EXHIBIT 10.14
IBM
ISV & DEVELOPER RELATIONS
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ISV TEAMING AGREEMENT
This is an ISV Teaming Agreement ("Agreement") between TurboWorx, Inc. and
International Business Machines Corporation ("IBM"). Under the terms of this
Agreement, each of us will commit to specific responsibilities for enabling and
marketing your products on an IBM platform(s). The purpose of this Agreement is
for both parties to be more successful by jointly marketing the Solution to
customers. Each party will sell or license its Solution components to customers
under its own terms and conditions. No royalties or fees are paid by either
party to the other for recognized sales of the products or solutions components.
The following are related agreements between the parties which remain in full
force and effect and remain unmodified by this Agreement unless expressly stated
herein:
1. IBM PartnerWorld Agreement - International Basic General Terms
The complete Agreement between the parties consists of this Agreement and the
following Attachments and Exhibits. If there is a conflict among the terms of
this Agreement and any of its Attachments, the terms of the Attachment prevail:
Exhibit A - Joint Account List
This Agreement is intended to build upon your existing PartnerWorld
relationship. It complements the IBM PartnerWorld Agreement - International
Basic General Terms already in place between us that you acknowledge executing
when you first joined or registered for PartnerWorld. This Agreement replaces
all prior oral or written communications between the parties relating to this
marketing relationship. Neither party has relied on any promises, inducements
nor representations by the other, except those expressly stated in this
Agreement. Both parties accept the terms of this Agreement by signing below.
Once signed, any reproduction of this Agreement made by reliable means (for
example, photocopy or facsimile) is considered an original, unless prohibited by
local law. This Agreement may only be modified by a writing signed by both
parties.
AGREED TO: AGREED TO:
International Business Machines TurboWorx, Inc.
Corporation
By: BY:
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Print Name Print Name
VP and General Manager Solutions
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Print Title Print Title
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Date Date
Any notice required or permitted under this Agreement will be sent to the
representative named below, and shall be effective upon receipt as demonstrated
by reliable written confirmation (for example, certified mail receipt, courier
receipt, facsimile receipt confirmation sheet.) Each party will notify the other
if their representative changes.
IBM's Contract Representative: TurboWorx's Contract Representative:
International Business Machines Corporation TurboWorx, Inc.
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1.0 DEFINITIONS - Capitalized terms in this Agreement have the following
meaning:
1.1 ENABLE means that your Product takes sufficient advantage of the specified
IBM middleware, software and/or hardware in the Solution (as defined below) to
provide at least equivalent performance and functionality to your Product when
used with non-IBM hardware and/or software, and in the case of Linux, with
non-Linux operating systems.
1.2 GENERAL AVAILABILITY (GA) means the date on which the Enabled version of
your Products and its related end-user documentation are first made commercially
available through direct end-user marketing channels. Delivery of pre-release
copies on a fee or non-fee basis to end-users, independent software vendors or
systems manufacturers for testing or adaptation purposes does not constitute
Generally Availability.
1.3 ENABLED PRODUCT is the Enabled and GA version of your Product.
1.4 PRODUCTS are your software applications entitled "TurboWorx Enterprise" and
"ClusterManager." This includes enhancements, updates, fixes, and new versions
of your Product or any other of your software applications that replace your
existing Products.
1.5 SOLUTION is an e-business on demand offering consisting of your Enabled
Products with IBM's zSeries, iSeries, xSeries, and pSeries hardware platforms,
related operating systems, storage devices, DB2, WebSphere Application Server
and TSpaces middleware or software, all successor versions of these products and
services provided by IBM Global Services.
1.6 JOINT ACCOUNT LIST shall mean a list prepared by you and IBM which
identifies the customers to whom both parties agree to market the Solution. Such
list shall include, without limitation, the customer name and address, each
party's account representative (s) assigned to the account, a description of and
the estimated size of the opportunity and the opportunity's IBM technology
components.
2.0 TERRITORY - The Territory for this Agreement shall consist of all the
countries in the world in which IBM is directly or indirectly conducting
business.
3.0 MUTUAL RESPONSIBILITIES
3.1 Each party will name a focal point to coordinate, among other things, joint
marketing opportunities for the Solution. The focal points shall identify any
impediments to the success of this relationship and institute an appropriate
action plan to remove such impediments. The focal points will confer on a
regular basis (but not less than once per quarter) to jointly assess status and
progress under this Agreement.
3.2 Each party will identify a technical coordinator ("Technical Coordinator")
who will coordinate technical activities relative to Enabling your Products to
the IBM technologies in Section 4.2.
3.3 The parties agree to market the Solution to the Joint Account List as
identified in Exhibit A of this Agreement. The Joint Account List may be updated
by mutual consent. A named focal point will provide the necessary customer
information to either add an account or delete an account by e-mail to the named
focal point of the other party. Acceptance by return e-mail is required for the
update to take effect.
3.4 The parties will jointly develop a sales and marketing enablement plan
within 60 days after signing this Agreement. Such plan will address sales
teaming activities in support of generating leads for the Solution. The parties
also agree to discuss, if the milestones in this Agreement are met, expanding
the scope of this relationship including enablement to additional IBM
technologies and increasing IBM market share.
4.0 YOUR RESPONSIBILITIES
4.1 You will lead with IBM technologies and services in your marketing and sales
activities.
4.2 You shall Enable to the IBM technologies as specified in the table below.
Prior to GA, you agree to keep your IBM focal point apprised of your Enablement
progress, status and milestones on a monthly basis. Once Enabled (or if you are
already Enabled), you agree to stay technically current on the IBM platform(s),
where applicable.
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YOUR PRODUCTS IBM TECHNOLOGY GENERAL AVAILABILITY DATE
TurboWorx Enterprise TSpaces GA July 2004
TurboWorx Enterprise DB2 June, 2005
TurboWorx Enterprise WebSphere Application Server September, 2005
TurboWorx Enterprise iSeries w/Linux RH EL AS 3.0 GA July 2004
TurboWorx Enterprise pSeries w/AIX 5.2 GA July 2004
TurboWorx Enterprise pSeries w/Linux SuSE Sles8 GA July 2004
TurboWorx Enterprise zSeries w/Linux RH EL as 3.01 GA July 2004
TurboWorx Enterprise xSeries w/Linux RH EL AS 3.01 GA July 2004
TurboWorx Enterprise xSeries w/Windows 2003, XP GA July 2004
TurboWorx Enterprise IBM FASt T600 Storage device GA July 2004
TurboWorx ClusterManager WebSphere Application Server September, 2005
4.3 You agree to provide a minimum of three (3) customer references for the
Solution. A customer reference is considered fully provided when it is formally
accepted for accepted for inclusion in the IBM customer reference database that
is accessible through the IBM PartnerWorld for Developers web site at
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4.4 You will make commercially reasonable efforts to achieve the following
milestone measurements that demonstrate market traction for the Solution.
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NAME OF ISV SOLUTION MILESTONE MILESTONE REACHED BY
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TurboWorx Enterprise 20 proposals One year after effective contract date
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3 proposals End of Q1 in contract year
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5 proposals End of Q2
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6 proposals End of Q3
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6 proposals End of Q4
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TurboWorx Enterprise 7 pilots: One year after effective contract date:
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1 pilot End of Q1 in contract year
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1 pilot End of Q2
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2 pilots End of Q3
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3 pilots End of Q4
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TurboWorx Enterprise Total:4 closed deals One year after effective contract date
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TurboWorx ClusterManager 10 trials One year after effective contract date
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1 trial End of Q1 in contract year
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2 trials End of Q2
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3 trials End of Q3
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4 trials End of Q4
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TurboWorx ClusterManager Total: 5 closed deals One year after effective date
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You will provide IBM evidence of completion of these milestones at IBM's
request.
4.5 If requested by IBM, you will provide IBM with a reasonable number of
demonstration copies of your Enabled Products at no charge solely for IBM's
marketing and demonstration activities under this Agreement or use in IBM
Innovation Centers.
4.6 You will work with the other members of the Global Grid Forum grid technical
community on defining and establishing the Open Grid Services Architecture
(OGSA) as an industry standard. Once OGSA is adopted as an
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industry standard (published as a standard by a responsible industry standards
body, such as, but not limited to, GGF, IETF, OASIS, W3C, WSRF), where
applicable and mutually agreeable, you will adhere to OGSA and will develop OGSA
Grid Service interfaces to their important functions in addition to, or in lieu
of, existing interfaces. Also, where applicable, you will exploit the OGSA
infrastructure (OGSI) services as the fundamental, system-independent Grid
Computing environment to permit portability and interoperability.
5.0 IBM'S RESPONSIBILITIES
5.1 IBM, in its discretion, will provide the following co-marketing assistance:
i. IBM will provide you with access to information regarding our
offerings via web sites, technical conferences and literature;
ii. IBM will communicate the existence of this Agreement and marketing
relationship via e-mail to our in-country distribution;
iii. IBM will include your material and/or personnel in its Think Grid
Workshops and other ISV-specific outreach programs;
iv. IBM (through its Grid Sales Team) will participate in mutual training
with you for the digital content creation and/or business intelligence
vertical markets.
5.2 IBM will include a reference and description of your Enabled Product(s) (you
will provide the description) in its Global Solutions Directory. This directory
is intended to afford you an opportunity to market your Enabled Product(s) on a
global scale. It includes direct links from IBM to your website, and enables you
to customize your listing with your company and contact information, your
logo(s) and certification ▇▇▇▇(s), as applicable. You will obtain all necessary
approvals for any third party information that you provide, and hereby authorize
IBM to publicly publish this information as we deem appropriate.
5.3 IBM will identify your company as having an IBM marketing relationship in
our internal sales tool and may publish customer references on our internal
websites (e.g., eBusiness Advisor).
5.4 IBM will enroll you in the IBM "Innovate Now" program and will provide you
benefits such as:
i. IBM Software Access Option (provides you access to IBM's Software
Access Catalog through which you may obtain a limited number of
discounted CDs and no-charge downloads of IBM software)
ii. Access to IBM Innovation Centers ("IICs"), subject to scheduling and
hardware availability and at no charge to you, in support of your
Enablement efforts as set forth herein
iii. Out-of-the-box marketing campaigns
6.0 TERM AND TERMINATION - This Agreement is effective once signed by you and
IBM and will remain in effect for one (1) year. After GA, either of us may
terminate this Agreement for convenience with 90 days prior written notice.
Either of us may terminate this Agreement on 30 days' written notice if the
other materially breaches its obligations unless the breach is corrected within
the 30 day notice period. Any terms of this Agreement which by their nature
extend beyond the day this Agreement ends remain in effect until fulfilled, and
apply to either of our successors and assignees.
7.0 INFORMATION - Unless we mutually agree to exchange confidential information
under a separate confidentiality agreement, all information we exchange is
non-confidential. However, both of us agree not to disclose the terms of this
Agreement to a third party without the other's prior written consent, except as
required by law.
8.0 PUBLICITY - You agree to publicly endorse an open integrated solution
strategy built on IBM technology. In addition, you agree to allow IBM to make
public statements about your endorsement of open standards and your intention to
Enable to IBM middleware (and Linux, where applicable). Once you have Enabled
and we have achieved customer wins in the marketplace, we will jointly look for
opportunities to announce or publicize our success in the marketplace.
Otherwise, neither of us will issue press releases or other publicity regarding
this Agreement or this relationship without the other's prior written approval.
9.0 PRIVACY - We both have the right to store contact information on each
other's employees such as names, phone numbers and e-mail addresses in any
country where we do business. Each of us may use such
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information to fulfill our respective obligations under this Agreement, subject
to any signed confidentiality agreement between us.
10.0 LIMITATION OF LIABILITY - Neither of us will be liable to the other for any
economic consequential damages (including lost profits or savings) or incidental
damages under this Agreement, even if advised that they may occur. Each of our
liability for any claim under this Agreement will be limited to actual damages
up to US$50,000.
11.0 ASSIGNMENT - Each party may only assign this Agreement to a subsidiary or
in connection with the sale of all or a substantial portion of its business. Any
other attempted assignment is void. Notwithstanding any other term herein,
either party may terminate this Agreement on thirty days written notice to the
other party if the other party assigns this Agreement to an entity the other
party reasonably deems a competitor.
12.0 GENERAL - Except where specified herein, each party is responsible for its
own costs under this Agreement, including all business, travel and living
expenses. Neither party will bring a legal action against the other more than
two years after the cause of action arose. Each party waives its right to a jury
trial in any dispute. Failure by either party to demand strict performance or to
exercise a right does not prevent either party from doing so later. The parties
are independent contractors. Personnel supplied by either party are not for any
purpose considered employees or agents of the other party. Each party assumes
full responsibility for the actions of its personnel while performing its
obligations under this Agreement and is solely responsible for their direction
and compensation. This Agreement does not create any obligations for the parties
in any way limiting or restricting the assignment of its respective employees.
This is a non-exclusive relationship. Each party may have similar agreements
with others and may independently develop, acquire, and market materials,
equipment, or programs that may be competitive with (despite any similarity to)
the other party's products or services. The laws of New York govern this
Agreement.
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EXHIBIT A - JOINT ACCOUNT LIST
JOINT ACCOUNT LIST shall mean a list prepared by you and IBM which identifies
the customers to whom both parties agree to market the Solution. Such list shall
include, without limitation, the customer name and address, each party's account
representative (s) assigned to the account, a description of and the estimated
size of the opportunity and the opportunity's IBM technology components.
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NAME ADDRESS ACCOUNT REPRESENTATIVE OPPORTUNITY OPPORTUNITY IBM TECHNOLOGY
DESCRIPTION SIZE
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