EXHIBIT 10.13
AMENDMENT TO IBM CUSTOMER AGREEMENT
BY AND BETWEEN
PARTMINER, INC.
AND
INTERNATIONAL BUSINESS MACHINES CORPORATION
The parties mutually agree that this Amendment supplements, and to the extent it
differs, amends the IBM Customer Agreement signed between both parties on
05/20/99.
SECTION 1.1, DEFINITIONS - Add the following at the conclusion of the definition
of "Enterprise": Notwithstanding the above, the definition of "Enterprise" does
not apply to the licenses granted under any Statement of Work for Services which
are "global" and valid worldwide."
SECTION 1.2, AGREEMENT STRUCTURE - In the 2nd sentence of the 1st paragraph,
delete the word "provide" and replace it with the word "purpose". Delete the
last sentence in the 1st paragraph and replace it with the following:
"Attachments must be approved and signed by both of us if reasonably requested
by either of us.
SECTION 1.2, AGREEMENT STRUCTURE - In the subsection entitled "Transaction
Documents", delete the 2nd sentence and replace it with the following:
"Transaction Documents must be approved and signed by both of us if reasonably
requested by either of us."
SECTION 1.2, AGREEMENT STRUCTURE - In the subsection entitled "Your Acceptance
of Additional Terms", delete item number 2 and item number 3.
SECTION 1.4, CHARGES AND PAYMENTS - In the 2nd paragraph, add the following at
the conclusion of the paragraph: "and after such notification, you may inform
IBM that you do not wish to incur these additional charges and, therefore, do
not wish to receive this particular Product or Service."
SECTION 1.4, CHARGES AND PAYMENTS - In the 3rd sentence, delete the word
"authority" and replace it with "government entity".
SECTION 1.5, CHANGES TO THE AGREEMENT TERMS - Add the following at the beginning
of this section: "Changes in this section apply to all customers generally."
SECTION 1.5, CHANGES TO THE AGREEMENT TERMS - In the final paragraph in the
section, after the word "order" in the parenthetical, add the following: "or
form us such as a xxxx of lading)".
SECTION 1.7, MUTUAL RESPONSIBILITIES - In item number 1, add the word "the"
prior to the word "prior". Add the phrase "of the other", after the word
"consent".
SECTION 1.7, MUTUAL RESPONSIBILITIES - Add the following prior to item number 5:
"except for notices required hereunder which will be sent in accordance with
Section 5.9 below,"
SECTION 1.7, MUTUAL RESPONSIBILITIES - Delete item number 7 and replace it with
the following: "Neither party will bring a legal action more than two (2) years
after the cause of action arose, except in the case of infringement of
copyright, trademark, trade secrets or patent rights".
SECTION 1.7, MUTUAL RESPONSIBILITIES - In item number 8, add the word
"reasonable" prior to the word "control".
SECTION 1.7, MUTUAL RESPONSIBILITIES - Add an additional item, item number 9
with the following: "not to assign, or otherwise transfer this Agreement or your
rights under this Agreement, delegate your obligations, or resell any Service,
without the prior written consent of the other. However, it is not considered an
assignment for IBM to divest a portion of its business in a manner that
similarly effects all of its customers. Notwithstanding the above, IBM may
assign its rights to receive payments hereunder without PartMiner, Inc.'s
consent."
SECTION 1.8, YOUR OTHER RESPONSIBILITIES - Delete item 1 from the section.
SECTION 1.8, YOUR OTHER RESPONSIBILITIES - Add the following after the word
"obligations" in item number 5: "during normal business hours, unless otherwise
agreed to by the parties".
SECTION 1.9, PATENTS AND COPYRIGHTS - In the 1st sentence of the 2nd paragraph,
delete the word "and" prior to the word "patent" and add the following:
",copyright or trade secret".
SECTION 1.9, PATENTS AND COPYRIGHTS - In item number 2 in the 2nd paragraph, add
the phrase "reasonably" prior to the word "cooperate". At the conclusion of the
item, add the following: "at our sole expense".
SECTION 1.9, PATENTS AND COPYRIGHTS - In the 2nd paragraph, after the word
"costs", add the following in a parenthetical: "(including, but not limited to
reasonable travel expenses and living expenses related to any actions brought in
this section at IBM's direction)".
SECTION 1.9, PATENTS AND COPYRIGHTS - Add the following at the conclusion of
paragraph number 2: "All costs, damages and attorney's fees referenced above
apply equally to proceedings that are settled prior to trial at IBM's
direction."
SECTION 1.9, PATENTS AND COPYRIGHTS - In the subsection entitled "Claims for
Which We are Not Responsible", add the following at the conclusion of item
number 2: "without our consent".
SECTION 1.10, LIMITATION OF LIABILITY - Add the following as item number 4 in
the 1st paragraph: "4. damages due to a breach of the IBM Agreement for Exchange
of Confidential Information signed by both parties dated 05/99."
SECTION 1.11, AGREEMENT TERMINATION - Add the following as an additional
paragraph, paragraph number 4: "This Agreement shall be binding on and inure to
the benefit of the successors and assigns of the parties hereto."
SECTION 1.12, GEOGRAPHIC SCOPE - Add the following at the conclusion of this
section: "Notwithstanding the above, licenses for Materials granted in
accordance with section 5.3 of this Agreement are not limited to the United
States and Puerto Rico since they are worldwide licenses".
SECTION 2.2, EXTENT OF WARRANTY - Add the following at the beginning of the 2nd
paragraph in the section, add the following: "With the exception of Services",.
SECTION 3.1, TITLE AND RISK OF LOSS - Add the following at the conclusion of the
1st paragraph in the section: "Notwithstanding the above, it is IBM's
administrative practice to file UCC - 1's only when the purchase price of a
Machine exceeds $100,000."
SECTION 4.2, LICENSE DETAILS - At the conclusion of item number 2, add the
following phrase: "from us".
SECTION 4.2, LICENSE DETAILS - In the 2nd paragraph, after the word "Program" in
the 1st line, add a comma and the following: "provided such terms are identified
in the Program's Specifications or in a Transaction Document". Delete the 2nd
sentence in its entirety.
SECTION 5.2, PERSONNEL - In the 3rd paragraph of the section, add the following
as an additional sentence: "We will provide you with prior written notice when
we subcontract a Service or any part of it."
SECTION 5.3, MATERIALS OWNERSHIP AND LICENSE - In the 1st sentence of the 1st
paragraph, add the following at its conclusion: ",subject to your approval". In
the 2nd sentence of the 1st paragraph, delete the word "We" and replace it with
the phrase "The parties".
SECTION 5.3, MATERIALS OWNERSHIP AND LICENSE - Delete the last sentence in the
1st paragraph and replace it with the following: "Materials ownership will be
specified in individual Statements of Work signed by both parties."
SECTION 5.3, MATERIALS OWNERSHIP AND LICENSE - Delete the last paragraph in the
section.
SECTION 5.6, TERMINATION AND WITHDRAWAL - In the 5th paragraph of the section,
add the word "reasonable" prior to the word "charges". Add the following at the
conclusion of the 5th paragraph: ", provided that, you do not in good faith
dispute any such payment or charge".
SECTION 5.9, NOTICE - Add the following as an additional section of the
Agreement: "All notices, requests demands or other communications hereunder
shall be in writing, and shall be deemed to have been adequately given and
delivered as follows: (i) upon personal delivery, including personal delivery by
overnight messenger, to the party to be notified at the address set forth below;
or (ii) upon the expiration of five (5) business days after deposit with the
United States Postal Service, via certified mail with a return receipt
requested, with postage prepaid and addressed to the party to be notified at the
address as set forth below; or (iii) immediately upon transmission and receipt
of confirmation if sent by facsimile to the party to be notified at the address
set forth below.
If to PartMiner, Inc.: If to IBM:
Xxxxxxx X. Xxxxxx Xxxxxxx Xxxxxx
General Counsel Client Representative
PartMiner, Inc. IBM Corporation
000 Xxxx Xxx. Xxxxx 0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
AGREED TO: AGREED TO:
PARTMINER, INC. IBM CORPORATION
BY: /s/ Xxxxxx Xxxxxxxxx BY: /s/ Xxxx Xxxxxxx
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NAME: Xxxxxx Xxxxxxxxx NAME: Xxxx Xxxxxxx
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TITLE: President TITLE: Principal
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DATE: July 28, 1999 DATE: 8-2-99
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