The terms of this Attachment are only applicable in the event IBM approves BP to receive a Special Bid.
The terms of this Attachment supplement, and are in addition to, the IBM Business Partner Cloud Marketplace Reseller Agreement (Base Agreement) and govern Special Bids (as defined below) provided to Business Partner under the Agreement.
By accepting the terms of this Attachment, BP agrees that BP will not market or resell Cloud Services or Programs to Downstream Sellers. All references to Downstream Sellers, Downstream Resellers and/or Downstream Sales in the Agreement are not applicable and deleted.
1. Special Bids
a. BP may request a special discount or price on a specific End User transaction (a “Special Bid”). IBM may, at its sole discretion, approve or reject a Special Bid based on the information provided by BP in its Special Bid request. If IBM approves a Special Bid, then the price provided by IBM shall only be valid for the applicable Special Bid, and its validity shall be subject to all the terms and conditions set out in the Agreement, including IBM's Special Bid authorization notice which may be provided to BP by BP’s Cloud Aggregator upon IBM’s approval of the Special Bid (“Special Bid Notice”).
b. Further, IBM provides Special Bids to BP on the basis that the information BP provided to IBM or to BP’s Cloud Aggregator in its Special Bid request is truthful and accurate. If the information provided in the Special Bid request changes, BP must immediately notify IBM or BP’s Cloud Aggregator. In such event, IBM reserves the right to modify the terms of, or cancel any Special Bid Notice it may have provided. If BP fails to provide truthful and accurate information on Special Bid requests, then IBM or BP’s Cloud Aggregator shall be entitled to recover from BP (and BP is obligated to repay) the amount of any discounts IBM provided in the Special Bid and take any other actions authorized under the Agreement or applicable law. Special Bid Notices and the terms applicable to Special Bids are IBM’s confidential information, which is subject to the applicable confidentiality agreement.
c. BP accepts the terms of the Special Bid by:
i. submitting an order under the Special Bid Notice;
ii. reselling the Cloud Services or Programs to its End User; or
iii. paying for the Cloud Services or Programs.
d. The Special Bid discount or price for eligible Cloud Services or Programs is subject to the following:
i. no other discounts, incentive offerings, rebates, or promotions apply, unless IBM or BP’s Cloud Aggregator specifies otherwise in writing;
ii. availability of the Cloud Services or Programs;
iii. BP’s acceptance of the additional terms contained in the Special Bid Notice (which occurs upon BP’s acceptance of the Special Bid, as set forth above)
iv. BP’s advising the local IBM financing entity/organization or BP’s Cloud Aggregator, as applicable, of any Special Bid pricing for any Cloud Services or Programs for which BP arranges financing; and
v. resale of the Cloud Services or Programs by BP to the End User associated with the Special Bid by the date indicated in the Special Bid request.
e. If BP is requesting a specific End User price or discount in the Special Bid, BP shall ensure that the intended End User receives the financial benefit of such price or discount.
2. IBM’s Audit of Special Bid Transactions
a. IBM may audit any Special Bid transactions in accordance with the terms of this Section 2 and the verification or audit terms in the Agreement. For the purposes of IBM’s audit of Special Bids under this Attachment, and notwithstanding any order of precedence stated in the Agreement, in the event of a conflict between the terms of this Section 2 and any verification or audit terms in the Agreement, the terms of this Section 2 shall prevail.
i. Upon IBM’s request, BP will promptly provide IBM or its auditors with all relevant Documentation (such as invoices, contracts, and purchase orders by and between BP and End Users) to enable IBM to verify that all information provided in support of a Special Bid request was truthful and accurate and that IBM Cloud Services and Programs have been or will be supplied to the End User in accordance with the terms of the Special Bid.
ii. In any case where BP is unable to provide the Documentation because of confidentiality obligations owed to an End User, whether arising by written contract or applicable law, BP will promptly provide IBM with written evidence of, and any Documentation not subject to, those obligations. In addition, BP will promptly and in writing seek the End User’s consent to waive confidentiality restrictions to permit IBM to conduct its audit as intended. Should the End User refuse to grant that consent, BP will i) provide IBM with a copy of the waiver request and written proof of that refusal and ii) identify appropriate contacts at the End User with whom IBM may elect to discuss the refusal.
iii. BP hereby waives any objection to i) IBM sharing Special Bid information directly with the End User, notwithstanding the terms of any agreement that would prohibit IBM from doing so, and otherwise communicating (both orally and in writing) with the End User, as IBM deems necessary and appropriate to complete its desired compliance review and ii) the End User sharing Special Bid information directly with IBM. In this subsection (c), “Special Bid information” includes, but is not limited to, the types and quantity of Cloud Services or Programs and anticipated End User prices and delivery dates set forth in a Special Bid.
b. IBM or BP’s Cloud Aggregator may invalidate a Special Bid if in respect of such Special Bid, BP fails to comply with this Section 2 or the applicable Special Bid terms. In that event, IBM or BP’s Cloud Aggregator shall be entitled to recover from BP (and BP is obligated to repay) the amount of any discounts IBM provided in the Special Bid. IBM may also take any other actions authorized under the Agreement or applicable law.