Agreement For Acquisition

InfoPrint Solutions Company International Agreement for Acquisition of Software Maintenance Part 1 – General Terms This InfoPrint Solutions Company (InfoPrint) Agreement for Acquisition of Software Maintenance (called the "Agreement") governs your acquisition of Software Maintenance (“SWM”), which may also be referred to as Subscription and Support (“S&S”). SWM may include, for example: 1. subscription, e.g. Program updates, enhancements, preventive service or new versions/releases; 2. technical assistance, e.g. assistance by telephone and, if available, electronic access, to inquiries concerning code defect-related questions; and 3. regulatory response, e.g. information on, or changes required by, government or other regulatory agencies. SWM is provided only for those Eligible Programs installed within your Enterprise. An “Enterprise” in this Agreement is any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. InfoPrint has signed agreements with certain organizations called InfoPrint Business Partners or InfoPrint Solutions Partners (hereinafter called “InfoPrint Business Partners”) to promote and market SWM offerings. When you order SWM marketed to you by InfoPrint Business Partners, InfoPrint will provide SWM to you under the terms of this Agreement. InfoPrint is not responsible for 1) the actions of InfoPrint Business Partners, 2) any additional obligations they have to you or 3) any products or services that they supply to you under their agreements. In the event that your InfoPrint Business Partner is no longer able to market SWM, for any reason, you may continue to receive SWM by instructing InfoPrint to transfer administration of SWM to either 1) another InfoPrint Business Partner of your choice (who may require you to first execute one of their agreements) who is approved to market SWM to you, or 2) InfoPrint. This Agreement and its Attachments, if any, are the complete agreement between us regarding the acquisition of SWM, and replaces any prior oral or written communications between us concerning such SWM. A copy of this Agreement can be found at: http://www.infoprintsolutionscompany.com/internet/wwsites.nsf/vwwebpublished/sm_contracthome_us. By your ordering or making payment for SWM and InfoPrint or your InfoPrint Business Partner's acceptance of your order or payment, both you and InfoPrint agree to the terms of this Agreement without modification. Once in effect, 1) unless prohibited by applicable local law or specified otherwise, any reproduction of this Agreement made by reliable means (for example, photocopy or facsimile) is considered an original and 2) SWM you order under this Agreement is subject to it. .Additional or different terms in any written communication from you (such as a purchase order) are void and do no apply. The terms of the sections of the International Program License Agreement (“IPLA”) entitled “Limitation of Liability” and “Governing Law, Jurisdiction, and Arbitration,” including any associated applicable Country-unique Terms, are also part of this Agreement and are incorporated by reference into this Agreement with the following changes: b. c. The term “Program” is replaced by the term "Software Maintenance.” The statement, “All of our rights, duties, and obligations are subject to the courts of the country in which Customer acquired the Program license” is replaced by the statement, “The rights, duties, and obligations of each of us are valid only in the country in which Software Maintenance is acquired or, if InfoPrint agrees, the country where Software Maintenance is used; and The phrase “the laws of the country in which Customer acquired the Program license” in the Governing Law subsection is replaced by “the laws of the country in which Software Maintenance is provided.” d. A copy of the IPLA in its entirety, either in a booklet or on a CD, is provided with InfoPrint Programs licensed under the IPLA. It is also available from InfoPrint or its resellers and on the Internet at: http://publib.boulder.ibm.com/infocenter/printer/v1r1/index.jsp?topic=/com.infoprint.software.license/licensCapitali zed terms used but not defined in this Agreement have the same meaning as given to them in the IPLA. Z125-7609-02 03/2009 Page 1 of 8 1. Programs and Software Maintenance: (a) Eligible Programs: Eligible Programs are defined as licensed Programs for which SWM is available and are listed at http://www.infoprintsolutionscompany.com/internet/wwsites.nsf/vwwebpublished/sm_contracthome_u s, or may be obtained from your InfoPrint marketing representative or InfoPrint Business Partner. (b) Initial Support Period: You must choose either one year, the charge for which may be included with the Program, or, for an additional charge, three years of SWM at the time you order a Program. The Initial Support Period begins on the date that InfoPrint makes the Program available to you. (c) Subsequent Support Periods (under this Agreement): Subsequent support periods of one or three years, at your option, may be available. (d) Renewal (under this Agreement): It is your responsibility to renew SWM at the end of each Support Period. InfoPrint will renew expiring SWM under the Agreement terms and charges in effect on that date, if it receives your order to renew (e.g., order form, order letter, purchase order) not later than the expiration date. Subsequent Support Periods begin on the day following the end of the preceding Support Period. (e) Software Maintenance: (i) InfoPrint makes available to you the most current commercially available version, release, or update to all of the Programs for which you acquire SWM under this Agreement, should any be made available. For Programs under this Agreement, you may obtain upgrades to any current commercially available version, release or update. (ii) InfoPrint provides you assistance for your 1) routine, short duration installation and usage (howto) questions; and 2) code defect-related questions. (iii) InfoPrint provides assistance via telephone and, if available, electronic access, only to your information systems (IS) technical support personnel during the normal business hours (InfoPrint published prime shift hours in your time zone). This assistance is not available to end users within your Enterprise. InfoPrint provides Severity 1 assistance 24 hours a day, every day of the year. Consult the InfoPrint Software Support Guide, which may be found at http://www.infoprintsolutionscompany.com/internet/wwsites.nsf/vwwebpublished/sm_contracthome _us for details. (iv) In some instances, InfoPrint may request, and you agree to allow, remote access your system to assist you in isolating the software problem cause. (v) SWM does not include assistance for 1) the design and development of applications, 2) your use of Programs in other than their specified operating environment or 3) failures caused by products for which InfoPrint is not responsible under this Agreement. (f) Software Maintenance After License Fee: The Software Maintenance After License Fee is defined as a fee InfoPrint charges for the resumption of SWM if you did not renew SWM prior to the end of the then current Support Period, or you terminated SWM prior to the Support Period end date. The Support Period for the resumption of SWM begins on the date that InfoPrint accepts your order. (g) Transfer of InfoPrint Software Maintenance: In addition to the provisions of Section 3, Software Maintenance Transferability below, SWM for Programs applies to a designated machine (type, model and serial number); and may be transferred only to another machine that is licensed for the same operating system at the same or a more recent release level. (h) Changes to Support Charge: InfoPrint may increase the Support Charge without notice. An increase will not apply to you if InfoPrint receives your order for SWM before the announcement date of the increase and within three months of receipt by InfoPrint of your order InfoPrint makes SWM available to you. You receive the benefit of a decrease in the Support Charge for amounts which become due on or after the effective date of the decrease. 2. Charges and Payment If you return a Program for refund as allowed under its license terms, InfoPrint or your InfoPrint Business Partner will terminate, and refund any charges paid for, SWM ordered with the Program. Software Maintenance acquired from an InfoPrint Business Partner When you acquire SWM from an InfoPrint Business Partner, the InfoPrint Business Partner sets the charges and the terms governing charges. You will pay your InfoPrint Business Partner directly. Software Maintenance acquired directly from InfoPrint 1. Charges for SWM during each Support Period, called the Support Charge, are invoiced in advance. Z125-7609-02 03/2009 Page 2 of 8 2. The Support Charge may vary, depending on, for example, the machine (type/model), the Program or group of Programs. 3. Amounts are due and payable upon receipt of invoice. You agree to pay accordingly, including any late payment fee. 4. If any authority imposes a duty, tax, levy or fee, excluding those based on InfoPrint net income, upon SWM InfoPrint supplies under this Agreement, then you agree to pay that amount as specified in the invoice or supply exemption documentation. 3. Software Maintenance Transferability You may transfer SWM only to a location that is 1) within your Enterprise, and 2) within the same country for which SWM was purchased. You agree to inform InfoPrint of all such transfers. 4. Your Responsibilities You agree that when you acquire SWM for a Program: 1. you will acquire SWM at the same authorized level of use as the Program for which you are acquiring it, as well as all copies of the Program at the same location. This includes Programs you have already acquired and those you may acquire subsequently; 2. you are responsible for the results obtained from the use of the SWM; 3. you remain responsible for adequately protecting your system and all data contained in it whenever InfoPrint remotely accesses it with your permission to assist you in isolating the software problem cause; 4. to provide sufficient, free, and safe access to your facilities for InfoPrint to fulfill its obligations; 5. to have specified equipment or programs installed at your location if SWM is provided through a telecommunications link; and 6. not to assign, or otherwise transfer, this Agreement or your rights under this Agreement, or delegate your obligations, without InfoPrint’s prior written consent. Any attempt to do so is void. 5. General Principles of Our Relationship Both of us agree that under this Agreement: 1. neither of us grants the other the right to use its (or any of its Enterprise's) trademarks, trade names, or other designations in any promotion or publication without prior written consent; 2. all information exchanged is nonconfidential. If either of us requires the exchange of confidential information, it will be made under a signed confidentiality agreement; 3. each of us is free to enter into similar agreements with others; 4. each may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law. An identification code (called a “user ID”) contained in an electronic document is sufficient to verify the sender's identity and the document's authenticity; 5. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract; 6. You agree to comply with all applicable export and import laws and regulations; 7. InfoPrint may provide some parts of SWM through a telecommunications link; 8. each of us will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations; 9. You agree that this Agreement will not create any right or cause of action for any third party, nor will InfoPrint be responsible for any third party claims against you except as permitted by the Limitation of Liability section for bodily injury (including death) or damage to real or tangible personal property for which InfoPrint is legally liable; 10. neither of us will bring a legal action more than two years after the cause of action arose unless otherwise provided by applicable local law without the possibility of contractual waiver or limitation; 11. neither of us is responsible for failure to fulfill any obligations due to causes beyond its control; 12. if any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions remain in full force and effect; and 13. you agree to allow InfoPrint Solutions Company LLC and its subsidiaries to store and use your business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors acting on InfoPrint Solution Company LLC’s behalf, InfoPrint Business Partners who promote, market, and support certain InfoPrint products and services, and assignees of InfoPrint and its subsidiaries for uses consistent with our business relationship. Z125-7609-02 03/2009 Page 3 of 8 6. Warranty for Software Maintenance InfoPrint warrants that SWM will be provided using reasonable care and skill and according to its current description. The warranties will be voided by misuse, accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, or failure caused by a product for which InfoPrint is not responsible. THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE 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. InfoPrint does not warrant uninterrupted or error-free provision of SWM. 7. Changes to Agreement Terms InfoPrint may change the terms of this Agreement by giving you three months' written notice by letter or email, either directly to you or through your InfoPrint Business Partner. These changes are not retroactive and apply, as of the effective date InfoPrint specifies in the notice, only to new orders and renewals. InfoPrint may add or withdraw Eligible Programs at any time without notice. Otherwise, for a change to be valid, both of us must sign it. 8. Termination, and Withdrawal Either of us may terminate this Agreement if the other does not comply with any of its terms, provided the one who is not complying is given written notice and reasonable time to comply. InfoPrint may withdraw SWM for a Program by publishing a notification of withdrawal at http://www.infoprintsolutionscompany.com/internet/wwsites.nsf/vwwebpublished/sm_contracthome_us not less than 12 months prior to its effective date. If InfoPrint withdraws SWM for which you have prepaid and InfoPrint has not yet fully provided it to you, InfoPrint will either continue to provide SWM to you until the end of the current Support Period or give you a prorated refund. InfoPrint may withdraw SWM in its entirety on 12 months' written notice to you by letter or e-mail. If you terminate SWM, InfoPrint does not issue credits for the unused portion of a Support Period. Any terms of this Agreement which by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to both of our respective successors and assignees. Z125-7609-02 03/2009 Page 4 of 8 Part 2- Country-unique Terms AMERICAS The following terms apply to all Americas countries (except Brazil, Canada and the United States) unless a specific country term states otherwise: 2. Charges and Payment In subsection titled: Software Maintenance acquired directly from InfoPrint, the following replaces item (3): Amounts are due upon receipt of invoice and payable as InfoPrint specifies in a transaction document. The currency for payment of amounts due is US dollars or the equivalent in local currency as follows: (a) As long as the country operates in a free currency exchange market, Customer and InfoPrint agree that InfoPrint will accept payment in the applicable country national currency calculated at the country official exchange rate published by the bank specified in a transaction document on the date payment is made. (b) If the government of a country establishes any restriction or limitation on its free currency exchange markets, Customer agrees to make payments to InfoPrint in US dollars to a bank account in New York, NY, USA, designated by InfoPrint in the transaction document, provided that such payment is not illegal under country law. If such method of payment is forbidden by country law, Customer agrees to pay the amount indicated in the transaction document in country national currency, calculated at the official exchange rate which is in use for the remittance of dividends and net earnings to foreign investors outside the country. Customer agrees to pay accordingly, including any late payment fee. The late payment fee is calculated and payable in US dollars at two percent (or the maximum rate allowed by local law if such is less than two percent) of the delinquent amount due per each thirty day period during which any delinquent balance remains unpaid. All additional terms apply to the referenced country. BRAZIL 2. Charges and Payment In subsection titled: Software Maintenance acquired directly from InfoPrint, the following replaces item (3): Amounts are due upon receipt of invoice and payable in local currency as InfoPrint specifies in a transaction document. Customer agrees to pay accordingly, including any late payment fee. Delinquent amounts are subject to monetary correction based on the inflation index called the "General Price Index" calculated by Getulio Vargas Foundation (IGP-M/FGV), plus interest at the rate of one percent per month, both calculated "pro rata die." The late payment fee is calculated against the resultant delinquent amount at the following rates: (a) if payment is made between the 31st day and the 60th day from invoice date, a two percent late payment penalty applied to the resultant delinquent amount, or (b) if payment is made 61 or more days from invoice date, a ten percent late payment penalty ten percent applied to the resultant delinquent amount. In the subsection titled: Software Maintenance acquired directly from InfoPrint, the following is added as a new item (5): Amounts due are expressed in local currency. In the subsection titled: Software Maintenance acquired directly from InfoPrint, the following is added as a new item (6): The charges for Software Maintenance acquired under this Agreement are inclusive of all applicable taxes that are InfoPrint's responsibility on the base date established in a transaction document. The parties agree that InfoPrint will adjust the charges accordingly should any of the following occur: (a) any change is made to the rate, form or base of calculation, form of payment, classification or taxes levied on the Software Maintenance or on their costs, Z125-7609-02 03/2009 Page 5 of 8 (b) (c) (d) (e) (f) a new applicable tax is created, any change is made to any other legal aspect related to the taxes applicable on the base date, any change is made to the origin or to the delivery location for the Software Maintenance, any change is made to the location where Services are to be provided, or any change is made to the manner in which Services are marketed. 7. Changes to Agreement Terms The following replaces this section in its entirety: In order to maintain flexibility in our business relationship, the terms of this Agreement may be changed upon execution of an amendment and the changes shall apply as of the effective date specified in the amendment. They apply only to new orders, on-going transactions, and renewals under the Agreement. ASIA PACIFIC AUSTRALIA 2. Charges and Payment In subsection titled: Software Maintenance acquired directly from InfoPrint, the following paragraph replaces item (4) in its entirety: If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on the Agreement or on the Software Subscription and Support itself, that is not otherwise provided for in the amount payable, Customer agrees to pay it when InfoPrint invoices Customer. If the rate of GST changes, InfoPrint may adjust the charge or other amount payable to take into account that change from the date the change becomes effective. In subsection titled: Software Maintenance acquired directly from InfoPrint, the following is added as a new item (5): All charges or other amounts payable under this Agreement are specified to include applicable goods and services tax (“GST”). 6. Warranty for Software Maintenance The following paragraph is added as the first paragraph of this section: The warranties specified in this section are in addition to any rights Customer may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation. HONG KONG S.A.R. PART 1 and PART 2 As applies to transactions initiated and performed in Hong Kong S.A.R., phrases throughout this Agreement containing the word "country" (for example, "country of acquisition" and "country of installation") are replaced with "Hong Kong S.A.R." JAPAN 8. Termination and Withdrawal The following paragraph is added to this section: When all or a substantial portion of either party's assets, credits or business are so changed as to make continued performance of that party's obligations impracticable or impossible, the other party may terminate this Agreement with prior notice. Z125-7609-02 03/2009 Page 6 of 8 TAIWAN PART 1 and PART 2 As applies to transactions initiated and performed in Taiwan, phrases throughout this Agreement containing the word "country" (for example, "country of acquisition" and "country of installation") are replaced with "Taiwan." EUROPE, MIDDLE EAST, AFRICA (EMEA) EUROPE The following terms apply to all countries in Europe (meaning: (i) all EU member states; (ii) Norway, and Switzerland; and (iii) any other country (e.g., Turkey) that has enacted local data privacy or protection legislation similar to the EU model). 5. General Principles of our Relationship The following replaces the provisions of item 13 in their entirety; for certain specific countries expressly listed below, further amendments also apply: Business Contact Information means business-related contact information disclosed by Customer to InfoPrint, including names, job titles, business addresses, telephone numbers and email addresses of Customer’s employees and contractors. Business Contact Personnel means the Customer employees and contractors to whom the Business Contact Information relates. Data Protection Authority means: (i) the national authority established by the domestic legislation implementing EU Directive 95/46/EC in the applicable country; or (ii) in any country where no such authority has been established, the European Commission or the national authority responsible for (a) regulating the use and protection of personal data, and (b) the regulation of electronic communications involving personal data. Data Protection & Electronic Communications Legislation means the relevant specific domestic legislation and associated regulation(s) passed in the applicable country pursuant to (a) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and (b) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) or (in either case) any statutory replacement or modification thereof. For non-EU countries, it means the relevant specific country legislation and associated regulation(s) passed in the applicable country relating to (i) the use and protection of personal data and (ii) the regulation of electronic communications involving personal data, or (in either case) any statutory replacement or modification thereof. InfoPrint Group means InfoPrint Solutions Company, LLC of Boulder, Colorado, USA, its subsidiaries, and their respective Business Partners and subcontractors. InfoPrint Group entities are principally providers of information technology, including hardware and software products, services, consultancy, financing services and other related activities. (1) Customer authorizes InfoPrint to process and use Business Contact Information for the purpose of furthering the business relationship between Customer and InfoPrint Group, including the marketing of products and services (the “Specified Purpose”). (2) Customer agrees that Business Contact Information may be disclosed to, and processed and used by, InfoPrint Group in pursuit of the Specified Purpose. (3) InfoPrint agrees that all Business Contact Information will be processed in accordance with the applicable Data Protection & Electronic Communications Legislation and will be used only in accordance with the Specified Purpose. (4) To the extent that the Data Protection & Electronic Communications Legislation requires them, Customer represents that it has obtained (or will obtain) such consents from and has issued (or will issue) such notices to, the Business Contact Personnel as are necessary in order to enable the InfoPrint Group to process and use the Business Contact Information to contact them, including by email, in accordance with the Specified Purpose. Z125-7609-02 03/2009 Page 7 of 8 (5) Customer consents to InfoPrint transferring Business Contact Information outside the European Economic Area, provided that any such transfer is made on contractual terms approved by the Data Protection Authority as ensuring adequate safeguards for the rights and freedoms of data subjects. Except that in ITALY, item (1) above is replaced with the following: Customer authorizes InfoPrint to process and use Business Contact Information for the purpose of furthering the business relationship between Customer and InfoPrint Group, including the marketing of products and services (the “Specified Purpose”), on the basis of an “Informative Notice” given by InfoPrint to Business Contact Personnel and the related obtained consent, whenever required by law. and item (4) above is replaced with the following: To the extent that the Data Protection & Electronic Communications Legislation requires it, Customer agrees to cooperate with InfoPrint (as Data Controller) in sending an “Informative Notice” to Business Contact Personnel (as Data Subjects) and obtaining their consent for InfoPrint Group to process and use the relevant Business Contact Information to contact such Personnel, including by email, in accordance with the Specified Purpose. in TURKEY, the following phrase is deleted from item (5) above outside the European Economic Area” AUSTRIA 8. Warranty for Software Subscription and Support The last sentence is replaced in its entirety by: InfoPrint does not warrant uninterrupted or error-free provision of Subscription and Support or that InfoPrint will correct all defects. Z125-7609-02 03/2009 Page 8 of 8