Solutions Engagement Agreement

 

Exhibit 10

Solutions Engagement Agreement

Agreement #4902P20043

This Base Agreement (“Base Agreement”) dated as of 3/18/2002 (“Effective Date”), between International Business Machines Corporation (“Buyer”) and Halifax Corporation (“Supplier”), establishes the basis for a multinational procurement relationship under which Supplier will provide Buyer the Deliverables and Services described in SOWs issued under this Base Agreement. Deliverables and Services acquired by Buyer or Customer on or after the Effective Date will be covered by this Base Agreement. This Base Agreement will remain in effect until terminated.

1.0     Definitions:

“Affiliates” means entities that control, are controlled by, or are under common control with, a party to this Agreement.

“Agreement” means this Base Agreement and any relevant Statements of Work (“SOW”), Work Authorizations (“WA”), and other attachments or appendices specifically referenced in this Agreement.

“Business Partner Agreement” means an agreement executed between Buyer and Supplier to promote, market, and support certain products and services.

“Customer” means Buyer’s customer.

“Deliverables” means items that Supplier prepares for or provides to Buyer or Customer as described in a SOW. Deliverables include Equipment, Program Products, Developed Works, Preexisting Materials and Tools.

“Developed Works” means all work product (including software and its Externals) developed in the performance of this Agreement as described in a SOW and does not include Preexisting Materials, Tools, Program Products, or items specifically excluded in a SOW.

“Equipment” means a machine, its features, elements, cables, or accessories, including the documentation required to install, support, use, and maintain it.

“Externals” means any pictorial, graphic, audiovisual works, reports or data generated by execution of code and any programming interfaces, languages or protocols implemented in the code to enable interaction with other computer programs or end users. Externals do not include the code that implements them.

“Inventions” means ideas, designs, concepts, techniques, inventions, discoveries or improvements, whether or not patentable, conceived or reduced to practice by Supplier or Supplier Personnel in performance of this Agreement.

“Joint Inventions” means Inventions made by Supplier or Supplier Personnel with Buyer Personnel.

“Participation Agreement” or “PA” means an agreement signed by one or more Affiliates which incorporates by reference the terms and conditions in this Base Agreement, any relevant SOW, and other attachments or appendices specifically reduced in the PA.

“Personnel” means agents, employees or subcontractors engaged or appointed by Buyer or Supplier.

“Preexisting Materials” means items including their Externals, contained within a Deliverable, in which the copyrights are owned by a third party or that Supplier prepared or had prepared outside the scope of this Agreement. Preexisting Materials exclude Program Products and Tools, but may include material that is created by the use of Tools.

“Prices” means the agreed upon payment and currency for Deliverables and Services, including all applicable fees, payments and taxes, as specified in the relevant SOW and/or WA.

“Program Products” means Supplier’s commercially available software and the documentation required to install, support, use, and maintain it.

“Services” means work that Supplier performs for Buyer as described in a SOW.

“Statement of Work” or “SOW” means any document that:

1. identifies itself as a statement of work;

2. is signed by both parties;

3. incorporates by reference the terms and conditions of this Base Agreement; and

4. describes the Deliverables and Services, including any requirements, specifications or schedules.

“Tools” means software that is not commercially available and its Externals, required for the development, maintenance or implementation of a software Deliverable other than a Program Product.

“Work Authorization” or “WA” means Buyer’s authorization in either electronic or tangible form for Supplier to conduct transactions under this Agreement in accordance with the applicable SOW (i.e., a purchase order, bill of lading, or other Buyer designated document). A SOW is a WA only if designated as such in writing by Buyer.

2.0     Statement of Work

Supplier will provide Deliverables and Services as specified in the relevant SOW only when specified in a WA. Supplier will begin work only after receiving a WA from Buyer. Buyer may request changes to a SOW and Supplier will submit to Buyer the impact of such changes. Changes accepted by Buyer will be specified in an amended SOW or change order signed by both parties.

 

Solutions Engagement Agreement

Agreement # 4902P20043

3.0     Pricing

Supplier will provide Deliverables and Services to Buyer for the Prices. Except for pre-approved expenses specified in the relevant SOW, the Prices for Deliverables and Services specified in a WA and accepted by Buyer will be the only amount due to Supplier from Buyer. Suppler is not entitled to payment under this Agreement for activities also covered by a Business Partner Agreement with Buyer.

4.0     Payments and Acceptance

4.1     Payments and Acceptance Terms

Terms for payment will be specified in the relevant SOW and/or WA. Payment of invoices will not be deemed acceptance of Deliverables or Services, but rather such Deliverables or Services will be subject to inspection, test, acceptance or rejection in accordance with the acceptance or completion criteria as specified in the relevant SOW and/or WA. Buyer or Customer may, at its option, either reject Deliverables or Services that do not comply with the acceptance or completion criteria for a refund, or require Supplier, upon Buyer’s written instruction, to repair or replace such Deliverables or re-perform such Service, without charge and in a timely manner.

4.2     Outsourcing License

In the event Buyer provides outsourcing services to licensees of a Program Product, Buyer will not owe Supplier a fee for access to or assignment of a license to such Program Product or for transfer of the applicable Program Product to a Buyer computer system which is of like configuration as the computer system for which the Program Product was licensed. The foregoing is subject to Buyer providing Supplier notice of such Program Product to be managed by Buyer and provided the Program Product will only be used on behalf of the licensee. Upon expiration or termination of the agreement to provide outsourcing services to the licensee, Buyers right to use that copy of the Program Product will end.

For those Program Products acquired directly by Buyer from Supplier, Buyer shall be free to continue to use such Program Products in support of its business needs, including in support of the provision of Services to Buyer’s Customers, at no additional fee, subject to the continued compliance with the terms of the Agreement. Buyer shall have the right to assign the license it has acquired from Supplier hereunder to its Customer at no additional cost, provided that Buyer gives Supplier thirty (30) days prior written notice of its intent to assign such rights, and provided further that Buyer’s Customer signs Supplier’s license, and/or such other contractual document as may be reasonably required for such Program Product support.

5.0     Electronic Commerce

To the extent permitted by local law, the parties will conduct transactions using an electronic commerce approach under which the parties will electronically transmit and receive legally binding purchase and sale obligations (“Documents”), including electronic credit entries transmitted by Buyer to the Supplier account specified in the relevant SOW and/or WA. The parties will enter into a separate agreement governing the transmission of such electronic transactions and associated responsibilities of the parties.

6.0     Warranties

6.1     Ongoing Warranties

Supplier makes the following ongoing representation and warranties:

1. it has the right to enter into this Agreement and its performance of this Agreement will comply, at its own expense, with the terms of any contract, obligations, including any between Supplier and its end-users; or any law, regulation or ordinance to which it is or becomes subject;

2. it is incorporated or organized as a partnership;

3. no claim, lien, or action exists or is threatened against Supplier that would interfere with Buyer’s rights under this Agreement;

4. Deliverables and Services do not infringe any privacy, publicity, reputation or intellectual property right of a third party;

5. all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable law) in the Deliverables, to the extent permitted by law;

6.     Deliverables are free from defects in design (except for written designs provided by Buyer unless such designs are based entirely on Supplier’s specifications), material and workmanship and Deliverables and Services will conform to the warranties, specifications and requirements in this Agreements for one year from the date of acceptance, except for a conflict between the warranties in this Agreement and Supplier’s warranty for Program Products, and in that event Supplier’s license warranties shall apply;

7. it will not engage in electronic self-help;

 

Solutions Engagement Agreement

Agreement # 4902P20043

8. Deliverables are safe for use consistent with the warranties, specifications and requirements in this Agreement;

9 Deliverables do not contain harmful code;

10. Services will be performed using reasonable care and skill and in accordance with the relevant SOW and/or WA;

11. Deliverables and Services which interact in any capacity with monetary data are euro ready such that when used in accordance with their associated documentation they are capable of correctly processing monetary data in the euro denomination and respecting the euro currency formatting conventions (including the euro sign) provided that products and systems not provided by Supplier are capable of interacting with Supplier’s euro ready Deliverables and Services;

12. none of the Deliverables contain nor are any of the Deliverables manufactured using ozone depleting substances known as halons, chlorofluorocarbons, hydrochlorofluorocarbons, methyl chloroform and carbon tetrachloride as defined by the Montreal Protocol;

13. Deliverables are new and do not contain used or reconditioned parts;

14. it is knowledgeable with, and is and will remain in full compliance with all applicable export and import laws, regulations, orders, and policies (including, but not limited to, securing all necessary clearance requirements, export and import licenses and exemptions from, and making all proper filings with appropriate governmental bodies and/or disclosures relating to the release or transfer of technology and software to non U.S. nationals);

15. it will not export, directly or indirectly, any technology, software or commodities provided by Buyer or their direct product to any of the countries or to nationals of those countries, wherever located, listed in U.S. Export Administration Regulations’ Country Groups D:1 and E:2, as modified from time to time, unless authorized by appropriate government license or regulations;

16. it will not use, disclose, or transfer across borders any information that is processed for Buyer that may identify an individual (Personal Data), except to the extent necessary to perform under this Agreement, and

17. it will comply with all applicable data privacy laws and regulations, will implement and maintain appropriate technical and other protections for the Personal Data, and will cooperate fully with Buyer’s requests for access to, correction of, and destruction of Personal Data in Supplier’s possession.

6.2     Standard Warranties

Buyer may pass Supplier’s standard warranty for Equipment or Program Products through to the Customer. The Customer may deal directly with Supplier under such warranty and in the event Supplier’s standard warranty is more favorable than the warranties in this Agreement, Supplier’s standard warranty will apply. If Supplier is not the original manufacturer, Supplier will pass through to Buyer or Customer all warranties provided by the original manufacturer. In the event of a conflict between the Supplier, standard warranties, original manufacturer’s warranties and the warranties in this Agreement, the warranties more favorable to Buyer or Customer apply.

THE WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THOSE WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6.3     Warranty Redemption

Subject to Section 9.0 Supplier Liability for Third Party Claims, if Deliverables or Services do not comply with the warranties in this Agreement, Supplier will repair or replace Deliverables or re-perform Services, without charge and in a timely manner. If Supplier fails to do so, Buyer or Customer may repair or replace Deliverables or re-perform Services and Supplier will reimburse Buyer for actual and reasonable expenses. Any reimbursement for Program Products pursuant to the foregoing sentence shall be limited to two times that amount of license fees and maintenance services specified in the SOW.

7.0     Delivery

Deliverables or Services will be delivered as specified in the relevant SOW and/or WA. Buyer may cancel or reschedule the delivery date or change the delivery point as specified in the relevant SOW and/or WA. Risk of loss and title to any tangible property will pass to Buyer or Buyer’s Customer at the delivery point. If Supplier cannot comply with a delivery commitment, Supplier will promptly notify Buyer of a revised delivery date and Buyer may:

1. cancel without charge Deliverables or Services not yet delivered; and

2. exercise all other remedies provided at law, in equity and in this Agreement.

8.0     Intellectual Property

8.1     Work Made for Hire