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 computerapplication 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.
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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 Providers 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.
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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

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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 Groups 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
Providers price in USD Dollars on the first business day of each month for that months 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 Providers Orders. All
Orders placed with Westcon Group for the VMware Products will be subject to VMwares written
acceptance, and no Order will be binding upon Westcon Group until the earlier of the date of
VMwares 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 Providers purchase order
which is inconsistent with the pricing set forth on in the current VMware Price List.
4.0

Records.

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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 Providers 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 Groups 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 Providers 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 VMwares 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
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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 VMwares 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.
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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 Groups agreement with VMWare, Westcon Group will provide VSPP
Service Provider the option to take part in VMwares hosting program for the remainder of the
VSPP Service Providers 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 partys 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 attorneys 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 Providers 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
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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 GROUPS 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 reexport 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
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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.
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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:

Westcon Group Confidential

Page 10 of 15

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

Westcon Group Confidential

Page 11 of 15

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
VMware vCloud Premier Service
Provider Bundle
VMware vCloud Standard Service
Provider Bundle
vCloud Integration Manager
(vCIM)
VMware vCenter Operations
Management Suite Enterprise
Edition
VMware vCenter Operations
Adapter for Storage
VMware vCenter Operations
Adapter for Network Devices
VMware vCenter Operations
Adapter for 3rd Party Data Source
(e.g Microsoft SCOM)
VMware vCenter Configuration
Manager
VMware vCenter Site Recovery
Manager
VMware vCloud Network and
Security Advanced
VMware vCenter Server
Heartbeat
Cisco Nexus 1000V
VMware vFabric Data Director

Points/ Month
7

VMware vFabric Suite Standard

VMware vFabric Suite Advanced
vFabric Gemfire Data
Management Node
vFabric Gemfire Unlimited Client
Upgrade
vFabric Gemfire Global WAN
Upgrade
vFabric SQLFire Enterprise
Edition
VMware vFabric Hyperic
VMware View Premier
VMware View Enterprise
VMware ThinApp Client
VMware Mirage

Charged Per
1 GB Reserved RAM (based on
average monthly usage)
1 GB Reserved RAM (based on
average monthly usage)
1 GB Reserved RAM (based on
average monthly usage)
1 GB Reserved RAM (based on
average monthly usage)

5
1
2
21

1 TB Storage Monitored

Network Device

Third Party Data Source

39

Virtual Machine

24

Protected Virtual Machine

Virtual Machine

486

Protected vCenter Server

34
80
73
122
583

CPU
2 vCPUs of provisioned vFabric
Postgres databases
Virtual Machine
Virtual Machine
CPU

292

CPU

292

CPU

730

CPU

15
12
7
2
VMware Account Manager

Machine
Concurrent Connection
Concurrent Connection
ThinApp Client
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).
Westcon Group Confidential

Page 12 of 15

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:
Westcon Group Confidential

Page 13 of 15

Hosting. Under VMwares 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.

Westcon Group Confidential

Page 14 of 15

EXHIBIT C - PRICE LIST

Ordering SKUs will be used when Service Provider submits the initial order to Westcon Group for the licenses
and support. The Reporting SKUs will be used for monthly reporting and payment purposes. This list of SKUs
and all information associated with any SKU may be updated at any time by Westcon Group by providing email
notice to VSPP Service Provider.
Ordering SKUs
Part Number
VSPP3-360-C

Ordering SKUs
Part Number
VSPP3-360-PSSS-C

Reporting SKUs
Part Number
VSPP-360-RENT
VSPP-360-1-RENT

Westcon Group Confidential

Description
VSPP 360 pt Plan, 12 month
commitment

US$
$0.00

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

Description
Platinum Support and Subscription for VSPP
360 pt Plan for 12 Months

Description
VSPP Monthly Rental - Minimum
360 pts or 10 eVM
VSPP 360 Monthly Rental
overage charges

Page 15 of 15

US$

Notes

$0.00

US$

Notes

$4,320

12 months up front payment

$1.00

Overage points applied to

the 360 pt plan