HomeMy WebLinkAboutResolution - 2064 - Contracts- Selected Hardware_Software Vendors- Integrated Management Info System - 06_14_1985Resolution #2064
June 14, 1985
Agenda Item #48
DGV:da
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized to
sign required contracts and associated documents on behalf of the City of
Lubbock for an integrated management information system and associated
hardware between the City of Lubbock and the selected vendors of hardware
and software, which contracts shall be spread upon the minutes of the
Council and as spread upon the minutes of this Council shall constitute and
be a part of this Resolution as if fully copied herein in detail.
Passed by the City Council this /4day of , 1985.
J ATTE�T�
Ranett h.Boyd, City Secretarf
1- APPROYFD-AS TO CONTENT:
Jo ldre ge, Data Proce ing
67
A nistrator
i
APPROVED AS TO FORM:
4
Dorl&kU G. Vandiver, Assistant laity
Attorney
r
Mr. John C. Aldredge
Information Services
City of Lubbock
916 Texas
Lubbock, TX 79757
Dear Mr. Aldredge:
Enclosed is a fully executed copy of our Letter Agreement dated
October 23, 1984 regarding your desire to acquire the right to
use the following:
MS452 MSA Material Management Inventory System -
IBM/OS Version, comprised of:
MS177 Online Realtime (CICS) Module
MS330 Manufacturing Standards Module
MS332 Inventory Control Module
MS336 Material Requirements Planning Module
MS348 Advanced Inventory Management Module
MS354 Purchasing Module
MS520 Installatio�munder ADR/DATACOM/DB
MS530 EASY -SCREEN Module for use with the
MSA Material Management Inventory System
and cancelling your right to use the following:
PH302 MSA Purchasing System - IBM/OS Version, including:
PH177 Online Realtime (CICS) Module
PH520 - Installation under ADR/DATACOM/DB (when available)
IM302 MSA Inventory Management System - IBM/OS Version,
including:
IM170 Online Inquiry and Entry (CICS) Module
IM510 General Ledger Interface Module
IM520 - Installation under ADR/DATACOM/DB (when available)
Also enclosed is our invoice in the amount of $9,500.00, per the
terms of our Agreement.
We appreciate your interest in MSA and our software products.
Please call on me if I may be of any further personal assistance.
Sinc ely,
Krista Reeves
Contract Administrator
KR/sh: Enclosure
4,
MANAGEMENT SCIENCE AMERICA, INC. • 3445 PEACHTREE ROAD, N.E. • ATLANTA, GEORGIA 30326-1276 • (404) 239-2000
* BELW
wry a► ��►
r!�l�v
The Software Company
LETTER AGREEMENT
October 23, 1985
Mr. John C. Aldredge
Information Services
City of Lubbock
916 Texas
Lubbock, Texas 79757
Dear Mr. Aldredge:
It is MSA's understanding that the CITY OF LUBBOCK ("Customer") desires to amend
its Software System Agreement with MSA dated June 14, 1985 ("Agreement"), for
the right to use MSA's software systems specified in Exhibit A thereto to
include Customer's right to use the following system ("New System"):
MS452 Materials Management Inventory System - IBM/OS Online Realtime
(CICS) ADR/DATACOM/DB Version including:
Manufacturing Standards Module
Inventory Control Module
Advanced Inventory Management Module
Materials Requirement Planning Module
Purchasing Module
EASY -SCREEN" Module
The right to use the above -referenced software system configuration is in lieu
of Customer's right to use the following systems ("Cancelled System"):
PH302 MSA Purchasing System - IBM/OS Online Realtime (CICS) Version
PH520 Installation Under ADR/DATAC)OM/DB (when available)
IM302 MSA Inventory Management System - IBM/OS Online (CICS) Version with
General Ledger Interface Module
IM520 Installation Under ADR/DATAODM/DB (when available)
The charge for this upgrade is Nine Thousand Five Hundred Dollars ($9,500.00),
_ for a total license fee of Five Hundred Eight Thousand Six Hundred Dollars
($508,600.00), and MSA will invoice Customer in accordance with the terms of the
Agreement. This upgrade charge reflects a credit in consideration of Customer's
cancellation of the right to use the Cancelled Systems under the following terns
and conditions:
Continued . . . . .
MANAGEMENT SCIENCE AMERICA. INC 6 3445 PEACHTREE ROAD. N E. • ATLANTA. GEORGIA 30326-1276 • (404) 239-2000
t
Mr. John C. Aldredge
City of Lubbock
October 23, 1985
Page Two
1. Customer shall, within three (3) days after execution of this Letter
Agreement by Customer:
(a) return to MSA the Cancelled System (including all documentation and
other related materials pertaining to the Cancelled System delivered
by NSA to Customer) to:
Management Science America, Inc.
3445 Peachtree Road, N.E. - Suite 1100
Atlanta, Georgia 30326
Attention: Legal Services Department
(b) remove from Customer's libraries any programs or copy modules entered
in Customer's computer program libraries pertaining to the Cancelled
System; and
(c) destroy any and all additional materials pertaining to the Cancelled
System prepared by or for Customer.
2. Customer shall certify to MSA that it shall comply with the above mentioned
provisions by executing this Letter Agreement.
3. Customer affirms that this Letter Agreement shall act as written
notification by Customer to MSA of Customer's intention to cancel that
portion of the Agreement pertaining to the Cancelled System.
4. Customer agrees that Paragraphs 5., 7., 8. and A.17. of the Agreement
survive the cancellation of that portion of the Agreement pertaining to the
Cancelled System and shall remain in full force and effect, and Customer
acknowledges its continuing obligations to hold in confidence MSA's
copyrights, trade secrets and proprietary interests in the Cancelled
System.
5. Customer agrees that Paragraph A.12. of the Agreement shall not apply to
the New System.
If the above terms and conditions are acceptable, please have the authorized
representative of Customer sign the original and enclosed copy of this Letter
Agreement in the appropriate space below and return them to my attention at MSA
in Atlanta. Upon receipt, I will present them for execution on behalf of NSA
and return a fully executed copy to you for your files. This Letter Agreement
amends and becomes an integral part of that Software System Agreement dated June
14, 1985.
Paragraph A.22. of the Agreement provides that Customer shall provide to MSA an
opinion of its Legal Counsel regarding the legal consequences of changing the
governing law of the Agreement from Georgia to the State of Texas. This opinion
has not been received by MSA at this time.
Continued .
f
Mr. John C. Aldredge
City of Lubbock
October 23, 1985
Page Three
If you have any questions with regard to this matter or if I may be of any
further assistance, please contact me at (404) 239-3302. MSA appreciates your
business and cooperation.
Sincerely,
Air=
Counsel
ACCEPT®:
MANAGEMENT SCIENCE RICA, INC. CIl
By By:
Name Printed: Harry R. Howard Nart
Title: Vice President Title: MAYOR
Date: November 11, 1985 pate: 10-29-85
AMOV€D AS TO CONTENT:
International Business Machines Corporation Armonk, New York 10504
Supplement to Agreement for IBM Licensed Programs
Name and Address of Customer:
City of Lubbock
John C. Aldredge
Manager of Information Services
P. 0. Box 2000
Lubbock, Texas 79457
IBM Branch Office Address: IBM Branch Office No.:
IBM Corporation G69
1602 loth Street
Lubbock, Texas 79408
Customer No.:
5343502
The following Licensed Program Materials are hereby made subject to the referenced Agreement for IBM Licensed Programs:
Reference Reference
Agreement No.: Amendment No.:
Date Prepared:
See the reverse side for
clarification of column headings.
Licensed Program/
Features)
Optional Materials
Designated Machine
Type/Serial or
Description Plant Order Number
Type/Duration
of
Program Service
Estimated
Shipment Date
or Effective Date for
Additional License
Charges
$
d
o°
d
m g�
o H"o.
m
_ g d
° c ;
Z° 0 a
0
J
n
a
d m
� m
w
a
Z
m z
y
i
i
d
c
o u
a n d
a
5735—XXB
Emulation Program
CS*
08/09/85
257/1,28
/I
C
B
2
ES
N/A
5740-XX1
CICS/OS/VS
CS*
08/09/85
1,910/5,35
M/I
C
B
2
YES
N/A
5748—XXH
GDDM w/PGF;and IMD
CS*
08/09/85
159/ 76
/I
C
B
1
YES
N/A
TOTALS
One —Time
4,00
Initial
21,09
Monthly
8,94
Page 2 of 2
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THE REFERENCED AGREEMENT, REFERENCED
AMENDMENT, AND THIS SUPPLEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND
CONDITIONS.
(Customer signature is not required if l3
a signed written order is submitted.) y
Customer
Authorized Signature
Z1 25-3359-02 WIM050) 3/85
Name (type or Print)
Please send all communications to IBM at its Branch 011ice unless advised to the contrary.
Date
1
COLUMN HEADINGS
Type/Duration
. ,
of
Program Service
Charge Type
_
-- No. of Consecutive Payments
Installation!
Location/Usage
Type:
Charge Type/Period
For periodic` charges, the number of con-
I = Installation license applies
CS = Central Service
M = Monthly
secutive payments; or "C" for continuous
L = Location license applies
LS = Local Service
Q = Quarterly
charges:,,
U= Usage license (Limited) applies
=Local Assistance
Blank
Blank or NA =Not applicable
S = Semi -Annual
N= Usage license (Not Limited) applies
A = Annual
Testing Period
Blank or NA = Not applicable
Duration. `� ..
Charge e T e/Other
9 YP -
Testin 9 Period -in months; if an
- until discontinued by IBM with a.mimmum:of six months' written
I = Initial Charge
numtie� followed by a D" indicating days.
notice:' -
O =One Time Charge
*-untiVa designated calendar date.
P =process Charge
W
***.during the testing period.
U = Upgrade Charge
**'*for a designated number of months for each license.
L = Licensed Optional Material Charge
International Business Machines Corporation Armonk, New York 10504
Name and Address of Customer: IBM Branch Office Address: IBM Branch Office No.:
City of Lubbock IBM Corporation G69
John C. Aldredge 1602 loth Street
Manager of Information Services Lubbock, Texas 79408
P. 0. Box 2000
Lubbock, Texas 79457
Supplement to Agreement for IBM Licensed Programs
Customer No.:
5343502
The following Licensed Program Materials are hereby made subject to the referenced Agreement for IBM Licensed Programs:
Reference Reference
Agreement No.: Amendment No.:
Date Prepared:
See the reverse side for
clarification of column headings.
Licensed Program/
Features/
Optional Materials
Designated Machine
Type/Serial or
Description Plant Order Number
Type/Duration
of
Program Service
Estimated
Shipment Date
or Effective Date for Charges
Additional License $
m
=
d o
o�
n'�
to P a
m
2!
, 0t
m
E
o m
z 0 a.
0
J
N
G II
�T°
m �
c �
52 m
�gd
in `
g a
Z
a 0
� z
u
r
m
C
c ` J
V o
A
5740-XYS
HVS/SP-JES2 V1
CS*
08/09/85
2,174
M
C
B
2
YES
N/A
5752-VS2
OS/VS2
CS*
08/09/85
N/C
-
-
-
-
NO
N/A
5658-260
EREP V3R1
-
08/09/85
N/C
-
-
-
-
-
-
5798-DGN
Spool Display Seareh Facility
CS*
08/09/85
1,500
0
-
B
1
NO
N/A
5785-BAB
JES/328X PRINT FACILITY
CS**
08/09/85
2,500
0
-
B
1
NO
N/A
5740-UT3
DFDSS R2.1
CS*
08/09/85
89
M
C
B
1
YES
N/A
5740-CBI
OS/VS Cobol Compiler and Library
CS*
08/09/85
366
M
C
B
1
YES
N/A
5740-SM1
DFSORT
CS*
08/09/85
248
M
C
B
1
YES
N/A
5668-949
SMP/E R2
CS*
08/09/85
321/1,800
M/1
C
B
1
YES
N/A
5665-317
ISPF/PDF
CS*
08/09/85
535/3,500
M/1
C
B
1
YES
N/A
5665-319
ISPF Dialog Mgr.
CS*
08/09/85
204/ 6.00
M/I
C
B
1
YES
N/A
5665-295
MVS/370 DFP
CS*/LS*
08/09/85
530/1,485
M/I
C
B
2
YES
N/A
5740-XY4
RMF
CS*
08/09/85
407
M
C
B
1
YES
N/A
5665-280
ACF/VTAM V2.1
CS*
08/09/85
1,215/3,405
M/1
C
B
2
YES
N/A
5667-124
ACF/NCP V3
CS*
08/09/85
428/2,400
M/1
C
B
2
YES
N/A
5735-XXA
ACF/SSP
CS*
08/09/85
99/ 508
M/1
C
B
2
YES
N/A
Page 1 of 2
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THE REFERENCED AGREEMENT, REFERENCED
AMENDMENT, AND THIS SUPPLEMENT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND
CONDITIONS.
(Customer signature is not required if
a signed written order is submitted.) By
Customer
Authorized Signature
Z125-3359-02(U/101050)3185
Name (Type or Print)
Please send all communications to IBM at its Branch Office unless advised to the contrary.
Date
c
: -'--
COLUMN ""HEADINGS`
Type/Duration-
'
_
of
Installation/
Program Service
Charge Type = :•_
,fY•a Qf Consecubve`%RaymenIs i
locaGoia/,Usage'.';
Type - -=
Charge Type/Period
For'period�ccharges, the number con-
I =Installation licence apples
y • -
G& = Central Service - :.° ' =-
=
r. --'tut tvtonthiy
secutive payments; or "C" for continuous
y
. `L = Location .license applies...
LS _Local Service
Q Quarterly
charges
i
U= sage license (Limited)•a lies
'_N=
LA =Local Assistance _,.r•
_
- Semi -Annual
S - Semi
1
Usage license ot'Lin it dj applies
-131ank o1 fVA = Nct applicable-
PP -
-
al
- _A = Apnual
, ` " `Testing Period,
Blank orgNA-Not applicable.
-
_ . v' : is
Duration:
_:. _ ° - .
Charge TypelOther
. ,. s .r---..,,....
Testing �!ariod in months (ifrty), unless
—
until discontinued by IBM with a minimum of six months' written
I = Initial Charge
number followed by a "D" ind iCeting dNys.
notice:.,..,.
O = One Time Charge
*untiho;oesignated calendar date „- _
P = Process Charge
***during the testing period.
U = Upgrade Charge
****for.a designated number of months for each license.
L = Licensed Optional Material Charge
International Business Machines Corporation Armonk, New York 10504 Supplement to Agreement for Purchase of IBM Machines
[ ] Purchase of On -Order Machines [ ] Purchase of Installed Machines
r IBM Branch Reference Reference
Name and Address of Customer (invoice to): Installation Address: Office No.: Customer No.: Agreement No.: Amendment No.:
City.of.Lubbock. Computer Room G69 5343502
Information Services Municipal Square Building Customer Reference: Date Prepared:
P . 0 . Box 2000 916 Texas .Avenue Purchase of Installed Machines: Quotation Month: t:(iees..: D.w of Pu hd.e:
Lubbock, Texas 79457 Lubbock, Texas 79401
IBM Branch Office Address: Prices for purchase of instal led Machines may be changed by InH up to and including the Effective
Date of Purchase (which must be within the Quotation Month), subject to any, limitations de-
1602 10th Street scribed in the applicable IBM lease or rental agreement.
Lubbock, Texas 79408 - Maintenance
z Warranty
� r_ Agreement
E-6 i z F i Options
_ Service
:.
u Ft 1u Z.
IBM Plant Purchase E m d a 5? = Types _ i Types
Order or Price Estimated o m a Available L y Available L.
Machine Serial Model or $ Total Shipment m = (None Un- F - (1 Unless F
Qty. Type Number (*) Feature Description WerUnii) $ - Date _ 9 (essNoted) Noted).
1 4381 PO1 Processor 431,200 431,200 08/09/85 12f t 1
2 _3205 100 Color Display Console 2 895 5,790 08/09/85 3''=
1 3203 005 Printer 1200 LPN 33,875 33,875 08/09/85 3 >x 1
1 - 3880 003. Storage. Controller 48,216 48, 216 ' 08/09/853 a, Kr h1
3 3420 006 Magnetic .Tape Unit 20,125 60,375 08/09/85 '3 ;
1 3803. 002 Tape Controller 27-,550 27,550 08/09/85t „< _` 1
1 3705 ' M82 Communication Controller 51,010 51,010 08/09/85 `3
1
' 2 3380 AD4 DASD 71,024 142,048 08/09/85 �3:�,"l 1
1 3380 BD4 DASD 51,552 51,552` 08/09/85 1'i >$
1 3044 CO1 Channel Extender Link 8500 8500 - 09/27/85 12 $ 1
1 3044 - D01 Channel Extender Link 8,500 8500 09/27/85 1-�
1 3262 005 Printer 650 LPN 18,012 18,012 08/09/85
2 3274 A41' Terminal Control Unit -.(Local)10,938 21,876 08/09/85
s W+ 1
1 3866 00.1 Multimodem Enclosure 1,632 1;632 08/09/85 a '0
2 3868 004 Rack Mounted Modem 9600 BPS 2,795 5,590 08/09/85 r36:4 r .
x,*
2 3865 002 Modem 9600 BPS 3,023 6,046 08/09/85 3 t 1
1 3274 C61 Terminal Control Unit (Remote)4,981 4,981 08/09/85 3.,,
34 3179 100 Color Display Station 1,377 46,818 08/09/85 '3 4 �=F4' � 3 3
14,
\dry +. s Z
THIS SUPPLEMENT CONFIRMS YOUR ORDER TO PURCHASE THE MACHINES LISTED HEREIN. FURTHER, CUSTOMER AGREES THAT THIS SUPPLEMENT AND THE REFERENCED AGREEMENT,
INCLUDING ANY OTHER IBM AGREEMENTS OR CERTIFICATIONS REFERRED TO THEREIN, AND REFERENCED AMENDMENT, IF ANY, ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO TILE SUBJECT MATTER HEREOF.
END USER CERTLFICATIONt SEE REVERSE SIDE. (*) An "*" indicates Machine Serial Number.
Invoice Information: Invoice No.: Subtotal $ WARRANTY OPTIONS AND MAINTENANCE AGREEMENT SERVICE
_ ..._ -
Payment is due on the Date of Installation except for purchase of installed Machines for which (fin'. thi. supple. —I (See reverse side for additional information)
payment must be received b tax or to the end of the Quotation Month in order to establish ..d n. C.minuMi—) B selecting for each Machine T from the Types Available and b initialing
PlYnt Y prior Q $ Y g Type YPe Y� g
Taxes
the Effective Date of Purchase. below, and returning a copy of each page of this Supplement to ram at its ad -
Remit to Address:
Destination Charges $ dress above, the Customer accepts:
IBM Warranty Options, if available; and/or
Pay This Amount $El IBM Maintenance Agreemcnt Service.
Z125.3575.00 (U/M 500) 7/84 Page of .
END USER CERTIFICATION
The Customer represents that the Customer is purchasing the machines for use within its own business
enterprise ad"n6tfoJr'remarkddA9.Thii eert�ificatibh does riot apply -to. a)' of installed I lease)
or rental machines; b) purchase of IBM 3081, 3082, 3083, 3084, 3087, 3088 and 3089 machines;
c) purchase of machines after the Customer furnishes to IBM acceptable documentation providing for
1. _r _L1 financing f- ►ti I I
the assignment ..ffl an acceptable certification r IBM mac inm ran acceptable
alternative certification fol'r lihiMimachines'; or d) purchase of riiachines'under volume 'procurement or
single shipment quantity discount terms and conditions; however,' airy End User Certification contained
in any volume procurement or single shipment quantity discount temis.aa&conditions will continue
to apply.. . .....
INVESTMENT TAX,CREDIT PR
ODUCTION UCTIONSTATUS,CODES
Code 1.lhe'machind'(6 be de'livired is eligible new prodfwfidn- for 1he pdrposebf the investment tax
credit allowed by Section 38 of the Internal Revenue Code,.- A'customieiAniifaicd Deferment of the Esti-
mated Shipm6nt Date of the maohine may.result in its reclassification to a non -qualifying status.
C.dei. 'tlle machine to -be delivered is not eligible 6E4- production for the purpose of the investment
tax credit allowed by Section38of-the Internal ke4eim,6 C'Pde.
Code 3. The machide to be delive'red'may not . be efigible hew production for the purpose of the invest-
ment tax ' credit allowed: by - Se&fon $8 of the Internal .11evenue:o'Code. The production status of the
machine 1'9* delivered will be provided to the Ctistornei, upon requ6st, one month prior to the Esti-
mated Shipment Date., A customer -initiated deferment of. the Estimated Shipment Date for a machine
to be delivered that tBm has confirmed as being new productipq may
I- . , .7 resu4�ip,itsrecjassification
t6 a non-quafifying status. 4,
TYPES OF WARRANTYIMAINTENANCESERV[qr,
L IBM On -Site Repair of non -Usage Plan Machine 4. CustdmerOn-SitetExch-ange
IBM On -Site Repair of Usage Plan Machine" 6AoAiei,CarryvIii Exchange
IBM On -Site Exchange if
Oc"0 -,J —
IBM WARRANTY SERVICE ,
The Warranty Period, expressed in months (M) or years (YJ;ebmrn6nees on the Date 6filnstallation
ol the machine as defined in the Section entitled "Installation" ofih Arreementlnr_*irvhase of IBM
from the machine's Date of Installation or at the end of the Warranty Period, whichever is later. The
Base and Optional Periods of IBM Warranty Option Service or the Hours of Service Availability are
the same as described for IBM, WiRterrat" A&eem*wSeMri.-.` The -.type: Of s6r� 6 sel rteq-b,J ffif
I i. r � e
Customer foi'a Warranty Option will, upon its expiration, continue as IBM Maintenance AMement
Service for the* ihen current"clArge'.'
IBM MAINTENANCE AGREEMENT SERVICE
Bysele�jiq, for each Machine TyOeUio;WOA each page of the Supplement, ;�w-TykfNiaffite,�-a,n*-c�
Agir6t2L'1rv_ic'e '&4*d'61nA&b_6[diated as being availablep-aTuLhy-irtitiaUrMIkL- pipRliqkKi�
box on Page I and.-returnin copy of Supplement IBM, eCtistomer accepts IBM.
. g a c page of this Suppl in nt to m th
Maintenance, ,Agreement Service for the';;afhines under the IBM .A' aiygenaxiceA' e'tment *dJ IBM.
Maintenance Aireem6n'i�ft,',a!9 appl6blg"L� amended by the Ameridinetit for-IBM.�.s�e,rvkie/FgA-a'n-g-al,
Center Services. This service will '66ihmefic"e on the latest of the day following expiration of each
machine's Warranty
. _q or Warrqnty�Option or its Effective Date of Purchase. The Hours of Service
Availability for On -Site Exch",�C e,ustomer Carry -In Exchange and Customer Carry -In Re-
pair servic6aile'ihle noiniWi"irift-s 6�';V6�the applicable IBM Service/Exchange Center.
For Typewriters, Copiers and Information Distributors, IBM Warranty Option Service and IBM Mainte-
nance Agreement Service are provided under the IBM Maintenance Agreement 11 as amended by the
Amendment for IBM Service/Exchange Center Services. IBM On -Site Repair an'd'IBM On -Site Ex-
change services are available during IBM's normal business hours, and service 'Provided outside these
hours is subject to additional cha.rge. on an IBM Hourly Service basis.,'
For all other machines, IBM Warranty Option Service and IBM Maintenance Agreemifit riFiZe a e
pfcivided under the IBM Maintenance A*ee1netq,PHf�nended by tUd, Amendment for IBM Sirvice/Eilr
change Center Servieps. The: Period 4 Maintrpjr1�e, Service for IB?4 On -Site Repair of ;Usage Plan
Machines is 24 houis-;adaiiy!,� 7,'a i Th,�-Vi4e Period of Warrant� Option Service orMp'inte'rancr
, -Lysaw(
Service for IBM On -Site Repair or IBM Clfi j7-: �,qgtiAange of non'�6sgge Plan Machines is &.-M
ft p�m_ Monday throughYridly)-iLt P*4tionJor*e_sFTypes of Wafivifity Option and MaintRAMOe Sef-
• V. the Customer may -select Optional Pario4s of,Warranty Option or. Maintenance Servicet,&avail-
ICIN
labt(�, by notifying IBM. Th-e;Add;ii*6"n'*af-'%Pait-an--t'y"Opii6n Charge or Additional Maintenanco�Cfia f
C64 1 Periods ofNiriant)` cc Service , 1h Tge or
such Optional Peri .'(*6dn bi�Miilntenan (which must include & Base
r;-. Period of Seryi-O hty Option Charge &'Mio' uih
_fs,bssed, itponTa) percegw o fd* Minimum Wa-rft
Maintenance Charge for the machine, as shown below,,-
71 7
Machines.
T pewriters, Copiers and Information Distributors, warra�-Lys ryiq is IBM's y avai a . 6e.- ring s normal
business hours, and service provided outside � these hours is-AuLjeetld -sdditionalchargc on an IBM
Dourly Service basis. . . ` 1 -, :71
Eor all other machines, IBM On -Site Repair. -or IBM On-Sit�_'ExchaAg6'ivarrario, service is available 9 e ( f
;4 hours a day, 7 days a week. Customer On -Site Exchange, Customer, airy -In Exchange and Customer
qarry-In Repair warranty service is available,during the norival business.hours; 'pr ifi� applicable IBM II
T"
Service/ExchangeCenter:
Days 9 Coverage,
ffouit'_
i_,18
24
Monday - Friday, r t,
�Sa-tu'id'a
Base
I 13P/c
24%
-0617 ..M-". y
Period
Saturday
5%
10%
JA:7gW7 a. iit.)S"d T-r
Sunday,,
[UnAl I i.rn . on ay)
6%
r 10%
13%
'Monday - Sunday
39%
[tf3M
WARRANTY OPTIONS
qo� ,
\ .,
11-Y selecting, for each Machine Type shown on each page � , f the �gu�plementjt4e type of Warranty
J
Minimum Warranty' 'Option 4eha"f'g�
eAiin'i-mum-Nia-int�nance Charge ..............................
7 _
8156
Option desired from those indicated as being available, and by initialing the applicable box on Page
18-hour optional period, Monday -Friday ..........................................
13%
1 and returning a copy of each page of this Supplement to IBM, the Customer accepts IBM Warranty
11-hour optional period, Saturday ...................................................
5%
Option Service for the machines under the IBM Maintenance Agreement or IBM Maintenance Agree-
Total percentage : .......................................................................
18%
merit 11, is applicable, as amended by the Amendment for IBM Service/Exchange Center Services. A
Additional Warranty Option Charge/Additional Maintenance Charge .........
18% x $750 = $135
,selected. Warrant Qption menqes ori its,Date.of,Installation and,9xpires one year,
y a, machine com
.T9tal;yVarrAntyt.,9L)�io,
0,
Z.. ,.t w, 1011
JB�K- W' �j:! A '
4*6 t se, no signatures-arr re."iTcl..,. -teAhy us oirtikerar ed 16y thepartieso etl%di
�Sjip ementniustbip'
!eqn�s ,t..
A copy of this Supplement may be filed in order to perfect IBM's security interest.
in td'rn'i ijo'n` jai SuStneas Machines Corporation
7
%
. . . ----- ----------------
i thoriged Sigriature
---------- 1._.__.____ - --- — - - -------------- - ---
nature
-------- - -------- ........... -- - ------ ---------- - ---------------- ......... ; ......
me ypnrprnL)- 6Z
T
_if . .. . .................... -------------------------- - -- - --- - -- - - .....
;ie or Print) .. Date
international Business Machines Corporation Armonk New York 10504
Purchase of On -Order Machines [ ] Purchase of Installed Machines
Name and Address of Customer (invoice to); Installation Address:
City of Lubbock. Computer Room
Xnformation,Services Municipal Square.Building
P. - O..Box: 2000:. 916 Texas .Avenue
i Lubb6cki' Texas IBM Branch Office Address':
1602 loth Street
'Lubbock, Texas 79408
t,
.IBM Plant
Order o_-r _ -
Machine "' Serial Modelor
Qty. Type Number (*) Feature
Purchase
Price
(Per Unit)
Supplement to Agreement for Pgrcliase of IBM Machines
IBM Branch Reference Reference
Office No.: Customer No.: Agreement No. Amendment No.:
Customer Reference: Date Prepared:
Purchase of Installed Machines: Qont.tion Month: Efreet4e Dow of P—h-7:
Prices for purchase of instal led Machines may be changed by IBM up to and including the Effective
Date of Purchase (which must be within the Quotation Month), subject to any limitations de-
scribed in the applicable IBM lease or rental agreement.
_ � L Warranty Maintenance
a; 8 >. e
y z x Z F z Options Agreement
ip v d Service
i ` o ,
FE y V zz
a c
E 'a ; m = = Typea i Types i
Estimated o a x `� Available K Available F
Total. Shipment c% < c B �° 4 = (None Un- t- (1 Unless
$ Date B IessNoted) Noted)
47,463 08/09/8S
T
Y�
#k
-.
.� "
THIS SUPPLEMENT CONFIRMS YOUR ORDER TO PURCHASE THE MACHINES LISTED HEREIN. FURTHER, CUSTOMER AGREES THAT THIS SUPPLEMENT AND THE REFERENCED AGREEMENT,
" INCLUDING ANY OTHER IBM AGREEMENTS OR CERTIFICATIONS REFERRED TO THEREIN, AND REFERENCED AMENDMENT, IF ANY, ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS'OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING
TO THE SUBJECT MATTER HEREOF.
END USER CERTIFICATIONt SEE REVERSE SIDE.
*) An "*" indicates Machine Serial Number.
`.
Invoice Information: Invoice No.:
Subtotal 1,027.3i4.00-
WARRANTY OPTIONS AND MAINTENANCE AGREEMENT SERVICE
Payment is due on the Date of Installation except for purchase of installed Machines for which
(fmm this Suppiement
(See reverse side for additional information)
payment must be received by IBM prior to the end of the Quotation Month in order to establish
.nd its Comino.ti.-I
Taxes $
By selecting for each Machine Type from the Types Available and by initialing
'
the Effective Date of Purchase.
6,280.00.
below, and returning a copy of each page of this Supplement to mM at its ad -
Destination Charges ;
dress above, the Customer accepts:
Remit to Address:
Pay This Amount 1, 027 314.00
F�IIBM Warranty Options, if available; and/or
s ,
IBM Maintenance Agreement Service.
Z125-3575.00 (UN 500) 7/84 Page of
END USER CERTIFICATION
The Customer represents that the Customer is purchasing the machines for, use within its own business
enterpse and'iroi for're itaikbting. This eeltificatidn does riot apple to:` 0 V,&i6ase of installed lease
or rental machines; b) purchase of IBM 308I, 3082, 3083, 3084, 3087, 3088 and 3089 machines;
c) purchase of machines after the Customer, furnishes to IBM acceptable documentation providing for
the assignment of IBM maghipesa an acceptable financing certification for IBM machines or an acceptable
alternative certification for IBM machines; or d) purchase of machines under volume procurement or
from the machine's Date of Installation or at the end of the Warranty Period, whichever is later. The
Base and Optional Periods of IBM Warranty Olition Service or the Hours of Service Availability are
; 'the: satne'.as 0:pbed for IB14F Malntenitfte",Agreement` Service'. n e (ype of -service. -Sbt�,ciw, by-Ae':
Customer for a Warranty Option will„upon its expiration, continue as IBM Maintenance Agreement
Service for the then current charge:
IBM MAINTENANCE AGREEMPNTSERVICE ~"
single shipment quantity discount terms and conditions; however, any End User Certification contained By selecting, for each Mash}ne Type spew on each page of the Supplement; thq-,Type, of Mgiinterta!Ko
in any volume procurement or single shipment quantity discount terms andieonditions will continue Agreement Service desired .from those zzated as being available,, and by initialing the, applicable
to apply., box =oir'-Page-1 andiciurntng a eoiiy-o eaclipage of this Supplement` &Iglu, tiro Ctrst6,thei'aecbpt$4gm
- - -- ---- Maintenance Agreemetrt`Service.,br'ihe:.,i whines under the IBM Maintena&i,'Ekge&m nt.oii, IBM
INVESTMENT TAX CREDIT. PRODUCTION STATUS CODES, . Maintenance Agreement I1, as applicable,: as amended by the Amendment for IBM,Serviee/�xchange
Code T' 1'he niachine to be delivered is eligible new -production for the purpose of the investment tax Center Services. This service will commence on the latest of the day following expiration of each
credit allowed by Section 38of the Internal Revenue Code. `A customer=initia(ed�deferment of the Esti- machine's Warranty Period or W-arrztnty,Option or its Effective Date of Purchase. The Hours of Service
mated Shipment Date of the,machine may result In its reclassification to a non -qualifying status. Availability, for Cusfomei�n-S to zclian e—rustomer Carry -In Exchange and Customer Carry -In Re-
pair service are the normal business 14&!i s bfthe applicable IBM Service/Exchange Center.
Code 2.,The machine to'be;Mivered is not ehgiblenew production for the purpose of the investment For Typewriters, Copiers and Information Distributors, IBM Warranty Option Service and IBM Mainte-
taxcredit allowed bySection 38 of the Internal Revehtie Code. nance Agreement Service are provided under the IBM Maintenance Agreement II as amended by the
Code 3. ,The machine tolbe delivered may' not be eligible new production for the purpose of the invest "="Amendment for IBM Service/Exchange Center Services. IBM On -Site Repair and`IBM On -Site Ex-
ment talc 4edit allowed by' Section 38 of the Internal Revenue'Cls& The production status of the ' change services are available during IBM's normal business hours,, and service priD�Jaed outside. these
machine, ;to be deliveredwill be provided to -the Customer, upon request, one month prior to the Esti- hours is subject to additional charge on anJBM Hourly Service basis.
mated Shipment Date. A customer -initiated deferment of the Estimated Shipment Date_fora machine ------
to be delivered that IBM has confirmed as being eligible new production may result in its reclassification For all other machines, IBM Warranty Option Service and IBM Maintenance Agreement Service are
to a non -qualifying status. provided under the IBM Maintenance Agreement as amended by the Amendment for IBM Service/Ex-
:change Center Servieee, Tire Period,of Maintenance Service for IBM On -Site Repair V> ' e Ptah
TYPES OF WARRANTY/MAINTENANCE SERVICE
IBM On -Site Repair of non -Usage Plan Machine 4. Customer On -Site Exchange
IBM On -Site Repair of Usage Plan Machine 5, Customer Carry -In Exchange
IBM On -Site Exchange 6. Customer Carry -In Repair
IBM WARRANTY SERVICE
The Warranty Period, expressed in months (M) or years (Y), commences on the Date of Installation
of the machine as defined in the Section entitled "Installation" of the Agreement for Purchase of IBM
Machines.
For Typewriters, Copiers and Information Distributors, warranty service is available during IBM's norma
business hours, and service provided outside these hours is subject to additional charge on an IBM
Hourly Service basis.
For all other machines, IBM On -Site Repair or IBM On -Site Exchange warranty service is available
24 hours a day, 7 days a week. Customer On -Site Exchange, Customer Carry -In Exchange and Customer
Carry -In Repair warranty service is available during the, normal business hours of the applicable IBN
Service/Exchange Center.
IBM WARRANTY OPTIONS
By selecting, for each Machine Type shown on each page of the Supplement, the Type of Warranty
Option desired from those indicated as being available, and by initialing the applicable box on Page
1 and returning a copy of each page of this Supplement to IBM, the Customer accepts IBM Warranty
Option Service for the machines under the IBM Maintenance Agreement or IBM Maintenance Agree-
ment II, as applicable, as amended by the Amendment for IBM Service/Exchange Center Services. A
selected W,vratrty ,f)pUurs !or artachine santrienees; on, its.I)ate of Installatio4 and expires one year
Machines is 24 hours a day, 7days a week. The Base Period of Warranty Option Service or Maintenance
Service for IBM On -Site Repair or IBM On -Site Exchange of non -Usage Plan Machines is 7 a.m. to
6 p.m., Monday through Friday. In addition, for these Types of Warranty Option and Maintenance Ser-
vice, the Customer may select Optional Periods of Warranty Option or Maintenance Service, if avail-
able, by notifying IBM. The Additional Warranty Option Charge or Additional Maintenance Charge for
any such Optional Periods of Warranty Option or Maintenance Service (which must include the Base
Period of Service) is based upon a percentage of the Minimum Warranty Option Charge or Minimum
Maintenance Charge for the machine, as shown below.
Days of Coverage
Hours -
11
18
24
Monday -Friday
(Until7a.in. Saturday)
Base
Period
13%
24%
Saturday
Until7a.m. Sunda )
5%
8%
10%
Sunday
Until7a.m. Monday)
6%
10%
13%
Monday - Sunday
-
-
39%
Example:
Minimum Warranty Option Charge/Minimum Maintenance Charge
18-hour optional period, Monday -Friday ..............................
11-hour optional period, Saturday ......................................
Totalpercentage...........................................................
Additional Warranty Option Charge/Additional Maintenance Chari
Totalll;'arranty Qtrtion_Gharge/Totai_Maintenancq:! Charges. ,
liregi��tedliy.Ctistgrtiginr'[ttMrhisSupplement;ritusthesigxred'hythepar
A copy of this Supplement maybe filed in order to perfect IBM's security interest.
$750
........... 13%
............ 5%
........... 18%
.......... 18% x $750 = $135
tr-E required. T.
international Business Machines Corporethoii.'• � ; e JBy t
'j v, ems- Y - --
Authm iied Signature Authorized Signature
- - - - --- -
Name (Type or Pri+ Date Name IType or Print) Date
-- —
Resolution #2064
RIDER B
Hardware
Machine/Model
Quantity
Delivery
Dates
4381
PO1
1
August
30,
1985
3205
100
2
August
30,
1985
3203
005
1
August
30,
1985
3880
003
1
August
30,
1985
3705
M82
1
August
30,
1985
3274
A41 (W/CAT. A)
2
August
30,
1985
3274
C61
1
August
30,
1985
3179
100
34
August
30,
1985
3287
002
13
August
30,
1985
3262
005
1
August
30,
1985
3803
002
1
August
30,
1985
3420
006
3
August
30,
1985
3865
002
2
August
30,
1985
3868
004
2
August
30,
1985
3866
001
1
August
30,
1985
1416
001 (OAB)
1
August
30,
1985
3044
CO1/DO1
2
October
9,
1985
3380
AD4
2
August
30,
1985
3380
BD4
1
August
30,
1985
1G69.1565.03
Resolution #2064
RIDER C
Software
Product
Description
Delivery
Dates
OPERATING SYSTEMS
5740-XYS
MVS/SP JS2
August
30,
1985
5752-VS2
VS2 OS/VS2
August
30,
1985
SYSTEM UTILITIES
5658-260
EREP V3
August
30,
1985
5798-DGN
SYSLOG DISP/SRCH
August
30,
1985
5785-BAB
JES 328X PRT FALL
August
30,
1985
5740-UT3
DATA FACL DATASET
August
30,
1985
5740-CB1
OS/VS COBOL
August
30,
1985
5740-SM1
DFSORT
August
30,
1985
5668-949
SMP/E
August
30,
1985
5665-317
ISPF/PRGM DEVEL
August
30,
1985
5665-319
ISPF/DIALOG MGR
August
30,
1985
5665-295
MVS/370 DATA FACIL
August
30,
1985
PERFORMANCE MONITOR
5740-XY4
RMF/V2
DATA COMMUNICATIONS NETWORK MANAGE
August 30, 1985
5665-280
ACF/VTAM
August
30,
1985
5667-124
ACF/NCP
August
30,
1985
5735-XXA
ACF/SSP
August
30,
1985
5735-XXB
EMULATION PRGM
August
30,
1985
DATA COMMUNICATIONS MONITOR
5746-XX1
5748-XXH
CICS/OS/VS
GDDM w/PGF
August 30, 1985
August 30, 1985
1G69.1565.03
Resolution #2064
SUPPLEMENT C
VERIFICATION OF INSTALLATION AND PERFORMANCE
- The Verification of Installation and Performance will begin on the day,
Monday through Friday, following the installation of the CPU provided IBM
has provided notification of delivery and will end no later than 30
calendar days thereafter.
IBM warrants that on the date of installation each machine will be in
good working order and will conform to IBM's official published
specifications.
IBM will be responsible to repair or replace any machines which do not
meet said specifications.
The City of Lubbock will be responsible to provide a physical site which
conforms to IBM's published specifications for the 4381 and associated
equipment eg. power, cooling, etc.
The Verification of Installation and Performance will consist of a
verification conducted by the City of Lubbock, of the 4381 and associated
peripherals, microcode and systems software to ensure that the IBM
machines and programs meet their official published specifications.
- IBM will provide technical guidance to assist with said verification.
Upon mutual written agreement between IBM and the Customer, equipment may
be added to a system that has previously completed a successful
Verification of Installation and Performance, however, the Verification
of Installation and Performance will be limited to such added equipment.
1G69.1565.02
Resolution #2064
SUPPLEMENT D
The following paragraph should replace: Paragraph 2 under
"General" in Z125-9029-00.
"IBM may, upon written notice, modify the terms and
conditions of this agreement. Any modification will apply
only to all future orders for purchase which are accepted
by IBM on or after the date specified in the notice.
Otherwise, this agreement can only be modified by a written
agreement only signed by persons authorized to sign
agreements on behalf of the customer and of IBM."
The following sentence should be added to Paragraph 5 under
"General" in Z125-9029-00.
"IBM will make every reasonable effort to promptly identify,
notify the customer of, and resolve any situation in which
performance of the equipment of software does not
substantially comply with specifications as provided by IBM
as determined by either IBM or the Customer."
The following paragraph should replace Section "G" under
"Service for Additional Charge During the Warranty Period"
in Z125-9029-00.
"Repair of machine damage replacement of maintenance parts
or increase in service time caused by - attachments,
including any interconnection to the machine of non -IBM
equipment and devices not under an IBM Maintenance
Agreement."
1G69.1565.05
International Business Machines Corporation Armonk; New York 10504
Agreement for Local System SupportDorf
IBM Control Programming or Programs on IBM Machines
Name and Address ot-Cgstorner i Agreement No:
City of: Lubbock
917 Texas Avenue ,IBM. Branch Office No.-.
Lubbock, Texas 7946
IBM Branch Office Address: Customer No:: 5343502
1601 loth Street
F Lubbock Texas'. 7940s
International 'Business Machines Corporation (IBM), by its,acceptance of this Agreement, agrees t0" provide and the
Customer agrees to accept, under the terms and conditions of this Agreerrtent,.Local: System,Support (System. Support)
for -designated IBM System Control Programming (SCP) or. IBM Licensed Programs, (LP) at a Customer Service Location.
System Support is available for any SCP/LP listed on an Exhibit to this Agreement (Exhibit) and which is (1) specified by
IBM for use with, and` -is "used by the Customer ,on, the Customer's IBM. machines listed on a Supplement to this
Agreement (Supplement) and (2)" designated by Category on such-Suppiement. System Support additions or changes
may be :ordered by the Customer and accepted by IBM on a Supplement. Provision by IBM of Local System Support, or
the first payment of charges due hereunder, whichever first occurs following receipt of the Supplement, will constitute
the Customer's acceptance of the supplemental terms specified in the Supplement.
The term "Customer Service Location" shall mean: that^location at which IBM provides System Support.
For tghe' ur oses of this Agreement, tad wi hr"l singlebuilding,-bu Id shall
mean A single physical Customer location, designated by a single
P P
mailin address,and c g g therwise agreed to in writing by IBM.
IBM may issue revised Exhibits from time to time. Such revised Exhibits maybe offered to the Customer in lieu of the
Customers then current Exhibit.
TERM
This Agreement is effective from the date on which it is accepted When System Support is providedfor SCP/LP used at additional
by IBM and shall remain in force untilterminated by the Customer Customer locations, the Customer will:
or :IBM upon '.one month's written notice, provided all System 1) provide problem documentation to the IBM representative at
Support has been terminated. the Customer Service Location;
`:Any.: System Support will commence .on the Initial System 2) recreate -the problem at the Customer Service Location at IBM's
.' Support Period Start Date specified on a Supplement. During the request; and
first: twelve months after System. Support has commenced (Initial 3) for SCP,, distribute to, install and test on IBM machines, ,at any
I System. Support .Period), the; Customer may terminate System additional Customer location; any local fix, correction.orbypass
Support. upon one month's written notice to. IBM, subject to the provided by IBM to the Customer Service Location: .
Rrovisions of the Section entitled "Termination Charges."
-' t.Following the Initial System Support Period, System Support will
continue until terminated upon one month's written notice to IBM. SYSTEM SUPPORT FOR SCP -
./ "At -the - Customer's election, the Customer may also obtain For SCP, IBM will di§patch an IBM representative to the Customer
System. Support following the Initial System Support Period as Service Location when a problem remains undefined or unre-
escribed in the Section :entitled "System Support Extension
solved after the Customer has taken the actions prescribed by the
period.;' IBM Support Center:
1 System Support for SCP/.LP may be terminated, .without Ter -
✓If it'is determined 6y the IBM representative that the problem is
'!nation Charge, upon,discont!nuance of use of that SCP/LP
upon one -month's written notice` to IBM. caused by a defect in the unaltered portion. of a current release of
r IBM may discontinue SystemSupport upon written notice if the SCP, the IBM representative will:
Customer.fails.to comply, with any of the terms and conditions of �) attempt .to correct or bypass the defect by providing the
Customer with correction information, if available;
this Agreement. In addition; IBM may discontinue System Support
for any SCP/LP upon twelve months' written notice to the 2) •assist the Customer in the preparation of documentation,
Customer. describing the defect, for submission to ,-a designated IBM
location; and, in any.event
CUSTOMER RESPONSIBILITIES 3) if the SCP is inoperable, make a reasonable attempt to resolve
When a problem occurs which the Customer believes is relatedto the problem by providing a local fix or bypass to the Customer.
the, use of SCP/LP or is a programming or program problem of If it is determined by the IBM,representative that the problem is
unknown origin, arid prior to"the,dispatch of an IBM representative not caused by a defect,in such SCP, the IBM representative will
to prOVide System Supportunder this. Agreement, the Customer assist the Customer in determining if the problem is associated
will contact the IBM Support Center and will perform appropriate with. programming or programs used in conjunction with such
problem definition activities and remedial actions, as, prescribed SCP. Such assistance does' not includedetermining the exact
I by the IBM Support Center:._ cause of the problem or correcting the problem.
THEADDITIONAL TERMS AND CONDITIONS ON THE REVERSE SIDE ARE PART OF THIS AGREEMENT. THE _
_ CUSTOMEWACKNOWLEDGES THAT' THE CUSTOMER HAS READ THIS AGREEMENT, ITS SUPPLEMENTS AND
EXHIBIT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY -THEIR TERMS AND CONDITIONS. THE CUS-
TOMER AGREESTHAT THIS AGREEMENT, ITS SUPPLEMENTS AND EXHIBIT ARE THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR
AGREEMENTS,, ORAL OR WRIT , AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO
TH SUBJECT MATTER E
cCepte .t 1^
"1 ernati a .Bus e s r n`
L/.B,C3pCf §
Customer
BY BY. . "'..
Authorized Signature Author, ignature
444
Name (type or Print) T pate Name (Type or Print)Date
z,25-3489-0(1,11M001)11/84 BRANCH OFFICE COPY
The IBM representative will also be dispatched to. assist with
problems associated with the, application of SCP service updates
which have not been resolved by the IBM Support Center.
All programming materials including, but not limited to, docu-
mentation and local fixes or bypasses created under this Agree-
ment are the property of IBM and may be provided by IBM to others.
IBM does not guarantee System Support results or represent or
warrant that all errors or defects will be corrected.
SYSTEM SUPPORT FOR LP
For LP; IBM will dispatch an IBM representative to the Customer
Service Location when a problem remains undefined or unre-
solved after the Customer has taken the actions prescribed by the
IBM Support Center.
The IBM representative will assist the Customer in determining if
the problem is associated with such LP or with programming or
programs used in conjunction with such LP. Such assistance does
not include determining the exact cause of the problem or
correcting the problem.
IBM does not guarantee System Support results.
SYSTEM. SUPPORT FOR SCP/LP ON ONE IBM MACHINE
When SCP/LP is used on only one IBM machine at a Customer
Service Location, System Support will be provided for all SCP/LP
on such IBM machine for a Monthly System Support Charge. The
Monthly System Support Charge is determined by the SCP/LP for
which System Support is ordered, the Category in which the
SCP/LP is included and by the IBM Machine Type and Model
selected by the Customer, as specified on a Supplement.
SYSTEM SUPPORT FOR SCP/ LP ON MULTIPLE IBM MACHINES
When SCP/LP is used by the Customer (1) on more than one IBM
machine at a Customer Service Location, or (2) on IBM machines
at additional Customer locations and supported through the Cus-
tomer Service Location, System Support will be provided for all
SCP/LP on. such IBM machines for a Monthly Multiple System
Support Charge.
For such Charge; System Support is provided only at the
Customer Service Location for. SCP/LP within the Customer
Service Location and .for SCP/.LP at, any, additional Customer
location.
. For each SCP/LP for which System Support is ordered by the
Customer, the Customer must specify whether there are multiple
IBM machines using that SCP/LP at the Customer Service
Location or whether.SCP/LP".on IBM machines at additional
Customer locations . is to be supported through the Customer
Service Location.
The,Monthly Multiple System.Support Charge is.determined by
the SCP/LP for which System Support is ordered, the Category in
which the SCP/LP is included and by the IBM Machine Type and
Model selected by the Customer, is specified on a Supplement.
The IBM machine selected must bedesignated by IBM for use with
all of the SCP/LP for which the Customer orders System Support.
SYSTEM SUPPORT EXTENSION PERIOD -
The Customer may, upon prior written notice to IBM, obtain System
Support under aSystem Support Extension Period at the Charges
generally in effect"on the System Support Extension Period Start
Date, subject to the provisions of the Section entitled "Charges.
The System Support Extension Period will be for twelve months
and may commence at any time following an Initial System Support
Period or a prior System Support Extension Period. The.Customer
may terminate System Support during a System Support Extension
Period upon one month's written notice to IBM, subject to the
provisions of the Section `entitled" "TerminationCharges," or,
thereafter, upon one month's written notice to IBM.
CHARGES.
For each IBM machine using SCP/LP supported under this
Agreement, the Customer will pay a Monthly System Support
Chargp or -a Monthly Multiple System Support Charge asset forth
on ;a; Supplement, S.u.ch' charges are subject to change by IBM
dpoh'three months' written notice to the Customer except that any
notice of price increase given during an Initial System Support
Period.or System Support Extension Period shall not be effective
until the end of such Period or the effective date of increase,
whicheveris later.
IBM shall;,,'have'ttE`right to charge for additional effort which
resultsfrom providing System. Support for altered SCP/LP, orfrom
failure of the Customer to perform those actions defined in the
Section entitled "Customer Responsibilities." IBM shall also have
the right to charge for effort involved in providing System Support
activities for SCP/LP on machines not.; supported,under-this
Agreement. Such additional charges will be at IBM's then ap-
plicable rates and minimum charges.,,
There will be'no-charge for ,travel expense associated with
System Support except that actual travel expense shall be charged
in those instances where the location at which such Support is
provided is normally inaccessible by both private automobile and
scheduled public transportation or where additional charges are
applicable as set forth in the previous paragraph.
COMMENCEMENT AND INVOICING OF CHARGES
Monthly_ System Support Charges and Monthly Multiple System
Support Charges will begin. on the Start Date specified on a
Supplement. Charges for a partial month's System Support will be
prorated based on a thirty-day'month. Monthly Charges will be
invoiced in advance. Other charges; if any, will be invoiced in the
month after such charges have been incurred.
Payment will be made as stated in the invoice.
TERMINATION CHARGES
'The Customer will' pay IBM as. a Termination Charge, upon
termination of System Support during the Initial System Support
Period, the lesser of:
1) an amount equal to three times the applicable Monthly Charge;
or
2) 50% of the remaining applicable Monthly Charges.
The Customer will pay IBM as a Termination Charge, upon
termination of System Support during the System Support Exten-
sion .Period, the lesser of:
1) an, amount equal. to a single applicable Monthly Charge; or
2) 50% of the remaining, applicable Monthly Charges.
APPLICABLE TAXES
In addition to the charges due underthis Agreement, the Customer
agrees to pay amounts equal to any taxes resulting from this
Agreement, or any activities hereunder, exclusive of taxes based
on IBM's net income.
LIMITATION OF REMEDIES
IBM's entire liability and the Customer's exclusive remedy shall be
as follows:
For any claim concerning performance or nonperformance by
IBM pu rsuant to, or in any other way related to, the subject matter of
this Agreement, the Customer shall be entitled to recover actual
damages to the limits set forth in this Section.
IBM's liability for damages to the Customer for any cause
whatsoever, and regardless of the form of action, whether in
contract or in tort including negligence, shall be limited_ to the
greater of $25,000 or the Charges which would be due for twelve
months of System Support that is the subject matter of or is directly
related to the cause -of action. Such Charges shall be those in
effect when the cause_of action arose. This limitation of liability will
not apply to claims for personal injury or damage to real or tangible
personal -property caused by IBM's negligence.
In no event will IBM be liable for any damages caused by the
Customer's failure to perform the Customer's responsibilities, or
for any lost profits, lost savings or other consequential damages,
even if IBM has been advised of the possibility of such damages, or
for any claim against the Customer by any other party,
ADDITIONAL PRODUCTS AND SERVICES
In addition to System Support provided underthis Agreement, IBM
offers other products" and services at separate charges under
applicable written IBM agreements. IBM and the Customer agree
that such products and services cannot be the subject of an oral
agreement, The Customer may contract with IBM for any such
products or, services as available; but: only under the terms and
conditions of a written, agreement signed by the Customer and
IBM.
GENERAL
This Agreement is not assignable. Any attemptby the Customer to
assign or transfer any of the rights, duties or obligations of this
Agreement without prior written consent of IBM is"void.
The terms of this Agreement may be modified by IBM upon
twelve months' written notice to the Customer. Modification shall
apply to System Supportas of the effective date thereof. Otherwise,
the Agreement can only be modified by,a written agreement duly
signed by persons authorized to sign agreements "n behalf of the
Customer and of IBM, and variance from the terms and conditions
of this Agreement in any Customer purchase order or other written
notification will be of no effect. , ` "
IBM is not responsible for a failure to fulfill its obligations under
this Agreement due to causes beyond its control.
System Support under this Agreement will be provided in the
United States.and Puerto Rico....
No action, regardless of form, arising out of this Agreement may
be brought by either party more than two years after the cause of
action has arisen, or, in the case of nonpayment, more than two
years from the date the last payment was, due. ",
The Agreement will be governed by the laws of theState of New
York.
Resolution #2064
International Business Machines Corporation
Composite Signature Agreement
Name and Address of Customer:
City of Lubbock
917 Texas Avenue
Lubbock, Texas 79408
IBM Branch Office Address:
IBM
1602 10th Street
Lubbock, Texas 79408
Agreement No.:
IBM Branch Office No.: G69
Armonk, New York 10504
Customer No.: 5343502
International Business Machines Corporation (IBM) and the Customer agree that IBM will provide and the Customer will
accept the products and services ordered by the Customer in accordance with the terms and conditions stated in the ap-
plicable Agreements, designated below by the Customer's initials, which the Customer agrees to include herein. The
included Agreements are attached hereto and are incorporated in this Agreement. '
This Composite Signature Agreement, when signed by IBM and the Customer, has the same effect as signing each of the
Agreements designated by the Customer's initials, and is effective upon acceptance by IBM.
Initials Tide of Agreement or Amendment
IBM Form Number
❑ All of the following, unless selectively designated
initialing below for individual documents
Agreement for Purchase of IBM Machines
- Z120-2892-00
,Iby
,, IBM Maintenance Agreement
Z125-3275-00
Agreement for IBM Licensed Programs
Z125-3358-00
Agreement for Lease or Rental of IBM Machines
Z125-3320-00
Agreement for IBM Hourly Machine Service
Z120-2826-00
THE CUSTOMER ACKNOWLEDGES THAT THE .CUSTOMER HAS READ EACH OF THE AGREEMENTS DESIG-
NATED BY THE CUSTOMER'S INITIALS, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS
AND CONDITIONS.
Acce ted by:/7,"1
1 emaU al Bu e c s ation
ustomer
By----- ---•• -- ... . .. ...... .............------••---.._................ By ........ ..... .......... ::.. .......... ........ ••----...---.........................
� -- " �------ - •- - -- - •- horiz -----•--.....ty..- - -• horized Si lure
j .... ..,.._�� nature � � :. Aus--L--, ------�-L�.----•••..............._.....------•---
Name (Type or Print) U e Name (pe or Print) pate
PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY.
Z125-9029-00 (10/83)
WM 025 Page 1 of 17
Agreement for Purchase of IBM Machines
(Z120-2892-00) E
International Business Machines Corporation (IBM)..and the Customer agree that the following terms,andconditions will apply to any
Customer written order accepted by IBM for the purchase under this Agrd'emeht ofn IBM machines; fe'Muces, model converslons,
machine elements or accessories. Under these terms and conditions, as described herein, IBM wi)1.1) sell machines (including trieir
features) to the Customer, 2) furnish, as available, programming and programming services, 3) sell features and model conversions to
the.Customer for installation or reinstallation on an IBM machine designated by type and serial number, 4)`sell machine elements and
accessories to the Customer, and 5)- provide warranty service, as applicable.
The term "Machines" will be used herein to refer to machines and/or, their.features,, model conversions,, machine elements and
accessories unless the context requires individual reference. Machines are those'on-oederto be installed, as described herein, orwhich
are installed under an IBM lease or rental agreement with the Customer. Features include additions and removals. Model conversions
include upgrades and downgrades.
The Customer agrees to accept the Machines, programming, programming services and warranty service under the terms and
conditions of this Agreement -The Customerfurther agrees, with respect to the Machines and programming, to accept responsibility for
1) their selection to achieve the Customer's intended results, 2) their use, and 3) the results obtained therefrom. The Customer also has
the responsibility for the selection and use of, and results obtained from any other equipment, programs or services used with the
Machines and programming.
Specific Machines become subject to this Agreementwhen a SupplementtoAgreementfor Purchaseof IBM Machines (Supplement)
is signed by the Customer and IBM. The Supplement must be signed by the Customer and received by IBM on or before the Date of
Installation for on -order Machines or the Effective Date of Purchase for installed Machines.
PRICES AND PAYMENT
Prices for each Machine will be stated in the Supplement and do
not include any applicable destination charges or taxes. Payment
in full for each on -order Machine shall be due on the Date of
Installation and, for installed Machines, on the Effective Date of
Purchase, unless an IBM Installment Payment Agreement has
been signed by IBM and the Customer.
TAXES
In addition to the prices stated in the Supplement, the Customer
agrees to pay amounts equal to any taxes resulting from this
Agreement, or any activities hereunder, exclusive of taxes based
on net 'income. The Customer shall bear, any personal property
taxes assessable on on -order Machines on or after delivery to the
carrier or, for installed Machines, on or after the Effective Date of
Purchase.
TITLE .
Provided the Supplement is signed by IBM,. title passes to the
Customer .1) for each on -order Machine on the date of shipment
from IB14 or the date of receipt of the Supplement,by IBM,
whichever is later, and 2) for each installed Machine, on the
Effective Date of Purchase.
SECURITY INTEREST
IBM reserves a purchase money security interest in each
Machine. This interest will be satisfied by payment in full
hereunder or under an IBM Installment Payment Agreement and,
Customer in accordance with IBM's then current shipping and
billing practices.
The Customer will prepay charges for shipping Repair Center
Service Machines to an IBM Repair Center. IBM will prepay return
shipping charges from the IBM Repair Center to locations within
the United States and Puerto Rico.
PRICE PROTECTION PERIOD
Prices for on -order Machines shall be IBM's generally available
prices and shall be subject to all price increases, except that in-
creases effective during the three months immediately priortothe
date of Machine shipment shall not be applicable if the Customer's
written order was received by IBM prior to- the announcement ofe the price increase. In the event that a pricincrease is applicable
to any such Machine, the Customer may cancel the order for that
Machine upon written notice to IBM within one month of
notification of the price increase; otherwise, the higher price shall
be effective.
If IBM's generally available price for any on -order Machine
upon the Date of Installation shall be lower than the price forsuch
Machine stated in the applicable Supplement, the Customer shall
have the benefit of such lower price. The term "IBM's generally
available price" does not include prices for sales of Machines
under terms and conditions other than those in this Agreement.
Prices for installed Machines stated in the applicable Supple-
ment are subject to change up to and including the Effective Date
of Purchase, subject to any limitations described in any other
where applicable, by the return to IBM by the Customerof parts in applicable IBM agreement.
respect to feature additions or model conversions that involve the PROGRAMMING
removal of parts which become the property,of IBM. A copy of this The term "programming" as used in this Agreement shall mean
Agreement and/or the applicable Supplement, may be filed in such programming as IBM may make generahy available; -without
order to perfect IBM's security interest. separate charge, for Vachines of the types ordered by the
Customer under this Agreement. IBM will furnish such program -
RISK OF LOSS OR DAMAGE
During the period on -order Machines are' in transit or in
possession of the Customer, up to and including the Date of
Installation, IBM and its insurers, if any, relieve the Customer of
responsibility for all risks of loss of or damage to the Machines
except for loss or damage caused by nuclear reaction, nuclear
radiation or radioactive contamination for which the Customer is
legally. liable.. Thereafter,; all risks of loss of or damage to such
Machines shall .be on tfie Customer.
All risks of loss of'or'damage to installed Machines shall be on
the Customer after the Effective Date of Purchase.
In addition, the Customer is responsible for all risks of loss of or
damage to, Repair Center Service Machines during the period
such Machines are in transit to and from an IBM Repair Center or
in possession of IBM at an IBM Repair Center, except for loss or
damage,paused by IBM's negligence.
SHIPMENT _ =
-IBM %gill scheduleeach on -order Machine in accordance with
IBM's applicable shipment sequence, confirm the Customer's
schedule in writing and amend it as necessary. Prior to shipment,
IBM will make reasonable accommodation to a delay requested
by the Customer.
By agreement between IBM and the Customer, changes in the
configuration of Machines may be made prior to the .date of
shipment. I b
DESTINATION CHARGES
Destination charges for each on -order Machine from a desig-
nated IBM location, and any rigging charges, will be paid by the
ming as may be requested by the Customer.
The term "programming services" shall mean such services as
IBM may make generally available without, separate charge in
connectionwith programming, IBM will determine the program-
ming services available and their duration.
The terms "programming" and "programming services" do not
include IBM programs and services that are available for a
separate charge or which are offered under separate written
agreements.
INSTALLATION
The Customer agrees to provide a suitable installation environ-
ment as specified in the applicable IBM installation manual, if any,
and, except as otherwise specified by IBM, to furnish all labor
required for unpacking and placing in the desired location each
on -order Machine. Packaging materials; if any, shall become the
property of the Customer. Each Machine purchased under this
Agreement will be installed as specified by IBM..
Installation by IBM
The Date of Installation for a machine will be the day (Monday
through Friday) following the day that 1) the machine is installed
under this Agreement or under an applicable lease or rental
agreement between the parties, or 2) the machine is available for
delivery or delivered to the Customer and the Customer fails to
provide a suitable installation environment or elects to delay
installation.
IBM will install features and model conversions on the serial -
numbered machine designated in the Supplement. The Customer`
represents that the Customer is the owner of the machine on
Page 2 of 17
which any feature or model conversion will be installed or, if not
the owner, has the authority from the owner to have the feature or
model conversion installed under this Agreement on the owner's
machine.
The Date of Installation fora featureor model conversion will be
the day (Monday through Friday) following the day that the
feature or model conversion is installed under this Agreement or
under an applicable lease or rental agreement between the
parties.
The installation of some features and model conversions
involves the removal of parts which become the property of IBM.
IBM will specify in the applicable Supplement if removed parts
become the property of ,IBM. The Customer will provide IBM
access to the Machine to commence installing all such features
and model conversions as soon as possible after their shipment
from IBM but in no event later than one month following the date
of such shipment, unless a shorter period is specified in the
Supplement: Unless otherwise agreed to by IBIYI, in the event of
failure by the Customer to ,provide IBM access to the Machine
within the specified period, the Customer shall return the feature
or model conversion to IBM with shipping charges prepaid.
If the Customer elects to delay installation of a feature or model
conversion (other than one which :involves the removal of parts
which become the property of IBM) and installation has not
commenced one month following its date of shipment from IBM,
the 'Date of Installation of such feature or model' conversion will be
considered to be the day (Monday through Friday) one month
following such date of shipment.
IBM will notify the Customer of the Date of Installation of each
on -order machine, feature and model conversion.
Customer Set -Up
Each machine, feature and model conversion identified in the
Supplement as a Customer Set -Up (CSU) Machine, and all acces-
sories and machine elements, will be set up by the Customer in
accordance with the instructions furnished by IBM.
A CSU machine will be considered to be installed on the last day
(Monday through Friday) of the CSU allowance period stated in
the Supplement for such machine.', The CSU allowance period
commences on the day (Monday through Friday) following the
date of receipt of the machine at the Customer's premises,
However, when a CSU machine is delivered in conjunction with,
and for attachment'to, a non-CSU machine delivered from IBM,
such CSU machine will be considered to be installed on the later
of 1) the installation date of, such non-CSU machine, or 2) the
installation date of the CSU 'machine as determined above. The
Date of Installation will be the day (Monday through Friday)
following the date the machine is considered to be installed.
A CSU feature or model conversion, or an accessory or machine
element, will be considered to be installed one month following
the later of " estimated date of shipment or its actual date of
shipment from IBM. The Date of Installation will be the day
(Monday through Friday) following1the date the feature, model
conversion, accessory or machine element is considered to be
installed. CSU features and model conversions will be installed on
the serial -numbered machine designated in the Supplement.
PURCHASE OF; INSTALLED MACHINES
The prices` stated in the Supplement are exclusive of any
charges which are due or may become due from the Customer
under any IBM lease or rental agreement relating to the Machines.
The Effective Gate of Purchase for installed Machines shall be the
later of the first day of the Quotation Month or the day on which
the Supplement, signed by the Customer, and the payment,
required under the Section entitled "Prices and Payment," are
received by IBM at its Branch Office address shown in the
Supplement, provided that such receipt is not later than the last
day of the Quotation Month. The Machines will be terminated
under the applicable lease or rental agreement between IBM and
the Customerasof the day immediately preceding the Effective
Date of Purchase.
WARRANTIES
Machines purchased under this Agreement will be 1) newly
manufactured by IBM from new and serviceable used parts which
are equivalent. to new in performance in these Machines, 2) as-
sembled by,IBM from serviceable used parts, 3) Machines which
have been previously installed, or4) Machines which are presently
installed with the Customer.
IBM warrants that on the Date of Installation each on -order
Machine will be m good working order and wilt conform to IBM's
official published, specifications which are available upon request.
The warranty period is one year for Warranty Category A
Machines and three months for Warranty Category B Machines.
The appropriate Warranty Category will be specified in the
Supplement. The warranty period of each Machine will be
measured from its Date of Installation.
Service and Parts Warranty ,
Commencing on the Date of Installation of each on -order
machine, model upgrade and feature addition, or the Effective
Date of Purchase for each installed machine, model upgrade and
feature addition and continuing for the duration or remainder of
the warranty period, IBM agrees to provide, at no additional
charge to the Customer, except asset forth below or in the Section
entitled "Travel Expense," warranty service to keep the machines,
model upgrades and feature additions in, or restore them to, good
working order. This warranty service includes scheduled pre-
ventive maintenance based upon the specific needs of individual
machines, model upgrades and feature additions as determined
by IBM and unscheduled, on -call remedial maintenance. Such
warranty service will include lubrication, adjustments and re-
placement of parts deemed necessary by IBM. Parts will be fur-
nished on an exchange basis, and the replaced parts become the
property of IBM.
Warranty service provided under this Agreement does not as-
sure uninterrupted operation of the Machines. IBM may, at its
option, store on the Customer's premises maintenance equipment
and/or parts that IBM deems necessary to fulfill this warranty_
During the warranty period, engineering changes determined
applicable by IBM will be controlled and installed by IBM on the
Machines. The Customer may, by providing notice subject to
written confirmation by IBM, elect to have only mandatory
changes, as determined by IBM, installed on Machines.
IBM shall have full and free access to the Machines to provide
service thereon. The Customer shall promptly inform IBM of any
change in the Machines' location during the warranty period.
If the warranty period expires on a Friday or Saturday, it will be
extended by either two days or one day respectively, so that the
last day of such warranty period will be on a Sunday.
WITH RESPECT TO WARRANTY CATEGORY A MACHINES
WHICH HAVE BEEN INSTALLED WITH THE CUSTOMER FOR
MORE THAN ONE YEAR AND WARRANTY CATEGORY B
MACHINES WHICH HAVE BEEN INSTALLED WITH THE CUS-
TOMER FOR MORE THAN THREE MONTHS, THE CUSTOMER
AGREES TO PURCHASE THE MACHINES WITHOUT WAR-
RANTY.
Additional Provisions for Programming
IBM further warrants that programming designated by IBM for
use with a Machine and for which programming services are
available will conform to IBM's official published specifications
(available upon request) when shipped to the Customer if
properly used on such Machine, Thereafter, IBM will provide
programming services, subject to the provisions stated in the
Section entitled "Programming."
IBM does not warrant that the functions contained in the
programming' will operate in the combinations which may be
selected for use by the Customer, or will meet the Customer's
requirements.
ALL PROGRAMMING FOR WHICH NO PROGRAMMING
SERVICES ARE AVAILABLE IS DISTRIBUTED ON AN "AS IS"
BASIS WITHOUT WARRANTY.
Additional Provisions for Repair Center Service Machines
Warranty service on Machines designated in the Supplementas
Repair Center Service Machines will be performed at IBM Repair
Center(s) designated by IBM. IBM will not perform preventive
maintenance on the Machines. The Customer will 1) determine
when remedial maintenance is required utilizing the procedures
furnished by IBM, 2) remove the Machines requiring remedial
maintenance from their operational location, 3) ship the Machines
to the designated IBM Repair Center, 4) set up the Machines in
their operational location upon their return from the IBM Repair
Center, and 5) check performance of the Machines while they are
installed in their operational location, The Customer agrees to use
shipping containers designed by IBM and in the manner pre-
scribed by IBM. The locations of IBM Repair Centers are subject
to change by IBM upon three months' prior written notice to the
Customer.
Additional Provisions for Features and Model Conversions
IBM's warranty that each feature or model conversion will be in
good working order on the Date of Installation requires that the
machine on which it is installed is at the current engineering -
change level, is the specific serial -numbered machine for which
the feature or model conversion was ordered and has been
Z125-9029-00 Page 3 of 17
modified only with changes obtained from IBM specifically for
that serial -numbered machine. If these conditions are not met,
IBM will attempt to install these features ,and model conversions
on the machine. If installation results in an incorrectly functioning
machine, upon Customer, request and at IBM's then applicable
time and material charges and travel expense, IBM will remove the
features and/or model conversions, which become the property of
the Customer, and restore the machine to its prior condition.
A three-month parts warranty will apply to the additional parts, if
any, in the bill of materials supplied by IBM associated with the
removal of a feature,'downgrade of a model or the reinstallation of
a previously purchased feature or of a model conversion. .
Additional Provisions for Accessories and Machine Elements
All accessories and machine elements have a three-month
warranty period. During the warranty period the Customer will be
responsible for removal of any defective or failing accessory or
machine element and for its return to the designated IBM location.
IBM, at its option, will repair or replace the defective or failing
accessory or machine element and return it to the Customer
without charge.
Additional Provisions' for Machines Containing Funds
The Customer is responsible for removing, controlling, and
replacing 'or reloading funds so that IBM can fulfill its warranty
obligations. IBM will not service any Machine while it contains
funds except when a failure occurs in the cash container and it
cannot be opened priorto repair. by IBM, in which case the
Customerwill remove the funds as soon as the container has been
opened.
Services for Additional Charge During the Warranty Period
The warranties provided by IBM under this Agreement do not
include the following services but if such services are available,
they will be provided by IBM under this Agreement at IBM's then
applicable time and material charges and travel expense unless'
such services. are provided under another written agreement
signed by the, Customer and IBM:
a) repair of damage or increase in service time caused by
failure to continually provide a suitable installation environment
with all facilities prescribed by the applicable IBMinstallation
manual including, but not limited to, the failure to provide, orthe
failure of, adequate electrical power, air conditioning or hu-.
.midity control;
b) repair of damage or increase in service time caused by the
use of the Machines for otherthan data processing purposes for
which designed; or neglect or misuse;
c) repair of damage, replacement of parts (due to other than
normal wear) or repetitive service calls caused by the use of
supplies;
d) repair of damage caused by accident-, disaster, which
includes, but is not limited to, fire, flood, water, wind and light-
ning; or transportation;
e) inspection of altered Machines, repair of damage or
increase in service time caused by alterations, which alterations
include, but are not limited to, any deviation from IBM's;
physical, mechanical or electrical Machine design;
f) repair of damage or increase in service time caused by
attachments, which are defined as the mechanical, electrical or
,electronic interconnection to an IBM Machine of non -IBM
equipment and devices not supplied by IBM;
g) repair of damage or increase in service time caused by
IBM Machines, except those IBM Machines which are owned by
IBM, under the Service and Parts Warranty provision of an IBM
purchase agreement or under an IBM maintenance agreement;
h) repair of damage or increase in service time caused by the
conversion from one. IBM model to another or the installation or
removal of an IBM feature whenever any of the foregoing was
performed by other than IBM. This shall apply only during the
three months subsequent to the date of such, Machine modi-
fication;
i) increase in service time and replacement parts associated
with the installation by IBM of an engineering change when
such. additional service and parts are required due to the
conversion from one IBM model.to another orthe installation or.
removal of an IBM feature whenever any of the foregoing was
performed, by other than IBM;
j) service time 'and materials associated with the rearrange-
ment or relocation of Machines;' and
k) replacement of:a part not furnished, for the Machine by.
IBM -and increase in service time associated with such part,
except for common hardware items such as screws, nuts, bolts,.
clamps and cornmerdally-available parts such as, light bulbs.
IBM will replace, at the Customer's request, parts not furnished
for the Machine by IBM (except when such part is in an
alteration) with an IBM maintenance part when such a non -IBM
part is directly interchangeable with the IBM part., When IBM
determines that a Machine under this Agreement contains a
part, not furnished for the Machine by IBM, which is particularly
significant to IBM's ability to provide warranty service for such
Machine under this Agreement; the Customer wilt replace the
part with a directly interchangeable maintenance part furnished
for the Machine by IBM. IBM will, at the Customer's request,
replace such non -IBM part with a directly interchangeable IBM
maintenance' part.
Exclusions
The warranties provided by,IBM under this Agreement do not
include the following services:
a) furnishing supplies, painting or refinishing the,Machines or
furnishing material therefor;
b) electrical work external to the Machines or installation,
maintenance or removal of alterations, attachments or other
devices not furnished by IBM; and
c) such service which is impractical for IBM to render because
of alterations in, or attachments to, the Machines.
IBM does not warrant that the operation. of the Machine or
programming will be uninterrupted or error free, or that all pro-
gramming errors will be corrected.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES` OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PUR-
POSE.
OTHER PRODUCTS AND SERVICES
Following expiration of the applicable warranty period, if
requested, IBM will provide at IBM's charges and terms then
generally in effect, maintenance service and maintenance parts
for the Machines as long as such service and parts are generally
available.
In addition to the services described in the Section entitled
"Services for Additional Charge During the Warranty Period," all
maintenance and other service activities which may be made
available by IBM to the Customer at no additional charge or at
IBM's then applicable time and material charges and travel
expense, in connection with any Machines or programming
supplied under this Agreement,, shall be subject to the terms and
conditions of this Agreement unless such activities are provided
under another written agreement signed by the Customer and
IBM.
In addition to the Machines, programming and services pro-
vided under this Agreement, IBM offers other products and
services at separate charges under applicable written IBM agree-
ments. IBM and the Customer agree that, such -products and
services cannot be the subject of an oral agreement. The
Customer may contract with IBM for any such products or
services as available, but only under the terms and conditions of a
written agreement signed by the Customer and IBM.
TRAVEL EXPENSE
There will be no charge for travel expense associated with
warranty service or programming service under this Agreement
except that actual travel expense shalt be charged in those
instances where the site at which the Machine is located is not
normally accessible by private automobile,or scheduled public
transportation.
ENGINEERING CHANGES
IBM will, upon request, furnish to the Customer, at IBM's prices
then generally in effect, such engineering changes as IBM shall
have available for sale and which may be suitable for use on, or in
connection with, the Machines. Replaced parts, if any, become the
property of IBM. IBM makes no representation that engineering
changes which maybe announced in the futurewill besuitablefor
use on, or in connection with, these Machines.
PATENTS AND COPYRIGHTS
IBM will defend the Customer against a claim that Machines or
programming supplied hereunder infringes a U.S, patent or
copyright, or that the Machines' operation pursuant to a current
release and modification level of any programming supplied by
IBM: infringes a U.S. patent, and IBM will pay resulting costs,
damages and attorney's fees finally awarded, provided that:
a the Customer promptly notifies IBM in writing of the claim;
b)" IBM, has sole control of the defense and all related settlement
negotiations.
Page 4 of 17
IBM's obligation under this Section is conditioned on the
Customer's agreement that if the Machines, or the operation
thereof, or programming, becomes, oHn IBM's opinion is likely to
become, the subject of such a claim, the Customer will permit
IBM, at its option and expense, either to procure the right for the
Customer to continue using the Machines or programming or to
replace or modify the same so that they become non -infringing;
and if neither of the foregoing alternatives is available on terms
which are reasonable in IBM's judgment, the Customer will return
the Machines or programming on written request by IBM. IBM
agrees to grant the Customer a credit for returned Machines as
depreciated. The depreciation shall be an equal amount per year
over the life of the Machines as established by IBM.
IBM has no liability for any claim based upon the combination,
operation or use of, any Machines or programming supplied
hereunder with equipment or data not supplied by IBM, or based
upon alteration of the Machines or modification of any program-
ming supplied hereunder. IBM has no liability for any claim based
upon the combination, operation or use of any Machines or
programming supplied hereunder with any program other than or
in addition to programming supplied by IBM if such claim would
have been avoided by use of another program whether or not
capable of achieving the same results.
The foregoingstates the entire obligationof IBM with respect to
infringement of patents and copyrights.
LIMITATION OF. REMEDIES
IBM's entire liability and the Customer's exclusive remedy shall
be as follows:
In all situations involving performance or non-performance of
Machines or programming furnished under this Agreement, the
Customer's remedy is 1) the adjustment or repair of the Machine
or replacement of its parts by IBM, or, at IBM's option, replace-
ment of the Machine, or correction of programming errors, or 2) if,
after repeated efforts, IBM is unable to install the Machine or a
replacement Machine in good working order, or to restore it to
good working order, or to make programming operate, all as
warranted, the Customer shall be entitled to recover actual
damages to the limits set forth in this Section. For any other claim
concerning performance or non-performance by IBM pursuant
to, or in any other way related to the subject matter of, this
Agreement or any order under this Agreement, the Customer shall
be entitled to recover actual damages to the limits set forth in this
Section.
IBM's liability for damages to the Customer for any cause what-
soever, and regardless of the form of action, whether in contractor
in tort including negligence, shall be limited to the greater of
$100,000 or the purchase price stated in the applicable Supple-
ment for the specific Machines that caused the damages or that
are the subject matter of, or are directly related to, the cause of
action. The foregoing limitation of liability will not apply to the
payment of costs, damages and attorney's fees referred to in the
Section entitled "Patents and Copyrights," or to claims for
personal injury or damage to real property or tangible personal
property caused by IBM's negligence.
In no event will IBM be liable for any damages caused by the
Customer's failure to perform the Customer's responsibilities, or
for any lost profits or savings or other consequential damages,
regardless of the form of action, whether in contract or in tort
including negligence, even if IBM has been advised of the
possibility of such damages, or for any claim against the Custo-
mer by any other party, except as provided in the Section entitled
"Patents and Copyrights," or for any damages caused by :per-
formance or non-performance of Machines or programming
located outside the United States or Puerto Rico, nor will IBM be
liable for loss of funds contained in, dispensed by or associated
with, any Machine under this Agreement. ,
GENERAL
This Agreement is not assignable without the prior written
consent of IBM. Any attempt to assign any of the rights, duties or
obligations of this Agreement without such consent is void.
IBM may, upon written notice, modify the terms and conditions
of this Agreement. Any such modification will apply on the
effective date specified in the notice to all Supplements which are
signed by the Customer and IBM on or after the date of notice.
Otherwise, this Agreement can only be modified by a written
agreement duly signed by persons authorized to sign agreements
on behalf of the Customer and of IIBM, and variance from or addi-
tion to the terms and conditions of this Agreement in any order or
other written notification from the Customer will be of no effect.
If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
IBM is not responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control or to provide any
services hereunder for Machines or programming located outside
the United States or Puerto Rico.
No action, regardless of form, arising out of this Agreement may
be brought by either party more than two years after the cause of
action has arisen, or, in the case of an action for non-payment,
more than two years from the date the last payment was due.
This Agreement is governed by the laws of the State of New
York.
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND.
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
MENT, TOGETHER WITH ANY OTHER APPLICABLE IBM
AGREEMENTS, CERTIFICATIONS, AMENDMENTS AND SUP-
PLEMENTS AND ANY EXHIBITS OR ATTACHMENTS THERE-
TO, REFERENCING THIS AGREEMENT OR EXPRESSLY MADE
A PART HEREOF THAT ARE DULY SIGNED BY THE PARTIES
WILL BE THE COMPLETE AND EXCLUSIVE STATEMENT OF
THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING
ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR
WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN
THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
IBM Maintenance Agreement
(Z125-3275-00)
International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any
Customer order accepted by IBM to provide maintenance service for IBM Machines located within the United States and Puerto Rico.
"Machine(s)" as used herein refers to machines and/or their features, model conversions and machine elements unless the context
requires individual reference. This Agreement is effective from the date on which it is accepted by IBM and shall remain in force until
terminated by the Customer or IBM. Specific Machines become subject to this Agreement on the Effective Date designated by the
Customer, if agreed to by IBM, and such information will be shown in a Supplement to IBM Maintenance Agreement (Supplement)
signed by IBM.
MAINTENANCE SERVICE
IBM agrees to provide the availability of maintenance service to
keep the Machines in, or restore the Machines to, good working
order. Maintenance service includes preventive maintenance
based on the specific needs of individual Machines as determined
by IBM and on -call remedial maintenance. Maintenance service
also includes lubrication, adjustments and replacement of main-
tenance parts all as deemed necessary by IBM. Maintenance
parts, which may be used parts, will be furnished on an exchange
basis, and the replaced parts become the property of IBM. IBM
may, at its option, store maintenance equipment and/or parts on
the Customer's premises.
The Customer aggrees to provide a suitable environment for the
Machines as specified by IBM, and to provide IBM full, free and
safe access to the Machines to provide maintenance service. The
Customer is responsible to implement appropriate safeguards for
Customer's data. The Customer is responsible for removing,
controlling and replacing or reloading funds contained in the
Machines. IBM will service Machines` containing funds only when
the cash container cannot be opened prior to repair by IBM, in
which case the Customer will remove the funds as soon as the
container has been opened.
PERIODS OF MAINTENANCE SERVICE
The Base Period of Maintenance Service is from 7 a.m. to 6 p.m.,
Monday through Friday, unless otherwise designated by IBM in
the Supplement. The Customer may select Optional Periods of
Maintenance Service shown in the Supplement. The Optional
Period for Monday through Friday must include the Base Period
Z125-9029-00 Page 5 of 17
of Maintenance Service and must be the same consecutive hours
each day. The Optional Period on Saturday or Sunday must be the
same consecutive hours on all Saturdays' or Sundays. The
Customer may select or change Optional Periods of Maintenance
Service upon 15 days' written notice to IBM.
ENGINEERING CHANGES
Engineering changes, determined applicable by IBM, will be
controlled and installed by IBM. The Customer may, by providing
notice subject to written confirmation by IBM, elect to have only
mandatory changes, as determined by IBM, installed on Machines
so designated.
CHARGES
The Customer agrees to pay maintenance charges, com-
mencing on the Effective Date, consisting of 1) a Minimum
Maintenance Charge, and 2) Additional Maintenance Charges, if
applicable. Additional Maintenance Charges will be for a) Op-
tional Periods of Maintenance Service selected by the Customer,
based on the Machine Group and determined by multiplying the
Minimum Maintenance Charge for the Machine by the applicable
Percentages for the Optional Periods of Maintenance Service
shown in the Supplement, and/or b) the amount of processing
performed by Usage Plan Machines, as measured by an IBM
meter, multiplied by the Additional Maintenance Charge Rate(s)
shown in the Supplement.
The Customer agrees to promptly submit to IBM the meter
reading for each Usage Plan Machine as of the close of the last
work day of the period to which the Minimum Maintenance
Charge applies. The Customer agrees not to interfere with the
proper operation of the meter,
There will be no additional charge for travel expense associated
with maintenance service provided during the Periods of Main-
tenance Service, except that actual travel expense will be charged
when the site at which the machine is located is 1) within the
contiguous States and is normally inaccessible by both private
automobile and scheduled public transportation, or 2) outside the
contiguous States and is normally inaccessible by private auto-
mobile.
The Customer agrees to pay for maintenance service, including
travel and waiting time, provided by IBM outside the Periods of
Maintenance Service at IBM's then applicable hourly service rates
and minimum charges, and travel expense; however, there will be
no additional charge for maintenance parts.
Changes in a Machine's specifications may result in adjust-
ments to the maintenance charges.
Minimum and Additional Maintenance Charges are subject to
change by IBM upon three months' written notice to the Customer
and will become effective on the date specified in the notice unless
the Customer withdraws the affected Machine from this Agree-
ment as provided in the Section entitled "Withdrawal/Termina-
tion," except that Charges invoiced quarterly or annually are
subject to change by IBM upon commencement of service and on
the first day of each quarterly orannual invoice period, upon three
months' written notice to the Customer. IBM's hourly service rates
and minimum charges are subject to change by IBM without
notice.
SERVICES, FOR ADDITIONAL CHARGE
The services, including travel and waiting time, described in this
Section; if available, will be provided by IBM underthis Agreement
at IBM's then applicable hourly service rates and minimum
charges, parts and material prices and travel expense, unless such
services are provided under another written agreement signed by
the Customer and IBM. The following services are not considered
maintenance service as described in the Section entitled "Main-
tenance Service":
1), Repair of Machine damage, replacement of maintenance
parts or increase in service time caused by —
a) failure to continually provide a suitable environment pre-
scribed by IBM including adequate space, electrical
power, air conditioning and humidity control;
b) neglect; misuse, including use of the Machines for pur-
poses other than for which designed;
c) accident; disaster, including water, wind and lightning;
transportation; vandalism or burglary of. Machines de-
signed to contain funds; .
d) alterations, including any deviation from IBM's Machine
design;
e) attachments, including any interconnection to the Mach-
ine of non -IBM equipment and devices not supplied-
by IBM;
f).;,IBM Machines, except those IBM Machines which are
owned by IBM, under warranty from IBM, or under an
IBM maintenance agreement; and
g) conversion from one IBM model to another or the instal-
lation or removal of an IBM feature whenever any of these
activities was performed by other than IBM except that
this subsection (g) will apply only during the first three
months of service under this Agreement subsequent to
the date of such Machine modificiation;
2) Repair of Machine damage, replacement of maintenance
parts (due to other than normal wear) or repetitive service
calls caused by the use of supplies;
3)" Service for accessories;
4) Inspection of altered Machines;
5) Replacement or addition of parts and increase in service
time associated with the installation by IBM of an engi-
neering change when such parts and service are required
due to the conversion from one IBM model to another or the
installation or removal of an IBM feature whenever any of
these activities was performed by other than IBM;
6) Rearrangement or relocation of Machines and provision of
necessary materials;
7) Replacement of a part not furnished for the Machine by IBM
(except when such part is In an alteration) with a directly
interchangeable IBM maintenance part, and any increase in
service time associated with such activity; and
8) Repair of a Machine caused by non -IBM representatives per-
forming maintenance or repair of such Machine.
EXCLUSIONS
Services provided by IBM under this Agreement do not include
1) furnishing supplies, painting or refinishing the Machines or
furnishing material therefor, 2) electrical work external to the
Machines or installation, maintenance or removal of alterations,
attachments or other devices not furnished by IBM and 3) such
service which is impractical for IBM to render because of
alterations in, or attachments to, the Machines.
TAXES
In addition to the charges due under this Agreement, the
Customer agrees to pay amounts equal to any taxes resulting
from this Agreement, or any activities hereunder, except for taxes
based upon IBM's net income.
INVOICING
The Minimum Maintenance Charge and the Additional Main-
tenance Charge for Optional Periods will be invoiced in advance,
monthly, quarterly or annually as shown in the Supplement.
Monthly charges will be invoiced as of the first of each month and
will be prorated on the basis of a 30-day month. The Additional
Maintenance Charge for usagewill be invoiced 'following the
period in which it is incurred. All other charges will be invoiced
when or after they are incurred.
PAYMENT
The Customer will remit payment to IBM within 30 days after the
date of invoice. The Customer will receive a partial credit of
maintenance charges invoiced upon the withdrawal of Machines
or termination of this Agreement prior to the expiration of the
period for which the invoice applies.
WITHDRAWAL/TERMINATION
The Customer may withdraw a Machine from this Agreement
upon one month's written notice to IBM a) after the Machine has
been under this Agreement for at least six months, b) after the
Machine has been under this Agreement for at least one month,
provided it has been removed from the Customer's location or c)
on the effective date of an increase in the Minimum Maintenance
Charge or Additional Maintenance Charges.
IBM may withdraw a Machine from this Agreement upon three
months' written notice to the Customer one year or more after
maintenance service for each such Machine has commenced, but
not prior to the end of the period for which IBM has submitted an
invoice to the Customer for service under this Agreement for such
Machines.
IBM may withdraw a Machine from this Agreement upon one
month's written notice to the Customer following any repetition of
the need for additional repair of such Machine caused by non -IBM
maintenance activity, as described in item (8) of the Section
entitled "Services for Additional Charge."
Either party may withdraw Machines or terminatethisAgree-
ment at any time by written notice forfailure of the otherto comply
with any of itsrterms and conditions.,
,This Agreement may be terminated by either party, upon one
month's written notice; following withdrawal of all Machines and
fulfillment.of all obligations hereunder.
Page 6 of 17
DISCLAIMER AND LIMITATION OF LIABILITY
IBM will in no event be liable for lost profits, lost savings or other
consequential damages even if IBM has been advised of the
possibility of such damages, or for any claim against the Custo-
mer by any other party.
IBM is relieved of responsibility for all loss of funds contained in,
dispensed by or associated with any Machine.
IBM's liability to the Customer for damages, from any cause
whatsoever, and regardless of the form of action, whether in
contract or in tort including negligence, shall be limited to actual
damages up to the greater of $50,000 or 12 months' maintenance
charges for the specific Machines, under this Agreement that
caused the damages or that are the 'subject matter of or are
directly related to the cause of action. Such Charges will be those
in effect for the specific Machines when the cause of action arose.
The foregoing limitation of liability will not apply to claims for
personal injury or damage to real property or tangible personal
property caused by IBM's negligence.
GENERAL
Service provided under this Agreement does not assure unin-
terrupted operation of.the Machines and IBM is not responsible
for failure to render service due to causes beyond its control.
This Agreement is not assignable without the prior written
consent of IBM. Any attempt to assign any of the rights, duties or
obligations of this Agreement without such consent is void.
IBM may, upon 12 months' written notice to the Customer,
modify the terms and conditions of this Agreement, except that
IBM may, upon three months' written notice to the Customer,
modify the terms and conditions of the Sections entitled "Periods
of Maintenance Service," "Charges" and "Services for Additional
Charge." Otherwise, this Agreement can only be modified by a
written agreement duly signed by persons authorized to sign
agreements on behalf of the Customer and IBM. Variance from the
terms and conditions of this Agreement in any Customer order or
other written notification will be of. no effect.
The Customer represents that the Customer is either the owner
of the Machines under this Agreement, or authorized by the owner
to include such Machines under this Agreement.
No action, regardless of its form, arising out of this Agreement,
may be brought by either party more than two years after the
cause 'of action has arisen, or, in the case of an action , for
nonpayment, more than two years from the date the last payment
was due.
This Agreement will be governed by the laws of the State of New
York.
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
HAS READ:, THIS 'AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
MENT, AND, SUPPLEMENTS REFERENCING THIS AGREE-
MENT, WILL BE THE COMPLETE AND EXCLUSIVE jSTATE-
MENT OF THE AGREEMENT BETWEEN THE PARTIES,
SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS,
ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
BETWEEN THE PARTIES RELATING TO THE SUBJECT
MATTER OF THIS AGREEMENT.
,
Agreement for IBM Licensed Programs
(Z125-3358-00)
International Business Machines Corporation (IBM) and the Customer agree that, when this Agreement is signed by the Customer and
accepted by IBM, the following terms and conditions will apply to any IBM licensed program materials offered under this Agreement
when ordered by the Customer and the order is accepted as provided herein. Under these terms and conditions, IBM will 1) furnish
licensed programs to the Customer, 2) furnish licensed optional materials in support of such licensed programs, 3) grant the Customer a
nontransferable and nonexclusive license in the :United States and Puerto Rico to use the licensed program materials, and 4) provide
program services, all as described herein. The Customer, agrees with respect to the licensed programs to accept the responsibility for 1)
their selection to achieve the Customer's intended results, 2) their installation, 3) their use, and 4) the results obtained therefrom. The
Customer also has the responsibility for the selection and use of, and results obtained from, any other programs, programming,
equipment or services used with the licensed programs.
Specific licensed program materials may be ordered under this Agreement by 1) a Supplement to this Agreement (Supplement)
signed by the Customer, 2) a written order, specifying the licensed program materials and the designated machine, signed by the
Customer, or 3) such other ordering procedure. as shall be designated by IBM for the specific licensed program materials. IBM will
accept any such order under this Agreement by providing the Customer a Supplement specifying the supplemental terms applicable to
such licensed program materials. Upon receipt of the Supplement by the Customer, IBM shall thereby grant a nontransferable and
nonexclusive license in the United States and Puerto Rico for licensed program materials subject to the terms and conditions of this
Agreement. Use of,the licensed program materials or the first payment of charges due hereunder, whichever first 'occurs following
receipt of the Supplement, will constitute the Customer's acceptance of the supplemental terms specified in the Supplement.
Any terms which this Agreement states are to be specified by IBM fora licensed program and/or related licensed optional materials
will be stated in the Supplement for that licensed program.
DEFINITIONS
The term. "licensed program" in this Agreement shall mean a
licensed data processing program consisting of 'a series of
instructions or statements in machine readable form, and/or any
licensed data base consisting of a systematized collection of data
in machine readable form, and any related licensed materials such
as, but not limited to, flow charts, logic diagrams and listings
provided for use in connection with the licensed data processing
program.
The term "licensed optional materials" in this Agreement shall
mean any machine readable or printed material not included in the
licensed program and which is designated by IBM as available
under license to Customers who have licensed the program to
which such optional materials relate.
The term "licensed program materials in this Agreement shall
mean both the licensed program and the licensed optional
materials as defined above.
The term "restricted materials" in this Agreement shall mean
any licensed program materials which are labeled "Restricted
Materials of IBM.'
The term "use" in this Agreement shall mean copying any
portion of the licensed program materials into a machine and/or
transmitting them to a machine for processing of the machine
instructions, statements or data contained in such materials.
TERM
This Agreement is effective from the date on which it is accepted
by IBM and will remain in effect until terminated by the Customer
upon one month's written notice, or by IBM as set forth in this
section. This Agreement may be terminated by the Customer only
when all licensedprogram materials ,licensed hereunder .are
discontinued and all licensed program materials' have been
returned or destroyed.
Licenses granted under this Agreement maybe discontinued by
the Customer upon one: month's written notice, except that,
during the testing period, the Customer may discontinue any
license at any upon written notice effective immediately.''
IBM may discontinue any license or terminate this Agreement
upon written notice effective immediately if the Customer fails to
comply with any of the terms and conditions of this Agreement.
Notice of discontinuance of any or all licenses shall not be
considered notice of termination of this Agreement unless
specifically stated.
Notice of discontinuance of any licensed program shall be
notice of discontinuance of the licenseand of all licensed program
materials obtained in connection therewith.
LICENSE
Each license granted under this Agreement. authorizes the
Customer to:
Z125-9029-00 Page 7 of 17
a), use the licensed program, materials;in.machine readable form
on the machine or machines' (hereinafter referred to as.
"machine") designated in an applicable Supplement for such
licensed program materials and in conjunction therewith to
store the licensed program materials in, transmit them,
through, or display them on, units associated with such desig-,
nated machine;
b) utilize the licensed program materials in, printed form in sup-
port of the use of the licensed program; and/or
c) copy or translate the licensed program materials in machine
readable form into any machine readable or printed form to
provide sufficient copies to support the Customer's use of
the licensed program as authorized under this Agreement.
Licensed program materials provided by IBM in form,
microfiche or other non -machine readable form may not be
copied. Additional copies may be obtained under license from
IBMat the charges then in effect.
With respect to restricted materials, the authorizations granted
under the preceding paragraphs of this section are limited solely
to the following purposes:
a) making modifications,to the Customer's products and/or pro-`
grams so that they will function with the licensed programs to',
which the restricted materials apply;
b) making modifications, subject to the provisions of the section
entitled "Permission to Modify," to the licensed programs to
which the restricted materials apply;. and/or i
c) assisting the. Customer in problem determination,. problem
source identification and/or problem resolution activities
associated with the use of the licensed programs to which the
restricted materials apply.
A separate License is required for each machine .on which any
licensed program materials will be used, except as provided in the:
subsections entitled "Temporary, License Transfer," "Installation
License" and "Location. License."
For any licensed program that is a data base, the license granted
in this section is further limited to permit access to such data base
exclusively by the Customer. Except as provided in the section
entitled "Protection and. Security of Licensed Program. Materials,"
the Customer shall not make or permit any manner of access to
any form of such data base, or part thereof, for the purpose of ,
making available to any other person any data contained in such
data base.
The Customer shall not use, print; copy, trarslate or display
the.licensed program materials, -in whole or in part, unless ex-
pressly authorized in this Agreement.
The Customer shall not reverse assemble or reverse compile the
licensed programs in whole or in part.
Temporary License Transfer
The Customer is authorized to transfer the license to and use
the licensed program materials on:
1) a backup machine when the designated machine or an asso-
ciated unit required for use of the licensed program is tempo
rarily inoperable until operable status is restored and process-
ing on the backup, machine is completed; or
2) another machine for assembly or compilation of the licensed
program materials if the designated machine and . its asso-
ciated units do not provide the configuration required for as-
sembly or compilation.
Installation License
When IBM specifies "Installation License Applies the
Customer is also authorized to use the licensed program materials
on any other machine in the same installation as the designated
machine. For purposes of this Agreement, "same installation"
shall mean a single room or contiguous rooms unless otherwise
agreed to in writing by IBM.
Location License
When IBM specifies "Location License Applies" the Customer is
also authorized to use the licensed program materials on any,
other machine in the same location as the designated machine.
For purposes of this Agreement, ''same location"'shall'mean a
single. physical Customer location designated by a single mailing
address and contained within a single building unless otherwise
agreed.to in writing by IBM.
Change In Designated Machine.
The Customer may notify' IBM of the!Customer's intention to
change the, designation of the machine on which licensed
program materials are to be used. The change of designation will
be effective upon the date set forth in the form entitled
"Confirmation of Chap9e in Designated Machine'furnished to the
Customer by IBM.
Additional Licenses
Each additional license for licensed program materials already
licensed by the Customer under this Agreement must be ordered
as described herein.
For additional licenses,. in lieu of distribution from IBM, the
Customer may elect. to copy those licensed program materials
previously distributed to that- Customer by IBM in machine
readable form. The Customer may make such copy upon receipt
of a Supplement issued by IBM which designates the Effective
Date for Additional License requested by the Customer. The
testing period, if any, for such additional license will commence
on the Effective Date for Additional License. Permission to copy
granted in this subsection does not apply to licensed 'program
materials provided by IBM in printed form.
For certain licensed programs, IBM may offer the Distributed
Systems License Option (DSLO) under which.licenses in addition
to the initial license (Basic' License) may be obtained for a DSLO
charge, When ordering additional licenses for such a licensed
program; the Customer` must designate whether an additional
Basic or DSLO License is requested. For each DSLO License, the
Customer will:
1) copy those licensed program materials previously distributed
in machine readable form to the Customer by IBM under the
Basic License and use such copies:on the machine designated
in the Supplement;
2) provide problem documentation to IBM through the location of
the Basic License;
3) at IBM's request, recreate any problems at the location of the.
Basic License; if Local: Service or. Local Assistance as speci-
fied by IBM is available for the Basic. License; and , ,1l;
4) distribute to, install and test on the DSLO designated machine
any new release, correction or bypass provided by IBM to the
Basic License designated machine.
Program. services and the warranty, if any, for the licensed
program will be provided for DSLO Licenses only through the
Basic License location and there will be no testing period for the,
DSLO Licenses. .
Unless the Customer: designates another Basic License, notice
of discontinuance of a Basic, License shall be notice of
discontinuance of all DSLO licenses for that Basic License.
CHARGES
The charges applicable to each licensed program will be
specified by IBM and will consist of a one-time charge, an upgrade
charge, periodic- charges, and any initial charge and/or any
process charge.
Periodic charges, which may be monthly, quarterly, semi-
annual or annual, will continue until the licensed program is
discontinued. However, for certain licensed programs, IBM may
specify a consecutive number of payments after which further
periodic charges will be waived.
For certain licensed programs, IBM may designate one or more
replacement licensed programs. When a licensed program_is
discontinued and replaced by the Customer. with -an. IBM
designated replacement licensed program an upgrade.charge as
specified by IBM will apply.
Licensed optional materials may be subject to a ,charge as
specified by IBM.
Any additional charges for program services for licensed
programs will be at IBM's then applicable hourly service rates and
minimum charges and such services will be provided under the
terms and conditions of this Agreement�unless:provided under
separate written agreement signed by the Customer and IBM.
Commencement and; invoicing of Charges
Periodic charges will commence on the day, Monday through
Friday; following the end of the testing period, or 10 days after
shipment ofthe licensed program by IBM if there is no testing
period, except as set forth below in this subsection. Monthly`
charges for a partial month's use will be prorated based on a thirty -
day month. Other periodic charges will not be prorated and are
not refundable in whole or in part. Periodic charges will be
invoiced in advance.
Unless otherwise specified by IBM, one-time charges, initial
charges, upgrade charges and licensed optional materials
charges will be due on the day, Monday through Friday, following
the end of the testing period, or 10 days after shipment of the'
licensed program materials by IBM if there is no testing period or if
Page 8 of 17
such period has expired, ,except as set forth below in this
subsection.
For additional licenses forwhich the Customer has made copies
,pursuant to the subsection entitled "Additional Licenses" and for
.which there is no testing period, periodic charges will commence
and other charges will, be due upon the Effective Date for
Additional License designated in the Supplement.
Process charges will be due upon receipt by the Customer of
the licensed program materials to which such charges apply and
are not refundable even if the Customer discontinues the licensed
program prior to or during the testing period.
Payment will be made as stated in,the'invoice.
Applicable Taxes
In -addition to the charges due under this Agreement, the
Customer agrees to pay amounts equal to any taxes resulting
from this Agreement, or any activities hereunder, exclusive of
taxes based on IBM's net income.
Price Changes'
Periodic charges are subject to change by IBM upon three
months' written notice to the Customer. Any changes in periodic
charges 'become effective on the first day of the Period which
commences on or after the effective date specified in the notice,
Initial charges, one-time charges, process or upgrade charges,
and charges for licensed optional materials are subject to change
without prior notice except that such charges shall not be
increased if, prior to the date of the notice,1) the licensed program
materials had been shipped by IBM, or 2) the Customer had
copied licensed program materials pursuant to the subsection
entitled "Additional Licenses." In addition, if the Customer's
written order was received by IBM prior to the announcement of
such increase in charges, such charges shall not be increased if,
within one month after the date of notice, shipment of the licensed
program materials occurs or the Customer copies licensed
program materials pursuant to the subsection entitled "Additional
Licenses"
If chargesare increased for any licensed program materials, the
Customer may discontinue them in accordance with the
provisions of this Agreement; otherwise, the new charges will
become effective.
SHIPMENT
The Estimated Shipment Date for licensed programs will be
specified by IBM. However, IBM does not represent or warrant
that such shipment date will be met.
IBM will notify the Customer of the type of program storage
media required for shipment. Unless returnable or disposable
media are used, the program storage media must be provided by
the Customer or ordered from IBM at the applicable charge.
Except when otherwise specified by IBM, licensed program ma-
terials will be shipped to the Customer without shipping charge.
Any special shipment requested by the Customer will be at
Customer expense.
LICENSEDPROGRAM TESTING
For each licensed program IBM will specify the testing period, if
any, during which the licensed program will be made available for
nonproductive use. The purpose of the testing period is to permit
the Customer to determine whether the .licensed . program
functions selected by the Customer operate together and to assist
the Customer in determining whether the licensed program meets
the Customer's requirements. The testing period will begin, 10
days after shipment of the licensed ;program by IBM or on the
Effective Date for Additional License, .unless otherwise specified.
The Customer may discontinue the licensed program, upon
written notice effective immediately, at any time during the testing
period, in which event periodic charges, one-time charges; initial
charges, upgrade charges and licensed optional materials
charges will not be due. However,. process charges will be
payable. Unless such notice of discontinuance is given,- the
Customer will be deemed, at the end of the testing period, to have
decided to retain the licensed program underthe provisions of this
Agreement.
In the event that the licensed program is used for productive
purposes during the testing period, the Customer will notify IBM
and the testing period will be deemed to have ended as of the date
upon which the Customer commences productive use.
Subsequent releases, if any, of a licensed program which have
the same program number will be made available to the Customer
for productive use and/or test`on the designated machine while
the Customer continues productive use of a previous release on
that machine and pays applicable charges therefor. The Customer
has the right to decide whether to intali any such releases or
continue use of a previous release having given due regard to the
provisions of the section entitled "Program Services."
In the event of discontinuance ofa licensed program and
subsequent reoraering of the same licensed program forthe same
installation (or location, when IBM has specified "Location
License Applies"), there will be no testing period for .the
subsequent license.
RISK OF LOSS
If licensed program materials are lost or damaged during
shipment from IBM, IBM ,will replace such licensed program
materials and program storage media at no additional charge to
the Customer.
If licensed program materials are lost or damaged while in the
possession of the Customer, IBM will replace such licensed
program 'materials at the applicable charges, if any, for
processing, distribution, and/or program storage media.
EARLY SHIPMENT OF LICENSED PRINTED MATERIALS
When the Customer has received a Supplement issued by IBM
for generally available' licensed program, licensed program
materials which are provided by IBM in printed form will, upon
Customer request, be shipped to the Customer up to six months
prior to shipment of the machine readable portion of the licensed
program materials. The licensed printed materials, thus provided,
may not be copied in any form for any purpose.
If the Customer does not request that the machine readable
portion of the licensed program materials be shipped within six
months following the date of shipment of the licensed printed
materials, the Customer will discontinue the license and return or
destroy the printed materials.
The charge.for early shipment of licensed printed materials will
consist of any applicable process charges.
Program services, if any, will not be provided prior to shipment
of the machine readable portion of the licensed program
materials.
PROGRAM SERVICES
For each licensed program, IBM will specify the types and
durations of program services, if any, to be provided without
additional charge for a current release of the licensed program.
Program services will commence at the beginning of the licensed
program testing period or, if there is no testing period for that
license, when periodic charges commence or other charges are
due. Program services will be subject to the provisions of the
section entitled "Specified Operating Environment."
Types of Service
Central Service When Central Service is specified one or
more service locations will be designated which will 'accept
documentation, in a format prescribed by IBM, indicating that a
problem is caused by a defect in the licensed program. Central
Service will respond to a defect in the unaltered portion of a
current release of the licensed program by issuing: defect
correction information such as correction documentation, cor-
rected code, or notice of availability of corrected code; or a
restriction or a bypass. Unless Local Service is also specified for
the licensed program, the Customer will be responsible for the
preparation and submission of documentation to Central Service.
IBM may also establish a center (Support Center) to provide the
Customer with telephone assistance in problem diagnosis and
resolution. When a Support Center is established for a licensed
program and a.problem occurs which the Customer believes is
related to the use of a licensed program, the Customer will contact
the . Support Center and will perform appropriate problem
definition activities and remedial actions, as prescribed by the
Support Center, prior to any dispatch of an IBM representative.
IBM also offers other services through Support Centers with or
without charge, as applicable.
Local Service —When Local Service is specified and a problem
occurs which the Customer determines is caused by the use of a
licensed program and the diagnosis of the ;IBM representative
indicates the problem is caused by a defect in the unaltered
portion of a current release of the licensed program, the IBM
representative will perform. the following problem resolution
activities:
Z125-9029-W
Page 9 of 17
1) attempt to correct or bypass the defect by providing the Cus-
.tomer with correction information issued by Central Service,
if available; or
2) submit documentation to Central Service, if specified as avail-
able; and, in any event
3) if the licensed. program is inoperable, make a'reasonable
attempt" to resolve the problem by applying a localfix or
providing a bypass.
Local Assistance --When Local Assistance is specified and the
Customer encounters a problem, which the Customer's diagnosis
indicates is caused by a defect in the unaltered portion of a current
release of the .licensed. program, the Customer may request IBM
assistance in resolving the problem. Such assistance, if requested,
will be provided by an iBM representative and may be subject to
the availability of personnel. This assistance may include; but not
extend beyond, the following problems resolution activities:
1) attempting to correct or. bypass, the defect by providing the
Customer with correction information issued by Central Ser-
vice, if available; -or a,
2) assisting the .Customer .with preparing documentation for
submission to. Central Service, if specified as available; and,
in any event
3) if•the licensed program is inoperable; .making a,reasonable
attempt to resolve the problem by applying a local fix or provid-
ing a bypass,,.
Program Services Duration
For each licensed program. the types of program service
provided will be specified as available:
1) until discontinued by IBM with a minimum of six months' writ-
ten notice or
2) until a designated calendar date; or
3) during the testing period; or
4) for a designated number'of months for each license. In the
event the Customer discontinues a licensed program and sub-
sequently reorders it for the same installation (or location,
when IBM has specified "Location License Applies"), the
service duration then in effect will be reduced by the number
of months for which such service was previously provided.
When a subsequent release of a licensed program which has the
same program number becomes available, IBM may discontinue
program services for any or all prior releases by notice effective on
the date stated therein.
For any licensed program, IBM shall have the righttochargefor
any of the foregoing program services to the extent they are not
specified as provided without additional charge. Other types of
program services may be specified by IBM.
IBM shall also have the right to charge for any additional effort'
which -results from providing program services for an altered'
licensed program or for a release which is not current.
IBM does not guarantee service results or represent or warrant'
that all errors or program defects will be corrected.
PERMISSION TO MODIFY
The' Customer may modify any licensed program materials in
machine readable form and/or merge such materials into other
program material to form an updated work for the Customer's own
use; provided that, upon`,discontinuance of the licensed program,.
the licensed' program materials will be completely removed from
the updated work and dealt with' under this Agreement as if
permission to modify or merge had never been granted. Any
portion of the licensed program materials included in such an
updated work will continue to be subject to all terms of, this
Agreement:
PROTECTION AND SECURITY OF LICENSED PROGRAM
MATERIALS
The Customer will take appropriate action,; by instruction,
agreement or otherwise, with any persons permitted access to
licensed program materials so as to enable the Customer to satisfy,
the'Customer's obligation under. this Agreement:
All copies of licensed program materials provided by IBM or
made, by, the Customer including translationsor;compilations or
partial copies within modifications, derivative works, and updated
works are the; property. of IBM and may not be. distributed by the
Customer to any other persons; including other licensees of the
licensed program, without IBM's. prior. _written consent. The
Customer will" reproduce and include'the copyright notice on
any; such :copies made by: the Customer in accordance with the
copyright instructions provided by IBM.
The Customer will maintain records of the number and location
of all copies of licensed program materials and will notify IBM in
writing if the original or any copy of the licensed program
materials will be kept at an installation (or location, when IBM has
specified "Location License Applies") other than -.that of the
machine designated,in the applicable Supplement.
The Customer will insure, prior to disposing of any media, that
any licensed program materials contained.. thereon: have- been
erased or otherwise destroyed.
The. Customer. will not provide. or otherwise make available any
licensed program -materials in any form without IBM's prior written
consent except to Customer employees or IBM employees, or to
other persons ;during the period such other persons are on the
Customer's premises, for purposes specifically related to the
Customer's authorized use of the.licensed program. ,
LICENSED- PROGRAM SPECIFICATIONS -
For each licensed program which is warranted, IBM will publish,
at the time that licensed program becomes generally available, a
document entitled "Licensed Program Specifications." Such
Licensed Program Specifications may be updated by IBM from
time to time and such updates may constitute a change in
specifications...
WARRANTY,
Each licensed program which is specified in the Supplement as
warranted will conform,' when shipped to the Customer; to the
Licensed Program Specifications which are in effect' for that
licensed program at that time, provided the licensed program is
property used in a Specified Operating Environment. If the
Customer believes there is a defect in a licensed program such
that it does not meet its Licensed Program Specifications, the
Customer must notify IBM while program services are available
for the program. IBM' does not warrant that the functions con-
tained in a licensed program will meet the Customer's
requirements or will operate iri the combinations which may be
selected for use by the Customer, or that the operation of the
licensed program will be uninterrupted or error free or that all
program defects will be corrected.:
`.AII other licensed programs will be distributed on an "As Is"
basis without warranty of any kind either express or implied.
THE FOREGOING WARRANTIES ARE.. IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR, IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED' WARRANTIES OF
MERCHANTABILITY -AND FITNESS FOR A PARTICULAR
PURPOSE.
SPECIFIED OPERATING ENVIRONMENT'
Each licensed program is designedto operate on one ror more
IBM machine types and, in most instances, in conjunction with
other, l$M equipment and programs. The Licensed Program
Specifications for each warranted licensed program will state the
environment in which the licensed program is -..designed to
operate. For licensed programs distributed on an "As Is" basis, the
Specified Operating Environment will be stated in a notice of
availability of the licensed program.
Program services for a licensed program used in ,other than,a
Specified Operating Environment _are subject 'to , limitations
occasioned by the differences between the Specified Operating
Environment and the Customer's operating, environment and by
the extent of the local IBM representative's, knowledge of the
Customer's equipment and programs: Such program services will,.
be subject to the following conditions;
1) When performing Local Service or Local Assistance, IBM'sob-
ligation is limited to having the local IBM representative apply a
reasonable effort to provide program services as described in
the applicable portion of the section entitled "Program-Ser-,,
vices." Furthermore, the local IBM representative will only be
expected to operate a machine designated in the Supplement
if it was marketed or manufactured by IBM. IBM will have
the right to charge fpr any,additional effort required to perform
- these program services. ,
2) Central Service will only respond to defects which will occur
when , Central , $e,rvice operates the licensed prograrrl in a
Specified Operating Environment.`
RETURN OR DESTRUCTION OF LICENSED PROGRAM
MATERIALS. '
Within one ; rrionth , after the . date of , discontinuance of any
license_granted hereunder, unless the requirement is waived by
IBM, the Customer will furnish'to IBM a completed form entitled
Page 10 of 17
"IBM Licensed Program Certificate of Return or Destruction"
certifying that through the Customer's best effort, and to the best
of the Customer's knowledge, the original and all copies of the
licensed program materials received from IBM or made in connec-
tion with such license have been returned to IBM or destroyed.
This requirement will apply to all copies in any form including
translations or compilations or partial copieswithin modifications,
derivative works, and updated works, whether partial or complete,
and whether or not modified or merged into other program
materials as authorized herein. However, upon prior written
authorization from IBM, the Customer may retain a copy for
archival purposes only.
The requirement to. return or destroy will apply to a licensed
database; it will not apply to individual pieces of data obtained by
the Customer from such data base and which constitute a minor
portion of such data base.
When the Customer has licensed a new version of a licensed
program, which carries a different program number, and
discontinues the prior version, the Customer may retain the prior
version of the licensed program for a period not to exceed three
months following its date of discontinuance, to be used only if a
defect In the new version prevents its use. During this period, the
Customer will pay only the applicable charges for the new version
of the licensed program. Within one month following this three-
month :period, unless the requirement is waived by IBM, the
Customer will furnish IBM a completed form entitled "IBM
Licensed Program Certificate of Return or Destruction" for the
prior,version as set forth above.
PATENTS AND COPYRIGHTS
IBM will, at its expense, defend the Customer against any claim
that licensed program materials supplied hereunder infringe a
patent or copyright in the United States or Puerto Rico and subject
to the limitation of liability set forth in the section entitled
"Limitation of Remedies," IBM will pay all costs, damages and
attorney's fees that a court finally awards as a result of such claim.
To qualify for such defense and payment, the Customer must:
1) give IBM prompt written notice of any such claim; and
2) allow IBM to control, and fully cooperate with IBM in, the
defense and all related settlement negotiations. However, if the
damages attributable to a claim of infringement of a patent in
the United States or Puerto Rico may exceed such limitation of
liability, the Customer may elect to defend against the claim
provided that IBM may fully participate in the defense and/or
agrees to any settlement of such claim.
The Customer agrees to allow IBM, at IBM's option and
expense, if such claim has occurred or in IBM's judgment is likely
to occur, to procure the right for the Customer to continue using
the licensed program materials or to replace or to modify them so
that they become non -infringing; and, if neither of the foregoing
alternatives is available on terms which are reasonable in IBM's
judgment, upon written request, the Customer will return the
licensed program materials to IBM; and, for licensed programs
whose total charges are fully paid, the Customer may receive a
credit as established by IBM.
IBM shall have no obligation with respect to any such claim
based upon the Customer's modification of the licensed program
materials or their combination, operation or use with data or
programs not furnished by IBM or in other than the Specified
Operating Environment. This section states IBM's entire
obligation to the Customer regarding infringement or the like.
LIMITATION OF REMEDIES
IBM's entire liability and the Customer's exclusive remedy shall
be as follows:
In all situations involving performance or nonperformance of
licensed programs furnished under this Agreement, the
Customer's remedy is 1) the correction by IBM of Licensed
program defects, or 2) if, after repeated efforts, IBM is unable to
make the licensed program operate as warranted, the Customer
shall be entitled to recover actual damages to the limits set forth in
this section.
For any other claim concerning performance or nonper-
formance by IBM pursuant to, or in any other way related to, the
subject matter of this Agreement and any Supplement hereto, the
Customer shall be entitled to recover actual damages to the limits
set forth in this section.
IBM's liability for damages to the Customer for any cause
whatsoever, and regardless of the form of action, whether in
contract or in tort including negligence, shall be limited to the
greater of $25,000 or the one-time charge paid for, or any charges
which would be due for twelve months' use of, the licensed
program that caused the damages or that is the subject matter of,
or is directly related to, the cause of action. Such charges shall be
those in effect when the cause of action arose and shall include
any initial or process charges paid to IBM. This limitation of
liability will not apply to claims for copyright infringement or for
personal injury or damage to real or tangible personal property
caused by IBM's negligence.`
In no event will IBM be liable for any damages arising from
performance or nonperformance of the licensed program during
the licensed program testing period orforany damages caused by
the Customer's failure to perform the Customer's responsibilities,
or for any lost profits, lost savings or other consequential
damages, even if IBM has been advised of the possibility of such
damages, or for any claim against the Customer by any other
party, ,except as provided in the section entitled "Patents and
Copyrights."
IBM EDUCATION COURSES
The Customer agrees that all of the terms and conditions
applicable to restricted materials contained in this Agreement
shall be incorporated into the Agreement between the Customer
and IBM entitled "Terms and Conditions for IBM Classes and
Education Materials" and apply to materials, regardless of form,
labeled "Restricted Materials of IBM" when distributed to the
Customer in conjunction with an IBM Education Course.
ADDITIONAL PRODUCTS AND SERVICES
In addition to the licensed program materials and program
services provided under this Agreement, IBM offers other
products and services at separate charges under applicable
written IBM agreements. IBM and the Customer agree that such
products and services cannot be the subject of an oral agreement.
GENERAL
This Agreement is not assignable; none of the licenses granted
hereunder nor any of the licensed program materials or copies
thereof may be sublicensed, assigned or transferred by the
Customer without the prior written consent of IBM. Anyattempt to
sublicense, assign or transfer any of the rights, duties or
obligations under this Agreement is void.
Licensed program materials furnished under this Agreement
are to be used only on machines located in the United States and
Puerto Rico.
The terms of this Agreement may be modified by IBM upon
three months' written notice to the Customer, except that any
modifications of the terms and conditions which relate specifically
to termination of this Agreement or discontinuance of licenses
granted under this Agreement as provided in the section entitled
"Term" shall be effective only as to licensed program materials
designated in a Supplement issued by IBM after the date of such
notice. Modifications shall become effective unless the Customer
terminates this Agreement or discontinues any applicable
licenses before the effective date thereof. Otherwise, the
Agreement or any Supplement can only be modified by a written
agreement duly signed by persons authorized to sign agreements
on behalf of the Customer and IBM, and variance from or addition
to the terms and conditions of this Agreement and any
Supplement in any Customer purchase order or other written
notification will be of no effect.
IBM is not responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control.
No action, regardless of form, arising out of this Agreement may
be brought by either party 1) in the case of an action arising out of
breach of the provisions of the section entitled "Protection and
Security of Licensed Program Materials" more than six years after
such cause of action has arisen, 2) in the case of an action for
nonpayment, more than two years from the date the last payment
was due, or 3) in the case of any other action, more than twoyears
after the cause of action has arisen.
The Agreement will be governed by the laws of the State of New
York.
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
MENT AND ITS APPLICABLE SUPPLEMENTS ARE THE COM-
PLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
Z125-9029-00 Page 11 of 17
BETWEEN THE PARTIES, EXCEPT AS PROVIDED IN THE OR WRITTEN, AND ALL OTHER COMMUNICATIONS BE
SECTION ENTITLED "IBM EDUCATION COURSES," SUPER- TWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
SEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OF THIS AGREEMENT.'
Agreement for Lease or Rental of IBM Machines
(Z125-3320-00)
International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any
Customer order for lease or rental of IBM machines that is accepted by IBM under this Agreement. Under these terms and conditions,
IBM will 1) lease or rent machines to the Customer, 2) provide maintenance service for machines and 3) as available, furnish
programming and programming services, all as described herein. The Customer agrees to accept the machines, maintenance service,
programming and programming services under the terms and conditions of this Agreement. The Customer further agrees with respect
to the machines and programming to accept the responsibility for 1) their selection to achieve the Customer's intended results, 2) their
use and 3) the results obtained therefrom. The Customer also has the responsibility for the selection and use of, and results obtained
from, any other equipment, programs or services used with the machines and programming.
The term "machines" as used in this Agreement refers to machines and/or their model conversions and features unless the context
requires individual reference.
Specific machines, model conversions and features become subject to this Agreement when either a written orderto lease ora written
order to rent is signed by the Customer and accepted by IBM. For each order to lease a machine, IBM will provide the Customer a
Supplement to this Agreement (Supplement) confirming the specific terms applicable to the machine. Installation of the machine or
payment of the first invoice for Monthly Lease Charges, whichever first occurs following receipt of the Supplement, will constitute the
Customer's acceptance of such specific terms.
INSTALLATION
The Customer agrees to provide a suitable environment for the
machines as specified by IBM and, except as otherwise specified
by IBM, to furnish all labor required for unpacking and placing
each machine in the desired location. Each machine will be
installed as specified by IBM.
Installation By IBM
IBM will install machines which are not identified by IBM as
Customer Set -Up. IBM will install features and model conversions
on the serial -numbered machine for which they are ordered.
The first day of charge for such machine, feature or model
conversion will be the day (Monday through Friday) following the
day the machine, feature or model conversion is Installed by IBM.
Customer Set -Up
Each machine, feature and model conversion identified by IBM
as Customer Set -Up (CSU) will be set up by the Customer in
accordance with the instructions furnished by IBM.
A CSU machine will be considered to be installed on the last day
(Monday through Friday) of the CSU allowance period specified
by IBM ffor such machine. The CSU allowance period commences
on the day (Monday through Friday) following the date of receipt
of the machine at the Customer's premises. However, when a CSU
machine is delivered in conjunction with, and for attachment to, a
non-CSU machine delivered from IBM, such CSU machinewill be
considered to be installed on the later of 1) the installation date of
such non-CSU machine or 2) the installation date of the CSU
machine as determined above.
A CSU feature or model conversion will be considered to be in-
stalled one month following the later of its estimated date of
shipment or its actual date of shipment from IBM. CSU features
and model conversions will be installed on the serial -numbered
machine for which they are ordered.
The first day of charge for such machine, feature or model
conversion will be the day (Monday through Friday) following the
day the machine, feature or model conversion is considered to be
installed.
CONTRACT PERIOD
IBM will determine the. Lease or Rental Contract Period or
Periods for which each machine is eligible. The Customer may
select the Lease or Rental Contract Period for each machine from
the alternatives available.
Lease Contract Period
A Lease Contract Period has a Commencement Date, a Base
Term and an Expiration Date each of which will be specified in the
Supplement.
The Commencement Date for an eligible machine being
installed will be the day (Monday through Friday) following the
day that the machine is installed, as specified in the Section
entitled "Installation, provided the written order to lease the
machine is received by IBM on or before such.Commencement
Date.
The Commencement Date for an eligible machine already
installed under Rental Contract Period will be the daythewritten
'
order to lease the machine is received by IBM. The Commence-
ment Date of a new Lease Contract Period for a machine already
installed under a Lease Contract Period or Extension will be the
day immediately following the Expiration Date' of such Lease
Contract Period or Extension, provided that the written order for a'
new Lease Contract Period for the machine is received by IBM on
or before such Commencement Date. `
The Expiration Date of a Lease Contract Period is determined
initially by adding the Base Term to the Commencement Date,
and thereafter may be adjusted as described in the Section
entitled "Machine Modifications."
A Lease Contract Period may be extended as described in the
Sectionentitled "Lease Contract Period Extension."
Rental Contract Period
A Rental Contract Period has a Commencement Date and is of
indefinite duration.
The Commencement Date for an eligible machine being
installed will be the day (Monday through Friday) following the
day that the machine is installed, as specified in the Section
entitled "Installation."
The Commencement .Date for an eligible machine already
installed will be the day following the Expiration Date of its Lease
Contract Period or Extension.
CHARGES
The Customer agrees to pay all charges as described in this
Section. IBM reserves the right to offer machines for lease or
rental on longer than a monthly charge basis and, if so, this
Section would be construed accordingly.
IBM will determine the Monthly Lease Charge or. Monthly
Rental Charge applicable to the Lease or Rental Contract Period
or Periods for which each machine is eligible. In addition, IBM will
specify the Plan Offering for each machine as:
Plan A: Each Plan A machine which is installed under a Rent-
al Contract Period is subject to an Additional Use Charge for
billable time in excess of 176 hours in any calendar month, as
measured by an IBM meter, at an hourly rate which is equal to `
1/176th of the 'Monthly Rental Charge multiplied by: IBM's
applicable Additional.. Use Charge Percent then generally in
effect. There is no Additional Use Charge for a Plan A machine
which is'installed'under'a Lease Contract Period or Extension.
Plan B: For each Plan B machine, the Monthly Lease Charge"
or Monthly Rental Charge provides the Customer with
unlimited'usQ in any calendar month.
Plan' C: Each Plan C. machine. is subject to a Monthly Use
Charge which is determined by multiplying the amount of pro-
cessing performed by the machine, as measured by an IBM
meter, by" IBM's applicable Monthly Use Charge Rate(s) then
general ly'in effect.
Plan D: For each Plan D machine, model upgrade and feature,
there will be an Initial. Period of Maintenance Service, as
Page 12 of 17
described in this Section, during which IBM will provide, at no
additional charge, the availability of maintenance service 24
hours per day, seven days per week and unlimited use of the
machine in any calendar month. Thereafter, the Monthly Lease
Charge or Monthly Rental Charge provides the Customer with
the availability of maintenance service during the period from 7
a.m. to 6 p.m., Monday through Friday, (Base Period of Main-
tenance Service) and unlimited use of the machine in any
calendar month.
The Customer may select Optional Periods of Maintenance
Service as designated .by IBM in the IBM Plan D Optional
Periods of Maintenance Service Exhibit (Exhibit). The Custo-
mer may selector change Optional Periods of Maintenance Ser-
vice upon 15 days' prior written notice to IBM.
Optional Periods of Maintenance Service are subject to an
Additional Monthly Maintenance Charge based on the Ma-
chine Group and determined by multiplying the Additional
Monthly Maintenance Charge Rate for the machine by the
applicable Percentages for the Optional Periods of
Maintenance Service shown in the Exhibit. Additional Monthly
Maintenance Charges will commence upon the expiration of
the Initial Period of Maintenance Service or on the effective date
of the Optional Periods of Maintenance Service, whichever is
later. The Initial Period of Maintenance Service commences on
the day (Monday through Friday) following the day that the Plan
D machine is installed, as specified in the Section entitled
"Installation," and has a duration as established in writing by
IBM. If the Initial Period of Maintenance Service expires on a
Friday or Saturday, it will be extended by two days or one day,
respectively, so that the last day of such Initial Period of
Maintenance Service will be on a Sunday.
If the Customer requests maintenance service for a Plan D
machine to be performed at a time outside the Periods of
Maintenance Service, the service will be provided for additional
charge as described in the Section entitled "Maintenance
Service."
Monthly charges for each machine will begin on the Com-
mencement Date of its Lease Contract Period or Extension or
Rental Contract Period, unless otherwise specified in this Section.
Meter Readings
IBM will install and maintain its meters for Plan A and Plan C
machines. For each Plan A machine, where required, and for each
Plan C machine, the Customer agrees to furnish a monthly report
to IBM showing the meter reading as of the close of the last work
day of each calendar month. The Customeragrees not to interfere
with the proper operation of the meters.
Increases in Lease Contract Period Monthly Charges
For each year of a Lease Contract Period for a machine, begin-
ning with the Commencement Date designated in the Supple-
ment, and thereafter with each Anniversary Date, there will be a
maximum Monthly Lease Charge (Upper Limit) for that year. The
Upper Limit for the first year of the Lease Contract Period is
calculated by increasing the initial Monthly Lease Charge in effect
for a machine on the Commencement Date specified in the Sup-
plement by an amount which is derived by multiplying the initial
Monthly Lease Charge by the Upper Limit Percent specified in the
Supplement. The Upper Limit for each succeeding year is
calculated by increasing the Upper Limitforthe preceding year by
an amount which is derived by multiplying the initial Monthly
Lease Charge by the Upper Limit Percent specified in the Supple-
ment. For these calculations, when a machine becomes subject to
the provisions of a Lease Contract Period on or after announce-
ment, but before the effective date, of an increase in the Monthly
Lease Charge, such increased Charge will be used as the initial
Monthly Lease Charge.
For a machine not yet installed, if the Customer's written order
fora machine has been received by IBM, IBM may not increasethe
Monthly Lease Charge or Upper Limit Percent unless written
notice shall have been given to the Customer at least three months
before the date of shipment. In the event of such increase, the
Customer may elect to void the order for the affected machine
within one month of notification of such increase by IBM.
For a machine which is installed, IBM may increase the Monthly
Lease Charge upon three months' prior written notice. Such
increased Monthly Lease Charge will be the lowest of 1) the
Monthly Rental Charge generally in effect for such machine on the
effective date specified in the notice, 2) the Monthly Lease Charge
generally in effect for such machine on the effective date specified
in the notice for Customers commencing a new Lease Contract
Period with the same Base Term or 3) the Upper Limit in effect for
that year, and, to the extent that any increase exceeds the
applicable Upper Limit, the excess will automatically be effective
on ensuing Anniversary Dates.
Z125-9029-00
The Upper Limit Percent specified in the Supplement will not be
increased during the Lease Contract Period.
The Monthly Lease Charge fora model upgrade or feature addi-
tion may .be increased c by IBM in the same manner and in
accordance with the same Upper Limit calculations as for ma-
chines and, pursuant to the provisions set forth in the Section
entitled "Machine Modifications."
The Monthly Use Charge Rate(s) for each. Plan C machine may
be increased by IBM in the same manner and in accordance with
the same Upper Limit calculations as Monthly Lease Charges.
IBM may increase the Additional Monthly Maintenance Charge
Rate or the Percentages for Optional Periods of Maintenance
Service, or IBM may change the Machine Group designation or
the Optional Periods of Maintenance Service, at any time upon
three months' prior written notice to the Customer. Upon 15 days'
:prior written notice to IBM, the Customer may discontinue any
Optional Periods of Maintenance Service affected by such notice
on the effective date of the increase or change. Otherwise, the new
Rate, Percentages, Machine Group designation and Optional
Periods of Maintenance Service will become effective as specified.
Except as provided in this Section and in the Section entitled
"Lease Contract Period Extension," all increases in the Monthly
Lease Charge, Monthly Use Charge Rate(s), and Upper Limit Per-
cent will become effective on the date specified in the notice of
such increase.
Increases in Rental Contract Period Monthly Charges
For a machine under a Rental Contract Period, IBM may in-
crease the Monthly Rental Charge, Additional Use Charge Rate or
Monthly Use Charge Rate(s) upon three months' prior written
notice. The Customer may discontinue any machine included in
such notice on the effective date of the increase upon one month's
prior written notice. Otherwise, the new Charge and Rates will
become effective as specified.
IBM may increase the Additional Monthly Maintenance Charge
Rate or the Percentages for Optional Periods of Maintenance
Service, or IBM may change the Machine Group designation or
the Optional Periods of. Maintenance Service, at any time upon
three months' prior written notice to the Customer. Upon 15 days'
prior written notice to IBM, the Customer may discontinue any
Optional Periods of Maintenance Service affected by such notice
on the effective date of the increae or change. Otherwise, the new
Rate, Percentages, Machine Group designation and Optional
Periods of Maintenance Service will become effective as specified.
Hourly Service Charges
IBM's hourly service rates and minimum charges are subject to
change by IBM without notice.
Destination Charges
All destination charges for each machine, model conversion or
feature, both from and to designated IBM locations, and any
rigging charges will be paid by the Customer in accordance with
IBM's then current shipping and billing practices. The cost of
labor for crating and uncrating is a Customer expense except
when performed at an IBM location.
Applicable Taxes
In addition to the charges due underthis Agreement, the Custo-
mer agrees to pay amounts equal to any taxes resulting from this
Agreement, or any activities hereunder, exclusive of property
taxes and taxes based on IBM's net income.
LEASE CONTRACT PERIOD EXTENSION
Unless otherwise specified in the Supplement, the Customer
may extend a Lease Contract Period for a machine any numberof
times for one year and one time for a period of less than one year.
The Commencement Date of an Extension will be the day follow-
ing the Expiration Date of the Lease Contract Period or Extension
then in effect.
The charges and terms and conditions for the ensuing
Extension may be changed by IBM, but will not be changed by
IBM from the date three months prior to the Commencement Date
of such Extension through its Expiration Date, except as de-
scribed in this Section and except that if such Expiration Date is
adjusted as described in the Section entitled "Machine Modifica-
tions," the charges during the adjustment period may be
increased by IBM in accordance with the Upper Limit provisions
described in the Sections entitled "Increases in Lease Contract
Period Monthly Charges" and "Purchase Option." Prior to the
Expiration Date of a Lease Contract Period or one-year Extension,
IBM will provide the Customer with written notice of all such
charges and terms and conditions for the ensuing Extension.
During the Extension there will be an Upper Limit. The Upper
Limit for the Extension is calculated by increasing the initial
Monthly Lease Charge in effect for a machine on the Commence -
Page 13 of 17
ment Date of such Extension by an amount which is derived by
multiplying such initial Monthly Lease Charge by the Upper Limit
Percent specified in the Supplement, unless such Upper Limit
Percent is modified by written notice for the ensuing Extension, in
which event such modified Upper Limit Percent will apply:
For a machine which is installed under an Extension, IBM may
increase the Monthly Lease Charge upon three months' prior
written notice. Such increased Monthly Lease Charge will be the
lowest of 1) the Monthly Rental Charge generally in effect for such
machine on the effective date specified in the notice, 2)'the
Monthly Lease Charge generally in effect for such machine on the
effective date specified in the notice for Customers commencing a
new Lease Contract Period with the same Base Term or 3) the
Upper Limit in effect for the Extension.
The Monthly Lease Charge fora model upgrade or feature addi-
tion may be increased by ,IBM in the, same manner and in
accordance with the same Upper Limit calculations as for ma-
chines and pursuant to the provisions set forth in the Section
entitled "Machine Modifications."
The Monthly Use Charge Rate(s) for each Plan C machine may
be increased by IBM in the same manner and in accordance with
the same Upper Limit calculations as Monthly Lease Charges.
IBM may increase the Additional Month lyMaintenance Charge
Rate or the Percentages for Optional Periods of Maintenance Ser-
vice, or IBM may change the Machine Group designation or the
Optional Periods of Maintenance Service, at any time upon three
months' prior written notice to the Customer. Upon 15 days' prior
written notice to IBM, the Customer may discontinue any 'Op-
tional Periods of Maintenance Service affected by such notice on
the effective date of the increase or change. Otherwise, the new
Rate, Percentages, Machine Group designation and Optional
Periods of Maintenance Service will become effective as specified.
The one-year Extension Period for each machine will com-
mence automatically unless the Customer notifies IBM in writing
on or before the Expiration Date of the Lease Contract Period or
current one-year Extension that the Customer elects one of the
following choices, as available:
a) to extend for a period of less than one year at the end of
which time the machine will be placed under a Rental Con-
tract Period, if available, unless otherwise agreed;
b) to commence a new Lease Contract Period;
c) to place the machine under a Rental Contract Period; or
d) to purchase the machine.
In addition, the Customer may discontinue a machine or feature
or request model downgrade effective on the Expiration. Date of
a Lease Contract Period or Extension upon one month's prior
written notice.
MACHINE MODIFICATIONS
Upon the Customer's written ,request, IBM will make field
installable model conversions or feature changes to a machine
installed under this Agreement.
Model Upgrades and Feature Additions
A model upgrade is defined as a model conversion which results
in an increase in the Monthly Lease Charge or Monthly Rental
Charge.
Each model upgrade or feature addition to a machine installed
under a Lease Contract Period or Extension may be placed either
under that Lease Contract Period! or Extension or, if available,
under a Rental Contract Period.
a) If placed under that Lease Contract Period or Extension, the
model upgrade or feature addition will be installed at IBM's
applicable Monthly Lease Charge and Monthly Use Charge
Rate(s), if any, then generally in effect for new orders for
such model upgrade or feature having the same Base Term
as the installed machine. When a model upgrade is installed
under that Lease Contract Period or Extension, such Lease
Contract Period or Extension will be lengthened to provide a
common Expiration Date for the machine and the model up-
grade. When a feature addition is installed under that Lease
Contract Period or Extension, such Lease Contract Period
or Extension will not be lengthened.
The model upgrade or feature addition will assume the
same Anniversary Date (but not the same, Commencement
Date) and Upper Limit Percent as the installed machine for
purposes of determining future increases in the Monthly
Lease Charge and any, applicable Monthly Use ,Charge
Rate(s).
b) If placed under a Rental Contract Period, the model upgrade
or feature addition to a machine which is , under a Lease
Contract Period or Extension will be.. installed: at IBM's
Monthly Rental Charge then generally in effect. For a model
upgrade or feature addition to a Plan A machine, an addi-
tional charge, as specified by IBM, will apply in lieu of any
Additional Use Charge. For a model upgrade or feature
addition to a Plan C machine, IBM's applicable Monthly
Use Charge Rate(s) then generally in effect will apply. The
Expiration Date of the Lease Contract Period or Extension
will not be adjusted."
Each model upgrade or feature addition to a machine installed
under a Rental Contract Period may only be placed under a Rental
Contract Period and will be installed at IBM's Monthly Rental
Charge, and Additional Use Charge Rate or Monthly Use Charge
Rate(s), as applicable, then general) in effect.
Q model upgrade or feature addit on to a Plan D machine for
which the Customer has elected Optional Periods of Maintenance
Service will be installed at IBM's applicable Additional Monthly
Maintenance Charges; as provided in this Agreement; based on
the Additional Monthly Maintenance Charge Rate, if any, then
generally in effect for new orders.
The Commencement Date for a model upgrade or feature addi-
tion will be the day (Monday through Friday) following the day
that the model upgrade or feature addition is installed, as specified
in the Section entitled "Installation," provided IBM has received
the written order specifying lease or rental of the model upgrade
or feature addition by such Date.
Model Downgrades and Feature Discontinuances
A model.downgrade is defined as a model conversion which
results in a decrease in the Monthly Lease Charge or Monthly
Rental Charge.
The downgrade of a model or discontinuance of a feature prior
to the Expiration Date of its Lease Contract Period or Extension'
will be subject to the provisions of the Section entitled, "Termi-
nation Charges."
The downgrade of a model or discontinuance of a feature in-
stalled under a Rental Contract Period will not result in a Termina-
tion Charge.
DISCONTINUANCE NOTICE
Subject, to the Sections entitled "Increases in Rental Contract`
Period Monthly Charges, "Lease Contract Period Extension,
"Limitation of Remedies" and 'Termination Charges," the Custo-
mer may, at any time after installation, discontinue a processor
complex unit upon three months' prior written notice, or discon-
tinue any other machine or any field removable feature or request
a field removable model downgrade upon one month's prior
written notice.
TERMINATION CHARGES
The Customer will pay IBM as a Termination Charge, upon
termination of a Lease Contract Period or one-year Extension, for
a machine discontinuance or model downgrade prior to the
Expiration Date of such Lease Contract Period or Extension, the
lesser of:
a) ' The Termination Charge Percent specified in the Supple-
' ment multiplied by the Remaining Contract Value; or
b) the Termination Charge Months specified in the Supplement
multiplied by the applicable Monthly Lease. Charge Value as
of the date of termination.
The Remaining Contract Value of a machine or model down-
grade is determined by multiplying its applicable Monthly Lease
Charge Value as of the date of termination by the. number of
months remaining in its Lease. Contract Period or Extension, The
discontinuance of a feature will ' not result in a ,Termination
Charge, except that the Monthly Lease' Charge of any feature
which is on a machine at any time within three months priortothe
date of termination of the Lease Contract Period or Extension for
such machine will be included in the. Monthly.Lease Charge Value
of such machine.
For a machine not yet installed, if the Customer's written order
for the machine has been received by IBM, IBM may not increase
the Termination Charge Percent or the Termination Charge
Months unless written notice shall have been given to the
Customer at least three months before the date of shipment. Fora
machine which. is installed, IBM may not increase such Percent or
Months during a Lease Contract Period.
Return of a machine to IBM upon the Customer's request during
a Lease Contract Period or Extension for any reason, including
machine replacement for model conversion or feature changes
which are not field installable; or due to the Customer's failure to
comply with any of the terms and conditions of this Agreement,
shall be a termination for purposes of this Section.
The purchase of a machine under the provisions of the Section
entitled "Purchase Option" will not result in a Termination Charge.
PURCHASE' OPTION
. The Customer,may elect to purchase a machine, installed under
a Lease Contract Period or Extension by executing a Supplement
to Agreement for Purchase of IBM Machines. Upon. request from
Page 14 of 17
the Customer, IBM will quote a net purchase option price forsuch
machine, including its -model upgrades and features, as of a
specific month that is not more than three months from the date of
the request.
The net purchase option price, as calculated for each machine,
will be the lower of 1) the Purchase Price stated in the Supple-
ment for the machine, including its model upgrades and features,
as modified in accordance with this Section, less any applicable
purchase option credits not to exceed an amount determined by
multiplying such modified Purchase Price by the Maximum
Purchase Accrual Percent, or 7), IBM's' purchase price then
generally in effect for the machine, including its model upgrades
and features, Jess any applicable purchase option credits not to
exceed an amount determined by .multiplying such purchase
price by the Maximum Purchase Accrual Percent. The Maximum
Purchase Accrual Percent will be specified in the Supplement.
The purchase option credits are determined by multiplying:
a) the applicable Monthly Lease Charges paid under this
Agreement by the Purchase Option percent specified in the
applicable Supplement; and
b) applicable charges, if any, paid under other IBM agree-
ments by the purchase option percents applicable under
those agreements.
For purposes of this calculation, the period during which monthly
charges are eligible for purchase option credits is the period
during which the machine has been continuously installed.
Eligible monthly charges will be applied in the order in which they
are first incurred and do not include Additional Use Charges,
Monthly Use, Charges or Additional Monthly Maintenance
Charges.
When a machine ceases to be installed under this Agreement,
all purchase option credits accrued hereunder with regard to that
machine shall expire.
Purchase option credits accrue individually for each machine,
model upgrade and feature. Purchase option credits are not trans-
ferable to other Customers or between machines, or among a
machine, its models and features.
For a machine not yet installed, if the Customer's written order
for the machine has been received by IBM prior to the announce-
ment of a Purchase Price increase or a decrease in Purchase
Option Percent or Maximum Purchase Accrual Percent, IBM may
not increase such Price nor decrease such Percents unless writ-
ten notice shall have been given to the Customer at least three
months before the date of shipment.
For a machine which is installed, IBM may increase the
Purchase Price stated in the Supplement immediately upon
written notice, subject to Upper Limits determined in the same
manner as for Monthly Lease Charges as described in the
Sections entitled "Increase in Lease Contract Period Monthly
Charges" and "Lease Contract Period Extension." The Purchase
Option Percent and Maximum Purchase Accrual Percent fora ma-
chine will not be decreased during a Lease Contract Period.
The Customer may elect to purchase a machine installed under
a Rental Contract Period by executing a Supplement to Agree-
ment for Purchase of IBM Machines. Upon request from the
Customer, IBM will quote the then applicable purchase price for
such machine, including its model upgrades and features, as of a
specific month that is not more than three months from the date of
the request.
SHIPMENT
IBM agrees to schedule each machine for shipment in accord-
ance with IBM's applicable shipment sequence and will confirm in
writing, and amend as necessary, the Customer's schedule. Prior
to shipment, IBM will make reasonable accommodation to a delay
requested by the Customer.
PROGRAMMING
The term "programming" as used in this Agreement shall mean
such programming as IBM may make generally available, from
time to time, without separate charge, for machines of the types
ordered by the Customer under this Agreement. IBM will furnish
such programming as may be requested by the Customer.
The term "programming services" shall mean such services as
IBM may generally make available without separate charge in
connection with. programming. IBM will determine the program-
ming services available,and their duration.
The terms "programming" and "programming services" do not
include IBM programs and services that are available for a
separate charge or which are offered under separate written
agreements.
ALTERATIONS AND ATTACHMENTS
An alteration is defined as any change to an IBM machine
which deviates from IBM's physical, mechanical or electrical
Z125-9029-00
machine design whether or not additional devices or parts are
required. An attachment is defined as the mechanical, electrical
or electronic interconnection to an IBM machine of non -IBM
equipment and devices not supplied by IBM.
An alteration to a machine may be made upon prior written
notice to IBM. An attachment to a machine may be made without
notice to IBM.
The Customer agrees to accept the responsibility for making
any sucKalteration or attachment, its use and the results obtained
therefrom, and to pay all charges related to the alteration or
attachment as described in the Section entitled "Services for
Additional Charge." The Customer further agrees to remove any
alteration or attachment and to restore the machine to its normal,
unaltered condition'prior to its return to IBM, or upon notice from
IBM that,'the alteration or attachment creates a safety hazard or
renders maintenance of the machine impractical.
MAINTENANCE SERVICE
IBM will provide maintenance service to keep each machine in,
or restore it to, good working order and will make all necessary
adjustments, repairs and parts replacements. The Customer
agrees to provide IBM full, free and safe access to the machines to
provide maintenance service. The Customer is responsible to
implement appropriate safeguards for Customer's data. The
Customer is responsible for removing, controlling and replacing
or reloading funds contained in the machines. IBM will service
machines containing funds only when the cash container cannot
be opened prior to.repair by IBM, in which case the Customer will
remove the funds as soon as the container has been opened.
The Optional Periods of Maintenance Service for a Plan D
machine on Monday through Friday must include the Base
Period of Maintenance Service and must be the same
consecutive hours each day, and the Optional Period on
Saturday or Sunday must be the same consecutive hours on all
Saturdays or Sundays.
If the Customer request maintenance service for a Plan D
machine to be performed at a time outside the Periods of
Maintenance Service, the service, including travel and waiting
time, will be !furnished under this Agreement at IBM's then
applicable hourly service rates and minimum charges, and travel
expense; however, there will be no additional charge for main-
tenance parts.
TRAVEL EXPENSE
Except as provided for Plan D machines in the Section entitled
"Maintenance Service," there will be no charge for travel ex-
pense associated with maintenance service or programming
service under this Agreement except that actual travel expense
will be charged when the site at which the machine is located 1) is
within the contiguous States and is normally inaccessible by both
private automobile and scheduled public transportation, or 2) is
outside the contiguous States and is normally inaccessible by
private automobile.
SERVICES FOR ADDITIONAL CHARGE
The Customer agrees to pay, at IBM's then applicable hourly
service rat s and minimum charges, parts and material prices and
travel expense, all charges for services and to pay for loss of or
damage to a' machine, caused by 1) use of the machine for
purposes other than for which designed, 2) alterations and
attachments, or 3) vandalism or burglary of machines designed to
contain fuhds.,The Customer also agrees to pay, at IBM's then
applicable hourly service rates and minimum charges, parts and
material prices and travel expense, all charges for service for
accessories, and for repair of damage, replacement of parts (due
to other than normal wear) or repetitive service calls caused by
the use of'supplies.
All services' (including but not limited to services relating to
pre -installation planning, inspections, relocation of machines,
engineering changes and altered programming) which may be
made available' by IBM to the Customer, with or without separate
charge, in connection with any machines or programming
supplied under this Agreement shall be subject to the terms and
conditions of this Agreement unless such services are provided
under another written agreement signed by the Customer and
IBM.
ADDITIONAL PRODUCTS AND SERVICES
In addition to the machines, programming and services
provided under this Agreement, IBM offers other products and
services at separate charges under applicable written IBM
agreements. IBM and the Customer agree that such products and
services cannot be the subject of an oral agreement. The
Customer may contract with IBM for any such products or
services as available, but only under the terms and conditions of a
written agreement signed by the Customer and IBM.
Page 15 of 17
RISK OF LOSS OR DAMAGE
During the period a machine,model conversion or feature is in
transit or in the possession of the Customer, IBM and its insurers,
if any; relieve the Customer of responsibility for all risks of loss of
or damage to the machine, model conversion or feature except
for loss or damage 1) caused,by nuclear radiation or radioactive
contamination for which the Customer is legally liable, and 2) as
set forth inthe Section entitled "Services for Additional Charge."
IBM is relieved of responsibility for all loss of funds contained in,
dispensed, by or associated with any machine.
INVOICING
Monthly Lease Charges, Monthly Rental Charges and
Additional Monthly Maintenance Charges will be invoiced in
advance as of the first of each month or at greater intervals in
accordance with IBM's then current billing practices. Additional
Use Charges and Monthly Use Charges will be invoiced in the
month following the month in which they are incurred or at
greater intervals in accordance with IBM's then current billing
practices. Charges for maintenance service and other services
furnished at IBM's hourly service rates will be invoiced when or
after the service is performed. When a machine, model conver-
sion or feature is installed, or an Optional Period of Maintenance
Service is in effect, for part:of a calendar month, the Monthly
Lease Charge, Monthly Rental Charge or any applicable Addi-
tional Monthly Maintenance Charge will be prorated on the basis
of a 30-day month. Additional Use Charges will be prorated in
accordance with IBM's established practices. Payment will be
made within 30 days after the date:of invoice. All other charges
due hereunder are payable as.specified in the invoice.
WARRANTIES
IBM warrants that each machine, model upgrade or feature
addition will be in good working order on the day that it is
installed and that it will conform to IBM's official published
specifications. Thereafter, IBM will make all adjustments, repairs
and parts replacements necessary to maintain .the machine,
subject to the provisions stated in the Sections entitled
"Maintenance Service," "Services for Additional Charge and
"Risk of Loss or Damage."
IBM further warrants that programming designated by IBM for
use with a machine and for which programming services are
available will conform to IBM's official published specifications
when shipped to the Customer if properly used on such machine.
Thereafter, IBM will provide programming service, subject to the
provisions stated in the Section entitled. ",Programming.".
IBM does not warrant that the functions contained in the
programming will operate in the combinations which may be
selected for use by the Customer, or will meet the Customer's
requirements.
ALL PROGRAMMING FOR WHICH NO PROGRAMMING
SERVICES ARE AVAILABLE IS DISTRIBUTED ON AN "AS IS"
BASIS WITHOUT WARRANTY.
IBM does not warrant that the operation of the machine or
programming will be uninterrupted or error free, or that all
programming errors will be corrected.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO,, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
PATENT AND COPYRIGHT INDEMNITY
IBM will defend the Customer against a claim that machines or
programming supplied hereunder infringes a U.S. patent or
copyright, or that the machine's operation pursuant to a current
release and modification level of any programming supplied by
IBM infringes a U.S. patent. IBM will pay resulting costs, damages
and attorney's fees finally awarded provided ;that:
a) the Customer promptly' notifies IBM in writing of the claim;
and
b} IBM has sole control of the defense and all related settle-
ment negotiations.
If such claim has occurred, or in IBM's opinion is likely to occur,
the Customer agrees to permit IBM, at its option and expense,
either to procure for. the Customer the right to continue using the
machines or programming or to replace or modify the same so
that they become non -infringing. If neither of the foregoing
alternatives is; reasonably available, the Customer agrees to
return the machines or programming on. written request by IBM.
No Termination Charges will be payable. on such returned
.machines, and the Customer will pay only those charges which
were payable prior to the date of such return.
IBM has no liability for any claim based upon the combination,
operation o(use of, any machines or programming supplied
hereunder with equipment or data not supplied by IBM, or with
any program other than or in addition to programming supplied
by IBM if such claim would have been avoided by use of another
program whether or not capable of achieving the same results,
or based upon alteration of the machines or modification of any
programming supplied hereunder.
The foregoing states the entire obligation of IBM with respect
to infringement of patents and copyrights.`
LIMITATIONS OF, REMEDIES
IBM's entire liability and the Customer's exclusive remedy shall
be as follows:
In all situations involving. performance or non-performance of
machines, model upgrades, features or programming furnished
under this Agreement, the' Customer's remedy is _ 1) the
adjustment or repair of the machine, model upgrade or feature; or
replacement of its parts by IBM, or, at IBM's option, replacement
of the machine, model upgrade or feature, or correction of
programming errors, or 2) if, after repeated efforts, IBM is unable
to install the machine, ' model upgrade 'or feature or 'a
replacement machine, model upgrade or feature in good working
order, or to restore it to ' good working order, or to make
programming operate, all as warranted, the Customer shall be
entitled to recover actual damages to the limits set forth in this
Section. For any other claim concerning performance or non-
performance by IBM' pursuant to, or in any way related to the
subject matter of, this Agreement and any Supplement or other
order under this Agreement, the Customer shall be entitled to
recover actual damages to the limits set forth in this Section:`
IBM's liability for damages to the Customer for any cause
whatsoever, and regardless of the form of action, whether in
contract or in tort including negligence, shall be limited to the
greater of $100,000 or twelve Monthly Lease Charges or Monthly
Rental Charges for the specific machines that caused the
damages or that are the subject matter of or are directly related to
the cause of action. Such Charges shall be those in effect for the
specific machines when the cause of action arose. The foregoing
limitation of liability will not apply to the payment. of cost and
damage awards referred to in the Section entitled "Patent and
Copyright indemnity; or to claims for personal injury or damage
to. real property or tangible personal property caused by IBM's
negligence.
In no event will- IBM be liable for any damages caused by the
Customer's.failure to perform the Customer's responsibilities, or
for any lost profits, lost savings or other consequential damages,
even if IBM has been advised of the possibility of,such damages,
or for any claim against the Customer by any other party, except
as provided in the Section entitled "Patent and Copyright
Indemnity.,,
The Customer may discontinue a machine forthwith without
Termination Charges for failure of IBM to comply with any of the
terms and conditions of this Agreement applicable to such
machine.
GENERAL
This Agreement is not assignable; none of the machines maybe
sublet, assigned or transferred by the Customer without the prior
written consent of IBM. Any attempt to sublet, assign or transfer
any of the rights, duties or obligations of this Agreement without
such consent is void.
Machines under this Agreement are to be located only in the
United States and Puerto Rico. The Customer agrees to keep IBM
informed of the location of each machine. Each machine remains
IBM's property and may be removed.by IBM at any time after
discontinuance of the machine. IBM shall have full, free and safe
access to each machine for this purpose.
IBM may, upon three months' prior written- notice to the
Customer, discontinue a. machine or feature or downgrade a
model, under a Rental Contract Period at anytime or under a Lease
Contract, Period or Extension on its Expiration Date. IBM may
discontinue a machine forthwith for failure of the Customer to
comply "with any of the terms and conditions of this Agreement
applicable to such machine.
The Agreement may be terminated by either party, upon one
month's prior written notice, following the discontinuance of all
machines and fulfillment of all obligations hereunder.
Subject to the terms of the following paragraph, IBM may, upon
twelve 'months', prior written notice, modify the terms and
conditions of this Agreement, except that IBM may, upon three
months' prior written notice, modify the terms and conditions of
the Sections entitled "Contract Period, "Charges," ;Termination
Charges, "Purchase Option," "Lease,Contract Period Extension"
and "Machine. Modifications," ` '
Any such modification will apply on the effective,date specified
in the notice to all Rental Contract Periods and to new, Lease
Page 16 of 17
Contract Periods or Extensions which have a Commencement
Date on or after the date of the notice. Such modification will apply
to current Lease Contract Periods or Extensions upon their
Expiration Dates, provided such occur on or after the effective
date. For a lease machine which was on order prior to the date of
the notice and is shipped within three months followi ng the date of
the notice, and foran Extension which will commencewithin three
months following the date of the notice, the effective date of such
modification will be the Expiration Date of the initial Lease
Contract Period or the ensuing Extension, respectively. Other-
wise, the Agreement or any Supplements can only be modified by
a written agreement duly signed by persons authorized to sign
agreements on behalf of the Customer and IBM, and variance
from the terms and conditions of this Agreement and any Supple-
ments in any Customer order orotherwritten notification will be of
no effect.
IBM is not responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control.
No action, regardless of form, arising out of this Agreement
may be brought by either party more than two years after the
cause of action has arisen, or, in the case of an action for nonpay-
ment, more than two years from the date the last payment
was due.
This Agreement will be governed bythe laws of the State of New
York.
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
HAS READ THIS AGREEMENT, UNDERSTANDS IT AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
MENT AND ITS APPLICABLE SUPPLEMENTS AND EXHIBITS
ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN,
AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
Agreement for Hourly IBM Machine Service
(Z120-2826-00)
International Business Machines Corporation (IBM) by its acceptance of this Agreement agrees to furnish and the Customer agrees to
accept on the following terms and conditions Hourly IBM Machine Service at an IBM Facility for program testing and other activities,
including conversion, directly related to program testing. Hourly IBM Machine Service is comprised of the availability and use of
machines and programs (applicable System Control Programming and certain Licensed Program Products) as mutually agreed upon
by the Customer and IBM at the IBM Facility.
TERM
This Agreement is effective from the date it is accepted by IBM
and shall remain in force until terminated by the Customer upon
one month's prior written notice, or by IBM upon three months'
prior written notice. The availability of machines and programs
may be modified or terminated by IBM upon one month's notice.
USE
The service furnished under this Agreement shall be used
exclusively by the Customer for program testing and other
activities, including conversion, directly related to program
testing. This includes testing activities associated with either IBM
furnished or Customer furnished programs. The Customer
represents to IBM that he is currently or prospectively a user of
IBM products, and will not use the service being furnished under
this Agreement except in conjunction with the Customer's use or
prospective use of such IBM products.
CHARGES
The Customer agrees to pay charges for Hourly IBM Machine
Service in accordance with IBM's established rates in effect when
the service is rendered. All charges are subject to change upon
three months' notice.
Charges accrue when the service is available for the
Customer's use, as agreed upon by the Customer and IBM at the
IBM Facility. Charges will be invoiced monthly for services
rendered and are payable on receipt of invoice.
There shall be added to any charges under this Agreement
amounts equal to any applicable taxes however designated,
levied or based on such charges or on this Agreement or the
services rendered hereunder, or on the machines and programs
or their use, including state and local privilege or excise taxes
based on gross revenue, and any taxes or amounts in lieu thereof
paid or payable by IBM in respect of the foregoing, exclusive of
personal property taxes assessed on the machines or programs
and taxes based on net income.
STORAGE MEDIA AND SUPPLIES
Except for storage media necessary for the availability and use
of IBM furnished programs and incidental consumption of paper
forms and cards utilized, all supplies, materials and other storage
media required by the Customer to use the machines must be
furnished by the Customer and must meet IBM specifications.
MAINTENANCE
IBM shall have full and free access to the machines and
programs for maintenance purposes. Charges for any
adjustments, component replacements or repairs due to the
negligence of the Customer will be borne by the Customer.
When machines or programs are unavailable during the
Customer's scheduled hours due to required maintenance, such
time will be rescheduled as mutually agreed upon by the
Customer and IBM.
GENERAL
The Customer is solely responsible for the accuracy and
adequacy of all programming used in connection with the
machines, the operation of the machines when the machines are
scheduled for the Customer's exclusive use, and the resultant out-
put thereof. IBM assumes no responsibility for loss or security of
Customer data or records. Programs furnished by IBM are
provided for the Customer's use at the IBM Facility. The
Customer agrees not to copy any such programs for use outside
of the IBM Facility or remove any such programs from IBM's
premises.
IBM MAKES NO WARRANTIES EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WAR-
RANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. IBM will not be liable for lost profits,
for any claim against the Customer by any other party, or for
consequential damages even if IBM has been advised of the
possibility of such damages. IBM shall not be liable for failure to
make Hourly IBM Machine Service available due to causes
beyond IBM's control. No action, regardless of form, arising out
of the transactions under this Agreement, may be brought by
either party more than one year after the cause of action has
accrued, except that an action for nonpayment may be brought
within one year after the date of last payment.
The terms of this Agreement may be modified by IBM upon
three months' written notice to the Customer. The Customer may
exercise the Customer's right to terminate; otherwise, such
modification shall become effective.
This Agreement shall be governed by the laws of the State of
New York and constitutes the entire agreement between the
Customer and IBM with respect to Hourly IBM Machine Service.
The foregoing terms and conditions shall prevail notwithstanding
the terms of any order submitted by the Customer with respect to
Hourly IBM Machine Service.
THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ
THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO ALL
TERMS AND CONDITIONS STATED HEREIN.
Z125-9029-00 Page 17 of 17
International Business Machines corporation :' Amonk'New'York 10504
Agreement for, Local System Support for
IBM Control Programming or Programs on IBM Machines
Name and Address of Customer. 'Agreement No.:
City of `.Lubbock
917 Texas Avenue . , ; IBM Branch Office No.: G69
Lubbock Texas 79408
IBM Branch Office Address:.' Customer No.: 5343502
1602 _10th Street
Lubbock Texas 79408
International Business Machines Corporation (IBM), by its acceptance of this Agreement, agrees to provide and the
Customer agrees to accept, under the terms,and conditions of this Agreement, Local System Support (System Support)
for designated IBM System` Control,Programming (SCP) or IBM Licensed Programs (LP) at a Customer Service Location.
System Support is available for any SCP1LP listed on an Exhibit to this Agreement (Exhibit) and which is (1) specified by
IBM for:use with, and .is used by the Customer on, the Customer's IBM ;machines listed;on a Supplement .to this
Agreement (Supplement) and (2) designated by Category on such 'Supplem'ent. System:Support additions or changes
may. be ordered by the Customer and accepted by IBM on a Supplement. Provision by IBM of Local System Support, or
the first payrpent of charges due hereunder, whichever first occurs following receipt of the Supplement, will constitute
the Customer's acceptance of the supplemental terms specified in the Supplement:
The term "Customer Service Location" shall mean that location at which IBM provides System Support.
For the purposes of this Agreement, "location" shall mean a'single physical Customer location, designated by a single
mailing address and.contained within a single building, unless otherwise agreed to in writing by IBM.
IBM may issue revised Exhibits from time to time. Such revised Exhibits may offered to the Customer in lieu of the
Customer's then current Exhibit.
TERM
This Agreement is effective from the date on which it is accepted When System Support is provided for SCP/LP used atadditional
by IBM and shall remain in force until terminated by the Customer Customer locations, the Customer will:
or IBM upon one month's written notice, provided all' System 1) provide problem documentation to the IBM representative -at
Support has been terminated. the Customer Service Location;
Any System Support will ' commence on the Initial System 2) recreate the problem at the CustomerService Location at IBM's
Support Period Start Date specified on a Supplement. During the request; and
first twelve months after System Support has commenced (Initial 3) for SCP, distribute to, install and test on IBM machines, at any
System Support Period), the Customer may terminate System additional Customer location, any localfix, correction orbypass
Support upon'one month's written notice to IBM, subject to the provided by IBM to the Customer Service Location.'
provisions of the Section entitled "Termination Charges."
Following the Initial System Support Period, System Support will
continue until terminated,upon one month's written notice to IBM. SYSTEM SUPPORT FOR SCP
At the Customer's election, the Customer ' may also obtain For SCP, IBM will dispatch an IBM representative to the Customer
System Support following the Initial System Support Period as Service Location' when a problem remains undefined or unre-
described in the Section entitled "System Support Extension Solved after the Customer has taken the actions prescribed by the
Period." IBM Support Center.
System Support for SCP/LP may be terminated, without Ter- If it is determined by the IBM representative that the problem is
mination 'Charge, upon discontinuance of use of that SCP/LP
caused by a defept in the unaltered portion of a current release of
Upon one months written notice to IBM. SCP, the IBM representative will:
IBM maydiscontinueSystem Support upon written notice if the 1) attempt to cotrect or bypass the defect ;by' providing the
Customer fails to comply with any of the terms and conditions of Customer with'correction information, if available; or
this Agreement. In addition, IBM may discontinue System Support 2) assist the Customer in the preparation of documentation,
for any = SCP/LP upon twelve months' written notice to the describing the defect, for submission to a .designated IBM
Customer. location; and, ip any event
CUSTOMER RESPONSIBILITIES 3) ,if the SCP is inoperable, make a reasonable attempt to resolve
When a problem occurs which the Customer believes is related to the problem, byl providing a local fix or bypass to the Customer.
the use of SCP/LP or is a programming or program problem of If it is determined by the IBM representative that the problem is
unknown origin, and prior to the dispatch of an IBM representative not caused by a defect in such SCP„the IBM representative will
to provide System Support under this Agreement, the Customer assist the Customer in determining if the problem is associated
will contact the IBM Support Center and will perform appropriate with programming or programs used in conjunctionwith such
problem definition activities and remedial actions, as prescribed SCP. Such assistance does not include determining the exact
by the IBM Support Center. cause of the problem_or correcting the problem. -
THE ADDITIONAL' TERMS AND CONDITIONS ON THE REVERSE SIDE ARE PART OF THIS AGREEMENT. THE
CUSTOMER ;ACKNOWLEDGES THAT THE CUSTOMER HAS READ THIS AGREEMENT, ITS SUPPLEMENTS AND
EXHIBIT, UNDERSTANDS THEM, AND AGREES TO BE BOUND BY THEIR TERMS AND CONDITIONS. THE CUS-
TOMER.AGREES THAT THIS AGREEMENT, ITS SUPPLEMENTS AND EXHIBIT ARE THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH'SUP�RSEDES ALL PROPOSALS OR PRIOR
AGREEMENTS, ORAL OR WRIT N, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO
THE SUBJECT MATTER
ccepte lzed'C40G�, .
ernationa Bus e c s o r n
Customer . ....
By Authorizetl Signature By Authori ignature
r�
Name (Type or Print) Date Name (Type or Print) Date
z125-3489-0 (uIM 001)11184 CUSTOMER COPY
The,IBM representative will also be dispatched to assist with
in those,instances where the location, at w1iich .such Suppon; is
problems associated with the applicationof SCP service updates '
providedis�hormally`inaccessrbleby both private`au'm toobiler aid
which have not been resolved by the IBM Support Center.
scheduled public transportation -or where additional charges are
All. programming materials including, but not limited to, docu-
applicable.as setforth lathe previous paragraph.
mentation and local fixes or bypasses created under this Agree-
ment are the property of IBM and maybe provided by IBM to others.
COMMENCEMENT AND INVOICING OF CHARGES
IBM does notguarantee System Support results or represent or
Mc{ithfy. System Support C;iarges"�nC!' Monthly Multiple System
warrant that all errors or defects will be corrected.
Support Charges will' begin- on the Start Date specified on a
SYSTEM SUPPORT FOR LP
Supplement Charges for a partial month's System Support will be
prorated based on a thirty -day month, Monthly, Charges will be
For LP, IBM will dispatch an IBM representative to the Customer
Service Location when a problem` remains undefined or Lnre-
invoiced in advance: Other charges; if any, will be invoiced in the
solved after the Customer has taken the actions prescribed by the
month'after such charges have been incurred.
Payment will be made as stated in the invoice. '
IBM Support -Center.
The IBM representative will assist the Customer in determining if '
TERMINATION CHARGES
the problem is associated with such LP or with programming or
The Customer will pay IBM as a Termination Charge, •upon
programs used in conjunction with such LP. Such assistance does
termination of, System ,$upport during the Initial System Support
not include, determining the exact, cause of ,the problem or
Period, the lesser of;
correcting the problem.
1) an amount equal to three times the applicable Monthly Charge;
IBM does not guarantee,System Support results.
or
SYSTEM SUPPORT FOR SCP/LP ON ONE IBM MACHINE `"
2) 50% of the remaining applicable Monthly Charges..
The .Customer will pay IBM as a Termination Charge, upon
When SCPf LP is used on only one IBM machine at a Customer
Service Location, System Support will be provided for all SCP/.LP
termination of System Support during the System Support Exten-
on such IBM machine fora Monthly System Support Charge. The
Monthly. System Support Charge is determined by the SCP/LP for
sion Period, the lesser, of;
1) an amount equal to,a single applicable Monthly Charge; or
Which System: Support is ordered, the Category in which the
2) 50% of the remaining applicable Monthly. Charges.
SCP/LP is -included and by: the IBM Machine Type and .Model
APPLICABLE TAXES
selected by the Customer, as specified on a Supplement. _
In addition tothechargesdue under this Agreement, theCustomer
SYSTEM SUPPORT FOR SCP/LP ON MULTIPLE IBM MACHINES
agrees to pay amounts 'equal td any taxes resulting from this
Agreement, or any activities hereunder, exclusive
g e of taxes based
When SCP/ LP is used by the Customer (1) on more than one IBM
on IBM's net income.
machine at'a Customer Service Location, or (2) on IBM machines
at additionalCustomer locations and supported through the Cus-
LIMITATION OF REMEDIES
tomer Service Location, System Support will be provided for all
IBM's entire liability and the Customer's exclusive remedy shall be
SCP/LP on such IBM machines for a Monthly Multiple System
as follows:
Support Charge.
For any claim concerning performance or nonperformance by
For such Charge, System Support is provided only at the
IBM pursuantto,or in any otherway related to, the subjectmitterof
Customer Service Location for SCP/LP within the Customer
this Agreement, the Customer shall be entitled to recover actual
Service Location and for SCP/LP at any additional Customer
damages to the limits set forth in this Section.
location..'' _-
IBM's liability for damages to the Customer for any cause
For each SCP/LP for which System Support is•ordered by the
whatsoever, and regardless of the forme of action, whether in
Customer, the Customer must specify whether there are multiple
contract or- in tort including negligence, shall be limited to the
IBM machines using that SCP/LP' at the Customer Service
greater of $25,000 or the Charges which would be due for twelve
Location or whether .SCPILP.on`IBM 'machines 'at additional
months of System Support that is the subject matter of or is directly
Customer locations is to be'supported through ,the Customer
related to the cause of action. Such Charges shall be those in
Service Location. .
effect when the cause of'action arose. This limitation of liability will
" The Monthly Multiple System Support Charge is determined by
not apply to claims for personal injury or damage to real ortangible
the SCP/LP for which System Support is ordered, the Category in
personal property caused by IBM's' negligence.
which the SCP/LP is included and by the IBM Machine Type and
In no event will IBM be liable for any damages caused by the
Model selected by the Customer, is specified on a Supplement.
Customer's failure to perform the Customer's responsibilities, or
The IBM machine selected must be designated by IBM for use with
for any lost profits, lost savings or other consequential damages,
all of the SCP/ LP for which the Customer orders System Support.
even if IBM has been advised of the possibility of such damages, or
'
SYSTEM SUPPORT EXTENSION PERIOD'' ,,
for any claim against the Customer by any other party.
,
The Customer may, upon prior written notice to IBM, obtain System
ADDITIONAL PRODUCTS ANR,SERYICES
Support under a System Support Extension Period at the Charges_'
to addition to System Support providedundei thisAgreement,1BM
generally in,effect on the System Support Extension Period Start
offers other products and: services at separate charges under
Date, subject to the provisions of the Section entitled "Charges." ''applicable.
written IBM agreements. IBM and the Customer agree
The System Support Extension Period will be for twelve months
that such products and services cannot be the subject of an oral
and may commence at any time following an Initial System Support
agreement. The Customer' may contract with'1BM!for any such
Period or a_prior System Support Extension Period. The Customer ,
products or,services as available; but only under the terms and
may terminate System Support during a System Support Extension
conditions of a written agreement signed by the Customer and
Period upon one month's written notice to JBM, subject to the
IBM,
provisions of the,Section 'entitled ",Termination .Charges," or,.
GENERAL L
thereafter, upon one month's written notice to IBM.
This Agreement is not assignableAny attempt by the Customer to
CHARGES -
assign or transfer -any of the rigots,;duties or obligations. of this
For each IBM machine using SCP/LP supported under this'
Agreement without prior written consent of IBM is void.
Agreement, the Customer will pay a Monthly System Support
The terms of this Agreement may be modified by IBM upon
Charge or a Monthly Multiple System Support Charge as set forth
twelve months' written notice to the Customer. Modification shall
on a Supplernenti,Such charges are subject to change by IBM
apply to System Support as of the effective date thereof. Otherwise,
upon three months' written notice to the Customer except that any
notice' of price, increase given during an Initial System Support
the Agreement can only be modified by; a written agreement duly
signed by persons authorized to signagreem' Brits on behalf of the
Period orSystemSupportBxtension Period shall not be effective
Customer and of IBM, and variance from the terms and conditions
until the- end of,such.Period or the effective date of increase,
ofthisAgreementinany.Customer, purchaserorderorother written
whichever is later.
notification will be of no effect.
•IBM shall -have the right to charge for additional effort which
IBM is not responsible for a.failure to fulfill its obligations under
resultsfronl providing System Supportforaltered SCP/LP, orfrom
this Agreement due to causes beyorid its 'control.
failure of the Customer to perform those actions defined in the
System Support under this Agreement will be provided in the
Section entitled "Customer Responsibilities." IBM-shaltalso have
,United States"an.d.Pue�rto. Rico ,
the right to charge for effort involved in providing System' Support "
i z',No'action, regardless of form arising out of this Agreement may
activities for SCP/LP on machines not-'supported'.undef thls•l
be broughtbyeither party more than two years after the cause of
Agreement. Such additional charges will be at IBM's then ap-
action has arisen, or, in the case of nonpayment, more than two
p)icable;rates and minimum charges. , ., ,
years from the date the last payment was due,
There wilt be-no�charge for• travel expense assoctated"with
The Agreement will be governed by the laws of the State of Ne-w
System Support except that actual travel expense shall be charged
York.
Resolution #2064
International Business Machines Corporation
June 6, 1985
Mr. Gene Eads
Purchasing Manager
City of Lubbock
Lubbock, Texas
Dear Mr. Eads:
P.O. Box 1890
Lubbock, Texas 79408
806/741.8200
We are pleased to offer you an on -site allowance of 120 calendar days to
assist you in your program testing in connection with the installation of
your proposed IBM system which is presently scheduled for shipment from
IBM in May, 1985. This offer is based on the fact that an IBM Test
Facility is not available for you to adequately test your complex system
and the programming planned for your installation at the City of Lubbock.
This test allowance offer is based upon your installation of the equipment
specified on the Attachment to this letter and is in lieu of
pre -installation test item at an IBM Test Facility which might otherwise
have been offered for such equipment. Accordingly, changes to your
equipment plan may affect this offer.
The on -site test allowance (OSTA) will commerce on the day, Monday through
Friday, following the installation of the Central Processing Unit. If you
install any of the equipment itemized on the test configuration after that
date, the test allowance period for such units will expire concurrently
with that for the processor. This test allowance will apply only to the
quantity of machines in the test configuration itemized on the Attachment.
The equipment must be placed on lease or rent or purchased by the date of
installation, by executing the applicable IBM Agreement/Supplement for
each machine. Except as described herein, all terms and conditions of the
applicable IBM Agreement, will apply during the OSTA. As an example, for
purchased equipment the decision to purchase is final, and title will
pass, warranty will commence, and a security interest will be filed by
IBM, and as set forth in the Agreement For Purchase of IBM Machines.
11369.1515.03
Resolution 12064
Mr. Gene Eads
Page Two
June 6, 1985
PURCHASED EQUIPMENT
If the equipment in the test configuration is purchased, payment will be
due and payable upon the termination of the on -site test period. The
purchase price will be IBM's generally available price in effect at
termination of the OSTA, except that any price increases effective during
the three months immediately prior to the OSTA termination date shall not
be applicable if your written order was received by IBM prior to the
announcement of the price increase.
PRODUCTIVE USE
You agree that the OSTA will be terminated if the system is used to
perform productive work. Conversion efforts by definition shall not be
considered productive work.
Please indicate you acceptance of the on -site test allowance and the terms
described herein by signing and returning this letter.
By:
�/�V� 2 /-c
Title'
Date
1G69.1515.03
Resolution #2064
PROCEDURE FOR INSTALLATION AND APPROVAL
1. Customer shall notify IBM within ten (10) days of acceptance of the
agreement by the City Council.
2. Upon receipt of Notification of Acceptance, IBM shall provide Customer
with a Performance Bond as specified in the Request for Proposal.
3. Upon receipt of the Performance Bond, Customer shall execute Contract
and provide IBM with an original.
4. Within 30 days of Notification of Acceptance, Owner's Representative
shall provide IBM with written Notification to Proceed with delivery and
Installation.
5. IBM shall provide Customer with a schedule of actual delivery dates at
least five (5) working days prior to delivery of the first shipment.
6. Upon completion of delivery and initial Installation of equipment and/or
software as specified. IBM shall provide customer with Notification of
Delivery.
7. Within thirty (30) days of receipt of Notification of Delivery
Owner's Representative shall verify substantial completion of the
installation and provide IBM with Notification of acceptance or will
notify IBM of deficiencies in the installation which will not allow the
acceptance. IBM shall remedy the deficiencies and notify Customer as
specified in item 6. above.
8. Verification of Installation and Performance shall be performed as
specified in Supplement C.
9. Customer shall notify IBM within ten (10) days of successful verification
of installation and performance.
10. All notices required or given under this agreement shall be sent by
registered or certified mail to the following parties at the addresses
indicated below. Notices so transmitted shall be deemed effective on the
seventh day following such posting in the U.S. Mail.
Customer IBM
John C. Aldredge Kent C. Thomas
Manager of Information Services IBM Corporation
P. 0. Box 2000 1602 loth Street
Lubbock, Texas 79457 Lubbock, Texas 79408
Either party hereto shall have the right to change any representative or
addresses it may have given to the other party by giving such party written
notice of such change.
1G69.1565.01
Resolution 12064
ATTACHMENT
Machine
Quantity
Quantity in
Type/Model
Description
On -Order-
Test Configuration
4381/P01
Processor
1
1
3205/100
Console
2
2
3203/5
System Printer
1
1
3880/3
Disk Controller
1
1
3380/AD4
DASD
2
1
3380/BD4
DASD
1
1
3705/M82
Communications
1
1
Controller
3274/A41
Controller
2
1
(with terminal support)
3274/C61
Remote Controller
1
1
3179/100
Terminals
34
13
3287/002
Printer
13
2
3262/05
Printer
1
1
3803/002
Tape Controller
1
1
3420/06
Tape Drive
3
1
3868/004
Modem
2
2
3866/001
Modem Rack
1
0
1G69.1515.03
November 13, 1985
City of Lubbock
Municipal Building
1625 13th St., Room L-04
Lubbock, Texas 79409
ATTN: KERRY WAGNON
Dear Kerry:
Enclosed please find four original Texas Logic Software Products Services
Agreements for the City of Lubbock. Please have an authorized representative
sign the agreements and return one copy of each to me.
If necessary for billing purposes, please provide us with a P. 0. number.
If you hav any quelt' s, please do not hesitate to call me.
Sinc ly
J. D. LOWE III
Sales Manager
JDL/ct
Enc.
11
,Vg'ft% computers never ,forget
4200 A North Bicentennial Drive 0 McAllen, Texas 78501 0 (512) 682-0351
X NEW ON RENEW
CHANGE
TEXAS LOGIC
ICONTROL NO. 138501
_'ADD _ _
SOFTWARE PRODUCTS SERVICES
IDIGITAL AGREEMENT NO.
BILL TO: City of Lubbock
AGREEMENT
SERVICE TO: CITY OF LUBBOCK
Municipal Building
INFORMATION SERVICES
1625 13th St., Room
L-04
COMMENCEMENT DATE 11/1/85
916 TEXAS AVENUE
Lubbock, Texas 79401
P.O. NO.
LUBBOCK, TEXAS 79457-0001
CONTACT: GENE EADS
INV. NO.
CONTACT: KERRY WAGNON
TEL.NO.: 806/762-6411
TAX EXEMPT #: 1-756000590-6
TEL.NO.: 806/762-6411
SERVICE FROM: TEXAS LOGIC
REGION: TEXAS
BILL TO CODE
4200-A N. BICENTENNIAL DR.
DISTRICT:WEST TEXAS
CUSTOMER NO. 0124
MCALLEN, TX 78504
UNIT: DEC COST CENTER:
TL
TEL.NO.:_512/682-0851
SERVICE LEVEL: BMC
CUST.TYPE:
MUNICIPAL I TRAVEL ZONE; JINTERVAL: ANNUAL
TEXAS LOGIC AGREES TO PROVIDE
AND CUSTOMER AGREES TO ACCEPT MAINTENANCE SERVICE ON THE SOFTWARE
LISTED BELOW, AT THE ANNUAL
CHARGE INDICATED. THE TERMS AND
CONDITIONS OF THIS AGREEMENT
ATTACHED HERETO BY ADDENDUM ARE THE SOLE TERMS AND CONDITIONS APPLICABLE.
_I
LINE
MODEL NO.
H/W SERIAL
DESCRIPTION
S/L
P/L
EFFECTIVE
UNIT CHARGE
TOTAL CHARGE
01
MCS-85
FX2632
Municipal
Court System BMC
11/.1/a5
1 $
3,000.001
02
03
04
05
06
07
08
!
09
10
11
12
If offered as a quotation, the above
price(s) will remain in effect for thirty days from
Purch s hereby agrees that he has
read the applicable terms
and conditions, understands
them,
ander
Tgy ees be bound by them.
. XAS LOGIC
CUSTOMER
Ily
�j.
SUB TOTAL
$
3,000.00
// /J2 9f
' AUTTiORfZED REPRESENTATIVE DATE
NAME
TRAVEL CHARGE
N/A
J.D. LOWE III
PRINTED AUTHORIZED REPRESENTATIVE
BY AUTHORIZ D RE ESENTATIVE MONTHLY CHARGE
N/A
Alan Henry, Mayor
PREPARED/INITIATED BY: ct
PRINTED AUTHORIZED REPRESENTATIVE ANNUAL CHARGE
$
3,000.00
Approved s to content;
tPA_A1dredj'e, Manager of Information Services
Approved as to form:
Don"-Vandiver,-T-irst Assistanti Attorney
International Business Machines Corporation
Armonk, New York 10504
Name and Address of Customer:
City of Lubbock
917 Texas Avenue
Lubbock Texas 79408
State and Local Government Price Protection Amendment
IBM Branch Office Address:
1602 loth Street
Lubbock Texas 79408
IBM Branch Office No.: G69
Customer No.: 5343502
International Business Machines Corporation (IBM) agrees that for the benefit of the Customer the Agreement for Purchase of IBM Machines, IBM
Maintenance Agreement, Agreement for Lease or Rental of IBM Machines, Agreement for IBM Licensed Programs, Agreement for Local Licensed
Program Support for IBM Licensed Programs and Agreement for Local Program Support for System Control Programming on IBM Machines, which
have been or will be signed by the Customer and IBM, are amended as follows:
Agreement for Purchase of IBM Machines
The following provision is added after the first sentence of the first paragraph in the Section entitled "Price Protection Period":
"However, prices of the Machines stated in the applicable Supplement will not be subject to any price increase up to and including
the mutually agreed to Estimated Shipment Date(s) indicated in such Supplement."
IBM Maintenance Agreement
The following provision is added after the first sentence of the last paragraph of the Section entitled "Charges":
"However, no increase in the Minimum Maintenance Charge and Additional Maintenance Charge will become effective during
the Customer's twelve-month fiscal year in which such notice is given."
Agreement for Lease or Rental of IBM Machines
The following provision is added after the first sentence of the eighth paragraph in the Section entitled "Increases in Lease Contract Period
Monthly Charges":
"However, no increase in the Monthly Lease Charge, Upper Limit Percent, Monthly Use Charge Rate(s) and Additional Monthly
Maintenance Charge will become effective during the Customer's twelve-month fiscal year in which such notice is given."
The following provision is added after the third sentence of the second paragraph in the Section entitled "Increases in Rental Contract Period
Monthly Charges":
"However, no increase in the Monthly Rental Charge, Additional Use Charge Rate, Monthly Use Charge Rate(s) and Additional
Monthly Maintenance Charge will become effective during the Customer's twelve-month fiscal year in which such notice is given."
Agreement for IBM Licensed Programs
The following provision is added as the fourth paragraph of the Section entitled "Price Changes":
"No increase in charges will become effective, however, during the Customer's twelve-month fiscal year in which such notice is
given.
Agreement for Local Licensed Program Support for IBM Licensed Programs
The following provision is added after the second sentence of the first paragraph of the Section entitled "Charges":
"However, no increase in charges will become effective during the Customer's twelve-month fiscal year in which such notice is
given.
Agreement for Local Program Support for System Control Programming on IBM Machines
The following provision is added after the second sentence of the first paragraph of the Section entitled "Charges":
"However, no increase in charges will become effective during the Customer's twelve-month fiscal year in which such notice is
given.
GENERAL
The fiscal -year terms of this Amendment may he modified by IBM at the end of the Customer's fiscal year upon three months' prior written notice
to the Customer. The purchase terms may be modified by IBM as stated in the Agreement for Purchase of IBM Machines.
Since the foregoing is all to the Customer's benefit, no signatures are required.
z125-3.432-1 (u/MODt) 7/84
Resolution # 2064
SUPPLEMENT A
The Laws of the State of Texas shall govern performance of this
contract.
IG69.0735.02
Resolution #2064
SUPPLEMENT B
LIQUIDATED DAMAGES
.The installation dates of the equipment set forth in Rider B and
the delivery dates of Programming Aids set forth in Rider C have
been fixed so that the utilization of the equipment and
.programming aids is .consistent with the timing schedules of the
Customer's programs. If any of the Programming Aids are not
delivered to the Customer by the date specified in Rider C and if
any of the units of equipment are not installed by the date
specified in Rider B, the delay will interfere with the proper
implementation of the Customer's programs utilizing the equipment
leased pursuant to this contract, to the loss and damage of the
Customer. From the nature of the case, it would be impracticable
and extremely difficult to fix the actual damage sustained in the
event of any such delay. The Customer and the Contractor,
therefore, presume that, in the event of any such delay, the
amount of damage which will be sustained from a delay will be the
amount set forth in this paragraph, and they agree that in the
event of any such delay, the Contractor shall pay such amount as
liquidated damages and not as a penalty. Similarly, Customer
caused delay in readying the facility or permitting installation
interferes with the schedule under which the Contractor is
operating, thus resulting in damages to the Contractor. The
Customer and Contractor, therefore, presume that in the event of
such a delay, the amount of damage which will be sustained will be
the amount set forth in this paragraph and they agree that in the
event of such a delay, the Customer will pay such amount as
liquidated damages, and not as a penalty. The customer, at its
option, for amounts due the Customer as liquidated dames, may,
deduct such from any money payable to the Contractor pursuant to
the contract or may bill the Contractor as a separate item. The
Customer shall notify the Contractor in writing of any claim for
liquidated damages pursuant to this paragraph on or before the
date Customer deducts such sums from money payable to the
Contractor.
a. Equipment
(1) If the Customer delays the installation, or Contractor
does not install the system and/or machines (designated
by Contractor type and model)and features included with
the system and/or machines ready for use, on or before
the installation date, either Contractor or the Customer
shall pay to the other as fixed and agreed liquidated
damages for each calendar day of delay in installation
1G69.0735.02
but not for more than 180 calendar days, an amount.of
$100 per day or 1/30th of the basic monthly rental on
the equipment due for installation, whichever is
greater, in lieu of all other damages.
(2) If:some,.but not all, of the machines on an order are
installed, ready for use_, by the installation date, and
the Customer uses,any such installed machines,
liquidated damages shall not accrue for the equipment so,
used, and rental. -for such machines shall be payable.
(3) If -the delay is more than thirty (30) calendar days,
then by written notice to the Contractor, the Customer
may terminate the right of the Contractor to install,
and may obtain substitute equipment. In this event, the
Contractor shall be liable for liquidated damages, in
the amounts specified above until substitute equipment
is installed, ready for use, or for 180 days from the
installation date, whichever occurs first.
b. Programming Aids (Software)
(1) If the Contractor does not deliver all of the System
Control Program, Type I and II programming aids ordered
for and with the system and listed on Rider C ready for
use in substantial conformance with the Contractor's
specifications on or before the delivery dates specified
on Rider C, the Customer may, at its option, delay the
equipment installation date and the Contractor shall pay
to the Customer as fixed and agreed liquidated damages
in the amount of $100.00, irrespective of the number of
the programming aids undelivered for each calendar day
between the date specified in Rider C and the date of
the delivery of such programming aids, but not for more
than 180 calendar days in lieu of all other damages for
non -delivery of software. If the Contractor provides
.suitable substitution of software acceptable to the
Customer, liquidated damages shall not apply, provided,
however, liquidated damages will apply if such
substituted software is provided later than the delivery
date specified on Rider C. Liquidated damages for
non -delivery of software shall likewise not apply for
any day on which liquidated damages for non -installation
of equipment accrues.
1G69.0735.02
(2) If the Contractor's delay in delivering programming aids
is more than 30 calendar days, then by written notice to
the Contractor, the Customer may terminate the right of
the Contractor to install or may discontinue.the
equipment immediately in the event it was already
installed. In the event the Customer terminated the
right of the Contractor to install or the Customer
discontinues the equipment, the Contractor shall be
liable for the liquidated damages for the period of time
between the date of delivery and the date that the
customer terminates the right of the Contractor to
install or the date of discontinuance of rental of the
equipment but not for more than 180 calendar days.
(3) If the Customer is unable to use the equipment on the
installation date because Contractor failed to deliver
the programming aids ordered for use on such equipment
by the agreed -to delivery date as specified in Rider C,
and Contractor does not furnish substitute programming
aids which the Customer accepts and agrees would render
the equipment usable, liquidated damages as specified in
Paragraph a.(1) shall be paid to the Customer in lieu of
liquidated damages for programming aids as specified in
Paragraph b.(1). Such liquidated damages shall apply
until the Customer uses the equipment of until
Contractor provides the programming aids which would
render the equipment usable, whichever occurs first, but
not for more than 180 days.
C. Exception
(1) Except with the respect to defaults of subcontractors,
neither the Contractor nor the Customer shall be liable
for liquidated damages when delays arise out of causes
beyond the control and without the fault or negligence
of the Contractor or the Customer. Such causes may
include, but are not restricted to, acts of God, or of
the public enemy, acts of the Customer in either its
sovereign or contractual capacity, fires, floods,
epidenics, quarantine restrictions, strikes, freight
embargoes, and unusually severe weather; but in every
case the delay must be beyond the control and without
the fault or negligence of the Contractor or the
1G69.0735.02
Customer. If the delays are caused by the default -of
the subcontractor,.and if such default arises out of
causes beyond the control of both the contractor and
subcontractor or the Customer and its subcontractor, and
without the fault or negligence of any of the, neither
the Contractor nor the Customer shall be liable for
liquidated damages for delays, unless the supplies or
services to be furnished .by their subcontractors were
obtainable from other sources in sufficient time to
permit the Contractor or the Customer to meet the
required performance schedule.
1G69.0735.02
Resolution #2064
IN WITNESS WHEREOF, the parties to these presents have
executed this agreement in __________________________ in the
year and day first above written.
CI L CX, TEXAS ( OWNER)
By: --------------
AYOR
i AT
Secretary . — —
_ -- ------
T C OR
BY:-- — — -- -- — — -- ------
TIT E: 22__L�A�1S� _
ATTEST:
Secretary
COMPLETE ADDRESS:
---------------------------
---------------------------
* subject
Signed ect to the
g � provision that no further changes will be
made to this agreement subsequent to signing by Contractor
1
�• 1.15
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