Market Development Program Agreement
Market Development Program Profile
We welcome you as an IBM Business Partner whom we approve as a participant
in our Market Development Program.
By signing below, each of us agrees to the terms of the following
(collectively called the "Agreement"):
(a) this Profile; and
(b) Market Development Program General Terms (Z125-5156-03 4/97).
This Agreement and its applicable Transaction Documents (e.g. the Market
Development Program Supplement) are the complete agreement regarding this
relationship, and replace any prior oral or written communications between
us. Once this Profile is signed, any reproduction of this Agreement made
by reliable means (for example, photocopy or facsimile) is considered an
original.
DETAILS OF OUR RELATIONSHIP
1. Contract-Period Start Date (month/year): 9/97 End Date 12/31/97
The start date is always the first day of a month and may not be
earlier than the month we sign this Profile. The end date is December
31 of the current year.
2. Confidential Information Disclosure:
You may have access to our confidential information. If you have such
access, you must sign the IBM Agreement for Exchange of Confidential
Information (Z125-4322), unless you have already done so.
Agreed to: (IBM Business Partner name) Agreed to: /s/_________________
International Business Machines
Corporation
By /s/___________________________ By /s/______________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: September 3, 1997 Date: September 3, 1997
IBM Business Partner number: IBM Office address:
IBM Business Partner address: IBM CORP.
0000 Xxxxxx Xxxx
EMS Mailstop 0000
00000 X. Xxxx Xxxxx Xxxxxx, XX 00000
Xxxxxxxxx, XX 00000 ATTN: X. X. Xxxxx
After signing, please return a copy of this Profile to the local "IBM
Office address" shown above.
Market Development Program Agreement
General Terms
Table of Contents
Section Title Page
1. Definitions 2
2. Agreement Structure 2
3. Authorization 2
4. Mutual Responsibilities 2
5. Our Other Responsibilities 3
6. Your Other Responsibilities 3
7. Demonstration Products 3
8. Fund Processing and Reporting 3
9. Tademarks 4
10. No Property Rights 4
11. Limitation of Liability 4
12. Changes to the Agreement Terms 5
13. Ending the Agreement 5
14. Electronic Communications 5
15. Geographic Scope 5
16. Governing Law 5
Market Development Program Agreement
General Terms
1. Definitions
Customer is either an end user who acquires a Product from or our
remartketer.
Product is a machine or program
2. Agreement Structure
We specify the details of our relationship (for example, the contract
period) in a document called a "Profile." Each of us agrees to the
terms of the Profile and the Market Development Program Agreement
General Terms (collectively called the "agreement"), by signing the
Profile.
Transaction Documents
We will provide to you the appropriate "Transaction Documents" (such
as a Supplement) that provide the details of a specific relationship
between us. You accept the terms in a Transaction Document by
signing it.
Conflicting Terms
If there is a conflict among the terms in the various documents,
those of the Profile prevail over those of the Market Development
Program Agreement General Terms. The terms of a Transaction Document
prevail over those of all the documents.
3. Authorization
We may authorize you to perform market development activities with a
transaction Document called a "Market Development Program
Supplement." We may only change our Maximum Dollar Amount, as
specified in the Supplement, on three months' written notice.
Otherwise, changes to the Supplement will be made only upon mutual
agreement.
4. Mutual Responsibilities
Each of us agrees that under this Agreement:
1. each of us is an independent contractor and will be
responsible for the direction and compensation of our
respective employees. Each of us is free to have similar
agreements with others and offer products competitive to
those covered by this Agreement. Each of us will
independently set the prices for our own products;
2. each of us will identify coordinators to represent us for
various aspects of this Agreement. Each of us will notify
the other if these coordinators change;
3. all information exchanged is nonconfidential, unless it is
exchanged under a confidentially agreement signed by each
of us. However, you agree not to disclose the existence
of terms of this Agreement;
4. the purpose is to encourage you to promote the fact that
your products operate with our Product. This Agreement
dose not, however, grant either of us the right to use the
other's patents, copyrights, trademarks, trade names,
service marks or other designations, expect as explicitly
stated in this Agreement; and
5. neither of us will bring a legal action more than two
years after the cause of action arose.
Our Other Responsibilities
We will:
1. work with you to develop a market support plan designed to
help you successfully market your products that work in
conjunction with our Products. This may include revenue
forecasts and revenue reporting for your products.
2. at our discretion, participate n marketing activities with
you.
6. Your Other Responsibilities
You agree not to do any of the following:
1. assign this Agreement or your rights under it without our
prior written consent. Any attempt to do so is void;
2. assume or create any obligations on our behalf, or make
any representations or warranties about us or our
Products, other than those we authorize; or
3. conduct your business in a way that adversely affects our
reputation or goodwill (for example, failure to maintain
the highest quality professionalism in all your dealings
with Customers).
You agree to:
1. perform the marketing activities specified in each signed
Supplement. All marketing activities will highlight your
product's performance in conjunction with our Products and
will portray our Products in a positive manner. You will
be responsible for the costs of the marketing activities
to the extent they exceed the amount to be paid by us.
2. use commercially reasonable efforts to optimize the
performance of your products with our Products and ensure
that each new release of your products will operate in
conjunction with our Products.
3. ensure that your personnel can answer basic questions
about our Products and will engage us as required. Upon
request, you will participate with us in demonstrating the
use of your products with our Products.
4. maintain the financial records relevant to this Agreement
for two years and will make those records available to us
upon request.
7. Demonstration Products
We may offer selected Products (called "Demonstration Products"),
and/or their associated upgrades, available to you under special
terms pursuant to your IBM Customer Agreement, in support of your
activities under this Agreement. The license for each program
acquired as a Demonstration Product terminates at the end of this
Agreement, unless you keep the program; if you do so, you may be
required to pay the full license charge. We may limit the
availability of Demonstration Products to you under this relationship
an other IBM relationships.
8. Fund Processing and Reporting
When a Supplement is executed, we will allocate a fixed dollar amount
to be used for approved marketing activities during the year. We
will pay you all amounts specified in the Supplement after receipt of
an acceptable invoice from you. Allocated amounts are not carried
over to subsequent years, so invoices must be dated no later than
November 15 and must be received by us no later than December 1 of
the current year. The allocation of funds by us does not guarantee
that all such funds will be disbursed.
Reconciliation
We reconcile at the end of a contract period. We will deduct amounts
due us from future credits or ask you to pay. You agree to promptly
pay us amounts due.
9. Trademarks
We will notify you in written guidelines of the IBM Business Partner
title and emblem which you are authorized to use. You may not modify
the emblem in any way. You may use our Trademarks (which include the
title and emblem) only:
1. within the geographic scope of this Agreement; and
2. as described in the written guidelines provided to you.
The royalty normally associated with non-exclusive use of the
Trademarks will be waived, since the use of this asset is in
conjunction with marketing activities for Products.
You agree to promptly modify any advertising or promotional materials
that do not comply with our guidelines. If you receive any
complaints about your use of a Trademark, you agree to promptly
notify us. When this Agreement ends, you agree to promptly stop
using our Trademarks. If you do not, you agree to pay any expenses
and fees we incur in getting you to stop. You agree not to register
or use any mark that is confusingly similar to any of our Trademarks.
Our Trademarks, and any goodwill resulting from your use of them,
belong to us.
10. No Property Rights
Your rights under this Agreement are not property rights and cannot
be transferred to anyone else. For example, you may not sell your
right to use our Trademarks.
11. Limitation of Liability
Circumstances may arise where, because of a default or other
liability, one of us is entitled to recover damages from the other.
In each such instance, regardless of the basis on which damages can
be claimed, the following terms apply as your exclusive remedy and
our exclusive liability.
Our Liability
We are responsible only for:
1. bodily injury (including death), ad damage to real property and
tangible personal property, and
2. the amount of any other actual loss or damage, up to $100,000.
This limit also applies to any of our subcontractors and program
developers. It is the maximum for which we are collectively
responsible.
Items for Which we are Not Liable
Under no circumstances are we liable for either of the following:
1. third-party claims against you for losses or damages (other than
those under the first item listed above); or
2. special, incidental, or indirect damages, or for any economic
consequential damages (including lost profits or savings) even if
we are informed of their possibility.
Your Liability
In addition to damages for which you are liable under law and the
terms of this Agreement, you will indemnify us for claims made
against us by others (particularly regarding statement,
representation, or warranties not authorized by us) arising out of
your conduct under this Agreement or as a result of your relations
with anyone else.
12. Changes to the Agreement Terms
In order to maintain flexibility in our relationship, we may change
the terms of this Agreement by giving you one month's written notice.
However, changes are not retroactive. The apply as of the effective
date we specify in the notice.
Otherwise, for a change to be valid; both of us must sign it.
Additional or different terms in any order or written communication
from you are void.
13. Ending the Agreement
This Agreement ends when terminated or when the contract period ends.
When it does, all Supplements under it will also end.
If a Supplement ends, you may submit preapproved, invoiced expenses
prior to the Supplement's end.
If a supplement ends, or is terminated, and funds are due us, you
agree to pay us that amount.
We may offset any amounts due you against amounts due us or any of
our subsidiaries. Any terms of this Agreement which by their nature
extend beyond its end, remain in effect until fulfilled, and apply to
respective successors and assignees.
Termination
You may terminate this Agreement or a Supplement, with or without
cause, on one month's written notice.
We may terminate this Agreement or a Supplement, with or without
cause, on three months' written notice. If the termination is for
cause, we may (at our discretion) allow you a reasonable opportunity
to cure. If you fail to do so, the date of termination is that
specified in the notice. If we terminate for cause, you will not
receive any additional advances or reimbursements from the Fund.
Certain acts or omissions are so serious as to warrant immediate
termination. If you repudiate this Agreement, materially breach any
of its terms or make any material misrepresentation to us, we may
terminated this Agreement or a Supplement at any time, on written
notice. In such event, you will not receive any additional advances
or reimbursements from the Fund.
An example of a material breach is you violation of our trademark
terms. You agree that our only obligation is to provide the notice
called for in this section and we are not liable for any claims or
losses if we do so.
14. Electronic Communications
Each of us may communicate with the other by electronic means, and
such communication is acceptable as a signed writing to the extent
permissible under applicable law. Both of us agree that for all
electronic communications, an identification code (called a "user
ID") contained in an electronic document is legally sufficient to
verify the sender's identity and the document's authenticity.
15. Geographic Scope
All your rights and all our obligations are valid only in the United
States and Puerto Rico.
16. Governing Law
The laws of the State of New York govern this Agreement.
