IBM Digital Twin Exchange Provider Agreement
BY ACCESSING, BROWSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING THE IBM DIGITAL TWIN EXCHANGE PLATFORM, PROVIDER AGREES TO THE TERMS OF THIS AGREEMENT INCLUDING APPLICABLE COUNTRY REQUIRED TERMS IN APPENDIX A. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF PROVIDER, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND PROVIDER TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS, BROWSE, OR CLICK ON AN “ACCEPT” BUTTON.
This Digital Twin Exchange Provider Agreement (the “Agreement”) sets forth the terms and conditions under which Provider may offer one or more Digital Twins through the IBM Digital Twin Exchange (“Exchange”).
Agreement Structure
The complete agreement governing Provider’s Digital Twin(s) in the Exchange consists of this Agreement, including applicable country required terms in Appendix A, and any applicable attachments or addenda hereto. This Agreement governs all Digital Twins offered by Provider in the Exchange. This Agreement and applicable attachments supersede any prior agreements, discussions or representations regarding Provider’s participation in an Exchange.
Definitions
Account Data – information that a Provider gives to IBM to enable Provider’s use of the Exchange or information that IBM collects using tracking technologies, such as cookies and web beacons related to the Provider’s use of the Exchange. Account Data does not include Business Contact Information (BCI) or personal data that IBM processes as a processor or sub-processor.
Affiliate – any entity that Controls, is Controlled by, or is under common Control with, a party to this Agreement. “Control” and its derivatives means: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the aggregate of all voting equity interests in an entity, (b) the right to direct its affairs, and/or (c) the right to control the composition of its board of directors or equivalent body.
Business Contact Information – information including name, business telephone, address, email and user IDs that a provider obtains or requires in order to enable legitimate business communications with Provider.
Error – a) any mistake, problem or defect (“bug”) that causes a Digital Twin to malfunction or fail to meet its specifications; or b) any incorrect or incomplete statement or diagram in the related documentation that causes a Digital Twin to be materially inaccurate or inadequate.
Exchange Fees – the annual membership fees, paid by Provider to IBM for the opportunity for Provider to list its Digital Twin(s) on the Exchange
IBM Brand Approval – approval from IBM that a Digital Twin is aligned with an IBM brand’s offering portfolio.
IBM Cloud – the IBM IaaS and PaaS offerings made available to customers under the IBM Cloud (formerly known as IBM Bluemix) brand through an IBM website and that include a catalog of IBM and non-IBM services available for use or purchase by those customers. IBM Cloud is currently available at https://console.ng.bluemix.net.
IBM Exchange – the Internet environment hosted by or on behalf of IBM that includes: (i) the catalog of Digital Twins from IBM and Providers that are available to Users to acquire and use, available at https://www.ibm.com/Exchange/cloud/us/en-us?lnk=mp or a successor url; and (ii) associated tools provided by IBM such as Integration APIs.
Integration APIs – documented technical programming interfaces made available by IBM, including APIs for user management, provisioning, upgrade, downgrade, import and sync, or APIs for integrating with other marketplaces or systems.
Net Revenue – the revenue recognized by IBM or an IBM Affiliate calculated using applicable discounts, refunds, offsets and other adjustments determined in accordance with the then current revenue recognition policies of IBM and its Affiliates and the controlling accounting principles, exclusive of applicable Taxes on the Digital Twin or the User’s payments to IBM.
Digital Twin – a virtual model of a process, product or service made available by Provider electronically to Users in an Exchange in [insert file format requirements here?].
Digital Twin Fees — the fees, if any, determined by the Provider in its sole discretion, associated with the use of a Digital Twin by a User.
Provider – the non-IBM party to this Agreement who has accepted the terms of this Agreement and makes its Digital Twin(s) available in the Exchange.
Provider Fees – the fees payable by IBM to Provider under this Agreement, as set forth in Section 6.1 of this Agreement.
Provider Material – Provider’s trademarks,Digital Twin and Digital Twin listing information and content, and other promotional material, documentation, and other information related to the Digital Twin.
Support – software maintenance, updates, upgrades, technical support and service provided by Provider electronically to a User when a possible Error is identified in Provider’s Digital Twin.
Taxes – any and all applicable taxes, charges, fees, levies or other assessments imposed or collected by any governmental entity worldwide or any political subdivision thereof and however designated or levied upon or with respect to the transactions and/or payments to be made under or in connection with this Agreement, including without limitation sales, use, transfer, goods and services or value added tax or any other duties or fees; exclusive, however, of any taxes imposed upon the net income or capital of the Provider and any taxes in lieu of such net income taxes and any other taxes which are to be borne by the Provider under law.
User – a user of an Exchange that accesses the Digital Twins.
Digital Twin and Digital Twin Listings
Digital Twin Criteria
Each Digital Twin must meet the following criteria in order to be published in the Exchange:
a) The Digital Twin and Digital Twin listing shall be at all times in compliance with all applicable legal requirements in all countries where the Exchange is available, including without limitation the European General Data Protection Regulation (EU/2016/679) (“GDPR”);
The Digital Twin listing made available on the Exchange must not refer to or promote the Digital Twin on another cloud environment where it may be usable.
For any Digital Twin, Provider must provide IBM with links to the end user terms (for example, terms of service or an end user license agreement) and privacy policy for the Digital Twin;
The Digital Twin API library (if applicable) is exposed to Users;
The Digital Twin cannot be dependent upon any IBM offering that has been withdrawn from support; and
As the Exchange expands to include local geographic communities, there may be additional requirements and selection criteria that the Digital Twin will need to be meet in order to participate in such geographic community. All geographic communities require Digital Twins to be sold to Users in local currency and local language.
Digital Twin Listing and Publication
Provider will work cooperatively with IBM to publish its Digital Twin listing within ninety (90) days of entering into this Agreement using the tools and process provided within the Exchange. Provider is responsible for all content it uploads into the Exchange, including any Provider Material, which comprises the Digital Twin listing. Provider shall obtain all necessary licenses and consents needed to create and publish the Digital Twin listing in the Exchange.
Notwithstanding the foregoing, IBM has the right but not the obligation to review and approve the Digital Twin, Digital Twin listing and integration compliance before such Digital Twin is made available to Users. IBM’s review, approval, and/or publication of a Digital Twin listing will not relieve Provider of responsibility for: (i) developing Digital Twins that are safe, free of defects in design and operation, (ii) compliance with applicable laws and regulations, or (iii) any documentation, Support, or warranty of the Digital Twin. IBM may require updates or make changes to the Digital Twin listing before publishing the Digital Twin listing to the Exchange as necessary to maintain overall consistency and integrity of the Exchange. IBM will notify Provider of any changes required to the Digital Twin listing if the Digital Twin listing is already published on an Exchange. If Provider does not accept IBM’s proposed changes to the Digital Twin listing, Provider may choose to withdraw the Digital Twin listing from the Exchange as set forth in Section 10 of this Agreement.
Once a Digital Twin listing is published, Provider may have the opportunity to also include that Digital Twin listing in other IBM marketplace catalogs, upon the parties’ mutual agreement.
Support
Provider is solely responsible for its Digital Twin and for providing any related Support if applicable for its Digital Twin for as long as the Digital Twin listing is offered on the Exchange.
IBM will provide support to Provider and Users for the Exchange. IBM will provide contact information for support for the Exchange.
In the event IBM receives a support inquiry related to Provider’s Digital Twin, IBM will either contact the Provider or will direct the User to contact Provider directly.
Provider EULA
In each Digital Twin listing, Provider will provide all applicable terms of use and/or end user license agreements (“EULA(s)”) and all use of the Digital Twins will be subject to such EULA. All EULAs governing Digital Twins will be directly between the applicable User and Provider. IBM is not a party to such EULA; however, IBM reserves the right in its sole discretion to review Provider’s EULA and suspend or remove the Digital Twin listing if IBM deems the terms of such EULA to be inadequate.
At a minimum, the EULA will:
grant Users the right to use Provider’s Digital Twin for the specified length of time;
specify that IBM’s billing and payment terms apply rather than Provider’s;
set forth Provider’s security and privacy policies; and
not impose any requirements or liability upon IBM.
In addition to Provider’s EULA, a User must agree to IBM’s standard payment and fulfillment terms, which set forth terms related to order fulfillment, charges, payment and taxes. Such terms explicitly state that (i) the Digital Twin is provided by a third party provider (not IBM), (ii) the terms of the applicable third party provider EULA apply for use of such Digital Twin, and (iii) IBM is not a party to any such EULA or responsible for the delivery or use of the Digital Twin.
Responsibilities
Provider Responsibilities
Provider will:
ensure that the Digital Twin performs to the level described, and any statements made for references, Support capability, performance, security, service level agreements, or other business or technical capabilities are accurate and supported by Provider;
be responsible for development, implementation, full testing, and management of the Digital Twin and all costs associated therewith;
be responsible for providing Support to Users as applicable;
be responsible for creating and maintaining Provider Material regarding the Digital Twin. Provider will review and update, as necessary, all Digital Twin listings at least annually. If Provider does not review and update its Digital Twin listing(s) annually, IBM may remove or suspend the applicable listing;
securely manage i) any customer information received from Users, ii) passwords for Users and iii) any other access identifications or credentials used for its Digital Twin, and ensure that none of the foregoing is provided to IBM except as may be required for IBM to fulfill an order for a Digital Twin as described in this Agreement;
maintain physical, technical and administrative security procedures and practices equal to or better than industry standards for ensuring protection of the Digital Twin, including content stored in the Digital Twin, from unauthorized access, destruction, use, modification or disclosure;
not use the Exchange for unlawful, obscene, offensive or fraudulent purpose or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, viruses or harmful code, or violating third party rights;
not include any confidential information in the Exchange or its Digital Twin listing;
not include any personal data, as defined by GDPR, in the Digital Twin;
not perform any technical security test, penetration test, or vulnerability scan of the Exchange; and
obtain all necessary consent to use, provide, store and process Provider Material, including but not limited to consent of data subjects necessary to comply with data privacy laws such as GDPR, if applicable, and will grant IBM permission to do the same.
IBM Responsibilities
IBM will:
provide reasonable technical assistance as required for creating the Digital Twin listing in the Exchange and, if applicable, integrating the Digital Twin with the Integration APIs;
review and publish the Digital Twin listing to the Exchange if approved by IBM, as described in Section 3 of the Agreement;
provide Users with access to Provider’s EULA for the Digital Twin at or before the time of purchase;
For a Digital Twin, (i) enable Users to purchase a license, subscription, or otherwise access the Digital Twin on the Exchange, (ii) submit details for any such orders to Provider to enable Provider to provision an account, (iii) bill Users for Digital Twin Fees, if any (iv) collect Digital Twin Fees, if any, remitted from Users for use of such Digital Twin; and (v) pay Provider the Provider Fees, if any, as described in Section 6.1 of this Agreement;
provide notice to Provider if the terms and conditions of this Agreement change;
provide physical access security for the Exchange; and
provide User access and authorization controls for the Exchange.
License Grants
License Grants to IBM
Right to Publish and Sell Digital Twin Listing and Use Provider Material
Provider grants IBM and its Affiliates a worldwide, royalty free, fully-paid up, nontransferrable, non-exclusive right and license to 1) take all actions necessary to publish its Digital Twin listing and all applicable Provider Material in the Exchange, including testing to ensure proper integration of the Digital Twin listing, 2) use Provider Material anywhere within the Exchange, and 3) make non-material changes to the Digital Twin listing or Provider Material such as correcting typos, grammatical errors or broken urls.
License Grant for Digital Twins Only
Provider grants IBM a worldwide, royalty-free, fully-paid up, non-transferable, nonexclusive right, directly or through its Affiliates, or its or their distributors including without limitation IBM business partners, to offer and sell Integrated Digital Twin subscriptions or licenses, as applicable, to Users through any sales channel, including face to face sales or via IBM business partners, and to enable such Users and their authorized personnel or authorized third parties to access and use the Digital Twin for productive uses.
Intellectual Property Ownership
IBM acknowledges that the Digital Twin and Provider Material is solely the property of Provider and its licensors, and nothing in this Agreement confers upon IBM any intellectual property rights in the Digital Twin or Provider Material except as explicitly set forth herein.
License Grant to Provider
During the term of this Agreement, IBM grants Provider a worldwide, non-exclusive, paidup right and license to access and use Exchange APIs and related documentation made available by IBM through the Exchange for the sole purpose of integrating Provider’s Digital Twin listings into the Exchange for access by Users. Except as set forth in this Section, IBM and its licensors retain exclusive right, title and interest in and to (a) the Exchange, (b) all visual interfaces, text, graphics and other content included on the Exchange; (c) all underlying technology, software, data, and other materials that implement and/or operate the Exchange (including Integration APIs if applicable); (d) any and all modifications and enhancements and derivative works made to (a) through (d); and (e) any and all intellectual property rights in or related to (a) through (d).
Fees
Fees for Digital Twins
Provider will determine, in its sole discretion, the Digital Twin Fees excluding applicable Taxes, using the payment plan options available in PWB. In countries where IBM is responsible under applicable laws for reporting and remitting Taxes to tax authorities on the provision of Digital Twins to Users, IBM will determine the rate of Taxes to be added to the Digital Twin Fees and charged to the User. The party responsible under applicable local laws for reporting and remitting Taxes to the tax authorities on the provision of Digital Twins to the User assumes the responsibility to issue a tax compliant invoice to the User.
IBM will be responsible for billing Users the Digital Twin Fees and collecting any payment remitting from Users, including all applicable Taxes in countries where IBM is responsible for reporting and remitting Taxes to the tax authorities.
Upon IBM’s receipt of payment from Users and where applicable laws require, subject to IBM’s receipt of a valid tax invoice from the Provider, payment of Provider Fees will be made within sixty (60) days after the close of each calendar quarter, unless the last day of the quarter falls on a weekend or holiday, in which case it will then be made by the next business day. All payments will be made in local currency.
Provider Fee payments, if any, will be calculated based on the Net Revenue in the applicable calendar quarter for the licenses or subscriptions to, and/or access and use of, the Digital Twin. Provider Fees shall equal eighty percent (80%) of the Net Revenue of Digital Twin Fees for a given calendar quarter, less: i) any non-refundable and/or noncreditable taxes or other government levies withheld on or deducted from payments made by Users to IBM; ii) any non-refundable and/or non-creditable taxes or other government levies applicable to, withheld on or deducted from payments or charges made by IBM affiliates to the IBM entity responsible for paying the Provider Fee to the Provider; and (iii) any non-refundable and/or non-creditable taxes or other government levies applicable to, withheld on or deducted from payments between IBM Affiliates for use of the Exchange related to this Agreement.
Provider Fees will be paid less adjustments and refunds due to IBM. For example, if a User fails to pay all or a portion of the Digital Twin Fees due, IBM may adjust Provider Fees for the applicable quarter.
6.2 Refunds and Credits for Digital Twins
IBM will be the contact for refunds, credits and billing disputes from Users. IBM will make decisions regarding credits and refunds in its sole discretion, and will inform the Provider in the case a credit or refund is issued.
If IBM provides a refund or credit to a User, IBM will make appropriate adjustments to the Provider Fees and any applicable tax payments to reflect the credit or refund.
and Exchange Fees [to be inserted]
Annual membership fees during the Term – cost – less any applicable discounts –
When they’ll be invoiced
How they’ll be invoiced
No refund for the fees,
wanted to stay with the CPI + 3% price increase
Taxes
Agree to a beta release,
User Complaints
Provider will be responsible for receiving, handling, and resolving all User complaints about the Digital Twin, including complaints regarding service level agreements, performance, outages, response times, features and function of the Digital Twin, and any other User satisfaction issues for the Digital Twins. Provider shall respond to all User complaints and other inquiries in a timely manner.
Taxes
Each party is responsible for complying with the collection, payment and reporting of all Taxes imposed by any governmental authority applicable to its activities in connection with the sale, lease, delivery or usage of a Digital Twin under this Agreement. All charges between IBM and the Provider are exclusive of applicable Taxes. If any Taxes are payable in relation to these supplies (i) the applicable Taxes shall be added to any charges payable; (ii) payee shall issue an invoice or other billing documentation to the payor that complies with applicable tax laws; (iii) as applicable, payor shall pay or reimburse the amounts of such Taxes on or before the due dates for satisfaction of such invoices.
Situations may arise where governmental authorities require IBM to withhold from amounts collected from Users for payment to the Provider. In such cases, IBM may withhold the amount of Taxes due from payments to be made to the Provider under this Agreement and remit the net proceeds thereof. IBM agrees to timely remit all Taxes withheld to the appropriate governmental authority. Upon request, IBM will provide the Provider with documentation evidencing the withholding amount. For fulfillment of Digital Twins, Provider agrees no tangible personal property (including media and publications) will be delivered to Users. As necessary to support either of the parties’ compliance with local tax laws and regulations (including Tax and currency regulations), protect commercial relationships with the User and mitigate tax costs and risks, the parties agree as follows:
The parties will execute any further contract, invoice and tax terms needed to support IBM invoicing and collecting payment for Provider services in each of the in-scope sales countries.
Further contract, invoice and tax terms may include without limitation, adoption of a reseller agreement/model between the parties, local contracting between Provider and IBM overseas Affiliates and the execution of tax agency arrangements between Provider and IBM overseas Affiliates.
Any further contract, invoice and tax terms will be mutually agreed by the parties.
Compliance
Export Laws
Provider will comply with import, export control and economic sanction laws and regulations, including those of the United States, that prohibit or restrict the export, reexport, or transfer of Digital Twins, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users. Provider will not export, directly or indirectly, any technology, software or commodities provided by IBM under this Agreement to any prohibited destination or for any prohibited end use. Provider will provide IBM with information about Digital Twins necessary for export compliance.
Provider acknowledges that IBM may use global resources (non-permanent residents used locally and personnel in locations worldwide) to remotely support the delivery of the Exchange. Upon request, Provider will provide to IBM the classification of the Digital Twin under the U.S. Export Administration Regulations and reasonably work with IBM to ensure compliance with applicable export controls based on this classification.
Compliance with Laws
Provider and IBM will each comply with all applicable laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act and the applicable anti-bribery laws and laws governing transactions with government and public entities, antitrust and competition laws, applicable insider trading, securities, and financial reporting laws, laws governing consumer transactions, and laws regarding data privacy, including GDPR if applicable.
Ethical Dealings
Provider will be familiar and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business practices. Provider and its Affiliates have not and will not, for the purpose of influencing or inducing anyone to influence decisions in favor of IBM or its Affiliates, offer, promise or make or agree to make, directly or indirectly, (a) any political contributions of any kind or any payment to or for the benefit of any public official, whether elected or appointed, (b) any payments for gifts, meals, travel or other value for a government employee or his/her family members or (c) any payments or gifts (of money or anything of value) to anyone. IBM shall not reimburse Provider for any such political contributions, payments or gifts.
9.4 Data Protection
Business Contact Information
IBM and its affiliates, and their contractors and subprocessors, may, wherever they do business, store and otherwise process Business Contact Information (BCI) of Provider, its personnel and authorized users for business dealings with them. Where notice to or consent by the individuals is required for such processing, Provider will notify and obtain consent.
Account Data
IBM and its affiliates, and their contractors and sub-processors, may use Account Data for example to enable Digital Twin features, administer use, personalize experience, and otherwise support or improve use of the Exchange. The IBM Online Privacy Statement at https://www.ibm.com/privacy/details/us/en/ provides additional details.
Processing of Personal Data on Provides behalf
If and to the extent (a) IBM is processing personal data on behalf of Provider and (b) the GDPR applies to such processing of personal data, IBM’s Data Processing Addendum (DPA) at www.ibm.com/dpa and the applicable DPA Exhibit at https://ibm.biz/ProviderDPAExhibit apply and supplement the Agreement.
IBM may use processors and subprocessors (including personnel and resources) in locations worldwide to deliver the Exchange. IBM may transfer Provider’s personal data across country borders including outside the European Economic Area (EEA).
Term and Termination
Term
The term of this Agreement is effective upon acceptance by the Provider and will remain in effect for one year, unless terminated earlier as described below (“Term”). The Term shall automatically renew for consecutive one (1) year terms, unless either party provides written notice to the other at least sixty (60) days prior to the expiration of the then current Term.
Termination
Either party may terminate this Agreement for any reason or no reason with ninety (90) days written notice to the other party.
Either party may terminate this Agreement for the other party’s breach of this Agreement upon thirty (30) days written notice to the breaching party, provided the breaching party is unable to cure such breach within thirty (30) days.
Notwithstanding the terms of Section 3.3, Provider may terminate this Agreement and remove the Digital Twin listing from the Exchange if Provider provides IBM with ninety (90) days written notice and:
IBM fails to pay Provider as set forth in Section 6 (Fees) and such failure to pay is not cured within ninety (90) days, or
Provider withdraws the Digital Twin from any and all public offerings, or
IBM materially changes the terms of this Agreement and Provider does not agree to such changes.
Suspension and Removal
IBM may suspend (i.e. temporarily “hide” the Digital Twin listing from public view) or remove a Digital Twin listing from the Exchange at any time in IBM’s sole discretion. If IBM suspends or removes the Digital Twin listing pursuant to this paragraph (a), IBM shall provide Provider with written notice and explanation of its suspension or removal.
If IBM suspends the Digital Twin listing due to Provider’s breach of this Agreement, misappropriation of IBM or third party intellectual property or violation of applicable law or regulation, Provider shall be provided with thirty (30) days’ notice to resolve or cure any such breach, misappropriation, or violation. At the end of such thirty (30) day period, IBM shall either (i) restore the Digital Twin listing if such breach, misappropriation or violation is resolved to IBM’s satisfaction, or (ii) remove the Digital Twin listing from the Exchange, provided that if such Digital Twin listing is removed by IBM, IBM shall provide Provider with written notice and explanation of its removal.
Provider may suspend or remove Provider’s Digital Twin listing from the Exchange upon ninety (90) days prior written notice to IBM after offering the Digital Twin on the Exchange for one (1) year as set forth in Section 3.3.
Confidentiality
Unless the parties mutually agree to exchange confidential information under a separate confidentiality agreement, all information they exchange is non-confidential, including any content processed by or uploaded to the Exchange. Neither party shall disclose the terms of this Agreement to any third party without the other party’s prior written consent, except to the extent necessary to establish each party’s rights hereunder, or, as required by applicable law or regulations.
Representations and Warranties
Provider represents and warrants that:
Provider has the necessary rights in and to the Digital Twin (including associated marks and names) to grant IBM the rights specified in this Agreement, and to grant Users the rights specified in the Provider’s terms of use or end user license agreement, as applicable;
the Digital Twin conforms to its specifications;
the Digital Twin is safe for use with, and will comply with, the warranties and requirements in this Agreement;
any written representations made, or information provided, by Provider to IBM or
Users is true and accurate;
neither the Digital Twin nor the Provider Material infringes any privacy, intellectual property or other right of a third party;
the Digital Twin does not contain harmful code; and
Provider has complied with any and all requirements relating to any and all third party or open source software included in the Digital Twin, including all licensing agreements applicable to such third party or open source code.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY,
NOR THEIR RESPECTIVE SUPPLIERS, MAKES ANY WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER IBM NOR ITS SUPPLIERS MAKE ANY WARRANTIES THAT ANY PARTICULAR RESULTS WILL BE DERIVED FROM THE USE OF THE EXCHANGE OR ANY DELIVERABLES OR SERVICES PROVIDED UNDER THIS AGREEMENT.
Indemnification
Provider will defend, indemnify and hold IBM and its Affiliates harmless with respect to any third party claims (a) related to its Digital Twin(s) or Provider Material or (b) related to or arising from Provider’s breach of Section 4.1(m) or Section 9.4 of this Agreement, in each case provided IBM promptly (i) notifies Provider in writing of the claim, (ii) supplies information reasonably requested by Provider, and (iii) allows Provider to control and reasonably cooperates in the defense and settlement, including mitigation efforts at Provider’s expense; however, IBM may participate in the proceedings at its option and expense.
Provider will defend, indemnify, and hold IBM and its Affiliates harmless with respect to third party claims concerning payment of any Taxes imposed in connection with any transaction, and with respect to any fine imposed by a government authority as a result of Provider’s failure to remit or report any such Taxes in connection with Digital Twins, including joint and several liability provisions that result in tax assessments being levied on IBM and its Affiliates as a result of an act or omission by Provider.
Limitation of Liability
Limitation of Liability
Except as expressly set forth in Section 15.2 of this Agreement, each party’s entire liability for all claims in the aggregate arising from or in connection to the Exchange, a Digital Twin listing, or this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) other actual direct damages up to $10,000.00, regardless of the basis of the claim. This limit applies collectively to each party and each party’s Affiliates and contractors. Neither party, nor its suppliers, will be liable for special, incidental, exemplary, indirect or economic consequential damages; lost profits, business, revenue, goodwill, anticipated savings; loss of, or damage to, data (including personal data); or network failure or interruption.
PROVIDER UNDERSTANDS AND AGREES IBM HAS NO LIABILITY TO PROVIDER FOR MISUSE BY USERS OF DIGITAL TWINS THAT ARE MADE AVAILABLE AS PART OF THE EXCHANGE.
Damages Excluded from Limitation of Liability
The foregoing limitations and disclaimers of liability shall not apply to (1) the liability of either party for damages associated with its infringement or violation of the intellectual property rights of the other party or its licensors or (2) claims arising under Section 14of this Agreement.
Marketing Rights
Subject to the terms and conditions of this Agreement, Provider grants IBM and its Affiliates a worldwide, royalty free, fully-paid up, non-transferrable, non-exclusive right and license to use Provider’s name and logo, and Digital Twin name and/or logo in the parties’ web sites, external presentations, advertising, and marketing materials for the Exchange. IBM will not display Provider’s name and logo in an inaccurate, derogatory, confusing or misleading manner, and Provider may require IBM to correct or remove inappropriate uses of their name and logo. Except as expressly provided herein, IBM does not acquire any rights in Provider’s name or logo.
For so long as this Agreement remains in effect, Provider may reference the fact that Provider is a Provider in press releases and promotional materials in support of the Digital Twin, and for general promotion purposes.
Provider will not reference IBM’s name in an inaccurate, derogatory, confusing or misleading manner. Provider may not use IBM trademarks without the express written consent of IBM.
Neither party shall make any statements in connection with the use of either party’s name and/or logo to suggest, state or imply that either party warrants the other’s Digital Twins or is the source of, uses, or services the other’s Digital Twins.
17. General
Each party grants the other only the licenses and rights specified. No other licenses or rights (including licenses or rights under patents) are granted.
In the event that IBM receives a notice of copyright infringement concerning the Digital Twins, where the notice conforms to the then current requirements of the Digital Millennium Copyright Act (DMCA), IBM will immediately suspend the Digital Twins listing in the Exchange. In the event IBM takes such action, Provider may provide a counter notice to IBM which conforms to the then current requirements of the DMCA and IBM will, in its sole discretion, restore the Digital Twins to the Exchange. If IBM receives a notice of copyright infringement concerning the material a User stores in the Digital Twin, IBM will refer the notice to the Provider for action. IBM’s current policy regarding the
DMCA and its requirements can be found at http://www.ibm.com/legal/us/en/dmca.html. In the event the DMCA is amended, IBM will modify the referenced url to reflect such changes. In the event of a discrepancy between the IBM website and the DMCA, the DMCA will prevail. IBM disclaims all responsibility for lost profit and/or revenue during the period in which the Digital Twins are removed or suspended.
The laws of the State of New York govern the rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to its conflict of law principles.
Any notice required or permitted under this Agreement will be sent to the representatives set forth by both parties. IBM contact information will be listed in the Exchange. Provider contact information will be included in the Digital Twin listing.
If any term of this Agreement is found to be unenforceable in any respect, the validity of the remainder of the Agreement will be unaffected.
A waiver of any right under this Agreement must be in writing signed by the party waiving its right. A waiver by either party of any instance of the other party’s noncompliance with any obligation under this Agreement will not be deemed a waiver of subsequent instances.
Provider may not assign this Agreement, in whole or in part, without IBM’s prior written consent, which shall not be unreasonably withheld. IBM may assign its rights or delegate or subcontract its duties under this Agreement to third parties or an IBM Affiliate without the prior written consent of Provider. Any unauthorized assignment of this Agreement is void.
Any terms of this Agreement, which by their nature extend beyond the date this Agreement ends, remain in effect until fulfilled and apply to respective successors and assignees.
Neither party will bring a legal action against the other more than two years after the cause of action arose.
This Agreement is nonexclusive. Neither party is a legal representative nor legal agent of the other. Neither party is legally a partner of the other, and neither party is an employee or franchisee of the other, nor does the Agreement create a joint venture between the parties.
Either party may independently develop, acquire, and market materials, Digital Twins or services that may be competitive with (despite any similarity to) the other party’s Digital Twins or services, subject to the terms and conditions herein. Each party is free to enter into similar agreements with others and may offer to provide any Digital Twins and/or services to its customers without any obligation to the other party, subject to the terms of this Agreement.
Neither party will assume nor create any obligations on behalf of the other or any representations or warranties about the other, other than those authorized. No right or cause of action for any third party is created by this Agreement or any transaction under it, nor is either party responsible for any third party claims against the other party except as specifically provided herein.
Neither party is responsible for failure to fulfill obligations due to causes beyond its control.
IBM may modify this Agreement at any time. When you sign into the Exchange following any changes to the Agreement, you will be promoted to accept the most recent version of the Agreement. However, if you do not sign into the Exchange and you continue to publish your Digital Twin listing on an Exchange, you will be deemed to accept the new terms. Therefore, you should review this Agreement from time to time to ensure you continue to agree with the terms. You can locate the most recent version of this Agreement by navigating to the “Settings” tab within PWB. In addition, IBM may notify you of material changes to the Agreement by emailing the address provided when you onboarded your Digital Twin. If IBM makes material changes to the Agreement that you do not agree with, then you may terminate the Agreement and remove your Digital Twin listing(s) from the Exchange in accordance with Section 10.2(d) of this Agreement.
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Appendix A: Country Required Terms
For the country of the Provider’s business address, the following terms replace or modify the referenced base terms of the IBM Digital Provider Agreement. All terms not changed by these amendments remain unchanged and in effect.
ASIA
CHINA
Compliance with Laws
The following replaces this clause:
Each party will comply with all applicable laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act and the applicable anti-bribery laws and laws governing transactions with government and public entities, antitrust and competition laws, applicable insider trading, securities, and financial reporting laws, laws governing consumer transactions, laws regarding data privacy, and Cyber Security Laws.
Business Contact Information The following replaces clause 9.4.1:
Provider will enable IBM and its subcontractors to lawfully process the business contact information of Provider as a legal entity, and Provider’s employees and contractors worldwide, in furtherance of our business relationship, in compliance with applicable data privacy laws. Provider has obtained consent of employees and contractors for the above purposes and IBM will comply with requests to access, update, correct or delete such contact information.
General
Sub-section (c) is replaced by the following:
“The laws of the People’s Republic Of China govern the rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to its conflict of law principles.”
INDIA
General
The sub-section (b) is replaced with the following:
“In the event that IBM receives a notice of copyright infringement concerning the Digital Twins, IBM will immediately suspend the Digital Twins listing in the Exchange. In the event IBM takes such action, Provider may provide a counter notice to IBM and IBM will, in its sole discretion, restore the Digital Twins to the Exchange. If IBM receives a notice of copyright infringement concerning the material a User stores in the Digital Twin, IBM will refer the notice to the Provider for action. IBM disclaims all responsibility for lost profit and/or revenue during the period in which the Digital Twins are removed or suspended.”
The sub-section (c) is replaced with the following:
The laws of India govern the rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to its conflict of law principles. Disputes shall be finally settled in accordance with The Arbitration and Conciliation Act, 1996 then in effect, in English, with seat in Bangalore, India. There shall be one arbitrator if the amount in dispute is less than or equal to Indian Rupee five crores and three arbitrators if the amount is more. When an arbitrator is replaced, proceedings shall continue from the stage they were at when the vacancy occurred.
The sub-section (i) is replaced with the following:
Neither party will bring a legal action against the other more than three years after the cause of action arose.
KOREA
Termination
The sub-section a) is deleted.
General
In sub-section c), “State of New York” is replaced by the following: “Republic of Korea”
AUSTRALIA and NEW ZEALAND
AUSTRALIA
Compliance With Laws
The following is added to the first sentence after the words “all applicable laws and regulations”:
“of the State or Territory in which the transaction is performed”
Representations and Warranties
The following is added to the end of the paragraph:
“These warranties are in addition to any right under, and only limited to the extent permitted by, the Competition and Consumer Act 2010.”
Limitation of Liability
The following is added to the end of the first sentence:
“(for example, whether based in contract, tort, negligence, under statute or otherwise)”.
The following is added to the end of the second sentence:
“Where IBM is in breach of a guarantee implied by the Competition and Consumer Act 2010 (Cth), IBM’s liability is limited to (a) for services, the supplying of services again or the payment of the cost of having the services supplied again; and (b) for goods, the repair or replacement of goods or the supply of equivalent goods, or the payment of the cost of replacing the goods or having the good repaired. Where a guarantee relates to the right to sell, quiet possession, or clear title of a good under schedule 2 of the Competition and Consumer Act, then none of these limitations apply.”
Business Contact Information
The following replaces clause 9.4.1:
“Provider will enable IBM and its subcontractors to lawfully process the business contact information of Provider as a legal entity, and Providers’ employees and contractors worldwide, in furtherance of our business relationship, in compliance with applicable data privacy laws. Provider has made all necessary disclosures and obtained consent of employees and contractors for the above purposes and IBM will comply with requests to access, update, correct or delete such contact information.”
General
Sub-section (b) is replaced by the following:
“In the event that IBM receives a notice of copyright infringement concerning the Digital Twins, IBM will immediately suspend the Digital Twins listing in the Exchange. In the event IBM takes such action, Provider may provide a counter notice to IBM and IBM will, in its sole discretion, restore the Digital Twins to the Exchange. If IBM receives a notice of copyright infringement concerning the material a User stores in the Digital Twin, IBM will refer the notice to the Provider for action. IBM disclaims all responsibility for lost profit and/or revenue during the period in which the Digital Twins are removed or suspended.”
In sub-section (c), “State of New York” is replaced by the following:
“State or Territory in which the transaction is performed”
NEW ZEALAND
Compliance With Laws
The following is added to the first sentence after the words “all applicable laws and regulations”:
“of the country of the Client’s business address to the Agreement”
Representations and Warranties
The following is added to the end of the paragraph:
“These warranties are in addition to any rights under the Consumer Guarantee Act 1993 or other legislation that cannot be limited by law.”
Business Contact Information
The following replaces clause 9.4.1:
“Provider will enable IBM and its subcontractors to lawfully process the business contact information of Provider as a legal entity, and Providers’ employees and contractors worldwide, in furtherance of our business relationship, in compliance with applicable data privacy laws. Provider has made all necessary disclosures and obtained consent of employees and contractors for the above purposes and IBM will comply with requests to access, update, correct or delete such contact information.”
General
Sub-section (b) is replaced by the following:
“In the event that IBM receives a notice of copyright infringement concerning the Digital Twins, IBM will immediately suspend the Digital Twins listing in the Exchange. In the event IBM takes such action, Provider may provide a counter notice to IBM and IBM will, in its sole discretion, restore the Digital Twins to the Exchange. If IBM receives a notice of copyright infringement concerning the material a User stores in the Digital Twin, IBM will refer the notice to the Provider for action. IBM disclaims all responsibility for lost profit and/or revenue during the period in which the Digital Twins are removed or suspended.”
In sub-section (c), “State of New York” is replaced by the following:
“country of the Client’s business address to the Agreement”
EUROPE, MIDDLE EAST AND AFRICA
BELGIUM
General
The following is added to the end of sub-section (c):
“provided however that the laws of Belgium will apply to the extent a claim under this Agreement pertains to an employment dispute, a dispute with regard to data privacy or any other mandatory law of Belgium and all such claims will be subject to the exclusive jurisdiction of the courts of Belgium.”
CROATIA
Compliance with Law
The following is added to the first sentence after the words “all applicable laws and regulations”:
“of the country in which the transaction is performed.”
General
In sub-section (i) add the following:
“Unless otherwise provided for in by the mandatory provisions of the applicable law,”
CYPRUS
General
In sub-section (c), “State of New York” is replaced by the following: ”the laws of Cyprus….”
CZECH REPUBLIC
Representations and Warranties Add to section:
“Provider enters into this Agreement as the entrepreneur and therefore no consumer rights and protections provided according to the applicable laws of this Agreement and/or laws of the place of business are applicable to the mutual relationship of the parties therein.”
Limitation of Liability
Replace business, revenue, goodwill, with:
“lost business, lost revenue, loss and/or damage to of goodwill,”
Damages Excluded from Limitation of Liability Add to section:
“or 3) damages that cannot be limited or excluded according to applicable laws.”
ESTONIA
Limitation of liability
The phrase “Neither party, nor its suppliers, will be liable for special, incidental, exemplary, indirect or economic consequential damages; lost profits, business, revenue, goodwill” is replaced with the following:
“Neither party, nor its suppliers, will be liable for indirect damages or damages that are not an immediate, normal and adequate consequence of act or omission; lost profits, business, revenue, lost or damaged goodwill.”
General
In sub-section (i) add the following:
“Unless otherwise provided for in by the mandatory provisions of the applicable law,”
GREECE
General
In sub-section (c), “State of New York” is replaced by the following: ”the laws of Greece….”
HUNGARY
Compliance With Laws
The following is added to the first sentence after the words “all applicable laws and regulations”:
“of the country in which the transaction is performed.”
General
A new sub-section (n) is added as follows:
If Hungarian law applies based on Section 9.2, the following terms of the Agreement significantly deviate from the provisions generally applied by Hungarian law: You expressly agree to the effect that certain provisions of the Agreement, – the provision concerning the 3.
Digital Twin Listing and Publication, 4. Responsibilities, 5. License Grants, 9. Compliance, 10. Terms and Termination, 13. Representations and Warranties and 15. Limitation of Liability – significantly deviate from the provisions generally applied by Hungarian law, particularly by the Civil Code. By signing this Agreement, Provider expressly declares that Provider has been informed and has fully understood all these contractual provisions and Provider accepts the Agreement as binding for itself, including these provisions as well.
IRELAND
Provider Workbench
Delete from the final paragraph:
“title”
Data Protection
The link to the Online Privacy Statement in clause 9.4.2 is replaced with the following: https://www.ibm.com/privacy/details/ie/en/
Representations and Warranties Delete from the final paragraph:
“title”
Limitation of Liability
Delete the word “economic”
Replace “business, revenue, goodwill,” with:
“lost business, lost revenue, loss of goodwill,”
Damages Excluded from Limitation of Liability Add to the end of the section:
“or 3) damages that cannot be limited or excluded according to applicable law.”
General
In sub-section (c), “State of New York” is replaced by the following: “the laws of Ireland”
ISRAEL
General
In sub-section (c), “State of New York” is replaced by the following: “State or Territory in which the transaction is performed”
ITALY
Damages Excluded from Limitation of Liability Add to the end of the section:
“or 3) damages that cannot be limited or excluded according to applicable law.”
General
In sub-section (c), “State of New York” is replaced by the following: “the laws of Italy”
The following is added to the end of the section:
“n) Any dispute arising form or related to this Agreement shall be exclusively submitted to the exclusive jurisdiction of the Court of Milan.”
LATVIA
Limitation of liability
The phrase “Neither party, nor its suppliers, will be liable for special, incidental, exemplary, indirect or economic consequential damages; lost profits, business, revenue, goodwill” is replaced with the following:
“Neither party, nor its suppliers, will be liable for indirect damages or damages that are not an immediate, normal and adequate consequence of act or omission; lost profits, business, revenue, lost or damaged goodwill.”
General
In sub-section (i) add the following:
“Unless otherwise provided for in by the mandatory provisions of the applicable law,”
LITHUANIA
Limitation of liability
The phrase “Neither party, nor its suppliers, will be liable for special, incidental, exemplary, indirect or economic consequential damages; lost profits, business, revenue, goodwill” is replaced with the following:
“Neither party, nor its suppliers, will be liable for indirect damages or damages that are not an immediate, normal and adequate consequence of act or omission; lost profits, business, revenue, lost or damaged goodwill.”
General
In sub-section (i) add the following:
“Unless otherwise provided for in by the mandatory provisions of the applicable law,” NETHERLANDS
General
The following is added to the end of sub-section (c):
“provided however that the laws of the Netherlands will apply to the extent a claim under this Agreement pertains to an employment dispute, a dispute with regard to data privacy or any other mandatory law of the Netherlands and all such claims will be subject to the exclusive jurisdiction of the courts of the Netherlands.”
POLAND
Limitation of liability
The phrase “Neither party, nor its suppliers, will be liable for special, incidental, exemplary, indirect or economic consequential damages; lost profits, business, revenue, goodwill” is replaced with the following:
“Neither party, nor its suppliers, will be liable for indirect damages or damages that are not an immediate, normal and adequate consequence of act or omission; lost profits, business, revenue, lost or damaged goodwill.”
General
In sub-section (i) add the following:
“Unless otherwise provided for in by the mandatory provisions of the applicable law,”
PORTUGAL
Damages Excluded from Limitation of Liability Add to section:
“or 3) damages that cannot be limited or excluded according to applicable law,”
General
In sub-section (c), “State of New York” is replaced by the following: ”the laws of Portugal….”
ROMANIA
Compliance With Laws
The following is added to the first sentence after the words “all applicable laws and regulations”:
“of the country in which the transaction is performed.”
RUSSIA
Confidentiality and Data Protection
The following sentence is added to the second paragraph:
“In case such information contains personal data, Provider has obtained consent of respective persons for the above purposes and IBM will comply with requests to access, update, correct or delete such data.”
SPAIN
Damages Excluded from Limitation of Liability Add to section:
“or 3) damages that cannot be limited or excluded according to applicable law,”
General
In sub-section (c), “State of New York” is replaced by the following: ”the laws of Spain….”
SWITZERLAND
Business Contact Information
The following replaces clause 9.4.1:
IBM and its affiliates, and their contractors and subprocessors, may, wherever they do business, store and otherwise process Business Contact Information (BCI) of Provider as a legal entity and Provider’s personnel and authorized users for business dealings with them. Where notice to or consent by the individuals is required for such processing, Provider will notify and obtain consent.
UNITED KINGDOM
Compliance with Laws
Add the following paragraph to this section:
“IBM is not responsible for determining the requirements of laws applicable to the Provider’s or
User’s business, including those relating to Digital Twins that the Provider offers in the Exchange, or that IBM’s provision of or the Providers or User’s use of the Exchange, under this Agreement, meets the requirements of such laws. Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate law applicable to that party.”
Prohibition on Gifts
This section is replaced with the following:
“The Provider agrees that it will not (and the Provider will put in place and will maintain throughout the term of this Agreement adequate procedures to ensure that any of its employees or contractors will not) offer or make payments or gifts (monetary or otherwise such as travel, entertainment, meals, and other items of value) to anyone for the purpose of wrongfully influencing decisions in favour of IBM or the Provider, directly or indirectly. This includes any form of facilitation payments (i.e. small bribes paid to facilitate routine government action). IBM may terminate this Agreement immediately in case of 1) a breach of this clause or 2) when IBM reasonably believes such a breach has occurred or is likely to occur.”
Data Protection
The link to the Online Privacy Statement in clause 9.4.2 is replaced with the following:
www.ibm.com/privacy/details/uk/en/
Limitation of Liability
Replace “$10,000” with “£10,000”
Delete “economic”
Damages Excluded from Limitation of Liability Add to the end of the section:
“or 3) damages that cannot be limited or excluded according to applicable law.”
General
In sub-section (c), “State of New York” is replaced by the following: “The laws of England”
NORTH AMERICA
CANADA
Export Laws
The last sentence of the first paragraph is deleted:
“Provider represents that the Digital Twin will not, in whole or part, be controlled under the U.S. International Traffic in Arms Regulations (ITAR) or the defense trade control regime of any other country.”
10-26-2017
