1999 Date:
IBM Business Partner address: IBM address:
2301 ROBB DRIVE 3039 CORNWALLIS ROAD
RENO, NV 89523 BUILDING 203
RESEARCH TRIANGLE PARK, NC 27709
Page 1 of 5
DETAILS OF OUR RELATIONSHIP
CONTRACT PERIOD START DATE (MONTH/YEAR): 12/1/99 DURATION: 24 MONTHS
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RELATIONSHIP APPROVAL/ACCEPTANCE OF ADDITIONAL TERMS:
FOR EACH APPROVED RELATIONSHIP, EACH OF US AGREES TO THE TERMS OF THE FOLLOWING
BY SIGNING THIS PROFILE. COPIES OF THE ATTACHMENTS ARE INCLUDED.
APPROVED RELATIONSHIP APPLICABLE ATTACHMENT
(YES/NO)
Distributor Attachment yes Z125-5486-03 12/98
Remarketer Terms Attachment yes Z125-5497-02 12/98
Warranty Service Attachment no Z125-5499-02 12/98
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Complimentary Marketing Terms Attachment
for Distributors no Z125-5775-00 03/98
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Authorized Assembler Attachment no Z125-5530-01 04/97
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North American Marketing Attachment
for Distributors no Z125-5892-01 06/99
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Federal Remarketer Attachment no Z125-5514-01 02/99
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Attachment for Services Marketing for Remarketers yes Z125-5750-00 11/97
Attachment for Financial Services from IBM Credit Corp. no Z125-5795-02 05/99
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Attachment for ServiceSuite - Remarketer no Z125-5767-01 02/99
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Internet Service Provider Attachment no Z125-6030-00 10/99
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PRODUCT AND SERVICES APPROVAL:
THE FOLLOWING PRODUCTS AND SERVICES ARE LISTED IN THE EXHIBIT. THE TERMS OF AN
EXHIBIT APPLY TO THE PRODUCTS AND SERVICES LISTED IN IT.
WHEN WE APPROVE YOU FOR PRODUCTS LISTED IN THE EXHIBIT, YOU ARE ALSO APPROVED TO
MARKET THEIR ASSOCIATED PROGRAMS AND PERIPHERALS.
WHEN WE APPROVE YOU FOR PRODUCTS INCLUDED IN THE IBM BUSINESS PARTNER EXHIBIT,
YOU ARE ALSO APPROVED FOR THEIR ASSOCIATED PRODUCTS LISTED IN THE IBM PERSONAL
COMPUTER PRODUCTS EXHIBIT AND THOSE ELIGIBLE PRODUCTS LISTED IN THE PARTNERLINK.
FOR PRODUCTS AND SERVICES WE SPECIFY YOU ACQUIRE FROM US, WE MAY SPECIFY IN YOUR
EXHIBIT THAT YOU ACQUIRE THE PRODUCTS AND SERVICES FROM A SUPPLIER INSTEAD OF
FROM US. WHEN YOU ACQUIRE THE PRODUCTS AND SERVICES FROM A SUPPLIER, THE TERMS
OF THE AGREEMENT RELATING TO YOUR ACQUISITION OF PRODUCTS AND SERVICES DIRECTLY
FROM US (FOR EXAMPLE, TERMS RELATING TO THE ORDERING OF PRODUCTS AND SERVICES)
ARE NOT APPLICABLE. ALL OTHER TERMS APPLY.
APPROVED TO MARKET TO:
SYSTEM TYPES (1) IBM APPROVED REMARKETERS ALL REMARKETERS END USERS
(YES/NO) (YES/NO) (YES/NO)
1) IBM System/390 (2) (5) no
-----------
IBM R/390 no
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IBM P/390 no
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2) IBM RS/6000 (6) no
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3) IBM RS/6000 SP (6) no
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4) IBM AS/400 (6)
9401 no
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9401/150 no
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9402 no
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9406 no
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5) IBM 469X Point of Sale Products (6) no
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IBM 4614 SureOne (6) no
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APPROVED TO MARKET TO:
IBM APPROVED REMARKETERS ALL REMARKETERS END USERS
(YES/NO) (YES/NO) (YES/NO)
IBM PERSONAL COMPUTER PRODUCTS (3) (6)
1) IBM PC Desktop no
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2) IBM PC Server no
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3) IBM Mobile no
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4) ASCII Terminals no no no
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5) Cables & Associated Products no no no
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6) PC Features & Options yes no no
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ADDITIONAL PRODUCTS (1)
1) IBM Network Integration Products no
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2) 3745 Communications Controller no
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3) 3746 Expansion Unit/Controller no
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4) Graphics no
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5) Finance Products Category J1 no
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6) IBM Storage Products (6) no
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Category S1 Products no
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Category S2 Products no
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Category S3 Products no
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Category S6 Products no
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Category S7 Products no
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Category S9 Products no
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SOFTWARE ONLY
1) Tivoli Enterprise Software no
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Category (SW1B1) no
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Category (SW1C1) no
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2) F.A.S.T. Software no
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3) Enterprise File Systems no
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IBM GLOBAL SERVICES (4)
1) Product Support Services no
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a) Hardware Support Services no
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b) Software Services no
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c) Systems Management Services no
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d) Site & Connectivity Services no
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e) Business & Technology Solutions no
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f) Business Recovery Services no
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g) Other Services no
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2) IBM Professional Services
a) IBM Consulting Services no
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CERTIFIED PRODUCTS YOU ARE APPROVED TO MARKET.
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- ---------------------------------- ----------------------------------
(1) When approved for other than IBM Personal Computer Company Products
additional terms apply. These terms are included in the Distributor
Schedule A transaction document.
(2) Eligible Products are identified in Schedule A.
(3) Please refer to the IBM Personal Computer Products Exhibit for details on
acquisition criteria.
(4) You may market this Service without the requirement to have marketed a
Machine or Program.
(5) When we approve you to market these Products, you are also approved to
market the associated Programs under complementary marketing terms only.
These Programs are not available for marketing under remarketer terms.
(6) These Products are eligible for marketing under the terms of the North
American Marketing Attachment - Distributors.
Page 3 of 5
EXCLUSIONS, IF APPLICABLE:
ALTHOUGH INCLUDED BY REFERENCE IN PRODUCT OR SERVICES APPROVAL, YOU ARE NOT
APPROVED TO MARKET THESE INDIVIDUAL PRODUCTS OR SERVICES.
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MINIMUM ANNUAL ATTAINMENT:
PRODUCT/SERVICE VOLUME/REVENUE MEASUREMENT
PERIOD DATES
PC FEATURES & OPTIONS $2 MILLION
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LOCATIONS:
Location (street address, city, ZIP code)
2301 Robb Drive
Reno, NV 89523
YOUR COMMITMENT, IF APPLICABLE:
THIS SECTION IDENTIFIES YOUR REVENUE COMMITMENT AND THE APPLICABLE ADDITIONAL
DISCOUNT PERCENTAGE. AT YOUR REQUEST WE WILL REVIEW YOUR REVENUE ATTAINMENT
AGAINST YOUR REVENUE COMMITMENT AT ANY TIME TO DETERMINE IF YOU QUALIFY FOR A
HIGHER APPLICABLE ADDITIONAL DISCOUNT PERCENTAGE.
AFTER EACH ANNUAL MEASUREMENT PERIOD, IBM WILL REVIEW YOUR REVENUE ATTAINMENT.
IF YOUR REVENUE ATTAINMENT IS LESS THAN THE REVENUE COMMITMENT, YOUR APPLICABLE
ADDITIONAL DISCOUNT PERCENTAGE WILL BE ADJUSTED DOWNWARD TO THE APPROPRIATE
LEVEL. ADDITIONALLY IF YOUR REVENUE ATTAINMENT IS GREATER THAN YOUR REVENUE
COMMITMENT, YOUR APPLICABLE ADDITIONAL DISCOUNT PERCENTAGE WILL BE ADJUSTED
UPWARD AS APPROPRIATE.
IBM Network Revenue Applicable Additional
Integration Commitment Discount Percentage (1)
Products (Annual)
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IBM 3746 Revenue Applicable
Communications Commitment Discount
Control (Annual) Percentage
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(1) The products eligible for the Applicable Additional Discount Percentage are
identified in the Business Partner Exhibit.
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ASSIGNMENT OF WARRANTY SERVICE RESPONSIBILITY, IF APPLICABLE:
YOU ASSIGN TO US, OR AN IBM PREMIER PERSONAL COMPUTER SERVICER, WARRANTY SERVICE
RESPONSIBILITY FOR THE FOLLOWING MACHINES.
TYPE/MODEL TYPE/MODEL TYPE/MODEL TYPE/MODEL
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- ---------------- ------------------ ----------------- ----------------------
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UNLESS YOU ARE ASSIGNED TO US, PLEASE SPECIFY THE NAME OF THE IBM PREMIER
PERSONAL COMPUTER SERVICE:
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Page 5 of 5
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
Page 1 of 10
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 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,
directly or 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 access to 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 list of 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, payment terms and amount due); and
2. order acknowledgments (confirmation of Products and quantities
ordered).
CONFLICTING TERMS
If there is a conflict amount 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.
Page 3 of 10
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 of your Profile.
Unless we specify otherwise in writing, the Agreement will be renewed
automatically for subsequent two year periods. However, you may advise us
in writing not to renew the Agreement. Each of us is responsible to
provide the other 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;
Page 4 of 10
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,
to a Related Company, but may assign its rights to payment or orders
to any third party;
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).
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
this Agreement, or any of its approvals, or delegate any duties,
unless expressly permitted to do so in 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 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 this
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, or is likely
to occur.
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
Page 5 of 10
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.
5. 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:
a. sales leads,
b. information regarding prospects or Customers
c. unannounced information about Products and Services,
d. business plans, or
e. market intelligence;
3. any of the following written information you provide to us on our
request and which you mark as confidential;
a. reporting data,
b. financial data, or
c. 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. Regardless of the IBM Machine's production status, our
appropriate warranty terms apply. You agree to inform
Page 6 of 10
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 ARE 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;
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
Page 7 of 10
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 or Service 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 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.
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;
Page 8 of 10
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 any
written communication from you (such as an order), 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. Such Products do not
count, unless we specify otherwise in the Exhibit, toward 1) your minimum
annual attainment, 2) determination of your discount price, as applicable,
or 3) determining your marketing or promotional funds.
Any value added enhancement or systems integration services otherwise
required by y our 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. Additionally, such Products do not count unless we
specify otherwise in the Exhibit, toward 1) your minimum annual
attainment, 2) determination of your discount or price, as applicable, or
3) determining your marketing or promotional funds.
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.
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 sufficient to verify the sender's identity and
the document's authenticity.
Page 9 of 10
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.
Page 10 of 10
IBM Business Partner Agreement IBM logo
Distributor Attachment
- --------------------------------------------------------------------------------
THESE TERMS PREVAIL OVER AND ARE IN ADDITION TO OR MODIFY THE REMARKETER TERMS
ATTACHMENT, AND THE COMPLEMENTARY MARKETING TERMS ATTACHMENT FOR DISTRIBUTORS.
1. MARKETING APPROVAL
You may be approved as a Distributor under a remarketer relationship or
under a complementary marketing relationship, or both. If we approve
you to market the same Products and Services under both remarketer and
complementary marketing terms, all transactions will be under
remarketer terms. You may unilaterally elect not to participate under
remarketer terms for a specific transaction or business segment by
providing us a signed IBM Business Partner Statement of Election. If
you meet the requirements of the Marketing Approval Section of the
Complementary Marketing Terms Attachment for Distributors, you may
participate under those terms.
You are approved to market Products and Services to Business Partners
(but not to IBM approved Distributors unless we specify otherwise in
your Profile) and to End Users. Your Profile will specify to whom you
may market Products and Services.
2. YOUR RESPONSIBILITIES TO IBM
You agree:
1. to develop a mutually acceptable business plan with us, if we
require one. Such plan will document each of our marketing plans as
they apply to our relationship. We will review the plan, at a
minimum, once a year;
2. for marketing to Remarketers, that, unless precluded by applicable
law, one of the requirements for you to retain this relationship is
that you achieve the minimum annual attainment we specify in your
Profile;
3. for marketing to Remarketers, to order Products and Services as we
specify in the operations guide;
4. to maintain trained personnel, as we specify in your Profile or
Exhibit, as applicable;
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 may require an
annual audited financial report;
6. unless we specify otherwise in the Exhibit, to maintain the
capability to demonstrate the Products we approve you to market;
7. to maintain sufficient inventory of Products to meet Remarketer
demands. We may specify in your Exhibit certain Products we require
you to have regularly available;
8. to secure from your Business Partners a signed Program license
agreement for Programs requiring signature; and
9. to ensure that the terms in any agreement you may have with your
Business Partners are not in conflict with this Agreement.
If, during our review of your Business Partner's compliance with its
Business Partner Agreement with us, we find the Business Partner has
materially breached the terms of its Business Partner Agreement, you
agree to refund the amount equal to the discount or fee, as applicable,
we gave you for the Products that are the subject of the breach, if we
require you to do so.
Page 1 of 3
3. YOUR RESPONSIBILITIES TO YOUR BUSINESS PARTNERS
THE FOLLOWING TERMS APPLY ONLY WHEN YOU ARE MARKETING UNDER REMARKETING
TERMS:
You agree to:
1. provide Products and Services to them on an equitable basis;
2. fulfill all their valid orders for eligible Products and Services;
3. give written notification to the Remarketer of any modification you
make to a Product and the name of the warranty service provider, and
advise that such modification may void the warranty for the Product;
and
4. provide a copy of the Licensed Internal Code agreement to
Remarketers and inform them of those Machines containing such Code.
THE FOLLOWING TERMS APPLY WHEN YOU ARE MARKETING UNDER EITHER
REMARKETING OR COMPLEMENTARY TERMS:
You agree to:
1. provide development, demonstration, evaluation and internal use
Products (we specify eligible Products in the Exhibit) to those
Business Partners who are eligible to acquire such Products. You
must make such Products available to each of them on the same terms,
regarding the maximum quantity of Products that may be acquired and
the minimum retention period, as we make available to you;
2. provide the Program license agreement to them, if applicable, and
require them to provide the agreement to the End User; and
3. provide the following items to Business Partners when we have given
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 to require the Business Partners to properly
implement or distribute them, as applicable.
Except for personal computer Products, you also agree to:
1. inform them that you are available to provide Product and Services
support to them;
2. provide pre- and post-installation sales support to them. You agree
you are responsible for their satisfaction with such support;
3. provide configuration support to them, for Products we specify;
4. assist them in Product problem determination and resolution; and
5. advise them of the terms regarding the date of installation for
Products IBM installs.
4. YOUR REMARKETERS' RESPONSIBILITIES
Page 2 of 3
When you market Products and Services to Remarketers who do not have a
contractual relationship with IBM for such Products and Services, you
agree to inform them of their responsibility to:
1. provide the support necessary to maintain customer satisfaction;
2. provide Program Services to their End Users;
3. provide Product configuration support to their End Users;
4. assist their End Users to achieve productive use of the Products and
Services they marketed;
5. inform their End Users of Product installation requirements;
6. comply with all terms regarding Program upgrades;
7. refund the amount paid for a Product returned if such return is
provided for in its warranty or license or a money-back guarantee we
offer End Users. The Remarketer may return the Product to you for
credit, as we specify in the operations guide
8. for a Program requiring the End User's signature on the Program
license agreement, obtain the signature before providing the Program
to the End User and return the agreement as we specify;
9. provide warranty information to their End Users, when applicable;
10. comply with all export laws and regulations of the country in which
the Product is imported or exported, as well as those of the United
States, and advise their End User that IBM's warranty
responsibilities do not apply to exported products (unless the
Product's warranty or license terms state otherwise);
11. provide a dated sales receipt or its equivalent (such as an
invoice) to their End User;
12. give written notice to their End Users of any modification you or
the Remarketer made to a Product and the name of the warranty
service provider and advise that such modification may void the
warranty for the Product;
13. if applicable, provide the Licensed Internal Code license agreement
to their End Users before the sale is finalized;
14. inform their End Users that the sales receipt (or other
documentation, such as Proof of Entitlement if it is required) will
be necessary for proof of warranty entitlement or for Program
upgrades;
15. inform their End Users of educational offerings, as applicable;
16. advise their End Users of the terms regarding a Machine's
production status;
17. assist you in locating Products if we require such assistance from
you; and
18. retain records of each sales transaction for three years.
Page 3 of 3
IBM Business Partner Agreement IBM logo
Remarketer Terms Attachment
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
SECTION TITLE PAGE
1. Our Relationship.................................................2
2. Ordering and Delivery ...........................................2
3. Inventory Adjustments ...........................................3
4. Price, Invoicing, Payment and Taxes .............................3
5. Licensed Internal Code ..........................................5
6. Machine Code.....................................................5
7. Programs ........................................................5
8. Export ..........................................................6
9. Title............................................................6
10. Risk of Loss.....................................................6
11. Installation and Warranty .......................................6
12. Warranty Service ................................................7
13. Marketing of Service ............................................7
14. Marketing of Financing ..........................................9
15. Engineering Changes .............................................9
16. Ending the Agreement.............................................9
Page 1 of 11
IBM Business Partner Agreement IBM logo
Remarketer Terms Attachment
- --------------------------------------------------------------------------------
1. OUR RELATIONSHIP
As our IBM Business Partner, you market to your Customers the Products
and Services (including "shrink-wrap" Services) we provide to you.
These terms apply to a Business Partner whose method of distribution is
under our remarketer terms, and includes Distributors, Resellers,
Solution Providers, and Systems Integrators.
RESPONSIBILITIES
Each of us agrees:
1. we offer a money-back guarantee to End Users for certain Products.
You agree to inform the End User of the terms of this guarantee
before the applicable sale. For any such Product, you agree to 1)
accept its return in the time frame we specify 2) refund the full
amount paid to you for it, and 3) dispose of it (including all its
components) as we specify. We will pay a transportation charge for
return of the Product to us and will give you an appropriate credit.
2. each of us is free to set its own prices and terms; and
3. neither of us will discuss its Customer prices and terms in the
presence of the other.
OTHER RESPONSIBILITIES
You agree to:
1. refund the amount paid for a Product or Service returned to you if
such return is provided for in its warranty or license. You may
return the Product to us for credit at our expense, as we specify in
the operations guide;
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
Product and Service transaction (for example, a sale or credit) for
three years;
4. provide us with marketing, sales, installation reporting and
inventory information for our Products and Services, as we specify
in the operations guide;
5. when you are approved to market to Remarketers, market Products and
Services which require certification, only to Remarketers who are
certified to market them;
6. comply with all terms regarding Program upgrades;
7. provide a dated sales receipt (or its equivalent, such as an
invoice) as we specify in the operations guide, to your Customers,
before or upon delivery of Products and Services; and
Page 2 of 11
8. report to us any suspected Product defects or safety problems, and
to assist us in training and locating Products.
2. ORDERING AND DELIVERY
You may order Products and Services from us as we specify in the
operations guide. You agree to order them in sufficient time to count
toward your minimum annual attainment, if applicable.
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), as we specify in the
operations guide.
Upon becoming aware of any discrepancy between our shipping manifest
and the Products 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
Products and Services we ship.
We may not be able to honor your request for modification or
cancellation of an order. We may apply a cancellation charge for orders
you cancel within 10 business days before the order is scheduled to be
shipped. The Exhibit will specify if a cancellation charge applies and
where we will specify the charge.
If we are unable to stop shipment of an order you cancel, and you
return such Product to us after shipment, our inventory adjustment
terms apply.
3. INVENTORY ADJUSTMENTS
We will specify in your Exhibit the Products and Services to which this
section applies.
Products and Services you return to us for credit must have been
acquired directly from us. You must request and receive approval from
us to return the Products and Services.
Products and Services must be received by us within one month of our
approving their return, unless we specify otherwise to you in writing.
We will issue a credit to you when we accept the returned Products and
Services.
Certain Products may be acquired only as Machines and Programs packaged
together as a solution. These Products must be returned with all their
components intact.
For certain Products and services you return, a handling charge
applies. We will specify the handling charge percentage in the Exhibit.
We determine your total handling charge by multiplying the inventory
adjustment credit amount for the Products and services by the handling
charge percent.
You agree to pay transportation and associated charges for Products and
Services you return.
Unless we specify otherwise, returned Products and Services must be in
their unopened and undamaged packages.
Page 3 of 11
You agree to ensure the returned Products 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 ship Products
and Services.
We will reject any returned Products and Services that do not comply
with these terms.
4. PRICE, INVOICING, PAYMENT AND TAXES
PRICE AND DISCOUNT
The price, and discount if we specify one, for each Product 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. Unless we specify otherwise, discounts do not
apply to Program upgrades, accessories, or field-installed Machine
features, conversions, or upgrades.
The price for each Product and Service is the lower of the price in
effect on the date we receive your order, or the date we ship a product
or "shrink-wrap" service, or the start date of a Service, if it is
within six months of the date we receive your order.
PRICE AND DISCOUNT CHANGES
We may change prices and increase discounts at any time. We may
decrease discounts on one month's written notice.
We will specify in your Exhibit if the following credit terms do not
apply to Products and Services we approve you to market.
If we decrease the price or increase the discount for a Product or
Service, you will be eligible to receive a price decrease credit or a
discount increase credit for those you acquired directly from us that
are in your inventory, or in transit, or if the Product's date of
installation or Service start date has not occurred. However, Products
acquired from us under a special offering (for example, a promotional
price or a special incentive) may not be eligible for a full credit.
You must certify your inventory to us in writing within one month of
the effective date of the change. The credit is the difference between
the price you paid, after any adjustments, and the new price.
THE FOLLOWING TERMS APPLY TO PROGRAMS LICENSED ON A RECURRING-CHARGE
BASIS:
We may increase a recurring charge for a Program by giving you three
months' written notice. An increase applies on the first day of the
invoice or charging period on or after the effective date we specify in
the notice.
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 notice.
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.
Page 4 of 11
RESELLER TAX EXEMPTION
You agree to provide us with your valid reseller exemption
documentation for each applicable taxing jurisdiction to which we ship
Products 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, Products 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 w4e 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 Products and Services;
3. repossess any Products 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 Products and Services available to us at a site that is
mutually convenient;
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. LICENSED INTERNAL CODE
Machines (Specific Machines) containing Licensed Internal Code (Code)
will be identified in the Exhibit. We grant the rightful possessor of a
Specific Machine a license to use the Code (or any replacement we
provide) on, or in conjunction with, only the Specific Machine,
designated by serial number, for which the Code is provided. We license
the Code to only one rightful possessor at a time. You agree that you
are bound by the terms of the separate license agreement that we will
provide to you.
YOUR RESPONSIBILITIES
You agree to inform your Customer, and record on the sales receipt,
that the Machine you provide is a Specific Machine using Licensed
Internal Code. The license agreement must be provided to the Customer
before the sale is finalized.
Page 5 of 11
6. MACHINE CODE
For certain Machines we may provide basic input/output system code,
utilities, diagnostics, device drivers, or microcode (collectively
called " Machine Code"). This Machine Code is licensed to the End User
under the terms of the agreement provided with it. You agree to ensure
the End User is provided such agreement.
7. PROGRAMS
You agree to ensure the End User has signed the license agreement for a
Program requiring a signature, as we specify in the Exhibit, before
such Program is provided to the End User, and to provide any required
documentation to us. All other Programs are licensed under the terms of
the agreement provided with them. You agree, where applicable, to
provide the Program license to the End User before such Program is
provided to the End User.
We will designate in the Exhibit if 1) we will ship the media and
documentation to you or, if you request and we agree, to the End User,
2) you may copy and redistribute the media and documentation to the End
User, or 3) you must copy and redistribute the media and documentation
to the End User. If we ship the media and documentation, we may charge
you. We will specify such charge to you in writing. If you copy and
redistribute, you must be licensed to use the Program from which you
make the copies. A Program license you acquired for use under the
Demonstration, Development and Evaluation Products terms fulfill this
requirement.
Programs licensed to you on a recurring-charge basis are licensed for
the period indicated in our invoice. You may market such Programs only
on the same basis as licensed to you. You may not charge an End User a
one-time charge for a Program you license from us on a recurring-charge
basis. However, you may charge the End User whatever amount you wish
for the recurring-charge.
PROGRAM SERVICES
Program Services are described in the Program's license agreement. You
are responsible to provide your Customers, who are licensed for a
Program, the Program Services we make available to you.
If the End User agrees in writing, you may:
1. Delegate this responsibility to another IBM Business Partner who is
approved to market the Program, or
2. Provide an enhanced version of this support through the applicable
IBM Service you market to the End User.
If you delegate your support responsibilities to another IBM Business
Partner, you retain customer satisfaction responsibility. However, if
you market our applicable Services to the End User, we assume customer
satisfaction responsibility for such support.
8. EXPORT
You may actively market Products 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.
Page 6 of 11
If a customer acquires a Product for export, our responsibilities, if
any, under this Agreement no longer apply to that Product unless the
Product's warranty or license terms state otherwise. You agree to use
your best efforts to ensure that your Customer complies with all export
laws and regulations, including those of the United States and the
country specified in the Governing Law Section of this Agreement, and
any laws and regulations of the country in which the Product is
imported or exported. Before your sale of such Product, you agree to
prepare a support plan for it and obtain your Customer's agreement to
that plan. Within one month of sale, you agree to provide us with the
Customer's name and address, Machine type/model, and serial number if
applicable, date of sale, and destination country.
We exclude these Products from:
1. any of your attainment toward your objectives; an d
2. qualification for applicable promotional offerings and marketing
funds.
We may also reduce future supply allocations to you by the number of
exported Products.
9. TITLE
When you order a Machine, we transfer title to you when we ship the
Machine.
Any prior transfer to you of title to a Machine reverts back to IBM
when it is accepted by us as a returned Machine.
We do not transfer a Program's title.
10. RISK OF LOSS
We bear the risk of loss of, or damage to, a Product or Service up to
and including its initial delivery from us to you or, if you request
and we agree, delivery from us to your Customer. Thereafter, you assume
the risk.
11. INSTALLATION AND WARRANTY
We will ensure that Machines we install are free from defects in
materials and workmanship and conform to their specifications. We
provide instructions to enable the set-up of Customer-Set-Up Machines.
We are not responsible for the installation of Programs or non- IBM
Machines. We do, however, preload Programs onto certain Machines. We
provide a copy of our applicable warranty statement to you. You agree
to provide it to the End User for review before the sale is finalized,
unless we specify otherwise.
We calculate the expiration date of an IBM Machine's warranty period
from the Machine's Date of Installation. Warranty terms for Programs
are described in the Programs' license terms.
We provide non-IBM Products WITHOUT WARRANTIES OF ANY KIND, unless we
specify otherwise. However, non-IBM manufacturers, suppliers, or
publishers may provide their own warranties to you.
For non-IBM Products we approve you to market, you agree to inform your
Customer in writing 1) that the Products are non-IBM, 2) the
manufacturer or supplier who is responsible for warranty (if any), and
3) of the procedure to obtain any warranty service.
Page 7 of 11
DATE OF INSTALLATION FOR A MACHINE WE ARE RESPONSIBLE TO INSTALL
The Date of Installation for a Machine we are responsible to install is
the business day after the day 1) we install it or, 2) it is made
available for installation, if you (or the End User) defer
installation. Otherwise (for example, if others install or break its
warranty seal), it is the day we deliver the Machine to you (or the End
User). In such event, we reserve the right to inspect the Machine to
ensure its qualification for warranty entitlement.
THE DATE OF INSTALLATION FOR A CUSTOMER-SET-UP MACHINE
The Date of Installation for a Customer-Set-Up Machine is the date the
Machine is installed which you or your Remarketer, if applicable,
record on the End User's sales receipt. You must also notify us of this
date upon our request.
INSTALLATION OF MACHINE FEATURES, CONVERSIONS, AND UPGRADES
We sell features, conversions and upgrades for installation on
Machines, and, in certain instances, only for installation on a
designated, serial numbered Machine. Many of these transactions involve
the removal of parts and their return to us. As applicable, you
represent that you have the permission from the owner and any lien
holders to 1) install features, conversions and upgrades and 2)
transfer the ownership and possession of removed parts (which become
our property) to us. You further represent that all removed parts are
genuine, and unaltered, and free from defects in materials and
workmanship and conform to specifications. A part that replaces a
removed part will assume the warranty and maintenance Service status of
the replaced part. You agree to allow us to install the feature,
conversion, or upgrade within 30 days of its delivery. Otherwise, we
may terminate the transaction and you must return the feature,
conversion, or upgrade to us at your expense.
12. WARRANTY SERVICE
We will specify in the Exhibit whether you or we are responsible to
provide Warranty Service for a machine.
When we are responsible for providing Warranty Service for Machines,
you are not authorized to provide such Service, unless we specify
otherwise in the Exhibit.
When you are responsible for providing Warranty Service, you agree to
do so according to the terms we specify in the Warranty Service
Attachment.
13. MARKETING OF SERVICES
The following are the conditions under which you may market Services;
1. if you marketed a Product to the End User, you may market the
Services, specified in the Exhibit; or
2. regardless of whether you marketed a Product to the End User you may
market the Services we specify in your Profile.
If you are an IBM Distributor the following paragraph applies:
The following are the conditions under which you may market Services:
1. if your Remarketer marketed a Product to the End User, you may
market the Services, specified in the Exhibit, to your Remarketer
only for the Remarketer's marketing to such End User; and
Page 8 of 11
2. regardless of whether your Remarketer marketed a Product to the End
User you may market the Services we specify in your Profile to your
Remarketer, who may market such Services.
You may market Services on eligible non-IBM Products regardless of
whether you marketed a Machine or Program to the End User.
MARKETING OF SERVICES FOR A FEE
The terms of this subsection apply when we perform the Services to the
End User at prices we set and under the terms of our Service agreement,
signed by the End User. We pay you a fee for marketing such Services.
You will receive a fee for marketing eligible Services when 1) you
identify the opportunity and perform the marketing activities, 2) you
provide us with the order and any required documents signed by the End
User, and 3) a standard Statement of Work is used and there are no
changes, and no marketing assistance from us is required.
Alternatively, you will receive a fee for a lead for eligible Services
when it 1)is submitted on the form we provide to you, 2) is for an
opportunity which is not known to us, and 3) results in the End User
ordering the Service from us within six months from the date we receive
the lead from you.
We will not pay you the fee if 1) the machine or program is already
under the applicable Service, 2) we have an agreement with the End User
to place the machine or program under the applicable Service, or 3) the
Service was terminated by the End User within the last six months.
If the Service is terminated within three months of the date payment
from the End User was due us, you agree to reimburse us for any
associated payments we made to you. The reimbursement may be prorated
if the Service is on a recurring charge basis.
We periodically reconcile amounts we paid you to amounts you actually
earned. We may deduct amounts due us from future payments we make to
you, or ask you to p ay amounts due us. Each of us agrees to promptly
pay the other any amounts due.
REMARKETING OF SERVICES
We provide terms in an applicable Service Attachment governing your
remarketing of eligible Services the End User acquires from you and
which we perform under the terms of the IBM Service agreement with the
End User.
Shrink-wrap Services are performed under the terms of the agreement
provided with them. If the terms of the agreement are not visible on
the shrink-wrap package, you agree to provide (or, if applicable,
request your Remarketer to provide) the Services terms to the End User
before such Services are acquired by the End User.
SERVICES WE PERFORM AS YOUR SUBCONTRACTOR
If approved on your Profile, we will provide terms in an applicable
Service Attachment governing our provision of the Services we perform
as your subcontractor. Such Services are those an End User purchases
from you under the terms of your service agreement.
Page 9 of 11
14. MARKETING OF FINANCING
If we approve you on your Profile, you may market our Financing
Services for Products and Services and any associated products and
services you market to the End User. If you market our Financing
Services, we will pay you a fee as we specify to you in your Exhibit.
We provide Financing Services to the End User under the terms of our
applicable agreements signed by the End User. You agree, that for the
items that will be financed, 1) you will promptly provide us any
required documents including invoices, with serial numbers, if
applicable, 2) the supplier will transfer clear title to us, and 3) you
will not transfer to us any obligations under your agreements with the
End User.
We will make payment for the items to be financed when the End User has
initiated financing and acknowledged acceptance of the items being
financed. Payment will be made to you, or the supplier, as appropriate.
15. ENGINEERING CHANGES
You agree to allow us to install mandatory engineering changes (such as
those required for safety) on all Machines in your inventory, and to
use your best efforts to enable us to install such engineering changes
on your Customers' Machines. Mandatory engineering changes are
installed at our expense and any removed parts become our property.
During the warranty period, we manage and install engineering changes
at:
1. your or your Customer's location for Machines for which we provide
Warranty Service; and
2. your location for other Machines.
Alternatively, we may provide you with the parts (at no charge) and
instructions to do the installation yourself. We will reimburse you for
your labor as we specify.
16. ENDING THE AGREEMENT
Regardless of the contract duration specified in the Profile, or any
renewal period in effect, 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 Products or
shrink-wrap Services for which you have not paid; and
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2. allow us, at our discretion, to acquire any that are in your
possession on control, at the price you paid us, less any credits
issued to you.
Products and shrink-wrap Services 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 them, and
reserve the right of rejection. 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. We may offset any amounts due you against
amounts due us, or any of our Related Companies as allowable under
applicable law.
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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IBM Business Partner Agreement IBM logo
Attachment For Services Marketing for Remarketers
- --------------------------------------------------------------------------------
THESE TERMS PREVAIL OVER AND ARE IN ADDITION TO OR MODIFY THE REMARKETER TERMS
ATTACHMENT.
THE FOLLOWING TERMS GOVERN YOUR MARKETING OF SERVICES THE END USER PURCHASES
FROM YOU (OR IF YOU ARE OUR DISTRIBUTOR, FROM YOUR REMARKETER), AND WHICH WE
PERFORM UNDER THE TERMS OF THE IBM AGREEMENT FOR SERVICES ACQUIRED FROM AN IBM
BUSINESS PARTNER (IBM SERVICE AGREEMENT). WE PROVIDE ADDITIONAL TERMS TO YOU, IF
ANY, IN SPECIFIC SERVICE ATTACHMENTS, OR TRANSACTION DOCUMENTS.
1. IBM SERVICES
Services may be either standard offerings or customized to the End
User's specific requirements. Each Service transaction may include one
or more Services that:
1. expire at task completion or an agreed upon date;
2. automatically renew as another transaction with a specified contract
period. Renewals will continue until the Service is terminated; or
3. do not expire and are available for use until either of us
terminates the Service, or we withdraw the Service.
If we make a change to the terms of a renewable Service that affects
the End User's current Service Agreement contract period and the End
User considers it unfavorable and you advise us in writing, we will
defer the change until the end of that contract period.
2. PRICES AND PAYMENT
The amount payable for a Service will be based on one or more of the
following types of charges:
1. recurring (for example, a periodic charge for support Services).
2. time and materials (for example, charges for hourly Services); or
3. fixed price (for example, a specific amount agreed to between us for
a custom Service).
Services we make available to you on a recurring-charge basis are made
available for the period indicated in our invoice, statement of work,
or other transaction document, as applicable. You may market such
Services only on a recurring charge basis.
We may increase recurring charges for Services, as well as hourly or
daily rates and minimums for Services we perform under the IBM Service
Agreement, by giving you three month's written notice. An increase
applies on the first day of the applicable invoice or charging period,
on or after the effective date we specify in the notice;
We may increase one time charges 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 within three months of our receipt of your order.
Charges for Services are billed as we specify, which may be 1) in
advance, 2) periodically during the performance of the Service, or 3)
after the Service is completed.
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Prepaid Services must be used within the applicable contract period. If
we withdraw a Service for which you prepaid, and we have not fully
provided such Service, we will give a prorated refund. Unless we
specify otherwise, we do not give credits or refunds for unused prepaid
Services.
If an End User is eligible for a credit under the terms of the IBM
Service Agreement (for example, a satisfaction guarantee credit, or a
credit for withdrawn Services not fulfilled), you agree to ensure the
applicable prorated credit is issued to the End User. We will issue the
appropriate credit to you. If you are our Distributor, you agree to
issue the applicable credit to your Remarketer.
ADDITIONAL CHARGES
We specify in the IBM Service Agreement additional charges that apply
under specific conditions. When applicable, such charges apply to you.
Depending on the particular Service or circumstance, if other charges
apply we will inform you in advance.
3. NOTICES
Each of us agrees to give the other a copy of notices or requests
received from or sent to an End User applicable to the IBM Service
Agreement.
You agree to ensure certain Services Attachments and transaction
documents, if any, are made available to End Users for their signature,
if required. Such documents may have terms in addition to those we
specify in the IBM Service Agreement.
4. SERVICES REQUIREMENTS CHANGES
During the Service period you may update the requirements, including
adding Products to be covered by the Service, as well as increasing the
Service requirements. We will adjust our invoicing to you accordingly.
5. TERMINATION OF SERVICES
If either IBM or the End User does not meet its obligations concerning
a Service, the other party may terminate the Service. We will inform
you of any such termination.
For a Service the End User terminates, you agree to ensure we are
provided one month's written notice from the End User. For a Service
you decide to terminate, you agree to provide one month's written
notice to us and the End User.
When an expiring or renewable Service transaction is terminated, such
termination will result in an adjustment charge equal to the lesser of:
1. the charges remaining to complete the contract period; or
2. one of the following if specified in the transaction document -
a. the charges remaining to complete the contract period
multiplied by the adjustment factor specified; or'
b. the amount specified.
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You also agree to pay us for all Services we provide and any Material
we deliver through Service termination and any charges we incur in
terminating subcontracts.
Adjustment charges do not apply if you terminate:
1. a non-expiring Service on one month's written notice provided the
End User has met all minimum requirements specified in the
applicable Attachments and transaction documents, if any,
2. a renewable Service or a non-expiring maintenance Service on written
notice, provided the End User has met the minimum requirements
specified in the applicable Attachments and transaction documents,
if any, and any of the following circumstances occur:
a. the eligible Product for which the Service is provided is
permanently removed from productive use within the End
User's enterprise;
b. an increase in the Service charges, either alone or in
combination with prior increases over the previous twelve
months, is more than the maximum specified in the applicable
transaction document. If no maximum is specified, then the
circumstance does not apply;
c. the eligible location, for which the Service is provided, is
no longer controlled by the End User (for example, because
of sale or closing of the facility), or
d. the machine has been under maintenance Services for at least
six months and you ensure, for a Service the End User
terminates, we have been provided one month's written notice
by the End User prior to terminating the maintenance
Service. For such Service which you decide to terminate, you
agree to provide one month's written notice to us.
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