OEM Software Agreement - International Business Machines Corp. and Vastera Inc.
IBM/OEM SOFTWARE AGREEMENT
BASE AGREEMENT: 4900S10090
Thank you for doing business with IBM. The IBM OEM Software Agreement
("Agreement") describes the items that IBM provides to you to include in your
Offerings. The Agreement is our complete agreement and replaces all prior oral
or written communications between us regarding the transactions in the
Transaction Documents.
By signing below for our companies, each of us agrees to the terms of this Base
Agreement. When signed, each Transaction Document and the Case Agreement form a
separate agreement between the parties. Once signed, 1) both parties agree any
reproduction of the Agreement made by reliable means (for example, photocopy or
facsimile) is an original unless prohibited by local law and 2) all Programs are
subject to it.
Agreed to: Agreed to:
International Business Machines Corporation Vastera, Inc.
By: /s/ Ron K. Owen By: /s/ Phil Balsamo
------------------------------------------------- ---------------------------------------------
Name: Dominic Cavalucci Name: Philip J. Balsamo
--------------------------------------------- ------------------------------------------
Title: Contract Administrator Title: CFO
---------------------------------------------- -------------------------------------------
Date: 3/31/2000 Date: 3/30/2000
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IBM Address: Vastera Address
11400 Burnet Road 45025 Aviation Drive, Suite 200
Austin, Texas 78758 Dulles, VA 20166-7554
Attn: OEM Software Contracts
Internal Zip 4106
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IBM / OEM SOFTWARE AGREEMENT
BASE AGREEMENT: 4900S10090
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1 DEFINITIONS
Capitalized terms in the Agreement have the following meanings. A Transaction
Document may define additional terms; however, those terms apply only to that
Transaction Document.
1.1 Customer is an end user authorized to use the Offering for its intended
use and not for remarketing. Customers do not include you or your
Subsidiaries.
1.2 Distributors are any business articles you use to distribute Offerings.
1.3 Level 1 Service shall mean the service provided in response to the
initial phone call placed by a Customer which identifies and documents
an error in the Programs. This includes problem source identification
assistance, problem analysis, problem resolution, installation planning
information and preventive and corrective service information.
1.4 Level 2 Service shall mean the service provided to analyze or reproduce
the error or to determine that the error is not reproducible. This
includes problem recreation and in-depth technical analysis.
1.5 Level 3 Service is the service provided to isolate the error to a
component level of the Programs. An attempt is to be made to provide an
error correction or circumvention or notification that no correction or
circumvention is available.
1.6 License Agreement is the applicable agreement and/or conditions of use
that IBM provides you for licensing the Programs or your license
agreement as specified in the Transaction Document.
1.7 Maintenance Modifications are revisions that correct errors in the
Programs.
1.8 Offerings are what you market and distribute to Customers only under
your company name and logo and which contain at least the Programs and
the Value-Add Components.
1.9 Programs are one or more of the Programs defined below as specified in
the Transaction Document:
a) Package Programs are individual packages described in the
Transaction Document which contain software media (for example
CD-ROMS, diskettes and other storage mediums) and provided to
you as finished goods which IBM authorizes you to package with
designated Value-Add components described in the Transaction
Document.
b) Embedded Programs are the software programs described in the
Transaction Document that IBM authorizes you to reproduce and
install onto Hardware; and
c) Manufactured Programs are the software programs described in the
Transaction Document which IBM authorizes you to reproduce and
package with designated Value-Add components described in
Transaction Document.
Programs include machine-readable instructions, machine-readable data
such as a data base or multimedia production and Related Licensed
Materials.
1.10 Related Licensed Materials are the Program publications that IBM
generally provides for use by its customers.
1.11 Restricted License is a license to you, your Distributors and Customers
which prohibits the use of the Program(s) except when used in
conjunction with the Offerings. The Transaction Document will specify
the Program(s) for which a Restricted License applies.
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1.12 Hardware System is a nonvolatile storage device or CPU computer system,
Value-Add Component identified in the Transaction Document that you
must include in Offerings.
1.13 Subsidiary is an entity during the time that more than 50% of its
voting stock or, if no voting stock, decision-making power is owned or
controlled, directly or indirectly, by another entity.
1.14 Territory is identified in the Transaction Document, except, in no
event, shall Territory include prohibited countries under the
applicable export laws.
1.15 Value-Add Components are the required product components identified in
the Transaction Document that you must include in Offerings. Your
Value-Add Components must be of higher value than the Programs.
2 AGREEMENT STRUCTURE
2.1 The Agreement consists of:
a) this Base Agreement that defines the basic terms and conditions
of our relationship; and
b) Transaction Documents that specify the details of your purchase
of Programs including the prices, Territory, Value-Add
Components, replication requirements, form, and other applicable
terms. Both parties accept the terms of a Transaction Document by
signing it.
2.2 If there is a conflict among the terms of the documents, Transaction
Document terms prevail over Base Agreement terms. Terms in your
purchase orders and IBM's invoices are void unless identified otherwise
in this Agreement.
3 OUR RELATIONSHIP
3.1 Each party is an independent contractor. Neither party is, nor will
claim to be, a legal representative, partner, franchisee, agent or
employee of the other except as specifically stated in the Agreement.
Neither party will assume or create obligations for the other. Each
party is responsible for the direction and compensation of its
employees.
3.2 Each party may have similar agreements with others. Each party may
design, develop, manufacture, acquire or market competitive products
and services and conduct its business in whatever way it chooses
provided there is no conflict with the Agreement. You will
independently establish prices and terms of Offerings. However, your
terms will include those required by the Agreement.
3.3 All information exchanged is nonconfidential. Where confidential
information must be exchanged, it will be done under a signed
confidentiality agreement. However, you will not disclose the terms of
the Agreement to a third party except a) to your accountants, lawyers
or other professional advisors under a confidentiality agreement or b)
as required by law provided you get all available confidential
treatment for them.
3.4 The Transaction Document will identify coordinators that represent each
party and where to send all notices, which must be in writing. A party
will provide notices to the other when its coordinators change.
3.5 Neither party relies on any promises, inducements, representations made
by the other or expectations of more business dealings except as
expressly provided in the Agreement. The parties intend the Agreement
as the complete and final statement of our business agreement.
3.6 You will maintain relevant records to support invoices issued or
payments made to IBM and to show you have otherwise compiled with the
Agreement. For each Program licensed, these records must include the
Program identification, Value-Add Component model numbers and sales and
returns data. You will retain and make available records for three
years from the date of the related transaction or payment. If IBM
requests, you will make financial records available to an independent
auditor chosen and compensated by IBM. IBM's requests will be in
writing and will not occur more than once each year. The auditor will
sign a confidentiality agreement and will only disclose to IBM any
amounts due and payable for the period examined.
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If an audit discovers that you underpaid IBM, you will pay the amount
due plus interest. Interest accrues from the payment due date. The
interest rate is the lower of 2% per month or the highest interest rate
allowed by law. If you have underpaid IBM by more than 5%, you will
reimburse IBM for all expenses associated with the audit.
On IBM's request, you will provide assurances satisfactory to IBM,
including substantiating documentation, showing that you have been and
are in compliance with the bundling terms of the Agreement. If you are
not in compliance with the Agreement, you will refund any applicable
discount you received from IBM.
IBM may also have other remedies under the law and the Agreement.
3.7 You may not assign or transfer the Agreement or your rights under it or
delegate or subcontract your obligations without IBM's prior written
approval. Any attempt to do so is void.
4 IBM'S RESPONSIBILITIES
4.1 For Packaged Programs, IBM will provide to you:
a) Programs on dates to be mutually agreed to;
b) if applicable, the IBM Technical Support Document and
Administrative Guide;
c) Related Licensed Materials; and
d) service training as specified in the Transaction Document for
your personnel at a location to be determined by Us. IBM is not
responsible for your cost of said training or any associated
expenses.
4.2 For Manufactured Programs and Embedded Programs, IBM will provide to
you:
a) one copy of master replication media of the Programs listed in
the Transaction Document;
b) installation Programs and/or instructions for the Programs, if
applicable;
c) one copy of the Programs with Maintenance Modifications, if any,
released by IBM during the term of the Transaction Document;
d) as applicable, one original copy of each Program License
Agreement and the IBM Technical Support Document and
Administrative Guide;
e) Related Licensed Materials and, if applicable, specific
instructions for its customization; and
f) service training as specified in the Transaction Document of your
personnel at a location to be determined by us. IBM is not
responsible for your cost of said training or any associated
expenses.
5 YOUR RESPONSIBILITIES
5.1 You will:
a) ensure that all Value-Add Components listed in the Transaction
Document work with the Programs before you ship your Offerings;
b) ensure that trademarks, copyrights and other notices included in
Embedded Programs continue to appear on the Program's first
screen when the Customer runs the Program in the Offering;
c) retain all references to IBM and other notices in Programs;
d) include Programs with the Value-Add Components in the Offering;
e) provide the Program code in the form provided by IBM (i.e., in
object code) only as part of your Offering;
f) obtain Customer agreement to the License Agreement;
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g) distribute a copy of the License Agreement, Related Licensed
Materials and marketing materials identified in the Transaction
Documents with your Offering;
h) not internally use Programs other than a reasonable quantity (in
no event more than 20 copies) necessary for you to perform your
responsibilities under this Agreement;
i) ensure that your employees comply with this Agreement and the
License Agreement for Programs they are authorized to use
internally; and
j) incorporate Maintenance Modifications on all Embedded Programs in
a commercially reasonable time period after receipt by you from
IBM but in no event later than 90 days after such receipt.
You will not:
a) reverse assemble, reverse compile or translate the Program code
except as permitted by law without the possibility of contractual
waiver;
b) rent, lease, assign or otherwise transfer the Programs, or any
copy of them; or
c) modify, translate, patch, alter or otherwise change the Programs.
5.2 Your Distributor agreements for Offerings will be consistent with your
obligations under the Agreement. You will ensure that your Distributors
conduct their business in a way that does not conflict with these
obligations. You will contractually require your Distributors to the
following:
a) Programs will not be sold unbundled from Value-Add Components;
b) If the programs are sold unbundled, the Distributor is liable to
you for the full retail price as established by IBM plus the cost
of collection;
c) the Distributor must maintain proof of bundled sale for 3 years;
d) Program licensors will have the right to audit or access your
records to demonstrate compliance for 3 years from the date of
execution of a Transaction Document;
e) sales may be suspended and products recalled by you if the
Distributor is in breach (in addition to other legal remedies);
f) the Distributor's rights and licenses are limited to the
Territory;
g) the Distributor will not reverse assemble, reverse compile or
translate the Program code except as permitted by law without the
possibility of contractual waiver; and
h) if the Distributor sells to another distributor, it must bind
that distributor to the terms of this paragraph.
5.3 For all Package Programs licensed under the terms of the License
Agreement provided by IBM, you will accept returned Programs with the
Value-Add Components from your Customers and refund the amount paid for
(i) defective Package Programs returned to you under the terms of its
warranty; (ii) Package Programs returned when the Customer does not
accept the terms of the License Agreement. You are responsible for
ensuring that your Distributors provide Customer refunds accordingly.
For each return (or disposal at IBM's request), IBM will give you a
credit for the amount you paid for the Package Program.
5.4 In the event IBM determines that a Distributor has breached the terms
of its Distributor agreement, IBM may require you to, and you will,
suspend further sales to and recall Programs from the offending
Distributor at your expense.
5.5 You will promptly suspend distribution of Programs, and you will notify
your Distributor to promptly suspend Program sales to countries IBM or
its licensors identify from time to time as not having sufficient
copyright protection.
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5.6 You will educate and instruct, both formally and informally, your sales
force and Distributors on relevant terms of this Agreement, including
the requirement that Programs may only be licensed when bundled with
Offerings.
5.7 You will market Offerings in a manner which does not enable the
Distributor or Customer to determine a separate cost or price for the
Programs alone.
5.8 On request, you will provide IBM with reasonable access to Offerings
for IBM's review to determine compliance with the Agreement.
6 ORDERS AND PAYMENT
6.1 You will order Packaged Programs by issuing a written purchase order
which identifies internal use quantities and includes the information
specified in the Transaction Document. You will place purchase orders
for Package Programs before you include them in Offerings. You will pay
IBM, as Subsidiary or its or their designee for Package Programs within
thirty (30) days after receiving an invoice.
6.2 For Embedded Programs or Manufactured Programs, you shall provide to
IBM, within fifteen (15) days after the conclusion of each month, a
monthly accounting, and payment based on such accounting, of all
payments accruing to IBM for all copies of Products distributed
externally or installed internally during such month by you or your
Distributors. You shall send a copy of such accounting to OEM
Administration, and with payments to:
International Business Machines Corporation
Branch Office JWQ
Internal Zip 261
150 Kettletown Road
Southbury, CT 06488
Attention: OEM Administration
Each such accounting shall include a statement summarizing for the
preceding month and for each country in the Territory, the following:
(i) the number of copies of the Programs distributed externally or
installed internally; (ii) total revenue for such Programs so placed;
and (iii) an explanation of how the payment was calculated.
6.3 Except as provided in Section 10.2, the price you pay for Programs is
specified in the Transaction Document. All payment will be made in U.S.
dollars. If you do not pay in the time period specified by the
Agreement, in addition to other remedies available to IBM, you will be
invoiced for, and you will pay, interest on late payments at a rate of
the lower of 2% per month or the highest interest rate allowed by law.
If you have not ordered Package Programs or paid for Embedded Programs
or Manufactured Programs for the total committed volume of Programs
specified in the Transaction Document by forty-five (45) days prior to
the end of each term IBM may invoice you for the remaining balance. If
you make timely payments on the invoice, your license rights will
continue as provided in this Agreement. You will pay IBM, its
Subsidiary or its or their designee within thirty (30) days after
receiving this invoice.
6.4 You will pay amounts equal to any applicable taxes resulting form any
transaction under the Agreement unless you can show that you are
exempt. This does not include taxes based on IBM's net income. You are
responsible for personal property taxes for each Package Program from
the date IBM delivers it to the carrier. You will pay any import or
export duties or tariffs resulting form the shipment, import or export
of any Offerings.
If you are exempt, you will provide IBM with valid reseller-exemption
documentation (or equivalent) for each applicable taxing jurisdiction
to which IBM ships Programs before placing any purchase orders.
Otherwise, IBM may charge you all applicable taxes and duties. You will
promptly provide IBM notice if this documentation is revoked or
modified. You are liable for any claims or assessments that result from
any taxing jurisdiction refusing to recognize your exemption. You are
responsible for any applicable taxes and duties on Programs you use
internally.
In the event income taxes are required to be withheld by any non-U.S.
government from any payments required under the Agreement, you may
deduct such taxes from the amount owed IBM and pay them to the
appropriate tax
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authority. You will promptly deliver to IBM an official receipt for
any such taxes withheld or other documents necessary to enable IBM to
claim a USA Foreign Tax Credit. You will make certain that any taxes
withheld are minimized to the extent permitted by the applicable law.
6.5 IBM may withdraw Programs either on a temporary or permanent basis. If
the withdrawal is based on an infringement claim or a significant
Program defect, you will suspend further distribution of Programs. For
other withdrawals, you and your Distributors will only distribute
copies that IBM has previously authorized before the date of
withdrawal. IBM will use commercially reasonable efforts to provide you
notice at least 60 days before a permanent withdrawal and provide you
with as much notice as possible for temporary withdrawals.
6.6 IBM may require you to establish an irrevocable letter of credit in
favor of IBM or to prepay for Programs if you do not comply with your
payment obligations.
7 INTELLECTUAL PROPERTY AND GRANTS
7.1 IBM provides Programs with limited and restricted rights for U.S.
Government users.
7.2 Each party keeps title to its copyrights, patents and any other
intellectual property rights in the materials in your Offerings. IBM
does not transfer title to the copyright in Programs to you.
7.3 IBM will notify you in written guidelines of the IBM, IBM Subsidiary
and its and their licensor trademarks or service marks (Trademarks)
which you are authorized to use. You may not modify the Trademarks in
any way.
7.4 You may use Trademarks only:
a) in conjunction with the authorized sale of all Offerings; and
b) as determined in the written guidelines provided to you.
The royalty normally associated with the non-exclusive use of the
Trademarks will be waived provided they are used only in conjunction
with the sale of Offerings.
You agree to promptly modify any advertising or promotional materials
that do not comply with the guidelines. If you receive any complaints
about your use of a Trademark, you agree to promptly notify us. When
the Agreement ends, you agree to promptly stop using applicable
Trademarks. If you do not, you agree to pay any expenses and fees we
incur in getting you to stop.
Trademarks and any goodwill recurring from them, belong to their
respective owners.
7.5 For Embedded Programs, IBM grants you (and not your Distributors) a
nontransferable, nonexclusive copyright license to install each
Embedded Program onto the specified Hardware Value-Add Component. IBM
grants you (and not your Distributors) a nontransferable, nonexclusive
copyright license to copy Related Licensed Materials associated with
the Embedded Program for inclusion in your Offerings. These licenses
extend to Embedded Programs which include Maintenance Modifications, if
any.
7.6 For Manufactured Programs, IBM grants you (and not your Distributors) a
nontransferable, nonexclusive copyright license to copy each
Manufactured Program for inclusion in your Offering. IBM grants you
(and not your Distributors) a nontransferable, nonexclusive copyright
license to copy Related Licensed Materials associated with the
Manufacturer Programs for inclusion in your Offerings. These licenses
extend to Manufactured Programs, which include Maintenance
Modifications, if any.
7.7 IBM grants you a nontransferable, nonexclusive copyright license for
you to distribute copies of the Programs with the Value-Add to
Customers only as part of Offerings directly or through your
Distributors and as specified in this Agreement. This license extends
to Programs which include Maintenance Modifications, if any.
7.8 Except, as expressly provided in this Agreement or a separate
agreement, IBM does not grant you, your Distributors or Customers
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any rights or licenses under IBM's patents, copyrights, trademarks or
other intellectual property rights, or to prepare derivative works of
the Program.
7.9 Your rights and licenses to the Programs are limited to the Territory.
8 WARRANTY
8.1 All warranties that each party provides under the Agreement are solely
for the other party's benefit. You may not transfer or assign any of
these warranties.
8.2 Each party warrants to the other that:
a) It has the necessary expertise, capabilities and resources to
perform all its obligations under the Agreement; and
b) It is not under and will not assume any contractual obligation
that conflicts with its obligations of the rights granted in the
Agreement.
8.3 Except for Programs, you warrant that you have the rights and licenses
needed to develop Offerings and transfer them to your Distributors and
Customers.
8.4 The only warranties and indemnities provided for Programs are those
granted to Customers in the License Agreement.
8.5 IBM DOES NOT WARRANT TO YOU THAT THE PROGRAMS OR YOUR OFFERINGS WILL
MEET THE REQUIREMENTS OF YOU, YOUR DISTRIBUTORS OR CUSTOMERS, OR THAT
THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS
EXPRESSLY PROVIDED IN THE AGREEMENT, IBM PROVIDES THE PROGRAMS TO YOU
"AS IS" WITHOUT WARRANTY. IBM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF NONINFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
8.6 You will not make any representations or warranties about IBM or the
Programs other than those authorized by IBM.
9 INDEMNIFICATION
9.1 If a third party claims that Programs as furnished by IBM infringes a
patent or copyright in a Territory, IBM will indemnify you against that
claim at IBM's expense.
9.2 If an infringement claim appears likely or is made about a Program in
your possession, you will let IBM:
a) modify or replace it ; or
b) obtain the necessary rights for you to continue to market and use
the Program.
If IBM concludes that none of these alternatives is reasonably
available, you will return or destroy the Programs on IBM's written
request. IBM will reimburse you for the price you paid IBM for
Programs in your possession. This is IBM's entire obligation to you
for these claims.
9.3 If a third party makes a claim against IBM based on your
representations not authorized by IBM, your Offerings or warranties,
you will indemnify IBM against that claim at your expense.
9.4 The indemnifying party will pay any settlement amounts it authorizes
and all costs, damages and attorneys' fees that a court finally awards
if the other party:
a) promptly provides the indemnifying party with written notice of
the claim; and
b) allows the indemnifying party to control and cooperates with it
in the defense of the claim and settlement negotiations.
The other party may participate in the proceedings at its option and
expense.
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10 LIMITATION OF LIABILITY
10.1 Circumstances may arise where, because of a breach or other liability,
one party may recover damages from the other. Regardless of the type of
claim, the following terms apply.
10.2 Each party is only responsible for:
a) payments referred to in INDEMNIFICATION; and
b) the amount of any other actual loss or damage, up to the greater
of $100,000 or the charges for the programs that are the subject
at the claim. This limitation does not apply in payments due
under the Agreement.
Notwithstanding any terms to the contrary in the Agreement, in the
event You or your Distributors fail to comply with the packaging and
retailing obligations required by the Agreement, you are also liable to
IBM (in addition to other remedies available to IBM) for the full
retail price as established by IBM plus the cost of collection for all
Programs you cannot prove were licensed in an authorized bundled
Offering.
10.3 IBM is also responsible for bodily injury (including death) and damage
to real property or tangible personal property caused by the Programs
as provided by IBM. You are also responsible for bodily injury
(including death) and damage to real property or tangible personal
property caused by your Offerings. IBM is not responsible for damages
arising from or related to the use of the Programs outside of the
Territory.
10.4 Neither party is liable to the other for economic consequential damages
(including lost profits or savings) or incidental damages, even if
informed that they may occur. Under no circumstances will IBM indemnify
you or be liable for any of the following:
a) third party claims against you for losses or damages other than
these described in INDEMNIFICATION;
b) loss of, or damage to, any records or data;
c) testing, safety or performance of your Offerings;
d) the use of a Program in other than its specified operating
environment;
e) the combination, operation or use of Program with any other
program, product, data or apparatus;
f) infringement by a non-IBM branded Program alone; or
g) the use of Programs for medical applications or with nuclear
materials or other hazardous activities.
Terms in INDEMNIFICATION and LIMITATION OF LIABILITY are subject to
this subpart.
11 TERM AND TERMINATION
11.1 Each Transaction Document will specify the term of a particular
transaction.
11.2 Either party may terminate this Base Agreement or a Transaction
Document:
a) on sixty (60) days' written notice without cause;
b) on thirty (30) days' written notice for breach, provided that
such termination shall not be effective if the breach is cured
within the notice period; or
c) on written notice if the other party;
1) becomes insolvent or is the subject of any legal insolvency
proceedings;
2) transfers 50% or more of its assets to another organization;
or
3) acts or fails to act in a way that is so serious as to
warrant immediate termination, including but not limited to,
unauthorized sale of Programs, sales of Programs other than
when bundled with Value-Add
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Components, or violation of intellectual property rights.
11.3 Unless IBM has terminated the Agreement for breach, when your rights
and licenses terminate or expire, you and your Distributors may:
a) fill applicable orders received before the termination or
expiration;
b) fill new orders for up to three months to distribute existing
inventory; and
c) keep one archival copy of the applicable Program and Related
Licensed Material. You must destroy all other copies.
11.4 Termination or expiration of the Agreement or any Transaction Document
does not affect previously granted paid-up licenses to Customers or any
rights or licenses granted to you under any other Agreements. Any terms
of the Agreement that, by their nature, extend beyond termination or
expiration (for example, Orders and Payment, Intellectual Property,
Indemnification, Limitation of Liability and Term and Termination) will
survive. These forms will apply to either party's successors and
assigns.
12 ADVERTISING AND MARKETING
12.1 Neither party will issue press releases or other publicity regarding
the Agreement or our relationship under it without the prior written
approval of the other party.
12.2 A Transaction Document will state if a Marketing Review Board (MRB)
applies. In the event a MRB applies, you will comply with the
obligations specified in the Transaction Document. MRB is an IBM
established marketing review board, comprised of representatives of IBM
and its licensors, which determines product packaging and promotional
material requirements for Programs.
13 GENERAL
13.1 Each party will comply with all applicable laws and regulations at its
expense. This includes all export and import laws and regulations. You
will not provide Programs, Offerings or technical data to countries or
individuals if prohibited by law or regulation.
13.2 If any provision of the Agreement is unenforceable at law, the rest of
the provisions remain in effect. The headings in the Agreement are for
reference only. They will not affect the meaning or interpretation of
the Agreement.
13.3 Neither party will bring a legal action against the other more than two
years after the cause of action arose. This does not apply to actions
brought to enforce intellectual property rights or obligations under
INDEMNIFICATION and LIMITATION OF LIABILITY. Both parties will act n
good faith to resolve disputes. Each party waives its rights to a jury
trial in any resulting litigation. Litigation will only be commenced in
the State of New York.
13.4 Except as specifically provided in the Agreement, for a change to the
Agreement to be valid, both parties must sign it. No approval, consent
or waiver will be enforceable unless signed by the granting party.
Failure to insist on strict performance or to exercise a right when
entitled does not prevent party from doing so later for that breach or
a future one.
13.5 The substantive laws of the State of New York govern the Agreement. The
United Nations' Convention on International Sales of Goods does not
apply.
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IBM OEM SOFTWARE AGREEMENT: 4900S10090
TRANSACTION DOCUMENT NUMBER 01
Thank you for doing business with IBM. This is a Transaction Document under the
IBM OEM Software Agreement No. 4900S10090 ("Agreement"). This Transaction
Document becomes effective when signed by both parties.
By signing below for our companies, each of us agrees to the terms of this
Transaction Document. Once signed, 1) both parties agree any reproduction of the
Agreement made by reliable means (for example, photocopy or facsimile) is an
original unless prohibited by local law and 2) all Programs are subject to it.
Agreed to: Agreed to:
International Business Machines Corporation Vastera, Inc.
By: /s/ Ron K. Owen By: /s/ Phil Balsamo
------------------------------------------------- ---------------------------------------------
Name: Dominic Cavalucci Name: Phil Balsamo
--------------------------------------------- ------------------------------------------
Title: Contract Administrator Title: Chief Financial Officer
---------------------------------------------- -------------------------------------------
Date: 3/31/2000 Date: 3/30/2000
---------------------------------------------- -------------------------------------------
IBM Address: Vastera, Inc.
11400 Burnet Road 45025 Aviation Drive, Suite 200
Austin, Texas 78758 Dulles, VA 20166
Attn: OEM Software Contracts
Internal Zip 4106
<PAGE>
IBM OEM SOFTWARE AGREEMENT
TRANSACTION DOCUMENT NUMBER 01
1. PROGRAMS(S)/PRICES: You will pay IBM the applicable amount identified
below for the following Programs(s) that you distribute. For the
purposes of this Agreement, these are Restricted Programs.
------------------- --------------------------------------------------------- -----------------
PART NUMBER DESCRIPTION OEM PRICE
($US)
------------------- --------------------------------------------------------- -----------------
11K5440 WebSphere Advanced Edition $2,826/
Processor
------------------- --------------------------------------------------------- -----------------
11K8443 WebSphere Performance Pack $2,800
------------------- --------------------------------------------------------- -----------------
41L1877 MQSI $19,250/
Capacity Unit
------------------- --------------------------------------------------------- -----------------
11K7574 SecureWay LDAP Directory $273/
Server
------------------- --------------------------------------------------------- -----------------
04L2948 MQSeries V5 CU "OEM 1 Pack" HP-UX, NT, Solaris, $525/Capacity
AIX OS/2 Unit
------------------- --------------------------------------------------------- -----------------
Vastera, Inc. may ship up to 18 copies of MQSI over the term of this
agreement, Programs above include features and components as listed in
the product announcement letters provided to Vastera.
2. OFFERINGS:
--------------------------------- -----------------------------------
VENDOR PRODUCT DESCRIPTION
--------------------------------- -----------------------------------
Vastera, Inc. Vastera Applications
--------------------------------- -----------------------------------
3. RESTATED LICENSED MATERIALS WHICH MUST BE INCLUDED IN OFFERINGS:
a) Related Licensed Materials are included in Package Programs.
b) Related Licensed Materials will be included in your Offering in
the appropriate languages and with the appropriate terms for the
geography's in which it will be distributed.
4. Territory is worldwide with the exception of any country specified as a
prohibited destination in applicable federal, state and local laws,
regulations and ordinances, including the Regulations of the U.S.
Department of Commerce and/or the U.S. State Department, without first
obtaining any requisite U.S. government approval. For your information,
current prohibited countries include Afghanistan, Cuba, Iran, Iraq,
Libya, North Korea, Serbia, Sudan and Syria (for encrypted products).
In addition, the following countries are excluded from the Territory:
Abu Dhabi, Algeria, Bahrain, Belize, Costa Rica, Dominican Republic,
Dubai, El Salvador, Guatemala, Haiti, Honduras, India, Indonesia,
Kuwait, Malaysia, Nicaragua, Oman, Panama, Qatar, Saudi Arabia, and
Tunisia.
5. TERM: The term of this Transaction Document will be six (6) years from
the date the last party executes it and will be automatically renewable
for an additional one (1) year term unless notice of termination is
provided at least thirty (30) days prior to such renewal date. However,
in the event you do not make the payment specified for the Programs,
such renewal is contingent upon your and IBM agreement to revised terms
for the Programs.
6. TECHNICAL SUPPORT: You or your Distributors will provide Level 1
Service and Level 2 Service to Customers. You will include with your
Offerings a conspicuous description of Level 1 and Level 2 Service and
the method and means the Customer shall use to contact your Level 1 and
Level 2 Service. IBM will
<PAGE>
provide Level 3 Service to you during the time that such service is
available to all other IBM customers of the IBM Product.
7. COORDINATORS: The following contact coordinators are authorized to
receive notices under this Transaction Document and the Base Agreement:
Contract Coordinators:
FOR IBM: FOR YOU:
Name: Dominic Cavalucci Name: Phil Balsamo
Company: IBM Company: Vastera, Inc.
Address: 11400 Burnet Road Address: 45025 Aviation Drive
Austin, TX 78758 Suite 200
Dulles, VA 20166
Telephone: 512-823-8664 Telephone: 703-661-9006
Fax: 512-823-8712 Fax: 703-742-4580
8. PAYMENTS:
a) Upon signature of this agreement, IBM will bill you as follows:
Initial purchase will be $350,000 for Programs as specified below
distributed with your Offerings. The payment is due on March 28, 2000.
PRODUCT AMOUNT
WebSphere Advanced Edition or Performance Pack $162,250
SecuredWay LDAP Directory $120,750
MQSI $ 77,000
Total $350,000
b) For calendar years 2001 thru 2005 you will pay IBM 5% of booked
product revenue shipped with IBM content, per year, due 30 days
after the end of each calendar quarter. Booked product revenue
will not include consulting revenue. If outsourcing revenue
includes IBM content obtained under this agreement, then the 5%
payment shall apply to product related outsourcing revenue.
9. Your payments should be submitted to the following address:
IBM Branch Office JWQ
Accounts Receivable - Internal Zip 291
150 Kettletown Road
Southbury, CT
10. RECONCILIATION:
At the end of each calendar year, you will report the number of Program
licenses shipped by specific product.
11. MISCELLANEOUS TERMS/CONDITIONS:
a) Price includes license only and level 3 support only.
<PAGE>
b) No product returns are allowed.
c) The license granted to you is a "Restricted License" for the
products listed above which means they can only be used in
conjunction with your product as listed in Section 2 above.
d) Upgrade Protection is included for all Programs.
e) Vastera will be included in the WebSphere MP-UX beta program and
provided standard technical support associated with the beta
program. On-site support may be provided as mutually agreed.
f) The Secureway LDAP Directory includes a restricted use D82
license for use only with the LDAP Directory. There is not
support planned for Oracle or SQL Server by the LDAP Directory.
g) Vastera may use up to twelve licenses of each product listed in
item #1 above for development and testing purposes only, on any
supported platform, at no additional cost.
h) The quantity of MQSeries Capacity Units which must be purchased
for each system is as follows: For Intel, OEM must purchase (2)
capacity units for each Intel license. For Unix, OEM must
purchase four (4) capacity units for each Unix license. For
Digital, OEM must purchase (4) capactiy units for each Digital
license. For AS/400, OEM must purchase (2) capacity units for
each AS/400.
<PAGE>
IBM/OEM SOFTWARE AGREEMENT
BASE AGREEMENT: 4900S10090
Thank you for doing business with IBM. The IBM OEM Software Agreement
("Agreement") describes the items that IBM provides to you to include in your
Offerings. The Agreement is our complete agreement and replaces all prior oral
or written communications between us regarding the transactions in the
Transaction Documents.
By signing below for our companies, each of us agrees to the terms of this Base
Agreement. When signed, each Transaction Document and the Case Agreement form a
separate agreement between the parties. Once signed, 1) both parties agree any
reproduction of the Agreement made by reliable means (for example, photocopy or
facsimile) is an original unless prohibited by local law and 2) all Programs are
subject to it.
Agreed to: Agreed to:
International Business Machines Corporation Vastera, Inc.
By: /s/ Ron K. Owen By: /s/ Phil Balsamo
------------------------------------------------- ---------------------------------------------
Name: Dominic Cavalucci Name: Philip J. Balsamo
--------------------------------------------- ------------------------------------------
Title: Contract Administrator Title: CFO
---------------------------------------------- -------------------------------------------
Date: 3/31/2000 Date: 3/30/2000
---------------------------------------------- -------------------------------------------
IBM Address: Vastera Address
11400 Burnet Road 45025 Aviation Drive, Suite 200
Austin, Texas 78758 Dulles, VA 20166-7554
Attn: OEM Software Contracts
Internal Zip 4106