HR_BPSVP2T 02-01 06-2013
Page 1 of 20
IBM Business Partner Agreement for Software Value Plus
This IBM Business Partner Agreement for Software Value Plus (“Agreement”) governs your IBM Business Partner
relationship with IBM as a Remarketer and transactions under such relationship in which you market
the Products
and Services you are approved to market.
1.
Definitions
Customer
– either an End User or a Remarketer.
End User
– a party, who is not part of the Enterprise of which you are a part, who acquires Products or
Services for its own use and not for resale. The term “End User” does not include a party who is part of
the Enterprise of which you are a part.
Enterprise
– any legal entity and the subsidiaries it owns by more than 50%. The term "Enterprise"
applies only to the portion of the enterprise located in the country in which the Business Partner that
signed the Agreement is located, as indicated in the signature block. Any reference to IBM with regard to
Service shall mean the respective IBM Company to which such part of the Agreement shall be assigned .
IBM Business Partner (also called “Business Partner”) –
a business entity that has an IBM Business
Partner Agreement with IBM under which it is approved to market Programs or Services.
Incentive –
a rebate, fee, instant discount, or other benefit or compensation IBM may make available to
Business Partners under this Agreement.
Operations Guide
– the processes, procedures, and other pertinent information which IBM provides to
you in one or more published forms or through our electronic information systems or a combination of
both. In particular, information regarding your relationship requirements will be specified in the
“Participation Criteria” section of the applicable Operations Guide
.
Participation Criteria
– the minimum and mandatory requirements specified for the Remarketer types
and applicable Software Value Plus Programs and Product Groups that the IBM Business Partner must
meet and maintain for marketing the Products and Services.
Program (also called “Product”)
– the following, including the original and all whole or partial copies:
a.
machine-readable instructions and data;
b.
components;
c.
audio-visual content (such as images, text, recordings, or pictures); and
d.
related licensed materials.
The term “Program” includes any IBM Program or non-IBM Program that IBM approves you to market or
may provide to you.
Public Sector End User –
(i) the government of any country, state, province, city, county, town, territory
or other municipality, (ii) any corporation, educational institution or other entity that is owned or controlled
by, or subject to the procurement regulations of, any entity in subsection (i) immediately above and (iii)
any prime contractor who holds a contract with any entity in subsections (i) and (ii) immediately above.
The following entities are not Public Sector End Users: privately-owned and controlled utility companies,
hospitals, and research institutes that operate using non-government funds.
Remarketer
– a business entity that acquires Products or Services for the purpose of marketing.
Service
– performance of a task, provision of advice and counsel, assistance, support, or access to a
resource (such as an information database) that IBM may provide to you or approve you to market.
Any reference to IBM with regard to Service shall mean the respective IBM Company to which such part
of the Agreement shall be assigned
Trademark –
any title, trademark, registered trademark, or service mark (including without limitation the
IBM Business Partner title and emblem) owned by International Business Machines Corporation, which
International Business Machines Corporation may authorize you to use.
Western Europe
–
the following countries: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia,
HR_BPSVP2T 02-01 06-2013
Page 2 of 20
Liechtenstein, Lithuania, Luxemburg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania,
Spain, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom, Vatican State
2.
Marketing Approvals
2.1
Remarketer Types
Remarketer types are based upon respective Product approvals, as specified in the Operations Guide.
Remarketer types include, without limitation, Value-Added Reseller, Solution Provider, and (in countries
where applicable) Government Reseller. The Remarketer type for which you are approved, and the
respective Product Group and Program approvals, are specified under Details of Our Relationship.
2.2
Eligible Programs, Eligible Parties, Eligible Incentives, and Subsequent Approvals
2.2.1
Eligible Programs
Programs you are approved to market are specified under Details of Our Relationship. Such Programs
may be specified individually or as part of a particular “Product Group” in which the Program is included.
Program and Product Group approvals are specified for the respective Remarketer type for which you are
approved.
For Programs that are specified as part of a Product Group, IBM makes a listing of such Programs
available to you on the IBM Internet website specified in the “Product Group” section of the Operations
Guide. You agree to monitor the Operations Guide and the website on a regular basis for changes.
You acquire Programs from a designated IBM Distributor.
2.2.2
Eligible Parties
Parties to whom you are approved to market are specified under Details of Our Relationship.
Government Resellers are only approved to market to Public Sector End Users
,
as specified in the
Operations Guide.
2.2.3
Eligible Incentives
Incentives are described under section 13 (Incentives).
2.2.4
Subsequent Approvals
Any subsequent approvals provided to you by IBM after the contract start date specified under Details of
Our Relationship will be specified in a Details of Our Relationship—Modification. Such subsequent
approvals will be effective on the date IBM specifies to you in writing and will remain in effect through the
remainder of the duration of the contract period specified in this Agreement under Details of Our
Relationship, including any subsequent renewal period, unless IBM notifies you otherwise in writing. If
there is a conflict between the terms of the Details of Our Relationship in this Agreement and the Details
of Our Relationship—Modification, the terms of the Details of Our Relationship—Modification will prevail.
3.
Agreement Structure, Acceptance, and Contract Duration
3.1
Agreement Structure
This Agreement and additional terms provided by IBM in applicable Attachments and Transaction
Documents is the complete agreement regarding your IBM Business Partner relationship with IBM as a
Remarketer of Software Value Plus Products and Services, and replaces any prior oral or written
communications between you and IBM.
Attachments and Transaction Documents are part of this Agreement only for those transactions to which
they apply. Each transaction is separate and independent from other transactions.
3.1.1
Attachments and Transaction Documents
Attachments contain additional terms that apply to your Business Partner relationship. Applicable
Attachments are specified under Details of Our Relationship.
Transaction Documents contain specific details and terms related to individual transactions (for example,
an addendum).
3.1.2
Order of Precedence
If there is a conflict among the terms in the various Agreement documents, 1) the terms of a Transaction
Document prevail over those of an Attachment and this Agreement, and 2) the terms of an Attachment
prevail over those of this Agreement.
HR_BPSVP2T 02-01 06-2013
Page 3 of 20
If there is an order of precedence within a type of Agreement document (for example, a conflict between
the terms of two Attachments to this Agreement), such order will be stated in the applicable documents.
3.2
Acceptance
Unless a handwritten signature is specifically required by IBM, any document required to be signed under
this Agreement may be signed by hand or, where recognized by law, electronically.
Any Attachment or Transaction Document will be signed by both parties if requested by either party.
3.2.1
Your Acceptance of Transaction Documents, Subsequent Attachments, and Details of Our
Relationship—Modifications
You accept the terms of Transaction Documents and any Attachments or Details of Our Relationship—
Modifications provided by IBM after you accept the terms of this Agreement by doing any of the following:
a.
signing them;
b.
marketing or ordering the Product or Service;
c.
accepting or using the Product or Service, or allowing others to do so;
d.
providing the Product or Service to your Customer; or
e.
making any payment, or registering for an incentive opportunity or requesting an incentive payment
for the Product or Service.
3.3
Contract Duration
IBM specifies the contract start date and duration under Details of Our Relationship. Unless IBM
specifies otherwise in writing, the Agreement will be renewed automatically for subsequent two-year
periods. However, you may advise IBM in writing not to renew the Agreement. Each of us is responsible
to provide the other three-months’ written notice if this Agreement will not be renewed.
3.4
Changes to Agreement Terms
In order to maintain flexibility in our relationship, IBM may change the terms of this Agreement by
providing you at least one month's written notice. However, these changes are not retroactive. They
apply, as of the effective date IBM specifies in the notice, only to new orders, ongoing transactions that do
not expire, and transactions with a defined renewable contract period. For transactions with a defined
renewable contract period, you may request that IBM defer the change effective date until the end of the
current contract period.
You acknowledge your agreement to have these changes apply for transactions by (i) placing new orders
for or marketing Products or Services after the change effective date, (ii) failing to request that the change
effective date be deferred until the start of the new renewal period, (iii) allowing transactions to renew
after receipt of the change notice, or (iv) failing to terminate non-expiring transactions prior to the change
effective date.
It may be necessary for IBM to change certain terms without providing the advance notice described
above. The following changes are effective immediately upon written notice from IBM or on the date
specified in the notice and, unless otherwise stated in the notice, apply to new and ongoing transactions
under this Agreement:
a.
those this Agreement states do not require advance notice;
b.
the list of Programs for a particular Product Group unless otherwise limited by this Agreement; and
c.
those relating to safety and security.
Changes to the Agreement terms may be communicated electronically in accordance with section 4.4
(Electronic Communications and Notices on IBM’s Internet Website).
Except as otherwise provided above, for a change to the Agreement to be valid, both of us must agree in
writing. Additional or different terms in any written communication from you are void.
4.
Our Relationship
4.1
Independent Contractors
Both parties are independent contractors, and this Agreement is non-exclusive. Neither party is a legal
representative or legal agent of the other. Neither party 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 the parties.
HR_BPSVP2T 02-01 06-2013
Page 4 of 20
Each party is responsible for its own expenses regarding fulfillment of its responsibilities and obligations
under the terms of this Agreement.
Neither party will assume or create any obligations on behalf of the other or make any representations or
warranties about the other, other than those authorized.
4.2
Dispute Resolution
Each party will allow the other a reasonable opportunity to comply before it claims the other has not met
its obligations under this Agreement, unless otherwise specified in the Agreement.
Unless otherwise
required by applicable law without the possibility of contractual waiver or limitation, i) neither party will
bring a legal action, regardless of form, arising out of or related to this Agreement or any transaction
under it more than two years after the cause of action arose; and ii) after such time limit, any legal action
arising out of this Agreement or any transaction under it and all respective rights related to any such
action lapse.
4.3
Assignment
IBM reserves the right to assign this Agreement, in whole or in part, on written notice. IBM is also
permitted to assign its rights to payments without obtaining your consent. It is not considered an
assignment for IBM to divest a portion of its business in a manner that similarly affects all of its Business
Partners. IBM reserves the right to have this Agreement or any part thereof performed by another IBM
organization or designee.
Your rights under this Agreement are not property rights and, therefore, you can not transfer them to
another party or encumber them in any way. For example, you can not sell your approval to market IBM’s
Products or Services or your rights to use IBM’s Trademarks.
You agree not to assign or otherwise transfer this Agreement, your rights under this Agreement, or any of
its approvals, or delegate any duties, unless expressly permitted to do so in this Agreement or in writing.
Otherwise, any attempt to do so is void.
4.4
Electronic Communications and Notices on IBM’s Internet Website
4.4.1
Electronic Communications
Written communications, including notices to the receiving party’s designated representative, are to be
sent to the address (physical, e-mail or facsimile) specified in this Agreement, an applicable Attachment
or Transaction Document, or the primary relationship contact you specify on your PartnerWorld Profile on
IBM’s PartnerWorld website. The parties consent to the use of electronic means and facsimile
transmissions to send and receive communication in connection with our business relationship arising out
of this Agreement, and such communication is acceptable as a signed writing. An identification code
(called a "user ID") contained in an electronic document is sufficient to verify the sender's identity and the
document's authenticity.
4.4.2
Notices on IBM’s Internet Website
IBM provides some Attachments and Transaction Documents, information regarding changes to
Agreement terms, and other important information regarding your relationship with IBM under this
Agreement on IBM’s Internet website at
http://www.ibm.com/partnerworld
. By accepting this Agreement,
including any Attachment or Transaction Document under this Agreement, you represent that you have
reviewed the applicable terms on the IBM Internet website and you accept those terms. And you agree to
monitor the website on a regular basis for changes.
4.5
IBM’s and Your Responsibilities
a) we may withdraw a Product or Service from:
(1)
a type of Business Partner or a method of distribution with six months notice, and
(2)
marketing at any time.
b.
Failure by either party to insist on strict performance or to exercise a right when entitled does not
prevent either party from doing so at a later time, either in relation to that default or any subsequent
one.
c.
Neither of us is responsible for failure to fulfill non-monetary obligations due to causes beyond the
reasonable control of either of us.
HR_BPSVP2T 02-01 06-2013
Page 5 of 20
d.
IBM does not guarantee the results of its marketing plans.
e.
Each party grants only the licenses and rights specified in this Agreement. No other licenses or
rights (including licenses or rights under patents) are granted either directly, by implication, or
otherwise. The rights and licenses granted to you under the Agreement may be terminated if you
fail to fulfill your applicable payment obligations.
f.
Where approval, acceptance, consent or similar action by either party is required under this
Agreement, such action will not be unreasonably delayed or withheld.
g.
IBM's performance under this Agreement is subject to export licensing, which licensing is beyond
IBM's control and IBM does not assume any responsibility for it. You agree to provide any
information necessary to apply for such approvals and to comply with all conditions of such
approvals.
Notwithstanding the definition of your authorization to market Products and Services, you should be
aware that export, relocation or re-direction of Products and Services and related items is subject to
regulations, for example, of the country of installation, the United States of America and the original
country of export, and may be prohibited by law. It is your responsibility to comply with any such
regulations and to obtain all necessary licenses as applicable.
We may terminate this Agreement on written notice if we have reason to believe that you have
violated these terms or that such violation is likely to occur.
h.
IBM will make any payments under this Agreement at its election to your bank account held in your
name in the country in which the responsibilities have been performed or in which you are located,
in U.S. Dollars or in the local currency of the country in which the responsibilities have been
performed, based on the official exchange rate on the date of payment.
4.6
Your Other Responsibilities
You agree:
a.
For the purposes of this item a, the following additional definitions shall apply:
(1)
Definitions
Business Contact Information
– business-related contact information which you have disclosed to IBM,
including names, job titles, business addresses, telephone numbers and email addresses of your
employees and contractors. For Austria, Italy and Switzerland, Business Contact Information also
includes information about you and your contractors as legal entities (for example, your revenue data and
other transactional information).
Business Contact Personnel
– Your employees and contractors to whom the Business Contact
Information relates.
Data Protection Authority
– the authority established by the Data Protection and Electronic
Communications Legislation in the applicable country or, for non-European Union ( EU) countries, the
authority responsible for supervising the protection of personal data in that country, or (for any of the
foregoing) any duly appointed successor entity thereto.
Data Protection & Electronic Communications Legislation
– (a) the applicable local legislation and
regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of
individuals with regard to the processing of personal data and on the free movement of such data) and of
EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the
electronic communications sector); or (b) for non-EU countries, the legislation and/or regulations passed
in the applicable country relating to the protection of personal data and the regulation of electronic
communications involving personal data, including (for any of the foregoing) any statutory replacement or
modification thereof.
IBM Group
– International Business Machines Corporation of Armonk, New York, USA, its subsidiaries,
and their respective Business Partners and subcontractors.
(2)
You authorise IBM:
(a)
to process and use Business Contact Information within IBM Group for the purpose of
furthering the business relationship between you and IBM Group, including, without
limitation, contacting Business Contact Personnel (by email or otherwise) and marketing
IBM Group products and services (the “Specified Purpose”), on the basis of an
HR_BPSVP2T 02-01 06-2013
Page 6 of 20
“Informative Notice” given by IBM to Business Contact Personnel and the related
obtained consent, whenever required by law; and
(b)
to disclose Business Contact Information to other members of IBM Group in pursuit of
the Specified Purpose only.
(3)
IBM agrees that all Business Contact Information will be processed in accordance with the
Data Protection & Electronic Communications Legislation and will be used only for the
Specified Purpose.
(4)
To the extent required by the Data Protection & Electronic Communications Legislation, you
represent that you have obtained (or will obtain) any consents from (and have issued (or will
issue) any notices to) the Business Contact.
b.
to transfer Business Contact Information outside the European Economic Area, provided that the
transfer is made on contractual terms approved by the Data Protection Authority or the transfer is
otherwise permitted under the Data Protection & Electronic Communications Legislation;
c.
as notification of IBM’s approvals under this Agreement, that IBM may provide information you
provide to IBM in your respective applications and other information you may otherwise provide to
confirm your eligibility or identify marketing opportunities (for example, current certifications and
transaction activity) to the IBM Distributor, and you authorize IBM to do so. You also agree to
obtain any consents needed so that IBM can use the information you provide to IBM for the
intended purpose;
d.
to conduct business activities with IBM (for example, submitting applications and incentive payment
requests) as IBM specifies, which may be in an Operations Guide, using IBM’s automated
electronic system if available. You agree to pay all expenses associated with your use of IBM’s
system (for example, your equipment and communication costs);
e.
as reasonably required for IBM to fulfill its obligations and to review your compliance with this
Agreement, to provide IBM, or IBM’s representative, with sufficient and safe access to your facilities,
systems, information, personnel, and resources, all at no charge to IBM. IBM is not responsible for
any delay in performing or failure to perform caused by your delay in providing such access or
performing your other responsibilities under this Agreement;
f.
for each Product Group you are approved to market, you will —
(1)
maintain the criteria IBM specified to you when we approved you as an IBM Business Partner
under this Agreement, and
(2)
as IBM specifies in the “Participation Criteria” section of the Operations Guide,
(a)
maintain the criteria specified, and
(b)
for each Product Group for which you are approved, you will maintain the capability to
perform the activities that are required;
g.
to maintain trained personnel for the Programs you are approved to market;
h.
to maintain the capability to demonstrate the Programs, as IBM specifies in the Operations Guide;
i.
For the purpose of this item i, "Personal Data" means
any information that may identify an
individual, and, in some countries where it is legally required, legal entities. (You agree:)
(1)
not to use, disclose, or transfer across borders any Personal Data that we provide you, except
to the extent necessary to perform under this Agreement;
(2)
to comply with all applicable data privacy laws and regulations, implement and maintain
appropriate technical and organizational measures and other protections for the Personal
Data, (including, without limitation, not loading any Personal Data which we have provided to
you on (a) any laptop computers or (b) any portable storage media that can be removed from
your premises unless, in each case,(i) such data has been encrypted and (ii) such data is
loaded onto portable storage media solely for the purpose of moving such data to off-site
storage);
(3)
to report to us any breaches of security of Personal Data immediately after discovery thereof if
any Personal Data was, or could be, accessed, used or acquired by an unauthorized person
or compromised in any way;
HR_BPSVP2T 02-01 06-2013
Page 7 of 20
(4)
to cooperate fully i) with us in investigating any such breaches or compromises, ii) with our
requests for access to, correction of, and destruction of Personal Data in your possession, and
(5)
to comply with all instructions or other requirements we provide from time to time relating to
Personal Data.
j.
to maintain your membership as an IBM PartnerWorld participant and participant in PartnerWorld
offerings, as specified in the Operations Guide;
k.
to participate in the marketing activities as requested by IBM;
l.
to retain records, as IBM specifies in the Operations Guide, of each transaction for at least three
years (for example, sales documents identifying your Customer and applicable Product-specific
information, and incentive payment requests) for three years and to provide us relevant records on
request. IBM may reproduce and retain copies of these records;
m.
that when IBM provides you with access to IBM’s information systems, it is only in support of your
marketing activities associated with your IBM Business Partner relationship. Programs IBM provides
to you for your use with IBM’s 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.
You agree you will comply with the license terms and the additional restrictions in this Agreement
and use the Programs only for the purpose for which they were provided to you;
n.
that before you change IBM Distributors, you will provide IBM written notice, as specified in the
Operations Guide. Any limitation on the number of times you may change Distributors will also be
specified in the Operations Guide;
o.
to provide IBM, or your designated Distributor upon its request to you, marketing, sales, installation
reporting, and inventory information for Programs, as we specify in the Operations Guide;
p.
to promptly provide IBM with documents IBM may require from you or the End User (for example,
our license agreement signed by the End User and you) when applicable;
q.
to assist IBM or your designated Distributor in tracing and locating Programs as IBM requires;
r.
if you are approved to market to Remarketers, you will only market to Remarketers who have been
approved by IBM to market the same Products or Services;
s.
to market Programs packaged together as a collection of individual Programs only as such
collection and not separate any individual Program from the collection for purposes of marketing or
transferring the Program; and
t.
you will ensure that the Microsoft Certificate of Authenticity (COA) and Associated Product Material
(APM) included with IBM Products containing Microsoft Programs are not removed and are
provided with the IBM Product to the End User. Such Microsoft Programs are not to be priced
separately.
4.7
Your Responsibilities to Customers
You agree to:
a.
identify and select the required technology based upon the End User’s requirements;
b.
be responsible for your Customer’s satisfaction regarding all of your activities associated with your
Business Partner relationship with IBM, and to participate in customer satisfaction programs as IBM
determines;
c.
inform the Customer of Program installation requirements, and provide configuration support;
d.
comply with the terms regarding Product upgrades as we specify in the Operations Guide;
e.
assist your Customer in Product problem determination and resolution and advise your Customer of
the availability of such support offerings;
f.
subject to IBM’s return policy for a Product, refund the Customer the amount it paid for the Product
when it returns the Product to you. You may return such Products to the IBM Distributor from whom
you acquired them, for credit;
g.
be the primary contact for Product information and support, and assist the Customer in determining
when IBM needs to be contacted for technical support, if applicable. You may delegate these
responsibilities to another IBM Business Partner who is approved to market such Products. If you
do, you retain customer satisfaction responsibilities;
HR_BPSVP2T 02-01 06-2013
Page 8 of 20
h.
provide a dated written record to your Customer, such as a sales receipt or an invoice, which
specifies the End User's name;
i.
inform your Customer 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; and
j.
if you are approved to market Products to Remarketers under this Agreement, require them to
comply with the terms of this section when they market Products to a Customer.
4.8
IBM’s Review of Your Compliance with this Agreement
IBM may periodically review your compliance with this Agreement. You agree to provide IBM with
relevant records on request. IBM may reproduce and retain copies of these records. IBM, or an
independent auditor, may conduct a review of your compliance with this Agreement on your premises
during your normal business hours.
If, during the review of your compliance with this Agreement, it is determined you have failed to comply
with any material term of this Agreement, in addition to IBM’s rights under law and the terms of this
Agreement, for transactions that are the subject of the breach, you agree to refund the amount equal to
any incentive payment IBM gave you for the applicable Products or Services or IBM may offset any
amounts due to you from IBM.
5.
Business Conduct Requirements
5.1
Compliance with Laws
You will comply with all applicable laws and regulations, including, without limitation, the US Foreign
Corrupt Practices Act and the applicable anti-bribery laws and laws governing transactions with
government and public entities, antitrust and competition laws, applicable insider trading, securities and
financial reporting laws, laws governing consumer transactions, and laws regarding data privacy. IBM
will comply with laws applicable to IBM generally as a provider of information technology Products and
Services. IBM is not responsible for determining the requirements of laws applicable to your business or
your End User's business, including those relating to Products and Services that you acquire under this
Agreement, or that IBM's provision of or your or your End User's receipt of particular Products or Services
under this Agreement meets the requirements of such laws. Notwithstanding anything in this Agreement
to the contrary, neither party is obligated to take any action that would violate law applicable to that party.
5.2
Prohibition on Gifts
You agree that you will not offer or make payments or gifts (monetary or otherwise such as travel,
entertainment, meals, and other items of value) to anyone for the purpose of wrongfully influencing
decisions in favor of IBM, directly or indirectly. IBM may terminate this Agreement immediately in case of
1) a breach of this clause or 2) when IBM reasonably believes such a breach has occurred or is likely to
occur.
5.3
IBM Code of Conduct
You agree to comply with the IBM Code of Conduct, a current version of which is available on the
following IBM Internet website:
http://www.ibm.com/partnerworld/pwhome.nsf/weblook/pub_join_memctr_agreement_code.html
.
IBM may change the Code of Conduct at any time by posting a revised Code of Conduct on the above
website or by providing you with notice as otherwise provided in this Agreement. You represent that you
have read the Code of Conduct and agree to monitor the website regularly for changes to the Code of
Conduct. Such changes are effective immediately when they are posted to the website.
If you market to a Remarketer who does not have a contract with IBM subject to section 11 (License
Terms), you agree to require such Remarketer to comply with the Code of Conduct and monitor the
website on a regular basis in accordance with this section 5.3.
5.4
Export and Import
You may actively market Products and Services only within Western Europe. You may market Programs
as permitted by their licensing terms. You may not market outside this scope and you agree not to use
anyone else to do so. Products you export (or which are acquired by a Remarketer for export) outside
such countries will not count toward attainment of your objectives and will not qualify for applicable
promotional offerings and marketing funds. IBM may also reduce future supply allocations to you by the
number of exported Products.
HR_BPSVP2T 02-01 06-2013
Page 9 of 20
5.4.1
Export and Import Restrictions
5.4.1.1 Compliance with Export and Import Laws
You warrant that you:
a.
are and will remain knowledgeable about, applicable export and import laws, regulations, orders,
and policies, including, but not limited to, those of the United States (which, in some instances,
prohibit or restrict in-country marketing to certain Customers);
b.
when you market Products, Services, and technical data, and otherwise in connection with this
Agreement, will comply with such laws, regulations, orders, and policies and will secure all
necessary clearance requirements, export and import licenses and exemptions, and make all proper
filings;
c.
will comply with applicable prohibitions on delivery of Products, prototypes, and technical data and
provision of Services to certain End Users and for certain end uses, including, but not limited to,
nuclear facilities, space or missile systems, and weapons systems (whether chemical, biological, or
otherwise);
d.
will use your best efforts to ensure that your Customer complies with such laws, regulations, orders,
and policies; and
e.
will comply with all additional export and import restrictions in any applicable Attachment or
Transaction Document under this Agreement.
5.4.1.2 Exporting by You
You agree that if you export or import (for example, if you are approved for a geographic scope that
includes multiple countries) Products, Services, and technical data, you, and not IBM, will act as the
exporter or importer.
In addition to your obligations under section 5.4.1.1 (Compliance with Export and Import Laws) above,
you agree that; i) Products and Services may not be marketed to Abu-Dhabi, Bahrain, Bangladesh,
Dubai, Kuwait, Oman, Qatar and Saudi Arabia; and ii) Products may not be marketed to the following
Latin American countries—Belize, Costa Rica, Dominican Republic, El Salvador, Guatemala, Haiti,
Honduras, Nicaragua and Panama.
5.4.1.3 Export and Import Compliance Verification
IBM may, in its sole discretion, require you from time to time to provide IBM with written certification
relating to your compliance with applicable export and import laws or prohibit you from doing business
with certain Customers in order to ensure that you and IBM comply with applicable export and import
laws.
5.4.2
Customer Exports
If a Customer exports a Product outside of Western Europe, 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 Agreement no longer apply to that Product, unless the Product's warranty or license terms
state otherwise, and you agree to notify Customer of same. 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 IBM with the Customer's name and address, machine type/model, and serial
number if applicable, date of sale, and destination country.
5.4.3
Marketing to Remarketers
If under the terms of this Agreement you may market an eligible Product
to a Remarketer who does not
have a contract with IBM for marketing that Product, you agree you will require the Remarket to comply
with applicable export and import laws, regulations, orders, and policies, as specified under section 5.4.1
(Export and Import Restrictions).
If your Remarketer markets an eligible Product to a subsequent Remarketer who does not have a
contract with IBM for marketing that Product, you further agree you will require your Remarketer to require
the subsequent Remarketer to comply with applicable export and import laws, regulations, orders, and
policies, as specified under section 5.4.1.
You further agree you will require your Remarketer to (i) notify its End Users and subsequent
Remarketers of the restrictions and requirements specified under section 5.4.2 (Customer Exports) and
(ii) require subsequent Remarketers to give such notice to their End Users.
HR_BPSVP2T 02-01 06-2013
Page 10 of 20
5.4.4
Third Party Claims
You will indemnify IBM from all claims arising from: (i) your failure to comply with the provisions of this
section 5.4; or (ii) your failure to require, in writing, your Remarketers who do not have a contract with IBM
to market Products to comply with applicable export and import laws, regulations, orders or policies, as
specified under section 5.4.1.1 and to further require your Remarketers to place a similar written
requirement on any subsequent Remarketers to ensure all applicable Remarketers are required to
comply.
5.5
Special Bids
Special bids (for example, a special discount or price) (called “Special Bids”) are provided to you on the
basis that the information you provided to IBM or your Distributor in your Special Bid request is truthful
and accurate. If the information you provided in your Special Bid request changes, you must immediately
notify IBM or your Distributor. In such event, IBM reserves the right to modify the terms of the Special Bid
or to cancel your Special Bid authorization. If you fail to provide truthful and accurate information on
Special Bid requests, then IBM or your Distributor shall be entitled to recover from you (and you shall be
obligated to repay) the amount of any additional discounts IBM provided in the Special Bid and take any
other actions authorized under this Agreement. Special Bid authorizations and the terms applicable to
that Special Bid are IBM’s confidential information, which is subject to the IBM Agreement of Exchange of
Confidential Information.
You accept the terms of the Special Bid by:
a.
accepting the Products or Services for which you are receiving a Special Bid;
b.
providing the Products or Services to your Customer; or
c.
paying for the Products or Services.
The Special Bid discount or price for eligible Products or Services are subject to the following:
a.
no other discounts, incentive offerings, rebates, or promotions apply to the Products and Services,
unless IBM or your Distributor specifies otherwise in writing;
b.
the applicable Products and Services are subject to availability;
c.
you agree to the additional terms contained in the Special Bid Addendum;
d.
you are required to advise the IBM Global Financing
or your Distributor, as applicable, of any
Special Bid pricing for any Products or Services for which you arrange financing; and
e.
you or if applicable, your Remarketer must resell the Product or Service to the End User associated
with the Special Bid by the date indicated in the Special Bid request.
If applicable, you may only market the Products and Services to the Remarketer that you have stated in
the Special Bid request is bidding to the End User for the transaction specified in the Special Bid request.
You are responsible to require your Remarketers who do not have a contract with IBM to market such
Products and Services to comply with the Special Bid terms contained in this Agreement and in the
applicable Special Bid Addendum that IBM or your Distributor provides for the Special Bid.
If you are requesting a specific End User price or discount in your Special Bid, you agree that you will, or
you will require your Remarketer to, as applicable, ensure that the intended End User receives the
financial benefit of the Special Bid.
5.5.1
IBM’s Audit of Special Bid Transactions
IBM may audit any Special Bid transactions in accordance with the terms of section 4.8 (IBM’s Review of
Your Compliance with this Agreement). Upon IBM’s request, you agree to provide IBM or our auditors
with documentation including, but not limited to, evidence i) of shipment of the applicable Special Bid
Products to the designated End User, ii) such as invoices, purchase orders, or other documentation when
the Special Bid is based on pricing requested for the End User, or iii) that you or your Remarketer, as
applicable, own and use the Special Bid Products for at least the Service Period to provide to End Users
the service offerings described in the Details of IBM Special Bid.
You are prohibited from entering into agreements with others or otherwise accepting obligations that
restrict IBM’s ability to audit Special Bid transactions. If you violate this prohibition, IBM or your
Distributor may invalidate the Special Bid and charge you for each Special Bid Product up to the
difference between (i) the discounted price to which you are entitled on the date of the Special Bid
Addendum, and (ii) the amount IBM invoiced you.
HR_BPSVP2T 02-01 06-2013
Page 11 of 20
6.
Marketing Funds and Promotional Offerings
IBM may provide marketing funds and promotional offerings to you. If we do, you agree to use them
according to IBM’s guidelines and to maintain records of your activities regarding the use of such funds
and offerings for no less than three years. IBM may withdraw or recover marketing funds and
promotional offerings from you if you fail to comply with 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 IBM specifies otherwise in writing.
7.
Status Change
You agree to give IBM prompt written notice (unless precluded by law or regulation) of any change or
anticipated change in your financial condition, business structure, or operating environment (for example,
a material change in equity ownership or management or any substantive change to information you
provided to IBM when you applied to become an IBM Business Partner). Upon notification of such
change, (or if you fail to give notice of such change) IBM may, at its sole discretion, terminate this
Agreement on written notice to you.
8.
Confidential Information and Nondisclosure
If either party desires to exchange confidential information, such exchange will be governed by the IBM
Agreement for Exchange of Confidential Information (“AECI”). Each party accepts the terms of the AECI
by signing the AECI or by accepting the IBM Business Partner Agreement or another document that
incorporates the AECI by reference. Except as provided in this section 8, confidential information should
be marked with a restrictive legend or otherwise identified by the disclosing party as confidential at the
time of disclosure subject to the terms of the AECI. If there is a conflict between the terms of this section
8 and those of the AECI, the terms of this section 8 will prevail.
Generally, all information exchanged between IBM and you is considered nonconfidential. However, the
following information is always considered confidential, regardless of whether it is marked with a
restrictive legend or otherwise identified as confidential at the time of disclosure:
a.
information on IBM’s Internet website that is contained in a restricted-access database to which IBM
provides you access;
b.
IBM’s sales leads and information regarding IBM’s prospects or customers;
c.
unannounced information regarding Products and Services; and
d.
IBM’s business and marketing plans and strategies.
You agree not to disclose confidential information to IBM unless IBM specifically requests it.
Except as otherwise allowed under this section
8, neither party will disclose the terms of this Agreement,
unless both parties agree in writing to do so, or unless required by law.
Either party may disclose the terms of this Agreement to the Business Partner’s designated IBM
Distributor, unless otherwise prohibited by this Agreement.
9.
Liability
Circumstances may arise where, because of a default or other liability, one of us is entitled to recover
damages from the other. The following terms apply as your exclusive remedy and our exclusive liability.
9.1
IBM’s Liability
Regardless of the basis on which you are entitled to claim damages from IBM (including fundamental
breach, negligence, misrepresentation, or other contract or tort claim), IBM’s entire liability for all claims in
the aggregate arising from or related to each Product or Service or otherwise arising under this
Agreement will not exceed the amount of any actual direct damages up to the greater of U.S. $100,000
(or equivalent in local currency) or the charges (if recurring, 12 months’ charges apply) for the Product or
Service that is the subject of the claim.
This limit also applies to any of IBM’s subcontractors and Program developers. It is the maximum for
which IBM and its subcontractors and Program developers are collectively responsible.
Damages for bodily injury (including death) and damage to real property and tangible personal property
for which IBM is legally liable are not subject to a cap on the amount of damages.
HR_BPSVP2T 02-01 06-2013
Page 12 of 20
9.2
Items for Which IBM Is Not Liable
Except as expressly required by law without the possibility of contractual waiver, under no circumstances
is IBM, its subcontractors, or Program developers liable for any of the following even if informed of their
possibility:
a.
loss of, or damage to, data;
b.
special, incidental, exemplary, or indirect damages, or for any economic consequential damages; or
c.
lost profits, business, revenue, goodwill or anticipated savings.
No right or cause of action for any third party is created by this Agreement, or any transaction under it,
nor is IBM responsible for any third party claims against you except as permitted by this Liability section
for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally
liable to that third party.
9.3
Your Liability
In addition to damages for which you are liable under applicable law or the terms of this Agreement, you
will indemnify us for claims made against us by others arising out of your conduct under this Agreement
or as a result of your relationship with any third party, including without limitation any claim based on
representations, statements, claims or warranties not authorized by IBM.
10.
IBM’s Trademarks
For the purpose of this section 10, “IBM” means “International Business Machines Corporation.”
You may use the IBM Business Partner title and emblem and any other Trademark IBM may specify to
you. YOU ARE NOT AUTHORIZED TO USE IBM’s “8-BAR” LOGO.
IBM will specify Trademarks you
are authorized to use in the applicable Operations Guide for the specific Trademark initiative. You agree
that your use of such Trademarks may be subject to additional terms and limitations in a separate
agreement with IBM. You agree to comply with all terms governing your use of IBM’s Trademarks.
IBM will notify you in writing of the applicable IBM Business Partner title and emblem you are authorized
by IBM to use. You may not modify the IBM Business Partner emblem in any way. IBM makes written
guidelines regarding the use of the IBM Business Partner title and emblem available to you on IBM’s
Internet website at
http://www-01.ibm.com/partnerworld/pwhome.nsf/weblook/emblem_welcome.html
.
You are responsible for monitoring the website on a regular basis for any changes IBM may make to the
guidelines.
You may use the Trademarks only:
a.
within Western Europe;
b.
in association with IBM’s Products and Services you are approved to market; and
c.
as described in the written guidelines provided to you by IBM.
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 IBM’s Products and Services.
You agree to promptly modify, at your expense, any advertising or promotional materials that do not
comply with IBM’s guidelines. If you receive any complaints about your use of a Trademark, you agree to
promptly notify IBM. When this Agreement terminates, you agree to promptly stop using IBM’s
Trademarks. If you do not, you agree to pay any expenses and fees IBM incurs in getting you to stop.
You agree not to register or use any mark that is confusingly similar to any of IBM’s Trademarks.
IBM’s Trademarks, and any goodwill resulting from your use of IBM’s Trademarks, belong to IBM.
11.
License Terms
11.1
IBM License Terms
IBM Programs are subject to this Agreement and additional Program license terms. In particular, 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 their associated License Information documents) for each IBM Program. The license
agreements applicable to a Program are referred to in this section as “License Documents.” IBM makes
License Documents available on the following IBM Internet website:
http://www-
03.ibm.com/software/sla/sladb.nsf
.
HR_BPSVP2T 02-01 06-2013
Page 13 of 20
IBM may provide additional instructions regarding License Documents in the Operations Guide.
Collectively, the License Documents are referred to as the “IBM License Terms.”
11.2
Non-IBM License Terms
Non-IBM Products are subject to the terms of any agreements provided by the non-IBM supplier or
manufacturer of that Product.
IBM provides non-IBM Products WITHOUT WARRANTIES OF ANY KIND, unless IBM specifies
otherwise. However, the non-IBM manufacturers, suppliers, or publishers may provide their own
warranties.
For non-IBM Products IBM approves 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.
11.3
Marketing to End Users
When you market directly to an End User, you agree to ensure the appropriate License Documents are
provided to the End User in a format sufficient to create an enforceable agreement under applicable
country law (for example, certain countries require contracting in hard copy format) before the sale to the
End User is finalized.
11.4
Marketing to Remarketers
If either by law or under the terms of this Agreement you may market to Remarketers and you market an
eligible Program to a Remarketer who does not have a contract with IBM for marketing that Program, you
agree to i) ensure the appropriate License Documents are provided to your Remarketer, and ii) require
the Remarketer to provide them to the End User in a format sufficient to create an enforceable agreement
under applicable country law (for example, certain countries require contracting in hard copy format)
before the sale is finalized. You further agree to require such Remarketer to comply with the IBM Code
of Conduct, a current version of which is available on the following IBM Internet website:
http://www.ibm.com/partnerworld/pwhome.nsf/weblook/pub_join_memctr_agreement_code.html
, and to
monitor the website regularly for changes to the Code of Conduct.
11.5
Programs Installed on Behalf of End Users
If you are installing IBM Programs for the End User, you further agree to i) secure legally enforceable
documentation confirming that the End User has accepted the License Documents and has authorized
you 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.
If you market IBM Programs to Remarketers who install IBM Programs for the End User, for those
Remarketers who do not have a contract with IBM, you further agree to require your Remarketer to fulfill
the obligations in the preceding paragraph in its agreements with End Users.
11.6
Subsequent Remarketers
If your Remarketer markets an eligible Program to other Remarketers who do not have a contract with
IBM for marketing that Program, you further agree to require your Remarketer to provide the License
Documents to its subsequent Remarketers and to require its subsequent Remarketers to comply with the
IBM Code of Conduct in accordance with this section and to require such subsequent Remarketers to
comply with the terms in this section in their agreements with End Users and any other Remarketers.
11.7
Your Additional Responsibilities
You agree to provide assistance your Remarketers may require from you regarding their responsibilities
under this section.
To the extent you fail to fulfill your obligations under this Agreement to i) provide any License Documents
to an End User or Remarketer, ii) provide the IBM Code of Conduct to a Remarketer, or iii) require your
Remarketers to fulfill their similar obligations, you agree to reimburse IBM for reasonable costs and other
amounts IBM may incur as a result of such failure, including costs and other amounts incurred pursuing
remedies against an End User relating to the End User's failure to comply with the applicable License
Documents.
HR_BPSVP2T 02-01 06-2013
Page 14 of 20
12.
Demonstration and Development Products
Products IBM makes available for demonstration, development, and evaluation purposes and instructions
for acquiring such Products are specified in the Operations Guide. Your acquisition and use of such
Products will be subject to a separate agreement with IBM, the Program’s applicable license terms, and
any additional terms IBM may include in this Agreement regarding Products you are approved to market
under this Agreement (for example, in an applicable Attachment).
13.
Incentives
13.1
Definitions for Incentives Section
The following terms are defined for the purpose of this section 13 and associated Attachments:
Eligible Product
– a Product or Product Group IBM specifies under the “Eligible Product List” for a
particular Incentive in the Operations Guide or which IBM approves as part of any Value Add. Part
numbers which do not include IBM Program licenses (such as an annual software subscription and
support renewal), and Programs IBM provides in a tangible format are not eligible, unless otherwise
specified by IBM.
Eligible Transaction
– the sale of an Eligible Product to an End User, where the opportunity for such
sale was submitted to IBM by you and approved for the applicable offering according to IBM’s instructions
and meets the requirements specified in the Operations Guide. However, IBM excludes all transactions
covered under any other agreement with IBM (for example, an OEM or ASL agreement) and any other
exclusions or restricted transaction types specified in the Operations Guide.
IBM Sales Order Date
– the date a sales order is created within the IBM ordering system as the result of
IBM’s receipt of an order, which has been issued to IBM in connection with an Eligible Transaction.
Identification
– the identifier IBM provides to you (for example, a solution identification number or
opportunity number) which must be included with each order for Eligible Products that are part of a
Solution Transaction to verify your eligibility for Incentives or pricing from your Distributor.
Solution Transaction –
the sale of an Eligible Product incorporating any applicable Value Add.
Value Add –
a software application, a service, or combination of a software application and a
service built
around IBM software technology, or other value add, as described
in the applicable Operations Guide.
The Value Add must be approved and validated by IBM and assigned an Identification, if applicable, as
specified in the Operations Guide.
13.2
Incentives Overview
IBM may provide Incentives for marketing certain Products and Services which results in an Eligible
Transaction. Incentives and eligibility requirements are specified in the applicable Operations Guide.
Certain Incentives may require additional terms, which will be provided by IBM in an applicable
Attachment.
Some Incentives are provided through IBM Distributors and, for these Incentives, IBM may publish a
specific discount grid which contains the suggested discount from Distributors to their Remarketers.
However, the actual discount a Remarketer receives from a Distributor is determined solely by the
Distributor and not IBM.
As specified in the Operations Guide, you agree to notify IBM in writing if your Enterprise is participating
in IBM offerings identified in the Operations Guide as being mutually-exclusive. You may not participate
in a mutually-exclusive offering unless otherwise specified in the Operations Guide. Additionally, for
some Eligible Transactions, applicable Incentives may be mutually-exclusive.
13.3
Your Responsibilities Regarding Incentives
You agree:
a.
to provide a single point of contact, as specified in the Operations Guide;
b.
that Incentives will only be applicable on Eligible Transactions that are processed through your
designated Distributor or IBM, as applicable, unless otherwise approved by IBM;
c.
to submit the Eligible Transaction opportunity to IBM in the period of time and format specified in the
Operations Guide. IBM will confirm or reject opportunities you submit to IBM in a reasonable time
period, as specified in the Operations Guide;
HR_BPSVP2T 02-01 06-2013
Page 15 of 20
d.
to provide IBM with the required supporting documentation in the period of time, as specified in the
Operations Guide;
e.
to monitor the Operations Guide on a regular basis for changes to the listing of Eligible Products;
f.
to provide to your Distributor your Identification, as specified in the Operations Guide;
g.
to use only currently-marketed and supported Eligible Products with any Value Add; and
h.
you will revalidate your Value Add each year as specified in the Operations Guide.
13.4
Incentives and Payment
a.
Any Incentive IBM provides will be 1) for Eligible Transactions and 2) based on activities you
perform, as specified in the Operations Guide.
b.
Eligible Transactions are determined at IBM’s sole discretion.
c.
You earn the Incentive when the order, which meets the criteria of an Eligible Transaction, is
processed by IBM and IBM receives from you the required documentation, as specified in the
Operations Guide.
d.
IBM specifies Incentive calculations and provides Incentives, as specified in the Operations Guide.
e.
You agree to submit a request for payment to IBM for the amount and in the format and period of
time, as IBM specifies in the Operations Guide. Payment processes will be specified in the
Operations Guide.
f.
For a Solution Transaction, if the Value Add is a specified percentage of the combined total billed
value of the transaction the specific percentage required and any additional requirements, if any, for
the sale, will be provided in the applicable Operations Guide. Billing for the transaction may be on
one or more invoices from you, or from you and IBM (if specified as applicable by IBM), but must be
generated within a particular period of time, as specified in the Operations Guide. The value of the
Eligible Products is calculated as specified in the Operations Guide.
g.
If for any reason an Eligible Product you marketed is returned to IBM or if IBM either overpays you
or pays you an Incentive which is later determined by IBM to be unearned, you agree to reimburse
IBM the amount of such Incentive or overpayment upon IBM’s notice to you and within the period of
time IBM specifies in such notice.
h.
If you receive an Incentive
for an Eligible Transaction, you may be ineligible to receive Incentives for
the same transaction under any other offerings.
i.
IBM may withhold the Incentives earned under this Agreement if you owe IBM funds either under
this Agreement or for another IBM offering.
13.5
Request for Fees or Compensation
Prior to your participation, and your submission of any request for fees or other compensation, under the
terms of this Agreement you are required to (i) ensure that you are eligible to receive fees or other
compensation subject to the terms of this Agreement in compliance with all applicable laws, including any
anti-bribery and anti-kickback rules and regulations, and (ii) complete any legally required, or otherwise
commercially appropriate disclosure in writing to the End User regarding such requested fee or other
compensation.
13.6
Marketing to Public Sector End Users
If you are eligible for fees or compensation for marketing Products and Services under this Agreement to
Public Sector End Users, either directly or indirectly, (for example, by involving a third party) you will not
be eligible for such fees or other compensation if you hold a contract with the Public Sector End User to
advise on the selection of products and services. When you market to Public Sector End users for whom
you do not hold a contract with the Public Sector End User to advise on the selection of products and
services, if required by law or by such End User’s policies and procedures, you must notify the Public
Sector End user in writing of your role in marketing IBM Products and Services including that you may
receive a fee from IBM for such marketing activities and provide IBM with a copy of the written notice. In
the event you violate any of the provisions of this paragraph, IBM is not liable to pay you fees or other
compensation for the subject transaction, and if we have already paid you such fees or other
compensation, you agree to repay it promptly on demand.
HR_BPSVP2T 02-01 06-2013
Page 16 of 20
14.
Agreement Termination
Regardless of the contract duration specified in the Details of Our Relationship, or any renewal period in
effect, either party may terminate this Agreement on three months' written notice to the other. If, under
applicable law, a longer notice period is mandatory, then the notice period is the minimum notice period
allowable.
If either party fails to comply with a material term of this Agreement, the other party may terminate this
Agreement on written notice to the non-compliant party. Examples of such breach by you are: if you do
not maintain customer satisfaction, if you repudiate this Agreement, if you make any material
misrepresentation to us, if you request fees or other compensation for the marketing of products and
services to Public Sector End Users while holding a contract with the Public Sector End User to advise on
the selection of products and services or if you submit a project form for a fee payment under this
Agreement requesting approval to market IBM Products and Services to Public Sector End Users while
holding a contract with the Public Sector End User to advise on the selection of products and services or
if you do not fulfill your responsibilities regarding licensing agreements.You agree that IBM’s only
obligation to you regarding notice of termination is to provide the notice called for in this section 14
(Agreement Termination) and IBM is not liable for any claims against you or losses you may incur if IBM
terminates this Agreement with no additional notice.
License termination is specified in the applicable Program license agreement. Termination of a Service is
specified in an applicable Attachment.
You agree that if IBM permits you to perform certain activities after Agreement termination or non-renewal
(for example, to complete the fulfillment of an order to your Customer), you will do so within the period of
time IBM specifies and under the terms of this Agreement.
Any terms of this Agreement, which by their nature extend beyond Agreement termination, remain in
effect until fulfilled and apply to respective successors and assignees.
15.
Governing Law and Arbitration/Jurisdiction
Both parties agree to the application of the substantive laws of Austria to govern, interpret, and enforce all
of your and IBM’s respective rights, duties and obligations arising from, or relating, in any manner to, the
subject matter of this Agreement, without regard to conflict of law principles.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of the
Agreement remain in full force and effect.
The "United Nations Convention on Contracts for the International Sale of Goods" does not apply.
All disputes arising out of this Agreement or related to its violation, termination or nullity shall be finally
settled under Rules of Arbitration and Conciliation of the Federal Economic Chamber in Vienna (Vienna
Rules) by three arbitrators appointed in accordance with these rules. The arbitration shall be held in
Vienna, Austria and the official language of the proceedings shall be English. The decision of the
arbitrators shall be final and binding upon both parties. The clause set forth above shall, however, in no
way limit IBM's right to institute proceedings in any competent court.
HR_BPSVP2T 02-01 06-2013
Page 17 of 20
IBM Business Partner Agreement for Software Value Plus
Details of Our Relationship
1.
Contract Start Date and Duration
Start Date:
Duration:
Two Years
Territory
:
2.
Product Group and Remarketer Type Approvals
Note: Product Groups specified in this section are approved only for the respective Remarketer type in
the adjacent column.
Product Group
Remarketer Type Approval
(“Yes” indicates approval)
Solution
Provider
Value-
Added
Reseller
Government
Reseller
3.
Parties to Whom You Are Approved to Market
“Yes” indicates approval.
Note: you must first be approved as a Government Reseller for the approval to market to Public Sector
End Users Only to apply.
All End Users __________ Public Sector End Users Only_________ Remarketers __________
HR_BPSVP2T 02-01 06-2013
Page 18 of 20
4.
Attachments and Associated Product Groups
4.1
Attachments
Attachments for which you are approved are specified in this section.
Attachment Name
“Yes”
indicates
approval.
IBM Business Partner Agreement—Attachment for Primary Support Provider (EMEA-
_BPSVPPSPS)
IBM Business Partner Agreement—Attachment for Business Partner-Led Model
(BPSVPBPLM)
IBM Business Partner Agreement—Attachment for Machines Acquired for Appliances and
Workload Optimized Systems (BPAMWOS)
IBM Business Partner Agreement—Attachment for Financing Services from IBM (BPAFSI)
4.2
Associated Product Groups and Programs
Product Groups and Programs associated with the Primary Support Provider and Business Partner-Led
Model Attachments in section 4.1 are specified below in this section 4.2, as applicable.
Note: these Product Groups and Programs can only be equal to or a subset of those approved for
Remarketer types Solution Provider and Value-Added Reseller.
4.2.1
Primary Support Provider
Note: the Primary Support Provider Attachment must be approved in section 4.1 for the respective
Product Groups and Programs in this section to apply.
Product Group / Program
4.2.2
Business Partner-Led Model
The Business Partner-Led Model Attachment must be approved in section 4.1 for the respective Product
Groups in this section to apply.
In the following matrix, applicable Coverage Groups will be specified in the column(s) to the right of the
column on the left that specifies the applicable Product Group or combination of Product Groups, and
“Yes” is used to specify the Coverage Group(s) to which the Product Group or combination of Product
Group apply.
Coverage Groups
Product Group
HR_BPSVP2T 02-01 06-2013
Page 19 of 20
5.
Electronic Acceptance
If an electronic contracting method is used to accept the terms of this Agreement, the contract start date,
duration, and the details of the approvals for this Details of Our Relationship and any subsequent Details
of Our Relationship—Modification will be provided to you in IBM’s electronic approval confirmation, which
will be provided to the primary relationship contact that is specified in your profile on the IBM
PartnerWorld Internet website.
This IBM Business Partner Agreement for Software Value Plus, including its applicable Attachments and
Transaction Documents, is the complete agreement between you and IBM regarding your IBM Business Partner
relationship with IBM as a Remarketer under which you market and obtain certain Programs licenses and
Services and replaces any prior oral or written communications between you and IBM. In entering into this
Agreement, including each Attachment and Transaction Document, neither party is relying on any representation
that is not specified in this Agreement including without limitation any representations concerning: i) estimated
completion dates, hours, or charges to provide any Service; ii) performance or function of any Program or system,
other than as expressly warranted by IBM; iii) the experiences or recommendations of other parties; or iv) results
or sales you may achieve. Additional or different terms in any written communication from you are void.
Each party accepts the terms of this Agreement by signing this Agreement (or another document that
incorporates this Agreement by reference) by hand or, where recognized by law, electronically. Once signed, i)
any reproduction of this Agreement made by reliable means (for example, electronic image, photocopy or
facsimile) is considered an original and ii) all Programs marketed under this Agreement are subject to it. Each
party accepts the terms of the IBM Agreement for Exchange of Confidential Information subject to section 8
(Confidential Information) of this Agreement. You further agree to comply with the terms of the Code of Conduct
subject to section 5.3 (Code of Conduct) of this Agreement.
After signing this Profile, please return a copy to the IBM address shown below.
Date received by IBM: __________
Agreed to:
Agreed to:
IBM Ireland Product Distribution Limited (“IBM PDL“)
By: ______________________
By: _______________________
HR_BPSVP2T 02-01 06-2013
Page 20 of 20
(Authorized signature)
(Authorized signature)
Name (type or print):
Name (type or print):
Date:
Date:
IBM Business Partner Address:
IBM Address:
Oldbrook House
24-32 Pembroke Road
Ballsbridge
Dublin 4, Ireland
.
