Licensed Works Agreement
This Base
Agreement (“Base
Agreement”) between International Business Machines
Corporation (“Buyer”) and Avistar
Communications Corp.(“Supplier”), establishes the
basis for a multinational procurement relationship under which Supplier will
provide the Deliverables and Services described in SOWs and/or WAs issued
under this Base Agreement. This Base Agreement is effective from the
last date of mutual execution ("Effective Date") and will
remain in effect until terminated.
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1.0
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Definitions
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"Affiliates" means entities
that control, are controlled by, or are under common control with, a party to
this Agreement.
"Agreement" means this Base
Agreement and any relevant Statements of Work ("SOW"), Work Authorizations
("WA"), and other
attachments or appendices specifically referenced in this
Agreement.
"Code" means computer
programming code, including both "Object Code" (computer
programming code substantially in binary form that is directly executable by a
computer after processing, but without compilation or assembly) and "Source Code" (computer
programming code that may be displayed in a form readable and understandable by
a programmer of ordinary skill, excluding Object Code).
"Deliverables" means items
that Supplier prepares for or provides to Buyer as described in a SOW and/or WA.
Deliverables include Licensed Works and Tools.
"Electronic Self-Help" means a
process where Supplier electronically disables, removes, or otherwise prevents
the use of its software product without the Buyer's or Buyer's Customer's
cooperation or consent. Electronic Self-Help could be done through electronic or
other means (for example: remotely through "back doors" or hidden entrances in
the software or through hidden shut-down commands in the software that can be
activated by phone or in other ways).
"Enhancements" means changes
or additions, other than Error Corrections, to the Licensed Work. If an
Enhancement adds substantial value to the Licensed Work and is offered to
customers for an additional charge it will be considered a "Major Enhancement",
and all other Enhancements, including those that support new releases of
operating systems and devices, will be considered "Basic
Enhancements".
"Error Corrections" means
revisions that correct errors and deficiencies (collectively referred to as
"errors") in the Licensed Work.
"Externals" means any
pictorial, graphic, audiovisual works, reports or data generated by execution of
code and any programming interfaces, languages or protocols implemented in the
code to enable interaction with other computer programs or end users. Externals
do not include the code that implements them.
"Licensed Work" is any
material described in or that conforms to the Description of Licensed Work in
the relevant SOW and/or WA and includes Code, associated documentation,
Externals, Error Corrections, and Enhancements.
"Participation Agreement" or
"PA" means an agreement
signed by one or more Affiliates which incorporates by reference the terms and
conditions in this Base Agreement, any relevant SOW, and other attachments or
appendices specifically referenced in the PA.
"Personal Data" means any
information that may identify an individual.
"Personnel” means agents,
employees or subcontractors engaged or appointed by Buyer or
Supplier.
"Prices" means the agreed upon
payment and currency for Deliverables and Services, exclusive of Taxes but
including all applicable fees and royalty payments, as specified in the relevant
SOW and/or WA.
"Products" means an offering
to customers or other users, whether or not branded by Buyer or its Affiliates
that includes the Licensed Work or a derivative work of a Licensed
Work.
"Services" means work that
Supplier performs for Buyer as described in a SOW and/or WA.
"Statement of Work" or "SOW" means any document
that:
1.
identifies itself as a statement of work;
2. is
signed by both parties;
3.
incorporates by reference the terms and conditions of this Base Agreement;
and
4.
describes the Deliverables and Services, including any requirements,
specifications or schedules.
“Taxes” means any and all
applicable taxes, charges, fees, levies or other assessments imposed or
collected by any governmental entity worldwide or any political subdivision
thereof and however designated or levied on sales of Deliverables or Services,
or sales, use, transfer, goods and services or value added tax or any other
duties or fees related to any payment made by Buyer to Supplier for Deliverables
and/or Services
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
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provided
by Supplier to Buyer under or pursuant to this Agreement; exclusive, however, of
any taxes imposed upon the net income or capital of Supplier, any taxes in lieu
of such net income taxes and any other taxes which are to be borne by Supplier
under law.
"Tools" means software that is
not commercially available, and its Externals, required for the development,
maintenance or implementation of a software Deliverable.
"Work Authorization” or "WA" means Buyer’s
authorization in either electronic or tangible form for Supplier to conduct
transactions under this Agreement in accordance with the applicable SOW (i.e., a
purchase order, xxxx of lading, or other Buyer designated document). A SOW is a
WA only if designated as such in writing by Buyer.
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2.0
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Statement
of Work
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2.1
Licensed Works
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Supplier
will deliver to Buyer:
1. one
complete copy of the Licensed Work described in the relevant SOW and/or
WA;
2. a
completed Certificate of Originality in the form specified in the SOW with the
Licensed Work and with each Enhancement to the Licensed Work;
3.
complete copies of all Tools, including updates to Tools as soon as practicable;
and
4. a
complete list of all commercially available software required for the
development, maintenance or implementation of a software Deliverable, including
updates to the list as soon as practicable.
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2.2
Enhancements and Error Corrections
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Supplier
will provide to Buyer, at no additional charge, Basic Enhancements and Error
Corrections for the Licensed Work beginning when Buyer accepts the Licensed Work
and continuing for the Error Correction Warranty Period specified in the
relevant SOW and/or WA. Supplier will also provide to Buyer, at no additional
charge, Major Enhancements to the Licensed Work beginning when Buyer accepts the
Licensed Work and continuing for the Major Enhancements Warranty Period
identified in the SOW and/or WA. After that period, Supplier will offer to Buyer
*** of availability
Major Enhancements to the Licensed Work that Supplier creates or authorizes
others to create ***. If
Buyer accepts Supplier's offer, the parties will amend the relevant SOW and/or
WA to include such charges, terms and conditions, and the Major Enhancements
will become part of the Licensed Work.
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2.3
Work Authorizations
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Supplier
agrees to accept all WA's that conform with the terms and conditions of this
Agreement.
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3.0
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Pricing
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Supplier
will provide Deliverables and Services to Buyer for the Prices. The Prices for
Deliverables specified in a SOW and/or WA and accepted by Buyer plus the payment
of applicable Taxes will be the only amount due to Supplier from Buyer. The
relevant SOW or WA shall contain Prices for each country receiving Deliverables
and Services under this Agreement.
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4.0
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Taxes
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Supplier’s
invoices shall state all applicable Taxes, if any, by tax jurisdiction and with
a proper breakdown between taxable and non-taxable Deliverables and Services.
Supplier assumes responsibility to timely remit all Tax payments to the
appropriate governmental authority in each respective jurisdiction. Supplier and
Buyer agree to cooperate to minimize, wherever possible and appropriate, any
applicable Taxes, and provide reasonable notice and cooperation
in connection with any audit. Supplier shall also bear sole responsibility for
all taxes, assessments, or other levies on its own income, leased or purchased
property, equipment or software. If Buyer provides a direct pay certificate,
certification of an exemption from Tax or reduced rate of Tax imposed by an
applicable taxing authority, then Supplier agrees not to invoice nor pay any
such Tax unless and until the applicable taxing authority assesses such Tax, at
which time Supplier shall invoice and Buyer agrees to pay any such Tax that is
legally owed.
Buyer
shall withhold taxes as required under applicable law on payments made to
Supplier hereunder and shall be required to remit to Supplier only the net
proceeds thereof. Buyer agrees to remit in a timely
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
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manner
all taxes withheld to the appropriate government authority in each respective
jurisdiction.
Supplier
will reimburse Buyer for any claims by any jurisdiction relating to Taxes paid
by Buyer to Supplier; and for any penalties, fines, additions to Tax or interest
thereon imposed as a result of Supplier’s failure to timely remit the Tax
payment to the appropriate governmental authority in each respective
jurisdiction. Supplier shall also reimburse Buyer for any claims made by a
taxing jurisdiction for penalties, fines, additions to Tax and the amount of
interest thereon imposed with respect to Supplier's failure to invoice Buyer for
the correct amount of Tax.
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5.0
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Payments
and Acceptance
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5.1
Acceptance
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Payment
of royalties or invoices will not be deemed acceptance of Deliverables, but
rather such Deliverables will be subject to inspection, test, acceptance or
rejection in accordance with the acceptance or completion criteria as specified
in the relevant SOW and/or WA. Buyer may, at its option, either reject
Deliverables that do not comply with the acceptance or completion criteria for a
refund, or require Supplier, upon Buyer’s written instruction, to repair or
replace such Deliverables, without charge and in a timely manner.
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5.2
Royalty Payments
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Royalties
for Licensed Works will be specified in the relevant SOW and/or WA. Buyer may
suspend payments to Supplier for a Licensed Work if Supplier does not provide a
properly completed Certificate of Originality. Payment will resume upon Buyer’s
receipt of an acceptable Certificate. If Supplier fails to perform any of its
obligations, Buyer may reduce any amounts due Supplier by an amount equal ***, or have Supplier *** for ***.
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5.3
Royalty Calculations
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Royalties,
if any, are paid against sales recorded by Buyer for a ***. Payment will be made by
*** of the *** following the royalty
payment ***. All
payments will be made in U.S. dollars. Payments based on foreign revenue will be
converted to U.S. dollars on a monthly basis at the rate of exchange published
by Reuters Financial Service on approximately the same day each month. Terms for
payment of any non-royalty payments will be specified in the relevant SOW and/or
WA.
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5.4
Exceptions to Royalty Payment
Obligations
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Buyer has
no royalty obligation for:
(a) the
Licensed Work or its derivative works used for:
1.
Buyer's or Buyer Personnel’s internal use:
2.
development, maintenance or support activities conducted by Buyer or Buyer
Personnel, or third parties under contract with Buyer;
3.
marketing demonstrations, customer testing or trial periods (including early
support, prerelease, encrypted or locked sampler distributions not resulting in
a license for full productive use, or other similar programs), Product training
or education; or
4. backup
and archival purposes;
(b) a
copy of the Product installed by a licensed end user on an alternate work
station (e.g., home terminal or laptop), provided the end user may not use the
Product on both work stations at the same time;
(c) the
Licensed Work (or a functionally equivalent work) that becomes available
generally to third parties without a payment obligation;
(d)
documentation provided with, contained in, or derived from the Licensed
Work;
(e) Error
Corrections or Basic Enhancements;
(f)
warranty replacement copies of the Product; and
(g)
Externals.
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5.5
Outsourcing License
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In the
event Buyer provides outsourcing services to licensees of a Product, Buyer *** owe Supplier a *** access to or assignment of
a license to such Product or for transfer of the applicable Product to a
Buyer
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
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computer
system which is of like configuration as the computer system for which the
Product was licensed. The foregoing is subject to Buyer providing Supplier
notice of such Product to be managed by Buyer and provided the Product will only
be used on behalf of the licensee. Upon expiration or termination of the
agreement to provide outsourcing services to the licensee, Buyer’s right to use
that copy of the Product will end.
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5.6
Invoicing
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Unless
otherwise provided by local law without the possibility of contractual waiver or
limitation, Supplier will submit invoices, corrected invoices, or other such
claims for reimbursement, to Buyer *** from the date of *** or the ***. Exceptions must be
specifically authorized by Buyer.
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6.0
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Electronic
Commerce
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To the
extent permitted by local law, the parties will conduct transactions using an
electronic commerce approach under which the parties will electronically
transmit and receive legally binding purchase and sale obligations
("Documents"), including electronic credit entries transmitted by Buyer to the
Supplier account specified in the relevant SOW and/or WA. The parties will enter
into a separate agreement governing the transmission of such electronic
transactions and associated responsibilities of the parties.
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7.0
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Warranties
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7.1
Ongoing Warranties
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Supplier
makes the following ongoing representations and warranties:
1. it has
the right to enter into this Agreement and its performance of this Agreement
will comply, at its own expense, with the terms of any contract, obligation
including any between Supplier and its end-users; or any law, regulation or
ordinance to which it is or becomes subject;
2. no
claim, lien, or action exists or is threatened against Supplier that would
interfere with Buyer’s rights under this Agreement;
3.
Deliverables and Services do not infringe any privacy, publicity, reputation or
intellectual property right of a third party;
4. it has
disclosed to Buyer in writing the existence of any third party code, including
without limitation open source code, that is included in or is provided in
connection with the Deliverables and that Supplier and the Deliverables are in
compliance with all licensing agreements applicable to such third party
code;
5. all
authors have agreed not to assert their moral rights (personal rights associated
with authorship of a work under applicable law) in the Deliverables, to the
extent permitted by law;
6.
Deliverables are safe for use consistent with and will comply with the
warranties, specifications and requirements in this Agreement;
7.
Deliverables do not contain harmful code;
8.
Services will be performed using reasonable care and skill and in accordance
with the relevant SOW and/or WA;
9. it
will not engage in Electronic Self-Help;
10.
Deliverables and Services which interact in any capacity with monetary data are
euro ready such that when used in accordance with their associated documentation
they are capable of correctly processing monetary data in the euro denomination
and respecting the euro currency formatting conventions (including the euro
sign);
11. it is
knowledgeable with, and is and will remain in full compliance with all
applicable export and import laws, regulations, orders, and policies (including,
but not limited to, securing all necessary clearance requirements, export and
import licenses and exemptions from, and making all proper filings with
appropriate governmental bodies and/or disclosures relating to the release or
transfer of technology and software to non U.S. nationals in the U.S., or
outside the U.S., release or transfer of technology and software having U.S.
content or derived from U.S.-origin software or technology); it is knowledgeable
with applicable supply chain security recommendations issued by applicable
governments and industry standards organizations and will make best efforts to
comply with such recommendations;
12.
unless authorized by applicable government license or regulation, including but
not limited to any U.S. authorization, Supplier will not directly or indirectly
export or reexport, at any time, any technical information, technology,
software, or other commodity furnished or developed under this, or any
other,
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
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agreement
between the parties, or any other product that is developed or produced from or
using Buyer’s technical information, technology, software, or other commodity
provided under this Agreement to any prohibited country (including release of
such technical information, technology, software, or other commodity to
nationals, wherever they may be located, of any prohibited country) as specified
in applicable export, embargo, and sanctions regulations;
13. it
will not use, disclose, or transfer across borders any Personal
Data that is processed for Buyer, except to the extent necessary to perform
under this Agreement; and
14. it
will comply with all applicable data privacy laws and regulations, will
implement and maintain appropriate technical and organizational measures and
other protections for the Personal Data, (including, without limitation, not
loading any Personal Data provided to Supplier on (a) any laptop computers or
(b) any portable storage media that can be removed from Supplier’s premises
unless (in the case of (b) only) (i) such data has been encrypted and (ii) such
data is loaded onto portable storage media solely for the purpose of moving such
data to off-site storage). Further, it will immediately report to Buyer
any breaches of protection of Personal Data or any compromises thereof and will
cooperate fully with Buyer in investigating any such breaches or compromises,
will cooperate fully with Buyer’s requests for access to, correction of, and
destruction of Personal Data in Supplier’s possession, and will comply with all
instructions or other requirements provided or issued by Buyer from
time to time relating to Personal Data
THE
WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
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7.2
Warranty Redemption
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Subject
to the Section titled Supplier Liability for Third Party Claims, if Deliverables
or Services do not comply with the warranties in this Agreement, Supplier will
repair or replace Deliverables or re-perform Services, without charge and in a
timely manner. If Supplier fails to do so, Buyer may repair or replace
Deliverables or re-perform Services and Supplier will reimburse Buyer for actual
and reasonable expenses.
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8.0
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Delivery
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Deliverables
or Services will be delivered as specified in the relevant SOW and/or WA. If
Supplier cannot comply with a delivery commitment, Supplier will promptly notify
Buyer of a revised delivery date and Buyer may:
1. cancel
without charge Deliverables or Services not yet delivered; and
2.
exercise all other remedies provided at law, in equity and in this
Agreement.
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9.0
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Intellectual
Property
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9.1
Licensed Works
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Supplier
grants Buyer the rights in the Licensed Works as specified in the relevant SOW
and/or WA. Subject to Supplier's ownership of the Licensed Work and Tools, Buyer
will own any derivative works it creates
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9.2
Tools
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Supplier
will not include Tools in Deliverables unless they are listed in the relevant
SOW and/or WA. If Supplier includes any Tools in a Deliverable whether or not
listed in the relevant SOW and/or WA, Supplier grants or will obtain for Buyer
the following rights: a nonexclusive, worldwide, perpetual, irrevocable,
paid-up, license to prepare and have prepared derivative works of such Tools,
and to use, have used, execute, reproduce, transmit, display and perform such
Tools or their derivative works.
9.3
Perfection of Copyrights
Upon
request, Supplier will provide to Buyer a "Certificate of Originality" or
equivalent documentation to verify authorship of Deliverables.
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9.4
Names and Trademarks
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Supplier
grants Buyer a nonexclusive, worldwide, perpetual, irrevocable, paid-up license
to use the names and trademarks Supplier uses to identify the Licensed Work for
Buyer's marketing of the Licensed Work
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
Page 5 of
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and
its derivative works. If Supplier objects to Buyer's improper use of Supplier's
names or trademarks, Buyer will take all reasonable steps necessary to resolve
Supplier's objections. Supplier may reasonably monitor the quality of Licensed
Work bearing its trademark under this license. Any goodwill attaching to Buyer's
trademarks, service marks, or trade names belongs to Buyer and this Agreement
does not grant Supplier any right to use them.
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9.5
Patents
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Supplier
grants to Buyer a nonexclusive, worldwide, perpetual, irrevocable, and paid-up
license under any patents and patent applications licensable by Supplier to
make, have made, use, have used, import, export, sell, and otherwise transfer
the Deliverables and use the Services to the extent authorized in this
Agreement.
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10.0
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Supplier
Liability for Third Party Claims
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10.1
General Indemnification
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will
defend, hold harmless and indemnify, including legal fees, against
third party claims that arise or are alleged to have arisen as a result of
negligent or intentional acts or omissions or breach of any term of this
Agreement.
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10.2
Intellectual Property
Indemnification
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Supplier
will defend, or at Buyer’s option cooperate in the defense of, hold harmless and
indemnify, including legal fees, Buyer and Buyer Personnel from third party
claims that Supplier’s Deliverables infringe the intellectual property rights of
a third party. In addition, if such a claim is or is likely to be made, Supplier
will, at its own expense, exercise the first of the following remedies that is
practicable:
1. obtain
for Buyer the right to continue to use, sell and license the Deliverables
consistent with this Agreement;
2. modify
Deliverables so they are non-infringing and in compliance with this
Agreement;
3.
replace the Deliverables, or other affected Deliverables or Services, with
non-infringing ones that comply with this Agreement; or
4. at
Buyer's request, accept the cancellation of infringing Deliverables and Services
without Buyer having any cancellation liability and the return of the infringing
Deliverables at Supplier’s expense and refund any amount paid.
Buyer
will give Supplier prompt notice of third party claims against Buyer, and
cooperate in the investigation, settlement and defense of such
claims.
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10.3
Exceptions to Indemnification
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Supplier
will have no obligation to indemnify Buyer or Buyer Personnel for claims that
Supplier’s Deliverables or Services infringe the intellectual property rights of
a third party to the extent such claims arise as a result of Supplier’s
implementation of a Buyer originated design and such infringement or claim would
have been avoided in the absence of such implementation, or Buyer’s modification
of the Deliverables and such infringement or claim would have been avoided in
the absence of such modification.
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11.0
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Limitation of Liability between
Supplier and Buyer
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In no
event will Buyer be liable to Supplier for any lost revenues, lost profits,
incidental, indirect, consequential, special or punitive damages.
Supplier
acknowledges and agrees that all WA's or PA's issued by Buyer's Affiliate(s) are
independent agreements between Supplier or Supplier Affiliate and the Buyer
Affiliate. Buyer shall not be liable to Supplier or Supplier Affiliate(s) for
any actions or inactions of any Buyer Affiliate(s) under a WA or PA, nor shall
any actions or inactions by Buyer's Affiliate(s) constitute a breach of the
Agreement between Buyer and Supplier.
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12.0
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Supplier
and Supplier Personnel
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Supplier
is an independent contractor and this Agreement does not create an agency
relationship between Buyer and Supplier or Supplier Personnel. Buyer
assumes no liability or responsibility for Supplier Personnel. Supplier
will:
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
Page 6 of
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1. ensure
it and Supplier Personnel are in compliance with all laws, regulations,
ordinances, and licensing requirements;
2. be
responsible for the supervision, control, compensation, withholdings, health and
safety of Supplier Personnel;
3. inform
Buyer if a former employee of Buyer will be assigned work under this Agreement,
such assignment subject to Buyer approval;
4. upon
request, provide Buyer, for export evaluation
purposes, to the extent permitted by law, the
country of citizenship and permanent residence and immigration status of those
persons. Buyer retains the right to refuse to accept persons made available by
Supplier for export control reasons;
5. not
discriminate against any employees, applicants for employment, or any entity
engaged in its procurement practices because of race, color, religion, sex, age,
national origin, or any other legally protected status; and
6.
(a) be solely responsible for, and fully and properly complete and submit
to the relevant government immigration authority, all required immigration forms
and documents for all Supplier Personnel performing Services hereunder, maintain
such forms and documents as required by law and, subject to applicable laws (in
particular laws regarding data privacy),make such forms and documents available
to Buyer upon request, and (b) ensure that Supplier Personnel who do not meet
all immigration requirements do not perform Services under this
Agreement.
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13.0
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Insurance
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Supplier
will maintain at its expense:
1.
commercial general or public liability insurance including products liability
and completed operations with a minimum limit per occurrence or accident
of *** USD (or
local currency equivalent);
2.
workers' compensation and employer's liability insurance as required by local
law, such policies waiving any subrogation rights against Buyer;
and
3.
automobile liability insurance as required by local statute but not less
than *** USD (or
local currency equivalent) if a vehicle will be used in the performance of this
Agreement.
Insurance
required under clauses (1) and (3) above must:
(a)
name Buyer as an additional insured with respect to Buyer's insurable
interest;
(b) be
primary or non-contributory regarding insured damages or expenses;
and
(c) be
purchased either; (i) from insurers domiciled in the US with an AM Best Rating
of A- or better and a financial class rating of 7 or better, or (ii) from non US
carriers with a Standard & Poor’s rating of BBB or greater and $50M in
policy holder’s surplus.
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14.0
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Termination
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14.
1Termination of this Base Agreement
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Either
party may terminate this Base Agreement, without any cancellation charge, for a
material breach of this Agreement by the other party or if the other party
becomes insolvent or files or has filed against it a petition in bankruptcy
("Cause"), to the extent permitted by law. Such termination will be effective at
the end of *** written
notice period if the Cause remains uncured. Either party may terminate this Base
Agreement without Cause when there are no outstanding SOWs or WAs.
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14.2
Termination of a SOW or WA
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Buyer
may, upon written notice to Supplier, terminate a SOW or WA:
1. with
Cause effective immediately; or
2.
without Cause effective immediately or as otherwise specified in such
notice.
Upon
termination, in accordance with Buyer’s written direction, Supplier will
immediately:
1. cease
work;
2.
prepare and submit to Buyer an itemization of all completed and partially
completed Deliverables and Services;
3.
deliver to Buyer Deliverables satisfactorily completed up to the date of
termination at the agreed upon Prices in the relevant SOW and/or WA;
and
[***]
Indicates text has been omitted from this Exhibit pursuant to a confidential
treatment request that has been filed separately with the Securities and
Exchange Commission.
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4.
deliver upon request any work in process. In the event Buyer terminates without
Cause, Buyer will compensate Supplier for the actual and reasonable expenses
incurred by Supplier for work in process up to and including the date of
termination, provided such expenses do not exceed the Prices.
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14.3
Effect of Termination
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Termination
of this Base Agreement or a SOW and/or WA will not affect any licenses granted
in the Deliverables supplied or due to Buyer on or prior to the effective date
of termination or Supplier’s obligation to provide Basic Enhancements and Error
Corrections. In the event of termination, Buyer will not be obligated to make
any payments due on or after the effective date of termination, other than
royalty payment obligations incurred, if any.
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15.0
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General
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15.1
Amendments
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This
Agreement may only be amended by a writing specifically referencing this
Agreement which has been signed by authorized representatives of the
parties.
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15.2
Assignment
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Neither
party will assign their rights or delegate or subcontract their duties under
this Agreement to third parties or Affiliates without the prior written consent
of the other party, such consent not to be withheld unreasonably, except that
either party may assign this Agreement in conjunction with the sale of a
substantial part of its business utilizing this Agreement. Any unauthorized
assignment of this Agreement is void.
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15.3 Choice
of Law; Waiver of Jury Trial; Limitation of
Action
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This
Agreement and the performance of transactions under this Agreement will be
governed by the laws of the country where the Buyer entering into the Agreement
is located, except:
1. in
Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia,
Former Yugoslav Republic of Macedonia, Georgia, Kazakhstan, Kyrgyzstan, Moldova,
Montenegro, Romania, Russia, Serbia, Tajikistan, Turkmenistan, Ukraine, and
Uzbekistan, this Agreement will be governed by the laws of Austria,
;
2. in
Australia, this Agreement will be governed by the laws of the State or Territory
in which the transaction occurs;
3. in
Canada, this Agreement will be governed by the laws of the Province of Ontario
;
4. in
Estonia, Latvia, and Lithuania, this Agreement will be governed by the laws of
Finland;
5. in
the People's Republic of China, Puerto Rico and in the United States (including
if any part of the transaction occurs within the United States) this Agreement
and any dispute or controversy arising from or relating to this Agreement will
be governed by the laws of the State of New York applicable to contracts
executed in and performed entirely within that State;
6. in the
United Kingdom, this Agreement will be governed by the laws of
England.
The
United Nations Convention on Contracts for the International Sale of Goods does
not apply.
The
parties expressly waive any right to a jury trial regarding disputes related to
this Agreement. Any legal or other action related to a breach of this
Agreement must be commenced no later than two (2) years from the date on which
the cause of action arose, unless otherwise provided by local law without the
possibility of contractual waiver or limitation.
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15.4
Communications
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All
communications between the parties regarding this Agreement will be conducted
through the parties’ representatives as specified in the relevant SOW and/or WA.
All notices required in writing under this Agreement will be made to the
appropriate contact(s) listed in the relevant SOW and/or WA and will be
effective upon actual receipt. Notices may be transmitted electronically, by
registered or certified mail, or courier. All notices, with the exception of
legal notices, may also be provided by facsimile.
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15.5
Counterparts
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This
Agreement may be signed in one or more counterparts, each of which will be
deemed to be an original and all of which when taken together will constitute
the same Agreement. Any copy of this Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original.
15.6
Ethical Dealings
Supplier
will be familiar and will strictly comply with all laws and regulations on
bribery, corruption, and prohibited business practices. Supplier and its
Affiliates have not and will not offer, promise or make or agree to make,
directly or indirectly, (a) any political contributions of any kind or any
payment to or for the benefit of any public official, whether elected or
appointed, (b) any payments for gifts, meals, travel or other value for a
government employee or his/her family members or (c) any payments or gifts (of
money or anything of value) to anyone for the purpose of influencing, or
inducing anyone to influence decisions in favor of, Buyer or any of its
Affiliates. Buyer shall not reimburse Supplier for any such political
contributions, payments or gifts.
15.7
Exchange of Information
All
information exchanged is non confidential unless it will be made under a
separate signed confidentiality agreement between the parties. The parties will
not publicize the terms of this Agreement, or the relationship, in any
advertising, marketing or promotional materials without prior written consent of
the other party except as may be required by law, provided the party publicizing
gives the other party reasonable prior notice to allow the other party a
reasonable opportunity to obtain a protective order. Supplier will use
information regarding this Agreement only in the performance of this Agreement.
For any Personal Data relating to Supplier Personnel that Supplier provides to
Buyer, Supplier has obtained the agreement of the Supplier Personnel to release
the information to Buyer and to allow Buyer to
use, disclose and transmit such information in connection
with this Agreement.
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15.8
Freedom of Action
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This
Agreement is nonexclusive and either party may design, develop, manufacture,
acquire or market competitive products or services. Buyer will independently
establish prices for resale of Deliverables and Services and is not obligated to
announce or market any Products or Services and does not guarantee the success
of its marketing efforts, if any.
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15.9
Force Majeure
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Neither
party will be in default or liable for any delay or failure to comply with this
Agreement due to any act beyond the control of the affected party, excluding
labor disputes, provided such party immediately notifies the other.
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15.10
Obligations of Affiliates
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Affiliates
will acknowledge acceptance of the terms of this Agreement through the signing
of a PA before conducting any transaction under this Agreement.
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15.11
Prior Communications and Order of
Precedence
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This
Agreement replaces any prior oral or written agreements or other communication
between the parties with respect to the subject matter of this Agreement,
excluding any confidential disclosure agreements. In the event of any conflict
in these documents, the order of precedence will be:
1. the
quantity, payment and delivery terms of the relevant WA;
2. the
relevant SOW;
3. this
Base Agreement; and
4. the
remaining terms of the relevant WA.
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15.12
Record Keeping and Audit Rights
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Supplier
will maintain (and provide to Buyer upon request) relevant business and
accounting records to support invoices under this Agreement and proof of
required permits and professional licenses, for a period of time as required by
local law, but not for less than *** years following completion
or termination of the relevant SOW and/or WA. All accounting records will be
maintained in accordance with generally accepted accounting
principles.
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15.13
Severability
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If any
term in this Agreement is found by competent judicial authority to be
unenforceable in any respect, the validity of the remainder of this Agreement
will be unaffected, provided that such unenforceability does not materially
affect the parties’ rights under this Agreement.
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15.14
Survival
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The
provisions set forth in the following Sections and Subsections of this Base
Agreement will survive after termination or expiration of this Agreement and
will remain in effect until fulfilled: “Taxes”, "Ongoing Warranties",
"Intellectual Property", "Supplier Liability for Third Party Claims",
"Limitation of Liability between Supplier and Buyer", "Record Keeping and Audit
Rights", "Choice of Law and Forum; Waiver of Jury Trial; Limitation of Action",
"Exchange of Information", and "Prior Communications and Order of
Precedence".
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15.15.
Waiver
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An
effective waiver under this Agreement must be in writing signed by the party
waiving its right. A waiver by either party of any instance of the other party's
noncompliance with any obligation or responsibility under this Agreement will
not be deemed a waiver of subsequent instances.
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16.0
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On
Premises Guidelines
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Supplier
will ensure that Supplier Personnel assigned to work on Buyer’s premises will
comply with this Section
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16.1
Access to Premises
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Supplier
will:
1.
to the extent permitted by local law, ensure that Supplier Personnel assigned to
work on Buyer’s premises will participate in a pre employment criminal
background check covering the counties in which the person was employed or
resided for the past seven years (or longer as required by State legislation),
and inform Buyer of any negative findings;
2.
maintain a current and complete list of the persons' names and social security
numbers;
3.
obtain for each person a valid identification badge from Buyer and ensure that
it is displayed to gain access to and while on Buyer’s premises (it is Buyer's
policy to deactivate any such badge if not used in ninety days);
4.
maintain a signed acknowledgment that each person will comply with Buyer’s
Safety & Security Guidelines;
5.
ensure that each person with regular access to Buyer's premises complies with
all parking restrictions and with vehicle registration requirements if
any;
6.
inform Buyer if a former employee of Buyer will be assigned work under this
Agreement, such assignment subject to Buyer approval;
7.
at Buyer's request, remove a person from Buyer’s premises and not reassign such
person to work on Buyer's premises (Buyer is not required to provide a reason
for such request); and
8.
notify Buyer immediately upon completion or termination of any assignment and
return Buyer’s identification badge.
Upon
Buyer’s request, Supplier will provide documentation to verify compliance with
this Subsection.
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16.2
General Business Activity
Restrictions
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Supplier
will ensure that Supplier Personnel assigned to work on Buyer’s
premises:
1.
will not conduct any non-Buyer related business activities (such as interviews,
hirings, dismissals or
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personal
solicitations) on Buyer's premises;
2.
will not conduct Supplier's Personnel training on Buyer’s premises, except for
on-the-job training;
3.
will not attempt to participate in Buyer benefit plans or
activities;
4.
will not send or receive non-Buyer related mail through Buyer's mail systems;
and
5.
will not sell, advertise or market any products or distribute printed, written
or graphic materials on Buyer's premises without Buyer's written
permission.
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16.3
Buyer’s Safety and Security
Guidelines
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Supplier
will ensure that Supplier Personnel assigned to work on Buyer’s
premises:
1.
do not bring weapons of any kind onto Buyer's premises;
2.
do not manufacture, sell, distribute, possess, use or be under the influence of
controlled substances (for non-medical reasons) or alcoholic beverages while on
Buyer's premises;
3.
do not have in their possession hazardous materials of any kind on Buyer's
premises without Buyer's authorization;
4.
acknowledge that all persons, property, and vehicles entering or leaving Buyer's
premises are subject to search; and
5.
remain in authorized areas only (limited to the work locations, cafeterias, rest
rooms and, in the event of a medical emergency, Buyer's medical
facilities).
Supplier
will promptly notify Buyer of any accident or security incidents involving loss
of or misuse or damage to Buyer's intellectual or physical assets; physical
altercations; assaults; or harassment and provide Buyer with a copy of any
accident or incident report involving the above. Supplier must coordinate with
Buyer access to Buyer’s premises during non-regular working hours.
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16.4
Asset Control
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In the
event Supplier Personnel has access to information, information assets, supplies
or other property, including property owned by third parties but provided to
Supplier Personnel by Buyer ("Buyer Assets"), Supplier Personnel:
1.
will not remove Buyer Assets from Buyer's premises without Buyer's
authorization;
2.
will use Buyer Assets only for purposes of this Agreement and reimburse Buyer
for any unauthorized use;
3.
will only connect with, interact with or use programs, tools or routines that
Buyer agrees are needed to provide Services;
4.
will not share or disclose user identifiers, passwords, cipher keys or computer
dial port telephone numbers; and
5.
in the event the Buyer Assets are confidential, will not copy, disclose or leave
such assets unsecured or unattended.
Buyer may
periodically audit Supplier's data residing on Buyer Assets.
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16.5
Supervision of Supplier’s Personnel
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Suppliers
will provide consistent and effective supervision of its Personnel provided
under this Agreement, at no additional cost to Buyer. Consistent and effective
supervision shall include regular interaction and communication with Supplier's
Personnel either in person or through other effective means. Supplier's
supervisor shall be responsible for exercising full supervisory authority over
all day-to-day employment relationship decisions relating to Supplier’s
Personnel, including those decisions relating to: wages, hours, terms and
conditions of employment, hiring, discipline, performance evaluations,
termination, counseling and scheduling. Supplier's supervisors responsible for
each work location will be responsible to know that work location’s planned
holiday (and other closing) schedules and the impacts all such schedules have on
Supplier's Personnel. Supplier will conduct orientation sessions with its
Personnel before placement on an assignment with Buyer, during which orientation
such Personnel will be told who their supervisor is and how that supervisor can
be contacted. Supplier will, from time to time, ensure that all of its Personnel
working under this Agreement continue to be aware of this information. Supplier
shall also be responsible for training its Personnel that any employment related
issues should be brought forward in the first instance to Supplier and not
Buyer. Where such issues relate to actions which are alleged to have been taken
by Buyer or Buyer's Personnel, Supplier will notify Buyer immediately in order
that appropriate investigative
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action
can be taken. Notwithstanding any other language or agreement to the contrary,
Buyer will not, and Supplier agrees that Buyer has no responsibility to approve
any Supplier Personnel’s time sheets. If Buyer should review, sign and/or submit
Supplier Personnel’s timesheets, whether manually or electronically, as part of
Buyer's billing verification processes, the parties acknowledge and agree that
such review, signature and/or submittal shall in no way constitute concurrence
or approval of such timesheets, nor create any other commitment or obligation on
the part of Buyer to Supplier or Supplier Personnel.
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ACCEPTED
AND AGREED TO:
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ACCEPTED
AND AGREED TO:
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International Business Machines
Corporation
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By:
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By:
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Buyer
Signature
Date
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Supplier
Signature
Date
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***
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Printed
Name
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Printed
Name
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***
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Title
& Organization
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Title
& Organization
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Buyer
Address:
***
***
***
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Supplier
Address:
***
***
***
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