IBM Business Partner Agreement
Co-Location Attachment
The terms of this Attachment are in addition to those of the IBM Business
Partner Agreement. They apply to you if we approve you to participate in the
Co-Location Marketing Program.
Under the Co-Location Marketing Program, you agree to "co-locate" a portion of
your IBM personal computer receiving/shipping operations to an IBM facility
located in or near Research Triangle Park, North Carolina.
The following documents set forth additional terms regarding your participation
in the Co-Location Marketing Program, and are incorporated herein by reference:
o IBM High Turns Incentive Program - Operational Letter
o Co-Location Program Exhibit for Residency on IBM Premises
o Co-Location Program IBM Warehouse Operating Rules
1) IBM will provide you with access to a dedicated staging area (Co-location
facility) at our site at which you will accept delivery of Products from us and
prepare them for shipment by you. In addition, you are authorized to use the
Co-location facility to perform asset tagging, custom image loading and light
configuration (addition of IBM options and/or 3rd party components to complete
IBM systems). You may not use the Co-location facility for any other purpose.
You will have the right of access to the IBM site through the main entrance to
it, and use of common facilities within the site, subject to IBM's rules of
access and the site's security requirements, including those set forth in the
attached Exhibit for Residency on IBM Premises and IBM Warehouse Operating
Rules.
2) Orders for IBM personal computer products ("Products") under your IBM
Business Partner Agreement may be designated for shipment to your Co-location
facility. Such orders must be placed using the unique customer number assigned
by IBM which designates the "ship to" address of the Co-location facility.
3) We will provide you with access to one or more dedicated loading docks,
located within, adjacent to, or in close proximity to your Co-location facility.
You are responsible for movement of Products to and from your assigned loading
dock(s).
4) You will be solely responsible for the shipment of all Products from your
Co-location facility and for your agreement with your selected carriers. We will
coordinate your access to our loading docks.
5) You will be responsible for staffing the Co-location facility with your own
employees or contract employees consistent with your needs. We will provide you
with the name of local contract work organizations if requested. You are solely
responsible for the supervision and conduct of your employees and contractors
while they are in and adjacent to your Co-location facility. You agree not to
solicit IBM employees working at the IBM site for employment within your
organization. Each party agrees not to solicit the others employees working at
the IBM site for employment within its organization."*
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6) IBM will, at its expense, provide major infrastructure improvements, as
determined by IBM, such as roadways, parking lots, addition of dock doors,
exterior lighting, air conditioning, general warehouse lighting/sprinklers,
etc., to prepare our warehouses for Co-location. You will be required to pay for
all fit up costs unique to your Co-location facility which you approve,
including those incurred by IBM, such as electrical power distribution,
compressed air, vacuum, exhaust systems, task/workbench lighting,
data/communication lines & cabling, telecommunications equipment (PC's, servers,
hubs, routers, bridges, fax, etc.), test equipment, conveyor systems, work
benches, pallet racks, pallet rack sprinklers, material handling equipment,
packaging equipment, ESD protection, fixtures, totes, hand tools, emergency
power for customer equipment, etc. *** All fitups you pay for shall be your
property and you have the right to remove them. *** IBM will invoice you for
these fit-up costs which are provided by IBM. Payment will be due as specified
in our invoice and is in addition to any charges otherwise due us under your IBM
Business Partner Agreement or any other agreement between us. You also agree to
pay amounts equal to any applicable taxes resulting from your participation in
the program (but not taxes based on our net income. *** IBM will be responsible
for all real estate taxes, except for taxes assessed on fitups you own. *** No
alterations or improvements may be made by you without IBM's prior written
permission.
7) You may place your trade or other fixtures, tools, furniture, equipment and
other personal property in me Co-location facility. It is our preference that
I/T and telecommunications equipment in the Co-location facility be IBM logo
hardware. If this is not practical due to I/T standardization or other reasons
please let your IBM account team know. IBM is not responsible for loss of or
damage to your improvements or personal property in the Co-location facility.
8) You are responsible to pay IBM for the space used by your Co-location
facility at the rate set forth in the IBM High Turns Incentive Program -
Operational Letter. Services in this charge include rent, utilities, building
maintenance, general cleaning services, trash removal, paper/corrugated
recycling, building security personnel and monitoring, heating, air conditioning
(if applicable to your space), and fire protection systems (building sprinkler
and fire alarm systems).
9) IBM will provide you a, freight credit based on the actual weight of product
shipped into your Co-location facility at the rate set forth in the IBM High
Turns Incentive Program Operational Letter.
10) On a quarterly basis, IBM will process a financial transaction(s) (invoice
and/or payment) to you for the space charges and freight credit. We may combine
the space charges and the freight credit into a single transaction.
11) Either of us may end your participation in the Co-location program at any
time with 30 days' written notice to the other. However, if IBM terminates your
participation in co-location program or ***you elect to end participation in the
Co-location program other than as a result of a material breach by IBM, you will
be responsible for all space charges referenced above for the remainder of the
current calendar year after your Co-location operations cease. Upon termination,
you agree to promptly remove all of your Property from the Co-location facility.
12) IBM makes no representation or warranty, written or oral, of any kind as to
the condition of our premises, including your staging area and our loading dock,
or its fitness for any purpose. You agree to make a physical investigation of
our premises, including your staging area and our loading dock, prior to
beginning operations in the Co-location facility and agree the space meets your
requirements and the condition and suitability for your use unless specifically
stated in writing to IBM. In addition to our respective obligations under your
IBM Business Partner Agreement, each party will indemnify the other for damages
for bodily injury (including death) and damage to real property and tangible
personal property for which the indemnifying party is legally liable.
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13) Except as provided in the IBM High Turns Incentive Program - Operational
Letter, normal IBM Business Partner programs (e.g. price protection, product
returns, flooring, etc.) will apply to Products ordered through the Co-location
program.
14) Space availability and specific location will be determined by IBM after you
sign this Attachment and have provided detailed customer fit-up requirements to
IBM. IBM will not begin design or fit-up of your Co-location facility until this
Attachment is signed and returned to IBM.
Agreed to: (Business Partner Name) Agreed to:
Pinacor Inc. International Business Machines
Corporation
By: /s/ Xxxxx X. Xxxxxx By:
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Authorized Signature Authorized Signature
Name: Xxxxx X. Xxxxxx Name:
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Type or Print Type or Print
Title: President & COO Title:
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Date: January 12, 1999 Date:
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