Remarketer Terms Attachment Table of Contents

Transcription

1 IBM Business Partner Agreement Remarketer Terms Attachment Table of Contents 1. Our Relationship Responsibilities Other Responsibilities Ordering and Delivery Inventory Adjustments Price, Charges, Invoicing, Payment and Taxes Price, Charge, and Discount Price, Charge, and Discount Changes Invoicing, Payment and Taxes Failure to Pay Any Amounts Due Marketing to End Users and Remarketers Marketing to End Users Marketing to Remarketers Programs Installed on Behalf of End User Subsequent Remarketers Your Additional Responsibilities Programs ICA Programs ICA Programs and Definitions Warranty Extent of Warranties License Authorized Use Your Additional Obligations Actions You May Not Take Distributed System License Option Program Services Compliance Verification License Termination Machines Title and Risk of Loss Installation, Warranty, and Warranty Service Date of Installation and Warranty Start Date Installation of Machine Features, Conversions, and Upgrades Warranty Service Machine Code Internal Use, Demonstration, Development and Evaluation Products Services Remarketing of Services Other Responsibilities Service Charge Services Requirements Changes...13 BPRT Page 1 of 171

2 Termination of Services Marketing of Services Request for Fee Payment and Compensation Marketing to Public Sector End Users Fee for Marketing Services Lead Pass Fee Fees and Compensation for Services Services We Perform As Your Subcontractor Engineering Changes Termination...15 BPRT Page 2 of 171

3 IBM Business Partner Agreement 1. Our Relationship Remarketer Terms Attachment As an IBM Business Partner, you market to your Customers Products and Services (including shrink-wrap Services). The terms of this Attachment govern IBM Business Partner Remarketer relationships whose method of distribution is under IBM s remarketer terms, including without limitation Distributors, Reseller, Solution Provider, and Systems Integrator relationships. 1.1 Responsibilities Each of us agrees: a. each of us is free to set its own prices and terms; b. neither of us will discuss its customer prices and terms in the presence of the other; and c. that the terms of the Agreement related to your acquisition of Products or Services directly from us (for example, those in the sections entitled Ordering and Delivery, Inventory Adjustments, and Price, Charges, Invoicing, Payment and Taxes ) are not applicable for Products and Services you acquire from other than us. Unless we specify otherwise, these acquisitions do not count toward (1) your minimum attainment, (2) determination of your discount or price, as applicable, or (3) determining your marketing or promotional funds. All other terms apply. 1.2 Other Responsibilities PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Italy You agree to: a. refund the amount paid for a Product or Service returned to you if such return is provided for in its warranty or license. You may return the Product to us for credit at our expense, as we specify in an Operations Guide; b. provide us with sufficient, free and safe access to your facilities, at a mutually convenient time, for us to fulfill its obligations; c. retain records, as we specify in an Operations Guide, of each Product and Service transaction (for example, a sale or credit) for at least three years; d. provide us with marketing, sales, installation reporting and inventory information for our Products and Services, as we specify in an Operations Guide; e. when you are approved to market to Remarketers selective distribution Products and Services, market them only to Remarketers that IBM specifically approves to market such Products and Services; f. comply with all terms regarding Program upgrades; g. provide a dated sales receipt (or its equivalent, such as an invoice) as we specify in an Operations Guide, to your Customers, before or upon delivery of Products and Services; h. report to us any suspected Product defects or safety problems, and to assist us in tracing and locating Products; i. upon our request, for Products and Services we specify, participate in or conduct solution and system assurance reviews as we specify. If you are approved to market such Products and Services to Remarketers, you agree to inform them of the requirement for them to participate in or conduct such reviews; and j. not separate Machines from Programs when they are shipped together, and to provide them to Customers as IBM provides them to you. Terms regarding non-ibm licensed Programs are specified in the Exhibit. BPRT Page 3 of 171

4 2. Ordering and Delivery PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Algeria, Angola, Botswana, Armenia, Azerbaijan, Bahrain, Belarus, Benin, Bosnia-Herzegovina, Bulgaria, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Croatia, D.R. of Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Gabon, Gambia, Georgia, Ghana, Guinea, Guinea-Bissau, Hungary, Ivory Coast, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Latvia, Lebanon, Liberia, Libya, Lithuania, Madagascar, Malawi, Mali, Malta, Mauritania, Mauritius, Moldavia, Montenegro, Morocco, Mozambique, Niger, Nigeria, Oman, Pakistan, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Somalia, Tajikistan, Tanzania, Togo, Tunisia, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe You may order Products and Services from us as we specify in an Operations Guide. You agree to order them in sufficient time to count toward your minimum attainment, if applicable. We will agree to a location to which we will ship. We may establish criteria for you to maintain at such location (for example, certain physical characteristics, such as a loading dock), as we specify in an Operations Guide. Upon becoming aware of any discrepancy between our shipping manifest and the Products and Services received from us, you agree to notify us immediately. We will work with you to reconcile any differences. Although we do not warrant delivery dates, we will use reasonable efforts to meet your requested delivery dates. We select the method of transportation and pay associated charges for Products and Services we ship. However, you agree to pay transportation and associated charges when we specify in writing. We may not be able to honor your request for modification or cancellation of an order. We may apply a cancellation charge for orders you cancel within 10 business days before the order is scheduled to be shipped. If a cancellation charge applies, we will specify the cancellation percentage in the Exhibit. We will advise you if the cancellation charge applies to an order you cancel. 3. Inventory Adjustments PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Benin, Bosnia-Herzegovina, Botswana, Bulgaria, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Congo, Croatia, D.R. of Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Gabon, Gambia, Georgia, Ghana, Guinea, Guinea-Bissau, Hungary, Italy, Ivory Coast, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Latvia, Lebanon, Liberia, Libya, Lithuania, Madagascar, Malawi, Mali, Mauritania, Mauritius, Moldavia, Montenegro, Mozambique, Niger, Nigeria, Oman, Pakistan, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Somalia, Tajikistan, Tanzania, Togo, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe We will specify in Exhibit the Products and Services to which this section applies. Products and Services you return to us for credit must have been acquired directly from us. You must request and receive approval from us to return the Products and Services. Products and Services must be received by us within one month of our approving their return, unless we specify otherwise to you in writing. We will issue a credit to you when we accept the returned Products and Services. Certain Products may be acquired only as Machines and Programs packaged together as a solution. These Products must be returned with all their components intact. For certain Products and Services you return, a handling charge applies. We will specify the handling charge percentage in the Exhibit. We determine your total handling charge by multiplying the inventory adjustment credit amount for the Products and Services by the handling charge percent. You agree to pay transportation and associated charges for Products and Services you return. Unless we specify otherwise, returned Products and Services must be in their unopened and undamaged packages. BPRT Page 4 of 171

5 You agree to ensure the returned Products and Services are free of any legal obligations or restrictions that prevent their return. We accept them only from locations within the country to which we ship Products and Services. We will reject any returned Products and Services that do not comply with these terms. 4. Price, Charges, Invoicing, Payment and Taxes 4.1 Price, Charge, and Discount PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Zimbabwe The price, charge, and discount if we specify one, for each Product and Service will be made available to you in a communication which we provide to you in published form or through our electronic information systems or a combination of both. The price or charge for each Product and Service is the lower of the price or charge in effect on the date we receive your order, or the date we ship a product or "shrink-wrap" Service, or the start date of a Service, if it is within three months of the date we receive your order. 4.2 Price, Charge, and Discount Changes We may change prices and charges and increase discounts at any time unless we specify otherwise in this Attachment. We will inform you of any price and charge changes and endeavor to give you prior price and charge change notification. We may decrease discounts on one month's written notice. We will specify in your Exhibit if the following credit terms do not apply to Products and Services we approve you to market. If we decrease the price or charge or increase the discount for a Product or Service, you will be eligible to receive a price or charge decrease credit or a discount increase credit for those you acquired directly from us that are in your inventory, or in transit, or if the Product's date of installation or Service start date has not occurred. However, Products acquired from us under a special offering (for example, a promotional price and charge or a special incentive) may not be eligible for a full credit. You must certify your inventory to us in writing within one month of the effective date of the change. The credit is the difference between the price or charge you paid, after any adjustments, and the new price or charge. 4.3 Invoicing, Payment and Taxes PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Algeria, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Benin, Bosnia-Herzegovina, Botswana, Bulgaria, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Croatia, Czech Republic, D.R. of Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, France, Gabon, Gambia, Georgia, Ghana, Guinea, Guinea-Bissau, Hungary, Israel, Italy, Ivory Coast, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Lebanon, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Moldavia, Montenegro, Morocco, Mozambique, Netherlands, Niger, Nigeria, Oman, Pakistan, Poland, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, Tajikistan, Tanzania, Togo, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe Amounts are due and payable upon receipt of invoice. You agree to pay accordingly, including any late payment fees. If payment for a one time charge is not made within 30 days from the date of the invoice, you may be subject to late payment fees. If payment for quarterly billing of recurring charges is not made within 60 days from date of invoice, you may be subject to late payment fees. Late payment fee calculations will be specified in an Operations Guide. You may use a credit only after we issue it. If any authority requires us to include in our invoice to you a duty, tax, levy, or fee which they impose, excluding those based on our net income, upon any transaction under this Agreement, then you agree to pay that amount. 4.4 Failure to Pay Any Amounts Due PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Netherlands, Turkey, BPRT Page 5 of 171

6 If you fail to pay any amounts due in the required period of time, you agree that we may do one or more of the following, unless precluded by law: a. impose a finance charge, as we specify to you in writing, up to the maximum permitted by law, on the portion which was not paid during the required period; b. require payment on or before delivery of Products and Services; c. repossess any Products and Services for which you have not paid. If we do so, you agree to pay all expenses associated with repossession and collection, including reasonable attorneys' fees. You agree to make the Products and Services available to us at a site that is mutually convenient; d. not accept your order until any amounts due are paid; e. terminate this Agreement; or f. pursue any other remedy available at law. We may offset any amounts due you, or designated for your use (for example, marketing funds or promotional offerings), against any amounts due us. 5. Marketing to End Users and Remarketers IBM Products are subject to the License and Product Terms described in section 11 (IBM License and Other Product Terms) of the General Terms. Non-IBM Products are subject to the terms of any agreements provided by the non-ibm supplier or manufacturer. 5.1 Marketing to End Users When you market directly to an End User, you agree to 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. 5.2 Marketing to Remarketers PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Georgia, Hungary, Kazakhstan, Kirghizia, Moldavia, Montenegro, Poland, Republic of Macedonia, Romania, Russia, Serbia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan If either by law or under the terms of this Agreement you may market to Remarketers and you market an eligible Product to a Remarketer who does not have a contract with IBM for marketing that Product, you agree to i) ensure the appropriate License and Product Terms 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 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: and to monitor the website regularly for changes to the Code of Conduct. 5.3 Programs Installed on Behalf of End User 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, you further agree to require a Remarketer who does not have a contract with IBM for marketing that Product to fulfill the obligations in the preceding paragraph in its agreements with End Users. 5.4 Subsequent Remarketers If your Remarketer markets an eligible Product to other Remarketers who do not have a contract with IBM for marketing that Product, you further agree to require your Remarketer to provide the License and Product Terms 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. BPRT Page 6 of 171

7 5.5 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 and Product Terms 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 and Product Terms. In addition to your responsibilities under this section 5 to provide IBM s License and Product Terms, you agree you will provide non-ibm Product terms to End Users and Remarketers as IBM may require. 6. Programs For Programs IBM provides to you in tangible form, IBM fulfills its shipping and delivery obligations upon the delivery of such Programs to the IBM-designated carrier, unless otherwise agreed to in writing by you and IBM. You agree 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. We will ship a Program s media and documentation to you or to the End User, as specified in your order Transaction Document. Programs licensed to you on a recurring-charge basis are licensed for the period indicated in our invoice. You may market such Programs only on the same basis as licensed to you. You may not charge an End User a one-time charge for a Program you license from us on a recurring-charge basis. However, you may charge the End User whatever amount you wish for the recurring-charge. 7. ICA Programs PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates, Yemen 7.1 ICA Programs and Definitions ICA Programs you acquire for your internal use, demonstration, development, or evaluation purposes are subject to section 12 (Internal Use, Demonstration, Development, and Evaluation Products and Services) of the General Terms and the additional terms of this section 7 (ICA Programs). For the purpose of this section, the following definitions apply: Date of Installation for an ICA Program: a. basic license, the second business day after the ICA Program's standard transit allowance period; b. copy, the date (specified in a Transaction Document) on which IBM authorizes you to make a copy of the Program; and c. chargeable component (also called a feature), the date you use the chargeable component or a copy. You agree to notify IBM of the chargeable component s Date of Installation. Designated Machine either i) the machine on which you will use an ICA Program for processing and which IBM requires you to identify to IBM by type/model and serial number, or (ii) any machine on which you use the ICA Program if IBM does not require you to provide this identification. Licensed Program Specifications a document entitled Licensed Program Specifications, which includes information specific to an ICA Program. Specifications information specific to an ICA Program, which is included in the ICA Program s Licensed Program Specifications. Specified Operating Environment the machines and programs with which an ICA Program is designed to operate, as described in its License Program Specifications. 7.2 Warranty IBM warrants that each warranted ICA Program, when used in the Specified Operating Environment, will conform to its Specifications. BPRT Page 7 of 171

8 During the warranty period, IBM provides defect-related Program Services without charge. Program Services are available for a warranted ICA Program for at least one year following its general availability. The warranty period for an ICA Program expires when its Program Services are no longer available. If an ICA Program does not function as warranted during the first year after you obtain its license and IBM is unable to make it do so, you may return the ICA Program and the charges you paid for the license will be refunded. To be eligible, you must have obtained its license while Program Services (regardless of the remaining duration) were available for the ICA Program. Additional terms regarding Program Services are contained in section 7.5 (Program Services) below Extent of Warranties The warranty stated above will not apply to the extent that there has been misuse, accident, modification, unsuitable physical or operating environment, operation in other than the Specified Operating Environment, improper maintenance by you or a third party, or failure or damage caused by a product for which IBM is not responsible. THIS WARRANTY IS YOUR EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. IBM does not warrant uninterrupted or error-free operation of a Program or that IBM will correct all defects. IBM will identify ICA Programs that it does not warrant. 7.3 License When IBM accepts your order, IBM grants you a nonexclusive license to use the ICA Program only within your Enterprise in <country name>. ICA Programs are owned by International Business Machines Corporation, one of its subsidiaries, or a third party and are copyrighted and licensed (not sold) Authorized Use Under each license, IBM authorizes you to: a. use the ICA Program's machine-readable portion on only the Designated Machine. If the Designated Machine is inoperable, you may use another machine temporarily. If the Designated Machine cannot assemble or compile the ICA Program, you may assemble or compile the ICA Program on another machine. If you change a Designated Machine previously identified to IBM, you agree to notify IBM of the change and its effective date; b. use the ICA Program to the extent of authorizations you have obtained; c. make and install copies of the ICA Program, to support the level of use authorized, provided you reproduce the copyright notices and any other legends of ownership on each copy or partial copy; and d. use any portion of the ICA Program IBM i) provides in source form, or ii) marks restricted (for example, "Restricted Materials of IBM") only to -- (1) resolve problems related to the use of the ICA Program, and (2) modify the ICA Program so that it will work together with other products Your Additional Obligations For each ICA Program, you agree to: a. comply with any additional or different terms in its Licensed Program Specifications or an Attachment or Transaction Document; b. ensure that anyone who uses it (accessed either locally or remotely) does so only for your authorized use and complies with IBM s terms regarding ICA Programs; and c. maintain a record of all copies and provide it to IBM at its request Actions You May Not Take You agree not to: a. reverse assemble, reverse compile, otherwise translate, or reverse engineer the ICA Program unless expressly permitted by applicable law without the possibility of contractual waiver; or b. sublicense, assign, rent, or lease the ICA Program or transfer it outside your Enterprise. BPRT Page 8 of 171

9 7.4 Distributed System License Option For some ICA Programs, you may make a copy under a Distributed System License Option (called a "DSLO" copy). IBM charges less for a DSLO copy than for the original license (called the "Basic" license). In return for the lesser charge, you agree to do the following while licensed under a DSLO: a. have a Basic license for the ICA Program; b. provide problem documentation and receive Program Services (if any) only through the location of the Basic license; and c. distribute to, and install on, the DSLO's Designated Machine, any release, correction, or bypass that IBM provides for the Basic license. 7.5 Program Services IBM provides Program Services for warranted ICA Programs. If IBM can reproduce your reported problem in the Specified Operating Environment, IBM will issue defect correction information, a restriction, or a bypass. IBM provides Program Services for only the unmodified portion of a current release of an ICA Program. IBM provides Program Services i) on an on-going basis (with at least six months' written notice before IBM terminates Program Services), ii) until the date IBM specifies, or iii) for a period IBM specifies. 7.6 Compliance Verification IBM s right to verify your usage data and other information affecting the calculation of charges also includes the right to verify your compliance with other terms of this Agreement (including applicable Attachments and Transaction Documents) relating to your use of ICA Programs at all sites and for all environments in which you install or use ICA Programs for any purpose. IBM may use an independent auditor to assist with such verification, provided IBM has a written confidentiality agreement in place with such auditor. You agree to create, retain, and provide to IBM and its auditors written records, system tools outputs, and other system information sufficient to provide auditable verification that your installation and use of ICA Programs complies with the Agreement terms, including IBM s applicable licensing and pricing terms. IBM will notify you in writing if any such verification indicates that you are not in compliance with Agreement terms. The rights and obligations in this section remain in effect during the period any ICA Programs are licensed to you and for two years thereafter. 7.7 License Termination You may terminate the license for an ICA Program at any time on one month's written notice to IBM. For ICA Program licenses that you acquired for a one-time charge, replacement licenses may be acquired for an upgrade charge, if available. When you obtain licenses for these replacement ICA Programs, you agree to terminate the license of the replaced ICA Programs when charges become due, unless IBM specifies otherwise. IBM may terminate your license if you fail to comply with the license terms. If IBM does so, your authorization to use the ICA Program is also terminated. 8. Machines 8.1 Title and Risk of Loss PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Algeria, Angola, Armenia, Austria, Azerbaijan, Bahrain, Belarus, Benin, Bosnia-Herzegovina, Botswana, Bulgaria, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Croatia, D.R. of Congo, Denmark, Djibouti, Egypt, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Finland, Gabon, Gambia, Georgia, Germany, Ghana, Guinea, Guinea-Bissau, Hungary, Ivory Coast, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Latvia, Lebanon, Liberia, Libya, Lithuania, Madagascar, Malawi, Mali, Malta, Mauritania, Mauritius, Moldavia, Montenegro, Morocco, Mozambique, Niger, Nigeria, Norway, Oman, Pakistan, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Somalia, Spain, Sweden, Switzerland, Tajikistan, Tanzania, Togo, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe When you order a Machine, IBM will transfer title to you upon payment of all amounts due. Any prior transfer to you of title to a Machine reverts back to IBM when it is accepted by IBM as a returned Machine. BPRT Page 9 of 171

10 For each Machine, IBM bears the risk of loss or damage up to the time it is delivered to the IBMdesignated carrier for shipment to you or, if you request and IBM agrees, your Customer. Thereafter, you assume the risk. Each Machine will be covered by insurance, arranged and paid for by IBM for you, covering the period until it is delivered to you or your Customer. For any loss or damage, you must: a. report the loss or damage in writing to IBM as soon as possible, but no later than 30 calendar days from delivery; and b. follow the applicable claim procedure. 8.2 Installation, Warranty, and Warranty Service PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Austria, Germany, IBM will ensure that Machines IBM installs are free from defects in materials and workmanship and conform to specifications. IBM provides instructions to enable the setup of Customer-Set-Up Machines, which are Machines the End User is responsible to install. IBM is not responsible for the installation of Programs or non-ibm Machines. IBM does, however, pre-load Programs onto certain Machines. Further, you agree that the End User is informed if a Machine contains a Customer Replaceable Unit (CRU) such as a mouse, keyboard, speaker, memory, or hard disk drive). IBM provides replacement CRUs to the End User for installation by the End User. The End User may request IBM to install a CRU, however, IBM my charge the End User for the installation. IBM calculates the expiration date of an IBM Machine's warranty period from the Machine's Date of Installation for Machines we install and from the Warranty Start Date for Customer-Set-Up Machines. Warranty terms for Programs are described in the Programs' license terms Date of Installation and Warranty Start Date a. For a Machine IBM is responsible to install, the Date of Installation is the business day after the day 1) IBM installs it or, 2) it is made available for installation, if you (or the End User) defer installation. Otherwise (for example, if others installs it or break its warranty seal), the Date of Installation is the day IBM delivers the Machine to you (or the End User). In such event, IBM reserves the right to inspect the Machine to ensure its qualification for warranty entitlement. If a Machine that IBM is responsible to install is not made available for IBM to install within six months from the date IBM ships the Machine, installation will be subject to a charge under a Services agreement with IBM. b. For a Customer-Set-Up Machine the End User is responsible to install, the Warranty Start Date is the date of first purchase by an End User, which you or your Remarketer, if applicable, record on the End User's sales receipt. You agree to notify us of this date upon our request. When you retain title to a Machine which you use under the terms of this Agreement, the Warranty Start Date is the day the Machine is delivered to you Installation of Machine Features, Conversions, and Upgrades We sell features, conversions and upgrades for installation on Machines, and, in certain instances, only for installation on a designated, serial numbered Machine. Many of these transactions involve the removal of parts and their return to us. Such parts become IBM property. As applicable, you represent that you have the permission from the owner and any lien holders to 1) install features, conversions and upgrades and 2) transfer the ownership and possession to IBM of those removed parts which are required to be returned to IBM. You further represent that all removed parts which are required to be returned to IBM are genuine, unaltered, and in good working order. A part that replaces a removed part will assume the warranty and maintenance Service status of the replaced part. You agree to allow IBM to install the feature, conversion, or upgrade within 30 days of its delivery. Otherwise, IBM may terminate the transaction and you must return the feature, conversion, or upgrade to us at your expense. Further you agree to inform your End User that until installed the feature, conversion, or upgrade as well as any parts removed that are required to be returned to IBM must be kept in a protected location and must not be tampered with Warranty Service We will specify in the Exhibit whether you or we are responsible to provide Warranty Service for a Machine. When we are responsible for providing Warranty Service for Machines, you are not authorized to provide such Service, unless we specify otherwise in the Exhibit. BPRT Page 10 of 171

11 When you are responsible for providing Warranty Service, you agree to do so according to the terms we specify in the Warranty Service Attachment. 8.3 Machine Code If you acquire IBM Machines containing Machine Code for your internal use, demonstration, development, or evaluation purposes, IBM licenses such Machine Code under the terms and restrictions of the Machine Code license agreement provided with the Machine Code and only to enable a Machine to function in accordance with its Specifications. You agree to use Machine Code only as specified in this Agreement and as may be further authorized or restricted in its applicable license agreement. Without limiting additional restrictions in the applicable license, you may not: i) otherwise copy, display, transfer, adapt, modify, or distribute (electronically or otherwise) Machine Code, except as IBM may authorize in the Machine s user documentation or in writing to you; ii) reverse assemble, reverse compile, otherwise translate, or reverse engineer Machine Code unless expressly permitted by applicable law without the possibility of contractual waiver; iii) sublicense or assign the license for Machine Code; or iv) lease Machine Code or any copy of it. 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).the capacity of certain Machines is limited by technological measures in Machine Code. You agree to IBM's implementation of such technological measures to limit Machine capacity. For IBM Products you acquire under this Agreement for your internal use or for demonstration, development, or evaluation purposes, you agree: a. to use IBM Machines containing Machine Code and any IBM Programs: i) in accordance with their applicable license agreements; ii) for the purposes, capacity, and capability for which you have acquired IBM s written authorization; and iii) subject to any additional restrictions in this Agreement; and b. that your acceptance of the terms of this Agreement includes acceptance of IBM s Statement of Limited Warranty (SOLW), Machine Code license agreements, and Program license agreements, any of which may be amended by IBM from time to time. Such amended license terms apply only to Machines, Machine Code, and Programs, as applicable, that are supplied after such amended terms become effective. 9. Internal Use, Demonstration, Development and Evaluation Products For IBM Products you acquire under this Agreement for your internal use, demonstration, development, or evaluation purposes, you agree: a. to use IBM Machines containing Machine Code and any IBM Programs: i) in accordance with their applicable license agreements; ii) for the purposes, capacity, and capability for which you have acquired IBM s written authorization; and iii) subject to any additional restrictions in this Agreement; and b. that your acceptance of the terms of this Agreement includes acceptance of IBM s Statement of Limited Warranty (SOLW), Machine Code license agreements, and Program license agreements, any of which may be amended by IBM from time to time. Such amended license terms apply only to Machines, Machine Code, and Programs, as applicable, that are supplied after such amended terms become effective. 10. Services PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bosnia-Herzegovina, Botswana, Bulgaria, Burundi, Cape Verde, Croatia, Egypt, Eritrea, Estonia, Ethiopia, Georgia, Ghana, Hungary, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Latvia, Lebanon, Liberia, Libya, Lithuania, Malawi, Moldavia, Montenegro, Mozambique, Nigeria, Oman, Pakistan, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Serbia, Sierra Leone, Somalia, Tajikistan, Tanzania, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe Services may be either standard offerings or customized to the End User s specific requirements. Each Service transaction may include one or more Service that 1) expire at task completion or an agreed upon date; 2) automatically renew as another transaction with a specified contract period. Renewals will continue until the Service is terminated; or 3) do not expire and are available for use until either of us terminates the Service, or we withdraw the Service. If we make a change to the terms of a renewable BPRT Page 11 of 171

12 Service that affects the End User s current contract period and the End User considers it unfavorable and you advise us in writing, we will defer the change until the end of that contract period. You may market the Services we specify in your applicable Profile Remarketing of Services The following terms govern your remarketing of Services the End User purchases from you (or from your Remarketer), and which we perform under the terms of the applicable End User s IBM Service agreement (for example the IBM Agreement for Services Acquired from an IBM Business Partner ) and any IBM Statement of Work or an IBM ServicePac hereinafter called IBM Service Agreement or Shrink-wrap Service. Shrink-wrap Services are performed under the terms of the agreement provided with them. If the terms of the agreement are not visible on the shrink-wrap package, you agree to provide (or, if applicable, request your Remarketer to provide) the Services terms to the End User before such Services are acquired by the End User. We provide additional terms to you, if any, in specific Service Attachments, or transaction documents Other Responsibilities Each of us agrees to give the other a copy of notices or requests received from or sent to an End User applicable to an IBM Service Agreement. You agree to ensure certain Services Attachments and transaction documents, as we specify to you in writing are made available to End Users for their signature and returned to IBM. Such documents may have terms in addition to those we specify in the IBM Service Agreement. You agree to promptly provide to IBM information and notifications that the End User is responsible to provide IBM through the IBM Business Partner, as written in the referenced IBM Service Agreement. If you are a Distributor, you agree to provide your Remarketers any information, communication, notices or documents that IBM needs to give to the End Users and to provide IBM any info, communication, notices or documents that End Users need to give to IBM. You further ensure that your Remarketers agree to provide to the End Users the mentioned info, communication, notices or documents received from you and to provide you any info, communication, notices or documents received from the End User. You agree, because the End User is bound by the terms of the IBM Service Agreement to become thoroughly familiar with such agreement by reading it and you further agree to understand its terms and the effect of those terms on your relationship with IBM and the End User Service Charge The amount you are responsible to pay IBM for a Service you acquire from IBM for remarketing to an End User will be based on one or more of the following types of charges: one time, recurring (for example, a periodic charge for support Services); time and materials (for example, charges for hourly Services); or fixed price (for example, a specific amount agreed to between us for a custom Service). Services we make available to you on a recurring-charge basis are made available for the period indicated in our invoice, statement of work, or other transaction document, as applicable. You may market such Services only on a recurring charge basis. If you are our Distributor, you agree to ensure your Remarketer remarkets these Services only on a recurring charge basis. We may increase recurring charges for Services, as well as hourly or daily rates and minimums for Services we perform under any IBM Service Agreement, by giving you three month s written notice. An increase applies on the first day of the applicable invoice or charging period, on or after the effective date we specify in the notice. You receive the benefit of a decrease in charges for amounts which become due on or after the effective date of the decrease. One-time and recurring charges may be based on measurements of actual or authorized use (for example, number of users or processor size for Programs, meter readings for maintenance Services or connect time for network Services). You agree to provide actual usage data if IBM specifies. You agree to promptly notify IBM and pay any applicable charges whenever a change in your End User environment impact use charges (for example change processor size or configuration for Programs). Recurring charges will be adjusted accordingly. Unless IBM agrees otherwise, IBM does not give credits or refunds for charges already due or paid. In the event that IBM changes the basis of measurement, its terms for changing charges will apply. Charges for Services are billed as we specify, which may be 1) in advance, 2) periodically during the performance of the Service, or 3) after the Service is completed. BPRT Page 12 of 171

13 Prepaid Services must be used within the applicable contract period unless we specify otherwise, we do not give credits or refunds for unused prepaid Services. If an End User is eligible for a credit or refund under the terms of the IBM Service Agreement, such as for a satisfaction guarantee or for withdrawn or terminated Services not fulfilled, you agree to ensure the applicable prorated credit or refund is issued to the End User directly or, if applicable, through your Remarketer. We will issue the appropriate credit or refund to you. We specify in the IBM Service Agreement additional charges that apply under specific conditions. When applicable, such charges apply to you. Depending on the particular Service or circumstance, if other charges apply we will inform you in advance Services Requirements Changes During the Service period you may update the requirements, including adding Products to be covered by the Service, as well as increasing the Service requirements. We will adjust our invoicing to you accordingly Termination of Services IBM or you may terminate a Service if either of us or the End User does not meet its obligations concerning the Service and notify the other party of any such termination. You may terminate a Service, on one month s written notice to IBM provided you have met all minimum requirements and paid the adjustment charges equal to the lesser of the adjustment charges specified in the applicable Attachments and transaction documents, if any, or the charges remaining to complete the contract period. For a maintenance Service, you may terminate without adjustment charge provided any of the following circumstances occur: a. your End User permanently removes the eligible product, for which the Service is provided, from productive use within the Enterprise; b. the eligible location, for which the Service is provided, is no longer controlled by your End User (for example, because of sale or closing of the facility); or c. the Machine has been under maintenance Service for at least six months and you give IBM one month's written notice prior to terminating the maintenance Service. You agree to pay IBM for: a. all Services IBM provides and any products and Materials IBM delivers through Service termination; b. all expenses IBM incurs through Service termination; and c. any charges IBM incurs in terminating the Service. IBM may withdraw a Service or support for an eligible product on three months' written notice to you. If IBM withdraws a Service for which you have prepaid and IBM has not yet fully provided it to your End User, IBM will give you a prorated refund. If we terminate your IBM Business Partner Agreement we may continue to provide Services for the remainder of the contract period for which you have already paid. However no additional Services may be added. Any terms which by their nature extend beyond termination or withdrawal remain in effect until fulfilled and apply to respective successors and assignees Marketing of Services Refer to your applicable Profile to determine whether the terms of this subsection apply. The following are the conditions under which you can market eligible Services to an End User for transactions IBM performs at prices IBM sets and under the terms of the IBM Service agreement, signed by the End User. The fee for such Services and the methodology used are specified in the applicable Exhibit Request for Fee Payment and Compensation Prior to your participation, and your submission of any request for fees or other compensation, under the terms of this Attachment you are required to (i) ensure that you are eligible to receive fees or other compensation subject to the terms of this Attachment 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. BPRT Page 13 of 171

14 Marketing to Public Sector End Users If you are eligible for fees or compensation for marketing Products and Services under this Attachment 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 or 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. A Public Sector End User shall be defined as (i) the government of any country, state, 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 Fee for Marketing Services PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Italy, You will receive a fee for marketing eligible Services when: a. you identify the opportunity and perform the marketing activities; and b. you provide us with the order and any required documents signed by the End User Lead Pass Fee You will receive a fee for a lead for eligible Services when the lead: a. is submitted on the form we provide to you; b. is for an opportunity which is not known to us; and c. results in the End User ordering the Service from IBM within six months from the date we receive the lead from you. You agree to provide your leads to us according to our guidelines. We will inform you in writing of our acceptance or rejection of the lead. For orders fulfilled directly by IBM, we will manage the ordering process from scheduling through delivery, or the Service start date, as applicable. Leads for government organizations (solely determined within IBM s discretion) are not eligible for fee payment under the terms of this Attachment Fees and Compensation for Services PLEASE NOTE THAT THE TERMS OF THIS SECTION IS AMEDED ACCORDING TO THE COUNTRY UNIQUE TERMS FOR THE FOLLOWING COUNTIRES: Albania, Algeria, Angola, Armenia, Azerbaijan, Bahrain, Belarus, Bosnia-Herzegovina, Botswana, Bulgaria, Burundi, Cape Verde, Croatia, Comoros. Czech Republic, Egypt, Eritrea, Ethiopia, France, Georgia, Germany, Ghana, Hungary, Italy, Jordan, Kazakhstan, Kenya, Kirghizia, Kuwait, Lebanon, Liberia, Libya, Malawi, Moldavia Montenegro, Morocco, Mozambique, Nigeria, Oman, Pakistan, Poland, Qatar, Republic of Macedonia, Romania, Russia, Rwanda, Sao Tome, Saudi Arabia, Serbia, Sierra Leone, Slovakia, Slovenia, Somalia, Tajikistan, Tanzania, Tunisia, Turkmenistan, Uganda, Ukraine, United Arab Emirates, Uzbekistan, West Bank/Gaza, Yemen, Zambia, Zimbabwe We may increase fees or compensation at any time. We may decrease fees or compensation on one month's written notice. You earn your fee on the date of our invoice to the End User. We will pay you within one month after: c. the month in which you earn your fee; or d. we receive your request for payment, if we require one, in a format we specify in an Operations Guide. You may submit your request after you earn your fee. If we do not receive your request within four months of when you earn your fee, no payment will be made. You are only entitled to compensation for orders IBM accepts during the contract duration. We will not pay you the fee if: a. the machine or program is already under the applicable Service; BPRT Page 14 of 171