near_final-sept-12_westcon group - vspp teleport_myanmar 11 september2013_pl

Westcon Group Confidential of 15

WESTCON GROUP-VMWARE SERVICE PROVIDER PROGRAM (VSPP) AGREEMENT

This Westcon Group-VMware Service Provider Program Agreement (the “Agreement”) is made as of 11th Sept, 2013 (the “Effective Date”) by and between Westcon Group Pte Limited, (Westcon Group) with offices at 150 Kampong Ampat, #06-09 KA Centre, Singapore 368324 and Yatanarpon Teleport Company Limited with offices at Hlaing University Campus Road, Hlaing Township, Yangon, Myanmar (“VSPP Service Provider” and, together with Westcon Group, the “Parties”).

RECITALS

WHEREAS, VMware operates the VMware Service Provider Program (the “VSPP”) whereby VMWare appointed Westcon Group to permit participating hosting service providers receive rights to use VMware Products (as defined below) to provide a term-based computer-application service for access by the end user customers of Service Providers (as defined below) (the “End Users”); and

WHEREAS, Westcon Group wishes to appoint VSPP Service Provider as a nonexclusive reseller of the VMware Products so long as VSPP Service Provider is based within the Territory (as defined below) solely to End User customers, subject to the terms set forth herein; and

WHEREAS, VSPP Service Provider wishes to accept such appointment on the terms set forth herein;

NOW THEREFORE, the Parties agree as follows:

1. Definitions.

1.1 “Activation Device” means a code number that a Service Provider uses to activate a VMware Product.

1.2 “EULA” means the applicable VMware end user license agreement accompanying the VMware Products.

1.3 “Guest Operating System” means instances of third-party operating systems licensed by End Users and installed in a Virtual Machine and run using the VMware Products.

1.4 “Metered Products” means certain VMware Products that must have usage measured on a Virtual RAM basis.

1.5 “Partner Central” means the VMware standard portal for communication with members of the VMware partner network, which is currently located at: www.vmware.com/partnercentral. All guides prices lists, and other materials referenced in this Agreement may be found at Partner Central unless indicated otherwise.

1.6 “Partner Code of Conduct” means the document containing business practices and conduct applicable to all VMware partners.

1.7 “VSPP Service Provider or Service Provider” means an entity that provides subscription computing service that allows end users to access the computing or processing power or software applications that are installed and operated on the systems of the entity, and that holds a valid contract with Westcon Group to participate in the VSPP and is in full compliance with the current terms of the VSPP as set forth in the VSPP Guide.

1.8 “Territory” means Myanmar.

1.9 “Usage Data” means the Virtual RAM usage data logged by the VMware vCloud Usage Meter that will then be extracted for insertion into the Usage Reports.


1.10 “Usage Guide” means the document containing specific terms regarding the tracking, measurement, point values, or other use restrictions of each VMware Product that will be made available on Partner Central.

1.11 “VMware vCloud Usage Meter” means the software that logs Usage Data for Metered Products and is made available by VMware to each Service Provider under the terms of a separate license agreement. The VMware vCloud Usage Meter may be renamed at a future date and/or modified by VMware upon notice to Service Providers.

1.12 “Usage Report(s)” means the monthly reports provided by each Service Provider to Westcon Group capturing the Usage Data for all of the VMware Products.

1.13 “Virtual Machine” means an instance of a Guest Operating System and any application programs installed thereon, in a production environment, running on a computing device on which the VMware Product is installed, or suspended to disk or any other storage media accessible by the computing device.

1.14 Virtual RAM” means the calculation of usage for a Virtual Machine during a calendar month based on (i) the virtual memory allocated to each Virtual Machine in 1MB units (for purposes of the below sample 1GB = 1024 MB); multiplied by (ii) the percentage of reserved vRAM (minimum defaults to 50%) multiplied by (iii) the number of hours that the Virtual Machine was powered on during the calendar month for which the Usage Report is being generated. For the final monthly calculation for each Service Provider, MB will be rounded up to the nearest whole GB. For the avoidance of doubt, Virtual RAM quantity shall be calculated in accordance with the following samples:

Sample: During one 30-day calendar month, the Service Provider’s Virtual Machines are

allocated 4GB for 30 days . This scenario assumes the use of a product with a value of 7

points/vGB/month.

1VM x 4GB x 50% = 2GB vRAM

30 days x 24 hours = 720 hours in mth

vRAM x Hours on = 1440 GB RAM Hrs

Total points = 1,440vGB hours ÷ 720 hours/ month X 7 points = 14 points.

1.15 “VMware Price List” means the price list published by Westcon Group that specifies the point values and corresponding prices for each VMware Product. The current Westcon Group VMware Price List as of the Effective Date is set forth in Exhibit C.

1.16 “VMware Product(s) or Product(s)” means the VMware products made available to Westcon Group from VMware for distribution to Service Providers. The current list of Westcon Group VMware Products as of the Effective Date is set forth in Exhibit A.

1.17 “VSPP Guide” means the then-current supplemental information, benefits, and requirements applicable to Service Providers that is made available on Partner Central.

2. Appointment; Title; and License Rights.

2.1 Appointment: Subject to all terms of this Agreement, VSPP Service Provider is permitted to procure VMware Products from Westcon Group for resale to End User customers worldwide for the purpose of providing hosting services so long as VSPP Service Provider utilizes the VMware Products in its hosting center maintained within the Territory.


2.2 Title: Title to the VMware Product object code contained in the VMware Products, and to all intellectual property rights of whatever nature throughout the world in and to all VMware Products shall remain with VMware. Delivery shall be completed and risk of loss shall pass to the VSPP Service Provider upon VMware and Westcon Group making the VMware Products available for download. To the fullest extent permitted by applicable law, VSPP Service Provider shall not (i) reverse engineer, de-compile, disassemble or otherwise derive source code from the VMware Products, (ii) use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the VMware Products, or (iii) encourage others to do so.

2.3 Open Source Software: “Open Source Software” means individual software components that are provided with the VMware Products, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components. Open Source Software components provided with the VMware Products shall be distributed under the terms of the applicable Open Source Software license agreements or copyright notices accompanying the VMware Products. The terms of this Agreement shall not apply to any Open Source Software components distributed with the VMware Products.

2.4 License Rights:

2.4.1 VSPP Service Provider may only resell VMware Products directly to End Users for the sole purpose of providing hosting services to those End Users.

2.4.2 VSPP Service Provider may not use or modify the VMware Products in any way. VSPP Service Provider represents and warrants that it meets the requirements of a Service Provider. Westcon Group shall discontinue distribution to VSPP Service Provider immediately upon learning that VSPP Service Provider no longer qualifies as a Service Provider. 2.4.3 VSPP Service Provider represents and warrants that it is in compliance with all current terms of the VSPP. VSPP Service Provider agrees to the terms of the EULA accompanying such VMware Products, as amended by the “EULA Amendment for Hosters” attached hereto as Exhibit B. 2.4.4 VSPP Service Provider acknowledges and agrees that any use of the VMware Products shall be subject to the terms of the VMware EULA accompanying the VMware Products. 2.4.5 VSPP Service Provider is responsible to acquire any and all third party licenses for any database, operating system or any other software that is used or accessed in connection with the VMware Products.

2.5 Translation: VSPP Service Provider shall not have the right to translate any VMware Products or any parts of VMware Product packaging. VMware shall be the sole provider of all translated versions of the VMware Products and the sole owner of all copyrights in translated versions and components of any VMware Products and VMware Product packaging. VMware is not obligated to translate any VMware Products or VMware Product packaging.

3. Reporting & Payment.

3.1 Reporting: VSPP Service Provider shall provide monthly Usage Reports and any other reports required by Westcon Group. Such monthly Usage Reports are due by the 1st of each month, but in no event later than the 10th, and if not received by the 10th of such month, Westcon Group


may suspend service to VSPP Service Provider or terminate this Agreement pursuant to Section 10.2.

3.2 Usage Guide: The terms of the Usage Guide shall provide additional terms and usage restrictions for the VMware Products. Although VMware may publish suggested “list prices” for the VMware Products, these are suggestions only and VSPP Service Provider will be entirely free to determine the actual prices at which the VMware Products will be distributed to End Users.

3.3 Fees and Taxes: Unless otherwise agreed in writing by the parties, all amounts payable by VSPP Service Provider hereunder shall be paid in USD Dollars. All amounts are due pursuant to Westcon Group’s standard terms and conditions of sale with VSPP Service Provider. Whereas the VMware Price List is in United States Dollars, Westcon Group will set the VSPP Service Provider’s price in USD Dollars on the first business day of each month for that month’s fees, unless VSPP Service Provider and Westcon Group have previously agreed in writing to conduct transactions in United States Dollars. Westcon Group may, in its sole discretion, accept additional currencies from VSPP Service Provider upon written notification. Subject to compliance with local laws, all amounts payable by VSPP Service Provider hereunder are payable in full without offset or deduction for any taxes, VAT, duties, or similar charges imposed by any government. VSPP Service Provider shall pay or reimburse Westcon Group for all federal, state, dominion, provincial, or local sales, use, personal property, withholding, VAT, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Westcon Group). If VSPP Service Provider is required to pay any withholding tax, charge or levy in respect of any payments due to Westcon Group hereunder, VSPP Service Provider shall gross up payments actually made such that Westcon Group shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy. VSPP Service Provider shall provide Westcon Group with a resale certificate or applicable tax exemption certificate, issued by the state to which product is to be shipped, at the time of each order. If the resale certificate is not provided at the time of order, applicable sales taxes will be charged.

3.4 Orders: VSPP Service Provider may initiate purchases of the VMware Products under this Agreement only by submitting written purchase orders (“Orders”) to Westcon Group. VSPP Service Provider agrees that Orders do not have to be signed to be valid and enforceable. The terms and conditions of this Agreement will apply to all Orders submitted to Westcon Group and supersede any different, conflicting, or additional terms on VSPP Service Provider’s Orders. All Orders placed with Westcon Group for the VMware Products will be subject to VMware’s written acceptance, and no Order will be binding upon Westcon Group until the earlier of the date of VMware’s written acceptance of such Order or the date of shipment of the VMware Products included in such Order. It shall be the responsibility of VSPP Service Provider to ensure its purchase orders to Westcon Group for the VMware Products and services reflect the pricing set in Exhibit C. Once a purchase order from VSPP Service Provider has been fulfilled by VMware, Westcon Group shall have no liability for any pricing in VSPP Service Provider’s purchase order which is inconsistent with the pricing set forth on in the current VMware Price List.

4.0 Records.


During the term of this Agreement and for a period of two (2) years from the date of termination or 2 years from the date any payment obligation to Westcon Group ends, whichever is later, VSPP Service Provider shall maintain complete, clear, and accurate records of the number of packaged products, electronic products, media kits, and service products distributed by product type, to whom such products were distributed, and the payments and usage data received thereof irrespective of the source, as well as all usage data reported. VSPP Service Provider shall use the VMware vCloud Usage Meter to provide Usage Reports to Westcon Group.

In addition, During the term of this Agreement and for a period of two (2) years after any payment obligation to Westcon Group ends, upon reasonable notice VSPP Service Provider shall permit Westcon Group, VMware or persons designated by Westcon Group or VMware to inspect such records pertaining to the VMware Products and any other materials provided to VSPP Service Provider by Westcon Group or VMWare to ensure compliance by VSPP Service Provider with its obligations to Westcon Group under this Agreement, including compliance with all applicable laws, including but not limited to, the Foreign Corrupt Practices Act and all US and international anti-bribery laws. In the event an audit reveals that VSPP Service Provider shall has violated any applicable law, Westcon Group shall be entitled to immediately terminate this Agreement and VSPP Service Provider’s participation in the VSPP Program for cause and/or pursue all legal, injunctive, and/or equitable remedies available under the Agreement and at law. Any such inspection and audit shall be conducted during regular business hours and in such a manner as not to interfere with the business activities of VSPP Service Provider. VSPP Service Provider shall promptly pay to Westcon Group any underpayments revealed by such inspection or audit, including any interest due for such late payment at a rate of one and a half percent (1.5%) per month, or the maximum rate allowed under law. In addition to payment of any underpayments revealed by such inspection or audit, VSPP Service Provider shall also promptly reimburse Westcon Group for the cost of such audit, if such inspection or audit reveals: (i) an underpayment by VSPP Service Provider of more than five percent (5%) of the amounts payable by VSPP Service Provider to Westcon Group for the period audited, or (ii) any material evidence that VSPP Service Provider has violated a law which violation would incur a civil penalty of fine in excess of $25,000.00 or any criminal sanctions.

5.0 Delivery and Shipping.

5.1 Delivery: Delivery of all VMware Products under this Agreement shall be made electronically. Westcon Group will use reasonable efforts to promptly make deliveries of accepted Orders. Delivery terms shall be FOB Origin.

5.2 Delays: Notwithstanding any other clause in this Agreement, Westcon Group shall not be liable for any damages to VSPP Service Provider or any other person for a breach of this Agreement, including but not limited to, for VMware or Westcon Group’s failure to fill any Orders, or for any delay in delivery or error in filling any such Orders for any reason.

5.3 Activation Devices: Westcon Group shall deliver VMware Products to VSPP Service Provider by transferring corresponding Activation Devices to VSPP Service Provider via e-mail to the current contact person as provided by VSPP Service Provider to Westcon Group for this purpose, or to the e-mail address specified in VSPP Service Provider’s Order, if any. Upon receipt of such an Activation Device, VSPP Service Provider may download a single copy of the corresponding object code for such VMware Product from VMware’s Web site. VSPP Service Provider may download only as many copies of the VMware Product object code as equals the number of corresponding VMware Product Activation Devices. After VSPP Service Provider distributes or transfers a VMware Product, VSPP Service Provider shall not redistribute, resell or otherwise transfer the corresponding Activation Device to any third party. VSPP Service Provider shall not redistribute, resell or otherwise transfer Activation Devices to any end users or third parties, and VSPP Service Provider shall use such Activation Devices only for the purposes of


providing hosting services to its end users. VSPP Service Provider shall not make binaries for VMware Products available to its customers on its web site or direct its customers to any web site other than the VMware web site to download the VMware Products. If an individual accesses the VMware web site and inputs correct details relating to an Activation Device issued by Westcon Group, Westcon Group will be entitled to assume that such individual is duly authorized to download the relevant VMware Product and shall not be obliged to permit further downloading other than required to fulfill the relevant Order, and shall not be otherwise liable to VSPP Service Provider, if that individual in fact did not have such authority.

6.0 Return.

For any defective Activation Devices returned to Westcon Group by VSPP Service Provider, VSPP Service Provider shall, after obtaining an RMA number from Westcon Group, return the defective Activation Devices to Westcon Group with a signed VMware standard form of certificate of destruction located on VMware’s Web site at http://www.vmware.com/pdf/swda.pdf, signed by the VSPP Service Provider. Upon receipt of the defective Activation Devices and corresponding certificate of destruction from VSPP Service Provider, Westcon Group shall provide a replacement Activation Device to VSPP Service Provider.

7.0 Updates.

Westcon Group shall use reasonable efforts to notify VSPP Service Provider prior to the general commercial availability of any new versions or releases of the VMware Products. VSPP Service Provider shall have no rights under this Section to return any previous versions of any VMware Product after the date that VMware makes any new versions of the VMware Product generally commercially available.

8.0 Reserved.

9.0. Warranty

9.1 Warranty Service. Warranty for the Products will come directly from VMware. Westcon Group does not provide any warranties in respect of the Products. If VSPP Service Provider returns a VMware Product to Westcon Group, and that VMware Product qualifies under the warranty provisions of the applicable End User License Agreement for warranty service, to the extent that VMware permits, Westcon Group shall promptly provide VSPP Service Provider with a replacement VMware Product.

9.2 WARRANTY DISCLAIMER. WESTCON GROUP MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE VMWARE PRODUCTS AND SERVICES. WESTCON GROUP WILL PASS THROUGH ANY WARRANTIES IT RECEIVES FROM VMWARE TO VSPP SERVICE PROVIDER. Westcon Group disclaims all representations and warranties, express or implied, as to the Products, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose. In no event will Westcon Group be liable for any loss, damage or cost for breach of warranty. Any product performance or service warranty will be provided directly from VMware to the VSPP Service Provider.

10.0 Term and Termination

10.1 Term: This Agreement will commence on the Effective Date and will continue for a minimum of one (1) year (“Initial Term”). After the Initial Term, this Agreement will automatically renew for successive one (1) year terms unless either party provides written notice of its intention to terminate upon (30) days prior written notice. Those sections which by their nature are intended to survive termination or expiration of this Agreement shall survive the termination or expiration of this Agreement. Sections 3, 5, 14.3, 14.4 and 14.6 shall survive the termination of this Agreement solely to the extent necessary for the fulfillment of any outstanding orders or for any payments of fees that are accrued prior to the date of termination.


10.2 Termination: After the end of the Initial Term, either party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the other party. This Agreement may be terminated for material breach of any provision of this Agreement by either party, provided that written notice of the breach has been given to the breaching party and the breaching party has not cured the breach within twenty (20) days after delivery of the notice. Expiration or termination shall be without prejudice to the accrued rights and liabilities if the parties. Westcon Group will, So long as VSPP maintains at least a one-year hosting contract with Westcon Group, at the time of the termination of Westcon Group’s agreement with VMWare, Westcon Group will provide VSPP Service Provider the option to take part in VMware’s hosting program for the remainder of the VSPP Service Provider’s then-current one year term.

10.3 Limitation of Liability upon Termination. Westcon Group will not incur any liability for exercising any of its rights to terminate this Agreement. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR WESTCON GROUP TO ENTER INTO THIS AGREEMENT AND THAT WESTCON GROUP WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.

11.0 Confidential Information.

“Confidential Information” means any information disclosed by one party to the other pursuant to this Agreement that is marked “Confidential,” “Proprietary,” or in some similar manner. Each party shall treat as confidential all Confidential Information of the other party and shall not use such Confidential Information except to exercise its rights or perform its obligations under this Agreement. Each party shall not disclose such Confidential Information to any third party during the term of this Agreement and for a protection period of three (3) years beyond such term. The terms and conditions of this Agreement shall be Confidential Information subject to the provisions of this Section, whether or not marked confidential. This paragraph will not apply to any Confidential Information that: (a) was rightfully in possession of either party prior to receipt of such Confidential Information from the other party; (b) is or becomes a matter of public knowledge through no fault of the party receiving such Confidential Information hereunder; (c) is rightfully received from a third party without a duty of confidentiality; (d) is independently developed by the other party without breach of any confidentiality obligations; or (e) is disclosed by either party with the other party’s written approval; or (f) the recipient is required to disclose by applicable law or court order. The parties acknowledge that breach of this Section will cause irreparable damage to the disclosing party for which monetary damages will be an inadequate remedy. Accordingly, either party will be entitled to seek and obtain injunctive and any other relief (legal or equitable) to restrain any breach or anticipated breach of this Section.

12.0 INDEMNIFICATION

12.1 Limitation. WESTCON GROUP DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO ANY INFRINGEMENT BY THE PRODUCTS OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT.

12.2. Indemnification. VSPP Service Provider shall, at its expense, defend, indemnify and hold Westcon Group, its affiliates and their directors, officers, employees and agents harmless from any and all damages, claims, losses, costs, expenses (including reasonable attorney’s fees), demands, debts, and other liabilities, arising from any action brought or threatened from a third party that is based on, arising out of, or relates to the non-performance of VSPP Service Provider Aggregator of any of its obligations under this Agreement, or resulting from (i) damage to any property caused by any act or omission of VSPP Service Provider; (ii) bodily injury or death of VSPP Service Provider personnel or any other person as a result of any act or omission of VSPP Service Provider ,, provided that, as a condition of VSPP Service Provider’s obligations hereunder, Westcon Group shall: (a) promptly notify VSPP Service Provider in writing of any such claim; (b) give VSPP Service Provider sole control of the defense of any such claim and any related negotiations or


settlement; and (c) give VSPP Service Provider the information and assistance necessary to settle or defend such claim.

13.0 LIMITATION OF LIABILITY.

13.1 WESTCON GROUP’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE LESSER OF USD$500,000.00 OR THE TOTAL AMOUNT PAID UNDER THIS AGREEMENT BY VSPP SERVICE PROVIDER TO WESTCON GROUP.

13.2 WESTCON GROUP WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

14.0 Miscellaneous.

14.1 Governing Law. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. This Agreement will be governed by the laws of the Singapore, without regard to conflict of law principles. The courts of Singapore will have jurisdiction over all matters arising out of this agreement.

14.2 Assignment. This Agreement and any rights or obligations of VSPP Service Provider under it may not be assigned, subcontracted or otherwise transferred by VSPP Service Provider, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Westcon Group. For purposes of this Section 14.2: (a) the acquisition by any person, entity or group directly or indirectly, of beneficial ownership of more than 50% of the total voting power of the capital stock or other securities of the VSPP Service Provider; or (b) any merger, consolidation or similar transaction by the VSPP Service Provider with or into any person or entity (even if the VSPP Service Provider is the surviving entity) other than in a transaction in which the holders of a majority of the outstanding voting stock prior to such transaction continue to hold majority of the outstanding voting stock of the surviving or continuing entity following such transaction, shall each constitute an assignment for which the prior written consent of Westcon Group is required. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

14.3 Export Control. VSPP Service Provider understands and acknowledges that Westcon Group is subject to regulation by agencies of the United States, including, but not limited to, the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Westcon Group to provide any technical information or assistance shall be subject in all respects to such laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including without limitation the U.S. Export administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the U.S. Department of Commerce, Bureau of Export Administration. VSPP Service Provider warrants that it will comply with the U.S. Export Administration Regulations and other U.S. and foreign laws and regulations governing exports and imports in effect from time to time. Upon delivery of the Products, VSPP Service Provider must comply with all export and US re-export laws. VSPP Service Provider is prohibited from exporting the Products out of the Territory without the necessary export and/re-export permits. VSPP Service Provider is responsible and liable for all export and/or re-export compliance. Notwithstanding any other clause in the Agreement, VSPP Service Provider will indemnity Westcon Group for any non-compliance of


export and/or re-export laws. An indemnity under clause 14.3 cannot be capped by the VSPP Service Provider.

14.4 Foreign Corrupt Practices Act; Anti-Bribery; Compliance with Law. Neither VSPP Service Provider nor any of its agents or employees may offer, pay, promise or authorize any direct or indirect payments of anything of value, for the purpose of seeking, obtaining or retaining business, to any commercial or government official (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or any official or employee of any public international organization, such as the United Nations or World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business), any political party or party official, any political candidate or any person or entity whom VSPP Service Provider knows or has reason to believe will give part of the payments to any of the previously mentioned categories of people. Should VSPP Service Provider have any further questions about the FCPA, VSPP Service Provider should contact the U.S. Department of Justice website at: http://www.usdoj.gov/criminal/fraud/fcpa/. VSPP Aggregator will at all times comply with all laws and regulations which apply to the promotion, distribution and support of the VMware Products and services in the Territory. VSPP Service Provider will comply with the VMware Partner Code of Conduct that will be provided by Westcon Group upon request by VSPP Service Provider.

14.5 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

14.6 Notices. Any notice regarding the terms of this Agreement must be sent by email to the current business manager for the Party, and confirmed in writing by delivery in person, or sent by reputable air courier and/or express mail to the address set forth in the opening paragraph of this Agreement to the attention of the General Counsel. Notices will be deemed effective upon receipt of the confirmation. Westcon Group may provide notices regarding any revisions to any terms contained in any VMware Guide referenced in any Exhibit hereto, or the Partner Code of Conduct, or any product list or price list by providing fifteen (15) days prior notice to VSPP Service Provider. If any revision by VMware to any of the foregoing documents is unacceptable to VSPP Service Provider, the sole and exclusive remedy of VSPP Service Provider is to terminate this Agreement within fifteen (15) days after the notification of such revision.

14.7 Relationship of the Parties. The relationship of the Parties established by this Agreement is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent, having such authority, or being a partner or joint venturer of the other.

14.8 Severability. If any portion of this Agreement (including without limitation the prohibition on de-compiling or reverse engineering) is held to be unenforceable, the remainder of this Agreement will continue to be valid and enforceable to the fullest extent permitted by law. Any such provision shall be deemed to be modified to greatest extent possible to reflect the original intent of the Parties as permitted by applicable law.

14.9 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire, and explosions. Nothing in this clause shall relieve VSPP Service Provider of its obligations to make timely payments hereunder.


14.10 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This Agreement may be executed and delivered by scanned/emailed copy or facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.

14.11 Entire Agreement. The terms and conditions of this Agreement and the VMware Service Provider Program Guide constitute the entire Agreement between the parties and supersede all previous agreements, whether oral or written, between the parties with respect to the subject matter hereof. The then-current terms of the VMware Service Provider Program Guide shall govern in the event of any conflicts with this Agreement. Other than updates to the VMware Service Provider Program Guide, no amendment or waiver of this Agreement will be binding unless it has been agreed to in writing by both parties.

IN WITNESS WHEREOF, VSPP Service Provider and Westcon Group have caused this Agreement to be signed by their duly authorized representatives, effective as of the Agreement Effective Date above.

Westcon Group Pte Limited

By: By:

Print Name: Print Name: Phillip Lay

Title: Title: Regional Director

Date: Date:


EXHIBIT A VMWARE PRODUCTS

VSPP Service Provider may utilise licenses for hosting purposes for the then-current version of the VMware Products listed below that are made generally available by VMware, provided VSPP Service Provider has agreed to the respective EULA (as amended by Exhibit B) for the applicable VMware product. This list of VMware Products or the contents of any VMware Product may be updated at any time by Westcon Group by providing email notice to VSPP Service Provider, which notice refer VSPP Service Provider to Partner Central. VMware vCloud Premier Service Provider Bundle (metered software) – consisting of:

VMware vSphere Enterprise Plus Edition VMware vCenter Server Standard vCloud Network and Security Advanced VMware vCloud Usage Meter VMware Chargeback VMware vCloud Director

VMware vCloud Standard Service Provider Bundle (metered software) – consisting of: VMware vSphere Standard Edition including DRS VMware vCenter Server Standard VMware vCloud Usage Meter VMware vCloud Director

VMware View Premier – consisting of:

VMware View Manager with View Composer Local Mode VMware ThinApp (client and packager) VMware Workstation VMware vCenter Server Standard VMware vSphere for Desktops

vCloud Network and Security Advanced VMware ThinApp Client VMware Site Recovery Manager VMware vCenter Server Heartbeat VMware vCenter Capacity IQ VMware vShield Edge VMware vShield App tc Server tc Server Spring Edition Hyperic HQ EE

Software Points and Usage Table


The following table defines the monthly point cost of the VMware Products and the measurement methodology used to calculate the total points used by each product. Further explanation of usage limits and billing guidelines are set forth in the Usage Guide. Product Name Points/ Month Charged Per VMware vCloud Premier Service Provider Bundle

7 1 GB Reserved RAM (based on average monthly usage)

VMware vCloud Standard Service Provider Bundle


vCloud Integration Manager (vCIM)


VMware vCenter Operations Management Suite Enterprise Edition


VMware vCenter Operations Adapter for Storage

21 1 TB Storage Monitored

VMware vCenter Operations Adapter for Network Devices

2 Network Device

VMware vCenter Operations Adapter for 3rd Party Data Source (e.g Microsoft SCOM)

5 Third Party Data Source

VMware vCenter Configuration Manager

39 Virtual Machine

VMware vCenter Site Recovery Manager

24 Protected Virtual Machine

VMware vCloud Network and Security Advanced

4 Virtual Machine

VMware vCenter™ Server Heartbeat™

486 Protected vCenter Server

Cisco Nexus 1000V 34 CPU VMware vFabric Data Director 80 2 vCPUs of provisioned vFabric

Postgres databases VMware vFabric Suite Standard 73 Virtual Machine VMware vFabric Suite Advanced 122 Virtual Machine vFabric Gemfire Data Management Node

583 CPU

vFabric Gemfire Unlimited Client Upgrade

292 CPU

vFabric Gemfire Global WAN Upgrade

292 CPU

vFabric SQLFire Enterprise Edition

730 CPU

VMware® vFabric™ Hyperic® 15 Machine VMware View Premier 12 Concurrent Connection VMware View Enterprise 7 Concurrent Connection VMware® ThinApp® Client 2 ThinApp Client VMware Mirage VMware Account Manager Named User

VMware vCloudTM Bundle Table

The following table defines usage limitations for the VMware vCloudTM product bundles (#1 and #2 in the above table).


vCloudTM Standard Service Provider Bundle

vCloudTM Premier Service Provider Bundle

VMware vSphere® Edition Standard + DRS Enterprise Plus

VMware vCenterTM Server Standard

Included Included

VMware vCloud Usage Meter

Included – must be used Included – must be used

Chargeback Not Included Included

VMware vCloudTM Director # of Users

Single Multiple

VMware vCloudTM Director # of virtual datacenters

Single Multiple

VMware vCloudTM Director # of L2 Networks

Single Multiple

VMware vCloudTM Director Virtual datacenter Type

Single Pay Per Use Virtual Data Center (“VDC”) only

Multiple

VMware vCloudTM Director LDAP Auth

No Yes

EXHIBIT B

EULA AMENDMENT FOR HOSTERS

Upon payment of the appropriate license fees and upon acceptance into the VMware Service

Provider Program (“VSPP”), VMware agrees that the standard end user license agreement

(EULA) for the Software shall be amended as follows:


Hosting. Under VMware’s standard license offering for certain Software, hosting of the Software licensed by Service Provider may be restricted to certain terms or prohibited. In consideration for the fees paid by Service Provider, the hosting terms shall be modified as follows:

a) Definitions. The definition of “Designated Administrative Access” is amended to read as follows:

“Designated Administrative Access” means that access to the standard user interfaces of a given instance of the Software that you may grant to a designated third party(ies) for whom you are providing hosted services and for whose dedicated benefit you have licensed such instances of the Software. Designated Administrative Access 1) is applicable only when you are an IT company that is providing hosted IT services to End User Customers, and 2) applies only to the Software as set forth in Exhibit A, and all related Licensed Additional Modules and components.

b) License. At the end of this Section the following language is added:

“Subject to your compliance with the EULA, solely to the extent necessary to exercise the rights granted herein, any language prohibiting hosting to third parties and prohibiting such third parties to install, upload, or uninstall computer application(s) to and from the Virtual Machine(s) is hereby deleted.”

c) Term of License. Any references in the EULA to a “perpetual” license are hereby deleted. All licenses granted shall be a limited to the term that the Service Provider is a member of the VMware Service Provider Program.


EXHIBIT C - PRICE LIST

Ordering SKU’s will be used when Service Provider submits the initial order to Westcon Group for the licenses and support. The Reporting SKU’s will be used for monthly reporting and payment purposes. This list of SKU’s and all information associated with any SKU may be updated at any time by Westcon Group by providing email notice to VSPP Service Provider.

Reporting SKUs

Part Number Description US$ Notes

VSPP-360-RENT VSPP Monthly Rental - Minimum 360 pts or 10 eVM

$4,320 12 months up front payment

VSPP-360-1-RENT VSPP 360 Monthly Rental overage charges

$1.00 Overage points applied to the 360 pt plan

Ordering SKUs


VSPP3-360-C VSPP 360 pt Plan, 12 month commitment

$0.00 1 VCP in developing countries. Order applicable SnS SKU at same time

Ordering SKUs


VSPP3-360-PSSS-C Platinum Support and Subscription for VSPP 360 pt Plan for 12 Months

$0.00

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