Embedded Solution Agreement Purchase Commitment for Programs Transaction Document between Datavault AI Inc. and IBM

Exhibit 10.1

Base Agreement Number: USEFIMYD7UZ

Embedded Solution Agreement

Purchase Commitment for Programs Transaction Document: 03

This is a Purchase Commitment for Programs Transaction Document (“TD”) under the Embedded Solution Agreement (“Base Agreement”) referenced above, the ESA Attachment for Programs,. This TD becomes effective when signed by both parties.

Unless this TD is signed by June 30, 2025, IBM reserves the right to reject the terms of this TD.

By signing below (by hand or where recognized by law, electronically), each party agrees to the terms of this TD. Once signed, both parties agree that 1) any reproduction of the TD made by reliable means (for example, photocopy or facsimile) is considered an original, unless invalid under local law; 2) this TD together with the Base Agreement and the Attachments, forms a separate agreement (“Agreement”) between the parties, to which all Programs listed in this TD are subject; and 3) this TD, together with the Base Agreement and Program Attachment, is the parties’ complete agreement and replaces all prior oral or written communications between the parties regarding the transactions described in this TD. All terms used in this TD and not otherwise defined herein shall have the meanings ascribed to such terms in the Base Agreement.

Base Agreement Number: USEFIMYD7UZ

Embedded Solution Agreement

Purchase Commitment for Programs Transaction Document: 03

For each Program listed in the tables in Schedule A – Subscription License Programs below, BP may license the Program for distribution to an End User as part of BP’s Embedded Solution.

In addition to the rights in the Base Agreement and Program Attachment, when BP’s Value Add is an application, BP may provide IBM Programs as part of a Hosted Embedded Solution to End Users, unless prohibited by the Program LI. A Hosted Embedded Solution means BP is providing access to the Embedded Solution from one or more remote data centers to End Users over the internet or a private network. BP agrees that access to the Embedded Solution by BP or its End User will be consistent with the Program’s LI.

Notwithstanding the definition of Territory in the Base Agreement, BP may permit End Users in the countries where IBM has exclusive dealing arrangements to access IBM Programs as part of a Hosted Embedded Solution, provided the IBM Programs (or portions thereof) are not downloaded into those countries.

BP must implement adequate controls (including where appropriate by means of specific terms in BP’s contracts) on physical access, communications, and software access to prevent End Users from reading, displaying, copying or transmitting the actual code or documentation of IBM Programs.

All copies of any IBM Program used to provide a Hosted Embedded Solution must always reside on BP’s servers (or servers BP manages that are located at BP’s facilities) unless otherwise specified in the applicable Attachment or TD and may not be downloaded or copied by End Users except as necessary to allow End Users to access the Embedded Solution. IBM Programs (or portions thereof) downloaded by End Users must be licensed under BP’s End User Agreement, as required by the Base Agreement, Program Attachment and this TD. BP must notify IBM in writing, and obtain IBM’s prior written approval, before installing or otherwise transferring any Program on any server not owned or managed by BP.

For Subscription Licenses or Fixed Term Licenses, BP is permitted to re-use quantities of the IBM Programs that were previously consumed for an End User’s active workload, to provide hosting to another End User during the term of the Program license.

Programs licensed under this TD are Subscription Licenses as indicated in Schedule A – Subscription License Programs. For each Subscription Program, BP has the right to use and receive Subscription and Support for a specific Subscription Term, as specified in the tables in Schedule A. A Subscription Term is the period for which BP agrees to pay IBM and begins on the date that BP’s order is accepted by IBM or on the date specified in the TD. A Subscription License Program cannot be terminated by BP during a Subscription Term. A Subscription License Program will terminate at the end of the Subscription Term. To renew an expiring Subscription License Program, BP must order a subsequent Subscription Term. If BP does not renew, the license rights to the Subscription License Program and access to S&S will terminate, and BP is required to uninstall and destroy all terminated copies of the affected Program.

IBM may withdraw this licensing model for a Program at any time. If the current TD term extends past the withdrawal date, IBM may continue to provide this licensing model until the end of the then current term or work with BP to establish an alternative solution.

Base Agreement Number: USEFIMYD7UZ

Aggregate Value means the sum of the quantities of SLPs that are placed into SLP Active Use by BP multiplied by the Unit Consumption Rate listed on Table 1 – SLP Catalog for that SLP.

SLP Active Use means deployment by BP in an Embedded Solution for production, test, or development (e.g. no ’stockpiling’ of licenses).

Commitment Term means the period during which BP is authorized to use a SLP, as indicated in Table 1 – SLP Catalog. SLPs cannot be terminated by BP.

Subscription License Program (also SLP) means an IBM Program, listed on Table 1 – SLP Catalog, that BP has the right to use and for which BP will receive IBM Subscription and Support during the Commitment Term. The Committed Term Start Date and Committed Term End Dates for each catalog are specified in Table 1.

SLP Calculation Date means the earlier of the Commitment Term End Date listed on Table 1 – SLP Catalog or the date of termination of the Agreement.

SLP Active Use is subject to the following:

BP must submit a copy of the SLP Catalog Report every 90 days after the Start Date, and immediately as required by Section 2B(iv) to https://systems-ordering.ibm.com. A Final SLP Catalog Report shall be submitted on the earlier of the Commitment Term End Date or termination of the Agreement pursuant to section 10a of the Base Agreement. BP shall use the format shown below, listing the deployed quantities at any point in time between the Start Date and the date of the report ("Total Deployment Quantity") and the quantity of such deployments in SLP Active Use on that date ("Currently in Active Use").

Example report for illustrative purposes only:

Base Agreement Number: USEFIMYD7UZ

For the avoidance of doubt, providing only installation or implementation services or hosting the Program alone is not considered significant new functionality or capability and does not constitute Value Add.

The term of this TD is three (3) years from the date the last party executes it, or from June 30, 2025, whichever is later (“Term”).

Base Agreement Number: USEFIMYD7UZ

Included in the Charges in this section are the Programs in Table 1 – SLP Catalog and Table 2 – Fixed Quantity Subscription License Programs that BP licenses pursuant to the terms of the Agreement.

BP shall pay IBM the Charges on or before the following dates: 

The Charges do not include any additional amounts incurred pursuant to the section of this Agreement entitled “Verification”. The Charges and any additional charges beyond the Charges incurred pursuant to the section entitled “Verification” are exclusive of any applicable duties, fees and taxes. BP is responsible for any such duties, fees and taxes including, but not limited to, withholding taxes and, if as a result of BP moving, accessing or using any of the Programs across a border, any customs duty, tax, levy or fee (including withholding taxes for the import or export of any such Program). The Charges are not cancelable. IBM will not accept returns or exchanges and will not issue credit for returns BP accepts from End Users.

Notwithstanding the terms of this Agreement or our prior practice, payment is not contingent upon issuance of a Purchase Order. All approvals required to issue payment have been obtained. The bill to, ship to addresses along with specific information and amounts due under this Agreement are included herein or in other documents related hereto. This order is firm and irrevocable. IBM will invoice BP for such amount and BP agrees to pay as specified in the invoice.

Base Agreement Number: USEFIMYD7UZ

Base Agreement Number: USEFIMYD7UZ

Schedule A – Subscription License Programs