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EXHIBIT 10.1
IBM BUSINESS PARTNER AGREEMENT FOR RESELLERS [IBM LOGO]
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1. MARKETING APPROVAL
As our IBM Business Partner-Reseller, we approve you under the terms of this
Agreement to market to End Users Products and Services specified on the
signature page. You acquire such Products and Services from an IBM
Distributor.
2. DEFINITIONS
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 and the subsidiaries it owns by more than 50%.
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.
PROGRAM is an IBM Program or a non-IBM Program provided under its
applicable license terms, that we approve you to market.
SERVICE is the performance of a task, provision of advice and counsel,
assistance, or use of a resource that we approve you to market.
3. OUR RELATIONSHIP
Each of us agrees that:
1. each of us is responsible for our own expenses regarding fulfillment of
our responsibilities and obligations under the terms of this Agreement:
2. 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:
3. 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:
4. 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:
5. All information exchanged between us is non-confidential, unless both of
us agree otherwise in writing:
6. IBM may change the terms of this Agreement on one month's written notice.
Otherwise, for any other change to be valid, both of us must agree in
writing. Changes are not retroactive. Additional or different terms in a
communication from you are void; and
7. IBM reserves the right to assign, in whole or in part, this Agreement to
any other IBM related company.
4. YOUR RESPONSIBILITIES TO IBM
You agree:
1. to provide us, or our representative with access to your facilities in
order for us to fulfill our obligations and to review your compliance with
the Agreement:
2. 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:
3. to maintain the criteria we specified when we approved you;
4. to retain records of each Product and Service transaction (for example a
sale, a credit or a warranty claim) for three years and provide us
relevant records on request. We may reproduce and retain copies of these
records;
5. to report to us any suspected Product defects or safety problems, and to
assist us in tracing and locating Products; and
6. to comply with the highest ethical principles in performing under the
Agreement, 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 a) a breach of this clause or b) when IBM
reasonably believes such a breach has occurred.
5. YOUR RESPONSIBILITIES TO END USERS
You agree to:
1. be responsible for customer satisfaction and to participate in customer
satisfaction programs as we determine;
2. refund the amount paid for a Product returned to you because the End User
returned it to you under the terms of its warranty or did not accept the
terms of the license or a money back guarantee we offer End Users. You may
return such Products to the IBM Distributor form whom you acquired them
for credit.
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3. Provide installation and post-installation support for the offering
you marketed. For Products and Services to be the primary contact
for Product information, technical advice and operational advice
associated with the offering. You may delegate these support
responsibilities and those for any other associated products to
another IBM Business Partner who is approved to market such
Products. If you do, you retain customer satisfaction
responsibilities. Alternatively, such support responsibilities will
be provided by IBM if you market the applicable IBM Services to the
End User. If you do, we assume customer satisfaction
responsibilities for such support;
4. provide a dated written record, such as a sales receipt or an
invoice, which specifies the End User's name , the part number of
the Machine type/model, and serial number, if applicable;
5. inform your End User, in writing, who the warranty provider is, if
other than yourself, and of any other applicable Warranty
information, as well as any modification you or the IBM Distributor
make to a Product and advise that such modification may void the
warranty; and
6. inform your End User that the sales receipt (or other documentation
we may specify, such as Proof of Entitlement, if it is required)
will be necessary for proof of warranty entitlement and for Program
Upgrades.
6. STATUS CHANGE
You agree to give us prompt written notice (unless precluded by law or
regulation) of any substantive change or anticipated change to the
information supplied in 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.
7. MARKETING FUNDS AND PROMOTIONAL OFFERINGS
We may provide marketing funds and promotional offerings. 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.
8. 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. You agree to inform your End User of these terms in writing.
Regardless of the IBM Machine's production status. IBM's warranty terms
apply. Warranty information is available from your IBM Distributor.
9. WARRANTY SERVICE
If we approve you to provide Warranty Service, you agree to do so under the
guidelines we specify to you.
10. MARKETING OF SERVICES FOR A FEE
You may market IBM Services which IBM or your IBM Distributor make available
to you, to an End User if you 1) marketed a Product under this Agreement
that End User, or 2) are approved on the signature page of this
Agreement to market such Services.
If you market an IBM Service which is eligible for a fee and which your IBM
Distributor makes available to you, we will pay the fee to your IBM
Distributor. Alternatively, if such IBM Service is not available from your
IBM Distributor, but is available to you, we will pay the fee to you.
In either case we will pay the fee when 1)you identify the opportunity and
perform the marketing activities. 2)you provide the order and any required
documents, signed by the End User where required and 3) If a standard
Statement of Work is used, there are no changes, and no marketing assistance
from us is required.
Additionally, for Services we specify, and which are not available from your
IBM Distributor we will pay you a fee when you provide us a lead and the
following criteria are met: 1) it is submitted on a form we provide to you
2) it is for an opportunity which is not known to us, and 3) it results in
the End User ordering the Service from us within six months from the date we
receive the lead from you.
11. EXPORT
You may actively market Products and Services only within the geographic
scope specified in this Agreement. You may not market outside this scope and
you agree not to use anyone else to do so. If a customer acquires a Product
for export, our responsibilities, if any, under this Agreement no longer
apply to that Product, unless the Product's warranty or license terms state
otherwise. You agree to use your best efforts to ensure that your customer
complies with all export laws and regulations including those of the United
States and the country specified in the Governing Law Section of this
Agreement, and any laws and regulations of the country in which the Product
is imported or exported. Before your sale of such Product, you agree to
prepare a support plan for it and obtain your customer's agreement to that
plan. Within one month of sale, you agree to provide us with the customer's
name and address, Machine type/model and serial number, date of sale, and
destination country. We exclude those Products from any of your attainment
objectives and qualification for applicable promotional offerings and
marketing funds.
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12. 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
Trademarks 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 supporting sales of 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.
13. LIABILITY
Circumstances may arise where, because of 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.
We are responsible for the amount of any actual loss or damage, up to the
greater of $100,000 or the charges (if recurring, 12 months' charges apply)
for the Product that is the subject of the claim.
Under no circumstances (except as required by law) are we liable for
third-party claims against you for losses or damages, or for special,
incidental, or indirect charges, or for any economic consequential damages
(including lost profits or savings) even if we are informed of their
possibility.
In addition to damages for which you are liable under law and the terms of
this Agreement, you will indemnify us for claims by others 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.
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 legally sufficient to verify the sender's identity
and the document's authenticity.
15. ENDING THE AGREEMENT
Either of us may terminate this Agreement, with or without cause, on three
months' written notice. If, under applicable law, a longer period is
mandatory, then the notice period is the minimum notice period allowable.
If we terminate for cause we may, at our discretion, allow you a reasonable
opportunity to cure. If you fail to do so, the date of termination is that
specified in the notice.
However, if either party breaches a material term of the Agreement, the
other party may terminate the Agreement on written notice. Examples of such
breach by you are if you do not maintain customer satisfaction; if you
repudiate this Agreement; or if you make any material misrepresentations to
us. You agree that our only obligation is to provide the notice called for
in this section and we are not liable for any claims or losses if we do so.
You agree that if we permit you to perform certain activities after this
Agreement ends, you will do so under the terms of this Agreement.
16. GEOGRAPHIC SCOPE
all the rights and obligations of both of us are valid only in the United
States and Puerto Rico.
17. GOVERNING LAW
The laws of the State of New York govern this Agreement. The "United Nations
Convention on the International Sale of Goods" does not apply.
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CONTRACT START DATE________________ DURATION 24 MONTHS LOCATION ID_____
Unless we specify otherwise in writing, the Agreement will be renewed
automatically for subsequent two year periods. Each of us is responsible to
provide the other three months' written notice if the Agreement will not be
renewed.
PRODUCTS AND SERVICES YOU ARE APPROVED TO MARKET:
Personal computer Products and associated Services.
MINIMUM ANNUAL ATTAINMENT: NOT APPLICABLE
This Agreement is the complete agreement regarding this relationship, and
replaces any prior oral or written communications between us. Once this
Agreement is signed 1) any reproduction of this Agreement made by reliable
means (for example, photo-copy 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.
Agreed to: /s/Dataflex Corporation Agreed to:
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(IBM Business Partner Name) International Business Machines Corporation
By: /s/ Xxxxxxx X. Xxxxx By:
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(Authorized Signature) (Authorized Signature)
Name (type or print): Xxxxxxx X. Xxxxx Name (type or print):
Date: 2/7/97 Date:
IBM Business Partner Address IBM Address: IBM Corporation
0000 Xxxxxxxxxx Xx.
Xxxxxxxx 000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
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