Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Resolution - 3480 - Contract - IBM - Processor Upgrade - 10_22_1990
Resolution # 34.80 October 22, 1990 Item #22 HW:js 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 and directed to execute for and on behalf of the City of Lubbock a Contract by and between the City of Lubbock and International Business Machines Corpora- tion for IBM processor upgrade, attached herewith, which 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 22nd day of October , 1990. J. C s . C. McMrNN, MAYOR ATTEST: anet a Boyd, City Secretary APPROVED AS TO CONTENT: Gene Eads, Purchasing Manager APPROVED AS TO FORM: Harold Willard'. Assistant City Attorney e 'r-1 z'/)?G' CInternational Business Machines Corporation P.O. Box 1890 Lubbock,Texas 79408 806/741-8200 October 16, 1990 Mr. Gene Eads Director of Purchasing City of Lubbock 1625 13th Lubbock, Texas 79457 Dear Mr. Eads: This letter will serve as a point of clarification for our proposed Joint Verification Study with the City of Lubbock. The contracts enclosed apply only to the study. Also, the IBM pre -announced information disclosed to the City is no longer considered to be of a confidential nature. The IBM System 390 was announced on September 5, 1990. Sincerely, Gam' vid L. Eng ish A visory Ma keting Representative US Marketing & Services Enclosures AC289001 C International Business Machines Corporation Armonk, New York 10504 Amendment for Joint Verification Studies Name and Address of Customer: City of Lubbock 916 Texas Ave. Lubbock, Texas 79401 Reference Purchase Agreement No.: G69-0953 Reference License Agreement No.: G69-0953 Reference Confidential Information Agreement No.: N.A. Customer No.: 5343502 Amendment No.: 001 C' International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions amend and/or supplement the 1) Agreement for Purchase of IBM Machines, 2) Agreement for IBM Licensed Programs, 3) Agreement for Exchange of Confidential Information, refer- enced above, and 4) any applicable IBM Program License Agreement for any Joint Verification Study (JVS) offered by IBM for IBM Products and their associated documentation. IBM Products, subject to a JVS, are IBM ma- chines and or IBM licensed programs which may not generally available when shipped to the Customer. Such Products are provided to the Customer under the applicable referenced Agreements and/or any applicable IBM Program License Agreement and this Amendment for installation in the Customer's operational environment. A JVS offers 1) the Customer early operational experience with the IBM Products and 2) IBM specific information regarding a) verification of the successful operation of IBM Products in the Cus- tomer's operational environment and b) the Customer's experiences with the installation and operation of IBM Products as well as the adequacy of the IBM support structure (to the extent implemented) for such Pro- ducts. If IBM offers a JVS for IBM Products and the Customer agrees to participate in such JVS, IBM will issue a Supplement to Amendment for Joint Verification Studies (JVS Supplement) confirming the specific terms applicable to the JVS. Upon the signing of the Amendment for Joint Ver- ification Studies and the JVS Supplement by the Customer and IBM, the JVS shall commence on the JVS Start Date specified in such Supplement. 1 Ic Period of a JVS 3 The period of a JVS shall commence on the JVS Start Date specified in the JVS Supplement and shall end on the earliest of 1) the JVS End Date specified in such Supplement, 2) a date upon which a final report has been submitted by the Customer documenting the satisfaction of the JVS com- pletion criteria, or 3) the date of termination by either party upon 15 days' written notice. However, in lieu of such date, the period of a JVS shall end on any other date mutually agreed to by IBM and the Customer. 2 CIBM Responsibilities IBM will for a JVS: 1. assign a representative who is the primary point of contact with the Customer; 2. provide education to Customer personnel; 3. provide planning assistance for conversion and installation of the IBM Products; 4. schedule and ship the IBM Products to the Customer on or prior to their general availability. 5. provide available publications, education materials and other doc- umentation to the Customer. All such materials marked with a re- strictive legend, such as, "IBM Confidential," shall be considered IBM Confidential and shall be disclosed to the Customer in accordance with the Section entitled "Confidential Information"; 6. install IBM Products which are not designated as Customer Set -Up; and 7. provide warranty service, program service and remote or on -site as- sistance for the resolution of issues associated with a JVS. Customer Responsibilities The Customer will for a JVS: C1. Provide planning for, implementation of, and proper operation of, the IBM Products during the JVS; 2. participate in the IBM education classes; 3. participate in conversion and installation planning sessions with IBM; 4. install the Prerequisite Products, specified in a JVS Supplement, and utilize best efforts to apply program service within one week of re- ceipt from IBM; 5. Keep IBM advised of experiences and any problems encountered during the JVS; 6. allow IBM personnel reasonable access to the IBM Products during the JVS, during normal business hours, for service and observation pur- poses; and 7. furnish to IBM at the end of the JVS a final written report, based on the Customer's experiences, containing the Customer's evaluation of the function, performance, serviceability and usability of the IBM Products and their related publications. Installation Plan Prior to shipment of the IBM Products by IBM, IBM and the Customer will agree upon an installation plan for such Products. Such plan may be modified from time to time upon agreement of the parties. CLiterary Rights and Concepts The Customer agrees that the final written report prepared by the Customer and delivered to IBM may be used by IBM for all business pur- poses, including the right to reproduce and prepare derivative works based upon such report, including distribution of such derivative works, in the development, manufacturing, marketing and maintenance of IBM products and services. Either party is free to use the ideas, concepts, and know-how derived from a JVS without accounting to the other. Confidential Information If information is to be furnished to the Customer for a JVS and such information is considered by IBM to be IBM Confidential Information, IBM and the Customer agree that the terms and conditions of the referenced Confidential Information Agreement shall govern the disclosure of such IBM Confidential Information. The Customer agrees to sign such Agreement, if not already signed prior to signing this Amendment. Specific IBM Confidential Information to be disclosed under a JVS will be described in the JVS Supplement which will be deemed to be a Supplement to the referenced Confidential Information Agreement. The JVS Start Date will be the Initial Disclosure Date of the Confidentiality Period. The JVS CEnd Date will be the Final Disclosure Date. The Customer agrees to return or destroy all confidential documentation provided by IBM to the customer at the request of IBM or upon receipt by the Customer of new versions of such documentation, whichever occurs first. IBM Program License Agreement IBM Products which are licensed programs under the IBM Program Li- cense Agreement may not be transferred during the period of a JVS. Payment Terms Payment for IBM Products is due in accordance with the terms and conditions of The Agreement to Purchase IBM Machines and Agreement for IBM Licensed Programs. 5 r Terms, Conditions and Charges Except as specifically provided herein, all terms and conditions of the referenced Agreements or any applicable IBM Program License Agreement remain in full force and effect including title passage, warranty com- mencement, risk of loss and limitation of remedies. There are no other charges due for a JVS. General Nothing contained in this Amendment shall be construed as conferring any rights to use i:: advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either party to use the existence of this Amendment in any promotional activity without the express written approval of the other party. The existence of this Amendment or of any JVS shall not prohibit either IBM or the Customer from entering into the same or similar agree- ment with any other party nor from independently developing, offering, selling or marketing materials, products or services which are the same or similar to the materials, products or services provided hereunder. C In the event of conflict between the terms and conditions of this Amendment and the referenced Agreements or any applicable IBM Program License Agreement, the terms and conditions of this Amendment shall pre- vail. In the event of conflict between the terms and conditions of this Amendment and any JVS Supplement, the terms and conditions of the JVS Supplement shall prevail. 0 The parties acknowledge that they have read the referenced Agreements and any applicable IBM Program License Agreement and this Amendment, understand them, and agree to be bound by their terms and conditions. Further, they agree that the complete and exclusive statement of the agreement between the parties relating to this subject shall consist of the referenced and applicable Agreements, this Amendment and its Supple- ments. This statement of the agreement supersedes all proposals or other prior agreements, oral or written, and all other communications between the parties relating to this subject. Any reproduction of this Amendment by reliable means will be considered an original of this document. INTERNATIONAL BUSINESS MACHINES CORPORATION BY: jAuthorized ,Zignature AME (type or print) DATE: CUSTOMER NAME: BY: 0?�CA'z Authorized Signature NAME: B. C. McMINN, MAYOR (type or print) DATE: APPROVED AS TO CONTENT: ATTEST: Se retary �AP�PRO�VED AS TO F International Business Machines Corporation Armonk, New York 10504 Supplement to Amendment for Joint Verification Studies Reference Amendment No.: 001 Customer No.: 5343502 IBM Branch Office No.: 5D8 1. Existing IBM System: Type/Serial No. 4381/P13 S/N 13186 2. IBM Product(s) subject to the JVS: Aircooled Processor 9221/150 3. Prerequisite Product(s): Software Release Requirements: ■ VM/SP REL 5 or REL 6 ■ MVS/SP 1.3.5 or REL 1.3.6 ■ VSE/SP 3.2.2 or later Releases ■ VSE/SP 4.1.2 or later Releases ■ DPPX/370 1.2 4. Confidential Information a. Description (Non -confidential) 1) IBM Products(s) listed above 2) Pre -Announce product documentation b. Name and Address of Customer's Point of Contact Mr. Tom Tunning - Manager, Information Services 916 Texas Avenue 5. JVS Start Date: upon installation JVS End Date: not to exceed 30 days after installation 6. Additional Terms and Conditions: a. Additional Customer Responsibilities 93 N 1) Collect data, such as hardware log outs and software dumps, to support the identification and resolution of incidents related to the IBM Products, and use best efforts to recreate problems when requested by IBM: The parties agree that the referenced Amendment, applicable IBM Agreements and this Supplement 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. INTERNATIONA BUSINESS MACHINES CORPORATION BY - Authorized Signature AME : (type or print) DATE: CUSTOMER NAME: B Y : I�' Authorized Signature NAME: B. C, McMINN, MAYOR (type or print) DATE: APPROVED AS TO CONTENT: l APPROVED AS TO FORM: ATTEST: Se retary 0J International Business Machines Corporation Armonk, New York 10504 Name and Address of Customer: City of Lubbock 917 Texas Avenue Lubbock, Texas 79408 IBM Branch Office Address: IBM 1602 loth Street Lubbock, Texas 79408 Composite Signature Agreement Agreement No.: 0953 IBM Branch Office No.: G69 Customer No.: 5343502- Iinternational Business Machines Corporation (IBM) and the Custof"r 4greeFtha6IBM w)II; pro`ide 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 Title of Agreement or Amendment IBM Form Number ❑ All of the following, unless selectively designated N by initialing below for individual documents Agreement for Purchase IBM Machines of Z120-2892-00 IBM Maintenance Agreement Z125-3275-00 � �' Agreement for IBM Licensed Programs Z125-3358-00 1 Agreement for Lease or Rental of IBM Machines Z125-3320-00 u 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. Accepted by: � _ 4niv C AtL Inte ational Busine ach' es or o ..... / Customer B............... 1... �. . ........................... B y. �.✓..fir ...........-..... Y Y ...----... �` thor ed Signature / Authori ignature _ ............................. ....----...........L .,.....L w�.nl�:..(Z..... Name (Type or Print) Date Name (Type or Print) Date z125-9029-00 (loiea) PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. UiM 025 Page 1 of 17 Eronch Of19ce C^rtrnl Ar9ror rcntc/r'=tract Fil^ Agreement for Purchase of IBM Machines (Z120-2892-00) International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any Customer written order accepted by IBM for the purchase under this Agreement of IBM machines, features, model conversions, machine elements or accessories. Under these terms and conditions, as described herein, IBM will 1) sell machines (including their 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 -order to be installed, as described herein, or which 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 Customer further 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 Agreement when a Supplement to Agreement for Purchase of 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 IBM 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, where applicable, by the return to IBM by the Customerof parts in respect to feature additions or model conversions that involve the removal of parts which become the property of IBM. A copy of this Agreement and/or the applicable Supplement may be filed in order to perfect IBM's security interest. 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 the 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 caused by IBM's negligence. SHIPMENT IBM will schedule each 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. DESTINATION CHARGES Destination charges for each on -order Machine from a desig- nated•113M location, and any rigging charges, will be paid by the 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 of the price increase. In the event that a price increase 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 for such 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 applicable IBM agreement. PROGRAMMING The term "programming" as used in this Agreement shall mean such programming as IBM may make generally available, without separate charge, for Machines of the types ordered by the Customer under this Agreement. IBM will furnish such program- 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 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. 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 pnn, 1 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 feature or 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 IBM, 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 featureormodel conversion, oran accessoryor machine element, will be considered to be installed one month following the later of its estimated date of shipment or its actual date of shipment from IBM. The Date of Installation will be the day (Monday through Friday) following the 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 tothe Machines. The Effective Date 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 Customer as of 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 in good working order and will 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 as set 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 regUirements. 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 Supplement as 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 prior to repair by IBM, in which case the Customer will 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 IBM installation 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 orthe 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 commercially -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 will 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 shall 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 may be announced in the future will be suitable for 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; and 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, or in 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 foregoing states the entire obligation of 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, or2) 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 contract or 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 IBM, 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 agrees 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 Z125-902"0 Page 5 of 17 of Maintenance Service and must be the same consecutive hours each day. The Optional Period on Saturday orSunday 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 noticeto 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 or annual 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 usage will 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/TERM INATION 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 repairof 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 terminate this Agree- ment at any time by written notice for failure of the other to comply with any of its terms 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 STATE- 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 supportof 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 for a 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 licensed program 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 time 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 license and 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 printed form, microfiche or other non -machine readable form may not be copied. Additional copies may be obtained under license from IBM at 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 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, translate 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 Change 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 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 of the licensed program by IBM if there is no testing period, except as set forth below in this subsection. Monthly charges fora 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 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 in the 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 a 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 program' ring 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 or 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 may be 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 any time 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 the Customer, IBM will quote a net purchase option 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. 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 2) IBM's purchase price then generally in effect for the machine, including its model upgrades and features, less 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 for a 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 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 such alteration 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 accesstothe machinesto 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 rates 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 funds. 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. Z125-9029-00 Page 15 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 for a 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 Monthly Maintenance 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 a 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 generally in effect. A model upgrade or feature addition 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 prior to the 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 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 select or 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 foreach 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 Customer agrees 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 Limit for the 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 for a machine has been received by IBM, IBM may not increase the Monthly Lease Charge or Upper Limit Percent unless written notice shall have been given to the Customerat 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. The Upper Limit Percent specified in the Supplement will not be increased during the Lease Contract Period. The Monthly Lease Charge for a 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 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 number of 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- Z125-9029-00 Page 13 of 17 BETWEEN THE PARTIES, EXCEPT AS PROVIDED IN THE OR WRITTEN, AND ALL OTHER COMMUNICATIONS RE- 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 order to lease or a 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 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. 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 a Rental Contract Period will be the day the written 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 orderfora 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 Section entitled "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 use 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 generally 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 "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 copies within 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 data base; 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 fiable for any damages arising from performance or nonperformance of the licensed program during the licensed program testing period or 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 "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. Any attempt 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" morethan six yearsafter 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 two years 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 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 local fix 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 problem 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 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 orall prior releases by notice effective on the date stated therein. For any licensed program, IBM shall have the rightto charge for 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 forthe 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 translations or 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 properly 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 in 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. All 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 designed to operate on one or more IBM machine types and, in most instances, in conjunction with other IBM 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's ob- 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 for any additional effort required to perform these program services. 2) Central Service will only respond to defects which will occur when Central Service operates the licensed program in a Specified Operating Environment. RETURN OR DESTRUCTION OF LICENSED PROGRAM MATERIALS Within one month 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 such period has expired, except as set forth below in this subsection. For additional licenses for which 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 charges are 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. LICENSED PROGRAM 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 intall 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 of a licensed program and subsequent reordering 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 a 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 providethe 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: Z125-9029-00 Page 9 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 following the date of the notice, and foran Extension which will commence within 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 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 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 Armonk, New York 10504 Purchase of On -Order Machines [ ] Purchase of Installed Ill achines N',onc an,I Addtc.,.; of Co,lonu•r ( invoice lo): lo,t:ll lsl inn Addre,>l: City of Lubbock Computer Room 7iformation Services Municipal Square Building P. 0. Box 2000 916 Texas Avenue Lubbock, Texas 79457 Lubbock, Texas 79401 IBM Man, It Mill(-(- Addu•s,: 1602 loth Street Lubbock, Texas 79408 WWI Platt lhde•r or Machine Set ial Model or T\pe Number (*1 Fc:tlur(- Dem-ripti I'un ha,c Price fi We' foill Supplen►ent to Agree►nent for Purchase of I BAI Machines 1101 Branch Reference Reference 0Ifice No.: C11,1mm-l- No.: Agreement No.: Antendmrnt No.: C69 5343502 Cu,lonu•IRefelvill'e': Dill. I'lellaw l: Purchase of installed Machines: ljnnt li,.n st.a.,l.: Eff.,tl,r Prices for fillehasc of in,talled Machines coati be changed by ul{I up to alld including the Eflecti{t• Dale of Porrh:uc ({.hick o01,1 he within the Quulalioll lhmthl, subject to an{ limitations de- scribed in theapplicakle IB11 It am -or rental agn-ntent. L4 Q'arranty `latntellance - a -_ - - t- ^- l)I II II rII; Agreement tier\ ice C s ! L L _ _� y ✓ . -' 1\Ile, ; r 1{111•, '- Estia,atcd ° _ = - = r - Available L A%ailahle C Total Shipment 'y � _ ��`, - (None Cn- t- I l l nlc,; - } S hale - _ � less Noted) Noted) 1 4381 PO1 Processor 431,200 431,200 08/09/85 12 2 3205 100 Color Display Console 2,895 5,790 08/09/85 3 1 3203 005 Printer 1200 LPM 33,875 33,875 08/09/85 3 1 3880 003 Storage Controller 48,216 48,216 08/09/85 f 3 3 3420 006 Magnetic Tape Unit 20,125 60,375 08/09/85 :`-', 3 1 3803 002 Tape Controller 27,550 27,550 08/09/85 1 3705 M82 Communication Controller 51,010 51,010 08/09/85 ;12c 2 3380 AN DASD 71,024 142,048 08/09/85 3 1 3380 BD4 DASD 51,552 51,552 08/09/85 3 1 3044 CO1 Channel Extender Link 8,500 8,500 09/27/85 •12 1 3044 D01 Channel Extender Link 8,500 8,500 09/27/85 12. 1 3262 005 Printer 650 LPM 18,012 18,012 08/09/85 3 2 3274 A41 Terminal Control Unit (Local)10,938 21,876 08109/85 3 1 3866 001 Multimodem Enclosure 1,632 1,632 08/09/85 36_ 2 3868 004 Rack Mounted Modem 9600 BPS 2,795 5,590 08/09/85 36 2 3865 002 Modem 9600 BPS 3,023 6,046 08/09/85 3 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 1.` 3 •4 �,1 5 4 i 1 1 1 1 1 1 ' 1 1 1 1 1 1 1 1 1 • - 1 3 3 THIS SUPPLEMENT CONFIRMS YOUR ORDER TO PURCHASE THE: lIAC111NF,S I.I5TF.D IIERFIN. FURTHER, CUSTOMER AGREES THAT THIS SUPPLEMENT AND THE. REFERENCED AGREEMENT, INCLUDING ANY OTHER IR\I AGREEMENTS OR CERTIFICATIONS REFERRED TO TIIEREIN, AND RF,FERF.NCF.11 AMF.NDIIF.NT, IF ANY, ARE. TIIE COMPUTE AND EXCLUSIVE STATEMENT OFTHE AGREEMENT IlETN1 EN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREENIF,NTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS RETQ EEN T'11F PARTIES RELATING TO THE SUBJECT 1,14TTF.R IIERF.OF. r.rxv i,•r,n c,r,n l rrn,.A r rvlx: nr.r, nr.I r.rwr, -11 Jie. I'} wr --- tnuleares maeume neruu lxunrrrer. lnvoiee Information: Invoice No.: Subtotal $ WARRANTY 01''I•IUNS AND 11:1IN'I'l:N 1NCE AGRI-1-1►EN7'SLIO ICE Pavment is due on the Dale of Installation except for pun•hase of installed Machines for which - l It,�"" thi. s l'i'nI ems it, Cnnl;nu,dhn,1 (`ve reNerse side for additional inforniatinnl payment must be received by mm prior to the end of the Quotation Month in order to establish Taxes $ fly selecting for e:teh 1lachine Type folio the "I'. yes :1\ailable and by initi:ding the Effect i%e Dale of Purchase. I'dow, and returning a ropy of each page of this Supplement to 111\I at it% ad - Remit to Address: Destination Charges $ dress above, the CusUaner accepts: IR11 1Catranty Options, If a%a,hllde: and/or Pay This Amount SFE] 11111 Maintenance Agreement Sl•tvice. Z125-3575-00 (U'M 500) b94 Page of =E INSTALLATIuN 1,,49 0ISC0.,4TINJANCE ACTIVITY REPORT ?RANC4 S69 DATE 08/16/85 • LL'STu9cR J":10 CJST04ER 4AME TYPE-S=2IAL I/O M=S9 DEVICE OTY METER OJE D4TE' I/1 DATE �7. CTL • SrISS• 53435-02 201 CITY OF LJnd^CK 3203-50516 I 000 0000000 07/31/95- 08/15/85 • °EIN; PELIVcRLO P,Y 3CH AROUND 10AM THJRS 7/?5 �SdISS 53435-U2 201 CITY uF LJ9o3CK 3274-F9544 I 000 0000000 07/31/95. J3/15/85 PtI:4G ^ELIVERLD 9Y 3CH AROUND 1044 THJRS 7/�5 jQ_Q_ SdIiS 53435-02 ZO1 CITY OF LJI1!r .K 34?0-(4905 I000 0000300 07/31/15 05/15/85 ` EEING OELIVLR.E) AY 3CH AROUND 1JAM THJRS 7/?5 p .• S4I5S 5343i-U2 ZD1 CITY JF Lu9u"1CK 3420-.t49n7 I OJO 0000000 07/31/95 03/15/85 / ?EING '1ELIVLRLD BY 3CH AROUND .JAM THJRS 7/?5 *, dISS 53435-U2 201 CITY OF LU9t3OLK 3420-R4808 I DUD 3000J00 37/31/95- 33/15/85 BEiN, DELIVERED 9Y jCrl ARD'JVD 104M THJRS 7/?5 C P /f tc ,• '7nISS 53-*35-J2 201 CITY JF LU9uDLK 3890-55036 1 OJO 3100J00 07/31/55 09/15/95 I • S3EING DELIVERED BY 6CH AROUND IUAM THJRS 7/?5 �• A1:)S 53435-U2 201 CITY OF LU9e0CK 4J91-1319i I 030 OO00000 07/31/95- 33/15/85 B61NG DELIVERED 9Y 3CH AROJND 1JAM THJRS 7/25 �SNISS 53435-U2 Z02 CITY OF LUBe1CK 321+2-57573 1 000 0000000 07/31/95- O3/15185 • BEING DELIVERED BY Li CH AROUNO IUAM THJRS 7/'5 S.IISS 53435-u2 292 CITY OF LU9d3LK 3274-F9545 1 000 39OOJ03 07/31/95- 33/15/95 BINS DELIVERED BY 3CH A2DJVD 1JAM THJRS 7/?5 • „dISS 53435-U2 202 CITY OF LjQ6e!CK 3274-Y1572 I 000 0000000 07/31/85- 08/15/85 BEING DELIVERED 9Y 3LH AROUND 1JAM THJRS 7/_5 ®',HISS 53435-U2 202 CITY JP LLU7b7CK 3J80-0999 I OJO 0000000 07/31/95` 03/15/85 BEING DELIVERED BY 6CH AROUND 1JA4 THJRS 7P 5 ' IL SWISS 53435-U2 202 CITY OF LU9u')CK 3380-A4309 I 000 0300000 07/31/95- 1S/15195 BEING DELIVERED BY 3CH AROUND IJAM THJRS 7/?5 ,� • �SWISS 53435-u2 202 CITY OF LUBBOLK 3380-E5195 1 000 0000000 07/31/95-'03/15/85 ;BEING -OELIVERED`BY' CK AROU?1O—IV7ctl-T137RS _ r• �,�R . SWISS 53435-02 <Z02 yrCITY OF L.UBbOCK 3705-82747 I 000 0000300 07/31/95 OB/15/85T r.dr�- . acBEING,DELIVERED BY BCH AROUND 1JA4 THJRS 7/2S IDAC MESSAGE'_COUNT'°'µr 14 • .'r,`4r ' ..r� s a+' F J• � �' ` s s'i t F i i fiR t ..... �,.i. �`b '�• ,��' 0.�Fak U `t' j:j " 1+r. ,'�. 4` t� .� i � 1 w } :.SIT' _r r}f wa�..J ; �.'L�•"s�y.sr �i .'�,�'�� �iti''i + �N^ 3��� 7lrational 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 loth Street Lubbock. Texas 79408 Armonk, New York 10504 Agreement No.: 0953 IBM Branch Office No.: G69 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 Title of Agreement or Amendment All of the following, unless selectively designated by initialing below for individual documents Agreement for Purchase of IBM Machines IBM Maintenance Agreement Agreement for IBM Licensed Programs Agreement for Lease or Rental of IBM Machines Agreement for IBM Hourly Machine Service IBM Form Number Z120-2892-00 Z125-3275-00 Z125-3358-00 Z125-3320-00 Z120-2826-00 : I C-3 n:-117 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. Accepted by: Intemationai Busine ach.mes CCoorporatsbn j Adtno�ea Signature `. . Name (Type or Print) Date _....... ........................ ...... ............. ............................... Customer By................................................... Auth W 'i nature Name (rype or Print) Date z125-902¢00 Ito!eal PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. U/M 025 Page t of 17 ��k PO 0-4—TYPE/SERIAL '\.`�MOD ' DATE! ' ' ''�` ['DA ' TE O0J]sV�i^43 °/00001318!"�P01 6/2/85z 7/02/85! � / | OO]JSW` .'32O5/000OO1123��1OO��0�/1�/85�� O�/16/85@ OOJJSX ^3205/000000828,'100``�07110/85^Y;07i16/85/] 0OJJSY 3203/000050516 `005 `�06/19/85'06/241855 / ' O0JJTF 3880/000056036 �'. 003 �/ � 06/19/85 ' ' '06/2 5/85! . - ` .� �^ O0JJT��X6~342O/000O381O11,0O4 �04/26/85���4y29�85 OOJJTJCh13420/000040495 004 � 04/26/850004/29/85 00JJTK 38U3/O00018942 � 002 �'06/2O/85 ' ' O&�25�85 �! } ~`~~''` --`-'-'---� �-� ��1 �7. 1O/85 O7/16/85)/ OOJJTN 3274/OOOOF8644 �4 ^�0�/ | `^ ^ -' -- -- --� OOJJTP 3274/0000F8645'.A41 107/12/85 -�O7/16/85,| OOJJTT 3179/0000B0161 | 1OO ' '��7/10/85 � 07/15/85 � | �' � / ' '| -' '' ^ �SHIP }�~� . ARRIVAL ' ` MOD� DATE CC DATE `O � TYPE/SERIAL !r' '�.� ' ' )OJJVW 3179/0000BC990� 1OO ;! 07/1O/Q5 O7/15/W` )0JJVX 3179/O000BDO80 ��10O ' `j 07/10/85 O7/15/85���� )OJjVY 3179/0000BD004 100 V07/10/85 07/15/85 �� )OJJVZ 3179y0000B o07/1O/85 07/15/80^ )OJJWB 3179/000OBDO131`100 ` � 07/1O/85 07/15y85 'JJ. )�W[ 3179�OO�0BD172^��1�0 ' O��1O/85 87/15/85 .�-W- ! 179/OOOOBDO20 !' 1O0 �' 07/10/85 07/15/85 �� 01LQRV 1416y000004987/001 M7/10/85 ')1LQRZ� 3705/00008274�A�''82 07/12/85.� 07/16y85 . ^ ` 11LQSB � 338O�0000A3999 ` AD4 ` 06/19/85 ~06/25/85 � �"~~ � 0E�19& �" BD4 � ^ 06/21/85 06/25/85 �1LQSC 338O��<0 ; �� � � -^- ^� -r�' �__-''- ��� ' PO 0 .TYPE/SERI'AL . MOD �� DATE CC DATE ^' '. 00JJTV /3179/0000BD166 100.,07/10/85 07/15/115 ` ..�` 0OJJTW'' 3179/OOOOBD153 100 1`07/10/85 07/15/85 j` O0JJTX 3179/0000BD173 1001 07/10/85 07/15/85:'` ' ` OOJJTY 3179/0000BD112 100 07/10/85 07/15/85. , 0OJJTZ 3179/0000BD149 100 07/10/85 07y15/85 OOJJVB 3179/0000BD156 100 07/10/85 07/15/85 � 0OJJVC 3179/0000BD159 100 07 1O/85 07/15/85 0OJJVD 3179/0000BD152 100 07'10/85 07/15/85 O0JJVF 3179/000OBD164 100 07/10/85 07/15/85 OOJJVG 3179/0000BE611 100 07/10/85 07/15/05 OOJJVH 3179/0000BE317 100 07/10/85 - 07/15/85 ! ^ SHIP ARRlVAL ;PO 0 TYPE/SERIAL MOD DATE CC DATE 101LRBF 3262/000067570 005 07/12/85 07/15/85 |01LRPZ 3274/0000Y1572 C61 07/13/85 07/16/85 O1LSYB 3868/000088570 004 06/21/85 06/25/85 !O1LSYC 3868/000088571 004 06/21/85 06/25/85 /O1LSYK 3866/000055686 001 `.07/12/85. 07/16/85 'O1LVKY 3287/000ON1221 002 07/12/85 07/17/85 '01LVKZ 3287/000ON1355 002 07/12/85 07/17/85 01LULB 3287/000ON1390 002 07/12/85 07/17/85 01LVLC 3287/0000N1859 002 07/12/85 07/17�85 'O1LVLD � '3287/000ON2077 002 07/12/85 07/17/85 �O1LVLF - 3287/000ON2299 002 07/12/85 07/17/85 ' 'ARRIVAL' PO � TYPE/SERIAL PO 4 ` | |- r� TypEyPERIonvu ~'^' ""'^ -- - 01LVLG O1LVLH 3287/000ON2469 3287/000ON3709 OOJJVJ' DE308 "''^~'~~ 01LVLJ 3287/000ON3710 00JJVK ' 3179/O0OOBD17O`''100 ''�0//10/85 «~'^^'~~ '� - V1LULK` 3287/000ON5756 00JJVL � 31�9/U0D«u���w '' ' O��15y85 01LVLL 3287/000ON5902 OOJJVM ' ' 3179yO000UE30/ �»« 10O ��`O��1O/85 .. O7/15/85� O1LVLM � ' 3287/0000N6749 OOJJVN 3179/0OOOBC99 � ` 10/85 �'`�V7115�8� O1LVLN 3287/000ON7153 O0JJVP �1�9�O000BDOO 3179/000OBD008 10O 7�10�85 '^ O�y15/85` O8XHCW/ ' 3420/000OK4806 O0JJVQ�' ~~~-�- O0JJyR ' ��� - !71OO` � '`3179/O0OOBDO1� ' ' '����DO1. O �1��85�c { � ` 5/85 A//z � `� "~"" O8XHCX ~~'^'~'` 08XHCY 342O/O0OOK48O7 ~'�~~`~~`'~.' 3420/00OOK48OO °"^",'` OOJJUS ~^'�. ` 317y/00VV» *.��`__��/'�� "^`` 100'` O-/1O�85� ��15�85 �O l "ur.'�. u`�"'vvvm`�ovo 011 00JJVT 3179/O000BDO22'�110o �'V//lwlou!0: 07/16/85 �15185 ' - WAWA '� /.� MOD 002 002 002 002 002 002 002 006 006 006 AD4 SHIP DATE 07/12y85 O7/12/85 O71O3/85 O7/12/85 O7/12/85 07/12/85 O6/19/85 06/19/85 06/19/85 O6/27/85 ARRIVAL CC DATE . 07/17/85` O7/17/85 O7/O8/85 O7/]7/85 O7/17/85 O7/17/85 O6/24/85 O6/24/85 O6/24/85 0 7/02/O5 ' SUPPLEMENT B LIQUIDATED D*IAGES 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 sovereisn 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 or 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 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 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 FACL 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 SHIP/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 EMF/V2 August 30, 1985 DATA COIHMUNICATIONS NETWORK MANAGE 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 CICS/OS/VS August 30, 1985 5748-XXH GDD�i w/PGF August 30, 1985 0 1G69.1565.03 C SUPPLEMENT A The Laws of the State of Texas shall govern performance of this contract. gy:1 0NTI 1';69.0735.02 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 IB111 of deficiencies in the installation which will not allow the acceptance. IBii 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 IBii 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 IN WITNESS WHEREOF, the parties to these presents have executed this agreement in __________________________ in the a year and day first above written. CI Y LU 0 K, TEXAS ( OWNER) By: --- -- ----------------- AYOR • l A T: � Secretary. - CONTRACTAR BY:---`= Z')� ---------------------- TITLE: _ L�2��� L't_.�J���� ��---------- ATTEST: % ----------------------------------- Secretary S t l i L COMPLETE ADDRESS: --------------------------- eG : i sa nor S * Signed subject to the provision that no further changes will be ` made to this agreement subsequent to signing by Contractor 1 .. I. 15 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 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 P.O. Box 1890 Lubbock, Texas 79408 806/741-8200 October 16, 1990 Mr. Gene Eads Director of Purchasing City of Lubbock 1625 13th Lubbock, 'Texas 79457 Dear Mr. Eads: This letter will serve as a point of clarification for our proposed Joint Verification Study with the City of Lubbock. The contracts enclosed apply only to the study. Also, the IBM pre -announced information disclosed to the City is no longer considered to be of a confidential nature. The IBM System 390 was announced on September 5, 1990. Sincerely, vid L. Eng ish A visory Ma keting Representative US Marketing & Services Enclosures AC289001 International Business Machines Corporation Armonk, New York 10504 Amendment for Joint Verification Studies Name and Address of Customer: City of Lubbock 916 Texas Ave. Lubbock, Texas 79401 Reference Purchase Agreement No.: G69-0953 Reference License Agreement No.: G69-0953 Reference Confidential Information Agreement No.: N.A. Customer No.: 5343502 Amendment No.: 001 International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions amend and/or supplement the 1) Agreement for Purchase of IBM Machines, 2) Agreement for IBM Licensed Programs, 3) Agreement for Exchange of Confidential Information, refer- enced above, and 4) any applicable IBM Program License Agreement for any Joint Verification Study (JVS) offered by IBM for IBM Products and their associated documentation. IBM Products, subject to a JVS, are IBM ma- chines and or IBM licensed programs which may not generally available when shipped to the Customer. Such Products are provided to the Customer under the applicable referenced Agreements and/or any applicable IBM Program License Agreement and this Amendment for installation in the Customer's operational environment. A JVS offers 1) the Customer early operational experience with the IBM Products and 2) IBM specific information regarding a) verification of the successful operation of IBM Products in the Cus- tomer's operational environment and b) the Customer's experiences with the installation and operation of IBM Products as well as the adequacy of the IBM support structure (to the extent implemented) for such Pro- ducts. If IBM offers a JVS for IBM Products and the Customer agrees to participate in such JVS, IBM will issue a Supplement to Amendment for Joint Verification Studies (JVS Supplement) confirming the specific terms applicable to the JVS. Upon the signing of the Amendment for Joint Ver- ification Studies and the JVS Supplement by the Customer and IBM, the JVS shall commence on the JVS Start Date specified in such Supplement. 1 Period of a JVS The period of a JVS shall commence on the JVS Start Date specified in the JVS Supplement and shall end on the earliest of 1) the JVS End Date specified in such Supplement, 2) a date upon which a final report has been submitted by the Customer documenting the satisfaction of the JVS com- pletion criteria, or 3) the date of termination by either party upon 15 days' written notice. However, in lieu of such date, the period of a JVS shall end on any other date mutually agreed to by IBM and the Customer. 2 IBM Responsibilities IBM will for a JVS: 1. assign a representative who is the primary point of contact with the Customer; 2. provide education to Customer personnel; 3. provide planning assistance for conversion and installation of the IBM Products; 4. schedule and ship the IBM Products to the Customer on or prior to their general availability. 5. provide available publications, education materials and other doc- umentation to the Customer. All such materials marked with a re- strictive legend, such as, "IBM Confidential," shall be considered IBM Confidential and shall be disclosed to the Customer in accordance with the Section entitled "Confidential Information"; 6. install IBM Products which are not designated as Customer Set -Up; and 7. provide warranty service, program service and remote or on -site as- sistance for the resolution of issues associated with a JVS. Customer Responsibilities The Customer will for a JVS: 1. Provide planning for, implementation of, and proper operation of, the IBM Products during the JVS; 2. participate in the IBM education classes; 3. participate in conversion and installation planning sessions with IBM; 4. install the Prerequisite Products, specified in a JVS Supplement, and utilize best efforts to apply program service within one week of re- ceipt from IBM; 5. Keep IBM advised of experiences and any problems encountered during the JVS; 6. allow IBM personnel reasonable access to the IBM Products during the JVS, during normal business hours, for service and observation pur- poses; and 7. furnish to IBM at the end of the JVS a final written report, based on the Customer's experiences, containing the Customer's evaluation of the function, performance, serviceability and usability of the IBM Products and their related publications. Installation Plan Prior to shipment of the IBM Products by IBM, IBM and the Customer will agree upon an installation plan for such Products. Such plan may be modified from time to time upon agreement of the parties. 3 Literary Rights and Concepts The Customer agrees that the final written report prepared by the Customer and delivered to IBM may be used by IBM for all business pur- poses, including the right to reproduce and prepare derivative works based upon such report, including distribution of such derivative works, in the development, manufacturing, marketing and maintenance of IBM products and services. Either party is free to use the ideas, concepts, and know-how derived from a JVS without accounting to the other. Confidential Information If information is to be furnished to the Customer for a JVS and such information is considered by IBM to be IBM Confidential Information, IBM and the Customer agree that the terms and conditions of the referenced Confidential Information Agreement shall govern the disclosure of such IBM Confidential Information. The Customer agrees to sign such Agreement, if not already signed prior to signing this Amendment. Specific IBM Confidential Information to be disclosed under a JVS will be described in the JVS Supplement which will be deemed to be a Supplement to the referenced Confidential Information Agreement. The JVS Start Date will be the Initial Disclosure Date of the Confidentiality Period. The JVS End Date will be the Final Disclosure Date. The Customer agrees to return or destroy all confidential documentation provided by IBM to the customer at the request of IBM or upon receipt by the Customer of new versions of such documentation, whichever occurs first. IBM Program License Agreement IBM Products which are licensed programs under the IBM Program Li- cense Agreement may not be transferred during the period of a JVS. Payment Terms Payment for IBM Products is due in accordance with the terms and conditions of The Agreement to Purchase IBM Machines and Agreement for IBM Licensed Programs. 5 .; Terms, Conditions and Charges Except as specifically provided herein, all terms and conditions of the referenced Agreements or any applicable IBM Program License Agreement remain in full force and effect including title passage, warranty com- mencement, risk of loss and limitation of remedies. There are no other charges due for a JVS. General Nothing contained in this Amendment shall be construed as conferring any rights to use advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either party to use the existence of this Amendment in any promotional activity without the express written approval of the other party. The existence of this Amendment or of any JVS shall not prohibit either IBM or the Customer from entering into the same or similar agree- ment with any other party nor from independently developing, offering, selling or marketing materials, products or services which are the same or similar to the materials, products or services provided hereunder. In the event of conflict between the terms and conditions of this Amendment and the referenced Agreements or any applicable IBM Program License Agreement, the terms and conditions of this Amendment shall pre- vail. In the event of conflict between the terms and conditions of this Amendment and any JVS Supplement, the terms and conditions of the JVS Supplement shall prevail. C The parties acknowledge that they have read the referenced Agreements and any applicable IBM Program License Agreement and this Amendment, understand them, and agree to be bound by their terms and conditions. Further, they agree that the complete and exclusive statement of the agreement between the parties relating to this subject shall consist of the referenced and applicable Agreements, this Amendment and its Supple- ments. This statement of the agreement supersedes all proposals or other prior agreements, oral or written, and all other communications between the parties relating to this subject. Any reproduction of this Amendment by reliable means will be considered an original of this document. INTERNATIONAL 13USINESS MACHINES CORPORATION BY Authorized,gignature 1-11 :- (type or print) DATE: CUSTOMER NAME: BY la V C ' Authorized Signature NAME: B. C. McMINN, MAYOR (type or print) DATE: APPROVED AS TO CONTENT: Sec etary International Business Machines Corporation Armonk, New York 10504 Supplement to Amendment for Joint Verification Studies Reference Amendment No.: 001 Customer No.: 5343502 IBM Branch Office No.: 5D8 1. Existing IBM System: Type/Serial No. 4381/P13 S/N 13186 2. IBM Product(s) subject to the JVS: Aircooled Processor 9221/150 3. Prerequisite Product(s): Software Release Requirements: ■ VM/SP REL 5 or REL 6 • MVS/SP 1.3.5 or REL 1.3.6 • VSE/SP 3.2.2 or later Releases • VSE/SP 4.1.2 or later Releases • DPPX/370 1.2 4. Confidential Information a. Description (Nonconfidential) 1) IBM Products(s) listed above 2) Pre -Announce product documentation b. Name and Address of Customer's Point of Contact Mr. Tom Tunning - Manager, Information Services - 916 Texas Avenue 5. JVS Start Date: upon installation JVS End Date: not to exceed 30 days after installation 6. Additional Terms and Conditions: a. Additional Customer Responsibilities ` 1) Collect data, such as hardware log outs and software dumps, to support the identification and resolution of incidents related to the IBM Products, and use best efforts to recreate problems when requested by IBM: The parties agree that the referenced Amendment, applicable IBM Agreements and this Supplement 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. INTERNATIONAL7BUSINESS MACHINES CORPORATION Authorized Signature ME: V (type or print) DATE: CUSTOMER NAME: BY • �,�1 Authorized Signature NAME: B. C. McMINN, MAYOR (type or print) DATE: '0 7 APPROVED AS TO CONTENT: ATTEST: 6 � Sec etary APPROVED AS TO FORM- 0 International Business Machines Corporation Armonk, New York 10504 Composite Signature Agreement Name and Address of Customer: Agreement No.: City of Lubbock IBM Branch Office No.: 917 Texas Avenue Lubbock, Texas 79408 Customer No.: IBM Branch Office Address: IBM 1602 loth Street Lubbock, Texas 79408 0953 G69 5343502 International Business Machines Corporation (IBM) and the Cusf—*,qr 4grpetIhaJSIVI w11l;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 Title of Agreement or Amendment IBM Form Number ❑ All of the following, unless selectively designated by initialing below for individual documents Purchase IBM Machines Agreement for of Z120-2892-00 Maintenance Agreement Z125-3275-00 �' Agreement for IBM Licensed Programs Z125-3358-00 Ik'IBM 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. Accepted by: International Busine ach• es or o Customer - ..........................--------- By............ _- ...1 ter .. ..._.._....-------- By ' ..�.-- i!..11f-...._...-__................. ...................... thor' lIed Signature j� i Authori Signature -- ........ . .... L-i;tfNTn---- - -- / od �,r�...v...�....... vim... _-. i -- Name (Type or Print) a Name (Type or Print) Date z125-9029-00 c10/e3> PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. U/M 025 Emnch ©ff �, Cortml ,:� ,r-_n tl:tract Fil Page 1 of 17 Agreement for Purchase of IBM Machines (Z120-2892-00) International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any Customer written order accepted by IBM for the purchase under this Agreement of IBM machines, features, model conversions, machine elements or accessories. Under these terms and conditions, as described herein, IBM will 1) sell machines (including their 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 -order to be installed, as described herein, or which 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 Customer further agrees, with respectto the Machinesand 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 Agreement when a Supplement to Agreement for Purchase of 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 IBM 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, where applicable, by the return to IBM by the Customerof parts in respect to feature additions or model conversions that involve the removal of parts which become the propertyof IBM. Acopyof this Agreement and/or the applicable Supplement may be filed in order to perfect IBM's security interest. 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 the 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 caused by IBM's negligence. SHIPMENT IBM will schedule each 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. DESTINATION CHARGES Destination charges for each on -order Machine from a desig- nated -IBM location, and any rigging charges, will be paid by the 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 thethree 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 of the price increase. In the event that a price increase 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 for such 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 applicable IBM agreement. PROGRAMMING The term "programming" as used in this Agreement shall mean such programming as IBM may make generally available, without separate charge, for Machines of the types ordered by the Customer under this Agreement. IBM will furnish such program- 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 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. 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 oavner, 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 for a feature or 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 IBM, 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 its estimated date of shipment or its actual date of shipment from IBM. The Date of Installation will be the day (Monday through Friday) following the 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 Date 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 Customer as of 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, or 4) Machines which are presently installed with the Customer. IBM warrants that on the Date of Installation each on -order Machine will be in good working order and will 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 as set 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 Supplement as 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 prior to repair by IBM, in which case the Customer will 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 IBM installation 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 or the 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 commercially -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 will 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 shall 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 may be announced in the future will be suitable for 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; and 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, or in 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 foregoing states the entire obligation of I BM 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, or2) 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 contract or 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 IBM, 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 agrees 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 IBA., 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 or annual 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 under this 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 usage will 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. WITH D RAWAL/TERM INATI ON 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 terminate this Agree- ment at any time by written notice forfailure of the otherto comply with any of its terms 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 liablefor lost profits, lost savings orother 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 STATE- 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 (Z125-3356-00) 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 underthis 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 supportof 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 for a 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 licensed program 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 time 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 license and 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 printed form, microfiche or other non -machine readable form may not be copied. Additional copies may be obtained under license from IBM at 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 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, translate 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 Change in Designated Machine" furnished tothe 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 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 of the 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 for which 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 charges are 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. LICENSED PROGRAM TESTING For each licensed program IBM will specify thetesting 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 under the 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 intall 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 of a licensed program and subsequent reoraering of the same licensed program for the 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 a 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: Z125-9029-00 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 local fix 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 problem 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 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 right to charge for 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 translations or 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 properly 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 in 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. All 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 designed to operate on one or more IBM machine types and, in most instances, in conjunction with other IBM 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's ob- 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 for any additional effort required to perform these program services. 2) Central Service will only respond to defects which will occur when Central Service operates the licensed program in a Specified Operating Environment. RETURN OR DESTRUCTION OF LICENSED PROGRAM MATERIALS Within one month 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 copies within 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 data base; 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 or 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 "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. Any attempt 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 oraddition 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, morethan 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 RE- 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 (2125-3320-00) 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 or a 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 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. 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 bespecified 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 a Rental Contract Period will be the daythe written 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 fora 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 Section entitled "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 use 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 generally 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 select orchange 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 foreach 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 Customer agrees 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 Limit forthe 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 for a machine has been received by IBM, I BM may not increase the 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. The Upper Limit Percent specified in the Supplement will not be increased during the Lease Contract Period, The Monthly Lease Charge for a 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 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 number of 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- 2125-9029-00 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 forsuch 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 for a model upgrade orfeature 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 Monthly Maintenance 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 a 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 undera 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 generally in effect. A model upgrade or feature addition 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 orfeature 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 priorto the 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 aTermination 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 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. 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 2) IBM's purchase price then generally in effect for the machine, including its model upgrades and features, less 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 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 such alteration 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 rates 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 funds. 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. Z125-9029-00 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 in the 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 a 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 or 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 may be 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 any time 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 following the date of the notice, and for an Extension which will commence within 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 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 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 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 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 _l International Business Machines Corporation Armonk, New York 10504 Suppleinent to Agreement for Purchase of IBN1 Machines �� ] I'urrhuc of On-(h'dcr Machines [ ] Purchase of Installed Machines IBM Branch Reference Reference N:nt,s all dAd, h, ,,,I(It ,nmicr(invoicetIf: 1n,tallationAddle-: OffireNo.: Cu'lonlel'No.: Agreement No.: AnlendnlentN'o.: City of Lubbock Computer Room G69 5343502 J lformaLion Services Municipal Square Building (;ll;imlletI(cfrll'll v: DatePlepared: P. 0. Box 2000 916 Texas Avenue I'll r('h are of lnstalled Alachines: Q,r,.t.1,,,(1 n1„I,16: t:ff"t.„•D.I. .,f Pus-, l-, Lubbock Texas 79457 Lubbock, Texas II3NI Iirursh Office Addles,: 79401 Prices fur pint halt• of installed Machine., may he changed by in\I oil toand including the F.Orrlivr I- • "' -' - Date of Por'll:tse (wlll('Il nlll,l he N'ilhlll file Qtlulatlon lunth), sub/e('t to all\ limitation. de- 1602 loth Street set Amid infill- apphraisle IB\1leitseorrental agreement. Lubbock, Texas 79408 ^ _ = _ L warranty Manntenaoce Agreement 14 b/ 4• C_ i- •`L. _ F_ r L i v Options lltill sert, ice IR\t PlantI'urcha,e• c = ° s 2 E 1'epes i Available # T)pes Axadable L (hderur %la(hine Serial Model or Price fti Total Eminlate(I '•a Shipment - .`r ;.j - - - L (None F- (Unless Qly. Tvpe Nunlher(*1 Veature• Description this-k1mll S � lessNulcd) Noted) 1 4381 PO1 Processor 431,200 431,200 08/09/85 12 1 2 3205 100 Color Display Console 2,895 5,790 08/09/85 3 1 1 3203 005 Printer 1200 LPM 33,875 33,875 08/09/85 3 1 1 3880 003 Storage Controller 48,216 48,216 08/09/85 3 1 3 3420 006 Magnetic Tape Unit 20,125 60,375 08/09/85 -3 1 1 3803 002 Tape Controller 27,550 27,550 08/09/85 '' :3 1 1 3705 M82 Communication Controller 51,010 51,010 08/09/85 l J 2! 1 2 3380 AD4 DASD 71,024 142,048 08/09/85 �3 1 1 3380 BD4 DASD 51,552 51,552 08/09/85 3 1 1 3044 CO1 Channel Extender Link 8,500 8,500 09/27/85 :12 1 1 3044 D01 Channel Extender Link 8,500 8,500 09/27/85 12, 1 1 3262 005 Printer 650 LPM 18,012 18,012 08/09/85 3 1 2 3274 A41 Terminal Control Unit (Local)10,938 21,876 08/09/85 3 1 1 3866 001 Multimodem Enclosure 1,632 1,632 08/09/85 36. 1 2 3868 004 Rack Mounted Modem 9600 BPS 2,795 5,590 08/09/85 36 1 2 3865 002 Modem 9600 BPS 3,023 6,046 08/09/85 3 1 1 3274 C61 Terminal Control Unit (Remote)4,981 4,981 08/09/85 3 1 34 3179 100 Color Display Station 1,377 46,818 08/09/85 '3 ,4 4 3 3 THIS SUPPLEMENT CONFIRMS YOUR ORDER TO PURCHASE THE: MACHINES LISTED HEREIN. FURTIIF.R, CUSTOMER AGREES TIIAT THIS SUPPLEMENT AND THE. REFERENCED AGREEMENT, INCLUDING ANY OTHER IIVNI AGREEMENTS Oil CERTIFICATIONS REFERRED TO THEREIN, AND REFERENCED AMENDMENT, IF ANY, ARE: THE COMPUTE AND EXCLUSIVE STATEMENT OF THE, AGREEMFINT IIETXA FEN THE: PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS RFTV. EEN THE; PARTIES RELATING TO THE SUBJECT HATTER HEREOF. MILY 11acn \ ►snrfrrr.Ar rv,x: ncc nr.rr.n5r. nrur.. i'/ nn -- ,nun'ate•s :nacnu,e neraf lvunluer. Invoice- Information: I Invoice No.: Subtotal S WARRANTY 017I0N5 AND )IAINTE\ %NCE: aGlila.\il:NT DER\ ICE Payment is due on the bate of Installation except for purchase of installed Machines for which if'.) ln 116. Suppl.,,,.m (See reverse side for addtIimial inhnmist ion) a mini must be received hY n+a ,rior to the end of the notation Month in order to establish ""'1mop mm„>) By selectin • for cash %lachine TN to from the'UN p•; Available and by initialing I'7 I Q Taxes S ti I I b the Effective flute of Purchase. below, and returning a copy of earh page of this Supplement to fa\t at its ad - Remit to Address: Destination Charges S dress above, file Customer areepfs: Pay This Amount i IB11 warranty Options, if availahlt•: and/or Iil\I hlainte•nance Agreement Srrcice. Z125-3575-OD (U'M 500) V84 Page of =E I*4STALL ATIU'J AND DISCO.,JINJANCE ACTIVITY REPORT aRANC4 S59 DATE 0�a8/16/B5 • 'LF;; L,,STJ'?c? JNI0 CJSTDAER NAME TYPE-S=1IAL I/D 4=_S4 DEVICE QTY METER DJE DATE- I/1 OAT= �3. GTL • SWISS 53435-U2 201 CITY OF LJPdDCK 3203-50516 I 000 0000000 07/31/95` 08/15/85 • °IDELIVERED Y 3LH AROUND lTHJRS 7/25 �SwTvS 53435-02 201 CITY TY P, uF LUBc7CK 3274274-F9644 I 000 0000000 07/31/95- 03/15/85 BEING DELIVERED BY 3LH AROUND 10A4 THJRS 7/25 SWISS 53435-02 401 CITY OF LJ'lj% K 34?0-<4306 1 000 0OUO300 07/31/95 03/15/85 ?LTNG OcLIVER.ED AY 3GH AROUND 1JAt1 THJRS 7/25 -- .• SWISS 53435-U2 2O1 CITY JF LJRd-ILK 3420-.<4dn7 I 000 0000003 17/31/95 13/15/85 p6t BEING DELIVERED 9Y ;3LH ARGUVD '_JAM THJRS 7/25 i 40 SWISS 53435-U2 201 CITY OF LJ8d0CK 3420-K4808 I OUO 3000303 37/31/35- 03/15/85 9t1N: DELIVERED 9Y jCH A1J'JND 1JAI T4J1S 7/25 CP%/ ;• SAlSS 53435-J2 ZOL CITY JF LJBb7CK 3890-55035 I DJO 3000JOJ 07/31/95 13/15/35 / Vl BtING DELIVERED BY bCH AROUND IUAI THJRS 7/25 �• SWISS 53435-U2 201 CITY OF LU96OLK 4391-1319i I OJO 0000300 07/31/95- 33/15/85 JAR BcTNG JELIVERcD BY 3CH AAO'JND 1JAM THJRS 7/25 • SwISS 53435-UZ 202 CITY OF LUB611CK 3262-57573 1 OJO 0000000 07/31/95- 33/15/85 • BEING DELIVERED BY i3LH AROUND LOAM THJRS 7/'5 SwISS 53435-U2 292 CITY OF LURJ7CK 3274-F9545 I 000 DOOOJ93 07/31/95- 33/15/35 9cING DELIVERED BY 3LH AIOUVD 1JA4 THJRS 7/25 • •;dISS 53435-02 202 CITY OF LUFdOCK 3274-YI572 I 000 0000000 07/31/85- 08/15/85 BEING DELIVER.ED 9Y 3LH ARO'JN0 10AM THJRS 7/_5 . SwISS 53435-U2 202 CITY jr LJQLOCK 3380-AI999 I OJO 0000000 17/31/8513/15/85 BEING DELIVERED 9Y 3GH AROUND 1JA4 THJRS 7/'_5 1 SwISS 53435-U2 202 CITY OF LJBtiOCK 3380-A4309 I 000 0*300000 07/31/95- 09/15/95 BEING DELIVERE3 BY 3LH A10UND 1JA4 THJRS 7/25 • • SwISS 53435-U2 Z02 CITY OF LU9139LK 3380-ES195 I 030 0300000 07/31/95- 03/15/85 BciN© -DELIVEREO-0Y—b&t- AROUI—tU�Aii-ittiit� _ .SWISS 53435-02 _ 202AFCITY OF LUBnOCK, 3705-82747 I 000 0000300 07/31/95 08/1,5/85; a a kiriiNG; DELIVERED BY BGH AROUND 1JA4,THJRS 7/25 IOAC MESSAGE COUNTt r y _1!f „• ^�+.it''i�, ;' ^`�' ,'; .iiV 4f� 7,. ±'1 ♦4 :,Y 1:' �� �'t.� -` f�a� .y •�',� c- a �' Inte,,Frational 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 loth Street Lubbock. Texas 79408 Armonk, New York 10504 Agreement No.: 0953 IBM Branch Office No.: G69 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 Title of Agreement or Amendment All of the following, unless selectively designated r. by initialing below for individual documents Agreement for Purchase of IBM Machines IBM Maintenance Agreement Agreement for IBM Licensed Programs Agreement for Lease or Rental of IBM Machines Agreement for IBM Hourly Machine Service IBM Form Number' Z120-2892-00 Z125-3275-00 Z125-3358-00 Z125-3320-00 Z120-2826-00 13_:I c9Wr, 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. Accepted by: Intemational Busine achiries Corporation By............,,........ - l :.. `- ................. Aotno ftea Signature .......... ............. ......................... :..;........ . __........... .._� C•/. - Name (Type or Print) Date ............. _.................................... Customer By.............................. Authgrr, nature p� ' Name tType or Print) Date PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. U/M 025 Page 1 of 17 No Text �H I V' TYPE/SERIAL :..MOD Q�E cG �T YYPE/SE^RI�LFO 00JJSV PO1 ^/^ ' 06 / 2 8 5 07/02/851iO0JJTV 3179/0O0OBD16� 00]JSW '43814000013106~ 31��., 0 7/10 8507/16/85 00JJTW 3179/000OBD153 OOJJSX. �3205/000OOO828.`1�'10O,�.�'O7/1O/ �5`��07�16/85��/ OOJJTX 3179/0000BD173 001iJSY 3203/000050516 '005 �6/19/85�`�08/24/85 OOJJTY 3179/000OBD112 00JJTF 388O/O00056036�'003 � 06/19/85 ' � �� ����25/85 � ' . OOJJTZ 3179/OOOOBD149 O0JJTF�Xl.342O/O0003Q201��O�4 ' ' ������85� �.04/29/85� ' � OOJJVB 3179/0OOOBD156 OOJJTJ���342O/0OD040495 �� �004 ' 84/28�85��`'�O4/29�G5 00JJVC 3179�OOOOBD159 001JTK 3803/000018942 �002 06/2O/85 'O6/25�85'|� OOJJVD 317910OOOBD152 OOJJTN 3274/0000F8644.` , � A41 ^�07/1O/85 | O7/16/85'/ OOJJVF 3179/OOOOBD164 0OJJTP 3274/0000F8645 -'�A41 ' � O7/12/85 � �� O7/16/85^| OOJJVG 3179/00001-.'tE611 O0JJTT 3179/0A00BD1���� � 1O0 /�'�07/10/8� ' 07/15/85!.! 0�JJVH 3179/OOOOBE�1� SHIP ��'°� � 'i ' ARRIVAL-....' �PO � `� TYPE�SERIAL PO � 'TYPESERIAL �* MO�' DATE ' ` � �� DATE � |01LRBF . 3262/000067570 OOJJVW 3179/0�0OBC996 `� 10O ��� �7/1O/85 O7/15/85�` . 01LRPZ 3274/000OY1572 0OJJV% 3179/0000BD000''�1OO �#7/1O/85 07/15/85' O1LSYB 3868/0OOO88570 OOJJVY 3179/0OU0BD0O4`'�'10O ���7�1O/85 O7/15/85�, 01LSYC 3868�0O0O88571 O011JVZ 3179/0000 �^07/10/85 07/15/85�� 'O1LSYK 3866/O00055686 00111WB 3179/00001-41'101V 200 0 7 /20/85 07115185 01LVKY 3207/000ON1221 OOJJWC 3179/0000B1'1172`�J00 ` 07/10/85 07/15/85'� 'O1LVKZ 3287/000ON1355 OOJJWD 317910000BD020`'100 07/10/85 07/15/85, O11...VLB 3287/000ON1390 011-QRV 1416/0000B4987./001 /07/10/85 �� O1LVLC 3287/0000N1859 O2LQRZ, 3"�5/0O00S2747!`82 'O7/12/85' 07/16/85 ' !O1LVLD �287/OOOON2O77 °., p�n � �'-mxmmnom�ooV � / B4 � �6��g�85 . 6/25/85 �' � O1LVLF 3287/0OOON2299 '^' -'-� - O1LQSC � 338O/��00E6196�'�B�4 ��.08121/8z 5 0�/o/8o ��� ^' A'R R IV A I...O1LVLG PO � TYPE/SERIAL pO � � TyPE� ERIAL '�u» ~''^'- u�/c ~~ ~''- O1LVLH 3287/�OOON2469 3287/OOOON37O9 0OJJVJ' 3179/0OOOBE30H1/�nV �«//^v'c� ��"''^~'~- O1LVLJ 3287/OOOON371O O0JJVK ' 0 ��` 1g� ���v''^"'°~ V1LVLK` 3287/0OOON5756 0OJJVL' '_ 9/o000BE310 ``'' ^-'-- "''^"^~~ O1LVLL 3287/0UOON5902 OoJJVN � E3O�r;:,-I()() � �1LVL� �_ 3287�O00�N6749. OOJJVN 3l/�/VVn«���ro°��«" O0�� "''^`'-- �`1O/85` " ' ` � O7/15�85'` � O1LVLN /� 3287/�0OON7153 0OJJVP � 3179�OOOOBD00 � u+~'""~~`~~-' - � 3179/0OOOBDO0�' `1OO�`��0 � ��1O/85 � O7/15/85: 08XHCW ' 3420/000OK4806 0OJJVQ '3179/0000BDOi0��`10O'���0 /10/85 1 5 �| 0// o�u �.�iO8XHCY 08X4CX 3420/0OOOK48� . O0JJVR �7y1��85�`�����15�85�^ 3420/00OOK48.' 0OJJUS .3179/00O0BDO14�w�10O.'' 09BLFG 3380/000OA4300 0OJJVT 3179/000OBDO23''�100 ,n//Lw/o"! 'to0 ` 07/10/85 07/15/85 °"^^ ' MOD 005 C61 004 004 001 002 0O2 OO2 OO2 002 002 SHIP ' DATE O7/10/85 � O7/20/85 ` O7/1O/85 O7/1O/85 O7/1O/85 07/1O/85 O7/1O/85 071O/85 O7/1O/85 Q7/1O/85 07/1O/85 SHIP DATE �7/12/85 07/13/85 06/21/85 O6/21/85 .07/12/85 07y12/85 07/12/85 O7/12/85 07/12/85 O7y12/85 O7/12/B5 ARRlVAL C� DATE 07/15/85 07/15/85 07/15/85 O7/t5/85 O7/15/85 O7/15/85 O7/15/ a5 O7/15/85 O7/15/85 07/15/85 O7/15/85 ARRIVAL CC DATE 07/15/85 O7/16/85 O6/25/85 O6/25/85 O7/16/85 O7y1785 O7/17/85 O7/17/85 07/17/85 O7/17/85 O7/1785 SHIP ARRIVAL MOD DATE CC DATE 002 07/17/85 002 07/12/85 07/17/O5 OO2 07/12/85 07/17/85 002 O7/O3/85 O7/O8/85 002 O7/ 12/85 O7/17/85 002 07/12/85 07/17/85 002 07/12/85 07/17/85 006 06/19/85 06/24/85 006 06/19/85 06/24/85 006 06/19y85 06y24/85 . AD4 06/27/85 O7/02/85 ^ 4d lot f SUPPLEMENT B LIOUIDATED D *IAGES 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 filed 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 anv 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 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 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 FACL 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 August 30, 1985 DATA COMMUNICATIONS NETWORK MANAGE 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 CICS/OS/VS August 30, 1985 5748-XXH GDDi1 w/PGF August 30, 1985 1G69-1565.03 C SUPPLEMENT A The Laws of the State of TeNas shall govern performance of this contract. 9 y S 1 is {�` lK69.0735.02 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 IN WITNESS WHEREOF, the parties to these presents have executed this agreement in in the year and day first above written. jAZYOR By: -- XAS ( OWNER) A T: Secretary- ONTRACTaR BY: ---------------------- TITLE: _ L�2�r Lt_ Nt�1��IZ---------- ATTEST: ----------------------------------- Secretary COMPLETE ADDRESS: a' : 1 59 rrir 7t * Signed subject to the provision that no further changes will be made to this agreement subsequent to signing by Contractor I. 15 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 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