IBM PartnerWorld Agreement - International Supplement for the Use of IBM Trademarks Built on IBM Express Advantage Offerings

Transcription

1 IBM PartnerWorld Agreement - International Supplement for the Use of IBM Trademarks Built on IBM Express Advantage Offerings The terms of this Supplement are in addition to and prevail over the terms of the IBM PartnerWorld Agreement - International Attachment for the Use of IBM Trademarks. A copy of the IBM PartnerWorld Agreement - International Attachment for the Use of IBM Trademarks is provided to you along with this Supplement. 1.0 Definitions All terms not defined herein shall have the meanings indicated in the IBM PartnerWorld Agreement - International Basic General Terms (PWA) and the IBM PartnerWorld Agreement - International Attachment for the Use of IBM Trademarks (PWA Trademark Attachment). Express Offering means one of the IBM Express Advantage Offerings (hardware, software, services). Your Product(s) means your software product to which you retain development code rights or your services. Valid services include customization of a solution to meet customer requirements, integration testing of multiple components, business consulting services, implementation services, or hosted services. Valid services do not include pre-loading of software. Solution means your Product (s) with IBM s Express Advantage Offering. The solution must be commercially available and repeatable. Customer Experience means the information that describes a mid-market customer ( employees unless otherwise approved by IBM) who has implemented Your Product in a production environment on one or more IBM Express Advantage Offering(s). The Customer Experience is valid for twelve (12) months from the date of approval by IBM. Customer Reference means the information that describes a mid-market customer ( employees unless otherwise approved by IBM) who has implemented Your Product in a production environment on one or more IBM Express Advantage Offerings. You will obtain the end-user s written consent to be used as an external reference by IBM. Mark means the graphics representing the Built on IBM Express Advantage Offerings logo. Global Solutions Directory means the Web site maintained by IBM containing information related to software applications at Initial Qualification of Your Solution To participate in the Built on IBM Express Advantage Offerings initiative, you must: (a) maintain membership in IBM PartnerWorld (as determined by IBM PartnerWorld organization) and b) maintain an approved mid-market ( employees) Customer Experience documenting a customer installation of the Solution. You must complete and electronically submit a Customer Experience to IBM. The implementation of Your Product(s) with an IBM Express Offering(s) as documented in the Customer Experience must have occurred no more than twenty-four (24) months prior to your submission of the Customer Experience to IBM. By signing this PartnerWorld Supplement, you affirm that this experience is one in which the Solution has been implemented by you within the last twenty-four (24) months. PWSUTBOE-02 EN Page 1 of 3

2 The Customer Experience submitted under this Supplement requires you to specify the IBM Express Advantage Offering(s) on which Your Product was installed. Upon approval by IBM of your Customer Experience, Your Solution can be designated as Built on IBM Express Advantage Offerings. IBM will inform you of the final acceptance or rejection of your Customer Experience by sending notification to your primary company contact listed with PartnerWorld ( is sufficient). You may submit a Customer Experience for Your Product(s) installed on an IBM Express Advantage Offering(s) only if you currently recommend the IBM Express Advantage Offering(s) to your end-users and potential endusers. You must offer end-user support for Your Product on the IBM Express Advantage Offering specified in the Customer Experience for no less than twelve (12) months following your submission of the Customer Experience. You represent that the information described in the Customer Experience is true to the best of your knowledge. You authorize IBM and/or its agents to contact the end-user identified in any Customer Experience to verify the accuracy of the statements in the Customer Experience and to determine the end-user s satisfaction with Your Product running on the specified IBM Express Advantage Offering(s). Your continued participation in the Built on IBM Express Advantage Offering initiative is subject to your submitting at least one Customer Reference every twelve (12) months. In the event that the facts underlying any submitted Customer Experience or Customer Reference change, you become aware of any facts inconsistent with your submitted material, you modify Your Product, or if at any time you are deprived of the control of Your Product(s) described in the Customer Experience for any reason including, but not limited to, bankruptcy, you agree to resubmit a Customer Experience. If IBM approves the resubmitted Customer Experience, Your Product as described in the Customer Experience will be subject to the terms of this Supplement. A resubmitted Customer Experience approved for inclusion in the Built on IBM Express Advantage Offering initiative shall not affect any term or condition of this Supplement. If the resubmitted Customer Experience is not approved, you agree to promptly cease using the Mark authorized by this Supplement in conjunction with Your Product running on the specified IBM Express Advantage Offering(s). Any Customer Experience and any other end-user information you provide includes the right of IBM to reproduce and/or to summarize the Customer Experience and end-user information, to distribute, to prepare derivative works of the Customer Experience and end-user information, to use and to display such information, excluding some specific end-user data (such as end-user name), internally and externally and the right of IBM to authorize others to do any of the same. If your Customer Experience is approved by IBM, Your Solution can be identified as Built on IBM Express Advantage Offering(s) and you will be licensed to use the Built on IBM Express Advantage Offering Mark for the specified IBM Express Advantage Offering(s) that is included in the approved Customer Experience(s). Any Customer Reference and any other end-user information you provide includes the right of IBM to reproduce and/or to summarize the Customer Reference and end-user information, to distribute, to prepare derivative works of the Customer Reference and end-user information, to use and to display such information, internally and externally and the right of IBM to authorize others to do any of the same. If your Customer Reference is approved by IBM, Your Solution can be identified as Built on IBM Express Advantage Offering(s) and you will be licensed to use the Built on IBM Express Advantage Offerings Mark for the specified IBM Express Advantage Offering(s) that is included in the approved Customer Reference(s). You will obtain the written consents of the end-users for IBM to exercise its rights in the Customer Experiences and Customer References as described above. IBM s verification of: (a) the factual basis for the Customer Experience(s) you submit, (b) the factual basis of any other end-user information IBM requests, and (c) an acceptable level of customer satisfaction with Your Solution shall serve as the primary basis for IBM s decision to grant you the right to use the Marks authorized under the terms of this Supplement. IBM, at its sole discretion, shall determine if Your Solution is accepted into Built on IBM Express Advantage Offering. IBM may require additional end-user information and references as a condition for your participation or continued participation in Built on IBM Express Advantage Offering. You agree to provide such information. PWSUTBOE-02 EN Page 2 of 3

3 3.0 Use of the Mark (see Usage Guidelines for more detailed information) The Mark may be used as specified in Usage Guidelines to signify that Your Product(s) has been implemented with one or more IBM Express Advantage Offerings in a production end-user environment. You may begin using the Mark in your marketing materials in connection with marketing your Product as part of the Solution upon your receipt of written notification from IBM of the approval of your Customer Experience and your acceptance of the terms of this Supplement. You will keep accurate records of your use of the Mark. Upon IBM s request, you will provide all information and items reasonably necessary for IBM to monitor your compliance with this Supplement. 4.0 Term of this Supplement The effective date of this Supplement is the date its terms are accepted by IBM. This Supplement and your license to use the Mark will remain in full force and effect as long as you maintain a valid Customer Experience and Customer Reference approved by IBM. Should you fail to maintain a valid Customer Experience and Customer Reference, this Supplement and your license may be terminated by IBM upon written notice to you. Either of us may terminate this Supplement, with or without cause, on two (2) weeks written notice. Regardless of the cure clause in the PWA, either of us may terminate this Supplement immediately in the case of a breach by the other of a material term. You agree that the terms of this Supplement, the IBM PartnerWorld Agreement - International Attachment for the use of IBM Trademarks and the IBM PartnerWorld Agreement - International Basic General Terms (referred to collectively herein as the "Agreement") are the complete Agreement between us regarding the relationship indicated above, and replace any prior oral or written communications between us regarding this matter. By signing this Supplement you accept the terms of the Agreement without modification. Once signed, any reproduction made by reliable means is considered an original, to the extent permissible under applicable law. You also agree that you are authorized to execute this Agreement for the legal entity on whose behalf you are accepting this Agreement. IBM's acceptance shall be confirmed when we notify you in writing. Accepted: (Business Partner name) By (Authorized signature) (Name) (Date) PWSUTBOE-02 EN Page 3 of 3

4 IBM PartnerWorld Agreement - International Attachment for the Use of IBM Trademarks The terms of the Attachment are in addition to and prevail over the terms of the IBM PartnerWorld Agreement - International Basic General Terms. This Attachment establishes the terms and conditions for your use of designated IBM Trademarks. In order to use the Trademarks specified in the Operations Guide, you must maintain your membership in PartnerWorld and comply with the terms and conditions of this Attachment and the applicable PartnerWorld Supplement for the Use of IBM Trademarks (Supplement). 1.0 Definitions Marketing Materials means advertising, promotional and informational items prepared or distributed by or on behalf of you, such as brochures, specifications, flyers, signs, advertisements, stationery, business cards and Web pages that refer to the Products. Except as may be specifically approved by IBM in writing, Marketing Materials shall not include Your Products, Your Product packaging or ancillary or promotional items including but not limited to clothing, bags, glassware and writing instruments. Operations Guide means the document IBM maintains which describes the specific trademark initiative in detail and is found on an IBM Web site designated in the Supplement. Products or Your Products means the products, goods or services that meet the requirements set forth in the Supplement and Operations Guide. Trademarks means the IBM owned titles, trademarks, registered trademarks and service marks identified in the Operations Guide which you are authorized to use provided you comply with the terms of the applicable Supplement to this Attachment. Your Marks means your trademarks and trade names that you use to identify, market and promote Your Products. 2.0 Trademarks and Your Marks IBM has the sole right to approve or deny you the right to use the Trademarks, to issue you a license to use the Trademarks, and to substitute other marks or logos for any Trademarks it licenses. Subject to the terms of the applicable Supplement to this Attachment, IBM grants you a worldwide, non-exclusive, nontransferable, royalty free, limited license and right to use the Trademarks in your Marketing Materials related to Your Product provided such use is in accordance with the terms specified in this Attachment, the applicable Supplement and Operations Guide. You consent to IBM's commercial use of Your Marks and your company name in advertising, promotional and informational materials, regardless of media, that may be prepared by or on behalf of IBM relating to Your Products. Except as expressly provided herein with respect to Trademarks and Your Marks, neither party acquires any rights in the trademarks of the other party. PWAUT-00 EN Page 1 of 3

5 3.0 Use of Trademarks Trademarks may be used only as specified in the Operations Guide and only in connection with Your Products that meet all of the requirements set forth in the applicable Supplement. You may begin using the Trademarks in your Marketing Materials in connection with Your Product after you have received written confirmation from IBM. You shall display and use the Trademarks only in the form, manner and style required by the trademark guidelines specified in the Operations Guide or a Web site identified by IBM as modified from time to time by IBM. If requested by IBM, you shall provide at your own cost for IBM's review and approval one complete copy of all Marketing Materials you intend to use that bear or display the authorized Trademarks or that otherwise refer to IBM. Such materials shall be provided at least thirty (30) days prior to your use of such Marketing Materials. Should IBM object to any of the Marketing Materials, you shall not use them until either all references to the Trademarks and IBM are removed or until the objections raised by IBM are corrected. Should IBM not object to the Marketing Materials within 10 business days of receipt thereof, they shall be deemed approved. IBM shall have the right to review your Web site and Marketing Materials and to request samples of your Marketing Materials to monitor compliance with the trademark guidelines and you shall promptly provide at your expense such samples upon request. You shall promptly modify at your expense any Marketing Materials or Web pages that bear or display the Trademarks that do not comply with the trademark guidelines or that IBM determines to be inaccurate, objectionable or misleading. In no event shall you use the Trademarks on Web sites or Web pages that include defamatory or immoral material or that violate the rights of any third parties. IBM reserves the right, at any time, to suspend or terminate your use of the Trademarks. You shall not make any statements on or in connection with your use of the Trademarks to suggest, state or imply that IBM warrants Your Products or is the source of, manufactures or services Your Products. Except as permitted by this Attachment, the Supplement and Operations Guide, you shall not make any use of the Trademarks directly or indirectly, or use any marks confusingly similar thereto, and you may not under any circumstances use or seek to register the Trademarks or any marks confusingly similar thereto in or as part of any corporate name, business name, trade name, trademark, service mark, fictitious name, partnership name, domain name, address or other identifier. You shall not take any action that will have an adverse effect on the rights of IBM in the Trademarks or that would diminish or dilute the value, reputation or goodwill of IBM or of the Trademarks including but not limited to challenging IBM's right, title or interest in and to the Trademarks. If required by local law, and upon IBM's request, you shall assist IBM in maintaining its Trademark rights by providing, at no charge, examples of your Marketing Materials which contain IBM Trademarks. You shall insure that Your Products bearing the Trademarks comply with all applicable laws and regulations and meet or exceed any standards or requirements set forth in the applicable Operating Guidelines or Supplement. To the extent that Your Products fail to meet or maintain industry standards for quality or otherwise do not comply with this Attachment or the applicable Operating Guidelines or Supplement, upon notice from IBM you shall cease using the Trademarks on or in connection with or with respect to Your Products and related Marketing Material until the deficiency is corrected. You shall not pledge or otherwise encumber the Trademarks and shall not use the Trademarks as security or collateral for any loans or indebtedness. As required by local law or regulation, you shall be solely responsible to record or register this Agreement with the appropriate government organization. PWAUT-00 EN Page 2 of 3

6 4.0 Representations and Warranties IBM makes no representations and warranties of any kind other than that it is the owner of the Trademarks. IBM is not liable to you or any third party for any damage or loss of any kind arising out of the use of Your Products including, without limitation, any loss of profits (actual or prospective), business, lost business opportunities, revenue, goodwill, savings, anticipated savings, or for any special, indirect, incidental or economic consequential damages, even if advised of their possibility. You represent that: (i) you are solely responsible for the quality, performance, reliability, suitability and compatibility of Your Products and for all claims made by you with respect to Your Products; (ii) all claims made in your Marketing Materials concerning or relating to Your Products, including but not limited to claims of reliability, quality, performance, operation, suitability and compatibility are accurate; and (iii) Your Marks do not infringe upon the rights of any third party. 5.0 Term and Termination The effective date of this Attachment is the date IBM specifies to you in writing. The term of this Attachment and the rights granted hereunder are twelve (12) months unless otherwise noted in the Supplement. This Attachment and all rights granted to you to use the Trademarks may be terminated by IBM upon written notice to you if: (i) you fail to comply with the terms of this Attachment or the applicable Supplement, the Operations Guide or the IBM PartnerWorld Agreement - International Basic General Terms; or (ii) the conditions for terminating the Attachment specified in the Supplement are met. This Attachment and rights granted shall be automatically terminated should either party end the IBM PartnerWorld Agreement International Basic General Terms. Any rights granted to you in this Attachment shall terminate immediately upon the termination or expiration of this Attachment. Within thirty (30) days of expiration or termination of this Attachment, you will remove the Trademarks from your Web site. Within sixty (60) days of expiration or termination of this Attachment, you will cease using the Trademarks in your Marketing Materials and will destroy all Marketing Materials related to the offering specified in the Supplement that incorporates the Trademarks, and IBM will cease using Your Marks in its advertising, promotional and informational items and will destroy all advertising, promotional and informational items related to Your Marks. Termination of this Attachment includes termination of any associated Supplement. PWAUT-00 EN Page 3 of 3