Exhibit 10.8
Agreement between the Company and IBM for participation
in the Enterprise Growth Opportunity program
AGREEMENT OF PARTICIPATION
The purpose of this Agreement of Participation (this "Agreement") between
Sideware Corp. ("you") is to described the terms and conditions pursuant to
which text regarding certain of your Products may be included in the
announcements that IBM makes with respect to the IBM Enterprise Growth
Offering, as modified from time to time ("EGO").
This Agreement consists of this Agreement of Participation and the following
Attachments and Exhibits:
- Attachment - Certificate of Originality
- Attachment A - Product List
The following are related agreements between the parties. Related agreements
require the signatures of the parties.
- Agreement for Exchange of Confidential Information No.________________
DEFINITIONS
Capitalized terms in this Agreement have the following meanings:
PRODUCTS are your computer programs that are listed on Attachment A to this
Agreement.
SUBSIDIARY is an entity that is owned or controlled directly or indirectly
(by more than 50% of its voting stock, or if not voting stock decision-making
power) by you or IBM.
LICENSE GRANTS
To enable IBM to effectively promote your Products to customers through the EGO,
you grant IBM the non-exclusive right and license to use, copy, translate,
reproduce, display, perform and distribute, in any medium or distribution
technology whatsoever, whether known or unknown, the trademarks and trade names
associated with your Products to customers.
IBM may perform any of its rights, licenses and obligations under this Agreement
through Subsidiaries, subcontractors, and other companies affiliated with IBM,
such as IBM Business Partners. The use of such entities by IBM does not relieve
it of its obligations under this Agreement.
You warrant the accuracy of all statements in the attached completed
Certificate of Originality. You agree to complete a new Certificate of
Originality before adding any New Products to this Agreement.
YOUR RESPONSIBILITIES
LICENSE AGREEMENT: You will license the Products to customers under the terms
of your end user license agreement (your "License"). IBM is not a party to
your License and does not assume any obligation for violations of it.
DELIVERY: You agree to deliver the Products specified by IBM or an IBM
Business Partner in an order, and will use your best efforts to meet the
requested delivery dates and quantities. You will include a copy of your
License with each Product before you ship it to the customer. It must be
packaged so the customer can review it before use of the Product. You will
notify IBM or the IBM Business Partner within 5 working days of your receipt
of IBM's order if you cannot meet the request, and will include a proposed
delivery schedule that you agree to meet. IBM or the IBM Business Partner can
accept your proposed delivery schedule or cancel the order without liability.
You agree to pay all transportation charges required for the shipment of the
Products to the location IBM or the IBM Business Partner specifies.
NEW PRODUCTS: You represent that the Products that will be included in the
EGO under this agreement are always the most current release or version that
is available to your customer. Your will give IBM at least six months notice
prior to withdrawing any Product (including any version) from marketing or
support.
CUSTOMER DISCOUNT AND BUSINESS PARTNER FEES: The customer discounts that you
will grant to customers with respect to the Products and the fees that you
will pay to IBM Business Partners with respect to the sale of your Products
are listed in Attachment A. You will notify IBM immediately in writing upon
the change of any such discount or fees.
IBM EGO ANNOUNCEMENT
IBM will include your company's name and a description of your participation
as it relates to the EGO in its EGO announcement through whatever
announcement process IBM has in place at the time of the announcement. IBM is
not obligated to publish the names of your individual Products, your
discounts or fees in the EGO announcement.
WARRANTY
You represent and warrant on an ongoing basis that:
(a) you have sufficient rights to the Products (including associated
marks and names) to grant IBM the rights specified in this
Agreement, and to grant customers the rights specified in your End
User License Agreement;
(b) the Products conform to their published specifications and any
written representations made by you to IBM, its Business Partners
or customers;
(c) the Products do not infringe any patent, copyright, trademark or
trade secret or any other intellectual property rights of any
third party, and do not contain any virus or other harmful code;
(d) at the time of signing this Agreement, you are not aware of any
claims against you regarding Products;
(e) you comply with any and all export laws and/or regulations,
including but not limited to, export laws and/or regulations
regarding (i) the classification of the Products; and (ii)
distribution of encrypted code contained in the Products;
(f) the Products, when used in accordance with their associated
documentation, are capable of correctly processing, providing
and/or receiving date data within and between the twentieth and
twenty-first centuries, provided that all products (for example,
hardware, software and firmware) used with the Products properly
exchange accurate date with the Products; and
(g) where applicable, the Products are euro-ready such that they will
correctly process, send, receive, present, store, and convert
monetary data in the euro denomination, respecting the euro
currency formatting conventions (including the euro symbol).
INDEMNIFICATION
You will defend and indemnify IBM, its customers and its and their end users
and IBM Business Partners, their customers and their end users if a third
party makes a claim against them, whether actual or alleged, based on your
breach of any of the warranties contained in the Section of this Agreement
entitled "Warranty". If an infringement claim of any type appears likely or
is made against IBM or customers, about a Product, you will obtain the
necessary rights for IBM, and customers to continue exercising all rights
granted under this Agreement, or you will modify the Product or its name so
that it is non-infringing, or replace it with a Product that is functionally
equivalent. In addition to any remedies specified in this Agreement, IBM may
pursue any other remedy it may have in law or in equity. You will pay any
settlement amounts you authorize and all costs, damages and attorney's fees
that a court finally awards if IBM promptly provides you notice of the claim,
and allows you to control and cooperates with you in the defense of the claim
and settlement negotiations. IBM may participate in the proceedings at its
option and expense.
LIMITATION OF LIABILITY
Except for claims arising under the Section entitled "Indemnification",
neither party shall be liable to the other for any economic consequential
damages (including lost profits or savings) or incidental damages, even if
advised that they may occur. IBM's liability under this contract is limited
to $100,000.
TERM AND TERMINATION
This Agreement shall be effective when signed by both parties and shall
remain in effect unless terminated as set forth below.
IBM may terminate this Agreement for convenience on 10 business days prior
written notice to you. You may terminate this Agreement for convenience with
90 days prior written notice to IBM. The effective date of termination will
be specified in such prior written notice.
Any items of this Agreement which by their nature extend beyond the day this
Agreement ends remain in effect until fulfilled, and apply to respective
successors and assignees.
INFORMATION
All information exchanged under this Agreement is non-confidential. If either
party wishes to disclose confidential information, such information shall be
disclosed under an Agreement for the Exchange of Confidential Information.
Neither party shall disclose the terms of this Agreement to any third party
without the other party's prior written consent, except to the extent
necessary to establish each party's rights hereunder, or, as required by
applicable law or regulations. You agree not to issue press releases or other
publicity regarding this Agreement or the relationship under it without IBM's
prior written approval.
GENERAL
Neither party guarantees the success of any marketing effort it engages in
for the Products. Either party may independently develop, acquire, and market
materials, equipment, or programs that may be competitive with (despite any
similarity to) the other party's products or services. Each party is
responsible for its own costs, including all business, travel and living
expenses incurred by the performance of this Agreement.
Either party may enter into a similar agreement with any other party,
including, but not limited to, competitors of the other party.
Neither party has relied on any promises, inducements or representations by
the other, except those expressly state in this Agreement. This Agreement is
not to be construed as a commitment or obligation, express or implied, on the
part of IBM that IBM will market, sell, purchase, or license any Products
under this Agreement.
You may not assign this Agreement without IBM's written consent. Any other
assignment shall be void.
Neither party will bring a legal action against the other more than two years
after the cause of action arose. Each party waives a jury trial in any
dispute. Failure by either part to demand strict performance or to exercise a
right does not prevent either party from doing so later.
The laws of New York govern this Agreement.
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter hereof. Both parties accept the terms
of this Agreement and identified Attachments and Exhibits by signing below.
Once signed, any reproduction of this Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original, unless
prohibited by local law. This Agreement may only be modified by a writing
signed by both parties.
AGREED TO: AGREED TO:
International Business Machines Corporation
By: Xxx Xxxxxx By: "Xxxxxxx Polanza"
------------------------------ ---------------------------------
Print Name Print Name
Xxx Xxxxxx Xxxxxxx Polanza
------------------------------ ---------------------------------
Print Title Print Title
President EGO Program Manager
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Date September 27, 1999 Date
Address: 000 Xxxxx Xxxxxx IBM Office address:
Xxxxx 000 000 Xxxxx Xxxxxx
Xxxxxxx, XX Xxxxxxx, XX 00000
00000 Xxxxxx Xxxxxx
XXX
AFTER SIGNING, PLEASE RETURN A COPY OF THIS AGREEMENT TO THE LOCAL "IBM
OFFICE ADDRESS" SHOWN ABOVE.
Please list the Products, Discounts, and Fees that will be included in the EGO
under this Agreement
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PRODUCT NAME DISCOUNT TO END USER FEE TO THE BUSINESS PARTNER
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Xx. Xxxx Software 40% 15%
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