EXHIBIT 10.1
[LOGO OF NETSOLVE]
Management Services Purchase and Resale Agreement
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Table of Contents
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Agreement
Exhibit A NetSolve Services
Exhibit B Licensed Software
Exhibit C NetSolve's Standard Design Review Criteria
Exhibit D Services: Pricing and Discounts
Exhibit E Territory
Exhibit F Form of CSO
Exhibit G NetSolve Service Level Agreement
Exhibit H Trademark Usage Guidelines
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [*]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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[LOGO OF NETSOLVE]
Management Services Purchase and Resale Agreement
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This Management Services Purchase and Resale Agreement (this "Agreement") is
entered into between the following and is effective upon the Effective Date (as
defined herein).
NetSolve, Incorporated ("NetSolve") International Business Machines
Corporation ("IBM")
a Delaware Corporation a New York Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Notices to: Attention CFO Notices to: *
Whereas NetSolve provides implementation, management, and maintenance of
advanced data networks; and
Whereas IBM desires to utilize NetSolve's services in connection with the
services IBM provides to its customers;
1. Definitions.
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1.1 "Affiliates" means entities that control, are controlled by, or under
common control with IBM during the Term of this Agreement and which are approved
by NetSolve to resell the NetSolve Services under this Agreement, such approval
not to be unreasonably withheld.
1.2 "CSO (Customer Service Order)" shall mean NetSolve's ordering document in
the form attached hereto as Exhibit F. NetSolve shall prepare and submit a CSO
to IBM's designated contact(s) based on information provided by IBM. IBM may
approve or reject a CSO in its sole discretion.
1.3 "Customer" means any end user to whom IBM sells NetSolve Services pursuant
to a Customer Agreement, as defined below.
1.4 "Customer Agreement" means a contract for sale of the NetSolve Services
between IBM and a Customer.
1.5 "End User" means anyone who acquires Services for its own use and not for
resale.
1.6. "Licensed Software" means any copy of the object code of the computer
software identified in Exhibit B of this Agreement, if any, and all Enhancements
to such Licensed
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Software made during the Term of this Agreement which NetSolve elects to make
available to IBM under this Agreement.
1.7 "NetSolve Services" means the services made available to IBM under this
Agreement by NetSolve, and which are listed in Exhibit A, "Covered NetSolve
Services." and which are more fully described in the Service Description
Attachments to Exhibit A.
1.8 "Program Manager" means the following: Each party shall designate a program
manager ("Program Manager") who will meet at least once a quarter to coordinate
the parties' activities hereunder. NetSolve's Program Manager will coordinate
and provide, at a mutually agreeable time and place, training of IBM's employees
in the sales of the NetSolve Services. The IBM Program Manager, will coordinate
IBM's activities hereunder. The IBM Program Manager will help schedule
training. Either party may change the designation of its Program Manager upon
written notice to the other party's Program Manager. The NetSolve Program
Manager and the IBM Program Manager shall each serve as the principal point of
contact for the other party for the resolution of any issues or problems that
may arise hereunder. The services of the NetSolve Program Manager and the IBM
Program Manager shall be at no charge to the other party.
1.9 "Service Term" has the meaning set forth in Section 6, "Service Term and
Start of Service"
2. Appointment.
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(a) NetSolve hereby appoints IBM and its Affiliates, and IBM accepts
appointment to market and sell NetSolve Services on a non-exclusive basis
to the Customers in the Territory (as set forth on Exhibit E). To enable
IBM to effectively market the NetSolve Services, NetSolve grants IBM the
non-exclusive right and license to use, copy, reproduce, display, market
and distribute, in any medium or distribution technology whatsoever,
whether known or unknown, the trademarks and trade names, and associated
marketing materials, to Customers in the Territory in accordance with the
provisions of Section 18 - "Trademarks." IBM agrees that it shall identify
to Customers that NetSolve Services purchased by such Customers are
provided by NetSolve Incorporated. End Users shall not be located in
locations outside the Territory (whether such locations be divisions,
affiliates, parent companies, or otherwise related to such Customer, or not
related to such Customer) unless (i) the purchase for such locations was
controlled by IBM's Customer located in the Territory; and (ii) the sale of
such Services was made directly by IBM. NetSolve further grants IBM and its
Affiliates (subject to Section 1.1) a non-exclusive, nontransferable, right
during the term of this Agreement to resell and distribute the NetSolve
Services and marketing materials to Customers under the terms of this
Agreement, and to allow potential Customers to evaluate NetSolve Services
free of charge (limited to 90 days of trial use and a cap on the maximum
number of devices under evaluation free of charge at any given time, such
cap to be mutually agreed from time to time), promote and demonstrate the
NetSolve Services, and to train IBM employees on the sale of the NetSolve
Services.
(b) IBM's Global Services Division will use commercially reasonable efforts to
develop and implement a market support plan for the NetSolve Services. The
market support plan may include, at IBM's sole discretion and reasonable
expense, if any, the following
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marketing activities for the NetSolve Services: identify Customers for the
NetSolve Services; demonstrate the NetSolve Services to Customers; develop
sales proposals; include NetSolve Services in trade shows, executive
conferences, and other marketing events;; and electronically publish
information about NetSolve Services. IBM shall not knowingly sell the
NetSolve Services to third parties for purposes of resale by such third
parties.
(c) NetSolve agrees to provide the NetSolve Services in accordance with the
terms and conditions of this Agreement. IBM is responsible for pricing,
ordering, and billing and accounts receivable activities related to the
NetSolve Services it resells to Customers.
(e) While this Agreement is in effect and at all times thereafter, NetSolve
shall have the unrestricted right to appoint other value-added-resellers,
distributors, sales agents, or the like to sell (and / or to utilize its
own sales personnel to sell or attempt to sell) services that may be
similar, the same as, or substantially the same as the NetSolve Services
for installation in the Territory or any portion thereof.
3. Term.
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The Term of this Agreement shall commence on the date when executed by both
parties (Effective Date) and will continue for one (1) year unless it is
terminated earlier in accordance with the provisions hereof. This Agreement
will automatically renew upon each annual anniversary of the Effective Date for
subsequent one (1) year terms unless either party gives the other written notice
of non-renewal at least thirty (30) days prior to expiration of the then-current
term. Notwithstanding any such termination, this Agreement shall continue in
effect beyond the Term with respect to Service Terms (see Paragraph 5) which
extend beyond the Term of this Agreement.
4. Purchase Price.
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(a) The prices to be paid by IBM to NetSolve for NetSolve Services purchased by
IBM under this Agreement (the "Purchase Price") shall be as set forth in
Exhibit D.
(b) The Purchase Prices in effect at the inception of this Agreement are set
forth in Exhibit D. Such Purchase Prices may be reduced by NetSolve at any
time, and, subject to this Agreement, may be increased by NetSolve no
earlier than twelve (12) months after the Effective Date upon ninety (90)
days prior written notice, or may be modified by mutual agreement of
NetSolve and IBM at any time. Purchase Price decreases will be provided to
IBM as of the effective date of the Purchase Price decrease with respect to
all CSO's in effect with expired Service Terms (but where the Customer is
still receiving NetSolve Services) on the date of the Purchase Price
decrease. Purchase Price decreases will be provided to IBM for all other
CSO's at the end of the Service Term of each CSO. Increases, if any, will
not apply (i) during the Service Term of CSO's accepted prior to the
effective date of such changes or (ii) additional quantities for Customers
that have previously purchased the affected NetSolve Services until the end
of the Service Term of the first CSO for the affected Services from that
Customer. Furthermore,: (i) Purchase Price increases will not apply to any
outstanding IBM proposals to its customers or prospects until expiration of
the proposal, not to exceed one-hundred-eighty (180) days
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after IBM's receipt of the notice from NetSolve of the Purchase Price
increase, subject to IBM providing a list of all such proposals to NetSolve
within thirty (30) days of receipt of notice of the Purchase Price
increase; and (ii) No Purchase Price increase shall exceed * percent (*%)
of the highest Purchase Price in the previous year paid by IBM for NetSolve
Services resold to any Customer.
(c) Notwithstanding anything to the contrary set forth herein, NetSolve agrees
to permit IBM to purchase NetSolve Services for internal use at prices no
higher than the wholesale pricing set forth in Schedule D.;
5. Rights and Obligations of the Parties.
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NetSolve will:
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(a) deliver the NetSolve Services to Customers within sixty (60) days of IBM's
documented order to NetSolve and in accordance with the terms hereof and as
set forth in a "CSO". IBM can accept NetSolve's proposed delivery schedule
or cancel the CSO without liability by providing written notice to NetSolve
on the earlier of (i) five (5) business days after receipt of NetSolve's
confirmation copy of the CSO or (ii) the commencement of the NetSolve
Services. If requested by IBM, NetSolve agrees to electronically confirm
to IBM within 1 working day the date of any shipment to Customers.
NetSolve agrees to pay all transportation charges required for any shipment
to the location IBM specifies. NetSolve may reject CSO's which do not
conform with NetSolve's Standard Design Review Criteria as defined in
Exhibit C or which are not within the scope of the NetSolve Services.
(b) provide IBM with monthly mutually agreed upon data sorted by Customer in a
file format mutually agreed upon to enable IBM to ▇▇▇▇ its Customers
separately. During the Term of this Agreement, including the Service Terms
of all CSO's, IBM shall be solely responsible for billing Customers for
their use of NetSolve Services;
(c) maintain at NetSolve's expense: (i) comprehensive general or public
liability insurance with a minimum limit per occurrence or accident of
$1,000,000; (ii) workers' compensation or employer's liability as required
by local law, such policies waiving any subrogation rights against IBM; and
(iii) automobile liability insurance as required by local statute but not
less than $1,000,000 if a vehicle will be used in the performance of this
Agreement;
(d) provide NetSolve Services per the Service Level Agreement (SLA) specified
in Schedule G;
(e) be responsible for the maintenance and security of NetSolve Services and
other NetSolve products and services and facilities, including but not
limited to NetSolve's and NetSolve's personnel's compliance with laws,
rules and regulations, and the terms and conditions of this Agreement;
(f) be responsible for the supervision, control, compensation, withholdings,
health and safety of its personnel;
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(g) ensure that its personnel performing services on IBM's or a Customer's
premises comply with any of each such party's on-premises guidelines;
(h) inform IBM if a former employee of IBM, to the extent NetSolve knows from
employment application data provided by the employee or is otherwise aware
of former employment by IBM, will be assigned work under this Agreement,
such assignment to be subject to IBM's prior approval;
(i) maintain (and make available for inspection upon prior reasonable notice
and during NetSolve's normal business hours) relevant accounting records to
support invoices under this Agreement and proof of required permits and
professional licenses for three (3) years following the termination of this
Agreement. All accounting records shall be maintained in accordance with
generally accepted accounting principles;
(j) provide the following market support services to IBM as reasonably
requested during the term of this Agreement, at no additional charge:
Marketing Events: NetSolve agrees to participate in trade shows, executive
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conferences, and other marketing events, on dates and at locations mutually
agreed to by the parties, with NetSolve paying the travel and all other
costs of its personnel (including but not limited to salaries and other
compensation, payroll taxes, and benefits);
Telephone Support: NetSolve agrees to provide IBM telephone consulting
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services and e-mail support during its normal business hours to address
technical questions related to demonstration, marketing, operation, use and
installation of the NetSolve Services;
Pre-sales Support: NetSolve agrees to provide pre-sales technical support
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services and demonstration assistance for the NetSolve Services to IBM
Customers on dates and at locations mutually agreed to by the parties; and
Training: During each 12-month period during the Term, NetSolve agrees to
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conduct two (2) one-day marketing/technical training classes related to the
demonstration and sales of NetSolve Services, or otherwise as agreed to by
the parties' Program Managers and;
(k) ensure that the CSO: (i) does not contain terms or conditions inconsistent
with this Agreement; (ii) does not create or imply any obligation for IBM
except as expressly set forth in this Agreement; and (iii) except as may be
expressly provided in this Agreement, shall not restrict or limit IBM's
ability to resell the NetSolve Services under IBM's terms, conditions and
prices to be selected by IBM at IBM's sole discretion.
All NetSolve personnel providing market support will have sufficient
NetSolve Services knowledge and skills to perform the support services
requested
NetSolve will not:
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(l) without IBM's prior written approval, issue press releases, or other
publicity regarding this Agreement or NetSolve's and IBM's relationship
under it, or use IBM trademarks, trade names, service marks or logos; and
(m) during the term of the Agreement, NetSolve will not knowingly solicit
Customers. NetSolve will first respond to requests initiated by such
Customers by referring them to IBM.
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6. Service Term and Start of Service.
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NetSolve Services will commence on the date on which the applicable NetSolve
Services are made available to IBM or the Customer by NetSolve (the "Service
Date"), in accordance with the IBM or Customer Requested Date ("CRD"), and shall
continue for the number of months specified by IBM (the "Service Term"), all as
set forth on the applicable CSO. NetSolve Services and the related charges
shall commence on the Service Date and shall continue throughout the Service
Term. Upon expiration of the Service Term or termination of this Agreement under
Section 11, NetSolve Services will continue to be provided by NetSolve to IBM on
a month to month basis at the Purchase Prices, as amended, less applicable
Discounts. In no event shall NetSolve be obligated to provide Service Terms in
excess of thirty-six (36) months unless IBM and NetSolve agree otherwise.
7. Representations and Warranties.
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(a) NetSolve Services Warranty. NetSolve represents and warrants that on an
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ongoing basis: (i) it has the right to enter into this Agreement and its
performance of this Agreement will not breach the terms of any contract,
obligation, law, regulation or ordinance to which it is or becomes subject;
(ii) no claim, lien, or action exists or is threatened against NetSolve
that would interfere with IBM's rights under this Agreement; (iii) the
NetSolve Services will substantially conform to the NetSolve Service
Description (as set forth in Exhibit A, including the attachments thereto);
(iv) the NetSolve Services do not infringe any patent, copyright,
trademark, trade secret or any other intellectual property rights of any
third party, and do not contain any virus or other harmful code; (v) will
comply with any and all laws and/or regulations, including but not limited
to, export laws and/or regulations regarding (1) the classification of the
NetSolve Services; and (2) distribution of encrypted code contained in the
NetSolve Services; (vi) NetSolve has sufficient rights to the NetSolve
Services (including associated marks and names) to grant IBM the rights
specified in this Agreement; and ( vii) NetSolve will ensure that all
Customer content while resident at or being processed in NetSolve equipment
or facilities, shall be secure and free from unauthorized physical or
electronic intrusion or interception.
(b) Disclaimer of Warranty. THE WARRANTIES SET FORTH IN SECTION 7(a) AND
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EXHIBIT G ARE IBM'S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES
(EXPRESS, IMPLIED, OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. IBM Warranties.
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NetSolve shall not be responsible to IBM or any third party for any warranty
offered by IBM to its Customers, other than its obligations set forth herein.
9. Taxes.
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Each party is responsible for complying with the collection, payment, and
reporting of all taxes imposed by any governmental authority applicable to its
activities in connection with the sale, lease, delivery or license of the
NetSolve Services under this Agreement. Neither party is responsible for taxes
that may be imposed on the other party. Situations may arise where governmental
authorities require IBM to withhold from amounts payable to NetSolve. In such
cases, IBM may withhold the amount of taxes due from payments to be made to
NetSolve under this Agreement and remit the taxes withheld to the governmental
authority. Upon request, IBM will provide NetSolve with documentation
justifying the withholding amount. In addition, IBM will provide resale
exemption certificates to NetSolve for applicable jurisdictions requested in the
United States.
10. Payment Terms.
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(a) Fees for recurring Services shall be invoiced to IBM on a monthly basis at
the beginning of each month. Fees for nonrecurring Services shall be
invoiced to IBM on a monthly basis for Services performed in the previous
month. Payment for all charges owed hereunder shall be due * (*) days from
receipt of invoice. A Late Fee shall be assessed against the unpaid
balance for payments not received within * days after the due date at the
lesser of the maximum rate allowed by law or *% per month.
(b) No late fees shall be imposed upon disputed amounts, provided such disputed
amounts are documented in writing to NetSolve not later than the due date
for payment of such NetSolve Services and further provided that the
undisputed portion(s) of any charges are paid by the due date. Following
receipt of a dispute notice by NetSolve, IBM and NetSolve shall negotiate
the disputed charges in good faith within thirty days, and following
resolution, any amounts agreed to be owing shall be remitted within twenty
(20) days. In the event the parties cannot resolve the amounts owing, then
provided (i) NetSolve has billed the disputed items in amounts not greater
than the amount agreed to by IBM as indicated on a CSO; (ii) IBM has not
notified NetSolve in writing to cancel such Services; and (iii) the
Services were not billed for periods prior to the CRD, then the parties may
escalate the dispute for resolution to senior management within their
respective companies. Nothing contained in this Section 10(b) shall
preclude NetSolve from instituting any legal action with respect to any
unpaid amounts.
(c) Electronic Commerce. The parties will conduct transactions using an
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electronic commerce approach under which the parties will electronically
transmit and receive legally binding purchase and sale obligations
("Documents"), including purchase orders, invoices and electronic credit
entries transmitted by IBM to the NetSolve account specified. Each party,
at its own expense, will provide and maintain the equipment, software,
services and testing necessary for it to effectively and reliably transmit
and receive such Documents. Either party may use a third party service
provider for network services, provided the other party is given sixty
(60) days prior written notice of any changes to such services. A Document
will be deemed received upon arrival at the receiving party's mailbox or
Internet address. The receiving party will promptly notify the originating
party if a Document is received in an unintelligible form, provided that
the originating party can be identified. In the absence of such notice,
the originating party's record of the contents of such Document will
prevail. Each party will authenticate Documents using a digital signature
or User ID, as mutually agreed, and will maintain security procedures to
prevent its unauthorized use.
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11. Cancellation.
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Subject to the provisions of Section 6 regarding the continuation of NetSolve
Services for unexpired Service Terms at the termination of this Agreement, upon
one hundred eighty (180) days written notice, either party may cancel for
convenience this Agreement (but not individual CSO's prior to the expiration of
the initial Service Term of such CSO). In the case of such cancellation IBM
shall be responsible for payment in full for all NetSolve Services actually
provided in, and through, such one hundred eighty (180) days and for all
NetSolve Services provided with respect to unexpired Service Terms until the
expiration of all such Service Terms.
Notwithstanding the preceding, CSOs for NetSolve Services may be canceled prior
to expiration of the Service Term: (i) at IBM's option, if NetSolve Services
are not begun within sixty (60) days of the date agreed to by NetSolve in a CSO;
(ii) for Customer locations that are closed for business reasons; (iii) for
any Customer(s) who express dissatisfaction with the Services in writing to IBM
(with a copy to NetSolve from IBM or the Customer) which NetSolve is not able to
cure within thirty (30) days from receipt of notice; or (iv) if a Customer
cancels for any other reason.
12. Relationship of Parties.
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The relationship of the parties is that of independent contractors. No
partnership, joint venture, franchise, agency, employment, fiduciary or other
similar relationship is created by this Agreement. Neither party has any express
or implied authority to incur any obligation for, or in any manner otherwise
make any commitments on behalf of, the other party except as expressly allowed
under this Agreement (including any Exhibits or Attachments hereto). Each party
shall employ its own personnel and shall be responsible for them and their acts
and neither party shall be liable to the other, its employees, or any third
parties for any losses, injuries, damages, or the like occasioned by the other
party's activities in connection with this Agreement, except as expressly
provided herein.
13. Indemnity
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NETSOLVE WILL INDEMNIFY, DEFEND AND HOLD HARMLESS, (INCLUDING WITHOUT LIMITATION
ANY DAMAGES THAT A COURT FINALLY AWARDS, ANY SETTLEMENT AGREED TO BY NETSOLVE,
AND ALL REASONABLE ATTORNEYS' FEES AND COSTS OF INVESTIGATION) IBM, ITS
AFFILIATES, AND ITS CUSTOMERS AGAINST ANY THIRD PARTY CLAIM AGAINST THEM TO THE
EXTENT THAT SUCH ACTION OR OTHER PROCEEDING IS BASED ON ANY BREACH OF ANY OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7. NETSOLVE WILL HAVE NO
OBLIGATION UNDER THIS SECTION 13 AS TO ANY ACTION, PROCEEDING OR CLAIM UNLESS:
(A) NETSOLVE IS NOTIFIED OF IT PROMPTLY; (B) NETSOLVE HAS SOLE CONTROL OF ITS
DEFENSE AND SETTLEMENT; AND (C) IBM PROVIDES NETSOLVE WITH REASONABLE ASSISTANCE
IN ITS DEFENSE (PROVIDED HOWEVER, ANY SETTLEMENT SHALL BE SUBJECT TO IBM'S
APPROVAL WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED). IF AN
INFRINGEMENT OR MISAPPROPRIATION CLAIM IS MADE AGAINST IBM, ITS AFFILIATES,
CUSTOMERS OR THEIR END USERS, OR IF NETSOLVE AND IBM REASONABLY AGREE THAT SUCH
A CLAIM IS LIKELY, ABOUT THE NETSOLVE
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SERVICES, NETSOLVE WILL OBTAIN THE NECESSARY RIGHTS FOR IBM, AND CUSTOMERS TO
CONTINUE EXERCISING ALL RIGHTS GRANTED UNDER THIS AGREEMENT, OR NETSOLVE WILL
MODIFY THE NETSOLVE SERVICES OR ITS NAME SO THAT IT IS NON-INFRINGING, OR
REPLACE IT WITH SERVICES (INCLUDING ANY PORTION THEREOF) THAT IS FUNCTIONALLY
EQUIVALENT, OR ALLOW IBM TO CANCEL ALL NETSOLVE SERVICES. NETSOLVE'S INDEMNITY
OBLIGATIONS FOR INFRINGEMENT SHALL NOT APPLY TO THE EXTENT OF MODIFICATIONS TO,
OR COMBINATIONS OF THE NETSOLVE SERVICES WITH, ANY OTHER ITEMS BY IBM OR ITS
CUSTOMERS TO THE EXTENT NOT REASONABLY ANTICIPATED BY, OR OTHER THAN AT THE
DIRECTION OF, REQUEST OF, OR IN ACCORDANCE WITH SPECIFICATIONS PROVIDED BY
NETSOLVE. THE OBLIGATIONS OF NETSOLVE IN THE THIRD SENTENCE OF THIS SECTION 13,
ARE NOT EXCLUSIVE OF ITS OBLIGATIONS UNDER THE FIRST SENTENCE OF THIS SECTION
13.
14. Limitation of Liability
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EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 13, AND DAMAGES FOR BODILY INJURY
(INCLUDING DEATH) AND DAMAGE TO REAL AND TANGIBLE PERSONAL PROPERTY, AND AMOUNTS
OWING BY IBM PURSUANT TO SECTION 4 OF THIS AGREEMENT, IT IS THE PARTIES' EXPRESS
INTENTION THAT: (A) FOR ANY CLAIM ARISING UNDER SECTION 7A(III) OF THIS
AGREEMENT, NETSOLVE'S LIABILITY SHALL BE LIMITED TO THE AMOUNTS SPECIFIED IN
EXHIBIT G; AND (B) FOR ALL OTHER CLAIMS ARISING UNDER THIS AGREEMENT, EITHER
PARTY'S LIABILITY SHALL BE LIMITED TO THE AMOUNTS DUE OR PAID BY IBM UNDER THIS
AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE CLAIM OR
CAUSE OF ACTION, PROVIDED, HOWEVER , SUCH LIABILITY UNDER THIS CLAUSE (B) SHALL
IN NO EVENT EXCEED $*. EXCEPT FOR INFRINGEMENT CLAIMS ARISING UNDER SECTION
13, NEITHER NETSOLVE NOR IBM SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO ANY
PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SPECIAL
TYPES OF DAMAGES, INCLUDING WITHOUT LIMITATION ANY CONSEQUENTIAL DAMAGES
INCLUDING LOST PROFITS OR SAVINGS OR LOSSES TO BUSINESS PROSPECTS, EVEN IF SUCH
DAMAGES RESULT FROM THE BREACH OR OTHER FAULT OF IBM OR NETSOLVE OR EVEN IF
ADVISED THAT SUCH DAMAGES MAY OCCUR.
15. Notices.
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Unless specifically provided otherwise herein, notices under this Agreement
shall be in writing and delivered by a means evidenced by delivery receipt to
the address specified below, and the effective date for any notice under this
Agreement shall be the date of delivery of such notice, not the date of mailing
or transmission, unless specifically provided otherwise herein. Either party
may from time to time change its address by giving the other party notice of the
change in accordance with this section.
If to NetSolve: NetSolve, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: CFO
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If to IBM: IBM Corporation
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: *
with a copy to:
IBM Global Services
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
16. Force Majeure.
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Either party's performance of any part of this Agreement shall be excused on a
day-to-day basis to the extent that it is hindered by flood, fire, strike, riot,
governmental action, or any other cause (whether similar or dissimilar to those
listed) beyond that party's reasonable control. If any such event occurs, the
affected party shall make reasonable efforts to notify the other of the nature
of any such condition and the extent of the delay, and shall make reasonable,
good faith efforts to resume performance as soon as possible. If such failure of
performance shall be for ten (10) days or less, then the NetSolve Services
affected thereby shall continue as-is (but NetSolve shall issue a pro-rata
credit of the charges for the affected Services if NetSolve is the party whose
performance has been excused); if for more than thirty (30) days, the affected
Services may be canceled by IBM on ten (10) days written notice without
liability or penalty other than IBM's liability for payment for Services
provided prior to cancellation.
17. Confidentiality.
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(a) All information disclosed hereunder by one party to the other party will be
non-confidential. If the parties require the disclosure of confidential
information, such disclosure will be made under the written existing
AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION" (AECI) between the
parties, signed by NetSolve on December 6, 2000, and signed by IBM on
January 9, 2001. It is understood that any disclosure of confidential
information to be covered and protected under this Agreement may be added
to the AECI by way of a Supplement.
(b) Notwithstanding anything in Section 17(a) to the contrary, NetSolve
specifically authorizes IBM to publish its own prices for the NetSolve
Services, the NetSolve Service Descriptions, and any other product
information (except for such other product information which NetSolve
notifies IBM in writing may not be so disclosed) to its sales organization
and to its actual or potential Customers.
(c) Either party may disclose the existence and nature of their relationship
hereunder only to the extent required by law, or order of a court, or order
or regulations of any regulatory body, except that in each such instance
the disclosing party shall utilize reasonable efforts to provide the other
party an opportunity to review and, other than with respect to required
filings with the Securities and Exchange Commission, to contest the
disclosure prior to its being released. Notwithstanding the foregoing, a
party may not contest a required filing with the Securities and Exchange
Comission (SEC); however, the party making the filing shall provide the
other party reasonable opportunity to review and make additions to the
filing
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party's request to the SEC for confidential treatment with respect to the
inclusion of any portion this Agreement.
18. Trademarks.
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(a) Use of Trademarks by IBM - NetSolve hereby grants to IBM the nonexclusive
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right and license to use, copy, reproduce and display the trademarks and
tradenames associated with the NetSolve Services of NetSolve (collectively
"Trademarks") both internally and externally in connection with the
business of marketing and selling the NetSolve Services for installation in
the Territory, subject to the guidelines set forth in this Paragraph 18,
and shall not use the Trademarks in any other manner without the express
written consent of NetSolve. The use of the Trademarks shall apply only
during the Term of this Agreement (and shall not apply for any Service
Terms which extend beyond the Term of this Agreement) and shall be used
only in connection with the NetSolve Services.
(b) Guidelines for Trademark Usage - See Exhibit H for Guidelines for Trademark
------------------------------
Usage.
(c) Protection of Trademarks - IBM recognizes the right, title, and interest of
-------------------------
NetSolve in and to all the Trademarks in connection with the marketing and
sale of NetSolve Services by NetSolve and agrees not to engage in any
activities or commit any acts, directly or indirectly, which may contest,
dispute, or otherwise impair such right, title, or interest of NetSolve
therein. IBM shall neither acquire nor claim any right, title or interest
in or to the Trademarks adverse to the rights of NetSolve whether by virtue
of this Agreement or through any use by IBM of the Trademarks which may be
permitted by NetSolve through advertising and sale of the NetSolve Services
or otherwise. The parties agree that any and all uses of such Trademarks
by IBM as may be permitted by NetSolve herein or in writing from time to
time shall be in such manner as to inure at all times to the benefit of
NetSolve.
19. Termination.
-----------
(a) Right to Terminate. This Agreement (but not individual CSO's prior to the
------------------
expiration of the initial Service Term of such CSO) may be terminated with
one hundred eighty (180) days prior written notice of either of the
parties. Termination of this Agreement other than by the above written
notice shall be in accordance with the provisions of one or more of the
following Subsections:
(i) If either party materially breaches its obligations under this
Agreement, the other party may notify the Defaulting Party in writing of
the default and the Defaulting Party shall have a period of thirty (30)
days from receipt of notice to cure the default. If, at the end of said
thirty (30) day period the Defaulting Party has not cured the default, the
other party may immediately terminate this Agreement (and any related
CSO's) by giving written notice to that effect to the Defaulting Party; and
(ii) This Agreement may be terminated by one party, upon written notice of
termination to the other party, in the event any bankruptcy,
reorganization, general assignment for the benefit of creditors, or
insolvency proceeding is initiated against the other party and is not
dismissed within sixty (60) days thereafter.
Page 12 of 73
(b) Effect of Termination or Cancellation.
-------------------------------------
(i) Termination of this Agreement for any reason shall not relieve either
party from any liability which at the time of termination has already
accrued to the other party hereto or which thereafter may accrue in respect
of any act or omission prior to termination, or from any obligation which
is expressly stated herein to survive termination.
(ii) Upon any termination or expiration of this Agreement, NetSolve and IBM
will immediately return to each other or at the other party's request
destroy any Confidential Information of NetSolve or IBM in its possession
or control.
(iii) Upon any early termination of this Agreement by either party, other
than for an uncured and undisputed default by IBM of its payment
obligations under this Agreement, NetSolve shall continue to provide
NetSolve Services to existing Customers for the remainder of their
respective Service Terms, (the "Transition Period"), subject to the terms
and conditions of this Agreement. In addition, upon any other termination
of this Agreement other than for an uncured and undisputed default by IBM
of its payment obligations under this Agreement, IBM shall be entitled to
purchase and resell any NetSolve Services for which IBM has submitted a CSO
received by NetSolve prior to such termination. In addition, any licenses
granted to IBM and Customers herein shall continue through the end of the
respective Service Terms for any CSOs not canceled unless IBM has
indisputably defaulted on, and not cured its payment obligations under this
Agreement.
(iv) Nonexclusive Remedy. The exercise by either party of any remedy
-------------------
under this Agreement will be without prejudice to its other remedies under
this Agreement or otherwise except as limited by Section 14.
(v) Survival. The rights and obligations of the parties as set forth in
--------
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 will survive any termination or expiration of this Agreement.
20. Entire Agreement.
----------------
All of the Exhibits (including attachments thereto) attached to this Agreement
and listed on the cover page are a part of this Agreement and are incorporated
herein by reference. This Agreement and such Exhibits and the AECI referenced in
Paragraph 17 constitute the entire agreement between the parties, and supersede
any prior agreements between the parties with respect to the subject matter
hereof, unless otherwise specifically agreed to by the parties in writing. Any
addition, deletion or modification to the terms and conditions contained in this
Agreement shall not be binding until accepted by the authorized representatives
of both IBM and NetSolve.
21. Binding Nature. Assignment.
--------------------------
Neither party will assign their rights or delegate their duties under this
Agreement to third parties or Affiliates without the prior written consent of
the other party, such consent not to be
Page 13 of 73
withheld unreasonably, except that IBM may assign this Agreement in conjunction
with the sale (other than to a competitor of NetSolve) of a substantial part of
its business utilizing this Agreement. Any unauthorized assignment of this
Agreement is void. The following is a current list of NetSolve's competitors
which shall be updated in writing to IBM periodically by NetSolve.
* LIST OMITTED PURSUANT TO CONFIDENTIALITY REQUEST
Page 14 of 73
22. Facsimile Signature.
-------------------
Any and all CSO's or other documents received by facsimile transmission by
either party containing signatures of approval of the other party shall be
deemed originals and fully enforceable.
23. Compliance with Laws.
--------------------
IBM and NetSolve will at all times have all necessary legal permits and licenses
required by any governmental unit or agency and will comply with all applicable
international, national, state, regional and local laws and regulations,
including United States export laws, in performing its duties hereunder.
24. Governing Law.
-------------
This Agreement shall be governed by and construed according to the laws of the
State of New York without giving effect to its principles of conflict of laws.
No cause of action may be asserted against either party which accrued more than
two (2) years prior to the time when the cause of action arose. The parties
expressly waive any right to a jury trial regarding disputes related to this
Agreement. Failure by either party to demand strict performance or to exercise
a right does not prevent either party from doing so later. The United Nations'
Convention on the International Sale of Goods does not apply.
25. Severability.
------------
If any provision(s) of this Agreement shall be held to be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and the parties
further agree to substitute a valid provision that most closely approximates the
effect of the invalid provision.
26. Freedom of Action.
-----------------
This Agreement is nonexclusive and either party may design, develop,
manufacture, acquire or market competitive Services. IBM will independently
establish prices for resale of NetSolve Services. IBM does not guarantee the
success of any marketing effort it engages in for the NetSolve Services. 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.
27. Headings.
--------
The descriptive headings in this Agreement shall not define or limit any of the
provisions of this Agreement.
28. No Other Promises or Inducements.
---------------------------------
Page 15 of 73
There are no promises or inducements which have been made to either party to
this Agreement to cause such party to enter into the Agreement other than those
which are set forth in the Agreement and its Exhibits. 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 NetSolve Services under
this Agreement. Each party acknowledges that its authorized officers and/or
representatives have thoroughly read and reviewed the terms and provisions of
this Agreement and are familiar with them, and that the terms and provisions are
clearly understood by and have been fully and unconditionally consented to by
each party.
29. Privacy.
-------
In the course of conducting its business, IBM collects and processes certain
personal information about its Customers, Business Partners, prospects,
suppliers and other business contacts. This might include an individual's name,
business address, business telephone number, business e-mail address, and other
relevant business information about the individual. As a global company, IBM's
business processes extend to more than one country and may result in worldwide
processing and use of such personal data internally, and in appropriate
circumstances, outside IBM. Subject to any rights and obligations of either
party with respect to confidential information exchanged under the terms of a
separate written confidentiality agreement between the parties, NetSolve agrees
that IBM may use and share such personal information within its enterprise and,
with other third parties in connection with this Agreement. NetSolve agrees to
make reasonable attempts to fulfill legal requirements necessary to make such
disclosures, use and transfer of such information lawful. Nothing contained in
this Section 29 shall require an employee of NetSolve to consent to the release
of such information and IBM will not release any information related to
individuals NetSolve identifies in writing as objecting to such release.
Accepted and Agreed to:
=============================================================================================================
NetSolve Incorporated International Business Machines Corporation
----------------------------------------------- --------------------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: *
----------------------------------------------- --------------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: *
----------------------------------------------- --------------------------------------------------------
Title: President & CEO Title: Contract Administrator
----------------------------------------------- --------------------------------------------------------
Date: 3-9-01 Date: March 7, 2001
----------------------------------------------- --------------------------------------------------------
Page 16 of 73
Management Services Purchase and Resale Agreement
--------------------------------------------------------------------------------
Exhibit A
Description of Covered NetSolve Services
----------------------------------------
See attached Service Description documents for the descriptions and deliverables
for each of the following:
(1) ProWatch for LANS Remote Network Management Service
(2) ProWatch for WANS Remote Network Management Service
(3) ProWatch Secure Remote Security Management Services
(4) Moves, Adds and Changes (MAC)
(5) Optional Service
ENTIRE EXHIBIT (PAGES 18-50) OMITTED PURSUANT TO CONFIDENTIALITY
REQUEST
Page 17 of 73
Management Services Purchase and Resale Agreement
-----------------------------------------------------------------------------
Exhibit B
List of Software
----------------
As of the Effective Date no software is currently licensed by NetSolve to IBM or
its Customers under this Agreement. IBM and its Customers will have access to
NetSolve's ProWatch Exchange offering as set forth in Exhibit D - Services:
Pricing and Discounts."
Page 51 of 73
Management Services Purchase and Resale Agreement
--------------------------------------------------------------------------------
Exhibit C
NetSolve's Standard Design Review Criteria
------------------------------------------
Use NetSolve-assigned IP address space on all router WAN and loopback interfaces
and as secondaries on all router LAN interfaces.
Avoid static routes. Use static routes only where necessary.
Run a single dynamic IP routing protocol on the WAN. Use either EIGRP or OSPF
(avoid RIP). Use OSPF if there is considerable meshing on the WAN.
For OSPF, use a single OSPF area (zero) if the projected three-year network
growth is limited to 60 or fewer total routers, otherwise, configure multiple
OSPF areas using good OSPF design practices.
For larger networks, the IP addressing scheme should accommodate route
summarization. Use OSPF stub areas and NSSA's where possible.
Configure loopback interfaces with NetSolve managed IP addresses on all routers.
Use routing process network statements for all connected interfaces. Avoid
"redistribute connected". Use passive interface statements to prevent routing
updates on LAN interfaces except where necessary.
Avoid extending WAN routing domain to NON-managed routers. Rather, use a
separate routing process and redistribute.
Use NetSolve-provided router configuration templates (contact NetSolve, Customer
Engineering).
Page 52 of 73
NetSolve Technical Interview:
. ProWatch for WANs
. ProWatch for LANs
. ProWatch Secure
This document initiates the generation of a customer service order that
eventually results in the turn up of active monitoring and management by the
Network Operations Center in Austin, Texas.
---------------------------------------------------------------------------
General Network Information:
---------------------------
Status Existing Network [_] New Network [_]
# of sites/devices at each site____________ # of sites/devices
planned________
Protocols IP [_] Other [_] _______________ (Please list)
Maintenance
Equipment under maintenance Yes [_] No [_]
Contract Expiration Date __/__/__
[_]24x7 4hr [_]8x5 4hrs [_]Next Business Day
[_]None
if other please
list:___________________________________________
List
vendors:_______________________________________________
Out-of-band access to managed devices: [_]Yes [_]No
(dedicated POTS line and modem) __________________________
Page 53 of 73
ProWatch for WANs specific:
--------------------------
Carrier AT&T[_] MCI Worldcom[_] Sprint
Qwest[_] Other[_] ______________________
Transport Frame[_] Private Line (point to point) [_] ATM [_]
Technology
LEC Access 56k[_] T-1[_] DS-3[_]
Router RIP[_] RIP2[_] OSPF[_] EIGRP
[_]
Protocols BGP[_]
Routers Cisco (1700, 2600, 3600, 4500, 7200, 7500)
Current IOS version(s) ______ List Router Models _________
CSU/DSU Adtran[_] Larscom[_] Racal[_] Paradyne[_]
Visual Networks[_] Internal router[_]
Page 54 of 73
ProWatch for LANs specific:
--------------------------
LAN Topology Ethernet[_] FastEther[_] GigaEther[_]
Token Ring[_] FDDI[_] ATM[_]
Switches/Hubs (Cisco Only)
Please list models, indicate total numbers, and types of optional modules
in use:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
____________________________
If other manufacturer's equipment exists and needs to be considered on an
Individual Case basis (please list and will require NMC Ops approval):
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
Page 55 of 73
--------------------------------------------------------------------------------
Additional WAN Requirements:
----------------------------
Internet Connectivity Yes [_] No [_]
Firewall in place Yes [_] No [_]
Network Addressing Schema in place:
_______________________________________________
_______________________________________________
Registered IP Network Yes [_] No [_]
List IP addresses or ranges:
Domain Name ___________
Name of ISP ___________
Vendor Phone ___________
(Number to contact regarding circuit/internet outages)
Carrier ID ___________
(ISP circuit id or account number associated with this Internet
connection)
Dial Backup [_]Yes [_]No
Method [_]ISDN [_]POTS
Ratio of simultaneous remote connections to hub location:
Page 56 of 73
ProWatch Secure specific:
------------------------
ISP name _________________
Account number __________________
Contact info __________________
Dial in information
POTS line # ___________________
Equipment for Out-of-band management
Modem ________________
Smart switch ___________
Serial cabling _________
Cisco SMARTnet Maintenance
Contract number _________________
Provider _________________
▇▇▇▇ (▇▇▇, ▇▇▇▇▇▇▇▇) _________________
Customer 24x7 security contact _________________
Phone_____________________
Email_____________________
Pager_____________________
Cell ____________________
Access Passwords___________________________________________
DNS Server (for use with monthly reports)_________________________
Diagram that depicts logical network connectivity and interface addresses:
(Attach)
Page 57 of 73
For Managed Firewall Service:
PIX Hardware Model _____________________________
PIX hardware version ________________________
PIX code version (5.x.x) _______________________
IPSEC licenses __________________________________
Copy of the installed configuration:
Details of existing crypto map(s): (Attach)
Log host installed (we supply software, not equip) _________________
For ProWatch Secure Services Remote Intrusion Detection Services (RID):
Cisco Secure IDS Model _______________
IDS Hardware version __________________
Copy of IDS config files (managed.conf, packetd.conf) (Attach)
IDS software version___________________
SKIP software license (today) _______________
IPSec license (future) _______________________
IDS signature version installed ______________
Is there a director or centralized management server installed? _________
If yes, will you keep it or replace with NetSolve's ___________
Page 58 of 73
For Managed Internet Router Services:
Router hardware Model _____________________
Router hardware version _____________________
Installed IOS version _______________________
Installed IOS modules _______________________
Installed configurations:
________________________________________________________________________________
Special Requirements:
Management Contract Term [_]2 year [_]3 year
________________________________________________________________________________
Technical Comments or Instructions for Engineering:
________________________________________________________________________________
Page 59 of 73
Management Services Purchase and Resale Agreement
------------------------------------------------------------------------------
Exhibit D
Services: Pricing and Discounts
-------------------------------
ENTIRE EXHIBIT (PAGES 60-66) OMITTED PURSUANT TO CONFIDENTIALITY
REQUEST
Page 60 of 73
Management Services Purchase and Resale Agreement
-------------------------------------------------------------------------------
Exhibit E
Territory
---------
1. IBM may sell NetSolve Services in any area in the Continental United
States.
Page 67 of 73
Management Services Purchase and Resale Agreement
-------------------------------------------------
Exhibit F
SAMPLE CSO
----------
IBM acknowledges receipt of a sample CSO.
Page 68 of 73
Management Services Purchase and Resale Agreement
-------------------------------------------------
Exhibit G
NetSolve Service Level Agreement
--------------------------------
All NetSolve Services
---------------------
If NetSolve fails to deliver any NetSolve Services on or before the
requested delivery date per a CSO accepted by NetSolve (or on or before any
other date requested by IBM and agreed to in writing by NetSolve), NetSolve
shall refund IBM * percent (*%) of the implementation charges for the
affected device if the delivery is five (5) days or less late, and *
percent (*%)of the implementation charges for the affected device if
delivery is more than five (5) days late.
ProWatch for WANS
-----------------
Network Availability
--------------------
Network availability extends up to and including Layer 3 of the OSI Model,
provided that the source of the problem(s) is a Network Component, and is
calculated as follows:
NetSolve represents and warrants that Network Availability, will be equal
to or greater than *% for each month during the SERVICE TERM. In the event
such Network Availability goal for any given calendar month is not achieved
for any particular Customer, NetSolve will credit IBM *% of the ProWatch
FOR WANS charges for that month for that Customer, up to a maximum credit
of $*, if the cause is a carrier outage beyond NetSolve's reasonable
control, or up to a maximum credit of the lesser of $*, or *% of the
monthly pro rata portion of the purchase price of the ProWatch for WANS
charges for that Customer for all other covered causes (see exclusions from
covered causes below). Notwithstanding the preceding, for any failure to
achieve the stated Network Availability which was caused by Downtime at
locations outside the continental United States, the credits will be
calculated by applying the above amounts and percentages to only the
amounts billed for the affected non-US locations.
For purposes of determining whether the monthly Network Availability goal
is met, Downtime excludes outages resulting from (i) VPN sites; (ii)
failures of any facilities, equipment, services, or the like which are not
Network Components, including but not limited to LAN components; (iii)
failure of Customer to perform its responsibilities defined in Exhibit A,
or any fault, negligence, operator error, act or omission of Customer,
including the supplying of inaccurate information to NetSolve; and (iv)
unavailability of Customer personnel to grant NetSolve access to Customer
facilities. For Customer accounts with payments to IBM greater than $* per
month or Customers desiring *% availability, Downtime also excludes outages
resulting from: (v) failure of equipment or carrier facilities at
headquarters / hub locations unless redundant equipment, and redundant and
diverse carrier facilities are in place and operating; (vi) unavailability
of any other required (per the NetSolve-approved
Page 69 of 73
network design) dial back-up or other redundant facilities or equipment;
(vii) failure of equipment not covered by a maintenance agreement with
NetSolve unless Customer or its third party maintenance provider restores
the equipment within agreed upon time frames; or (viii) mass outages,
defined as catastrophic outages of Customer's carrier's network affecting
multiple end users, beyond NetSolve's reasonable control.
ProWatch for LANS and ProWatch Secure
-------------------------------------
WITH RESPECT TO PROWATCH FOR LANS AND PROWATCH SECURE SERVICES, NETSOLVE'S
WARRANTS THAT THE SERVICES SHALL BE PERFORMED IN A WORKMANLIKE FASHION. IN
ANY MONTH IN WHICH CUSTOMER (OR IBM ON CUSTOMER'S BEHALF), IN CUSTOMER'S
(OR IBM'S) SOLE OPINION, BELIEVES NETSOLVE HAS BREACHED THIS WARRANTY,
NETSOLVE WILL CREDIT IBM UP TO * PERCENT (*%) OF THE AMOUNTS BILLED TO IBM
FOR THAT MONTH FOR THE AFFECTED CUSTOMER FOR THE PRO WATCH FOR LAN OR
SECURE SERVICES. IN ORDER TO RECEIVE THIS CREDIT, IBM MUST NOTIFY NETSOLVE
IN WRITING WITHIN THIRTY (30) DAYS FOLLOWING THE END OF THE MONTH THE
SERVICES WERE PROVIDED STATING (i) THE REASON CUSTOMER IS DISSATISFIED WITH
THE SERVICES AND (ii) THE AMOUNT OF THE SERVICE FEES IBM REQUESTS TO BE
CREDITED. UPON RECEIPT OF SUCH NOTICE, NETSOLVE WILL CREDIT IBM THE
REQUESTED AMOUNT (UP TO * PERCENT (*%) OF THE SERVICE FEES BILLED TO IBM
FOR THAT CUSTOMER FOR THAT MONTH) ON THE NEXT BILLING CYCLE. NETSOLVE SHALL
NOT BE OBLIGATED TO CREDIT IBM AN AGGREGATE AMOUNT EXCEEDING TWO MONTHS
SERVICE FEES IN ANY TWELVE MONTH PERIOD FOR ANY GIVEN CUSTOMER, OR AN
AGGREGATE AMOUNT EXCEEDING THREE MONTHS SERVICE FEES IN ANY EIGHTEEN (18)
MONTH PERIOD FOR A GIVEN CUSTOMER, BUT MAY ELECT TO DO SO BASED ON IBM'S
REQUEST.
ProWatch Secure
---------------
BECAUSE OF THE CONTINUOUS EVOLUTION OF THE SOPHISTICATION OF "HACKERS",
NETSOLVE DOES NOT, AND IT IS ACKNOWLEDGED THAT NETSOLVE CANNOT MAKE ANY
WARRANTY OR REPRESENTATION THAT ANY SYSTEM ATTACK OR INTRUSION WILL BE
DETECTED OR PREVENTED, NOR DOES NETSOLVE REPRESENT THAT ANY LICENSED ITEMS
ARE ERROR FREE.
WITH RESPECT TO NETRANGER PRODUCTS PURCHASED FROM NETSOLVE, IF ANY,
NETSOLVE'S LIMITED WARRANTY IS THAT, FOR A PERIOD OF ONE YEAR FOLLOWING
DELIVERY, THE NETRANGER PRODUCTS, UNDER NORMAL USE AND SERVICE, WILL
SUBSTANTIALLY PERFORM ALL OF THE FUNCTIONS DESCRIBED IN THE SPECIFICATIONS
(A COPY OF WHICH SHALL BE PROVIDED TO IBM AT IBM's REQUEST) FOR THE
NETRANGER PRODUCTS. IN THE EVENT NETSOLVE BREACHES THIS WARRANTY, IBM'S
REMEDY SHALL BE, AT NETSOLVE'S OPTION AND EXPENSE, (i) TO HAVE NETSOLVE
CORRECT ANY DISCREPANCY IN PERFORMANCE THAT MATERIALLY IMPAIRS THE
FUNCTIONALITY OF THE NETRANGER PRODUCTS, OR (ii) NETSOLVE SHALL REFUND THE
PRICE PAID TO NETSOLVE FOR THE NETRANGER PRODUCTS.
Page 70 of 73
NETSOLVE ASSUMES NO RESPONSIBILITY TO BACK-UP AND/OR OTHERWISE PROTECT ALL
DATA AGAINST LOSS, DAMAGE, OR DESTRUCTION, EXCEPT FOR SECURITY
CONFIGURATION DATA WHICH WILL BE BACKED-UP BY NETSOLVE.
Page 71 of 73
Management Services Purchase and Resale Agreement
-------------------------------------------------
Exhibit H
TRADEMARK USAGE GUIDELINES
IBM's license to utilize the NetSolve marks is limited to use in the United
States only. Any use outside the United States requires NetSolve's written
approval in advance.
IBM will not alter the marks in any way, including but not limited to color,
capitalization, and spelling.
IBM will in all instances properly identify the NetSolve marks and indicate they
belong to NetSolve.
The following NetSolve trademarks are federally registered. For any use of these
federally registered trademarks, use a superscript symbol "(R)" with the
trademark.
NetSolve(R) ProWatch for LANS(R)
The NetSolve Logo ProWatch Secure(R)
ProWatch(R) ProWatch
Exchange(R)
ProWatch for WANS(R)
The following NetSolve marks are not federally registered. For any use of these
marks, use a superscript "TM" for trademarks and a superscript "SM" for service
marks, as indicated.
Active Map(TM) Canvass(TM)
It is not necessary to use the trademark or service ▇▇▇▇ symbols "TM", "SM", or
"(R)" for each repeated use of the ▇▇▇▇ on a given page, article or
advertisement, but the symbol should be used on the first or most prominent use
of the ▇▇▇▇.
In addition to the use of the appropriate symbol, a short statement must be
included, e.g., in the form of a footnote, declaring the trademark or service
▇▇▇▇ is owned by NetSolve, Incorporated and, for federally registered
trademarks, a statement to that effect. Examples:
"Active Map is a trademark of NetSolve Incorporated for its Web-based
network status map."
"ProWatch Exchange is a registered trademark of NetSolve Incorporated for
its Web-based network management tools."
The roles of the NetSolve brands and IBM brands must be clearly defined. The
NetSolve marks should not be combined with any IBM or other marks in a way that
could be confusing or in a way that they could be implied or understood to apply
to non-NetSolve services. Examples of correct usage:
Page 72 of 73
IBM's Remote Network Management Service provided by NetSolve
IBM's Remote Network Management Service, a NetSolve ProWatch remote network
management service
ProWatch remote network management service from IBM
The marks must not be used as a noun when used in a sentence, but as an
adjective followed by the generic name of the service.
Correct: ProWatch for WANS remote network management service can
provide users with increased network availability.
Incorrect: ProWatch for WANS can provide users with increased network
availability.
Variations of the same ▇▇▇▇ must not be used and every usage of the marks must
be absolutely consistent. Hyphenated variations must not be used and the marks
may not be combined with other words. The marks must not be punctuated or
pluralized except as identified in the list above.
Phraseology that implies that the trademark is other than a unique indicator of
the source of the goods or services must be avoided. For example, in the
following incorrect example it may be construed to imply that there is one
ProWatch line owned by NetSolve Incorporated and another ProWatch line owned by
someone else.
Correct: The ProWatch remote network management and Internet security
services, which are provided exclusively by NetSolve Incorporated,
have been enthusiastically received by IT managers.
Incorrect: NetSolve Incorporated's ProWatch remote network management
and Internet security services have been enthusiastically received by
IT managers.
Do not use the trademark in the plural or possessive form.
Correct: The ProWatch Exchange Active Map is refreshed upon a change
in network status.
Incorrect: ProWatch Exchange's Active Map is refreshed upon a change
in network status.
Do not use the trademark as a verb.
Correct: IT managers can verify the network status by reviewing
ProWatch Exchange.
Incorrect: IT managers can ProWatch Exchange network status.
Page 73 of 73
