Exhibit 10.19
IBM PARTNERWORLD AGREEMENT - INTERNATIONAL BASIC GENERAL TERMS
We welcome you as an IBM PartnerWorld participant. The purpose of PartnerWorld
is to provide you with marketing, technical and development support related to
IBM products and services.
PartnerWorld consists of the Member, Advanced and Premier levels. All
PartnerWorld participants qualify at the Member level. You may qualify for the
Advanced or Premier level based on your attainment of the requirements for
commitment, competency, customer satisfaction, and contribution as we specify in
the PartnerWorld Track Guides for the tracks you select. PartnerWorld
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participants may use the title "IBM Business Partner" (if authorized,
participants may also use the Lotus and Tivoli Business Partner titles). Upon
our confirmation, participants meeting the requirements of the Advanced or
Premier level for the Tracks selected may use the IBM Business Partner emblem
and title associated with the level (upon our confirmation, participants may
also use the Lotus and Tivoli Business Partner emblems and titles associated
with the level). If you have authorization to use a title and emblem under the
terms of another relationship, you may continue to do so.
We provide you with benefits through your participation in PartnerWorld.
Benefits are associated with the level you achieve. We specify the details of
the benefits and the conditions which apply, including charges, if any, in the
PartnerWorld Track Guides.
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Participation in PartnerWorld is either by Enterprise or Location depending upon
the track, or your level within a track, as specified in the PartnerWorld Track
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Guides.
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SECTION 1 - DEFINITIONS
ENTERPRISE is any legal entity and the subsidiaries it owns by more than 50
percent.
LOCATION means a site at which you are located, controlled and operated by you,
and which is within your Enterprise.
SECTION 2 - LEVEL AND BENEFIT QUALIFICATIONS
The Advanced and Premier levels and certain benefits have requirements.
Therefore, you agree that:
1. to qualify for the level or for a benefit, the Location or Enterprise, as
specified in the PartnerWorld Track Guides, must meet the requirements for
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such level or benefit;
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2. you will maintain the requirements of the level you achieve or a benefit
you select; and
3. you will requalify annually for the level or, as we specify, for a benefit.
If there are skill requirements for the level you achieve or for a benefit you
select, you agree to give us prompt written notice if you do not retain such
skill requirements. If you wish to retain the level or the benefit, you agree to
replace such skills within three months of the loss. Failure to notify us on a
timely basis of such loss or to replace such skills may result in our adjusting
your level to that for which you qualify, or ending our approval of you for the
benefit.
SECTION 3 - AGREEMENT STRUCTURE
This IBM PartnerWorld Agreement Basic General Terms, Attachments (such as those
which include terms associated with optional benefits) and any related
transaction documents (such as an invoice), are the complete agreement
(collectively called "the Agreement") regarding your participation in
PartnerWorld, and replace any prior oral or written communication between us.
If there is a conflict among the terms in the various documents, the terms of:
1. a transaction document prevail over those of all documents; and
2. an Attachment prevail over the terms of the Basic General Terms.
You accept the terms in a transaction document by signing it, or by accepting,
using or paying for that which is the subject of the transaction document.
SECTION 4 - ELECTRONIC COMMUNICATIONS
Each of us may communicate with the other by electronic means (for example, to
provide written notice or consent to the other), 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 sufficient to verify
the sender's identity and the document's authenticity.
SECTION 5 - RESPONSIBILITIES
Each of us agrees that:
1. both of us are independent contractors, and the Agreement is non-exclusive.
Neither of us is a legal representative nor legal agent of the other.
Neither of us is legally a partner of the other (for example, neither of us
is responsible for debts incurred by the other), and neither of us is an
employee or franchise of the other, nor does the Agreement create a joint
venture between us;
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2. each of us is responsible for our own expenses regarding fulfillment of our
responsibilities and obligations under the terms of this Agreement;
3. nothing contained herein grants us any rights or obligations with regard to
your products or services;
4. neither of us will assume or create any obligations on behalf of the other
or make any representations or warranties about the other, other than those
authorized;
5. any terms of the Agreement, which by their nature extend beyond the date
the Agreement ends, remain in effect until fulfilled and apply to
respective successors and assignees;
6. both of us have the right to store information on how to contact each
other's employees such as names, phone numbers and e-mail addresses in any
country where we do business. Each of us may use such information to
fulfill our respective obligations under this Agreement;
7. neither of us will bring a legal action against the other more than two
years after the cause of action arose, unless otherwise provided by
applicable law without the possibility of contractual waiver;
8. failure by either of us to insist on strict performance or to exercise a
right when entitled does not prevent either of us from doing so at a later
time, either in relation to that default or any subsequent one;
9. neither of us is responsible for failure to fulfill obligations due to
causes beyond the control of either of us;
10. neither of us may assign this Agreement, in whole or in part, without the
prior written consent of the other. Such consent shall not be unreasonably
withheld. Either Party may transfer this Agreement within their Enterprise
of which either of us is a part, or to a successor organization by merger
or acquisition, without consent of the other. The transferring party agrees
to advise the other party in writing within one month of the transfer;
11. except as otherwise stated in the Confidential Information section of this
Agreement, all other information exchanged between us is nonconfidential;
12. if any provision of this Agreement is determined to be invalid or otherwise
unenforceable, such provision will be deemed deleted from this Agreement,
while the remainder of this Agreement will continue in full force and
effect as written;
13. each of us will comply with all applicable laws and regulations including
export laws; and
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14. this Agreement does not include our approval for you to market our products
and services under remarketer terms or complementary marketing terms unless
we specify otherwise in an Attachment.
You agree:
1. to be responsible for customer satisfaction for all your activities;
2. that to receive benefits in any country, you must register and be accepted
by the IBM organization in that country. Not all benefits are available in
all countries.
3. that for certain lead offerings, if we provide a lead to you, to report to
us the results of your activities, as we specify in writing;
4. that to qualify for a level or benefit for which we reasonably require
information (for example, documentation of your skills certification), to
provide such information to us;
5. that when we provide you with access to our information systems, it is only
in support of your activities under the Agreement. Programs we provide to
you for your use with our information systems, which are in support of such
activities, are subject to the terms of their applicable license
agreements, except you may not transfer them;
6. that you will not offer or make payments or gifts (monetary or otherwise)
to anyone for the purpose of wrongfully influencing decisions in favor of
IBM, directly or indirectly. IBM may terminate the Agreement immediately in
case of 1) a breach of this clause or 2) when IBM reasonably believes such
a breach has occurred or is likely to occur; and
7. to give us prompt written notice (unless precluded by law or regulation) of
any material change or anticipated change in the information you provide to
participate in PartnerWorld.
SECTION 6 - INTERNAL USE, DEVELOPMENT, DEMONSTRATION AND EVALUATION PRODUCTS
If you acquire products we designate for internal use, such products are for use
only within your Business Partner operations.
If you acquire products we designate for development, demonstration or
evaluation purposes, such products are for use for such purposes and in support
of your Business Partner activities under the Agreement.
All products acquired for the above purposes will be acquired under the terms of
the applicable agreement.
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Products acquired for the above purposes must be retained for use for such
purposes for the period we specify in the PartnerWorld Track Guides. During such
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period, products may not be used for work-for-charge.
Programs acquired for the above purposes are subject to the terms of their
license agreement except that they may not be transferred. In addition, programs
acquired for evaluation purposes may be provided on an "as is" basis without
technical support. We will advise you in the PartnerWorld Track Guides if
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technical support is provided for such programs.
SECTION 7 - TRADEMARKS
We will notify you in writing of the IBM Business Partner title, and emblem if
any, which you are authorized to use. We will provide you written guidelines
regarding the use of the IBM Business Partner title and emblem. You may not
modify the emblem or title in any way. You may use our Trademarks (which include
the title, emblem, IBM trademarks and service marks) only:
1. in accordance with the terms of this Agreement; and
2. as described in the written guidelines we provide to you.
The royalty normally associated with non-exclusive use of our Trademarks will be
waived, since the use of this asset is in conjunction with your activities under
the Agreement.
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
our Trademark, you agree to promptly notify us. When the 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 xxxx that is confusingly similar to any of
our Trademarks.
Our Trademarks, and any goodwill resulting from your use of them, belong to us.
SECTION 8 - CHARGES AND PAYMENT TERMS
You agree to pay the applicable charges, if any, associated with a benefit you
select. We specify such charges in the PartnerWorld Track Guides. The charge is
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the lower of the price in effect on the date we receive your request, or the
date we fulfill your request.
We may change charges at any time. Such changes are not retroactive.
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Amounts are due upon receipt of invoice and payable as specified in an invoice
or transaction document. You agree to pay accordingly, including any late
payment fee.
SECTION 9 - CHANGE IN TERMS
We may change the terms of the Agreement by giving you one month's notice.
However, we may change the terms relating to safety and security at any time.
Notice of all changes will be provided by posting the change, or the Agreement
with the changes incorporated, at (specify name of applicable website).
You agree that it is your responsibility to check the web site for the purpose
of determining if there is a change to the Agreement. We may, at our discretion,
also provide other written notice to you of any such change.
Otherwise, for any other change to be valid, both of us must agree in a signed
writing. Changes are not retroactive. Additional or different terms in any
written communication from you are void.
SECTION 10 - CONFIDENTIAL INFORMATION
Each of us agrees that the terms of this section apply to confidential
information (Information) specified below identified as "Confidential" and which
we disclose between us:
1. information regarding prospects and customers;
2. unannounced products and services, and any related technical information;
3. business plans;
4. any of the following information you provide to us on our request:
- reporting data;
- customer satisfaction data;
- financial data; and
- sales information;
5. any information on the Web site identified as "Confidential". We may
identify such information as confidential either in writing or on the Web
site. Your access of such information is considered your agreement to
accept it as confidential; and
6. any other information which we agree in writing and which is identified as
"Confidential".
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The recipient of the Information, for a period of two years from the initial
date of disclosure, agrees to use the 1) same care and discretion to avoid
disclosure, publication or dissemination of the discloser's information as it
uses with its own similar Information that it does not wish to disclose, publish
or disseminate; and 2) discloser's Information for the purpose for which it was
disclosed or otherwise for the benefit of the discloser.
The recipient may disclose Information within the Enterprise to those who have a
need to know, and to any other party with the discloser's prior written consent,
if there is a written agreement with the party sufficient to require that party
to treat the Information in accordance with this Agreement.
The recipient may disclose, publish, disseminate, and use Information that is 1)
already in its possession without obligation of confidentiality, 2) developed
independently, 3) obtained from a source other than the discloser without
obligation of confidentiality, 4) publicly available when received, or
subsequently becomes publicly available through no fault of the recipient, or 5)
disclosed by the discloser to another without obligation of confidentiality.
The recipient may disclose, publish, disseminate, and use the ideas, concepts,
know-how and techniques, related to the recipient's business activities, which
are in the discloser's Information and retained in the memories of recipient's
employees who have had access to the Information under this Agreement. Nothing
in this paragraph gives the recipient the right to disclose, publish, or
disseminate 1) the source of Information, 2) any financial, statistical or
personnel data of the discloser; or 3) the business plans of the discloser.
THE DISCLOSER PROVIDES INFORMATION WITHOUT WARRANTIES OF ANY KIND.
The recipient uses Information provided by the discloser at its own risk.
Neither this Section 10 nor any disclosure of Information made under it grants
the recipient any right or license under any trademark, copyright or patent now
or subsequently owned or controlled by the discloser.
The receipt of Information pursuant to this Agreement will not preclude, or in
any way limit, the recipient from 1) providing to others products or services
which may be competitive with products or services of the discloser, 2 )
providing products or services to others who compete with the discloser, or 3)
assigning its employees in any way it may choose.
SECTION 11 - LIABILITY
You will indemnify us for third party claims made against us arising out of your
conduct under this Agreement.
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In the event of a default in the performance of this Agreement, including
fundamental breach, tort, or misrepresentation a) either party will only be
liable to the other for any actual direct damages up to $25,000 (or its
equivalent in local currency) in the aggregate, and b) neither of us will be
liable for any loss of profits, business revenue, goodwill or anticipated
savings, special, indirect, incidental or other consequential damages, even if
advised of their possibility. These limitations will not apply to 1) your
obligation to indemnify us for third party claims made against us arising out of
your conduct under this Agreement, 2) any claim based on your breach of our
intellectual property rights, including failure to use Trademarks in accordance
with our guidelines, 3) your misrepresentation or fraud, particularly regarding
statements, claims or warranties not authorized by us, and 4) any liability,
including liability based on intent or gross negligence, which under applicable
mandatory law may not be excluded or limited.
SECTION 12 - ENDING THE AGREEMENT
Either of us may terminate the Agreement or any of its Attachments, with or
without cause, on one month's written notice. If the termination is for cause,
the terminating party will allow the other party a reasonable opportunity to
cure.
You agree that if we permit you to perform certain activities after this
Agreement ends, you will do so under the terms of this Agreement.
SECTION 13 - GEOGRAPHIC SCOPE
All the rights and obligations of both of us are valid worldwide, subject to the
terms and conditions of this Agreement.
Section 14- Governing Law
Each of us consent to the application of the laws of the country in which we
contract with you to govern, interpret and enforce rights, duties, and
obligations of each of us arising from, or relating in any manner to, the
subject matter of this Agreement, except that in 1) Australia, the laws of the
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State or Territory in which the transaction is performed apply; 2) Albania,
Bosnia-Herzegovina, Bulgaria, Croatia, Hungary, Former Yugoslav Republic of
Macedonia, Poland, Romania, Slovakia, Slovenia, Armenia, Azerbaijan, Belarus,
Georgia, Kazakhstan, Kyrgyzstan, Moldava, Russia, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan, the laws of Austria apply; 3) Estonia, Latvia, and
Lithuania, the laws of Finland apply; 4) Algeria, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Congo, Djibouti, Democratic Republic
of Congo, Equatorial Guinea, France, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory
Coast, Lebanon, Mali, Mauritania, Morocco, Niger, Senegal, Togo, and Tunisia,
this Agreement will be construed and the legal relations between the parties
will be determined in accordance with the French laws and all disputes arising
out of this Agreement or related to its violation or execution, including
summary proceedings, will be settled exclusively by the Commercial Court of
Paris; 5) Angola, Bahrain, Botswana, Burundi, Egypt Eritrea, Ethiopia, Ghana,
Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Oman
Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia,
Tanzania, Uganda, United Arab Emirates, United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe, all this Agreement will be governed by English Law and
disputes relating to it will be submitted to the exclusive jurisdiction of the
English courts; 6) Canada, the laws of the Province of Ontario apply; 7) the
United States, Puerto Rico, the People's Republic of China, Laos, Cambodia and
Vietnam, the laws of the State of New York apply. The application of the above
referenced laws is without regard to applicable conflict of laws principles.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply.
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