Exhibit 10.44
IBM BUSINESS PARTNER AGREEMENT
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR
REMARKETING
- --------------------------------------------------------------------------------
THESE TERMS OF THIS ATTACHMENT PREVAIL OVER THE DOCUMENTS REFERRED TO BELOW.
MODIFICATIONS TO THE OTHER DOCUMENTS APPLY ONLY IN YOUR ROLE AS A SOLUTION
PROVIDER - REMARKETER OF IBM GLOBAL SERVICES' NETWORK SERVICES.
1. DEFINITIONS
THE FOLLOWING TERMS MODIFY THE "DEFINITIONS" SECTION OF THE GENERAL TERMS:
CUSTOMER is a party to whom you remarket Eligible Services and provide User
Identifications. A Customer may not remarket an Eligible Service. A
Customer may authorize End Users to access and use an Eligible Service for
the Customer's business purposes only.
END USER is any party accessing an Eligible Service, including programs,
data, or equipment within an Eligible Service, using User Identifications
obtained from a Customer or any other authorization means the Customer
controls. An End User may not remarket or authorize
other parties to access an Eligible Service.
Except for this Attachment, all occurrences of the term "End User" are
replaced by the term "Customer."
ELIGIBLE SERVICE is a Service that we approve you to remarket.
- --------------------------------------------------------------------------------
Each of us agrees that the complete agreement between us about this transaction
consists of 1) this Attachment and 2) the IBM International Customer Agreement
(or any equivalent agreement signed by both of us).
Agreed to: Agreed to:
QUICKRESPONSE SERVICES INTERNATIONAL BUSINESS MACHINES CORPORATION
By /s/ Lynn Hazlett By: /s/ Al Giffin January 15, 1998
------------------------------ ------------------------------------------
Authorized Signature Authorized Signature
Name (type or print):LYNN HAZLETT Name (type or print): AL GIFFIN
Date: 12/31/97 Date: 12/31/97
Agreement Number
Customer Lead Company address: IBM LEAD COMPANY ADDRESS:
QUICKRESPONSE SERVICES IBM CORPORATION
1400 MARINA WAY SOUTH 3405 DR. MARTIN LUTHER KING JR. BLVD.
RICHMOND, CA 94804 TAMPA, FL 33607
ATTENTION: ORDER SUPPORT SERVICES
- ------------------------------------------------------------------------------
AFTER SIGNING, PLEASE RETURN A COPY OF THIS AGREEMENT TO THE "IBM LEAD COMPANY
ADDRESS" SHOWN ABOVE.
- ------------------------------------------------------------------------------
Page 1 of 20
CUSTOMER PREMISES EQUIPMENT (CPE) is equipment, its features, conversions,
upgrades, elements, accessories, licensed internal code, software, or any
combination of them that we locate and install on your, your Customer's, or
an End User's premises for the purpose of providing a Service. The term
Customer Premises Equipment does not include Machines sold or leased to you
by IBM.
SERVICE START DATE of an Eligible Service is the date the Eligible Service
is made available to you or your Customer.
USER IDENTIFICATION is a code or codes, such as a user ID or password,
which enables approval or access to programs, data, or equipment through a
Service.
2. OUR RELATIONSHIP
THE FOLLOWING TERMS MODIFY THE SUBSECTION ENTITLED "RESPONSIBILITIES" OF
THE "OUR RELATIONSHIP" SECTION OF THE GENERAL TERMS:
14. each of us will comply with the highest ethical principles in
performing under this Agreement. Neither of us will offer or make payments
or gifts (monetary or otherwise) to anyone for the purpose of wrongfully
influencing decisions in favor of the other party, directly or indirectly.
Either of us may terminate this Agreement immediately in case of 1) a
breach of this clause or 2) when either of us reasonably believes such a
breach has occurred.
THE FOLLOWING TERMS MODIFY THE SUBSECTION ENTITLED "OTHER RESPONSIBILITIES"
OF THE "OUR RELATIONSHIP" SECTION OF THE GENERAL TERMS:
You agree:
1. to pay charges for all Eligible Services usage incurred by any means
by you directly or through resale;
2. to be responsible for charges and damages resulting from use of User
Identifications under your control;
3. to 1) comply, 2) require your Customers to comply and 3) require your
Customers to have their End Users comply, with all laws, regulations,
and conventions, including, but not limited to, those related to data
privacy, international communications, consumer transactions, and
exportation and importation of technical or personal data applicable
to the use of Eligible Services under this Agreement;
4. to inform your Customers, and have your Customers inform their End
Users, that each, as applicable, is responsible for obtaining all
necessary governmental, regulatory, or statutory approvals for their
use of the Eligible Services, and to obtain any required permission if
they use an Eligible Service to copy, download, display, distribute,
or execute programs or perform other works;
5. never to conduct any illegal activity using the Eligible Services, or
engage in other disruptive activities, including, but not limited to,
spamming, flaming, or unauthorized entry into computer systems. We
may immediately suspend access or terminate an Eligible Service for
failure to abide by this requirement;
6. that you, and to inform your Customers that they, are responsible for
data, programs, or other material provided by either of you for use
with an Eligible Service, and for ensuring that --
a. your use, and informing your Customers that their use, of an
Eligible Service to provide data, programs, or other material
does not result in our violating anyone's rights, and
b. the disclosure or use of the data, programs or other material
through the Eligible Service does not breach any contractual
relationship;
Page 2 of 20
7. before your Customers' End Users access an Eligible Service, to
require your Customers to inform the End Users, in writing, of the
applicable terms of this Agreement (for example, the Eligible Services
warranty) and that we have no liability to such End Users;
8. to inform your Customers, and require them to inform their End Users,
that we are not responsible for the content of the information and
data that either of them transmit using our Eligible Services;
9. to provide required marketing and support activities to your Customers
and their End Users, including installation and application assistance
and technical support. We provide marketing and technical support to
you (and not to your Customers or their End Users);
10. to report, or have your Customers report promptly to us, all suspected
and actual problems with Eligible Services;
11. to assist us in tracing and locating Equipment;
12. to keep records of your Customers and the Eligible Services they use,
including, as applicable, identification of the Eligible Service
provided, the date of your Customer's initial access to an Eligible
Service, and the Customer's name and address;
13. to require your Customers to keep a record of End Users outside the
Customer's Enterprise including the name and address of the End User,
the date of initial Eligible Service access by the End User, and the
Eligible Service provided by location of each Eligible Service
transaction, including sales, credits, and warranty claims, for five
years;
14. to make reasonable efforts to conduct business activities with us
(including order entry) using our automated electronic system, if
available;
15. to arrange for your marketing and support personnel to attend training
courses we provide within one year of the commencement date of this
Agreement or within the first year that you assign additional
personnel to perform a particular function. We will inform you of the
courses we provide. We provide required education courses to you on a
tuition-free basis; however, you are responsible for travel expenses,
lodging and meals, and expenses for educational materials not included
in the tuition fee;
16. to appoint a service administrator as your contact with us to resolve
network operational problems, order Eligible Services and authorize
others to do so; and
17. not to assign, or other 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. Notwithstanding the
foregoing, you may assign this Agreement, solely with respect to IBM
Global Services' Network Services, to Related Companies within your
Enterprise to the extent permitted by law. Otherwise, any attempt to
do so is void.
ITEM 9 IS DELETED.
THE FOLLOWING TERMS MODIFY THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF
THE SUBSECTION ENTITLED "OUR REVIEW OF YOUR COMPLIANCE WITH THIS AGREEMENT"
OF THE "OUR RELATIONSHIP" SECTION OF THE GENERAL TERMS:
You agree to provide us with relevant records on our reasonable advance
written request.
THE REMAINDER OF THE PARAGRAPH IS UNCHANGED.
3. CONFIDENTIAL INFORMATION
A NEW ITEM IS ADDED TO THE LIST IN ITEM F OF THE "CONFIDENTIAL INFORMATION"
SECTION OF THE GENERAL TERMS:
4) technical information.
Page 3 of 20
4. INTERNAL USE
THE FOLLOWING TERMS REPLACE THE "INTERNAL USE PRODUCTS" SECTION OF THE
GENERAL TERMS:
You may acquire any IBM Global Services' Network Services for your internal
use. We describe in writing how you may use such Services in advance of
your acquiring them. Your use of IBM Global Services' Network Services
will count toward your revenue attainment.
5. ORDERING AND DELIVERY
THE FOLLOWING TERMS REPLACE THE TERMS OF THE "ORDERING AND DELIVERY"
SECTION OF THE REMARKETER TERMS ATTACHMENT IN ITS ENTIRETY:
You may order Eligible Services from us as we specify in an Exhibit. We
accept your order either by communicating to you in writing, including
electronic communication (for example, sending you an order confirmation or
an invoice), or by providing the Eligible Service to you. You agree to
order Eligible Services in sufficient time for them to count toward your
minimum attainment objectives, if applicable.
Although we do not warrant installation and availability dates, we will use
reasonable efforts to meet your requested installation and availability
dates.
An order may not be modified within 10 business days of the Eligible
Service's estimated installation or availability date. We may not be able
to honor a request for cancellation if it is received less than 10 business
days before the Eligible Service's estimated installation date or Service
Start Date. If a cancellation charge applies, we will specify the
cancellation percentage in the Exhibit. We will advise you if the
cancellation charge applies to an order you cancel.
6. PRICE, INVOICING, PAYMENT AND TAXES
THE FOLLOWING TERMS REPLACE THE SUBSECTION ENTITLED "PRICE AND DISCOUNT"
AND THE SUBSECTION ENTITLED "PRICE AND DISCOUNT CHANGES" IN THE "PRICE,
INVOICING, PAYMENT AND TAXES" SECTION OF THE REMARKETER TERMS ATTACHMENT.
PRICE AND DISCOUNT
The amount payable for an Eligible Service will be based on one or more of
the following charges:
1. one-time (for example, Eligible Service installation charges);
2. recurring (for example, a periodic charge for Eligible Services);
3. usage (for example, network traffic charges).
Charges for Eligible Services are billed, as we specify in a transaction
document, in advance, periodically during the provision or performance of
the Eligible Service, or after the Eligible Service is completed.
We specify discountable and non-discountable charges, adjustment charges,
credits, and education and reporting requirements in a transaction
document.
For a discounted-charge Eligible Service, we will reduce your charges by
the applicable discount percent we specify in an Exhibit.
Page 4 of 20
PRICE AND DISCOUNT CHANGES
We will not increase the Eligible Service charges during the first year of
the contract period. Thereafter, we may increase Eligible Service charges
by giving you three months' written notice except for one-time charges
which we may increase 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 Eligible Service
available to you within three months after our receipt of your order.
Increases become effective on the first day of a month. If the effective
date as we specify in the notice is other than the first day of a month,
the increase applies on the first day of the following month.
When the cumulative effect of an increase in Eligible Service charges in
any one year of the contract period results in a change to our invoice to
you of more than six (unless we specify otherwise in writing) percent
(determined by recalculating your last invoice using the new charges), you
may terminate this Attachment by giving us written notice. We must receive
the notice before the effective date of the change.
For one-time charges, you receive the benefit of a price decrease when the
Service Start Date occurs on or after the effective date of the decrease.
For recurring charges and usage charges, you receive the benefit of a
decrease on the first day of the month following the effective date of the
decrease.
7. WARRANTY FOR ELIGIBLE SERVICES
The following terms replace the "Installation and Warranty" section of the
Remarketer Terms Attachment in its entirety:
For each Eligible Service, we warrant that we provide it:
1. using reasonable skill and care; and
2. according to its current description contained in a transaction
document.
We do not warrant uninterrupted or error free operation of an Eligible
Service. We will identify in a transaction document Eligible Services that
we do not warrant.
The warranty will be voided by misuse, accident, modification, unsuitable
physical or operating environment, improper maintenance by you, or failure
caused by a service or program for which we are not responsible.
You will afford us the opportunity to correct any deficiency in an Eligible
Service before being found in breach of our obligations under this
Agreement. You will permit us to take all reasonable and appropriate
measures to restore the Eligible Service to conform to its description. In
addition, we may, at our option, substitute for or add to Eligible Services
and take such other measures as may be necessary, in each case, to correct
an Eligible Service deficiency.
We are not responsible for the selection of, use of, and results obtained
from, Eligible Services by you, your Customers, or their End Users.
You are not authorized to make any warranty commitment, whether written or
oral, on our behalf.
Page 5 of 20
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
WE ARE NOT RESPONSIBLE FOR INVALID DESTINATIONS AND TRANSMISSION ERRORS IN,
CORRUPTION OF, OR THE SECURITY OF YOUR INFORMATION CARRIED OVER FACILITIES
OF THIRD PARTY PROVIDERS OF COMMUNICATION CIRCUITS AND ASSOCIATED
EQUIPMENT. WE DO NOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL PREVENT
THE LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO, YOUR INFORMATION.
Unless we specify otherwise, we provide non-IBM Eligible Services and
Programs WITHOUT WARRANTY OF ANY KIND. However, non-IBM manufacturers,
suppliers, or publishers may provide their own warranties to you. Warranty
terms for Programs are described in the Program's license terms. For
non-IBM Eligible Services and Programs we approve you to market, you agree
to inform your Customers in writing 1) that the Eligible Services and
Programs are non-IBM, 2) of the applicable manufacturer's or supplier's
warranty (if any), and 3) of the procedure to obtain warranty service.
You are responsible for all programs, data, or equipment you, your
Customers, or their End Users provide which you, your Customers, or their
End Users use to access the network.
8. ACCESS TO ELIGIBLE SERVICES
The following terms are in addition to the terms of the Remarketer Terms
Attachment:
We will provide User Identifications to you which enable access to Eligible
Services. You may authorize the Customer to use an Eligible Service by
providing a User Identification to that Customer. The Customer may in turn
provide to their End Users User Identifications for their use of the
Eligible Services. You are responsible for the control and distribution of
User Identifications to Customers. You will require your Customers to be
responsible for the control and distribution of User Identifications to End
Users. We have no responsibility for misuse of User Identifications we
provide to you.
You agree to notify us in writing of a newly authorized Customer and of the
User Identifications assigned to that Customer. You also agree to provide
us with all information we require to enable your Customers and their End
Users to access an Eligible Service (or to terminate such access).
We may withdraw access to an Eligible Service from you when, in our
reasonable, good faith opinion, you, your Customers, or their End Users
cause any part of an Eligible Service to malfunction or if there is a
failure to make changes which, in our reasonable judgment, are necessary to
correct malfunctions. We will restore the Eligible Service when the
problem has been corrected to our reasonable satisfaction.
No Customer or End User shall be a third party beneficiary under this
Agreement, nor shall any Customer or End User have any rights under this
Agreement. We shall not have any obligation or liability to any Customer
or End User.
Page 6 of 20
9. CUSTOMER PREMISES EQUIPMENT
THE FOLLOWING TERMS ARE IN ADDITION TO THE TERMS OF THE REMARKETER TERMS
ATTACHMENT.
We may provide Customer Premises Equipment to be installed on your, your
Customer's, or your Customer's End User's premises for the purpose of
providing an Eligible Service. The Customer Premises Equipment is, and
will remain, our or our lessor's asset and will not become your, your
Customers, nor your Customer's End User's fixture or realty.
Certain Customer Premises Equipment may contain licensed internal code. We
will identify this Customer Premises Equipment to you. Such Customer
Premises Equipment may be subject to additional terms we specify.
No right, title, or interest in or to the Customer Premises Equipment, or
licensed internal code associated with it, or any related planning
information, is passed. However, we will use such Customer Premises
Equipment to provide Eligible Services to you, your Customers, and their
End Users.
As appropriate, we will provide you physical planning information for the
Customer Premises Equipment. You will ensure that your Customers, and
require that your Customers ensure that their End Users, comply with that
information in order to provide an environment meeting our specifications.
OUR RESPONSIBILITIES
We agree to:
1. install at your, your Customers' or their End Users' sites (unless we
specify otherwise), the Customer Premises Equipment we provide;
2. maintain the Customer Premises Equipment; and
3. be responsible for all dismantling, return, removal, and shipping
charges for the Customer Premises Equipment.
YOUR RESPONSIBILITIES
You agree that you, your Customers, and that your Customers require their
End Users, as applicable, to:
1. be responsible for loss of or damage to the Customer Premises
Equipment to the extent caused by your, your employees', your agents',
your Customers' or their End Users' intentional acts or negligence;
2. provide us or our designee with all assistance reasonably necessary to
permit us access to applicable sites to perform inspection,
installation, preparation for return, or maintenance as is
appropriate;
3. provide, at no cost to us, adequate security to protect the Customer
Premises Equipment from theft, loss, damage, or misuse;
4. allow us to install mandatory engineering changes (such as those
required for safety) on Customer Premises Equipment;
5. return to us, or permit us or our designee to remove at our
discretion, the Customer Premises Equipment and physical planning
documentation at the expiration or termination of the Eligible
Service;
Page 7 of 20
6. not alter the Customer Premises Equipment and any licensed internal
code associated with it in any manner, not move it to other locations,
nor transfer it to anyone else without our prior written approval;
7. keep the Customer Premises Equipment free from all liens, charges, or
encumbrances; and
8. affix on the Customer Premises Equipment any reasonable marking or
label we require, as we specify.
Additionally, you agree that you or your Customers, as applicable, will
provide and pay for the physical space and electrical power for the
Customer Premises Equipment at applicable sites.
10. CUSTOMER TRANSMITTED DATA
The following terms are in addition to the terms of the Remarketer Terms
Attachment:
We maintain security procedures for your data while it is stored on or
transmitted over equipment and facilities we control. You are responsible
for management of your data stored on or transmitted over our network.
Such management includes, but is not limited to, backup and restoration of
data, erasing data from disk space you control, and your selection and use
of the security features and options that we provide as Eligible Services.
Apart from Eligible Services we provide, you are responsible for developing
and maintaining management and security procedures you deem appropriate,
such as application logon security and encryption of data, to protect your
information.
Solely for the purposes of network maintenance, we may need to view and
work with portions of the data you transmit over our network such as
address header information. You agree that we may use, copy, display,
store, transmit, translate, rearrange or reformat, view and distribute your
data domestically and internationally for such purposes. We agree not to
reverse assemble, reverse compile, or to disclose to third parties the
information that you transmit over our network while using the Eligible
Service (unless required by law, court order, an authorized government
entity, or as otherwise authorized by you).
Each of us agrees that access to ideas, concepts, know-how, and techniques
contained in data viewed or worked with during network maintenance pursuant
to the Agreement and retained in our employees' memories will not prohibit
or prevent either of us from developing or marketing any service or
product.
You will take appropriate measures to inform your Customers, and require
that they inform their End Users, of these provisions.
11. CHANGES TO AND TERMINATION OF ELIGIBLE SERVICES
THE FOLLOWING TERMS ARE IN ADDITION TO THE TERMS OF THE REMARKETER TERMS
ATTACHMENT.
We may, at our sole discretion and without liability to you, implement a
change to an Eligible Service or our network. However, we will give you
three months' written notice of a substantial change to an Eligible
Service's terms or description. We will give you one year's written notice
if we terminate an Eligible Service (or if we change this one year notice
period). However, if a third party claims, such claim having in our good
faith, reasonable judgment a substantial probability of success, that a
Product, Customer Premises Equipment, or application program that we
provide as part of an Eligible Service infringes a patent or copyright, we
reserve the right to terminate the Eligible Service effective immediately.
We will use reasonable efforts to replace the Eligible Service with one
that is at least functionally equivalent, or, if that is not reasonably
possible, give you a prorated credit for any charges you paid in advance
for the Eligible Service.
Page 8 of 20
We will give you three months' written notice if we change invoicing
procedures.
You agree to give us one month's written notice to terminate your use of,
or remarketing of, an Eligible Service. The termination will be effective
at that month's end.
12. GENERAL
THE FOLLOWING TERMS ARE IN ADDITION TO THE TERMS OF THE REMARKETER TERMS
ATTACHMENT.
Except for the right to use application programs that we authorize you,
your Customers or End Users to access through the Eligible Services, we
grant no other rights to those programs to you, your Customers or End
Users.
Our network is generally available 24 hours a day, seven days a week. We
reserve the right to schedule reasonable hours for maintenance or network
changes at our discretion.
13. ENDING THE AGREEMENT
THE FOLLOWING TERMS MODIFY THE "ENDING THE AGREEMENT" SECTION OF THE
REMARKETER TERMS ATTACHMENT:
The second and third paragraphs are replaced:
If either of us terminates for cause, the terminating party shall allow the
other a reasonable opportunity to cure. If the breaching party fails 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 30 days' written notice.
Examples of such breach by you are: if you do not maintain reasonable
customer satisfaction; if you do not materially 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.
THE FOLLOWING IS AN ADDITIONAL PARAGRAPH:
Both of us agree that in the event either of us decides to end this
Agreement for reasons other than material breach, we will mutually develop
a disengagement plan and a reasonable schedule, then implement the plan to
terminate our respective activities under this Agreement.
14. COUNTRY UNIQUE TERMS
ASIA PACIFIC
AUSTRALIA
Eligible Services and Products are provided by Advantra Pty. Ltd. in
Australia.
INDONESIA
Products and Eligible Services are provided by PT Sistelindo Mitralintas in
Indonesia.
The following modifies the definition of Enterprise in section 1 of the
General Terms.
Page 9 of 20
1. DEFINITIONS
"including the Service Provider Company's agent in Indonesia, PT Sistelindo
Mitralintas, a corporation established and domiciled in Jakarta,
Indonesia."
2. AGREEMENT STRUCTURE AND CONTRACT DURATION
Add the following:
All orders must be confirmed in writing.
REMARKETER TERMS ATTACHMENT
4. PRICE, INVOICING, PAYMENT AND TAXES
Add the following:
You may withdraw a Product from an order or terminate an Eligible Service
to which an increase applies by providing us with written notice within one
month of the date of our notice of increase.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
13. ENDING THE AGREEMENT
The following sentence is added:
A termination hereunder shall not require a court decree; we both waive in
this regard the provision in article 1266 of the Indonesian Civil Code,
2nd, 3rd and 4th paragraphs to the extent the article provision requires
such court decree for the termination of an agreement creating mutual
obligations.
9. CUSTOMER PREMISES EQUIPMENT
The first two paragraphs are replaced with the following:
We will, if applicable, provide CPE specified in the local Agreement
Transaction Document to be installed on your premises for the purpose of
providing a Service. The CPE is and will remain the asset of the Service
Provider Company or its lessor and will not become a fixture or realty.
Certain CPE may contain licensed internal code. We will specify this in
the local Agreement Transaction Document.
MALAYSIA
Services and Products are provided by IBM VADS SDN BHD in Malaysia.
The following terms modify sections 9 and 16 in the General Terms.
9. LIMITATION OF LIABILITY
Our liability for actual damages from any cause whatsoever will be limited
to the lesser of:
a) RM75,000 or
Page 10 of 20
b) the total amount invoiced for your use of the Eligible Service which
is the subject of the action during the previous twelve months before
the cause of action arose.
16. GOVERNING LAW
Any dispute arising in connection with this Agreement which cannot be
settled by negotiation between the parties or their representatives shall
be submitted to arbitration in accordance with the Rules for Arbitration of
the Kuala Lumpur Regional Arbitration Centre.
The following new section is added to the IBM Global Services' Network
Services Attachment for Remarketing following section 14.
15. LICENSE
The Eligible Services are made available in accordance with the terms of
the license for Value Added Network Services granted by the government of
Malaysia in 1991. In the event that such license or any successor thereof
or VADS SDN BHD's registration thereunder is revoked, terminated or
amended, VADS SDN BHD's shall, notwithstanding any other terms, have the
right to terminate this Agreement or amend it accordingly on three months'
notice.
SINGAPORE
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
1. DEFINITIONS
The following sentence is added to the definition of "End User:"
"The Eligible Services are provided solely for your own use and are not to
be provided by you to others. We reserve the right to withdraw access to
the Services should you be found to be in breach of this condition."
4. CHARGES AND PAYMENT
The following terms are added:
Usage charges are payable up-front if a) they are for the minimum usage
specified, and b) you buy units at up-front prices.
"If we have agreed not to change specified charges to you over a specified
period (period type charges), changes to those charges will not apply to
you until expiration of the protection period.
The following terms modify section 9 in the GENERAL TERMS.
9. LIABILITY
The following paragraph replaces item 3 in the first paragraph.
"Our liability for actual damages to you, from any cause whatsoever, will
be limited to the greater of S$100,000 or the total amount invoiced for
your use of the Eligible Service which is the subject of the action during
the previous twelve months before the cause of action arose. This
limitation will apply regardless of the form of action, whether in contract
or in tort including negligence. This limitation will not apply to
payments referred to in Section 8 Patents and Copyrights, and to claims for
bodily injury or damage to real property for which we are legally liable."
Page 11 of 20
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
9. CUSTOMER PREMISES EQUIPMENT
The term "CPE" in this section does not apply to equipment purchased by you
where the asset title passes to you.
SOUTH KOREA
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
9. CUSTOMER PREMISES EQUIPMENT
The following is added at the end of this section:
"Each of us will use only communication equipment of the type approved by
the Ministry of Communication."
TAIWAN
Eligible Services and Products are provided by Global Communications
Network (GCN Taiwan) in Taiwan.
THAILAND
Services are provided by Thai GlobalNet Services Company Ltd. in Thailand.
Some Services are provided by the Communication Authority of Thailand.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
6. PRICE, INVOICING, PAYMENT AND TAXES
Price and Discount Changes
The following is added at the end of this subsection:
However, in the event that the Communication Authority of Thailand imposes
an order without notice requiring immediate implementation, we will give
you as much notice as is reasonably possible, but such notice may be only
one month in advance of the changes. We will identify to you in writing
changes resulting from orders from the Communication Authority of Thailand.
GENERAL TERMS
11. CHANGES TO THE AGREEMENT TERMS
The following is added at the end of the first paragraph:
However, in the event that the Communication Authority of Thailand imposes
an order without notice requiring immediate implementation, we will give
you as much notice as is reasonably possible, but such notice may be only
one month in advance of the changes. We will identify to you in writing
changes resulting from orders from the Communication Authority of Thailand.
Page 12 of 20
REMARKETER TERMS ATTACHMENT
15. ENDING THE AGREEMENT
The following is added to the first paragraph:
When you pay for Eligible Services in advance, you agree to provide written
notice of termination to us not less than 30 days prior to the end of the
payment period specified in the applicable Transaction Document.
Notwithstanding the foregoing, in the event that the agreement between Thai
GlobalNet Services Company and the Communication Authority of Thailand is
terminated, we will give you six months' written notice of termination. We
will give you 90 days' notice of termination in the event that a
communication regulation is changed or repealed allowing unrestricted
operation of telecommunication services without requiring the Communication
Authority of Thailand's approval.
Add the following at the end of the section:
We will consider you to be in default of this Agreement and we may
terminate this Agreement in Thailand in the event that:
a) you conduct any transaction which results in cessation of your
business, if you suspend your business operations, or dispose of your
assets to any third party except for normal business operations; or
b) a receiver is appointed for your business undertaking or if you file
any claims for bankruptcy or make any special arrangement or composition
with your creditors.
If we terminate this Agreement for any of the reasons in this paragraph,
charges you have prepaid for Eligible Services are not refundable.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
2. OUR RELATIONSHIP
The following is added to the end of item 3:
"including, but not limited to, obtaining any required licenses,
permission, or approval of applicable organizations or government entities
for connecting equipment you provide to the network, or interconnecting
your private network with the IBM Global Network."
The following is added to item 6:
You will, at your own expense, install and maintain the equipment in good
working order at all times. We shall not be responsible for any breakage,
loss, damage to or operational failure of your equipment. If your
equipment must be connected to other equipment to use Eligible Services and
such equipment is under the responsibility of another commercial
organization or governmental organization, you will directly contact and
obtain any license, permission and approval for such connection as required
by such commercial organization or governmental organization. You are
responsible for any expenses associated with obtaining such permission and
approval. We are not responsible for inconvenience or damages resulting
from Eligible Service interruption caused directly or indirectly by your
equipment or equipment or networks provided by third parties not affiliated
with the IBM Global Network.
The following items are added after item 17:
Page 13 of 20
18. to use the Eligible Services only for your normal business operations;
19. not to use the Eligible Services in any manner which may compete with
or cause a conflict of interest with us or the Communication Authority of
Thailand or cause any damage, whether directly or indirectly, to us or to
the Communication Authority of Thailand;
12. not to receive or transmit any message, data, or code that violates
the Telephone and Telegraph Act of B.E. 2477 or use the Services in any
manner which may, directly or indirectly, cause any harm to society,
security or public order or good morals of the country or against the
Cabinet's resolutions or the Communication Authority of Thailand's
policies, rules, regulations and notifications; and
13. to comply with Thailand rules of Eligible Service utilization.
- --------------------------------------------------------------------------------
EUROPE, MIDDLE EAST, AFRICA (EMEA)
CENTRAL EUROPE AND RUSSIA (CER)
In addition to the above terms for EMEA countries, the following terms
apply to all CER countries (Albania, Armenia, Blearus, Bosnia/Herzegovina,
Bulgaria, Croatia, Czech Republic, Georgia, Hungary, Kazakhstan, Kirghizia,
Macedonia, Moldova, Poland, Romania, Russia, Serbia/Montenegro, Slovak
Republic, Slovenia, Ukraine).
Some Eligible Services are provided by the national PTT in CER countries.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
2. OUR RELATIONSHIP
Additional responsibilities are added as follows:
18. to procure communication lines from the national PTT prior to the
Start Date of an Eligible Service and to maintain the communication lines
for the duration of this Agreement. Any communication equipment you
provide must comply with specifications provided by the IBM Computing
Center;
19. to be responsible for the attachment and operation of communication
equipment you provide. IBM's responsibility ends at the applicable
interface to the IBM CPE. IBM is not responsible for maintenance and
operation of the national PTT communication lines including those within
the IBM computing center network.
FRANCE
Eligible Services and Products are provided by Axone in France.
ITALY
In Italy, Eligible Services and Products will be provided by IN.TE.S.A.
S.p.A. (hereinafter called INTESA), according to the terms of this
Agreement. The following additional terms integrate and replace the terms
stated in the Agreement. In the event of any conflict between the clauses
of the Agreement and those of such additional clauses, the latter shall
prevail.
Page 14 of 20
REMARKETER TERMS ATTACHMENT
4. PRICE, INVOICING, PAYMENT AND TAXES
The following terms are added:
"The applicable charges for each Service, fixed by INTESA for INTESA's
customers, are indicated in Transaction Documents. For one-time charges,
the relevant amount will be invoiced in the month of the start date of the
Service. For periodic charges, the relevant amount will be invoiced in
advance with reference to the related period."
"The first invoice will be issued by INTESA in the month of the Start Date
of the Service. Payment shall be made cash within 30 days from the end of
the month of the invoice. If the order specifies that payment shall be
made cash via Factor, INTESA will be free to assign its credits to the
Factor specified in the Transaction Document. Without prejudice to the
provisions on cash payment via Factor, all payments shall be made to INTESA
at 125, via Servais, Turin, ITALY, which remains the place of receipt of
customer's payments, also in the event that payment of all or part of the
charges due has been otherwise agreed in writing, or, however, made by
means of delivery of promissory notes or banking receipts.
You may withdraw a Product from an order or terminate a Service to which an
increase applies by providing us with written notice within one month of
the date of our notice of increase.
The following terms modify section 16 in the General Terms.
16. GOVERNING LAW
These additional provisions shall be governed by the laws of Italy and the
competent court will be Turin in Italy. The Attachment for Italian
Burdensome Clauses (Clausole Onerose) must be signed prior to doing
business in Italy, whenever Services or Products will be obtained in Italy.
The Attachment must be signed whether Italy is the country where the
Business Partner Lead Company and Service Provider Lead Company are located
or when business will be transacted by other Business Partner Companies and
Service Provider Companies.
Page 15 of 20
BUSINESS PARTNER AGREEMENT [COMPANY FIGURE]
ATTACHMENT FOR ITALIAN BURDENSOME CLAUSES (CLAUSOLE ONEROSE)
PURSUANT TO ARTICLES 1341 AND 1342 OF THE ITALIAN LAW - CIVIL CODE, YOU MUST
SPECIFICALLY ACCEPT THE CLAUSES LISTED IN THIS ATTACHMENT (CALLED "CLAUSOLE
ONEROSE") BY SIGNING THIS ATTACHMENT. THE BUSINESS PARTNER AGREEMENT IS VOID IN
ITALY IN THE ABSENCE OF YOUR SIGNATURE ON THIS ATTACHMENT.
You hereby specifically accept the following clauses in the General Terms (GT),
Remarketer Terms Attachment (RT), and IBM Global Services' Network Services
Attachment for Remarketing (NS).
2. Agreement Structure (GT)
8. Access to EligibleServices (NS)
11. Changes to the Agreement Terms (GT, NS)
8. Patents and Copyrights (GT)
9. Liability (GT)
15. Ending the Agreement (GT)
13. Ending the Agreement (NS)
16. Governing Law (GT)
1. Our Relationship (RT)
2. Our Relationship (NS)
7. Warranty for Eligible Services (NS)
9. Customer Premises Equipment (NS)
10. Customer Transmitted Data (NS)
You specifically accept the Italian country unique terms in section 14 (NS).
If any of the clauses mentioned above have been amended by a written document
signed by both of us, by signing this Attachment you are specifically accepting
the amended terms.
- --------------------------------------------------------------------------------
Each of us agrees that the complete agreement between us about this transaction
consists of 1) this Attachment, 2) any other Transaction Documents, and 3) the
Business Partner Agreement (or any equivalent agreement signed by both of us).
Agreed to: (Business Partner Lead Company name)
By /s/ Al Giffin
------------------------------
Authorized Signature
Name (type or print): AL GIFFIN
Date: JANUARY 15, 1998
Business Partner Lead Company number: Agreement number:
Business Partner Lead Company address: Service Provider Lead Company
Name and Address:
- -------------------------------------------------------------------------------
After signing, please return a copy of this Agreement to the "Service Provider
Lead Company address" shown above.
- -------------------------------------------------------------------------------
Page 16 of 20
PAKISTAN
GENERAL TERMS
2. AGREEMENT STRUCTURE
The following paragraph is added:
Service Supplements and Schedule of Charges are unseparable parts of this
Agreement. The charges and payment schedule is defined in the Schedule of
Charges; the Eligible Services that we will provide you under this
Agreement are defined in the Service Supplement.
Any reproduction of this Agreement, an Attachment, or a Transaction
Document, must be attested by a Court of Law, to be considered an original.
6. PRICE, INVOICING, PAYMENT AND TAXES
The following is added:
We will give you three months' written notice if we increase Eligible
Service charges or revise our prices due to an act of Government or change
invoicing procedures, or when a planned change would substantially alter a
Eligible Service from its current description. We will give you 12 months'
notice if we terminate a Eligible Service (or if we change this 12-month
notice period). However, if a third party claims that a Product we provide
as part of a Service infringes a patent or copyright, we reserve the right
to terminate the Eligible Service effective immediately.
9. LIABILITY
Item 3 in the first paragraph is modified to read:
3. the amount of any other actual loss or damage, up to the greater of
this Agreement amount or the charges (if recurring or usage, 12 months'
charges apply) for the Services or Product that is the subject of the
claim.
IBM GLOBAL SERVICES' NETWORK SERVICES TERMS ATTACHMENT
8. ACCESS TO ELIGIBLE SERVICES
The following is added:
We assume no responsibility for not providing Services due to reasons
arising from Pakistan's PTT or a private network operator's ability to
provide data and/or communications lines.
2. OUR RELATIONSHIP
Add a new item 18:
18. obtain, install, and maintain suitable equipment, including
communication lines, as necessary to access the Services.
NETHERLANDS
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
Page 17 of 20
8. CUSTOMER PREMISES EQUIPMENT
The first two paragraphs are replaced with the following:
We will, if applicable, provide CPE specified in the local Agreement
Transaction Document to be installed on your premises for the purpose of
providing a Service. The CPE is and will remain the asset of the Service
Provider Company or its lessor and will not become a fixture or realty.
Certain CPE may contain licensed internal code. We will specify this in
the local Agreement Transaction Document.
NORWAY
Eligible Services and Products are provided by Norsk Informasjonsteknologi
AS (NIT AS) in Norway.
PORTUGAL
Eligible Services and products are provided by COMPENSA in Portugal.
TURKIYE
GENERAL TERMS
6. PRICING, INVOICING, PAYMENT AND TAXES
The following paragraph is added:
IBM will specify charges for each Service in the Schedule of Charges.
These charges do not include applicable taxes. These taxes will be
specified separately in IBM's invoice. The invoice for the Service will be
issued at the first working day of the beginning of the Eligible Service.
The amount of the invoice is based on the sales exchange rate of US dollars
published by the Central Bank of Turkiye on the issue date of the invoice.
Upon the receipt of the IBM's invoice, you will make the payment within
fifteen days following the issue date of the invoice. IBM will debit
interest rate of 8% per months if the payment is not made within this
specified period. The accommodation and travel expenses incurred outside
of Istanbul will be invoiced separately.
The following is added as a new section 17.
17. NOTIFICATION ADDRESS
Each of us accept the addresses stated in "Schedule A" as their
notification addresses. All notifications made to these addresses will be
valid unless any change in the addresses are notified to the other party in
writing.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
2. OUR RELATIONSHIP
The following items are added as items 18 and 19:
18. IBM assumes no responsibility for Turkish PTT's and/or Turk Telekom
A.S.'s inability to provide data and/or communications lines in a timely
manner and/or interruptions in the Eligible Service caused by Turkish PTT
and/or Turk Telekom A.S. after the communication lines are provided;
Page 18 of 20
and
19. IBM assumes no responsibility for not providing the Eligible Services
due to reasons arising from non-IBM hardware and software products.
UKRAINE
Eligible Services and Products are provided by M.C.I. Ltd. (hereinafter
called M.C.I.) in Ukraine.
Eligible Services in the territory of Ukraine are provided under license
issued to M.C.I. by Ministry of Communication of Ukraine and governed by
Ukrainian "Law of Communication." In the event that such license is
revoked, terminated or amended, M.C.I. shall, notwithstanding any other
terms, have the right to terminate this Agreement or amend it accordingly
on three months' written notice.
IBM GLOBAL SERVICES NETWORK SERVICES' ATTACHMENT FOR REMARKETING
2. OUR RELATIONSHIP
Additional responsibilities are added as follows:
18. to procure communication lines from the Ukrainian PTT prior to the
Service Start Date and to maintain the communication lines for the duration
of this Agreement if applicable. Any equipment you provide must comply
with specifications provided by M.C.I.;
19. to be responsible for the attachment and operation of communication
equipment you provide. M.C.I. responsibilities end at the applicable
interface to M.C.I. equipment. M.C.I. is not responsible for maintenance
and operation of the Ukrainian PTT lines including those within the M.C.I.
computing center network.
- --------------------------------------------------------------------------------
LATIN AMERICA
BRASIL
Eligible Services and Products will be provided by GSI in Brasil.
GENERAL TERMS
3. OUR RELATIONSHIP
The following sentence is added to item 6, Other Responsibilities:
Electronic information will be used only for the purpose of communication
between parties.
Item 10 is modified to read:
10. neither of us is responsible for failure to fulfill its obligations
due to causes beyond its control except for what is covered under Article
27 of Law Number 8.078/90.
6. PRICING, INVOICING, PAYMENT AND TAXES
The following sentence is added:
Page 19 of 20
Price increases and/or readjustment will be subject to Brazilian
legislation and will be specified in Transaction Documents.
IBM GLOBAL SERVICES' NETWORK SERVICES ATTACHMENT FOR REMARKETING
9. CUSTOMER PREMISES EQUIPMENT
All Equipment provided in Brazil will be subject to Brazilian legislation,
and will have terms and conditions specified in Transaction Documents.
CHILE
Eligible Services and Products are provided by ISSC Chile in Chile.
DOMINICAN REPUBLIC
Eligible Services and Products are provided by GBM de Republica Dominicana
S.A. in the Dominican Republic.
EL SALVADOR
Eligible Services and Products are provided by GBM de El Salvador in El
Salvador.
GUATEMALA
Eligible Services and Products are provided by GBM de Guatemala in
Guatemala.
MEXICO
Eligible Services and Products are provided by IBM Servicos Corporativos de
Informacion (ISCI) in Mexico.
PANAMA
Eligible Services and Products are provided by GBM de Panama S.A. in
Panama.
- --------------------------------------------------------------------------------
NORTH AMERICA
CANADA AND CARIBBEAN NORTH DISTRICT
The Caribbean North District is comprised of the following countries:
Anguilla, Antigua, Aruba, Bahamas, Barbados, Barbuda, Bermuda, Cayman
Islands, Dominica, Grenada, Guyana, Jamaica, Montserrat, Netherlands
Antilles, St. Kitts and Nevis, St. Lucia, St. Maarten, St. Vincent and
Grenadines, Suriname, Tortolla, Trinidad and Tobago, and Turks and Caicos.
Services and Products are provided by Bermuda Computer Services Limited in
Bermuda.
Page 20 of 20
IBM BUSINESS PARTNER AGREEMENT [LOGO]
INTERNATIONAL SOLUTION PROVIDER PROFILE
- --------------------------------------------------------------------------------
We welcome you as an IBM Business Partner-Solution Provider.
This Profile covers the details of your approval to actively market Eligible
Services. As our Solution Provider, you enhance Eligible Services with your
solution to provide Services capable of satisfying the Customer's requirements.
By signing below, each of us agrees to the terms of the following (collectively
called the "Agreement"):
(a) this Profile;
(b) General Terms (Z125-5478-00 11/96);
(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 provided to you.
After signing this Profile, please return 2 copy to the IBM address shown below.
Agreed to: Agreed to:
QUICKRESPONSE SERVICES, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
By: /s/ Shawn M. O'Connor By: /s/ Al Giffin
------------------------------ -----------------------------
Authorized Signature
Name (type or print) SHAWN O'CONNOR Name (type or print): AL GIFFIN
Date: 12/31/97 Date: 12/31/97
Agreement number:
IBM Business Partner no:
Business Partner Address IBM Address:
QuickResponse Services IBM Corporation
1400 Marina Way South 3405 Dr. Martin Luther King Jr. Blvd.
Richmond, CA 94804 Tampa, FL 33607
Attention: Order Support Services
Page 1 of 4
DETAILS OF OUR AGREEMENT
CONTRACT START DATE: January 1, 1998 DURATION: 3 years
This Agreement shall commence on January 1, 1998, and terminate on 31 December
2000.
The effective date of this Agreement and all modifications to this Agreement are
effective on the first day of the month after signature by you and acceptance by
IBM.
Should each of us decide to continue our relationship for an additional term
upon expiration of the term of this Agreement, this Agreement shall remain in
effect until terminated by both parties or replaced by a new Agreement.
RELATIONSHIP APPROVAL/ACCEPTANCE OF ADDITIONAL TERMS:
EACH OF US AGREES TO THE TERMS OF THE FOLLOWING BY SIGNING THIS PROFILE. COPIES
OF THE ATTACHMENTS ARE INCLUDED.
APPROVED RELATIONSHIP ATTACHMENT REFERENCE
Solution Provider Attachment Z125-5480-00 11/96
Remarketer Terms Attachment Z125-5497-00 11/96
IBM Global Services' Network
Services Terms Z125-5xxx-00 12/97 (QRS)
Attachment for Remarketing
International Attachment
for Solution Provider - 7 January 1998
Remarketer
You are approved to remarket Eligible Services to Customers, in the Retail
Industry and those organizations in the supply chain that provide finished goods
and services, directly and indirectly, and those organizations that distribute
those goods and services. The table in the Exhibit lists standard industry
codes ("SIC") and retail industry definitions.
ELIGIBLE SERVICES APPROVAL:
You are approved to market under Remarketer Terms Eligible Services in the
following IBM Global Services offering categories from the Network Services
business segment. The terms of the Exhibit apply to the Eligible Services
listed in it. In addition, you are authorized to market any other Eligible
Services listed in the Exhibit. Not all Eligible Services in each offering
category are available in all countries.
* Managed Data Network Services
* Managed Messaging and Collaborative Services
* Managed Electronic Transaction Services
* Managed Internet and Intranet Services
MINIMUM REVENUE COMMITMENT
The minimum gross revenue commitment for the Agreement term is $ 250,000,000.00
as follows:
Minimum attainment by end of: Gross Revenue Amount
---------------------------- --------------------
12 months $60,000,000.00
24 months $140,000,000.00
Agreement term $250,000,000.00
ADJUSTMENT CHARGES
In the event you have not met your $250,000,000 minimum revenue commitment by
the end of the Agreement period, you agree to pay an adjustment charge as
follows:
Page 2 of 4
ACTUAL GROSS REVENUE TO IBM ADJUSTMENT CHARGE
$250,000,000.00 - $225,000,000.00 1.5% of amount less than $250,000,000.00
$224,999,999.00 - $200,000,000.00 $450,000.00 + 2.0% of amount less than $225,000,000.00
$199,999,999.00 - $150,000,000.00 $950,000.00 + 3.0% of amount less than $200,000,000.00
$149,999,999.00 - $100,000,000.00 $2,450,000.00 + 4.0% of amount less than $150,000,000.00
$99,999,999.00 - $0.00 $4,450,000.00 + 5.0% of amount less than $100,000,000.00
In the event you terminate this Agreement and you have not met your minimum
revenue commitment, the adjustment charges shall become due and payable. In the
event IBM terminates this Agreement with cause, you will be required to pay the
adjustment charges. In the event IBM terminates this Agreement without cause,
you will not be required to pay the adjustment charges.
VALUE-ADDED ENHANCEMENT DESCRIPTIONS
You will provide the following value-added enhancements and support services
with Eligible Services:
1. Catalog Services;
2. Inventory Management Services;
3. Network Services;
4. Logistics Management Services; and
5. Professional Services.
PARTICIPATING BUSINESS PARTNER COMPANIES AND IBM COMPANIES
- --------------------------------------------------------------------------------
COUNTRY BUSINESS PARTNER COMPANY IBM COMPANY
NAME AND ADDRESS NAME AND ADDRESS
- --------------------------------------------------------------------------------
Argentina QuickResponse Services IBM Argentina S.A.
1400 Marina Way South Ing. Enrique Butty 275
Richmond, CA 94804 USA 1300 Buenos Aires
- --------------------------------------------------------------------------------
Australia QuickResponse Services Advantra Pty. Ltd.
1400 Marina Way South Darling Park
Richmond, CA 94804 USA 201 Sussex Street
Sydney NSW 2000
- --------------------------------------------------------------------------------
Austria QuickResponse Services IBM Oesterreich GESMBH
1400 Marina Way South Obere Donaustrasse 95
Richmond, CA 94804 USA A-1020 Vienna
- --------------------------------------------------------------------------------
Belgium QuickResponse Services IBM IN Belgium
1400 Marina Way South Sq. Victoria Regina 1
Richmond, CA 94804 USA 1210 Bruxelles
- --------------------------------------------------------------------------------
Brazil QuickResponse Services GSI Brasil
1400 Marina Way South Rua Totoia, 1157
Richmond, CA 94804 USA 10 Andar CEP 04707-900
- --------------------------------------------------------------------------------
Canada QRS Canada Inc. IBM Canada
674 Aspen Road 3500 Avenue East
Pickering, Ontario L1V 3Z1 Business/Financial Services
Markham, Ontario
- --------------------------------------------------------------------------------
Denmark QuickResponse Services IBM Denmark A.S.
1400 Marina Way South Nymollevej 91
Richmond, CA 94804 USA 2800 Lyngby
- --------------------------------------------------------------------------------
France QuickResponse Services IBM France Axone - DRCE
1400 Marina Way South 4 Av. Montaigne
Richmond, CA 94804 USA Le Montaigne
93881 Noisy Le Grand
- --------------------------------------------------------------------------------
Germany QuickResponse Services IBM Deutchland
1400 Marina Way South Informationssysteme GmbH
Richmond, CA 94804 USA Pascalstrasse 100
70569 Stuttgart
- --------------------------------------------------------------------------------
Page 3 of 4
- --------------------------------------------------------------------------------
Hong Kong QuickResponse Services IBM China/Hong Kong Corp.
1400 Marina Way South 13/F Hongkong Telecom Tower
Richmond, CA 94804 USA Taikoo Place, 979 King's Road
Quarry Bay, Hong Kong
- --------------------------------------------------------------------------------
Italy QuickResponse Services IN.TE.S.A. SPA
1400 Marina Way South Via Servais, 125
Richmond, CA 94804 USA 10146 Torino
- --------------------------------------------------------------------------------
Israel QuickResponse Services IBM Israel Ltd.
1400 Marina Way South IBM Building
Richmond, CA 94804 USA 2 Weizmann Street
P.O.B. 33666
Tel Aviv 61336
- --------------------------------------------------------------------------------
Japan QuickResponse Services IBM Japan Ltd.
1400 Marina Way South 2-12 Roppongi 3-Chome
Richmond, CA 94804 USA Minato-ku
Tokyo 106
- --------------------------------------------------------------------------------
Mexico QuickResponse Services IBM Mexico
1400 Marina Way South Avanida Casa de la Moneda
Richmond, CA 94804 USA Col Lomas de Sotelo
11200 Mexico D.F.
- --------------------------------------------------------------------------------
The Netherlands QuickResponse Services IBM Nederland N.V.
1400 Marina Way South Johan Huizengerlaan 765
Richmond, CA 94804 USA 1066 VM Amsterdam
2713 HA Zoetermeer
- --------------------------------------------------------------------------------
Pakistan QuickResponse Services IBM Pakistan
1400 Marina Way South 3. Avari Plaza, Fatima
Richmond, CA 94804 USA Jinnah Rd.
Karachi
- --------------------------------------------------------------------------------
Singapore QuickResponse Services IBM Singapore Pte. Ltd.
1400 Marina Way South 80 Anson Road
Richmond, CA 94804 USA IBM Towers
Singapore 0207
- --------------------------------------------------------------------------------
South Africa QuickResponse Services IBM South Africa Ltd.
1400 Marina Way South IBM Park
Richmond, CA 94804 USA Sandhurst
Sandton 2196
- --------------------------------------------------------------------------------
South Korea QuickResponse Services IBM Korea
1400 Marina South Voido-Dong, Yeongdeungpo-gu,
Richmond, CA 94804 USA Seoul, Republic of Korea
- --------------------------------------------------------------------------------
Spain QuickResponse Services IBM ISS Spain
1400 Marina Way South Ctra. Barcelona, KM 18.40
Richmond, CA 94804 USA San Fernando de Henares
28850 Madrid
- --------------------------------------------------------------------------------
Switzerland QuickResponse Services IBM (Switzerland) Busines
1400 Marina Way South Baendliweg 21
Richmond, CA 94804 USA 8010 Zurich
- --------------------------------------------------------------------------------
Taiwan QuickResponse Services IBM Taiwan
1400 Marina Way South 12F, 2, Sec. 1
Richmond, CA 94804 USA Tun Hua S. Road
Taipei
- --------------------------------------------------------------------------------
Thailand QuickResponse Services IBM Thailand Co. Ltd.
1400 Marina Way South 388 Phaholyothin Road
Richmond, CA 94804 USA Phyathai
Bangkok 10400
- --------------------------------------------------------------------------------
United Kingdom QuickResponse Services IBM United Kingdom Ltd.
1400 Marina Way South P.O. Box 31
Richmond, CA 94804 USA Birminghan Road
Warwick CV34 5JL
- --------------------------------------------------------------------------------
Venezuela QuickResponse Services IBM Venezuela S.A.
1400 Marina Way South Avenida Ernesto Blohm
Richmond, CA 94804 USA Chuao Caracas
- --------------------------------------------------------------------------------
Page 4 of 4
IBM BUSINESS PARTNER AGREEMENT [LOGO]
SOLUTION PROVIDER ATTACHMENT
- --------------------------------------------------------------------------------
THESE TERMS PREVAIL OVER AND ARE IN ADDITION TO OR MODIFY THE REMARKETER TERMS
ATTACHMENT AND THE COMPLEMENTARY MARKETING TERMS ATTACHMENT.
1. MARKETING APPROVAL
You may be approved as a Solution Provider 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
marketing approval requirements of the complementary marketing terms, you
may participate under those terms.
We may specify the specific industry codes to which you may market Products
and Services. If we do so, you agree to comply.
2. VALUE ADDED ENHANCEMENT
For Products we specify in the Exhibit, you are required to have a solution
which is a value added enhancement that we approve and specify on your
Profile and which significantly adds to the Product's function and
capability.
You agree to market Products and Services only with your approved value
added enhancement as part of an integrated solution for End Users. Certain
Products we specify do not require a value added enhancement.
In the event we withdraw approval of your value added enhancement, we also
withdraw your approval as an IBM Business Partner for that value added
enhancement.
We may, at any time, modify the criteria for approval of your value added
enhancement. You are responsible to modify your value added enhancement to
meet these criteria.
You agree to market Products, including processor upgrades requiring a
processor serial number change, to only End Users for whom your value added
enhancement is their primary reason for acquiring the Products, and who
intend the on-going use of such enhancement.
A sale to an End User without a value added enhancement when required, is a
material breach of the Agreement.
However, your value added enhancement is not required to be the End User's
primary reason for acquiring upgrades to systems you previously installed
with your enhancement and where your enhancement is still in productive
use. Upgrades include processor upgrades (non-serial number change),
peripherals and programs.
Unless we specify otherwise in writing, you may market upgrades to only
those End Users where you have installed your value added enhancement, and
who intend on-going use of that value added enhancement.
Page 1 of 3
3. 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. 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. 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;
6. to have access to the Products you are approved to market for 1)
demonstration purposes, 2) providing support your End Users and 3)
supporting your value added enhancement; and
7. to maintain the capability to demonstrate Products we approve you to
market.
4. YOUR RESPONSIBILITIES TO END USERS
WHEN YOU MARKET PRODUCTS AND SERVICES UNDER COMPLEMENTARY MARKETING TERMS,
ITEMS 10 AND 11 DO NOT APPLY AND ITEMS 2 AND 5 ONLY APPLY WHEN YOU USE OUR
CENTRAL ORDER FACILITY.
You agree to:
1. assist the End User to achieve productive use of your solution and the
Products and Services you marketed;
2. configure Products we approve you to market. On your request, we may
assist you;
3. identify and select the required technology based upon the End User's
requirements, and confirm that the Product configuration is fully
capable of the satisfactory performance of your solution;
4. not make representations that IBM is responsible for the Products'
configuration and their ability to satisfy the End User's
requirements:
5. advise the End User of Product installation requirements:
6. develop a plan, agreed to by the End User. for installation and
post-installation support for the offering you market. For Products
and Services we approve you to market, such support includes your
being the primary contact for Product and Services information,
technical advice and operational advice associated with the offering.
However, you may delegate these support responsibilities for Products
and any other associated products to another IBM Business Partner who
is approved to market such Products. If you do, you retain customer
satisfaction responsibility. Alternatively, such support
responsibilities will be provided by IBM if you market the applicable
IBM Services to the End User. If you do, we assume customer
satisfaction responsibility for such support:
7. assist the End User in Product problem determination and resolution,
unless this responsibility is delegated as specified in item 6 above;
8. give written notice to the End User 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;
Page 2 of 3
9. support the End User in planning fulfillment of Product training and
education requirements, including informing the End User of
educational offerings, as applicable;
10. 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 or for Program upgrades; and
11. provide warranty information to the End User.
Page 3 of 3
IBM BUSINESS PARTNER AGREEMENT [LOGO]
IBM GLOBAL SERVICES' NETWORK SERVICES EXHIBIT
- --------------------------------------------------------------------------------
A. GLOBAL TERMS
1. ADMINISTRATIVE CHARGES AND CREDITS
There will be no charge for establishing new QRS invoice accounts to
support client administration and the electronic delivery of monthly
billing information to QRS.
2. LICENSED PROGRAMS
QRS Customers must contract directly with IBM for licensed programs.
Programs ordered by a QRS Customer under an IBM account ID which is part of
QRS billing rollup structure will be invoiced to QRS.
3. REPORTS
Upon request, QRS shall promptly provide IBM with their monthly sales
analysis. These reports shall include the revenue to IBM of the Eligible
Services by the industry segment and by the IBM Service offerings within
the industry segment line of business.
4. MOST FAVORED REMARKETER
If during the Agreement term IBM provides more favorable prices and/or
discounts to an IBM Business Partner-Solution Provider remarketer with whom
IBM has substantially the same or less combination of support, minimum
revenue commitment, Eligible Services, and geographic area terms, IBM will
offer prices and/or discounts to you that are at least as favorable as
those we provide to the other IBM Business Partner-Solution Provider
remarketer provided you agree in writing to accept any and all terms
associated with such prices and/or discounts.
5. CHARGE PROTECTION
If IBM increases the prices for Eligible Service in the aggregate such that
the effect on the pre-tax invoice amount is more than seven percent in any
year commencing on an anniversary date of this Agreement, you may terminate
this Agreement upon six months' written notice to us. In the event of such
termination, you will have no obligation to pay adjustment charges for
failure to meet your minimum revenue commitment.
If IBM decreases the prices for Eligible Services in the aggregate such
that the effect on the pre-tax invoice amount is more than seven percent in
any year commencing on an anniversary date of this Agreement, IBM will
proportionally lower your minimum revenue commitment and the adjustment
charges specified in the Profile.
6. RETAIL INDUSTRY
The IBM Industry Segments as further identified by the Standard Industry
Code ("SIC") and description, consist of the following:
Page 1 of 12
- --------------------------------------------------------------------------------
INDUSTRY
SEGMENT SIC DESCRIPTION
- --------------------------------------------------------------------------------
DA RETAIL - APPAREL MANUFACTURING
- --------------------------------------------------------------------------------
DA 2251 Women's hosiery, except socks
- --------------------------------------------------------------------------------
DA 2252 Hosiery, nec
- --------------------------------------------------------------------------------
DA 2253 Knit outerwear mills
- --------------------------------------------------------------------------------
DA 2254 Knit underwear mills
- --------------------------------------------------------------------------------
DA 2259 Knitting mills, nec
- --------------------------------------------------------------------------------
DA 2311 Men's and boys' suits and coats
- --------------------------------------------------------------------------------
DA 2321 Men's and boy's shirts
- --------------------------------------------------------------------------------
DA 2322 Men's and boys' underwear and night wear
- --------------------------------------------------------------------------------
DA 2323 Men's and boys' neckwear
- --------------------------------------------------------------------------------
DA 2325 Men's and boys' trousers and slacks
- --------------------------------------------------------------------------------
DA 2326 Men's and boys' work clothing
- --------------------------------------------------------------------------------
DA 2329 Men's and boys' clothing, nec
- --------------------------------------------------------------------------------
DA 2331 Women's and misses' blouses and shirts
- --------------------------------------------------------------------------------
DA 2335 Women's, junior's and misses' dresses
- --------------------------------------------------------------------------------
DA 2337 Women's and misses' suits and coats
- --------------------------------------------------------------------------------
DA 2339 Women's and misses' outerwear, nec
- --------------------------------------------------------------------------------
DA 2341 Women's and children's underwear
- --------------------------------------------------------------------------------
DA 2342 Bras, girdles, and allied garments
- --------------------------------------------------------------------------------
DA 2353 Hats, caps, and millinery
- --------------------------------------------------------------------------------
DA 2361 Girls' and childrens' dresses, blouses
- --------------------------------------------------------------------------------
DA 2369 Girls' and children's outerwear, nec
- --------------------------------------------------------------------------------
DA 2371 Fur goods
- --------------------------------------------------------------------------------
DA 2381 Fabric dress and work gloves
- --------------------------------------------------------------------------------
DA 2384 Robes and dressing gowns
- --------------------------------------------------------------------------------
DA 2385 Waterproof outerwear
- --------------------------------------------------------------------------------
DA 2386 Leather and sheep-lined clothing
- --------------------------------------------------------------------------------
DA 2387 Apparel belts
- --------------------------------------------------------------------------------
DA 2389 Apparel and accessories, nec
- --------------------------------------------------------------------------------
DA 2391 Curtains and draperies
- --------------------------------------------------------------------------------
DA 2392 House furnishings, nec
- --------------------------------------------------------------------------------
DA 2393 Textile bags
- --------------------------------------------------------------------------------
DA 2394 Canvas and related products
- --------------------------------------------------------------------------------
DA 2395 Pleating and stitching
- --------------------------------------------------------------------------------
DA 2396 Automotive and apparel trimmings
- --------------------------------------------------------------------------------
DA 2397 Schiffli machine embroideries
- --------------------------------------------------------------------------------
DA 2399 Fabricated textile products, nec
- --------------------------------------------------------------------------------
DA 3111 Leather tanning and finishing
- --------------------------------------------------------------------------------
DA 3131 Footwear cut stock
- --------------------------------------------------------------------------------
DA 3142 House slippers
- --------------------------------------------------------------------------------
DA 3143 Men's footwear, except athletic
- --------------------------------------------------------------------------------
DA 3144 Women's footwear, except athletic
- --------------------------------------------------------------------------------
DA 3149 Footwear, except rubber, nec
- --------------------------------------------------------------------------------
DA 3151 Leather gloves and mittens
- --------------------------------------------------------------------------------
DA 3161 Luggage
- --------------------------------------------------------------------------------
DA 3171 Women's handbags and purses
- --------------------------------------------------------------------------------
DA 3172 Personal leather goods, nec
- --------------------------------------------------------------------------------
DA 3199 Leather goods, nec
- --------------------------------------------------------------------------------
DB RETAIL - MASS MERCHANDISE
- --------------------------------------------------------------------------------
DB 5331 Variety stores
- --------------------------------------------------------------------------------
Page 2 of 12
- --------------------------------------------------------------------------------
DB 533A Discount stores
- --------------------------------------------------------------------------------
DC RETAIL - DEPARTMENT STORES
- --------------------------------------------------------------------------------
DC 5311 Department stores
- --------------------------------------------------------------------------------
DC 5399 Miscellaneous general merchandise stores
- --------------------------------------------------------------------------------
DD RETAIL - DIRECTED MARKETING
- --------------------------------------------------------------------------------
DD 5961 Catalog and mail order houses
- --------------------------------------------------------------------------------
DE RETAIL - SPECIALTY
- --------------------------------------------------------------------------------
DE 5611 Men's and boy's clothing stores
- --------------------------------------------------------------------------------
DE 5621 Women's clothing stores
- --------------------------------------------------------------------------------
DE 5632 Women's accessory and specialty stores
- --------------------------------------------------------------------------------
DE 5641 Children's and infants' wear stores
- --------------------------------------------------------------------------------
DE 5651 Family clothing stores
- --------------------------------------------------------------------------------
DE 5661 Shoe stores
- --------------------------------------------------------------------------------
DE 5699 Miscellaneous apparel and accessory stores
- --------------------------------------------------------------------------------
DE 5731 Radio, TV and electronic stores
- --------------------------------------------------------------------------------
DE 5734 Computer and software stores
- --------------------------------------------------------------------------------
DE 5735 Record and prerecorded tape stores
- --------------------------------------------------------------------------------
DE 5736 Musical instrument stores
- --------------------------------------------------------------------------------
DE 5932 Used merchandise stores
- --------------------------------------------------------------------------------
DE 5941 Sporting goods and bicycle shops
- --------------------------------------------------------------------------------
DE 5942 Book stores
- --------------------------------------------------------------------------------
DE 5942 Stationery stores
- --------------------------------------------------------------------------------
DE 5944 Jewelry stores
- --------------------------------------------------------------------------------
DE 5945 Hobby, toy, and game shops
- --------------------------------------------------------------------------------
DE 5946 Camera and photographic supply stores
- --------------------------------------------------------------------------------
DE 5947 Gift, novelty, and souvenir shops
- --------------------------------------------------------------------------------
DE 5948 Luggage and leather goods stores
- --------------------------------------------------------------------------------
DE 5949 Sewing, needlework and piece goods
- --------------------------------------------------------------------------------
DE 5983 Fuel oil dealers
- --------------------------------------------------------------------------------
DE 5984 Liquified petroleum gas dealers
- --------------------------------------------------------------------------------
DE 5989 Fuel dealers, nec
- --------------------------------------------------------------------------------
DE 5992 Florists
- --------------------------------------------------------------------------------
DE 5993 Tobacco stores and stands
- --------------------------------------------------------------------------------
DE 5994 News dealers and newsstands
- --------------------------------------------------------------------------------
DE 5995 Optical goods stores
- --------------------------------------------------------------------------------
DE 5999 Miscellaneous retail stores, nec
- --------------------------------------------------------------------------------
DG RETAIL - PHARMACY/DRUG
- --------------------------------------------------------------------------------
DG 5912 Drug stores and proprietary stores
- --------------------------------------------------------------------------------
DH RETAIL - FOOD
- --------------------------------------------------------------------------------
DH 5812 Eating places
- --------------------------------------------------------------------------------
DH 5813 Drinking places
- --------------------------------------------------------------------------------
DR RETAIL - HARDGOODS
- --------------------------------------------------------------------------------
DR 5211 Lumber and Other Building Materials
- --------------------------------------------------------------------------------
DR 5231 Paint, Glass and Wallpaper Stores
- --------------------------------------------------------------------------------
DR 5251 Hardware Stores
- --------------------------------------------------------------------------------
DR 5261 Retail Nurseries, Lawn and Garden Stores
- --------------------------------------------------------------------------------
Page 3 of 12
- --------------------------------------------------------------------------------
DR 5712 Furniture Stores
- --------------------------------------------------------------------------------
DR 5713 Floor Covering Stores
- --------------------------------------------------------------------------------
DR 5714 Drapery, Curtain and Upholstery Stores
- --------------------------------------------------------------------------------
DR 5719 Miscellaneous Home Furnishing Stores
- --------------------------------------------------------------------------------
DR 5722 Household Appliance Stores
- --------------------------------------------------------------------------------
Page 4 of 12
B. US CHARGES AND DISCOUNTS
1. ELIGIBLE SERVICES
In addition to the Eligible Services in the offering categories listed in
the Solution Provider Profile, you are authorized to market the following
Eligible Services under the Remarketer Terms in the United States:
* Support Services
* Capacity Services
* Software Mail
* SHOWBBS
Eligible Services are described in the applicable IBM Global Services
Service Descriptions.
2. NONDISCOUNTABLE CHARGES
This section lists Eligible Services and applicable nondiscountable charges
which differ from the generally available charges in the applicable IBM
Global Services Fee Schedules.
2.1 SELECTED MANAGED DATA NETWORK SERVICES
2.1.1 REMOTE ACCESS
HOURLY ACCESS RATES
* * * *. Remote Access is
described in the IBM Global Services Service Description.
The charges are as follows:
* * *
[TABLE REDACTED]
* * *
SNA remote access includes X.3 PAD communications interface for
asynchronous dial communication with X-25 hosts attached to the IBM
Global Network.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 5 of 12
REMOTE ACCESS SERVERS
CONNECTIVITY SERVER
Under Multiprotocol remote access, IBM provides a server, called the
remote access Connectivity Server, on your premises.
Dial Services - Connectivity Server *
SECURID AND ACE/SERVER
IP remote access, TCP/IP communications feature, supports the use of
SecurID and Security Dynamics ACE/Server as attachment tested in the
IBM Global Network environment. In addition to standard remote
accessusage charges, there is a monthly charge for the support of
SecurID and the ACE/Server. The charges are as follows:
SECURIDU ACE/SERVER-TM- *
FOR EACH ACE/SERVER REGISTERED
X3 PAD COMMUNICATION INTERFACE
Remote access includes X.3 PAD (packet assembler/disassembler)
communication interface for remote asynchronous communication with
X.25 hosts attached to the IBM Global Network. The X.3 PAD support is
limited to selected cities and "800" number access. There is a *
discount on the X.3 PAD monthly charges listed in the IBM Global
Services Managed Data Network Services Fee Schedule.
2.1.2 LEASED LINE NETWORK SERVICES
QRS and IBM will cooperatively sell all Leased Line Network Services
as described in this subsection and the IBM Global Services Managed
Data Network Services Service Description. QRS will identify and
qualify each opportunity and notify IBM. IBM will engage all
qualified opportunities through the solution and fulfillment.
* * * *
INTERNETWORKING AND MULTIPROTOCOL SOLUTIONS
Internetworking and Multiprotocol Solutions provide communications
through high speed leased line multiprotocol connections to the IBM
Global Network from one or more of your designated locations. IBM
provides the leased line connection, routers, digital service units
(DSUs) and modems.
The technical implementation of the connections will be determined by
IBM. Requirements not consistent with these configurations will be
reviewed by IBM as custom solutions. Line speeds provided are
specified in the Managed Data Network Services Service Description and
Fee Schedule.
DIAL BACKUP OPTIONS
As an additional option, switched 56,000 bps dial backup support for a
56,000 bps LAN leased line connection to the same node as the primary
connection is available.
Switched 56,000 bps dial backup support for a 56.000 bps leased line
connection to an alternate node is available as a pre-approved special
bid.
Switched 56,000 bps dial backup support for leased line speeds higher
than 56,000 bps to the same or an alternate node is not generally
available. Each situation must be reviewed separately via the IBM
special bid process and it may, in IBM's sole discretion, be
determined that leased line backup to an alternate node is the
recommended backup option.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 6 of 12
There is a one-time installation charge for each internetworking
configuration 56,000 bps dial backup connection of * unless it is
ordered with the original leased line connection.
ALASKA, HAWAII AND PUERTO RICO PASS THROUGH SURCHARGES
The following surcharges are applicable for point-to-point 56KB to T1
Internetworking and Multiprotocol Solutions leased line connections to
Anchorage, Alaska, Honolulu and San Juan, Puerto Rico.
* * *
[TABLE REDACTED]
* * *
IBM Sales Support should be contacted in order to identify the
applicable surcharge on other Hawaii or Puerto Rico or Alaska
locations.
CONVERSION CHARGES FOR INSTALLED INTERNETWORKING AND MULTIPROTOCOL
SOLUTIONS LEASED LINES
The charges are as follows:
* * *
[TABLE REDACTED]
* * *
LEASED LINE SERVICES CONNECTIONS
These Eligible Services are described in the IBM Global Services
Managed Data Network Services Service Description under the section
entitled "Leased Line Services connections."
NON-SNI CONNECTION
Point-to-point leased line tail circuits provide communication
attachment of non-host communication equipment (e.g., workstation
controllers, IBM AS/4000-Registered Trademark-s, and IBM System/36s)
to the IBM Global Network. The following charges are for 9,600 bps,
14,400 bps, 19,200 bps, and 56,000 bps tail circuit Connectivity
Services. Domestic traffic charges do not apply.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 7 of 12
SNI HOST CONNECTION
Point-to-Point leased line SNI host connections provide communication
attachment of host computers to IBM. The following charges are for
9,600 bps, 14,400 bps, 19,200 bps, and 56,000 bps SNI host
connections.
HIGH SPEED SNI CONNECTIONS
High speed connections for SNI are available as custom solutions. The
charges are as follows:
* * *
[TABLE REDACTED]
* * *
There is a one-time installation charge of * for line speeds
128KB - T1.
ALASKA, HAWAII AND PUERTO RICO PASS THROUGH SURCHARGES
The following surcharges are applicable for point-to-point 9.6KB to
56KB Leased Line Network Services SNA Host connections to Alaska,
Honolulu, Hawaii and San Juan, Puerto Rico.
* * *
[TABLE REDACTED]
* * *
IBM Sales Support should be contacted to identify the surcharge on
other Hawaii or Puerto Rico locations and at all times for Alaska
surcharge.
CONVERSION CHARGES FOR INSTALLED LEASED LINE SERVICES SNA HOST
CONNECTIONS
Type 1 and Type 2 SNA leased line conversions are more fully described
in the IBM Global Services Managed Data Network Services Service
Description in the section entitled "Leased Line Services
conversions." The charges are as follows:
* * *
[TABLE REDACTED]
* * *
BUSINESS RECOVERY SERVICE (BRS) FOR MDNS
SNA DIAL BACKUP OPTIONS
NETWORK DIAL BACKUP SERVICE (NDBS)
This Service, for dial backup of analog line SNA connections, was
withdrawn from marketing on February 27, 1996.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 8 of 12
An installation charge applies except when NDBS is ordered for
installation at the same time as leased line connection.
CUSTOM SOLUTION LEASED LINE DIAL BACKUP OPTION (SNBU)
The Custom Solution leased line dial backup option is available for
shared leased Line, intracompany shared leased line and point-to-point
leased line Service. For analog lines at speeds of 9,600 bps through
19,200 bps, the SNBU service is similar to the Network Dial Backup
Service except that the Customer provides all four business extensions
required in the backup configuration and the Customer places the
backup calls to IBM. (The Eligible Service and pricing are described
in the "SNBU" Supplement for Custom Solution PRO118).
IBM Systems Assurance is required for network dial backup.
DIAL BACKUP ALTERNATE NODE (DBAN)
DBAN provides dial backup to an alternate node for SNA analog
connections at speeds of 9,600 bps, 14,400 bps or 19,200 bps and SNA
digital connections at 56,000 bps for both SNI host and non SNI
connections. DBAN for analog connection provides 4,800 bps backup for
a 2 wire connection and at original line speed for a 4 wire
connection. DBAN for 56,000 bps digital connections provides backup
at either 14,400 bps or 56,000 bps.
The charges are as follows:
* * *
[TABLE REDACTED]
* * *
An installation charge applies except when DBAN is ordered for
installation at the same time as leased line connection. All
interexchange and local exchange carrier charges will be passed
through to customer.
MANAGED DATA NETWORK SERVICES TRAFFIC CHARGES
* * *.
2.2 MANAGED INTERNET AND INTRANET SERVICES
2.2.1 IBM INTERNET CONNECTION SERVICES
IBM INTERNET CONNECTION CORPORATE DIAL SERVICES
* * *. The charges are as
follows:
* * *
[TABLE REDACTED]
* * *
Other related charges for custom mail domain, monthly user ID mailbox
charge and user ID registration charge are described in the IBM Global
Services Managed Internet and Intranet Services Fee Schedule.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 9 of 12
IBM GLOBAL NETWORK FIREWALL SECURITY OPTION
IBM Global Network Firewall Security option is described in the IBM
Global Services Managed Internet and Intranet Services Service
Description in the section titled "Security.'
3. DISCOUNTABLE CHARGES
Eligible Services not listed under "Nondiscountable Charges" are eligible
for discounts applied to the charges specified in the IBM Global Services
Fee Schedules. Those discounts are specified below. Other applicable
discounts are described in the applicable IBM Global Services Fee
Schedules.
* * *
[TABLE REDACTED]
* * *
* * * *.
3.1 MANAGED ELECTRONIC TRANSACTION SERVICES DISCOUNT TABLE
Discounts for Managed Electronic Transaction Services charges will be
calculated as indicated in the following table:
* * *
[TABLE REDACTED]
* * *
Managed Electronic Transaction Services charges, exclusive of
Information Exchange charges, eligible for discount must not exceed
* of the net monthly charges invoiced to you by IBM. If such
charges exceed * of the net monthly charges, IBM will reevaluate the
mix of charges to determine future discounts for Managed Electronic
Transaction Services.
4. EDUCATION
* * * *
* * * *.
5. TRAINED PERSONNEL REQUIREMENTS
QRS shall provide the following trained personnel:
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 10 of 12
* * *
[TABLE REDACTED]
* * *
6. REVENUE GROWTH BONUS
* * * *
* * * *.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 11 of 12
C. INTERNATIONAL CHARGES AND DISCOUNTS
1. ELIGIBLE SERVICES
In addition to the Eligible Services in the offering categories listed in
the Solution Provider Profile, you are authorized to market the following
Eligible Services under the Remarketer Terms in countries outside the
United States:
* Support Services
* Capacity Services
* Software Mall
* SHOWBBS
Eligible Services are described in the applicable IBM Global Services Service
Descriptions.
2. DISCOUNTS
A discount of * applies to all charges eligible for discount outside of
the United States.
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the Commission pursuant to Rule 24b-2.
Page 12 of 12
[LOGO]
IBM BUSINESS PARTNER AGREEMENT
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. Programs............................ 5
7. Export.............................. 6
8. Title............................... 6
9. Risk of Loss........................ 6
10. Installation and Warranty........... 6
11. Warranty Service.................... 7
12. Marketing of Services for a Fee..... 7
13. Marketing of Financing.............. 8
14. Engineering Changes................. 8
15. Ending the Agreement................ 8
Page 1 of 9
[LOGO]
IBM BUSINESS PARTNER AGREEMENT
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:
1. to 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. to provide us with sufficient, free and safe access to your
facilities, at a mutually convenient time, for us to fulfill our
obligations:
3. to 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. to provide us with marketing, sales, installation reporting and
inventory information for our Products and Services, as we specify in
the operations guide:
5. that, when you are approved to market to Remarketers. to market
Products and Services which require certification, only to Remarketers
who are certified to market them:
6. to comply with all terms regarding Program upgrades:
7. to 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
8. to report to us any suspected Product defects or safety problems, and
to assist us in tracing and locating Products.
2. ORDERING AND DELIVERY
You may order Products and Services from us as we specify ill 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.
Page 2 of 9
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 Bond 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.
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
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.
Page 3 of 9
PRICE AND DISCOUNT CHANGES
We may change prices and increase discounts at any time. We may decrease
discounts on one month's written notice.
Price increases for Products and Services included in a project do not
apply to you for up to two years from the start date of a project (we will
protect the price that was in effect at the time we received the first
order for the project) if you documented the project to us and we approved
and accepted such documentation. We will specify additional details, if
any, to you in writing.
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.
RESELLER TAX EXEMPTION
You agree to provide us with your valid reseller exemption documentation
for each applicable taxing jurisdiction to which we ship Products. 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 front the
sale of, and your accounts receivable for, a Product, 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 Products and Services;
Page 4 of 9
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 or
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
We will identify each Specific Machine 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 End User, and record on the sales receipt, that
the Machine you provide is a Specific Machine using Licensed Internal Code.
You agree to provide the applicable license agreement to your End User
before the sale is finalized.
6. 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 (lie End User whatever amount you wish for the
recurring-charge.
PROGRAM SERVICES
Program Services are described in the Programs 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 Product, or
Page 5 of 9
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.
7. 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.
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, date of sale, and destination country.
We exclude these Products from:
1. any of your attainment toward your objectives; and
2. qualification for applicable promotional offerings and marketing
funds.
We may also reduce future supply allocations to you by the number of
exported Products.
8. TITLE
When you order a Machine, we transfer title to you when we ship file
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.
9. RISK OF LOSS
We bear the risk of loss of, or damage to, a Product or Service until 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.
10. INSTALLATION AND WARRANTY
We will ensure that Machines we install are in good working order 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 Program 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.
Page 6 of 9
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.
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 pails are genuine, and unaltered, and in good working
order. 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.
11. 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.
12. MARKETING OF SERVICES FOR A FEE
If you marketed a Product to an End User under this Agreement, or if you
are approved in your Profile to market a Service, you may, as we specify in
the Exhibit, 1) market Services, or 2) provide a qualified lead to us so
that we may market Services, to the End User on any machine or program, and
receive a fee from us. We provide Services to the End User under the terms
of our applicable agreement, signed by the End User.
You will receive a fee for a lead when it 1) is submitted oil 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 received the lead from you.
Alternatively, you will receive a fee for marketing 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) if
a standard Statement of Work is used. there are no changes, and no
marketing assistance from us is required.
You may market Services on eligible non-IBM Products regardless of whether
you marketed a Machine or Program to the End User.
Page 7 of 9
We will not pay you the fee if the machine or program is already under the
applicable Service or if there is agreement to place the Machine or Program
under the applicable Service or if 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 payments we made
to you associated with it. 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 pay amounts due us. Each of us agrees to promptly pay the
other any amounts due.
13. 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 pay you or the supplier when the End User has initiated financing
and acknowledged acceptance of the items being financed.
14. 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.
15. 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 Products or
shrink-wrap Services for which you have not paid: and
Page 8 of 9
2. allow us, at our discretion, to acquire any that are in your
possession or 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. 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.
Page 9 of 9
IBM BUSINESS PARTNER AGREEMENT
[LOGO]
GENERAL TERMS
- --------------------------------------------------------------------------------
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 9
IBM BUSINESS PARTNER AGREEMENT
[LOGO]
GENERAL TERMS
- --------------------------------------------------------------------------------
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 vole 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) treat we approve you to market.
Page 2 of 9
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 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. Attachment 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 9
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).
Page 4 of 9
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 broach, 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. Utilities,, 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
relay, 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:
Page 5 of 9
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 claims of infringement.
CLAIMS FOR WHICH WE ARE NOT RESPONSIBLE
We have no obligation regarding any claim based oil 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:
Page 6 of 9
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) assisting 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 remarks 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.
Page 7 of 9
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. Such Products do not
count (except for personal computer and Printing System Products which do
count) toward 1) your minimum annual attainment 2) 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. Additionally, such Products do not count (except for
personal computer and Printing System Products, which do count) toward 1)
your minimum annual attainment 2) determination of your discount or price,
as applicable or 3) for 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.
Page 8 of 9
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.
Page 9 of 9
IBM BUSINESS PARTNER AGREEMENT
[LOGO]
INTERNATIONAL ATTACHMENT FOR SOLUTION PROVIDER - REMARKETER
- --------------------------------------------------------------------------------
THE TERMS OF THIS ATTACHMENT PREVAIL OVER THE TERMS OF THE REMARKETER TERMS
ATTACHMENT.
Under the terms of this Attachment, the Business Partner Lead Company agrees to
coordinate the activities of its local Business Partner Companies, and the IBM
Lead Company agrees to coordinate the activities of the local IBM country
organizations (IBM Companies). All such local Business Partner Companies and
local IBM Companies are specified in the "Details of Our Agreement" section of
the Profile for each country in which the local Business Partner Company is
approved to market.
Terms that are unique to a country are included in each of the Agreement's
applicable documents. The terms of the Agreement applicable to the country in
which the Eligible Services are acquired by the Customer apply. All references
in the Agreement to "Country Name" are deemed to be the country in which
Eligible Services are acquired by the Customer.
The Business Partner Lead Company will distribute copies of the Agreement
(including this Attachment and any other applicable Attachment) to their local
Business Partner Companies. The IBM Lead Company will distribute copies of the
Agreement (including this Attachment and any other applicable Attachment) to
their local IBM Companies. The local Business Partner Company and the local IBM
Company, in a country, will acknowledge between each other, written acceptance
of the Agreement either by initially ordering Eligible Services, or by other
written confirmation.
As the Business Partner Lead Company, you warrant that, in accepting the terms
of this Attachment, all of your local Business Partner Companies are Related
Companies. However, with IBM approval which shall not be unreasonably withheld,
you may use authorized sales agents to represent you in a particular country.
In the event you are approved to use sales agents, you agree to maintain an
appropriate agreement with each of your sales agents requiring them to comply
with the applicable terms of this Agreement. Local Business Partner Companies
may provide local transaction documents, such as service descriptions, to your
local sales agents on your behalf. You agree to designate your local sales
agents as your authorized representatives for receipt and acceptance of service
of legal process (including, but not limited to, lawsuits, subpoenas, summonses,
and the like). Further, you agree to consent to jurisdiction in all countries
in which Eligible Services are being provided to you or your agents. We may
proceed against you directly if your agents engage in activities that violate
the applicable terms of this Agreement, its Attachments and transaction
documents, including but not limited to filing claims or suits against you
directly in the country in which we are providing Eligible Services to you or
your sales agents.
The Agreement (including this Attachment but excluding transaction documents and
the Exhibit) is written in English.
WORLDWIDE AGGREGATION
We provide discounts based on the volume committed by the Business Partner Lead
Company, aggregated worldwide, for Eligible Services specified on the Profile.
Only Eligible Services acquired directly from IBM or an IBM affiliated network
services provider: 1) count toward worldwide aggregation; and 2) are eligible
for the discount we provide.
During the contract period, the Business Partner Lead Company may increase the
volume commitment to qualify for increased discounts, if applicable. Such
discounts apply only to provision of Eligible Services after the revised volume
commitment is accepted by the IBM Lead Company.
Page 1 of 1