EXHIBIT 10.10
IBM Business Partner Agreement [logo]
Reseller Profile
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We welcome you as an IBM Business Partner-Reseller.
This Profile covers the details of your approval to actively market Products and
Services as our Reseller.
By signing below, each of us agrees to the terms of the following (collectively
called the "Agreement"):
(a) this Profile;
(b) General Terms (Z125-5478-05 02/2000);
(c) the applicable Attachments referred to in this Profile; and
(d) the Exhibit.
This Agreement and its applicable transaction documents are the complete
agreement regarding this relationship, and replace any prior oral or written
communications between us. Once this Profile is signed, 1) any reproduction of
this Agreement or a transaction document made by reliable means (for example,
photocopy or facsimile) is considered an original, to the extent permissible
under applicable law, and 2) all Products and Services you market and Services
you perform under this Agreement are subject to it. If you have not already
signed an Agreement for Exchange of Confidential Information (AECI), your
signature on this Profile includes your acceptance of the AECI.
After signing this Profile, please return a copy to the IBM address shown below.
Revised Profile (yes/no): No Date received by IBM: JUN 01, 2000
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Agreed to: Agreed to:
Emtec, Inc. International Business Machines Corporation
By: By:
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Authorized signature Authorized signature
Xxxx Xxxxxxx For
Name (type or print): Name (type or print): Xxxxx Xxxxxxx(?)
Date: 5/31/2000 Date: 6/1/00
IBM Business Partner address: IBM address:
000 Xxxx Xxxx Xxxxx 0000 Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000 Xxxx. 000 0. Dept. BBHB
Research Xxxxxxxx Xxxx, XX 00000
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DETAILS OF OUR RELATIONSHIP
Contract Start Date (month/year): 06/01/00 Duration: 24
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Relationship Approval/Acceptance of Additional Terms:
Each of us agrees to the terms of the following by signing this Profile. Copies
of the Attachments are included.
Applicable
Approved Relationship (yes/no) Attachment
Reseller Attachment yes Z125-5482-02 01/2000
Remarketer Terms Attachment yes Z125-5497-03 02/2000
Warranty Service Attachment yes Z125-5499-02 12/98
Additional Terms:
Reseller Attachment yes Z125-5482-02 01/2000
Attachment for Services Marketing for Remarketers yes Z125-5750-00 11/97
Attachment for IBM as Subcontractor for Services no Z125-5718-00 12/97
Attachment for Finance Services from IBM Credit Corp. no Z125-5795-02 05/99
Attachment for ServiceSuite - Remarketer no Z125-5767-02 02/2000
North American Marketing Attachment no Z125-5891-02 01/2000
Federal Remarketer Attachment no Z125-5514-01 02/99
Federal Certification Attachment no Z125-5515-02 04/99
You are approved to market to End Users Only
Product and Services Approval:
The following Products and Services are listed in the Exhibit. The terms of an
Exhibit apply to the Products and Services listed in it.
When we approve you for Products listed in the Exhibit, you are also approved to
market their associated Programs and peripherals.
For Products and Services we approve you to market, we will specify if you are
approved to acquire such Products and Services from us or from the Distributor
we specify in this Profile (personal computer Products may be acquired from any
IBM Remarketer).
For Products and Services we specify you acquire from us, we may specify in your
Exhibit that you acquire the Products or Services from a supplier instead of
from us. When you acquire the Products or Services from a Distributor or
supplier, the terms of the Agreement relating to your acquisition of Products
and Services directly from us (for example, terms relating to the return of
Products and Services, and terms relating to the ordering of Products and
Services ) are not applicable. All other terms apply.
Approved to Market under Remarketer Terms
Acquire Acquire
From From Name
IBM Distributor of
(yes/no) (yes/no) Distributor
Personal Computer Products(1)(2)
1) IBM PC Desktop yes yes
2) IBM PC Server yes yes
3) IBM Mobile yes yes
4) PC Features and Options yes yes
Additional Products
1) IBM Storage Products(3)(2)
a) Category S1 Products no no
2) IBM Network Integration Products no
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1 These Products have a unique revenue requirement to enable direct
acquisition from IBM.
2 Your approval to market IBM Storage Products includes your approval to
market those Products under the terms of both the Remarketer Terms
Attachment and the Complementary Marketing Terms Attachment (Z125-5498)
when you are a Reseller acquiring Products directly from IBM.
3 These Products are eligible for remarketing under the terms of the North
American Marketing Attachment.
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Approved to Market under Remarketer Terms
Acquire Acquire
From From Name
IBM Distributor of
(yes/no) (yes/no) Distributor
IBM Global Services(4)
1) Product Support Services
a) Hardware Product Services no
b) Software Services no
c) System Management Services no
d) Site & Connectivity Services no
e) Business & Technology Solutions no
f) Business Recovery Services no
g) Other Services(5) no
2) IBM Professional Services
a) IBM Consulting Services no
Certified Products you are approved to market:
044 AIX PRODUCTS 047 PSG: DOS OFFICE VISION 2
067 PSG: NETWARE BASIC 068 PSG: NETWARE GOLD
Exclusions, if applicable.
Although included by reference in Product and Services approval, you are not
approved for these individual Products or Services:
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Minimum Attainment:
Product/Service Volume/Revenue Measurement Period Dates
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4 You may market this Service to an End User without the requirement to have
marketed a Machine or Program to the End User.
5 The terms for remarking Services (other than shrink-wrap Services), are
contained in other documents which we provide to you.
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Locations:
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Loc. ID Location (street address, city, state, ZIP code)
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A2006 00 Xxxxxxx Xxxxx
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Xxxxxxxx, XX 00000
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Loc. ID Location (xxxxxx xxxxxxx, xxxx, xxxxx, ZIP code)
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A2684 0000 Xxxxxxx Xx Xxx. 000
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Xxxxxxxx, XX 00000-0000
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Loc. ID Location (street address, city, state, ZIP code)
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CL458 000 Xxxx Xxxx Xxxxx
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Xxxxx Xxxxxx, XX 00000
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Loc. ID Location (xxxxxx xxxxxxx, xxxx, xxxxx, ZIP code)
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27569 00 Xxxxxxxxxx Xx.
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Xxxxxxx, XX 00000
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Your Commitment, if applicable:
This section identifies your Revenue Commitment and the Applicable Additional
Discount Percentage. At your request we will review your revenue attainment
against your Revenue Commitment at any time to determine if you qualify for a
higher Applicable Additional Discount Percentage.
After each annual measurement period, IBM will review your revenue attainment.
If your revenue attainment is less than the Revenue Commitment, your Applicable
Additional Discount Percentage will be adjusted downward to the appropriate
level. Additionally, if your revenue attainment is greater than your Revenue
Commitment, your Applicable Additional Discount Percentage will be adjusted
upward as appropriate.
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IBM Network Revenue Applicable Additional Discount
Integration Commitment Percentage (1)
Products (Annual)
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Cat. S1 & S6 Cat. S2
IBM Storage
Products
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(1) Products eligible for the Applicable Additional Discount Percentage are
identified in the Business Partner Exhibit.
Assignment of Warranty Service Responsibility, if applicable:
You assign to us, or an IBM Premier Personal Computer Servicer, Warranty Service
responsibility for the following Machines.
Type/Model Type/Model Type/Model Type/Model
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IBM Business Partner Agreement [logo]
General Terms
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Table of Contents
Section Title Page
1. Definitions..............................................................6
2. Agreement Structure and Contract Duration................................6
3. Our Relationship.........................................................8
4. Status Change............................................................9
5. Confidential Information................................................10
6. Marketing Funds and Promotional Offerings...............................10
7. Production Status.......................................................10
8. Patents and Copyrights..................................................10
9. Liability...............................................................11
10. Trademarks..............................................................12
11. Changes to the Agreement Terms..........................................12
12. Internal Use Products...................................................12
13. Demonstration, Development and Evaluation Products......................13
14. Electronic Communications...............................................13
15. Geographic Scope........................................................13
16. Governing Law...........................................................13
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IBM Business Partner Agreement [logo]
General Terms
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1. Definitions
Business Partner is a business entity which is approved by us to market
Products and Services under this Agreement.
Customer is either an End User or at Remarketer. We specify in your
Profile if we approve you to market to End Users or Remarketers, or
both.
End User is anyone, who is not part of the Enterprise of which you are
a part, who uses Services or acquires Products for its own use and not
for resale.
Enterprise is any legal entity (such as a corporation) and the
subsidiaries it owns by more than 50 percent. An Enterprise also
includes other entities as IBM and the Enterprise agree in writing.
Licensed Internal Code is called "Code". Certain Machines we specify
(called "Specific Machines") use Code. International Business Machines
Corporation or one of its subsidiaries owns copyrights in Code or has
the right to license Code. IBM or a third party owns all copies of
Code, including all copies made from them.
Machine is a machine, its features, conversions, upgrades, elements,
accessories, or any combination of them. The term "Machine" includes an
IBM Machine and any non-IBM Machine (including other equipment) that we
approve you to market.
Product is a Machine or Program, that we approve you to market, as we
specify in your Profile.
Program is an IBM Program or a non-IBM Program provided by us, under
its applicable license terms, that we approve you to market.
Related Company is any corporation, company or other business entity:
1. more than 50 percent of whose voting shares are owned or controlled,
directly or indirectly, by either of us, or
2. which owns or controls, directly or indirectly, more than 50 percent
of the voting shares of either of us, or
3. more than 50 percent of whose voting shares are under common
ownership or control, directly or indirectly, with the voting shares
of either of us.
However, any such corporation, company or other business entity is
considered to be a Related Company only so long as such ownership or
control exists. `Voting shares" are outstanding shares or securities
representing the right to vote for the election of directors or other
managing authority.
Remarketer is a business, entity which acquires Products and Services,
as applicable, for the purpose of marketing.
Service is performance of a task, provision of advice and counsel,
assistance, or access to a resource (such as a network and associated
enhanced communication and support) that we approve you to market.
2. Agreement Structure and Contract Duration
Profiles
We specify the details of our relationship (for example, the type of
Business Partner you are) in a document called a "Profile." Each of us
agrees to the terms of the Profile, the General Terms, the applicable
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Attachments referred to in the Profile, and the Exhibit (collectively
called the "Agreement") by signing the Profile.
General Terms
The General Terms apply to all of our Business Partners.
Attachments
We describe, in a document entitled an "Attachment", additional terms
that apply. Attachments may include, for example, terms that apply to
the method of Product distribution (Remarketer Terms Attachment or
Complementary Marketing Terms Attachment) and terms that apply to the
type of Business Partner you are, for example, the terms that apply to
a Distributor relationship as described in the Distributor Attachment.
We specify in your Profile the Attachments that apply.
Exhibits
We describe in an Exhibit, specific information about Products and
Services, for example, the list of Products and Services you may
market, and warranty information about the Products.
Transaction Documents
We will provide to you the appropriate "transaction documents." The
following are examples of transaction documents, with examples of the
information and responsibilities they may contain:
1. invoices (item, quantity, payment terms and amount due); and
2. order acknowledgements (confirmation of Products and quantities
ordered).
Conflicting Terms
If there is a conflict among the terms in the various documents, the
terms of,
1. a transaction document prevail over those of all the documents;
2. an Exhibit prevail over the terms of the Profile, Attachments and
the General Terms;
3. a Profile prevail over the terms of an Attachment and the General
Terms; and
4. an Attachment prevail, over the terms of the General Terms.
If there is an order of precedence within a type of document, such
order will be stated in the document (for example, the terms of the
Distributor Attachment prevail over the terms of the Remarketer Terms
Attachment, and will be so stated in the Distributor Attachment).
Our Acceptance of Your Order
Products and Services become subject to this Agreement when we accept
your order by:
1. sending you a transaction document; or
2. providing the Products or Services.
Acceptance of the Terms in a Transaction Document
You accept the terms in a transaction document by doing any of the
following:
1. signing it (those requiring a signature must be signed);
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2. accepting the Product or Services;
3. providing the Product or Services to your Customer; or
4. making any payment for the Product or Services.
Contract Duration
We specify the contract start date and the duration in your Profile.
Unless we specify otherwise in writing, the Agreement will be renewed
automatically for subsequent two year periods. However, you may advise
us in writing not to renew the Agreement. Each of us is responsible to
provide the other three months written notice if this Agreement will
not be renewed.
3. Our Relationship
Responsibilities
Each of us agrees that:
1. you are an independent contractor, and this Agreement is
non-exclusive. Neither of us is a legal representative or 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 this Agreement create a joint venture between us;
2. each of us is responsible for our own expenses regarding
fulfillment of our responsibilities and obligations under the terms
of this Agreement;
3. neither of us will disclose the terms of this Agreement, unless
both of us agree in writing to do so, or unless required by law;
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 this Agreement, which by their nature extend beyond
the date this Agreement ends, remain in effect until fulfilled and
apply to respective successors and assignees;
6. we may withdraw a Product or Service from marketing at any time;
7. we will allow the other a reasonable opportunity to comply before
it claims the other has not met its obligations, unless we, specify
otherwise in the Agreement;
8. 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 local law without the possibility of contractual
waiver;
9. 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;
10. neither of us is responsible for failure to fulfill obligations due
to causes beyond the reasonable control of either of us;
11. IBM reserves the right to assign, in whole or in part, this
Agreement, to a Related Company, but may assign its rights to
payment or orders to any third party;
12. IBM does not guarantee the results of any of its marketing plans;
and
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13. each of us will comply with all applicable laws and regulations
(such as those governing consumer transactions).
Other Responsibilities
You agree:
1. to be responsible for customer, satisfaction for all your
activities, and to participate in customer satisfaction programs as
we determine;
2. that your rights under this Agreement are not property rights and,
therefore, you can not transfer them to anyone else or encumber
them in any way. For example, you can not sell your approval to
market our Products or Services or your rights to use our
Trademarks;
3. to maintain the criteria we specified when we approved you;
4. to achieve and maintain the certification requirements for the
Products and Services you are approved to market, as we specify in
your Profile;
5. not to assign or otherwise transfer this Agreement, your rights
under this Agreement, or any of its approvals, or delegate any
duties, unless expressly permitted to do so in this Agreement.
Otherwise, party attempt to do so is void;
6. to conduct business activities with us (including placing orders)
which we specify in the operations guide, using our automated
electronic system if available. You agree to pay all your expenses
associated with it such as your equipment and communication costs;
7. that when we provide you with access to our information systems, it
is only in support of your marketing activities. Programs we
provide to you for your use with our information systems, which are
in support of your marketing activities, are subject to the terms
of their applicable license agreements, except you may not transfer
them;
8. to promptly provide us with documents we may require from you or
the End User (for example, our license agreement signed by the End
User) when applicable; and
9. 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 this 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.
Our Review of Your Compliance with this Agreement
We may periodically review your compliance with this Agreement. You
agree to provide us with relevant records on request. We may reproduce
and retain copies of these records. We, or an independent auditor, may
conduct a review of your compliance with this Agreement on your
premises during your normal business hours.
If, during our review of your compliance with this Agreement, we find
you have materially breached the terms of this relationship, in
addition to our rights under law and the terms of this Agreement, for
transactions that are the subject of the breach, you agree to refund
the amount equal to the discount (or fee, if applicable) we gave you
for the Products or Services or we may offset any amounts due to you
from us.
4. Status Change
You agree to give us prompt written notice (unless precluded by law or
regulation) of any change or anticipated change in your financial
condition, business structure, or operating environment (for example, a
material change in equity ownership or management or any substantive
change to information supplied in
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your application). Upon notification of such change, (or in the event
of failure to give notice of such change) IBM may, at its sole
discretion, immediately terminate this Agreement.
5. Confidential Information
This section comprises a Supplement to the IBM Agreement for Exchange
of Confidential Information. `Confidential Information' means:'
1. all information IBM marks or otherwise states to be confidential;
2. any of the following prepared or provided by, IBM:
a. sales leads,
b. information regarding prospects or Customers
c. unannounced information about Products and Services,
d. business plans, or
e. market intelligence;
3. any of the following written information you provide to us on our
request and which you xxxx as confidential:
a. reporting data,
b. financial data, or
c. the business plan.
All other information exchanged between us is nonconfidential, unless
disclosed under a separate Supplement to the IBM Agreement for Exchange
of Confidential Information.
6. Marketing Funds and Promotional Offerings
We may provide marketing funds and promotional offerings to you. If we
do, you agree to use them according to our guidelines and to maintain
records of your activities regarding the use of such funds and
offerings for three years. We may withdraw or recover marketing funds
and promotional offerings from you if you breach any terms of the
Agreement. Upon notification of termination of the Agreement, marketing
funds and promotional offerings will no longer be available for use by
you, unless we specify otherwise in writing.
7. Production Status
Each IBM Machine is manufactured from new parts, or new and used parts.
In some cases, the IBM Machine may not be new and may have been
previously installed. Regardless of the IBM Machine's production
status, our appropriate warranty terms apply. You agree to inform your
Customer of these terms in writing (for example, in your proposal or
brochure).
8. Patents and Copyrights
For the purpose of this section only, the term Product includes
Licensed Internal Code (if applicable).
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If a third party claims that a Product we provide under this Agreement
infringes that party's patents or copyrights, we will defend you
against that claim at our expense and pay all costs, damages, and
attorneys' fees that a court finally awards, provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If you maintain an inventory, and such a claim is made or appears
likely to be made about a Product in your inventory, you agree to
permit us either to enable you to continue to market and use the
Product, or to modify or replace it. If we determine that none of these
alternatives is reasonably available, you agree to return the Product
to us on our written request. We will then give you a credit, as we
determine, which will be either 1) the price you paid us for the
Product (less any price-reduction credit), or 2) the depreciated price.
This is our entire obligation to you regarding any claim of
infringement.
Claims for Which We Are Not Responsible
We have no obligation regarding any claim based on any of the
following:
1. anything you provide which is incorporated into a Product;
2. your modification of a Product, or a Program's use in other than
its specified operating environment;
3. the combination, operation, or use of a Product with any Products
not provided by us as a system, or the combination, operation, or
use of a Product with any product, data, or apparatus that we did
not provide; or
4. infringement by a non-IBM Product alone, as opposed to its
combination with Products we provide to you as a system.
9. Liability
Circumstances may arise where, because of a default or other liability,
one of us is entitled to recover damages from the other. In each such
instance, regardless of the basis on which damages can be claimed, the
following terms apply as your exclusive remedy and our exclusive
liability.
Our Liability
We are responsible only for:
1. payments referred to in the "Patents and Copyrights' section above;
2. bodily injury (including death), and damage to real property and
tangible personal property caused by our Products; and
3. the amount of any other actual loss or damage, up to the greater of
$100,000 or the charges (if recurring, 12 months' charges apply)
for the Product or Service that is the subject of the claim.
Items for Which We Are Not Liable
Under no circumstances (except as required by law) are we liable for
any of the following:
1. third-party claims against you for damages (other than those under
the first two items above in the subsection entitled `Our
Liability');
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2. loss of, or damage to, your records or data; or
3. special, incidental, or indirect damages, or for any economic
consequential damages (including lost profits or savings) even if
we are informed of their possibility.
Your Liability
In addition to damages for which you are liable under law and the terms
of this Agreement, you will indemnify us for claims made against us by
others (particularly regarding statements, representations, or
warranties not authorized by us) arising out of your conduct under this
Agreement or as a result of your relations with anyone else.
10. Trademarks
We will notify you in written guidelines of the IBM Business Partner
title and emblem which you are authorized to use. You may not modify
the emblem in any way. You may use our Trademarks (which include the
title, emblem, IBM trade marks and service marks) only:
1. within the geographic scope of this Agreement;
2. in association with Products and Services we approve you to market;
and
3. as described in the written guidelines provided to you.
The royalty normally associated with non-exclusive use of the
Trademarks will be waived, since the use of this asset is in
conjunction with marketing activities for Products and Services.
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 a Trademark, you agree to promptly notify us. When
this 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.
11. Changes to the Agreement Terms
We may change the terms of this Agreement by giving you one month's
written notice.
We may, however, change the following terms without advance notice:
1. those we specify in this Agreement as not requiring advance notice;
2. those of the Exhibit unless otherwise limited by this Agreement;
and
3. those relating to safety and security.
Otherwise, for any other change to be valid, both of us must agree in
writing. Changes are not retroactive. Additional or different terms in
any written communication from you (such as an order), are void.
12. Internal Use Products
You may acquire Products you are approved to market for your internal
use within your Business Partner operations. Except for personal
computer Products, you are required to advise us when you order
Products for your internal use.
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We will specify in your Exhibit the discount or price, as applicable,
at which you may acquire the Products for internal use. Such Products
do not count, unless we specify otherwise in the Exhibit, toward 1)
your minimum annual attainment, 2) determination of your discount or
price, as applicable, or 3) determining your marketing or promotional
funds.
Any value added enhancement or systems integration services otherwise
required by your relationship is not applicable when you acquire
Products for internal use. You must retain such Products for a minimum
of 12 months, unless we specify otherwise in the Exhibit.
13. Demonstration, Development and Evaluation Products
You may acquire Products you are approved to market for demonstration,
development and evaluation purposes, unless we specify otherwise in the
Exhibit. Such Products must be used primarily in support of your
Product marketing activities. Additionally, such Products do not count
unless we specify otherwise in the Exhibit, toward 1) your minimum
annual attainment, 2) determination of your discount or price, as
applicable, or 3) determining your marketing or promotional funds.
We will specify in your Exhibit the Products we make available to you
for such purposes, the applicable discount or price, and the maximum
quantity of such Products you may acquire and the period they are to be
retained. The maximum number of input/output devices you may acquire is
the number supported by the system to which they attach.
If you acquired the maximum quantity of Machines, you may still acquire
a field upgrade, if available.
We may decrease the discount we provide for such Products on one
month's written notice.
You may make these Products available to a Customer for the purpose of
demonstration and evaluation. Such Products may be provided to an End
User for no more than three months. For a Program, you agree to ensure
the Customer has been advised of the requirement to accept the terms of
a license agreement before. using the Program.
14. Electronic Communications
Each of us may communicate with the other by electronic means, 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.
15. Geographic Scope
All the rights and obligations of both of us are valid only in the
United States and Puerto Rico.
16. Governing Law
The laws of the State of New York, without regard to conflict of laws
principles, govern this Agreement.
The "United Nations Convention on Contracts for the International Sale
of Goods' does not apply.
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