Attachment for Resale of IBM Products

Transcription

1 IBM PartnerWorld Agreement Attachment for Resale of IBM Products The terms of this Attachment are in addition to and prevail over the terms of the IBM PartnerWorld Agreement - International Basic General Terms. Under the terms of this Attachment, you are approved to resell selected IBM Products, which includes Cloud Services, which IBM will identify via an Operations Guide to this Attachment. You agree that the terms of this Attachment are between you, in the country in which you are approved to resell, and the IBM organization for that country. The rights, duties and obligations of each of us under the terms of this Attachment are valid only for that country. Defined terms are included in Section 8 of this Attachment. 1. Marketing Authorization Products Business Partner (BP) is authorized to resell are specified in an Operations Guide to this Attachment on the following IBM Internet website: BP is authorized to acquire Products from an IBM Distributor and resell to End Users within the Geographic Scope of this Attachment. For BPs in Western Europe the Geographic Scope is all countries in Western Europe. For all other BPs the Geographic Scope is the registered country in BP's PartnerWorld profile. BPs are not authorized to resell Products for export to any country outside the Geographic Scope of this Attachment. Each party is free to set its own prices and terms. Neither party will disclose its End User prices and terms in the presence of the other. BP will independently establish prices and terms for the Products with End User, including those terms required by this Attachment. 2. Business Partner Responsibilities to IBM Business Partner agrees to: a. achieve and maintain any criteria IBM specifies; b. not separate Products (e.g. Appliances), when they are packaged or shipped together, and to provide them to End Users as IBM provides to BP. Appliances are an IBM Program and IBM Machine combination designed for a particular function. Unless otherwise provided, terms that apply to a Program apply to the Program component of an Appliance and terms that apply to a Machine apply to the Machine component of an Appliance; c. report to IBM any suspected Product defects or safety problems, and to assist IBM in tracing and locating any Products; d. provide IBM or the IBM Distributor, as applicable, with documents IBM may require from BP or an End User (for example, a license agreement signed by the End User, installation reporting and inventory information), as IBM specifies; e. ensure that prior to accepting orders through Passport Advantage, Passport Advantage Express or equivalent ordering processes, the End User has copies of the applicable agreements accepted by us and the associated Passport Advantage Agreement s or an equivalent agreement s documents, including without limitation the Passport Advantage Enrollment Form, the Terms of Use, Service Descriptions and any other applicable documents such as a Service Level Agreement for the applicable Software as a Service offering transaction, and that the End User is informed of the pricing level for the transaction; PWARIP-00 EN Page 1 of 8

2 f. pay IBM for all associated charges incurred for an applicable Eligible Product or Cloud Services offering you order that is provided as a service (such as Software as a Service) through such offering s termination; and g. issue a credit or refund if the End User is eligible for a credit or refund under the terms of the applicable Passport Advantage Agreement or an equivalent agreement between IBM and the End User, if IBM issues the applicable credit or refund to you. 3. Business Partner Responsibilities to End Users Business Partner agrees to: a. not make any representations that IBM is responsible for Product configuration or BP s ability to satisfy the End User s requirements; b. be the primary contact for Product information and support, and assist the End User in determining when IBM needs to be contacted for technical support, if applicable. BP may delegate these responsibilities to another IBM BP who is authorized to resell such Products. If BP does so, BP retains End User satisfaction responsibilities; c. identify and select the required technology based upon the End User s requirements; d. inform the End User of Product installation requirements, and provide configuration support; e. assist End User in Product problem determination and resolution and advise End User of the availability of support offerings; f. inform the End User of available education offerings; g. provide a dated sales receipt (or its equivalent, such as an invoice) to BP s End Users, before or upon delivery of Products and inform the End User that the sales receipt (or other documentation IBM may specify, such as the Proof of Entitlement specified in a license agreement if it is required) will be necessary for proof of warranty entitlement and for Product upgrades; h. have access to the Products BP is authorized to resell for: (1) demonstration purposes, and (2) providing support to BP s End Users; i. subject to IBM s return policy, refund the End User the amount it paid for the Product when it returns the Product to BP. BP may return the Product to the IBM Distributor from whom the Product was acquired for credit or refund, or to IBM if the Product was acquired directly from IBM, for credit as IBM specifies; j. give written notice to the End User of any modification BP makes to a Product and advise that such modification may void the warranty for the Product; k. ensure the appropriate License and Product Terms are provided to the End User in a format sufficient to create an enforceable agreement under applicable law (for example, certain countries require contracting in hard copy format) before the sale to the End User is finalized; and l. if BP installs IBM Programs for the End User, BP further agrees to i) secure legally enforceable documentation confirming that the End User has accepted the License Documents and has authorized BP to take actions necessary to accept the License Documents on the End User's behalf, ii) retain such documentation for a minimum of three years, and iii) provide such documentation to IBM upon request for IBM to verify compliance with this section; m. ensure that Programs licensed to BP on a recurring-charge basis are licensed for the period indicated in IBM s or IBM Distributor s invoice, as applicable. BP may resell such Programs only on the same basis as licensed to BP. BP may not charge End User a one-time charge for a Program licensed from IBM on a recurring-charge basis; and PWARIP-00 EN Page 2 of 8

3 n. for a Program requiring a signature, as IBM specifies, ensure the End User has signed the license agreement before such Program is provided to the End User, and to provide any required documentation to IBM. 4. Ownership, License, IBM Services and Other Product Terms IBM and its suppliers own IBM Products and IBM Services. BP agrees that title to, ownership of and all rights in and to patents, copyrights, trademarks, and all other intellectual property rights in IBM Products and IBM Services and any copy or part of IBM Products and IBM Services will remain with IBM and its suppliers. 4.1 IBM License, IBM Services and Product Terms IBM Products and Services that BP acquires for resale, internal use or demonstration, development, or evaluation purposes are subject to additional terms. In particular: a. IBM Programs are licensed under the terms of the applicable license agreement (for example, the IBM International Program License Agreement or IBM International License Agreement for Non-warranted Programs and each s associated License Information documents) for each IBM Program. The license agreements applicable to a Program are referred to in this section as its License Documents. IBM makes License Documents available to BPs on the following IBM Internet website: b. Machine Code (including LIC) is licensed under the terms and restrictions of the applicable Machine Code license agreement (for example, the IBM License Agreement for Machine Code and Licensed Internal Code, or an equivalent) provided with the Machine Code. Machines containing Machine Code will be identified in the Operations Guide. IBM makes Machine Code license agreements available to BPs on the following IBM Internet website: International Business Machines Corporation, one of its subsidiaries, or a third party owns Machine Code including all copyrights in Machine Code and all copies of Machine Code (this includes the original Machine Code, copies of the original Machine Code, and copies made from copies). Machine Code is copyrighted and licensed (not sold); c. IBM Services are offered under the terms of the applicable Services Descriptions, Terms of Use (TOUs), Statements of Work (SOWs) or other services documents ( Services Documents ); and d. unless otherwise indicated, IBM Machines are provided subject to the terms of the IBM Statement of Limited Warranty ( SOLW ). We make the SOLW available to BPs on the following IBM Internet website: Collectively, the License Documents, Machine Code license agreements, Services Documents and SOLW are referred to in this section as License and Product Terms. IBM may provide additional instructions regarding License and Product Terms in the applicable Operations Guide. 5. Acquiring IBM Products for use as part of BP s Services Solution BP may acquire IBM Products that BP is authorized to resell under the terms of BP s IBM Business Partner Agreement for use in its Services Solution (also called managed services solution). BP may retain ownership of the Products for the purpose of providing its Services Solution to BP s End Users. When BP retains title to the Machines, BP may provide managed services solutions to multiple End Users unless otherwise noted. BP must retain such Machines for a minimum of twelve months. While maintaining title of the Machines, such Machines may be located on BP s, an End User or a third party s premise. PWARIP-00 EN Page 3 of 8

4 If BP acquires Products directly from IBM, BP must advise IBM at the time of order if BP will retain title for the Products. If BP acquires Products from a Distributor, BP must advise the Distributor at the time of order that the Products will be retained for the BP s Services Solution. When, as part of BP s Services Solution, BP acquires an IBM Program for installation on a machine and BP controls the Program and BP and the End User have access to such Program, regardless of the machine's physical location, BP is the Program's licensee. When, as part of BP s Services Solution, BP acquires an IBM Program for installation on a machine for which the End User has access to and control of its licensed Programs, regardless of the machine's physical location, the End User is the Program's licensee. BP resells such Programs under the terms of the IBM Business Partner Agreement. BP s Services Solution may be used by BP to support remote End Users outside the geographic scope of BP s IBM Business Partner Agreement, provided IBM is not delivering or providing direct access to the End User for any IBM Services outside that geographic scope. 6. General 6.1 Compliance with Export and Import Laws BP warrants that BP: a. will comply with applicable import, export control and economic sanction laws and regulations, including those of the United States, that prohibit or restrict the export, reexport, or transfer of products, technology, services or data, directly or indirectly, to certain sanctioned countries and end users, and for certain prohibited end uses, including, but not limited to, nuclear facilities, space or missile systems, and weapons systems (whether chemical, biological, or otherwise); b. will use its best efforts to ensure that End User complies with such laws, regulations, orders, and policies; c. upon request by IBM will provide IBM with written certification relating to BP s compliance with applicable export and import laws or prohibit BP from doing business with certain End Users in order to ensure that BP and IBM comply with applicable export and import laws; and d. will not resell certain Products to Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates; and will not resell Products to Belize, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, Nicaragua and Panama. 6.2 End User Exports If an End User exports a Product, IBM s responsibilities (including, but not limited to, warranty or support obligations), if any, under the IBM License and Product Terms or otherwise under this Attachment no longer apply to that Product, unless the Product's warranty or license terms state otherwise, and BP agrees to notify End User of same. Before BP s sale of such Product, BP agrees to prepare a support plan for it and obtain BP s End User's agreement to that plan. Within one month of sale, BP agrees to provide IBM with the End User's name and address, Machine type/model, and serial number if applicable, date of sale, and destination country. 6.3 Compliance BP shall keep and maintain all records necessary to establish its compliance with the Attachment for at least three years after the Attachment end date. IBM or its auditor may periodically review BP s compliance with the Attachment, and may do so either remotely, on BP s premises during normal business hours, or a combination thereof. In connection with any such review, BP agrees to provide IBM, or it auditor, with relevant records and system tools output on request. IBM may reproduce and retain copies of such records and output. If, during any such review, it is determined that BP has failed to comply with any material term of this Attachment, in addition to IBM s rights under law and the terms of this Attachment, for transactions that are the subject of the breach, BP agrees to refund the amount equal to the PWARIP-00 EN Page 4 of 8

5 discount or fees, if any, that IBM gave BP for the applicable Products or Services, or IBM may offset any amounts due to BP from IBM. 6.4 Government Entity BP represents and warrants that none of its owners are currently Government Entity officials or Government Entity employees, nor were they Government Entity officials or Government Entity employees in the past three years from the date of this Agreement. A Government Entity shall be defined as: a. the government of any country, state, region, province, county, city, town, territory, municipality or other locality, including any government agency, department or public enterprise; b. any entity subject to public procurement laws or regulations; c. any public international organization (e.g., the United Nations or World Health Organization); and d. any government instrumentality, including any utility company, organization licensed to provide public services, educational institution, or other entity, whether privately held, publicly traded or otherwise constituted, that is owned, controlled or funded by any entity in subsection (a), (b), (c) or (d) or by a government official. 6.5 Liability Replace the first paragraph of Section 12. Liability of the PWA with the following: IBM s entire liability for all claims related to the Attachment will not exceed the amount of any actual direct damages incurred by BP up to the greater of U.S. $100,000 (or equivalent in local currency) or amounts paid (if recurring charges, up to twelve months charges apply) for the Product that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to IBM, its subsidiaries, contractors, and suppliers. IBM will not be liable for special, incidental, exemplary, indirect, or economic consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings. The following amounts, if a party is legally liable for them, are not subject to the above cap: i) damages for body injury (including death); ii) damages to real property and tangible personal property; and iii) damages that cannot be limited under applicable law. For purposes of this section, the term Product includes Machine Code. No right or cause of action for any third party is created by this Attachment, or any transaction under it, nor is IBM responsible for any third-party claims against BP except as permitted by this section for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable to that third party or as described in section 6.6 below (Intellectual Property Indemnification from IBM). 6.6 Intellectual Property Indemnification from IBM If a third party asserts a claim against you that a Cloud Service acquired under this Agreement infringes a patent or copyright, IBM will defend you against that claim and pay amounts finally awarded by a court against you or included in a settlement approved by IBM, provided that you promptly: (a) notify IBM in writing of the claim; (b) supply information requested by IBM; and (c) allow IBM to control, and reasonably cooperate in, the defense and settlement, including mitigation efforts. IBM has no responsibility for claims based, in whole or part, on non-ibm products, items not provided by IBM, or any violation of law or third party rights caused by your content, materials, designs, specifications, or use of a non-current version or release of a Cloud Service when an infringement claim could have been avoided by using a current version or release. PWARIP-00 EN Page 5 of 8

6 6.7 Status Change BP agrees to give IBM prompt written notice (unless precluded by law or regulation) of any change or anticipated change in BP s financial condition, business structure, or operating environment (for example, a material change in equity ownership or management or any substantive change to information BP provided when BP applied to become an IBM Business Partner). Upon notification of such change, (or if BP Partner fails to give notice of such change) IBM may, at its sole discretion, terminate this Attachment on written notice to BP. 7. Termination IBM may terminate this Attachment for Resale on one month s written notice or in case of a material breach, immediately on notice. If either party fails to comply with a material term of this Attachment, the other party may terminate this Attachment on written notice to the non-compliant party. BP agrees that IBM s only obligation regarding notice of termination is to provide the notice called for in this section and IBM is not liable for any claims against BP or losses BP may incur if IBM terminates this Attachment with no additional notice. License termination is specified in the applicable Program License Attachment. Upon Attachment termination: (1) BP agrees to (i) pay for or return to IBM, at IBM s discretion, any Product for which BP has not paid and (ii) allow IBM, at IBM s discretion, to acquire any such Product that is in BP s possession or control, at the price paid to IBM, less any credits issued. BP must return the Product to IBM at BP s expense free of all liens, claims, or encumbrances; (2) each party agrees to settle any accounts with the other as soon as reasonably practicable. IBM may offset any amounts due BP against amounts due to IBM, or any of IBM s affiliates as allowable under applicable law; and (3) for a reseller, a Product must either be in BP s inventory or in transit to BP from IBM on the day this Attachment terminates. Further, the Product must be returned to IBM in its original packaging, unopened (with the tamper-proof seal intact), and undamaged. IBM will inspect the returned Product and reserves the right of rejection. BP agrees that if IBM permits BP to perform certain activities after Attachment termination or nonrenewal (for example, to complete the fulfillment of an order to Customer), BP will do so within the period of time IBM specifies and under the terms of this Attachment. Any terms of this Attachment, which by their nature extend beyond Attachment termination, remain in effect until fulfilled and apply to respective successors and assignees. IBM s termination of this Attachment may be in whole or in part. 8. Definitions Appliance - an IBM Program and IBM Machine combination designed for a particular function. Unless otherwise provided, terms that apply to a Program apply to the Program component of an Appliance and terms that apply to a Machine apply to the Machine component of an Appliance. Cloud Service an IBM branded offering hosted or managed by IBM and made available via a network. Distributor a business entity which acquires Products or Services under the terms of the IBM Business Partner Agreement for resale to Business Partners which are outside the Distributor s Enterprise and who are authorized by IBM to resell to End Users, unless otherwise authorized by IBM. End User a party who acquires Products or Services for its own use and not for resale. The term End User does not include Business Partner, a party who is a part of the Enterprise of which Business Partner is a part, Business Partner s parent company, or any company which shares common ownership with Business Partner. PWARIP-00 EN Page 6 of 8

7 Enterprise any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. The term Enterprise applies only to the portion of the Enterprise located in the registered country in the BP's PartnerWorld profile. IBM License, IBM Services and Product Terms the license, Services and Product terms (collectively) described in Section 4 (IBM License, Services and Product Terms) of this Attachment. IBM Machine an IBM branded hardware device, its features, conversions, upgrades, elements, or accessories, or any combination of them Program an IBM branded computer program (software) and related material available for license from IBM subject to the payment of charges. Service performance of a task, provision of advice and counsel, assistance, support, or access to a resource (such as an information database) by IBM. Machine Code (MC) computer instructions, fixes, replacements and related materials, such as data and passwords relied on, provided, used with or generated by MC, that permit the operation of the machine's processors, storage or other functionality. Information specific to a Machine is in a document entitled Official Published Specifications which is available on request. Operations Guide (or "operations guide") details, processes, procedures, qualifying Products, and other pertinent information which IBM provides to Business Partner in published forms or through IBM s electronic information systems. Product an IBM Machine, IBM Program, Appliance or Cloud Service. Program an IBM Program or a Non-IBM Program that IBM approves Business Partner to resell. The term Program does not include Machine Code. Reseller a business entity that acquires Products or Services for resale. Western Europe - Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxemburg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, Vatican State. PWARIP-00 EN Page 7 of 8

8 COUNTRY UNIQUE TERMS Please note that the terms of this document are amended for specific countries as below. ASIA PACIFIC: The following terms apply to the specific countries, as noted: Country Section Country Unique Term Singapore 6.5 Liability Replace the first paragraph in this section with the following: Replace the first paragraph of Section 12. Liability of the PWA with the following: IBM s entire liability for all claims related to the Attachment will not exceed the amount of any actual direct damages incurred by BP up to the greater of U.S. $100,000 (or equivalent in local currency) or amounts paid (if recurring charges, up to twelve months charges apply) for the Product that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to IBM, its subsidiaries, contractors, and suppliers. IBM will not be liable for special, incidental, exemplary, indirect, or consequential damages, or lost profits, business, value, revenue, goodwill, or anticipated savings. PWARIP-00 EN Page 8 of 8