TECHNICAL SERVICES AGREEMENT
BASE AGREEMENT
Route 100
International Business Machines Corporation Xxxxxx XX 00000
AGREEMENT NO.001737
CUSTOMER: CINTEL CORPORATION
0000 XXXXX XXXXXX, 00XX XXXXX
XXXXXXX, XXXXXXX, XXXXXX X0X 0X0
This Technical Services Agreement between Customer and International Business
Machines Corporation ("IBM"), which consists of this Base Agreement,
Attachment(s), and Statements of Work shall be referred to as this "Agreement."
The term of this Agreement commences on January 30, 2004 and expires on April
30, 2004.
By signing below, the parties each agree to be bound by the terms and conditions
of this Agreement, including the initial Attachment and Statement of Work. No
additional signatures on the initial Attachments and Statement of Work are
required. Subsequent Attachments and Statements of Work under this Base
Agreement must be signed by the parties to become effective.
Upon signature by both parties, it is agreed this Agreement constitutes the
complete and exclusive agreement between them superseding all contemporaneous or
prior agreements and other communications between them, written or oral,
relating to the services and deliverables defined in the Agreement,
notwithstanding anything contained in any document issued by either party. This
Agreement may not be amended or modified except by a written amendment signed by
duly authorized signatories of both parties.
The parties expressly acknowledge that they have received and are in possession
of a copy of any referenced item that is not physically attached to this
Agreement and any such item will be treated as if attached.
ACCEPTED AND AGREED TO:
CINTEL CORPORATION
INTERNATIONAL BUSINESS MACHINES CORPORATION
BY: /s/ Sang Xxx Xxx By: /s/ Xxx Xxxxxxxx
-------------------------- ------------------------------
NAME: Sand Xxx Xxx NAME: XXX XXXXXXXX
TITLE: President TITLE: EXECUTIVE MANAGER, WW CONTRACTS &
BUSINESS PRACTICES, IBM TECHNOLOGY
GROUP
DATE: Dec. 22, 2003 DATE: 12/22/03
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1.0 DEFINITIONS
Capitalized terms in this Agreement have the following meanings. An Attachment
may define additional terms; however, those terms apply only to that
Attachment.
"ATTACHMENT" means any document attached to the Base Agreement which defines the
general terms and conditions of the services to be performed by IBM for
Customer.
"CUSTOMER DELIVERABLES" means any part, specification, design, document, report,
data, or the like which Customer delivers to IBM under this Agreement as
described in a relevant Statement of Work.
"IBM DELIVERABLES" means any prototype, specification, design, document, report,
training material, data, code or the like which IBM delivers to Customer under
this Agreement as described in a relevant Statement of Work.
"INTELLECTUAL PROPERTY RIGHTS" means all intellectual property rights, worldwide
arising under statutory or common law or by contract and whether or not
perfected, including, without limitation, all (i) rights to patents and patent
applications; (ii) rights associated with works of authorship including
copyrights and mask work rights; (iii) rights relating to the protection of
trade secrets, know-how, and show-how; (iv) any other proprietary rights
relating to intangible property, now existing, or hereafter filed, issued or
acquired; and (v) divisions, continuations, renewals, reissues and extensions of
the foregoing (as and to the extent applicable) now existing, hereafter filed,
issued or acquired.
"PERSONNEL" means agents, employees or subcontractors engaged or appointed by
Customer or IBM. "PRICES" means the agreed upon payment for IBM Deliverables,
including all applicable fees, payments and taxes, as specified in the relevant
Statement of Work.
"STATEMENT OF WORK" or "SOW" means any document attached or otherwise
incorporated into an Attachment which specifies the details of a specific work
task and describes the IBM Deliverables, including any requirements,
specifications or schedules.
2.0 AGREEMENT STRUCTURE
2.1 This Agreement consists of: (i) this Base Agreement; (ii) Attachments; and
(iii) Statements of Work. An Attachment or SOW may include additional or
differing terms and conditions, however such terms and conditions apply only to
that Attachment or SOW, as the case may be.
2.2 In the event of conflict or ambiguity among the various documents, the
following order of precedence shall apply: 1) Statement of Work; 2) Attachment;
3) Base Agreement.
2.3 Purchase orders, order confirmations and order acceptances, if any, will be
used to convey information only and, except for part numbers, descriptions and
prices, any terms and conditions contained or referenced on those are void and
replaced by this Agreement. Customer will request services by issuing written
purchase orders to IBM. Purchase orders for services shall be subject to
acceptance by IBM.
2.4 Any purchase order submitted by Customer during the term of this Agreement
(whether or not it references this Agreement) for services or deliverables from
IBM's Technology Group shall be subject to and governed by the terms and
conditions of this Agreement, unless there is another signed, written agreement
in place between IBM and Customer with respect to the subject matter of the
purchase order. The foregoing shall be in effect regardless of whether Customer
and IBM have executed any Attachment specific to the IBM Deliverables ordered.
If no such Attachment has been executed, then the terms of the Attachment most
recently executed by Customer and IBM shall control, except with respect to
those matters that are uniquely applicable to the specific service in question
(such as specific non-recurring engineering charges, pricing, specific Customer
Deliverables and IBM Deliverables). In the event there is more than one signed,
written agreement in place between IBM and Customer but none with respect to the
subject matter of the purchase order, this Agreement shall take precedence over
the other agreements for purchase orders submitted for services and deliverables
from IBM's Technology Group.
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3.0 STATEMENT OF WORK
3.1 If achievement of a particular milestone in a SOW is dependent upon
completion of tasks and/or performance within the control of Customer or by a
third party outside of IBM's control, the projected dates for accomplishing any
milestones will be appropriately adjusted to reflect any changes in the tasks
and/or performance by Customer or such third party.
3.2. Either party may, by written notice to the other, request changes to the
SOW, including but not limited to changes to the specifications or work scope.
IBM will submit a written report to Customer setting forth the probable effect,
if any, of such requested change on Prices, payment or delivery. Except for
Mandatory Engineering Changes, no change will be processed without written
approval of both IBM and Customer. The parties shall promptly amend the SOW to
incorporate any agreed changes. However, if a change does not affect the Prices
or payment, in lieu of amending the SOW, IBM and Customer may prepare a written
description of the agreed change ("Change Authorization"), which both IBM and
Customer must sign. The terms of a Change Authorization prevail over those of
the SOW and any of its previous Change Authorizations.
IBM may implement engineering changes required to satisfy governmental
standards, protect product or system integrity, or for environmental, health or
safety reasons ("Mandatory Engineering Changes"). If requested by IBM, Customer
will use reasonable efforts to incorporate Mandatory Engineering Changes in the
IBM Deliverables already shipped by IBM. Except for Mandatory Engineering
Changes, IBM shall give Customer prior notice of engineering changes affecting
the form, fit or function of an IBM Deliverable or service.
4.0 CUSTOMER'S RESPONSIBILITIES
4.1 Customer will not knowingly use any IBM Deliverable or integrate, promote,
sell, or otherwise transfer any IBM Deliverable to any customer or end user for
use in any applications where it is reasonably foreseeable that failure of the
IBM Deliverable as used in such application(s) would lead to death, bodily
injury, or catastrophic property damage. Examples of such applications may
include, without limitation, certain uses in nuclear facilities, air traffic
control, weapon systems, direct life support machines, aeronautical or
automotive applications.
4.2 Customer will not: (1) make any representations or warranties about IBM
Deliverables, products, or prototypes other than those IBM specifically
authorizes in writing; or (2) take any action or make any commitment on IBM's
behalf. Customer agrees that it is responsible for the results obtained from
the use of the IBM Deliverables provided under this Agreement.
5.0 PAYMENT
5.1 Customer shall issue purchase order(s) to IBM in a timely manner for the IBM
Deliverables provided under this Agreement.
5.2 Prices shall be as set forth in a SOW. IBM shall invoice Customer according
to the payment schedule specified in the relevant SOW. Customer shall pay the
full amount of the invoice within thirty (30) days of the invoice date, provided
however, that IBM shall have the right, in its sole discretion, to require
payment before shipment of an IBM Deliverable or payment via letter of credit.
IBM may stop shipments to Customer and/or cease work on the IBM Deliverables if
Customer does not comply with applicable credit terms or limits or this
Agreement. Late payment of invoices will be assessed a charge equal to the
lesser of 1.5% of the balance due per month or the statutorily allowed maximum
rate of interest in accordance with applicable law. All payments shall be made
in U.S. dollars.
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6.0 TAXES
Customer is responsible for all taxes related to any IBM Deliverables and/or
services except for taxes based on IBM's net income.
7.0 WARRANTY
UNLESS EXPRESSLY STATED OTHERWISE IN THE ATTACHMENT OR SOW, ALL WORK PERFORMED
UNDER THIS AGREEMENT AND ITS RESULTANT DELIVERABLES ARE PROVIDED "AS-IS",
WITHOUT WARRANTY OR INDEMNITY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR
IMPLIED.
8.0 INTELLECTUAL PROPERTY AND LICENSES
8.1 IBM shall own any and all Intellectual Property Rights relating to the IBM
Deliverables designed, developed, or otherwise created and furnished by IBM
during the course of performing services for the Customer under the terms of
this Agreement.
8.2 Each party acknowledges that, except for any licenses expressly granted by
the other party pursuant to provisions of this Agreement, no rights, immunities,
or licenses of any kind, whether arising by implication, estoppel or otherwise,
are granted by either party with respect to any of its trademarks, mask works,
trade secrets, copyrights, patents or any other intellectual property rights.
Any such rights, other than those expressly granted by a party pursuant to
provisions of this Agreement, may be granted by the other party only through a
separately negotiated, written agreement signed by both parties.
9.0 LIMITATION OF LIABILITY
9.1 Circumstances may arise where, because of a default on IBM's part or other
liability, Customer is entitled to recover damages from IBM. In each such
instance, regardless of the basis on which Customer is entitled to claim damages
from IBM (including fundamental breach, negligence, misrepresentation, warranty,
or other contract or tort claim), the following terms apply as Customer's
exclusive remedy and IBM's exclusive liability. IBM is liable for no more than:
1. damages for bodily injury (including death) caused by the negligence of IBM
and damage to real property and tangible personal property caused by the
negligence of IBM; and
2. the amount of any other direct damages up to the greater of U.S. One Hundred
Thousand Dollars ($100,000) (or equivalent in local currency) or the charges for
the IBM Deliverable that is the subject of the claim. This limit also applies
to any of IBM's subcontractors. It is the maximum for which IBM and its
subcontractors are collectively responsible.
9.2 Under no circumstances is IBM, or its subcontractors, liable for any of the
following:
1. third-party claims against Customer for damages (other than those under the
first item listed above in Section 9.1);
2. loss of, or damage to, Customer's records or data; or
3. special, incidental, punitive, consequential or any other indirect damages
(including lost opportunities, profits and savings), even if IBM is informed of
their possibility.
10.0 EXCHANGE OF INFORMATION
During the course of this Agreement it is anticipated that the parties will
exchange confidential information. Such confidential information will be
exchanged for the purpose of the Customer identifying its requirements to IBM,
and for the purpose of IBM formulating technology and designs which may be used
by both parties in their normal business activities, unless otherwise limited
elsewhere in this Agreement. Any such exchange of confidential information will
be made in accordance with the provisions of a separate confidentiality
agreement signed by IBM and the Customer. Customer shall not disclose the
existence of or terms or conditions of this Agreement without IBM's prior
written approval.
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11.0 TERMINATION
11.1 If either party materially breaches a term of this Base Agreement, an
Attachment or SOW, the other party may, at its option, terminate this Agreement,
any or all Attachments or any or all SOWs provided the party in breach is given
written notice and fails to cure such breach within thirty (30) days. Either
party may terminate this Agreement immediately in the event of (i) insolvency,
dissolution or liquidation by or against either party, (ii) any assignment of
either party's assets for the benefit of creditors, (iii) any act or omission of
an act by a party demonstrating its inability to pay debts generally as they
become due, (iv) any transfer of substantially all of either party's business or
assets to a third party. If IBM has a reasonable basis to believe any of
Customer's Deliverables infringe an intellectual property right of any third
party, IBM may immediately terminate or suspend its obligations hereunder
without liability as to such Customer Deliverables.
11.2 If IBM terminates this Agreement, an Attachment or SOW in accordance with
Section 11.1, Customer shall pay IBM the termination charges and other fees
specified in the Agreement and any outstanding invoices. Monies owing IBM shall
become immediately due and payable.
11.3 If Customer terminates this Agreement, an Attachment or SOW in accordance
with Section 11.1, IBM will fill all applicable previously accepted purchase
orders for IBM Deliverables, but IBM shall not be obligated to accept further
applicable purchase orders after receiving notice of such termination.
11.4 This Base Agreement and any relevant Attachment will continue after its
termination or expiration with respect to any SOWs already in place until they
expire, are terminated or completed. In the event that no monies are due IBM,
applicable Customer Deliverables shall be disposed of as directed by Customer in
writing at Customer's expense after a termination or expiration.
11.5 Either party may terminate this Agreement on thirty (30) days prior written
notice provided that there are no SOWs to this Agreement in effect as of the
notification date.
12.0 EXPORT REGULATIONS
12.1 Customer agrees that Customer will act as the exporter or importer of the
IBM Deliverables, products, prototypes, and technical data. Customer warrants
that Customer will comply with all applicable export laws including those of the
U.S. Customer further agrees to comply with U.S. prohibitions on delivery of
products, prototypes, and technical data and providing services to certain end
users and for certain end uses including but not limited to, the following end
uses/end users: nuclear facilities, space or missile, and weapons systems
(including chemical and biological).
12.2 FOR ORDERS BY NON-U.S. CUSTOMERS WHO TAKE DELIVERY IN THE UNITED STATES THE
FOLLOWING SECTION SHALL APPLY: Customer agrees that Customer will determine any
export license requirements, obtain any export license or other U.S. Government
export authorization, carry out any U.S. Customs formalities, and otherwise
fulfill all relevant requirements for the export of products, prototypes, and
technical data. Customer agrees that the designation of IBM as the U.S.
principal party in interest to the export, and the use by Customer or its
designated forwarding agent(s) of any information supplied to Customer by IBM
will be used solely for completion of the Shipper's Export Declaration (or AES
record). Customer agrees to provide to IBM, or have its forwarding agent(s)
provide, a copy of every Shipper's Export Declaration (or AES record) in which
IBM's Employer Identification Number is used.
12.3 In the event that IBM arranges for export or import Customer agrees to
provide all information necessary to determine all relevant export
authorizations and to export and import the products, prototypes and technical
data, including as applicable the Export Classification Control Number (ECCN)
and subheadings, or munitions list category number and agrees to assist with
obtaining any required licenses and authorizations, and with making any required
filings. Customer shall be fully responsible for the correctness of information
provided by Customer and any use of it to comply with applicable regulations.
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13.0 NOTICES
All notices shall be in writing, sent in a manner that generates a reliable
written receipt, and addressed to the attention of the individual signatories,
or their successors, of this Agreement on behalf of the parties, unless either
party specifies otherwise in an Attachment that notices for specific services
should be sent to the attention of a different addressee.
14.0 INDEPENDENCE OF ACTION
Each party agrees that this Agreement will not restrict the right of either
party to enter into agreements with other parties for same or similar work, or
to make, have made, use, sell, buy, develop, market or otherwise transfer any
products or services, now or in the future, so long as confidential information
exchanged in accordance with Section 10 is not disclosed.
15.0 DELIVERY
IBM will provide estimated delivery dates for each IBM Deliverable in the
relevant Statement of Work. Unless otherwise agreed in the Statement of Work,
any IBM Deliverables that constitute goods (under Incoterms 2000) will be
shipped to Customer Ex Works IBM facility.
16.0 GENERAL
16.1 Independent Contractor - Customer and IBM are independent contractors
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and this Agreement does not create an agency, joint venture, partnership, or
employment relationship between Customer and IBM, Customer and IBM Personnel,
or IBM and Customer Personnel. Neither party assumes liability or
responsibility for the other party's Personnel. IBM shall have the sole right
to determine the manner and means of performing services, including, but not
limited to, the assignment of its Personnel. All work shall be performed at
IBM's designated locations unless otherwise mutually agreed in the relevant SOW.
Each party will: (i) ensure it and its Personnel are in compliance with all
laws, regulations, ordinances, and licensing requirements; and (ii) be
responsible for the supervision, control, compensation, withholdings, health and
safety of its Personnel.
16.2 Compliance with Laws - Each party shall comply, at its own expense, with
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all applicable United States (local, state and federal), European Union, and
other country or country group laws and regulations, and shall procure all
licenses and pay all fees and other charges required thereby.
16.3 Force Majeure - Except for Customer's obligation to pay, neither party
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will be responsible for failing to perform under this Agreement for acts of God,
natural disasters, labor strife or activity, or other similar causes beyond its
reasonable control.
16.4 Choice of Law and Forum, Waiver of Jury Trial, Limitation of Action - The
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validity, construction, and performance of this Agreement will be governed by
the substantive laws of the State of New York, United States, as though this
Agreement were executed in and fully performed within the State of New York and
without regard to any conflict of laws provisions. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply to this
Agreement. Neither party will bring a legal action against the other more than
one (1) year after the cause of action arose, except for actions for non-payment
or to enforce intellectual property rights. Both parties waive the right to a
jury trial in any dispute arising out of this Agreement. Both parties agree
that any action concerning this Agreement shall be brought in a court of
competent jurisdiction in the State of New York and hereby consent to the
personal jurisdiction of any such court and to service of process in the manner
provided for the giving of notices pursuant to this Agreement. If,
notwithstanding the foregoing, a New York court's judgment is not enforceable
against a party, the other party may bring such an action concerning this
Agreement in any court of competent jurisdiction.
16.5 Assignment - Due to the personal nature of the services to be performed
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hereunder, without the prior written consent of IBM, Customer may not (i) assign
or otherwise transfer this Agreement, in whole
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Technical Services Sales Agreement No. 001737 IBM Confidential SDKIM
or in part, or any of its rights
and privileges hereunder, whether by way of merger, acquisition, change of
control, operation of law or otherwise or (ii) delegate (including
subcontracting) any of its obligations.
16.6 Waiver - No delay or failure by either party to act in the event of a
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breach or default hereunder shall be construed as a waiver of that or any
subsequent breach or default of any provision of this Agreement.
16.7 Severability - If any part, term or provision of this Agreement is
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declared unlawful or unenforceable by a court of competent jurisdiction, the
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remainder of this Agreement shall remain in full force and effect.
16.8 Headings - The headings contained in this Agreement are for reference
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purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
16.9 Reproduction - Once signed by both parties, any reproduction of this
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Agreement made by reliable means (e.g. photocopy or facsimile) will be
considered an original.
16.10 Survival - Any terms of this Agreement which by their nature extend
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beyond expiration or termination of this Agreement shall remain in effect until
fulfilled and shall bind the parties and their legal representatives,
successors, heirs and assigns.
16.11 English Language - This Agreement is in English language only, which
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shall be controlling in all respects, and all versions hereof in any other
language shall be for accommodation only and shall not be binding upon the
parties hereto. All communications and notices to be made or given pursuant to
this Agreement shall be in English language.
16.12 Beneficiary - This Agreement is not intended to and does not benefit any
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party except IBM and Customer. It is the parties' express intent that this
Agreement is not a third party beneficiary contract.
16.13 Amendment - This Agreement may not be amended or modified except by a
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written amendment signed by duly authorized signatories of both parties.
Notwithstanding any provision in this Section 16.13, IBM may make unilateral
changes, upon notice to customer, as required by United States (local, state and
federal), European Union, and other country or country group laws and
regulations.
16.14 Trademarks and Trade Names - Nothing in this Agreement grants either
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party any rights to use the other party's trademarks or trade names, directly or
indirectly, in conjunction with any product, service, promotion, publication or
publicity without prior written approval of the other party or trademark or
trade name owner.
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