Attachment for Primary Support Provider Sublicensing

Transcription

1 IBM Business Partner Agreement Attachment for Primary Support Provider Sublicensing This Attachment to the IBM Business Partner Agreement or IBM Business Partner Agreement for Software Value Plus, as applicable to your IBM Business Partner relationship, governs your participation in IBM s Primary Support Provider offering in which you sublicense Programs to End Users, acquire Program Services, and provide your respective services to your End User. If there is a conflict between the terms of this Attachment and the IBM Business Partner Agreement Attachment for Remarketers of Software Value Plus, the terms of this Attachment will prevail. The IBM Business Partner Agreement Primary Support Provider--Sublicense Requirements ( Sublicense Requirements ) is incorporated into this Attachment by reference. You represent that you have reviewed Sublicense Requirements and that you agree that you accept the terms of Sublicense Requirements by accepting the terms of this Attachment or any other document that incorporates this Attachment or Sublicense Requirements by reference. If there is a conflict between the terms of this Attachment and the terms of the Sublicense Requirements, the terms of this Attachment will prevail. 1. Definitions Maintenance Modification a revision that bypasses, restricts, or corrects a defect in a Program. Program Services Subscription and Support that IBM provides to you. Subscription new-version releases or updates of a Program that IBM may provide to you. Support assistance for routine questions regarding a Program s function (for example, how-to questions regarding installation and code-related questions) that IBM provides or makes available to you on IBM s Internet website. Primary Support Provider a Business Partner that is approved by IBM to acquire certain Program Services from IBM and provide services to its End User and, if approved, sublicense the Program to the End User. 2. Approvals Eligible Programs are the individual Programs and those included in a Product Group you are approved to market, provided you have also been approved to acquire Program Services for the Programs, as specified in the Details of Our Relationship section of the Agreement. Approvals and rights granted under this Attachment are subject to (i) a valid Agreement in effect between you and IBM, (ii) IBM s authorization for you to sublicense a Program, (iii) your achievement and maintenance of the levels of technical skills (for example, certifications and performance metrics) required by IBM under this Attachment for you to provide the services to your End User, and (iv) your compliance with this Attachment. Program licenses are obtained subject to the Agreement. For each applicable Program license you obtain, you are authorized to sublicense the Program and provide the services to your End User and use the Program, subject to the terms of this Attachment. 3. IBM Programs and License Terms IBM Programs are owned by International Business Machines, one of its subsidiaries, or a third party and are copyrighted and licensed, not sold. Programs are licensed under the IBM International Program License Agreement ( IPLA ) and the applicable License Information ( LI ) document that applies to the Program (the License Documents ). The license terms included in the License Documents are referred to in this Attachment as License Terms. IBM makes its License Documents available to you on the following IBM Internet website: BPSVPPSPS /2010 Page 1 of 9

2 3.1 Primary Support Provider s Rights to Sublicense and Use Programs Sublicensing IBM hereby grants you, under its applicable intellectual property rights and subject to the terms and conditions of the Agreement and this Attachment, a revocable, non-exclusive, nontransferable right and license to sublicense the Program solely to the End User. IBM RESERVES THE RIGHT TO REVOKE YOUR RIGHTS TO SUBLICENSE PROGRAMS, WITH OR WITHOUT CAUSE, UPON WRITTEN NOTICE TO YOU. YOUR RIGHTS WILL BE REVOKED EFFECTIVE AS OF THE DATE OF THE NOTICE, AND YOU WILL IMMEDIATELY CEASE ANY FURTHER DISTRIBUTIONS OR SUPPORT ACTIVITIES AS TO THE WITHDRAWN PROGRAMS AS OF SUCH DATE, UNLESS A SUBSEQUENT EFFECTIVE DATE IS SPECIFIED IN THE NOTICE. When you order the Program license, IBM authorizes you to sublicense the Program to the End User, provided you have met the requirements referenced in section 2 Approvals. You acknowledge and agree that IBM has the right to change the specifications of its Programs, to increase or decrease the number and type of Programs that are eligible for sublicensing, or to discontinue the availability of any Program that is included in a Product Group, upon notice. IBM will specify the change or discontinuance by adding or removing the Program from its respective Product Group listing that is made available to you on IBM s Internet website specified in section 2 Approvals. For each Program you sublicense, you agree that you will ensure that the End User acquires the applicable license entitlements according to the licensing requirements specified by IBM for the Program Limited Right to Make and Distribute Copies For each Program license you obtain, IBM will provide to you one copy of the Program, which is the following, including the original and all whole or partial copies: (i) machine-readable instructions and data; (ii) components; (iii) audio-visual content (such as images, text, recordings, or pictures); and (iv) related licensed materials. Subject to your payment of the applicable license fees, during the term of this Agreement, IBM grants to you, a non-exclusive, non-transferable, revocable right to copy each Program (including all trademarks contained in the Program). You may not (i) transfer the Program to another party, except as provided in this Attachment; (ii) use, copy, modify, or distribute the Program except as provided in this Attachment, (iii) reverse assemble, reverse compile, or otherwise translate the Program unless expressly permitted by applicable law without the possibility of contractual waivers, (iv) modify the Program or any proprietary notices or trademarks contained in the Program, or (v) use the Program for your own internal purposes. You may make a sufficient number of copies of the Program and use the Program only as required to fulfill your obligations to IBM regarding Program Services and only in connection with the services you provide to your End User that are associated with the Program Services that IBM provides to you for the respective Program. You may not use the Program for any other services you may provide to your End User. You agree to advise IBM in writing of the number of copies you make for this purpose. Your use of the Program is governed by the terms of the IBM International Program License Agreement ("IPLA") and the additional limitations included in this Attachment and you agree to comply with the terms of the IPLA and the terms of this Attachment accordingly. IBM may withdraw Programs either on a temporary or permanent basis. If the withdrawal is based on an infringement claim, or if IBM no longer has the rights for the Programs, you will suspend further use and distribution of the Programs. For other withdrawals, you may continue to use and distribute the Programs as provided under this Agreement; however, IBM may not make Program Services available for withdrawn Programs Termination of Rights If your right to sublicense and acquire Program Services for any Program is revoked by IBM, you will immediately cease sublicensing and providing associated services for such Program. You further agree to return or destroy, as IBM directs, the original and all whole or partial copies of the Program and any documentation for the associated Program Services that IBM provided to you. If so directed by IBM, you will notify the End User that you are no longer approved by IBM to sublicense the Program and provide associated services for the Program and you will transfer the License Terms for such Programs, and any applicable Proof of Entitlement, ( POE ), (or the equivalent of the POE) directly to the End User, to another Primary Support Provider, or to IBM, and the End User or such Primary Support Provider may, upon the date the License Terms are established directly between the recipient and IBM, exercise such BPSVPPSPS /2010 Page 2 of 9

3 licenses in use of the Program. Such transfers will be subject to the License Terms, at no charge, and without imposing any obligations on the recipient other than those in the License Terms. Your agreements with End Users must enable them to elect to terminate their contractual commitments with you as to their use of the Programs, and to continue use of the Programs (or Program Services therefor) through a license agreement directly with IBM, or with another Primary Support Provider, as applicable. Such transfers will be subject to the License Terms, at no charge, and without imposing any obligations on the recipient other than those in the License Terms 3.2 Primary Support Provider s End-user License Agreement For each Program you sublicense to your End User, you are required and you agree to have a written license agreement with the End User that includes the Program s applicable License Terms, termination provisions, notices, and any additional requirements, limitations, restrictions, and exclusions (your Enduser License Agreement or EULA ), as specified in this section 3.2 Primary Support Provider s Enduser License Agreement, and Sublicense Requirements. You agree that your EULA will not include terms that are less favorable to or protective of IBM s rights than those of this and that your EULA will not conflict with the terms of this Attachment, Sublicense Requirements, or the License Terms except as provided under this Attachment IBM as a Third-party Beneficiary You acknowledge and agree that International Business Machines Corporation is entitled to enforce the provisions of the License Terms for any Program you sublicense to your End User and you agree you will name International Business Machines Corporation as an intended third-party beneficiary, with the right to independently enforce the rights and obligations set forth therein as to Programs, to such terms of your EULA and the LI and obtain the End User s agreement, as specified in the Sublicense Requirements Delivery, Acceptance, and Retention You agree to (i) provide the appropriate License Terms to the End User in a format sufficient to create an enforceable agreement under applicable country law (for example, certain countries require contracting in hard copy format) before the sale is finalized, (ii) obtain the End User s affirmative acceptance of the EULA and any applicable LI before you provide a Program to the End User, (iii) retain documentation, for a minimum of three years, that confirms the End User s acceptance of the EULA and the LI, and (iv) provide such documentation to IBM upon request for IBM to verify your compliance with this section. For each Program, you are responsible for determining the applicable LI and providing the LI to your End User with your EULA. If you have questions regarding the License Terms or License Documents that apply to a particular Program, you agree to contact the designated IBM representative, as specified in the Operations Guide. If you fail to fulfill your obligations under this Agreement to provide the applicable License Terms to an End User or to obtain the End User s acceptance of IBM s License Terms, you agree to reimburse IBM for reasonable costs and other amounts IBM may incur as a result of such failure, including costs and other amounts incurred pursuing remedies against an End User relating to the End User's failure to comply with the respective license terms in your EULA Replication of IBM License Terms You may customize the License Terms of the IPLA for the purpose of your EULA (for example, to fit the format of your document or to be consistent with the terminology of your contract), provided the terms of your EULA are substantively consistent in all aspects with the License Terms of the IPLA Changes to IBM License Terms and Sublicense Requirements IBM s License Terms are subject to change. You agree to monitor the IBM Internet website at for changes and, if IBM s License Terms change, implement the appropriate changes in your EULA on the date the changes to IBM s License Terms become effective. If IBM changes a term of Sublicense Requirements, IBM will notify you of such change and you agree that you will promptly implement a respective change in your EULA after receiving notice of such change. In no case will you sublicense an affected Program until you have made the respective change in your EULA or provided the current LI to the End User, as applicable. BPSVPPSPS /2010 Page 3 of 9

4 3.2.5 IBM s Review of Your EULA IBM reserves the right to periodically review your EULA. You agree that you will make any changes to your EULA that IBM requires regarding its License Terms (for example, to correct errors or terms that may conflict with IBM s License Terms). You acknowledge that your failure to make such changes will be considered a breach of this Agreement and may result in IBM s termination of your rights and approvals to sublicense Programs and provide Program Services. You further agree to retain a copy of each version of your EULA for a minimum of three years and promptly provide a copy of your EULA (including any prior versions) to IBM upon its request End-User Compliance and IBM s Right to Audit You agree that if you learn your End User has failed to comply with a term of your EULA or a LI, you will promptly notify IBM of the noncompliance and take action as necessary to protect IBM s interests in the Programs. You agree to include terms in your EULA that give you and IBM the right to audit the End User s use of a Program, as specified in Sublicense Requirements. You agree to address and resolve any situations with an End User that involve the End User s compliance with IBM s License Terms and enforcement rights for these terms Money-back Guarantee IBM will not provide a money-back guarantee for Programs you sublicense under this Agreement. You are solely responsible for any money-back guarantee you wish to extend to your End User. 4. Program Services 4.1 Initial Contract Period, Renewals, and Reinstatements For a Program you sublicense and distribute to an End User, IBM will provide Program Services to you, as specified in section 4.5, IBM s Responsibilities provided Program Services are in effect for the Program. You are responsible for the results achieved from your use of the Program Services. IBM s Program Services include an initial contract period that begins on the day you obtain the Program license and ends on the last day of the corresponding month in the following year, unless the date you obtain the Program license is the first day of the month, in which case coverage ends on the last day of the month, 12 months from the day you obtained the Program license. You may renew the Program Services for an additional consecutive 12-month period at the price established and specified to you by IBM or your Distributor, as applicable. If you have not continually renewed Program Services for the Program, you may acquire Program Services for a period of 12 months at the Program Services reinstatement price established and specified to you by IBM or your Distributor, as applicable, at the time of the reinstatement. You may acquire Program Services renewal or reinstatement only in support of Programs you sublicense to End Users. For each Program Services contract period, you are responsible for documenting and tracking the effective date and renewal date for the End User. IBM will provide 12 months written notice prior to withdrawing Program Services for a Program. If IBM withdraws Program Services for a particular Program, you acknowledge that IBM may not make renewals available for that Program. IBM has the right to solicit Program Services renewals from End Users, either directly or through another Primary Support Provider, and you agree to transfer the applicable Program licenses to the End User as specified in section Termination of Rights. 4.2 What Program Services Include When Program Services are in effect for a Program: a. IBM will make available to you, and authorize you to upgrade to, the most current commerciallyavailable version, release, or update, if such versions, releases, or update become available; and b. IBM will provide assistance to your designated technical support personnel, as specified in the Operations Guide. IBM assistance may not be available for prior versions or releases of a Program. IBM s assistance is limited to Maintenance Modifications for Programs you have sublicensed to End Users under a current EULA. IBM s Program Services are contingent upon the End User s use of unmodified Programs (except as authorized in writing by IBM) operated in accordance with the Program s specifications. BPSVPPSPS /2010 Page 4 of 9

5 4.3 What Program Services Do Not Include Program Services do not include: a. coverage of Program versions other than the current or immediate prior release of the Program; b. efforts to restore a release of the Program beyond the current or immediate prior release; c. efforts to restore data beyond the most recent back-up; d. operating systems and databases not provided as a Program under this Agreement; e. Program defects that IBM is unable to reproduce; f. custom applications or application templates; g. services not included in the Program Services described in this Attachment (for example, premium and custom support services); h. assistance for (i) the design and development of applications, (ii) the use of a Program in other than its specified operating environment, or (iii) failure of a Program caused by products for which IBM is not responsible under this Agreement; or i. direct assistance to your End Users. IBM will only provide assistance to your designated technical support personnel. 4.4 Warranty for IBM Program Services IBM warrants that it performs Program Services using reasonable care and skill and according to their current description contained in this Attachment. You agree to provide timely written notice of any failure to comply with this warranty so that IBM can take corrective action. THIS WARRANTY IS PRIMARY SUPPORT PROVIDER S EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. IBM does not warrant uninterrupted or error-free operation of Program Services or that IBM will correct all defects. 4.5 IBM s Responsibilities IBM will provide Program Services to you for a period of one year for the initial order of a Program and for succeeding periods based on your or your Distributor s orders to IBM, as applicable, for Subscription and Support renewals or reinstatements you order from IBM or the Distributor, as applicable. IBM is responsible for the supervision, direction, control, and compensation of its personnel and reserves the right to determine the assignment of its personnel. IBM may subcontract Program Services, or any part of the Program Services, to subcontractors selected by IBM Support a. Support will be provided in response to problems encountered with the Programs, as reported to IBM by you; b. Support may include, at IBM s option: (i) giving you access to a database; (ii) bypassing, restricting, or correcting of any defect in the Program that materially and adversely affects the use of the Program as described in its specifications; (iii) delivery of a bypass, restriction, or correction of a defect limited to the current or immediate prior Program release; and (iv) providing unspecified upgrades, updates, and enhancements, provided they are available; c. IBM will respond only to questions and Program defect issues escalated directly from your designated technical support personnel; d. IBM will use commercially reasonable efforts to respond to your service requests according to the priority level of the call, as defined by IBM; and e. IBM will provide Support to you, as specified in the Operations Guide, including but not limited to the following: (1) access to IBM s support resources, provided you log your requests electronically into the call management system IBM specifies, (2) access to escalation and critical-account processes, BPSVPPSPS /2010 Page 5 of 9

6 (3) access to Level 3 support through IBM Level 2 support for Program code-related issues, (4) access to self-help resources, such as knowledge databases and generally-available proven practices. Such access is also available to End Users, (5) access to technical discussion sessions and online self-paced training on specific topics. Such access and training will be provided at no charge to you, (6) known issues and code defects, through standard self-help resources, (7) access to Subscription updates, and (8) performance information regarding your resolution time for support requests you receive from your End User, based on records you provide to IBM and IBM s records of assistance it provides to you Maintenance Modifications IBM will make available to you Maintenance Modifications released by IBM during the term of this Attachment. You agree to incorporate Maintenance Modifications on all Programs as soon as commercially possible Services Outside the Scope of Program Services Any services you request from IBM that are not included in the Program Services described in this Attachment will be subject to a separate agreement with IBM. Information on other services that IBM provides may be found in IBM s Software Support Guide, which is available on IBM s Internet website at Programs No Longer Covered Under Program Services For Programs that are no longer covered under Program Services, IBM will only provide you access to IBM databases containing information on known Program defects, defect corrections, restrictions, and bypasses for the unmodified portion of Programs. IBM will maintain this information for a minimum of one year after you acquire the Program from IBM or your Distributor, as applicable. You agree to be the interface to End Users for this service. 4.6 Primary Support Provider s Responsibilities Marketing, Technical, and Service Level Metrics Requirements You agree you will: a. market service renewals to End Users who have acquired Programs from you, provided you are still authorized to provide Program Services to the End User, prior to the expiration date of your service; b. establish and maintain the requirements, including without limitation skill levels, as specified in this Attachment and the Operations Guide; c. ensure your personnel receive adequate training that will qualify them to perform the tasks required of them under this Attachment, as specified in section 5 Certification and Performance Metrics Requirements ; and d. achieve, at a minimum, the service level metrics specified in the Operation Guide. You acknowledge that your failure to attain these metrics may result in IBM s termination of this Attachment, as specified in section 5 Certification and Performance Metrics Requirements Communication Services Requirements and Remote Access to Programs You are responsible for the installation and maintenance of any common-carrier equipment or communication service required to meet your obligations under this Attachment and will pay any associated charges incurred by either you or IBM in performing our respective responsibilities under this Attachment at your facility or your End User s facility. You will notify IBM of any failure of a Program and ensure IBM is allowed sufficient access to the Program for IBM to perform its responsibilities regarding the Program Services and provide IBM with modem or network access to a Program located on your or your End User s development and production systems to allow IBM to perform the Program Service remotely Consents, Contact Information, and Personally-identifiable Information You agree: BPSVPPSPS /2010 Page 6 of 9

7 a. to obtain any approval or consent necessary for IBM to fulfill its obligations under this Agreement (including, but not limited to, the End User s consent for IBM to access the End User s system or facilities to perform Program Services) and that such approval or consent will not be unreasonably delayed or withheld; b. that you will not send or provide IBM access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that IBM may incur relating to any such information mistakenly provided to IBM or the loss or disclosure of such information by IBM, including those arising out of any third-party claims Service Plan You will develop a service plan to enable convenient, efficient, and timely support of Programs, as specified in the Operations Guide. Your service plan will include, but not be limited to, (i) maintaining a support and demonstration system and process adequate to display the latest release of and provide service for all Programs for which you provide services (ii) an escalation process, (iii) identification and maintenance of qualified technical support personnel and mutually-agreed resource commitments, management contacts, and support location(s), and (iv) logging and reporting procedures for your service activities. Your service plan must be approved by IBM and IBM may review your support systems and processes to verify your compliance with your responsibilities under this Attachment. You will be the initial contact for all service requests from your End Users regarding Programs you sublicense. You will only refer requests to IBM through your designated technical support personnel and processes after you 1) validate that the Program is eligible for Support and 2) perform your respective responsibilities Reporting and Assistance Requirements You agree to: a. provide information and assistance to IBM as IBM may reasonably request from you, including but not limited to (i) submitting to IBM, on an annual basis, a services business plan, in a mutuallyagreed format, as specified in the Operations Guide and (ii) the results of any survey you conduct with an End User regarding the End User s satisfaction with services you provide; b. report all orders for services you receive from and all services you provide to an End User, as specified in the Operations Guide; and c. assist IBM, as IBM may require, to resolve all Program Services requests you refer to IBM Relocation of Programs You agree you will keep IBM informed of the location of the Programs for which you provide the respective services to an End User. You acknowledge that (i) IBM is not obligated to provide Program Services for a Program the End User relocates outside the geographic scope in which you are approved to market the Program and provide the associated service and in which the End User obtained the Program license and (ii) if IBM agrees to continue to provide Program Services for the Program, the Program Services will be subject to the terms (including without limitation those regarding the type and level of support) and pricing of the applicable IBM entity in the country or region to which the Program is moved and IBM may require that an additional written agreement be executed with the applicable IBM entity before Program Services are provided in that country. You agree you will give IBM at least thirty (30) days written notice specifying the new location before a Program is relocated from the End User s designated location Your Agreement for Services with Your End User Prior to providing the services to your End User, you agree that you will (i) enter into a written agreement with the End User (your End-user Services Agreement or EUSA ), (ii) obtain the End User s affirmative acceptance of your EUSA before you provide Program Services to the End User, (iii) retain documentation, for a minimum of three years, that confirms the End User s acceptance of the EUSA, and (iv) provide such documentation to IBM upon request for IBM to verify your compliance with this section. Your End-user Services Agreement must: a. inform the End User and get the End User s agreement that IBM has the right to contact the End User directly to (i) resolve service issues referred to IBM by you or that IBM received through an End User s complaint and (ii) monitor the End User s satisfaction with your services; BPSVPPSPS /2010 Page 7 of 9

8 b. instruct the End User and obtain its agreement not to send or provide you or IBM access to any personally-identifiable information, whether in data or any other form; c. include terms sufficient to evidence your responsibilities to the End User under this Attachment; d. inform the End User and get its agreement that you, and not IBM, are responsible for providing services to the End User; e. obtain the End User s agreement that the End User will contact you, and not IBM, for service of any Program you sublicense and distribute to the End User; and f. inform your End User that you are solely responsible for the delivery and performance of all other products and services that are not the subject of this Agreement, as specified in section 6., Other Products and Services Primary Support Provider s Additional Responsibilities You agree: a. that you are responsible for the supervision, direction, control, and compensation of your personnel; b. to secure master copies of Programs in a manner equivalent to the security for your own proprietary information, and only make copies of the Programs in facilities approved by IBM; c. when Program Services are in effect, to provide Subscription updates and a current version of the Program s applicable LI to your End User; d. to perform Program back-ups in accordance with published documentation, as specified in the Operations Guide; e. not to subcontract or otherwise assign the performance of service activities for the Programs outside of your Enterprise. Any attempt to do so is void; f. to regularly conduct surveys with your End Users, using a methodology acceptable to IBM, to monitor the End User s satisfaction with the Program Services you provide. IBM may independently conduct satisfaction surveys with End Users; g. to report technical data, based on your support of the Programs, on the database IBM specifies to you; h. for any Program you sublicense and distribute, to (i) provide Support to the End User, as specified in this Attachment and (ii) document and track the effective and renewal dates of the contract period for the Program Services for your End User; and i. in order to coordinate critical severity requests that you log with IBM, you will maintain a services response capability that meets the requirements of IBM s current published standards, as specified in the Operations Guide, to answer an End User s questions regarding the Program, operating system, database (including back-up and restore), IBM tools, and any Program licensed by the End User. You may only escalate the call to IBM through your designated technical support personnel that you have specified to IBM. 5. Certification and Performance Metrics Requirements 5.1 Certification Subject to the approvals granted under section 2 Approvals, you must (i) provide and maintain the required technical certifications and (ii) establish the service support system and process and other requirements, as specified in the Operations Guide. The certifications referenced in item (i) above, must be confirmed prior to IBM s acceptance of this Attachment. 5.2 Performance Metrics IBM will establish performance metrics, as specified in the Operations Guide, that you must achieve and maintain in order to be authorized to sublicense Programs and to receive Program Services under this Attachment. 5.3 Failure to Comply with Certification and Performance Metrics Requirements The certification and performance metrics will be reviewed by IBM on a regular basis and your failure to attain and maintain them will be considered a breach of this Attachment. BPSVPPSPS /2010 Page 8 of 9

9 If IBM determines, as a result of any review, that you have failed to achieve and maintain the certification and performance metrics, IBM will notify you of such failure in writing and may give you a reasonable period of time, not to exceed three months, to comply. If you fail to comply within the time IBM specifies, this Attachment will be terminated effective on the date of the notice unless a subsequent effective date is specified in the notice. IBM may not give you another opportunity to comply before terminating this Attachment for a subsequent breach within one year of any prior breach. 6. Other Products and Services You are solely responsible to the End User for any other products or services (including any consulting services) that you provide to the End User with the IBM Programs and Program Services. YOU AGREE TO INDEMNIFY AND HOLD IBM HARMLESS FOR ANY THIRD PARTY CLAIM AGAINST IBM ARISING FROM THESE PRODUCTS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY CONSULTING SERVICES) OR THEIR COMBINATION WITH IBM PROGRAMS AND THE ASSOCIATED PROGRAM SERVICES. 7. IBM s Review of Your Compliance with this Attachment You will maintain, for a period of at least three years, adequate records from which IBM can determine the accuracy of all Program license fees and Program Services charges payable to IBM by you and your compliance with this Agreement. At IBM s request, you will prepare and submit to IBM a report that includes the results of a site audit you have conducted of each of your End Users for the purpose of determining the End User s compliance with your EULA and the Program s applicable LI. Subject to the terms of the Agreement, IBM has the right to audit your compliance with this Attachment. IBM will notify you of any discrepancies revealed in an audit and any amounts due will be payable upon receipt of such notice. If an audit reveals that you underpaid, you agree you will pay the amount due, including a late payment fee, which will be calculated from the date the charges were incurred. The charges will be based on IBM s current rates in effect for the applicable Program on the date of our invoice to you. Details of the late payment fee will be provided to you upon your request at the time you are notified of the underpayment. If any authority requires IBM to include in our invoice to you a duty, tax, levy or fee which they impose, excluding those based on our net income, upon any such charges that result from your underpayment, then you agree to pay that amount. If you have underpaid by more than five percent, you will also reimburse IBM for all reasonable costs associated with the audit. BPSVPPSPS /2010 Page 9 of 9