EXHIBIT 10.13
[LOGO OF IBM APPEARS HERE] Subcontractor Agreement
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We welcome you as our subcontractor.
We are committed to providing our customers with the highest quality products
and services, and establishing and maintaining their satisfaction. As our
subcontractor, we look to you to help us fulfill this commitment.
This IBM Subcontractor Agreement (called the "Agreement") and its applicable
Attachments and Transaction Documents are the complete agreement regarding your
provision of Services and Deliverables, and replace any prior oral or written
communications between us.
By signing below, each of us agrees to the terms of this Agreement. Once
signed, 1) any reproduction of this Agreement, an Attachment, or Transaction
Document made by reliable means (for example, photocopy or facsimile) is
considered an original and 2) all Services and Deliverables you provide under
this Agreement are subject to it.
Agreed to: Agreed to:
International Computex, Inc. International Business Machines
Corporation
By /s/ X.X. Xxxxxxxxxx By /s/ Xxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Name (type or print): X.X. Xxxxxxxxxx Name (type or print):
President
Date: 9-17-96 Date: 9/27/96
Subcontractor address: IBM Office address:
00000 Xxxxx Xxxx. Xxxxx 000 P.O. Box 218
Xxxxxxxxxxxx, XX 00000 Xxxx #0 Xxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
IBM Subcontractor Agreement number:
M620803
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After signing, please return a copy of this Attachment to the local "IBM Office
address" shown above.
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IBM Subcontractor Agreement
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Table of Contents
Section Title Page Section Title Page
1. Definitions.......................2 10. Materials and Inventions............7
2. Agreement Structure...............2 11. Patents and Copyrights..............7
3. How We Engage You for a Project...3 12. Liability...........................7
4. Our Relationship..................3 13. Changes to the Agreement Terms......8
5. Personnel.........................5 14. Termination.........................8
6. Compliance with Laws..............5 15. Waiver of Noncompliance.............8
7. Insurance Coverage................5 16. Electronic Communications...........8
8. Prices, Payment, and Taxes........6 17. Governing Law.......................8
9. Warranty..........................6
1. Definitions
Deliverable is any item, specified in the Statement of Work that you provide
(for example, Equipment, Program Products, or Materials).
Equipment is a machine, its features, elements, cables, or accessories, or
any combination of them. The term "Equipment" includes the documentation
required to install, support, use, and maintain the Equipment.
Materials are work product such as programs, program listings, programming
tools, documentation, reports, and drawings. The term "Materials" does not
include Program Products, but does include modifications of a Program
Product.
Program Product is your commercially available software product and the
documentation required to install, support, use, and maintain it. Our
customer is the licensee (and we are not).
Services are the work you and your personnel perform to complete the scope
of work described in a Statement of Work. Deliverables may result from such
work.
2. Agreement Structure
Attachments
We may specify terms in addition to those in this Agreement (for example,
terms that apply specifically to construction work) in documents called
"Attachments", which are also part of this Agreement. Both of us agree to
the terms of an Attachment by signing it.
Transaction Documents
We will provide to you the appropriate "Transaction Documents" that supply
additional information about your provision of Services or Deliverables, and
which are also part of this Agreement. The following are examples of
Transaction Documents, with examples of the information they may contain:
1. Statements of Work (scope of work and payment schedule);
2. Change Orders (changes to the Statement of Work); and
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3. Exhibit (residency requirements, travel expense guidelines, and
sales/use tax registration numbers). You accept the terms in an Exhibit
by 1) signing it, 2) performing Services, 3) providing a Deliverable, or
4) accepting payment from us,
Conflicting Terms
If there is a conflict among the terms in the various documents, those of an
Attachment prevail over those of this Agreement. The terms of a Transaction
Document prevail over those of both of these documents.
3. How We Engage You for a Project
This Agreement is not a commitment by us to give you any work. When we wish
to engage you as our subcontractor for a specific project, we will issue a
Statement of Work, which both of us must sign. You may not begin work until
we have specifically authorized you to do so in writing.
Changes to a Statement of Work
A Statement of Work may only be modified by a Change Order, which both of us
must sign. Any changes to the Statement of Work may affect the estimated
schedule, payments, and other terms.
4. Our Relationship
Mutual Responsibilities
Each of us agrees that under this Agreement:
1. you are an independent contractor. Neither of us is a legal
representative or agent of the other, and you and your personnel are not
our employees;
2. the term "personnel" includes your employees, professionals you engage
(such as consultants, architects, and engineers), and all of your other
subcontractors. You agree that you are responsible for the work
performed under this Agreement, whether by you or your personnel;
3. you are incorporated or organized as a partnership, authorized to do
business in the State in which Services or Deliverables are provided;
4. we will provide your license agreement for each Program Product to our
customer. We are not a party to the license agreement and do not assume
any obligation for violations of it. We may install and test the Program
Product for our customer. For recurring-charge licenses, we will notify
you when to begin invoicing our customer. If a Program Product is
available under the IBM Cooperative Software Program, the terms of that
agreement will control the distribution of that Program Product;
5. we may independently develop, acquire, and market materials, equipment
or programs that may be competitive with (despite any similarity to)
those you provide;
6. each of us is free to enter into similar agreements with others, set its
own prices, and conduct its business in whatever way it chooses,
provided there is no interference with performing the obligations under
this Agreement;
7. neither of us will offer gifts or gratuities to personnel of the other
or members of their families,
8. neither of us grants the other the right to use its trademarks, trade
names, or other designations in any promotion or publication, without
prior written consent;
9. all information exchanged is nonconfidential. If either of us requires
the exchange of confidential information. It will be made under a signed
confidentiality agreement; and
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10. neither of us will bring a legal action against the other more than two
years after the cause of action arose.
Your Other Responsibilities
You agree not to do any of the following:
1. subcontract any of your obligations under this Agreement, without our prior
written consent;
2. assign, or otherwise transfer, this Agreement or your rights under it, or
delegate your obligations, without our prior written consent. Any attempt to
do so is void;
3. assume or create any obligations on our behalf, or make any representations
about us, other than those we authorize (in writing);
4. disclose the terms of this Agreement without our prior written consent, or
5. conduct your business in a way (for example, failure to maintain the highest
quality professionalism) that adversely affects our reputation or goodwill.
You agree to:
1. perform Services and provide Deliverables as specified in the Statement of
Work, and according to their schedule (if any). You also agree to have a
process-driven approach to your work efforts that is repeatable and
measurable. On our request, you agree to review the approach with us;
2. ensure that Equipment is certified to the applicable national standards by a
nationally recognized testing laboratory, such as the Underwriters
Laboratory (UL);
3. transfer title to Equipment to our customer (and not to us). You are
responsible for risk of loss for a Deliverable until it is delivered to us
or our customer;
4. comply with all requirements issued by us (such as those regarding hazardous
materials, safety, and your performance of work on our premises). You also
agree to dispose of all chemicals and other toxic materials or substances
according to all applicable laws and regulations;
5. not interfere with our customer's business operations while performing under
this Agreement;
6. use information connected with this Agreement only in support of your work
under it;
7. provide us with relevant financial Information about your business
enterprise on request;
8. maintain records according to generally-accepted accounting principles to
support your invoices to us. You agree to retain such records for three
years following the end of the related Statement of Work. You also agree,
upon our request to provide us with relevant records, including proof of
required licenses and permits. We have the right to inspect them and audit
your compliance with this Agreement on your premises during normal business
hours. We also have the right to reproduce such records and retain the
copies. We may use an independent auditor;
9. refund amounts we paid to you (including licenses fees) for Equipment or
Program Products, if we refund amounts our customer paid us for them (for
example, when they are returned); and
10. meet customer satisfaction requirements (if any) specified in a Statement of
Work. You also agree, upon request, to 1) review with us your process for
assessing customer satisfaction and 2) participate in customer satisfaction
programs.
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5. Personnel
Each of us will authorize a person to represent us in all matters
concerning this Agreement. These representatives will be available
throughout the term of this Agreement. Each of us will 1) address all
notices to the other's representative and 2) promptly notify the other in
writing if this person is replaced.
You agree to:
1. ensure that your personnel are adequately trained;
2. have agreements with your personnel to enable you to meet your
obligations under this Agreement. You agree to ensure that such
personnel are licensed under all applicable laws and regulations;
3. be responsible for the supervision, control, compensation, and health
and safety of your personnel;
4. for your personnel who perform work on our premises, provide us
advance written notice regarding those you plan to assign. You also
agree to promptly notify us of personnel you plan to remove; and
5. inform us if you plan to assign a former employee of ours to perform
under this Agreement. We reserve the right not to approve such
assignment.
6. Compliance with Laws
You agree to comply, and assist us in complying, with all applicable 1)
Federal, State, and local laws and regulations (such as those regarding FCC
Class A or B certification for Equipment, and environmental protection) and
2) building codes, ordinances, and standards (such as those issued by
utility companies and public authorities). Upon our request, you agree to
provide us with appropriate Equipment safety and certification
documentation.
In particular, you agree to comply (unless you are exempted) with 1)
Executive Order 11246 (Equal Employment Opportunity) and 2) the
Occupational Safety and Health Act of 1970.
You agree to promptly notify us in writing, of any chaRge of noncompliance
filed against you.
Federal Reporting Requirements
To comply with Federal law, you agree not to employ or compensate any
individuals to perform activities under this Agreement (without our prior
written approval) who were, within the last two years:
1. members of the armed forces in a pay grade of C-4 or higher, or
2. civilians employed by the Department of Defense with a pay rate equal
to, or greater than, the minimum rate for a grade CS-13.
You agree to provide us with any information that we need to comply with
this law.
7. Insurance Coverage
You agree to maintain during the term of this Agreement, and at your
expense.
1. Workers' Compensation insurance, as required by law, including
employer's liability insurance with a minimum limit of $100,000 per
occurrence;
2. general liability insurance, covering bodily injury (including death)
and property damage, arising out of acts or omissions by you or your
personnel. The minimum limit is $1,000,000 per occurrence; and
3. automobile insurance, covering bodily injury (including death) and
property damage. The minimum limit is $1,000,000 per occurrence.
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We may require other types of insurance (for example, property coverage). If
so, we will specify the type and minimum limits.
You agree to 1) name us as an additional insured on each Insurance policy
and 2) provide that the insurer gives us one month's written notice of any
change in, or cancellation of the insurance. Upon our request, you will
provide us insurance certificates reflecting the above.
8. Prices, Payment and Taxes
You agree not to charge higher prices to us than those you charge to others
who are similarly situated. You agree to give us the benefit of any price
decrease for 1) Equipment and Program Products not yet installed and 2)
recurring-charge licenses, from the date a price decrease becomes effective.
We will pay you the price specified in the Statement of Work. That price
will include all applicable taxes, but not those based on your net income.
We will also reimburse you for expenses (such as those for travel), provided
you have obtained our prior written approval and adhered to our guidelines.
You are not eligible for payment under this Agreement when we approve you as
an IBM Business Partner and those activities duplicate any of your
subcontractor activities. We may withhold payment if 1) we find the Services
of Deliverables to be unsatisfactory or 2) you otherwise fail to comply with
the terms of this Agreement.
As a reseller of Equipment, Program Products, and some services (for
example, Multiple Vendor Services), we are not required to pay, and you
agree not to charge us taxes for those items. Upon your request, we will
provide supporting documentation.
You agree to pay all transportation charges required for the shipment of
Equipment and Program Products (if applicable) to the location we specify.
You agree to submit invoices within one month following completion of the
work specified in the Statement of Work. We will pay you following our
receipt of an acceptable invoice and supporting documentation (such as
itemized list of reimbursable expenses).
9. Warranty
You warrant that:
1. Services are performed
a. in a skillful, competent, and workmanlike manner,
b. according to the description in the Statement of Work, and
c. to meet any specific conditions (called "Completion Criteria")
identified in the Statement of Work:
2. Equipment conforms to its specifications, and is free from defects in
materials and workmanship; and
3. each Program Product and Material conforms to its specifications.
You agree that for each Deliverable, the above warranties will be in effect
for a period of one year from its date of installation or acceptance (for
example, acceptance of an architectural drawing). If Services or
Deliverables do not comply with their warranties, you agree to correct the
deficiency without charge and in a timely manner. You agree that we may pass
your standard warranty for a Deliverable through to our customer who may
deal directly with you. If there is a conflict between the above warranties
and your standard warranty, the more favorable warranty applies. You agree
to offer an optional post-warranty maintenance service for Equipment or to
cooperate with us on arrangements for such service.
In addition, you warrant that:
1. each Deliverable does not violate anyone's intellectual property or
other rights;
2. you have the right to license each Program Product or Material, or to
grant us the rights in it; and
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3. you have tested each Program Product or Material for harmful code and
removed any such code.
10. Materials and Inventions
All Materials you create under this Agreement are Works Made for Hire. If
any of the Materials do not qualify as Works Made for Hire, you hereby
assign to us all right, title, and interest (including ownership of
copyright) in such Materials. Such assignment allows us to obtain in our
name, copyrights, registrations, and similar protections, which may be
available in the Materials. You agree to assist us, if required, to perfect
these rights. You will provide us with at least one copy of such Materials.
If any preexisting materials are contained in the Materials you provide to
us, you grant us 1) an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, distribute
(internally and externally) copies of, and prepare derivative works based
on, such materials and 2) the right to authorize others to do any of the
former.
Inventions
An "Invention" is any idea, concept, design, technique, invention,
discovery, or improvement, whether or not patentable, that any of your
personnel first conceives or reduces to practice while performing under
this Agreement and for which a patent application is filed.
You grant us 1) an Irrevocable, nonexclusive, worldwide, paid-up license
(under any patent covering an invention) to make, have made, use, lease,
sell or otherwise transfer, any apparatus, and to practice any method,
covered by an invention and 2) the right to authorize others to do any of
the former.
11. Patents and Copyrights
You will indemnify us for all damages, liabilities, losses, and expenses
arising out of any claim that a Deliverable infringes a patent or
copyright. If such a claim is made, or appears likely to be made, you agree
to enable our and our customer's continued exercise of all rights granted
in the Deliverable, or modify or replace it. If we determine that none of
these alternatives is reasonably available, the Deliverable will be
returned to you. In addition to your obligation to indemnify us, you agree
to refund the money we paid you for it.
12. Liability
Under no circumstances are we liable for economic consequential damages
(including lost profits or savings) or incidental damages, even if we are
informed of their possibility.
You are responsible for:
1. obligations referred to in the patent and copyright terms described
above. You are also responsible for any damages associated with the
infringement or violation of our intellectual property rights by you or
your personnel;
2. bodily injury (including death), and damages to real property and
tangible personal property, arising out of your or your personnel's
performance under this Agreement; and
3. any other actual loss or damage, including any reprocurement costs we
incur associated with your breach of this Agreement.
Except for the obligations stated above, under no circumstances are you
liable for economic consequential damages (including lost profits or
savings) or incidental damages, even if you are informed of their
possibility.
You will indemnify us for claims by others made against us arising out of
your performance under this Agreement or as a result of your relations with
anyone else.
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13. Changes to the Agreement Terms
In order to maintain flexibility in our relationship, we may change the
terms of this Agreement by giving you one month's written notice. However,
these changes are not retroactive. They apply, as of the effective date we
specify in the notice, only to Statements of Work that are 1) signed on or
after the date of the notice and 2) for on-going transactions (such as
Multiple Vendor Services).
14. Termination
We may terminate a Statement of Work with or without cause, on written
notice. Upon receipt of such notice, you agree to stop work immediately.
You agree to make available to us all Deliverables, including work-in-
progress(such as notes, drafts, and sketches). We will pay you for all
Services and Deliverables we accept. Such payment constitutes our entire
liability to you.
Otherwise, a Statement of Work terminates when your obligations under it
are met.
You may terminate this Agreement effective upon the termination or
completion of all Statements of Work under it.
Any terms of this Agreement, which by their nature extend beyond its
termination, remain in effect until fulfilled, and apply to respective
successors and assignees.
15. Waiver of Noncompliance
Failure by us to insist on strict performance or to exercise a right when
entitled, does not prevent us from doing so at a later time, either in
relation to that act or any subsequent one.
16. Electronic Communications
Each of us may communicate with the other by electronic means. Each of us
agrees to the following for all electronic communications:
1. an identification code (called a "USERID") contained in an electronic
document is legally sufficient to verify the sender's identity and
the document's authenticity;
2. an electronic document that contains a USERID is a signed writing; and
3. an electronic document or any computer printout of it, is an original
when maintained in the normal course of business.
17. Governing Law
The laws of the State of New York govern this Agreement.
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