IBM Business Partner Agreement
Authorized Assembler Attachment
These terms are in addition to and prevail over the terms of the Solution
Provider Attachment and Distributor Attachment, as applicable, and the
Remarketer Terms Attachment.
By signing this Attachment you accept its terms.
We approve you as our Authorized Assembler 1) to assemble and test (according to
our specifications) Approved Products and 2) as our Distributor to market
Approved Products to IBM Remarketers specifically approved for the Products or,
3) as our Solution Provider to market Products to End Users. Unless we specify
otherwise, your Related Companies are not authorized to assemble and test
Approved Products.
As our Authorized Assembler you must have and maintain ISO 9000 Certification.
We will specify in the Authorized Assembler Exhibit, additional terms such as
those regarding Approved Products, such as inspection and packaging requirements
and our returns process. We will also list approved Components in the Authorized
Assembler Exhibit. We will notify you if we withdraw any ISUs or Components from
marketing. If we do so, you agree that upon the effective date of the withdrawal
you will no longer use such ISUs or Components in the assembly and testing of
Approved Products.
We will specify in a document we call an Authorized Assembler Operations Guide
(Operations Guide), processes and guidelines for the assembly and testing of
Approved Products, such as those regarding quality control or requirements, such
as the minimum number of trained personnel and pre-assembly certification which
must be met at each Authorized Location.
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Both of us agree that the complete agreement between us about this relationship
consists of this Attachment and the IBM Business Partner Agreement.
Agreed to: Agreed to:
PINACOR, INC. International Business
Machines Corporation
By /s/ Xxxxxx Xxxxxx By
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Authorized signature Authorized signature
Name (type or print) Xxxxxx Xxxxxx, Name (type or print)
V.P. Purchasing
Date: Date:
IBM Business Partner number: 1006951
IBM Business Partner address: IBM address:
0000 XXXXX XXXXXX, XX#00 0000 XXXXXXXXX XXXXXXX
XXXXX, XX 00000 XXXXXXX, XX 00000
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After signing, please return a copy of this Attachment to the IBM address shown
above.
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I. Definitions
Approved Products -means the IBM Products you configure, assemble, and
test from an ISU and Components, according to our specifications. The
terms of the Agreement regarding a Product also apply to an Approved
Product.
Components means the IBM Machine parts (such as hard files, memory, and
adapter cards), miscellaneous assembly parts (such as screws, brackets,
and cables), and product ship groups (such as publications and power
cords) we specify. The terms of the Agreement regarding a Machine also
apply to a Component.
Incomplete System Unit (called "ISU") means the partially assembled IBM
system unit we identify in the Exhibit, from which an Approved Product
is to be configured. The terms of the Agreement regarding a Machine also
apply to an ISU.
Program Tool means any program we provide for testing purposes (such as
diagnostics code or virus-protection programs), and any preload-enabling
code we provide.
2. Allocation and Ordering
Unless we specify otherwise in the Authorized Assembler Exhibit, you
agree to:
1. provide us, on a monthly basis, a report of your current on-hand
inventory and a forecast of your requirements for the next four
months (or otherwise upon our request), for ISU's and
Components; and
2. order only the ISUs, Components and/or upgrade features as we
describe in the Authorized Assembler Exhibit.
3. Assembly and Testing
We will:
1. provide initial training for your personnel, as we specify in
our assembly and testing processes included in the Operations
Guide; and
2. certify each of your Authorized Locations upon your establishing
their compliance with (a) our assembly, testing, and associated
processes, (including handling of any Program or return of
Components or ISUs), and (b) maintaining the minimum number of
trained personnel we specify.
You agree to:
1. assemble and test Approved Products using new or used ISUs and
Components provided by us under the terms of this Attachment. You
may not assemble Approved Products using ISUs or Components that
were used by you in any manner or were acquired from any other
source, including a trade-in. An Approved Product returned to you
must be treated as a used machine unless you can establish that
the Approved Product had not been installed;
2. ship-only Approved Products in the original IBM Incomplete
System unit packaging;
3. meet the certification requirements we specify in the Operations
Guide, including maintaining a minimum number of IBM-trained
assembly technicians at each Authorized Location, as we specify
in the Product Approval Section of this Attachment;
4. create an assembly record, as we specify in the Operations Guide,
for each Approved Product in the format we specify and provide it
to us promptly;
5. include, in unmodified form, all publications, license
agreements, certificates of authenticity, labels, and ship groups
with each Approved Product, as we describe in the Authorized
Assembler Exhibit;
6. make copies of the Authorized Assembler Exhibit, and allow your
personnel to use such copies, only as necessary for the
performance of your responsibilities under this Attachment;
7. assemble and test Approved Products only at Authorized Locations;
8. provide on-going assembly and testing training to your
personnel, as we specify;
9. acquire and maintain any tools and other equipment necessary to
perform our assembly and testing processes;
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10. unless we specify otherwise in the Authorized Assembler Exhibit,
use IBM ISUs and Components only as described in this Attachment.
You may not, for example, distribute or resell ISU's. However,
you may sell Components when they are part of an IBM specified
configuration for a field installed feature conversion that is
not deemed a 'Returned Parts Feature Conversion';
11. ensure that each Approved Product and its carton have labels that
indicate the Approved Product may contain used parts; and
12. conspicuously xxxx the outside of the shipping container and to
label the Approved Product, as we specify in the Authorized
Assembler Exhibit, to identify the Approved Product as having
been assembled according to our specifications by an IBM
Authorized Assembler.
You represent and warrant that an Approved Product will be free from
defects in your workmanship under normal use and operation, for the
duration of the applicable warranty.
4. Program Tools
Grant of License
A Program Tool is owned by International Business Machines Corporation
or one of its subsidiaries or an IBM Supplier, and is copyrighted and
licensed, not sold. We grant you a nonexclusive, nontransferable license
to use a Program Tool only in the assembly and testing of Approved
Products. You may make one copy of a Program Tool for backup purposes.
No other rights under this license are granted.
You may not, for example, do any of the following:
1. use or copy a Program Tool, except as provided in this Attachment-
2. modify or merge a Program Tool;
3. reverse assemble, reverse compile, or otherwise translate a Program
Tool;
4. sublicense or assign the license for a Program Tool; or
5. distribute a Program Tool to any third party.
No Warranty
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES
NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, WARRANTIES OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE
FUNCTION, PERFORMANCE OR DOCUMENTATION FOR A PROGRAM TOOL.
This exclusion also applies to any of our subcontractors, suppliers or
program developers (collectively called "Suppliers").
Responsibilities
For each Authorized Location, we will provide you (electronically, on
media or otherwise) with a single copy of each Program Tool we specify,
in the Authorized Assembler Exhibit.
You agree to:
1. for a Program Tool licensed under the terms of a third-party
agreement, execute that agreement and comply with its terms;
2. not remove any identification code that may be placed on a
Program Tool by us; and
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3. make payments, if any, due for any additional programs or other
code you add.
5. Quality, Reliability, and Safety
We will, prior to including a Machine type/model or specified feature
conversion configuration in the Authorized Assembler Exhibit as an
Approved Product, test the standard configurations of such Machine
type/model and specified feature conversion, as applicable, to ensure
that it meets the quality, reliability and safety specifications,
including FCC, UL and other specifications, set out in the Operations
Guide. If you make any alterations or attachments to the standard
configurations, you are responsible for ensuring compliance with these
specifications.
You agree:
1. upon our request, to immediately stop assembly of Approved
Products;
2. to comply with our recall process, if any, for Approved
Products;
3. not to modify or alter the subassemblies (such as power
supplies, processors, planars) or other mechanical subassemblies
of any Component or ISU;
4. to identify the additional IBM components, if any, added to an
Approved Product, in the electronic assembly record and identify
any non-IBM components;
5. not to use any ozone-depleting substances in your assembly and
testing processes;
6. to comply with all environmental laws and regulations regarding
the disposal of materials used in assembly and test processes;
7. to make any changes and improvements we identify as a result of
periodic audits of your processes and compliance with the terms
of the Agreement;
8. if an IBM service representative determines that failure of an
Approved Product is due to poor workmanship or noncompliance
with our specifications, to reimburse us for any expenses we
incur to correct the deficiency or noncompliance;
9. to track data on failure rates in the assembly process and to
provide this data to us, as we specify in the Authorized
Assembler Exhibit;
10. provide us with sufficient, free, and safe access to your
facilities, at a mutually-convenient time, for us (or an
independent auditor) to audit your compliance with our assembly
and testing processes. You also agree to provide sufficient,
free and safe access to your facilities to any agency or entity
that is necessary to obtain or maintain any required
certification or approval;
11. to allow us, at our discretion and at any time to remove an
in-process or completed Approved Product from your Authorized
Location so that we may perform our own testing;
12. to establish a Quality Management System, as we specify in the
Operations Guide; and
13. to establish an Electrostatic Discharge (ESD) protection
program, as we specify in the Operations Guide.
You represent and warrant that an Approved Product will fully
comply with all functional, quality, and reliability
specifications or standards set out in the Operations Guide
including all FCC, UL and those for consumer product safety.
6. Marketing of Approved Products
You agree:
1. to specify in all bids and proposals you provide;
a. that an Approved Product will be assembled by you according
to our specifications; and
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b. the appropriate warranty terms as described in the exhibit,
for the Approved Product and any additional components;
2. to specify in all invoices you provide, the serial number of the
ISU, all feature codes of the Components, and any additional
components, as applicable, included in the Approved Product,
including a clear and conspicuous reference to the manufacturer
of any additional components and that the Approved Products were
assembled by you according to our specifications;
3. to comply with all applicable laws and regulations in marketing
Approved Products that have "used" content;
4. that Approved Products you assemble:
a. will count towards your minimum attainment requirements;
b. will qualify for business development fund and other
marketing programs unless specifically excluded in such
marketing program announcements; and
c. are eligible Products under the terms of the North American
Marketing Attachment for Distributors and the North American
Marketing Attachment if indicated as eligible in the IBM
Business Partner Exhibit and installed as part of a RS/6000
System; and
5. not to place Approved Products under an IBM Business partner
Trial Program.
You may use Approved Products to fulfill your or your Remarketer's, as
applicable, internal use and demonstration Machine requirements. You
agree to advise us of all such transactions. We will adjust our discount
to you accordingly. However, since the original intent is your resale of
Approved Products, IBM does not charge you, and is not responsible for
charging you, a sales tax on the Approved Products which are
subsequently used for internal use or demonstration purposes by you, or
your Remarketer if applicable. It is your responsibility to self assess
any use tax that may apply for Approved Products taken out of inventory
for internal use or demonstration purposes.
7. Prices
For an ISU, we will invoice you a net price equal to our list price for
that model configuration, less 1) the price of the agreed-to removed
components (listed in the Authorized Assembler Exhibit) and 2) your
applicable discount. We will apply such discount to your purchase of
Components, as well as configured Machines.
In the event that the price of a Component corresponding to a standard,
specify or select feature of an Approved Product changes, and the
related price of the Approved Product does not change accordingly, we
reserve the right to adjust the price of an ISU so that the combined
price of the ISU and Component is equal to the price of the Approved
Product.
When this results in a price increase for the ISU, we will charge you an
amount equal to the difference between the new ISU and the previous ISU
price, less your Remarketer discount, for any affected ISUs in your
inventory. Otherwise, all the terms of the Agreement relating to a price
increase or decrease apply.
For Preloaded Programs, we will invoice you a net price equal to our
list price for such Programs less your applicable discount.
8. Returns
We accept returns of ISUs and Components and configured Machines
acquired under the terms of this Attachment:
1. under the inventory adjustment terms of the Agreement. They must
be returned in their original, unopened containers. No open-box
returns will be accepted; or
2. if they fail during the assembly and testing process. You agree
to return to us, subject to our authorization, the failed parts
along with failure documentation, as we specify. Upon our
receipt of the ISU. or Component and verification of the
failure, we will issue a credit to you. You may choose to (a)
purchase a replacement for the failed item, in which case the
credit issued will not apply toward your inventory adjustment
category limit, or (b)
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notify us of your intent to include the defective part as a returned
item under the inventory adjustment terms of the Agreement.
Once assembled and tested, an Approved Product may not be returned.
9. Ownership and License
We own all intellectual property rights (including ownership of
copyright) in and to the design, developed under our direction and at
our expense, of 1) the Approved Products and 2) the processes used or
developed to assemble and test Approved Products.
We grant you a revocable, nonexclusive, nontransferable, paid-up,
limited license to such designs to enable you to, solely in the
performance of your responsibilities under the Agreement:
1. assemble, use for testing purposes, the Approved Products; and
2. use, in connection with the assembly, testing, sale or
distribution of Approved Products, the Approved Product name and
its associated trademark.
10. Indemnification
In addition to the damages for which you are liable under law and the
terms of the Agreement, you will defend, indemnify and hold us harmless
from all fines, claims, and expenses of any kind (including reasonable
attorney's fees and expenses) arising from or connected with:
1. allegations that you have violated or otherwise failed to comply
with any applicable law, ordinance, rule or regulation in the
performance of your obligations under this Attachment;
2. any breach, default, or noncompliance by you related to your
representations, warranties or obligations under this Attachment;
3. alteration or modification by you of any Program Tool, whether we
approved of such alteration or modification or not;
4. modification by you of any assembly or test process, agency
compliance requirement, or other specifications contained in the
Authorized Assembler Exhibit or the Operations Guide, as
appropriate; and
5. unauthorized use or distribution of Program Tools by you.
11. Term and Termination
This Attachment becomes effective on the date it is agreed to by us and
will remain in effect for the contract period duration specified in your
Profile, unless terminated earlier by either of us under the terms of
this Section.
This Attachment will end if your Distributor or Solution Provider
relationship, as applicable, ends.
Either of us may terminate this Attachment, with or without cause, on
three months' written notice. The following are examples of a breach of
a material term for which we may terminate this Attachment immediately:
if you do not 1) comply with our assembly and testing specifications, or
2) maintain the required number of trained personnel.
In the event that notice of termination is given, we may 1) reject any
or all orders received from you after such notice and prior to the
effective date of termination or 2) limit shipments during this period.
In addition, as of the date the notice of termination is given, we may
discontinue extension of any pricing terms previously made available to
you.
When this Attachment ends, you agree to sell to us, at the price you
paid us, all new and unused ISUs and Components in your inventory
including associated documentation, in your possession or control.
12. Product Approval
Products Yes/No Minimum number
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of IBM Trained
assembly technicians by
Authorized Locations
RS/6000 Yes 2
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STORAGE SYSTEMS No 1
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13. Authorized Locations
0000 Xxxxx Xxxxxx Xxxxx
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Xxxxx, XX 00000
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